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H4-I0ZC 


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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


y 


CASES 


ON 


THE  LAW  OF  TORTS 


SELECTED  FROM  DECISIONS  OF 


ENGLISH  AND  AMERICAN  COURTS 


BY 

CHARLES  M.  HEPBURN 

PROFESSOR  OF  LAW  IN  INDIANA  UNI^IERSITY 


AMERICAN  CASEBOOK  SERIES 
WILLIAM  R.  VANCE 

GENERAL  EDITOR 


ST.  PAUL 

WEST  PUBLISHING  COMPANY 

1915 


I 
\ 


Copyright,  1915  'i^ 

BY  I 

WEST  PUBLISHING  COMrANT  "^ 

V 

(Hepb. Torts) 

T 
1915 


THE  AMERICAN  CASEBOOK  SERIES 


p^ 


The  first  of  the  American  Casebook  Series,  ^Mikell's  Cases  on  Crim- 
inal Law,  issued  in  December,  1908,  contained  in  its  preface  an  able 
argument  by  j\Ir.  James  Brown  Scott,  the  General  Editor  of  the  Se- 
ries, in  favor  of  the  case  method  of  law  teaching.  This  preface  has 
appeared  in  each  of  the  volumes  published  in  the  series  up  to  the 
present  time.  But  the  teachers  of  law  have  moved  onward,  and  the 
argument  that  was  necessary  in  1908  has  now  become  needless.  That 
such  is  the  case  becomes  strikingly  manifest  to  one  examining  three  im- 
portant documents  that  fittingly  mark  the  progress  of  legal  education 
in  America.  In  1893  the  United  States  Bureau  of  Education  pub- 
lished a  report  on  Legal  Education  prepared  by  the  American  Bar  As- 
sociation's Committee  on  Legal  Education,  and  manifestly  the  work 
of  that  Committee's  accomplished  chairman,  William  G.  Hammond, 
in  which  the  three  methods  of  teaching  law  then  in  vogue — that  is,  by 
lectures,  by  text-book,  and  by  selected  cases — were  described  and  com- 
mented upon,  but  without  indication  of  preference.  The  next  report 
of  the  Bureau  of  Education  dealing  with  legal  education,  published 
in  1914,  contains  these  unequivocal  statements. 

"To-day  the  case  method  forms  the  principal,  if  not  the  exclusive, 
method  of  teaching  in  nearly  all  of  the  stronger  law  schools  of  the 
country.  Lectures  on  special  subjects  are  of  course  still  delivered  in 
all  law  schools,  and  this  doubtless  always  will  be  the  case.  But  for 
staple  instruction  in  the  important  branches  of  common  law  the  case 
has  proved  itself  as  the  best  available  material  for  use  practically  ev- 
erywhere. *  *  *  The  case  method  is  to-day  the  principal  method 
of  instruction  in  the  great  majority  of  the  schools  of  this  country." 

But  the  most  striking  evidence  of  the  present  stage  of  development 
of  legal  instruction  in  American  Law  Schools  is  to  be  found  in  the 
special  report,  made  by  Professor  Redlich  to  the  Carnegie  Foundation 
for  the  Advancement  of  Teaching,  on  "The  Case  Method  in  American 
Law  Schools."  Professor  Redlich,  of  the  Faculty  of  Law  in  the  Uni- 
versity of  Vienna,  was  brought  to  this  country  to  make  a  special  study 
of  methods  of  legal  instruction  in  the  United  States  from  the  stand- 
point of  one  free  from  those  prejudices  necessarily  engendered  in 
American  teachers  through  their  relation  to  the  struggle  for  supremacy 
so  long,  and  at  one  time  so  vehemently,  waged  among  the  rival  sys- 
tems.    From  this  masterly  report,  so  replete  with  brilliant  analysis 

(iii) 


72999G 


IV  PREFACE 

and  discriminating  comment,  the  following  brief  extracts  are  taken. 
Speaking  of  the  text-book  method  Professor  Redlich  says : 

"The  principles  are  laid  down  in  the  text-book  and  in  the  profes- 
sor's lectures,  ready  made  and  neatly  rounded,  the  predigested  essence 
of  many  judicial  decisions.  The  pupil  has  simply  to  accept  them  and 
to  inscribe  them  so  far  as  possible  in  his  memor}'.  In  this  way  the 
scientific  element  of  instruction  is  apparently  excluded  from  the  very 
first.  Even  though  the  representatives  of  this  instruction  certainly  do 
regard  law  as  a  science — that  is  to  say,  as  a  system  of  thought,  a  group- 
ing of  concepts  to  be  satisfactorily  explained  by  historical  research  and 
logical  deduction — they  are  not  willing  to  teach  this  science,  but  only 
its  results.  The  inevitable  danger  which  appears  to  accompany  this 
method  of  teaching  is  that  of  developing  a  mechanical,  superficial  in- 
struction in  abstract  maxims,  instead  of  a  genuine  intellectual  probing 
of  the  subject-matter  of  the  law,  fulfilling  the  requirements  of  a 
science." 

Turning  to  the  case  method  Professor  Redlich  comments  as  follows : 
*Tt  emphasizes  the  scientific  character  of  legal  thought ;  it  goes  now 
a  step  further,  however,  and  demands  that  law,  just  because  it  is  a 
science,  must  also  be  taught  scientifically.  From  this  point  of  view  it 
very  properly  rejects  the  elementary  school  type  of  existing  legal  edu- 
cation as  inadequate  to  develop  the  specific  legal  mode  of  thinking,  as 
inadequate  to  make  the  basis,  the  logical  foundation,  of  the  separate 
legal  principles  really  intelligible  to  the  students.  Consecjuently,  as  the 
method  was  developed,  it  laid  the  main  emphasis  upon  precisely  that 
aspect  of  the  training  which  the  older  text-book  school  entirely  neg- 
lected— the  training  of  the  student  in  intellectual  independence,  in  in- 
dividual thinking,  in  digging  out  the  principles  through  penetrating 
analysis  of  the  material  found  within  separate  cases ;  material  which 
contains,  all  mixed  in  with  one  another,  both  the  facts,  as  life  creates 
them,  which  generate  the  law,  and  at  the  same  time  rules  of  the  law 
itself,  component  parts  of  the  general  system.  In  the  fact  that,  as  has 
been  said  before,  it  has  actually  accomplished  this  purpose,  lies  the 
great  success  of  the  case  method.  For  it  really  teaches  the  pupil  to 
think  in  the  way  that  any  practical  lawyer — whether  dealing  with  writ- 
ten or  with  unwritten  law — ought  to  and  has  to  think.  It  prepares  the 
student  in  precisely  the  way  which,  in  a  country  of  case  law,  leads  to 
full  powers  of  legal  understanding  and  legal  acumen ;  that  is  to  say, 
by  making  the  law  pupil  familiar  with  the  law  through  incessant  prac- 
tice in  the  analysis  of  law  cases,  where  the  concepts,  principles,  and 
rules  of  Anglo-American  law  are  recorded,  not  as  dry  abstractions,  but 
as  cardinal  realities  in  the  inexhaustibly  rich,  ceaselessly  fluctuating, 
social  and  economic  life  of  man.  Thus  in  the  modern  American  law 
school  professional  practice  is  preceded  by  a  genuine  course  of  study, 
the  methods  of  which  are  perfectly  adapted  to  the  nature  of  the  com- 
mon law." 


PREFACE  V 

The  general  purpose  and  scope  of  this  series  were  clearly  stated  in 
the  original  announcement: 

"The  General  Editor  takes  pleasure  in  announcing  a  series  of  schol- 
arly casebooks,  prepared  with  special  reference  to  the  needs  and  limi- 
tations of  the  classroom,  on  the  fundamental  subjects  of  legal  educa- 
tion, which,  through  a  judicious  rearrangement  of  emphasis,  shall  pro- 
vide adequate  training  combined  with  a  thorough  knowledge  of  the 
general  principles  of  the  subject.  The  collection  will  develop  the  law 
historically  and  scientifically;  English  cases  will  give  the  origin  and 
development  of  the  law  in  England ;  American  cases  will  trace  its  ex- 
pansion and  modification  in  America ;  notes  and  annotations  will  sug- 
gest phases  omitted  in  the  printed  case.  Cumulative  references  will  be 
avoided,  for  the  footnote  may  not  hope  to  rival  the  digest.  The  law 
will  thus  be  presented  as  an  organic  growth,  and  the  necessary  con- 
nection between  the  past  and  the  present  will  be  obvious. 

"The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. *  *  *  If  it  be  granted  that  all,  or  nearly  all,  the  studies  re- 
quired for  admission  to  the  bar  should  be  studied  in  course  by  every 
student — and  the  soundness  of  this  contention  can  hardly  be  seriously 
doubted — it  follows  necessarily  that  the  preparation  and  publication  of 
collections  of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine 
and  by  no  means  unimportant  service  to  the  cause  of  legal  education. 
And  this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief.     *     *     * 

"The  following  subjects  are  deemed  essential  in  that  a  knowledge  ot 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  universally  required  for  admission  to  the  bar: 

Administrative  Law.  Evidence. 

Agency.  Insurance. 

Bills  and  Notes.  International  Law. 

Carriers.  Jurisprudence. 

Contracts.  Mortgages. 

Corporations.  Partnership. 

Constitutional  Law.  Personal  Property. 

Criminal  Law.  -d     i  -n  <.      i  ^^^  ^^^''• 

„  .    .     ,  T-.         1  Real  Property.  ^  2d 

Cnmmal  Procedure,  [  3d      •• 

Common-Law  Pleading.  Public  Corporations. 

Conflict  of  Laws.  Quasi  Contracts. 

Code  Pleading.  Sales. 

Damages.  Suretyship. 

Domestic  Relations.  Torts. 

Equity.  Trusts. 

Equity  Pleading.  Wills  and  Administration. 


VI  PREFACE 

"International  Law  is  included  in  the  list  of  essentials  from  its  in- 
trinsic importance  in  our  system  of  law.  As  its  principles  are  simple 
in  comparison  with  municipal  law,  as  their  application  is  less  technical, 
and  as  the  cases  are  generally  interesting,  it  is  thought  that  the  hook 
may  be  larger  than  otherwise  would  be  the  case. 

"As  an  introduction  to  the  series  a  book  of  Selections  on  General 
Jurisprudence  of  about  500  pages  is  deemed  essential  to  completeness. 

"The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  classroom  and  the  needs  of  the  students  will  furnish 
a  sound  basis  of  selection." 

Since  this  announcement  of  the  Series  v/as  first  made  there  have 
been  published,  or  put  in  press,  books  on  the  following  subjects: 

Administrative  Lazv.  By  Ernst  Freund,  Professor  of  Law,  Univer- 
sity of  Chicago. 

Agency.  By  Edwin  C.  Goddard,  Professor  of  Law,  University  of 
Michigan. 

Bills  and  Notes.  By  Howard  L.  Smith,  Professor  of  Law,  Univer- 
sity of  Wisconsin,  and  William  U.  Moore,  Professor  of  Law, 
University  of  Chicago. 

Carriers.  By  Frederick  Green,  Professor  of  Law,  University  of  Ill- 
inois. 

Conflict  of  Lazvs.  By  Ernest  G.  Lorenzen,  Professor  of  Law,  Uni- 
versity of  Minnesota. 

Constitutional  Law.  By  James  Parker  Hall,  Dean  of  the  University 
of  Chicago,  Law  School. 

Corporations.  By  Harry  S.  Richards,  Dean  of  the  University  of  Wis- 
consin Law  School. 

Criminal  Lazv.  By  William  E.  Mikell,  Dean  of  the  University  of 
Pennsylvania  Law  School. 

Criminal  Procedure.  By  W'illiam  E.  Alikell,  Dean  of  the  University 
of  Pennsylvania  Law  School. 

Damages.  By  Floyd  R.  Mechem,  Professor  of  Law,  Chicago  Univer- 
sity, and  Barry  Gilbert,  Professor  of  Law,  University  of  Cali- 
fornia. 

Equity.  By  George  H.  Boke,  Professor  of  Law,  University  of  Cali- 
fornia. 

Insurance.  By  W.  R.  Vance,  Dean  of  the  University  of  Minnesota 
Law  School. 

Partnership.  By  Eugene  A.  Gilmore,  Professor  of  Law,  University  of 
Wisconsin. 

Persons  (including  Marriage  and  Divorce).  By  Albert  M.  Kales,  Pro- 
fessor of  Law,  Northwestern  University,  and  Chester  G.  Vernier, 
Professor  of  Law,  University  of  Illinois. 


PIIEFACE  Vll 

Pleading  {Common  Lazv).     By  Clarke  B.  Whittier,  Professor  of  Law, 

Stanford  University. 
Sales.     By  Frederic  C.  Woodward,  Dean  of  Stanford  University  Law 

School. 
Suretyship.     By  Crawford  D.  Hening,  Professor  of  I<aw,  University 

of  Pennsylvania. 
Torts.     By  Charles   M.  Hepburn,   Professor  of   Law,  University  of 

Indiana. 
Trusts.    By  Thaddeus  D.  Kenneson,  Professor  of  Law,  University  of 

New  York. 
JVills  and  Administration.    By  George  P.  Costigan,  Jr.,  Professor  of 

Law,  Northwestern  University. 

It  is  earnestly  hoped  and  believed  that  the  books  thus  far  published 
in  this  series,  with  the  sincere  purpose  of  furthering  scientific  training 
in  the  law,  have  not  been  without  their  iniluence  in  bringing  about  a 
fuller  understanding  and  a  wider  use  of  the  case  method. 

The  following  well-known  teachers  of  law  are  at  present  actively 
engaged  in  the  preparation  of  casebooks  on  the  subjects  indicated  be- 
low; 

Frank  Irvine,  Dean,  Cornell  University  Law  School.     Subject,  Evi- 
dence. 

Charles   Thaddeus   Terry,   Professor  of  Law,   Columbia  University. 
Subject,  Contracts. 

James  Brown  Scott,  Professor  of  International  Law,  Johns  Hopkins 
University.     Subject,  International  Lazv. 

Edward  S.  Thurston,  Professor  of   Law,  University  of  ^Minn^sota. 
Subject,  Quasi  Contracts. 

Henry  Wade  Rogers,  Dean,  Yale  Law  School.     Subject,  Public  Cor- 
porations. 

Albert  M.  Kales,  Professor  of  Law,  Northwestern  University.     Sub- 
ject, Property. 

Harry  A.  Bigelow,  Professor  of  Law,  University  of  Chicago.    Subject, 
Property. 

Ralph  W.  Aigler,  Professor  of  Law,  University  of  Michigan.    Subject, 
Property. 

*    .WitiviAM  R,  Vance, 

General  Editor. 
Minneapolis,  September,  1915. 


AUTHOR'S  PREFATORY  NOTE 


In  selecting  and  classifying  the  materials  for  this  book,  I  have  had 
in  mind  especially  the  first  year  law  students.  If  "the  classification 
of  actionable  wrongs,"  as  Sir  Frederick  Pollock  remarks,  "is  per- 
plexing, not  because  it  is  difficult  to  find  a  scheme  of  division,  but 
because  it  is  easier  to  find  many  than  to  adhere  to  any  one  of  them," 
the  problem  is  hardly  less  difficult  when  it  has  to  do  with  the  presen- 
tation of  the  principles  of  Torts,  through  a  collection  of  cases  ex- 
tending from  the  Year  Books  to  the  present  day.  But  when  the 
needs  of  a  class  of  first  year  law  students  are  considered  there  are 
two  or  three  guiding  principles  which  tend  to  settle  the  scheme  of 
division. 

It  appears  to  be  clear  that  the  beginning  student  in  Torts,  however 
it  may  be  in  other  subjects,  should  have  some  assistance,  at  the 
very  outset,  in  marking  the  place  which  is  occupied  by  Torts  in  the 
general  field  of  the  law.  Perhaps  this  assistance  might  be  given 
him  through  a  collection  of  cases,  but  for  the  immediate  purpose  of 
this  volume  it  seems  best  to  use  a  number  of  reading  selections.  This 
I  have  attempted  in  an  Introductory,  dealing  with  the  meaning  of  the 
word  "tort"  as  an  historical  term  of  law,  with  the  diff^erence  between 
torts  and  moral  wrongs,  and  between  torts  and  other  forms  of  legal 
wrong,  and  with  the  effect  which  the  common  law  action  for  damages 
has  had  on  our  theory  of  torts.  I  have  added  a  short  note  on  the 
classification  of  torts. 

It  appears  to  be  reasonably  clear  also  that  the  beginning  student 
needs,  in  his  study  of  the  individual  torts,  a  simple  and  broad  classifi- 
cation based  on  historical  lines.  In  his  inductive  study  of  the  cases, 
he  will  profit  by  following  in  the  main  the  historical  development  of 
our  law  of  torts.  This  has  led  me  to  pass  by  several  classifications  of 
torts  which  are  evidently  of  interest  and  stimulating  value  for  ad- 
vanced students,  and  to  take  the  broadest  lines  of  division  and,  for  a 
starting  point,  the  causes  in  trespass. 

The  cases  on  the  inclivifhial  torts  have  been  arranged,  therefore, 
in  two  main  divisions.  In  the  first  I  have  placed  the  trespasses,  and 
in  a  subdivision  after  them  the  other  torts  which  rest  on  an  act  of 
absolute  liability. 

In  the  second  main  division  I  have  placed  those  torts,  chiefly  of 
modern   development,    in    which    the  plaintiff    cannot   show    any    act 

(ix) 


X  author's  prefatory  note 

of  absolute  liability  committed  by  the  defendant,  but,  in  order  to 
make  out  a  valid  prima  facie  cause,  must  show  "negligence"  or 
"malice." 

From  this  two-fold  scheme  of  division,  one  departure  has  been 
made.  For  the  sake  of  convenience  in  teaching,  the  consideration  of 
the  causal  relation  in  torts  has  been  treated  as  a  distinct  division  of 
the  subject,  and  is  placed  between  the  first  and  the  second  of  the 
divisions  just  indicated.  Ciiari,ES  M.  Hetuukn. 

Indiana  University  School  of  Law, 
August,  1915. 


TABLE  OF  CONTENTS 


INTRODUCTORY 

^  Page 

"Torts"  and  "Wrongs" 1 

II 

ToKTS  AND  Moral  Wrongs     4 

III 

Torts  and  Other  Legal  Wrongs  7 

IV 

Torts  and  the  Common  Law  Action  for  Damages 15 

V 

Classification   of   Torts 21 

PART  I 
Torts  Through  Acts  of  Absoluti;  Liability 

chapter  i 

Section  Trespasses 

1.  Trespasses  in  General   2."! 

I.     Historical    2:> 

II.     Jurisdictional  Features  of  a  Cause  in  Trespass 2G 

III.     Characteristics  of  a  Cause  in  Tresspass 2S 

2.  Elements  of  a  Prima  Facie  Cause  in  Tresspass 47 

I.     In  Trespass  to  the  Person 47 

(A)  In    Assault    47 

(B)  In   Battery    55 

(C)  In    False    Imprisonment SO 

(a)  In    General    SO 

(b)  In    Arrest    100 

(c)  Imprisonment — Distinguished  from  Malicious  Pros- 

ecution       lOo 

II.     In  Trespass  to  I'roperty  105 

(A)  In  Trespass  to  Real  Property   105 

(P>)  In  Trespass  to  Personal  Property 114 

3.  Just  ific.'it ion  or  Excuse  of  a  Prima  Facie  Trespass 122 

I.     Showing  the  Justification    122 

II.     The  Different  Forms  of  Justification  or  Excuse 1.".2 

(A)  Consent    132 

(a)  Leave  and  License 132 

Hepb. Torts  (xi) 


XU  TABLE  OF  CONTENTS 

Section  Page 
3.     Justification  or  Excuse  of  a  Prima  Facie  Trespass     (Continued) 

(B)  Accident ;    jNIistiike ;    Necessity    155 

(a)  Accident     155 

(b)  Mistalve     16S 

(c)  Necessity     175 

(C)  Defense  of  tlie  Person  190 

(D)  Defense  of   Property   196 

(a)  Defense  of  Pei'sonal  Property ;    Recaption 196 

(b)  Defense  of  Real  Property;    Forcible  Re-entry 207 

(E)  Lawful  Arrest   231 

(a)  Under  Judicial  Process   231 

(b)  Arrest   Without  Warrant    242 

(F)  Discipline    266 

(G)  Safety  of  Plaintiff 275 

i.    Trespass  Ab  Initio  2S0 


CHAPTER  II 

Absolute  Torts  otheb  Tuan  Trespasses 

Before  the  Statute  of  Westminster  the  Second 294 

I.  Historical     294 

II.  Detinue — Replevin    295 

(A)  Nature  of  the  Cause  in  General 295 

(B)  Limits  of  Detinue  and  Replevin 305 

After  the  Statute  of  Westminster  the  Second 316 

I.     Historical    316 

II.  Nuisance    31S 

(A)  Nature  of  the  Tort 318 

(a)  The  Different  Kinds  of  Nuisance 318 

Ob)  Nuisance  Distinguished  from  Other  Torts 334 

(B)  Elements  of  a  Prima  Facie  Cause  in  Nuisance 344 

(a)  The  Facts  to  be  Pleaded,  in  an  Action  for  Damages  344 

(b)  Nature  of  the  Plaintilf 's  Interest 348 

(c)  The  Defendant's  Act  354 

(d)  Kinds  and  Degrees  of  the  Annoyance <  373 

(e)  Whether  Actual  Damage  is  Essential i  385 

(C)  The  Remedies  in  Nuisance 396 

(D)  Excusable    Nuisances    4(x; 

III.  Trover   and   Conversion    437 

(A)  Nature  of  the  Tort    437 

(a)  Trover  and  Conversion  Distinguislicd  from  Other 

Torts    437 

(b)  Subject-Matter  of  Trover  and  Conversion   445 

(c)  Effect  of  a  Judgment  for  Plaintiff 451 

(B)  Elements  of  the  Prima  Facie  Cause  in  Trover  and  Con- 

version   455 

(a)  The  Plaintiff's  Right  in  Conversion  456 

(b)  The  Defendant's  Act   465 

(aa)  As  Part  of  the  Plaintiffs  Case 465 

G>b)  Conversion  Through  Demand  and  Refusal..  409 

(cc)  Conversion  Without  Demand  and  Refusal...  475 

(1)  In   General   475 

(2)  Different  Fonns  of  Such  Conversion. .  478 


TABLE  OF  CONTENTS  XJll 

Section  Page 
2.     After  the  Statute  of  Westminster  the  Second     (Continued) 

(C)  The  Defense  in  Trover  and  Conversion 494 

(a)  In  General    -  494 

(b)  The  Defense  ^Mien  the  Conversion  was  Through  a 

Demand    and    Refusal    5<X) 

(c)  The  Defense  When  the  Conversion  was  Through  a 

Destruction  or  an  AsiX)rtation  511 

(d)  The  Defense  When  the  Conversion   was  Through 

User    519 

IV.     Seduction  and  Loss  of  Service 583 

V.     Defamation     555 

(A)  Origin  of  the  Tort,  and  the  Kinds  of  Defamation 555 

(a)  Its  Recognition  in  the  Courts  of  Law 555 

(b)  Slander 55S 

(aa)  Limitations    Because    of    the    Ecclesiastical 

Jurisdiction    55S 

(bb)  Oral  Defamation  Now  Within  the  Jurisdic- 
tion of  the  Courts  of  Law 559 

(1)  Slander  Per  Se    559 

(i)  Words  Imputing  Crime   559 

(ii)  Words  Imputing  Disease    564 

(iii)  Words     Disparaging    in     Trade, 

Profession,  or  Office  566 

(2)  Slander   Through    Special   Damage 574 

(c)  Libel     583 

(B)  Elements  of  the  Prima  Facie  Cause  in  Defamation 595 

(a)  Nature  of  the  Charge 595 

(aa )  Defamatory    595 

(bb)  Of  and  Concerning  the  Plaintiff GOT 

(b)  Publication 619 

(c)  "Falsely    and    Maliciously" 634 

(d)  Actual  Dauiage  638 

(C)  Construction  and  Application   642 

(D)  Defenses  to  a  Prima  Facie  Cause  in  Defamation 649 

(a)  Justification :    Truth  of  the  Charge 649 

(b)  Privilege    658 

(aa)  Absolute  Privileges   659 

(bb)  Conditional  Privilege   678 

(1)  Repoi-ts  in  Public  Interest 678 

(2)  Communication     in     Pursuance     of     a 

Duty    693 

(3)  Communication  in  Protection  of  a  Pri- 

vate Interest   71i; 

(c)  Other  Excuses  for  Defamatory  Charges  Confessed- 

ly Untrue    718 

(d)  Fair    Comment    728 

(E)  Defeating  a  Prima  Facie  Justification  or  Excuse  in  De- 

famation :    MaUce,  Excess 738 

(a)  As  a  Reply  to  the  Plea  of  Justification 738 

(b)  As  a  Reply  to  the  Plea  of  Privilege  741 

(c)  As  a  Reply  to  the  Plea  of  Fair  Comment 759 

VI.     Other  Acts  at  Peril  764 

(A)  Keeping  His   Fire   764 

(B)  lyiabillty  for  Animals   76t5 

(C)  Extra-Hazardous   Use   776 


Xiv  TABLE   OF  CONTENTS 

PART    II 

Causal  Relation 
chapter  i 

Section  Page 
The  Existence  of  a  Causal  Relation,  and  Its  Affirmative  Show- 
ing AS  Part  of  the  I'laintiff's  Prima  Facie  Case 800 

CHAPTER  II 
The  Tests  of  Legal  Cause 

1.  The  "Proximate  Cause"    811 

2.  I'robability  of  Result  as  a  Test  of  Legal  Cause 814 

3.  luterxening  Agency  as  a  Test  of  Legal  Cause 841 

4.  Co-operative  Agencies  and  Legal  Cause 883 


PART  III 
Torts  Through  Acts  of  Conditional  Liability 

chapter  i 

Negligence 

1.  The  Place  of  Negligence  in  the  Field  of  Torts 901 

I.     Origin  of  Our  Doctrine  of  Negligence   901 

II.     Negligence  Distinguished  from  Other  Forms  of  Tort 905 

2.  Elements  of  a  Prima  Facie  Case  in  Negligence 916 

I.     The  Defendant's  Duty  to  Use  Care 916 

(A)  In    General    916 

(B)  Legal  Degrees  of  Care 933 

II.     Defendant's  Failure  to  Use  Care 916 

III.     Plaintiff's  Actual  Damage   903 

IV.     Whether  Freedom  from  Contributory  Fault  is  Part  of  the 

Piima  Facie  Case  in  Negligence 969 

3.  The  Scope  of  the  Duty  to  Use  Care 982 

1.     In  Relation  to  the  Ownership  or  Possession  of  Property 982 

(A)  Duty  of  Care  Towards  a  Trespasser 982 

(a)  In  General  982 

(b)  Modification  of  the  Rule 987 

(B)  Duty  of  Care  Towards  a  Licensee 1014 

(C)  Duty  of  Care  Towards  an  Invitee 1026 

IL     In  Relation  to  Contractual  Obligation:    Whether  a  Duty  of 

Care  Towards  Third  I'ersons 1043 

III.     In  the  Absence  of  Contractual  and  Property  Obligation 1084 

4.  Excusable  Negligence  1092 

I.     Accident  as  an  Excuse  1092 

II.     Contributoi-y  Negligence  as  an  Excuse  1096 

III.     Assumption  of  Risk  as  an  Excuse  1114 

IV.  Imputed  Negligence  as  an  Excuse  1144 

5.  The  I^st  Clear  Chance  1151 


TABLE   OF   CONTENTS  XV 


CHAPTER  II 

Section  Torts  Through  Malice  ^^^ 

1.  Nature  of  "Malice"  11S2 

2.  Individual  Torts  Turuins;  on  Malice  1183 

I.    Malicious    Prosecution    11S3 

(A)  Elements  of  the  Prima  Facie  Case  in  Malicious  Pros- 

ecution       11S4 

(B)  Excusable   Prosecr.tion    1196 

II.     IMalicious  Abuse  of  Process 1200 

III.     iNIalicious   Falsehood    1203 

IV.     Deceit    121.3 

v.     Malicious    Use   of   Property   or   Influence   for  the   Harai   of 

Another    1227 

3.  As  to  Justifying  or  Excusing  the  Use  of  Property  or  Influence  for  the 

Intentional  Harm  of  Another   125S 

I.     The  Principle  in  General  12-58 

II.     In  Trade  or  Business  Competition  1310 

III.     In  Labor  Contests;    Strikes,  Lockouts,  Boycotts 135.j 

Hepb.Torts— b 


TABLE     OF  CASES 


CASES  CITED  IN  FOOTNOTES  ARE  INDICATED  BY  ITALICS.       WHERE  SMALL  CAPITALS 
ARE  USED,   THE  CASE  IS  REf ERRED  TO  IN  THE  TEXT 

A  TABLE  OF  STATUTES  AND  A  TABLE   OF  REGNAL  YEARS  ARE 
GIVEN   IN   THE   INDEX 


Page 

Adams  v.  Adams 2S5 

Adams  V.  Broughtou 451 

Adams  v.  Popham 350 

Adams  v.  Rivers 2S4 

Adams  v.  Vrsell 376 

Aiken  v.  Columbus —   807 

Allvens  V.  Wiscousiu 1260 

Ail-ens  v.  Wisconsin 3 

Alabama  G.  8.  R.  Co.  v.  C.hanman  828 
Alabama  O.  8.  R.  Co.  v.  Crocker.  .  999 

Aldrich  v.  Wright 199 

Alexander  v.  Jenkins 572,  574 

Alexander  v.  New  Castle 870 

Alexander  v.  Soutliey 501 

Allen  V.  Crofoot 282 

Allen  V.  Fox 443 

Allen  V.  Flood 1285 

Allen  v.   Flood 1282,  1283,  1284, 

1289,  1293,  1372,  1390,  1404 

Allen  V.  Eillman 566 

Allen  V.  Keily 224 

Allen  V.  Wortham 624 

Allgear  v.  Walsh 504 

Alzua  V.  Johnson 661 

American  Fed.  of  Labor  v.  Buck's 

Stove  and  Range  Co 1362 

American  Union  Tel.  Co.  v.  Mid- 

dleton    440 

Anderson  v.  Arnold's  Ex'r 74 

Anderson  v.  Ft.  Dodge,  D.  M.  &  S. 

R.  Co 1006 

Anderson  v.  Gouldberg 304 

Andrews  v.  Kiusel 872 

Angle  V.  Chicago,  St.  P.,  M.  &  O. 

R.  Co 1302 

Angle  v.  Chicago,  St.  P.,  M.   & 

O.  R.  Co 1334 

Anonymous 190,  559,  764 

Anonymous  (1652) 635 

Anonymous,  Y.  B.  12  Ed.  II.,  3S1 

(1319) 190 

Anonipnous,    Y.    B.    20    Edw.    IV 

(1-fsi)    30,  109 

Anonvmous,    Y.    B.    19    Hen.    VI 

(1440)  196 

Anonymous,  Y.  B.  21  Hen.  VIII. . .  320 
Anonymous,  Y.  B.  27  Hen.  VIII. .  263 


Anthony  v.  Haneys 

Archbishop  of  Tuam  v.  Robeson.  . 

Armory  v.  Delamirie 

Arne  v.  Johnson 

Arnold  v.  Holbrook 

Arnold  v.  Ingram 

Arrowsmith  v.  Le  jMesurier 

Arthur  v.  Oakes 

Ashby  V.  White 

AsHBY  V.  White 

Ashcroft  V.  Hanunond 

Ashley  v.  Harrison 

Atchison,   T.  &   S.   F.   R.    Co.  v. 

Bales    . ., 

Atkins  v.  Fletcher  Co 

Attersol  v.  Briant 

Attorney  General  of  Australia  v. 

Adelaide  S.  S.  Co 

Austin  V.   DowUng 

Austin  v.  Great  Western  R.  Co 

Averill  v.  Chadwick 

Ay  re  V.   Craven 

Ayre  v.   Craven. 


Page 
130 
589 
456 
597 
ISO 
632 
134 

1359 
963 
904 
743 

1236 

801 

1390 

465 

1261 
105 

1025 
459 
570 
570 


Bacon  v.  Boston 436 

Badkin  v.  Powell 123 

Bailey  V.  Kclhi 341 

Baily  v.  ilerrell 1214 

Baker  v.  Byrne 984 

Baker  v.  Pierce 644 

Baker  v.  Snell 792 

Baldwin  v.  Cole 500 

Baldwin  v.  Cole 470 

Ball  V.  Bridges 044 

Baltimore  v.  Fairfield  Imi*.  Co.  379 

Baltimore  &  O.  R.  Co.  v.  Cain 253 

Baltzeger  v.  Carolina  Midland  R. 

Co 333 

Bamford  v.  Turnley 416 

Barfoot  v.  Reynolds 192 

Barhani  v.  Nethersall 647 

Barholt  v.  Wright 143 

Barker  v.  Herbert 3(>7 

Barling  v.  West 236 

Barnes  v.  Bruddel 577 

Barrett  v.  Cleveland.  C,  C.  &  St. 

L.  R.  Co 915,  929 


Hepb.Toets 


(xvii) 


XVlll 


TABLE   OF   CASES 


Page 

Barrows  v.  Bell <»''^*'> 

Basely  v.  Clarkson 1(>0 

Bfiteu's  Case ^^^7 

Bates  V.  Batey  &  Co 10T5 

Banm  v.  Clause C56,  057 

Bavington  v.  Robinson 754 

Baynes  v.  Brewstei- 252 

Beacli  V.  Hancock 51 

Beardsley  v.  Bridoiitaii 651 

Beckwitli  v.  Philby 259 

Bcddall  V.  Maitland 223 

Bell  V.  Miller  71 

Benedick  v.  Potts  95S 

Benjamin  v.  Storr 332 

Bennan  v.  Parsonnet 141 

Bennett  v.  Allcott 124 

Bennett  v.   Austro  Americana   S. 

S.   Co 97 

Bennichsen  v.  Market  St.  R.  Co..  .1162 

Benson  v.  Bacon  54 

Bernina,   The    1144 

Berry  v.  Donovan 1396 

Binn  Broom  Corn  Co.  v.  Atchi- 
son, T.  &  S.  F.  R.  Co S97 

BiGELOw  V.  Maine  Cent.  R.  Co..  .1081 

Binford  v.  Johnston 8.59 

Bingham  v.   Gay  nor 743 

Bird  V.  Astcock 511 

Bird  V.  Jones   81 

Bird  V.  Lynn 72 

Bittermau  v.   Louisville  &  N.   R. 

Co 13.32 

Bjork  V.  Tacoma  1009 

Black  V.  New  York,  N.  H.  &  H. 

R.  Co 1103 

Blades  v.  Higgs 202 

Blugg  V.  Sturt   695 

Blake  v.  Lanyon   537 

Blake  v.  Lanyon 1239 

Blake  v.  Woolf 797 

Bliss  V.  Bange  226 

Bliss  V.  Hall 414 

Blodgett   V.   Central   Vermont   R. 

Co 1168 

Blood  Balm  Co.  v.  Cooper 1083 

Bloss  V.  Tobey  647 

Blyth    v.    Birmingjiam    Water- 
works Co 818,  821 

Blyth  V.  Topham 982 

Boardman   v.    Sill 504 

Board  of  Health  v.  North  Amer- 
ican Home 380 

Bobb  V.  Bostcorth 205 

Boggs  V.  Duncan-Schell  Furniture 

Co 1350 

Dohan  v.  Port  Jerms   Oas  Light 

Co 410 

Bohn  Mfg.   Co.  v.  Hollis   1.310 

lUjhn  Mfg.  Co.  v.  lloUis 1316 

r.oiiN  Mkg.  Co.  v.  Holms.  .1320,  1.341 
Bonner  v,  Welborn  431 


Page 

Booth  V.  Arnold 574 

Booth  v.  Burgess   1393 

Booth  V.  Hanlei)   247 

Booth  V.  Rome,  W.  &  O.  T.  R.  Co.     38 

Boston  &  M.  R.  Co.  v.  Small 288 

Bottmnley  v.  Brougham 659 

BouTWELL  V.  Marr 1.326.  1395 

Bo  WEN  V.  Hall 1266,  1279 

BowEN  V.  Matheson 1372 

Box  V.  Jubb 791 

Boxsius  V.  Gol)let  Frcrcs 630 

Boydell  v.  Jones   597 

Boy  son  v.  Thorn 1332 

Bradford  v.  Pickles   1300 

Bradford   v.   Pickles 1259 

Bradley  v.  Lake  Shore  &  M.  S.  R. 

Co 165 

Bradshaio  v.  Frazier    932 

Bradshaio  v.  Jones  146 

Uradt  V.  New  Nonpareil  Co 621 

Brady   v.    Warren 34 

Branahan  v.  Hotel  Co 435 

Branstetter,v.  Dorrough 720 

Brendlin  v.  Beers   215 

Bridge    v.    Grand    Junction    R. 

Co 1154 

Bridges    v.    Hawkesicorth 457 

Bridgott  v.  Coyney   128 

Bricsc  V.  Macchtle   147 

Brill  V.  Flagler 201 

Brinilson  v.  Chicago  &  N.  W.  R. 

Co 1019 

Brlnsmead  v.  Harrison 452 

Brook   V.   Montague  (Sir) 662 

Brook  V.  Sir  Henry  Montague...  662 

Brooker   v.    Coffin 560 

Brooks  V.  Olmstead 118 

B rough   v.   Dennyson 644 

Broughton  v.  McGrcw 714,  749 

Brown  v.  American  Steel  &  Wire 

Co 838 

Brown  v.   Chapman 105 

Brown  v.  Croome 742 

Brown  v.  Giles  770 

Brown  v.  Journal  Neicspaper  Co.  618 

Brown    v.    Kendall 160 

Brown,   Hussey  &  Erith  v.  How- 
ard     271 

Hroivning  v.   Commomvealth 559 

Bruch  V.  Carter 212 

Bruen  v.  Roe 475 

Brunsden  v.  Humphrey 968 

Brunswick  (Duke)  v.  narrncr..i>22,  722 

Buckley  v.  Gross 457 

Buckataff  v.  II icks 747 

Bull   V.   Cotton 60 

BuUard  v.  Harrison 180 

Bullock   V.    Bahcock 15S 

BuHDK'K  V.  Cheadle 920 

Burnham  v.  Dowd 1436 

Burrows  v.  Pixley 321 


TABLE   OF   CASES 


XIX 


Pnen 

Buschlaum  v.  Heriot 672 

Bltsii  v.  Brainard 219 

Bushel  V.  Miller 512 

Butler  V.  Frontier  Tel.  Co 112 

BuTOLPn  V.  Blust 243 

Butterfield  v.  Ashley 539 

Butterfield  v.  Forrester 109G 

Button  V.  Hudson  River  R.  Co.   .  .  978 

Bi/am  V.  Collins 704 

Byne  v.  Moore 11S5 

Byrne  v.  Beadle 952 

Cadle  v.'  Mcintosh 714 

Cadwell  v.   Farrell 135 

Cameron  v.  Cockran 701 

Camphell  v.  Race 179,  187 

Campbell  v.  Seaman 374 

Campbell  v.  Sherman 236 

Campbell  v.  Spottiswoode 761 

Carew  y.  Rutherford 

1343,  1373,  1374,  1435 

Carey  v.  Sheets 54 

Carlisle   Sc   Cumberland    Banking 

Co.  v.  Bragg 926 

Carney  v.  Boston  Elevated  R.  Co.  961 

Carr  v.  Clarke 543 

Carr  (Sir)  v.  Hood 728 

Carson  v.  Wilson 129 

Carter  v.  Andrews 648 

Cary  v.  Holt 107 

Castle  V.  Duri/ea 158 

Cattle  v.  Stockton  Waterworks 

Co 1245 

Cavalier  v.  Pope 923 

Central  Railroad  d-  Banking  Co.  v. 

Lamplcy    442 

Cernahau  v.  Chrisler 529 

Chamberlain  v.  Boyd 581 

Chambers  v.   Baldwin 1328 

Chambers  v.  Leiser 714 

Chandelor  v.  Lopus 1213 

Chapleyn  of  Ch-eye's  Inne 191 

Chapman  v.  Nash 1187 

Chapman  v.  Rotiiwell 1029 

Charing  Cross  Electricity  Supply 

Co.  v.  Hydraulic  Power  Co 783 

Chatfield  v.  Wilson 1331 

Chatterton  v.  Secretary  of  State. .  673 

Cheatham  v.  Shearon 358 

Child  V.  Affleck 693 

Chip  man  v.  Palmer 408 

Christianson  v.  Chicago,  St.  P.,  M. 

&  O.  R.  Co 829 

Christie  v.  Griggs 1092 

CnuRCiiiLL  V.  White 493 

Cincinnati    Daily   Tribune   Co.    v. 

Bruck    1194 

Cincinnati,   etc.,   R.  Co.  v.  South 

Fork   Coal   Co 952 

Citi/    of    Crawfordsville    v.    Van 

Cleave  808 


Pago 

Clark  V.  Brown 651 

Clark  v.  Me wsam 757 

Clark  V.  Molyneux 701 

Clark  V.  Wallace 861 

Clay  V.  Wood 1151 

Cleghorn  v.  Thompson 70 

Cleveland  v.   Citizens'   Gas  Light 

Co 375 

Cleveland  Leader  Printing  Co.  v. 

Nethcrsole    736 

Clissold  V.  Cratchley 43,  45 

Clover,      Clayton      &      Co.      v. 

Hughes    834 

Cluttcrbuck  v.  Chaffers 620 

Cockcroft  v.   Smith 192 

Codman  v.  Evans 335 

Coffin  V.  Coffin 673 

Cohen  v.  Neiv  York  Times  Co....  585 

Colby  V.  Jackson 276 

Cole  v.  Drew 287 

Cole  V.  Fisher 158 

Cole  V.  Turner 148 

Coleman  v.  MacLennan 747 

Collins  V.  Carnegie 727 

Collins  v.  Renison 2iS 

CoUis  V.  Malin 566 

Commercial  Bank  v.  Ten  Eyck...  969 

Commonwealth  v.  Hunt 1431 

Commonwealth  v.  IS^ickcrson 84 

Commonwealth  v.  Rubin 280 

Corny n  v.   Kyneto 114 

Conner  v.  Standard  Pub.  Co 739 

Conrad  v.  Roberts 749 

Constable  v.  National  SS.  Co..  .  899 

Cook  v.  Gust 713 

Cook  V.  Hastings 245 

Cook  V.  Johnston 1115 

Cook  V.  Mayor  and  Corporation  of 

Bath    333 

Cook  V.  Ward 720 

Cook  V.  Ward 585 

Cooke  V.  Midland  Great  Western 

Ry.  of  Ireland 1002 

Coombs  V.  Lenox  Realty  Co 403 

Corby  v.  Hill 1014 

Corby  v.  Hill 1060 

Corey  v,  Adams 883 

Corey  v.  Havener 883 

Cornelius  v.  Van  Slyck 559 

Costigau  V.  Pennyslvania  R.  Co. . .  113 

Coulson  V.  White 401 

Count  Joannes  v.  Bennett 702 

Count  Joannes  v.  Burt   564 

Coupledike  v.  Coupledike 305 

Courtney  v.   Eneib 74 

Cowen  V.  Kirby 1038 

Cowley    v.    Pulsiier 685,691 

Cox  V.   Burbidge 35 

Cox  V.  Burbidge 781 

Cox  V.  BuRinnoE    918 

Crawford  v.  Middlcton 634 


XX 


TABLE   OF   CASES 


Page  , 

CreCELIUS    V,    BlERMAN 671 

CromicelVs  (Lord)  Case 644 

Crossctt  V.  Campbell 81 

Crossier  v.   Ogleby 480 

Crump  V.  Lambert 401 

Cuddiiigton  v.   Wilkins 655 

Curry   v.   Walter 678 

CTumberlaud  Glass  Mfg.  Co.  v.  De 

Witt     1306 

Cutler  V.  Dixon  659 

Daingerfield  v.  Thompson 71 

D\iltomonte  v.  New  York  Herald 

Co 594 

Dalton's  Adm'b  v.  Louisville  & 

N.  R.  Co 992 

Dana  v.    yalentine   390 

Dand  v.  Sexton 27 

Daniel  v.  Metropolitan  R.   Co.  809 
Daniels  v.  New  York,  N.  H.  &  U. 

R.  Co 837 

Daugherty  v.  Reveal 490 

Dauncey  v.  Holloway   575 

Davis  V.  Collins  159 

Davis  V.  Garrett   886 

Davis  V.  Sawyer 381 

Davis  V.  Smud 705 

Davis'     Adm'r     v.     Ohio     Valley 

Banking  &  Trust  Co 990 

Da\n.es  v.  Mann 1152 

Dalies  v.  Solomon 579 

Daickins  v.  Lord  Rokchy 666 

Dawkixs  v.  Lord  Rokeby OftS 

Daickins  v.  Rokehy  (Lord) 666 

Dawkixs  v.  Rokeby  (Lord) 668 

Day  V.  Buller 566 

Day  V.   Edwards 906 

Dean  v.   Hogg 211 

Dean   v.   Peel 542 

Deane  v.  Clayton 983 

Delacroix   v.    Thevenot 624 

Delany  v.  Jones 715 

Delaware  &  Hudson  Canal  Co.  v. 

Torrey   406 

Delz  v.  Winfree  1343 

Dench  v.  Walker  478 

Denny  v.  Chicago,  etc.,  R.  Co....  935 
Denny  v.  New  York  Cent.  R.  Co.  896 

Depue  V.  Flatau , 1087 

Depue  V.  Flat  a  a 932 

Derecourt   v.   Corbishley 251 

Derrick  v.  Kelly 42 

Derry  v.   Peek 1214 

Derry  v.  Peek 614 

Dei-ry  v.  Peek  (Sir) 1219 

Derry  v.  Sir  Henry  William  I'eek..l219 

De  S.  v.  De  S 28 

Devereux  v.   Barclay 526 

Devlin   v.    Smith 1067 

Dexter  v.  Cole  172 


Page 
De  Young  v.  Frank  A.  Andreivs 

Co 473 

Dickerson  V.  Watson 157 

Dickinson  v.  Boyle 885 

Digby  v.  Financial  News 735 

Dimauro  v.  Linwood  St.  R.  Ca . .  938 

Dixon  v.  Bell 1073 

Dixon  v.  New  York,  N.  H.  &  H.  R, 

Co 1127 

Dodivcll  V.  Buford 60 

Doherty  v.   Brown 6.55 

Dohr  V.  Wisconsin  Cent.  R.  Co...  1108 

Dole  V.  Lyon 720 

Dolph  V.  Ferris 34 

Domhoff  V.  Paul  Stier,  Inc 227 

Donkey  Case,  The 1152 

Donuell  v.   Canadian  Pae.   R.  Co.  509 

DoNOGHUE  V.   Hayes 737 

Dooling  V.  Budget  Pub.  Co 599 

Douglass  v.  Daisley   711 

Dowd  V.  New  York,  etc.,  Rii 146 

Dowd  V.  New  York,  O.  &   W.   R. 

Co 1135 

DowNES   V.   Bennett 1393 

Downing  v.  Elliott 393 

Doyley  v.  Roberts 567 

Drake  v.  Shorter  519 

Drude  v.  Curti.s 465 

Dubois   V.   Beaver 221 

Dudley  v.  Northampton  St.  R.  Co.  985 
Duke    of    Brunswick    v.    llarmer 

622,  722 

Duncombe  v.  Daniell  746 

Dunlap  v.  Hunting 474 

Dunshee  v.  Standard  Oil  Co 1344 

Dust  Sprayer  Mfg.  Co.  v.  Western 

Fruit  Grower 600 

DuviviEK  V.  French 608 

Dug  V.  Alabama  M' est  cm  R.  Co.  325 
Dyk  V.  De  Young 61 

Earl  V.  Lubbock 1072 

Earl  v.  Lubbock 1076 

Larl  of  Ripon  v.  Hobart 401 

Eastern  d  South  African  Tel.  Co. 

V.    Cape  Town   Tramways    Cos.  385 
Eastern   &  South  African  Tel. 
Co.    v.    Cape  Town    Tramways 

Cos 797 

Eaton  v.  Allpn  559 

I'^CKERT  V.   ijONG  ISLAND  R.  R. .  .  .    1128 

Economopoulos     v.     Polhtrd     Co. 

020,  626 

JJdmondson  v.  Birch  d  Co 630 

Edmonson  v.  Stevenson 694 

Edwardes  v.   Wootton   638 

Edwards  v.  Halindcr 336 

Edwards  v.   Wool  on   621 

E.  Ilulton  I'lc  Co.  v.  Jones 611 

Eldred  v.  Oconto  Co 477 

Eliza  Lines,  The  30 


TABLE   OF   CASES 


XXI 


Page 

Ellcr  V.  Kochler 427 

Ellis  V.  Loft  us  Iron  Co 109 

Ellis    v.    Metropolitan    St.    R. 

Co 1181 

Emhrey  v.  Given  964 

Emmens  v.  Pottle 032,  633 

I'^iMENS  V.  Pottle 631 

Engelhaet  v.   Ferrant 868 

Englaud  v.  Cowley   506 

Englisli  V.  Amidon 1137 

Ertz  V.  Produce  Exchange  Co.  of 

Minneapolis    1315 

Eten   V.    Luyster 815 

E.  T.  &  H.  K.  Ide  v.  Boston  &  M. 

R.  Co 850 

Evans  v.  Harlow   600,  1211 

Evans  v.   Lisle 3S6 

Evans  v.  Waite 143 

Evansville  &   S.   I.   Traction   Co. 

V.  Spiegel  1172 

Evansville  £  T.  H.  R.  Co.  v.  Welch  828 

Everett   v.    Paschall 376 

Exchange   Tel.    Co.   v.    Gregory 

&  Co 1338,  1339 

Fahn  v.  Reichart 765 

Fahr  v.  Hayes   750 

Falloon  v.  Schilling 1297 

Farmer  v.    Darling   (Sir) 1185 

Farmer  v.    Sir  Robei-t  Darling.  .1185 
Farmers      of      Ilainpstead-Water 

Co.,   Case    334 

Farr  v.   Bank 531 

Farrant  v.  Barnes   1028 

Farwell  r.  Boston,  etc.,  R.  Corp..  .1131 

Fay  V.  Hartford  St.  R.  Co 970 

I'ay  V.  Prentice  386 

Fay  V.  Prentice  969 

Fen  v.  Dixe 599 

Ferdon  v.  Dickens 629 

I'ergns  Lane  v.  Atlantic  Works .  . .   862 
I'ilbuni     V.     People's     Palace     & 

Aquarlnm  Co 774 

FiLBUEN   V.    People's   Palace   & 

Aquariuji  Co.    7&4 

P'meux  V.   Hovenden 318 

Fisher  v.  Bristow   1184 

Fisher  v.  Prince 443 

Fitchhurg  R.  Co.  v.  Nichols 981 

Flanagan  v.  McLane 706 

Fletcher  v.  Fletcher 276 

Fletcher  v.  Rylands 22,  147 

Fletcher  v.  Rylands 786,  788,  797 

Flower  v.  Adam   814 

Fogg  v.  Valiant  801 

Fonrille  v.  McNeasc 620 

Ford  V.   Lamb 581 

Forde  v.  Skinner 73 

Fores  v.  Wilson  121 

Forsdick  v.  Collins 513 

Ft.  Worth  d  R.  a.  R.  Co.  v.  Glenn  354 


PagB 

Foss  V.  Hildreth   657 

Foss  V.  Hildreth   740 

Foster  v.  Browning 644 

Fotheringham  v.   Adams   Express 

Co 90 

Fottler  V.  Moseley 893 

Foulger  v.  Newcomb   568 

Fowler  v.   Sanders    320 

I'razieb  v.  Brown    1331 

Frazier  v.  Pennypaclc  Trap  Rock 

Co 336 

I'rost  V.  Eastern  R.  R 999 

Funston  v.  Pearson   585 

Gagnon   v.    French   Dick    Springs 

Hotel  Co 1298 

Galbraith  v.  Illinois  Steel  Co....  1047 

Gamhrill  v.  Schooley   629 

Gargrave  v.  Smith 282 

Gamier  v.   Squires  87 

Garret  v.   Taylor   1266 

Gates  V.  Blincoe   396 

Gates  V.  Miles   160 

Gautret  v.  Egerton 1016 

Gee  V.  Metropolitan  R,  Co 1097 

Geneva  Wagon  Co.  v.  Smith 525 

Genner  v.   Sparkes 100 

George  V.  Harvy  560 

George  Jojxas  Glass  Co.  v.  Glass 

Bottle  Blowers'  Ass'n 1427 

George    N.    Pierce    Co.    v.    Wells 

Fargo  &  Co 945 

George  v.  Skwington 1077 

Gerard  (Sir)  v.  Dickenson 1204 

Gibbons  v.  Pepper 30 

Giblan  v.  National  Amalgamated 
Labourers'  Union  of  Great  lirit- 

ain  and  Ireland 1398 

Gibney  v.  State  857 

Gibson   v.    Chaters    1190 

Gilford  V.  Wiggins 236 

Gilbert  v.  Slwwerman 427 

Gilbert  v.  Stone 29,  178 

Giles  V.  Walker 916 

Giles  V.  Walker   356 

Gilman  v.  Emery   214 

Gilman  v.  Noyes 812 

Gilmore  v.  Fuller 145 

Glamorgan     Coal     Co.     v.     South 

Wales   Miners'   Federation 1406 

Golden  Reward  Mining  Co.  v.  Bux- 
ton Min.  Co 114 

GoMPERS     V.     Buck's     Stove     & 

Range  Co 1440 

Gootlell  V.  Tower 102 

Goodman  v.  Taylor 67 

Gordon  v.  Harper 464 

Gordon  v.   Spencer 722 

Graham  v.  Peat 100 

Grainger  v.    Hill 1201 

1  Graves  v.  Blanchet 558 


xxn 


TABLE   OF   CASES 


Page 

Graves  v.  Dudley 31;f 

Graves  v.  Sevcrcns Ho 

Greeley  v.  Spratt 228 

Greenland  v.  Chaplin 814 

Greenirai/  r.  Fisher ol"*" 

Green-Wheeler  Shoe  Co.  v.  Chica- 
go, R.  I.  &  P.  R.  Co S94 

Greenwood  v.  Prick (531 

Greenicood  v.  Pride 034 

Gregory  v.  Hill 217 

Gregory  v.  Piper ^1 

Grenada  Lumber  Co.  v.  Mississip- 
pi     1315 

Griff  en  v.  Manice 957 

Grill  V.  Iron  Screw  Collier  Co 934 

Grimshaw  v.  Lake  Shore  R.  Co..  .  -1025 

Gryiues  v.  Shack 447 

GUETIILER    V.    Altman 1353 

GuiLLE  V.  Swan 857 

Gurley  v.  Armstead 516 

Hadwell  v.  Righton 918 

Hague  V.  Wheeler 1301 

Haines  v.  Welling 720 

Hall  V.  Fearnley 130,  IGO 

Hall  V.  Galloway 343,  347 

Hamilton  v.  Long 552,  553,  554 

Handcock  v.  Baker 257 

Hankinson  v.  Bilby 646 

Hannabalson  v.  Sessions 216 

Hannabalson  v.  Sessions 112 

Hannen  v.  Edes 272 

Harding  v.  Wilkin 443 

Hardy  v.  Murphy 247 

H organ  v.  Purdy 727 

Harker  v.   Birhcck 107 

Harman  v.  Delany 607 

Harndon  v.   Stultz 917 

Harness  v.   Steele 99 

Harrington  v.  Hall 197 

Harris  v.  Butler 584 

Harris  v.  James 367 

Harris  v.  I'erry  &  Co 1022 

Harrison  v.  Bush 694 

Harrison  v.  Duke  of  Rutland 286 

Harrison  v.  Thornhorotigh 645 

Harrop  v.  Hirst 388 

Hart  V.  Aldridge 535 

Hart  v.  Alduiuge 540 

Hart  V.  Basset 321 

Hartford  v.  Jones. 495 

Hartley  v.  Cummings 537 

Hartley  v.  Moxham 117 

Harvey  v.  Brydgcs 22:> 

Harvey   v.   Epes 493 

Haskins  v.   Royster 1329 

Hatch  V.  Lane 748 

Hatchard  v.  Mege i205 

Haward    v.    Bankes 336 

Hay  V.   Cohoes  Co 36 

Hayden  v.   Hasbrouck 714 

Hayes  v.  Brooklyn  Heights  R.  Co.  339 


Page 
Hayes  v.  Michigan  Cent.  R.  Co..  . .   810 

Haynes  v.  Clinton 735 

Ilearne  v.  Stojcell 634 

Heaven  v.  I'ender 1055 

Heaven  v.  Pender 1074 

Hebditch  v.  Macllwaine 696 

Hebrew  v.  Pulis 89 

Heim    v.    New    York    Slock    Ex- 
change     1315 

HeIZEU  v.  KiNGSLAND  &  DOUGLASS 

Mfg.  Co 1070 

Heller  v.  Hoivard 725 

Hehvig  v.  Mitchell 562 

Hennessy  v.  Connolly 242 

Henn's   Case 178 

Henry  v.  Atchison,  T.  d  S.  F.  R. 

Co 900 

Henry  v.  Mohcrly 753,  763 

Henry  v.  Southern  Pac.  R.  Co.  .  .   860 

Hemcood  v.   Harrison 701 

Hepburn  v.   Sewell 454 

Heriot  v.  Stnart 6.39 

Herrick  v.  Wixom 989 

Herring  v.  Boyle 82 

Hewett  V.Chicago,  B.  &  Q.  R.  Co.  899 

Hickey  v.  McCabe 39 

Hickman  v.  Maiscy 287 

Higginson  v.  York 170 

Hill  V.  Glenwood 936 

Hiort  V.  Bott 484 

HiORT  V.  Railway  Co 532 

HoAG  V.  Railroad  Co 826 

Hobart  V.  Hagget 171 

Ilobbs  V.  London  &  Southwestern 

R.  Co 813 

Hobson   V.   Thellusou 965 

Hodgkins  v.  Price 229 

Hodgson  v.  Scarlett 662 

Hoffman  v.  Eppers 277 

Hogle  V.  Franklin  Mfa.  Co 351 

Hogle  V.  H.  H.  Franklin  Mfg.  Co.  367 

Holbrook  v.  Morrison 1295 

Hole  v.  Barlow 416,  417,  418 

Holmes  v.  Bagge 210 

Holmes  v.  Corthell 347 

Holmes  v.   Drew 1042 

Holmes  V.   Drew 1043 

Holmes  v.  Mather 64 

Holroyd  v.  Doneaster 240 

Homer  v.  Thwing 521 

Hopkins  V.  Bccdlc 649 

Hopkins  v.  Oxley  Stave  Co 1439 

Hopkins    Chemical    Co.    v.    Read 

Drug  d  Chemical  Co 600 

Hopper  V.  Reeve 60 

JJorlon  V.    ^\'ylic 144 

Ilosmer  v.  Republic  Iron  &  Steel 

Co 351 

Hubbard  v.  I'reston 358 

Hudson  V.  Wabash  Western  R.  Co.  979 

Hug(;ktt  v.  Montgomery 910 

Hughes  v.  Heiser 321 


TABLE   OF   CASES 


XXlll 


Page 

Hughes  V.  McDonough 1234 

Huglies  V.  Muug 300 

Hughs  V.  Farrer 500 

Hiilton  &  Co.  V.  Jones Oil 

BiDickcl  V.  Voneiff 072 

Hunicke  v.  Meramec  Quarry  Co.  1002 

Huntington  v.  Sbultz 100 

Hupfer  V.  National  Distilling  Co..  .1040 

Hurley  v.  Eddiugfield 931 

Huset    V.    J.    I.    Case    Threshing 

Mach.    Co 1003 

Huskie  v.  Griffin 1251 

Hiiskie   V.    Griffin 1347 

HUTCTtlNS     V.     HUTCHINS ....12(J8 

Hutchins  v.   Page 740 

Hutch  ins  v.   Page 058 

Huth  V.  Hiifh 024 

Hyde  v.  Scyssor 121 

Hyman  v.  Nye  &  Sons 1093 

Ihhotson  V.  Peat 191 

Ide  V.  Boston  &  M.  R.  Co 850 

llott  V.  Wilkes 140 

Ineledon  v.  Burgess 20 

Indermaur  v.  Dames 1020 

Indianapolis  Traction  Co.  v.  Pres- 

sell     i 948 

Innes    v.    Wylie 02 

Insurance  Co.  v.  Tweed S30 

Ireland  v.   Elliot 193 

Irish  V.  Cloyes 470 

Iron  Molders  Union  v.  Allis-Chal- 

mers  Co 1423 

Isaack  v.  Clark 280,  470 

Isham  V.  Dow's  Estate 853 

Jackson  v.  Smithson 793,  794 

Jackson  v.  Stanfield 1317 

Jackson    v.    Stanfielu 1341 

Jackson  v.  Wisconsin  Tel.  Co 84(3 

James  v.  Campbell 158 

James  v.  Tindall 220 

Janson  v.  Brown 198 

Jarnigan  v.  Fleming 047,  720 

Jarvis  v.  Hatheway 714 

Jefferson viLLE,    etc.,   R.   Co.    v. 

Riley    833 

Jenkens    v.    Fowler ,.1247 

Jenoure  v.  Delmege 750 

Jersey  City  Printing  Co.  v.  Cas- 

siDY  12.55, 1389 

J.   F.   Parkinson   Co.   v.  Trades 

Council  1253 

Joannes  (Count)  v.  Bennett 702 

Joannes  (Count)  v.  Burt...( 504 

Johnson  v.  Broivning 050 

Johnson  v.  Patterson 218 

Johnson  v.  Sir  John  Aylmer 007 

Johnstone  v.  Sutton 1194 

Jonas   Glass   Co.   v.   Glass  Bottle 

Blowers'  Ass'n 1427 


Page 

Jones  v.  Boyce 845 

Jones   V.    Davers 025 

Jones    V.    Egerton 1010 

Jones  V.  B.  Hulton  &  Co Gil 

Jones  v.  Stanly 1329 

Jones  V.  Tresilian 101,  197 

Jones  V.  Winsor 401 

Judson  V.  Giant  Powder  Co 1122 

Judy  V.  Citizen 227 

Ka  in  v.  Larkin 149 

Karges  Furniture  Co.  v.  Amalga- 
mated W.  W.  U.  No.  131 1426 

Kearney  v.  London,  etc.,  R.  Co.. . .  952 

Keeble  v.  Hickeringill 1227 

Keeble  v.  Hickeringill.  .  .1260, 1271 

Keefe  v.  State 50 

Keeley  v.  Great  Northern  R.  Co. . .  673 

Keep  V.  Quallman 194 

Keleher  v.  Putnam 270 

Kelly  V.  Partington 595 

Kennedy  v.  Press  Put).  Co GOO,  002 

Kei'riford's    Case 148 

Kerwood  v.  Ayi-es 499 

Kestner  v.  Homeopathic  M.  d  S. 

Hospital    380 

Ketch  Frances  v.  Steamship  High- 
land   Loch 1157 

Kettle  V.  Bromsall 298 

Keyworth   v.   Hill 479 

Kiene  v.  Ruff 021 

Kimball  v.  I'ost  Pub.  Co 684 

KiMBER  V.  Press  Ass'n 685 

Kinaston  v.  Moor 448 

Kine  v.  Jolly 395 

King,  The.  v.  Roberts 050 

King  V.  Franklin 270 

King  v.  Lake 589 

King  V.  Morris  &  Essex  R.  R 3.32 

King  v.  Patterson 711 

King  v.  ^yaring 722 

Kirby  v.  Foster 205 

Kirk   V.    Gregory 185 

Kirk  V.  West  Virginia  Colliery  Co.  106 

Kirland  v.  State 60 

Klechauer  v.  Western  Fuse  &  Ex- 
plosives Co 358 

Klumph  V.  Dunn 563,  564 

Knapp  V.  Guyer 518 

Knickerbocker  Ioe  Co.   v.   Gar- 
diner &  Co 1.307 

Knight   v.    Blackford 500 

Krebs  v.  Oliver 502 

Labelle  v.  Central  Vermont  R.  Co.  1179 

I^acon  V.  Barnard 438 

Laflin  &  Rand  Powder  Co.  v.  Tear- 

ney  345 

Lake  v.  Hatton 584 

Lake  Erie  d  W.  R.  Co.  v.  Maekcy  981 
Lalaurie  v.  Southern  Bank 909 


XXIV 


TABLE   OF   CASES 


Page 

Lamberson  v.  Long 671 

Lamlituu   v.    Cox 363 

Lambtou  v.  Mellisb 363 

Lambton  v.  Mrllis-h 408 

Lane  v.  Atlantic  Works 862 

Lane  V.  Cox 922 

Lane  v.  Crombie 969 

Lane  v.  Dixon 107 

Lunger  v.   Goode 917 

Lansing  v.   SmUh 323 

Larkin  v.   Long 1418 

Larmore   v.   Crown    Point   Iron 

Co 1033 

Larson  v.  Cox 656 

Larson  v.   Dan  son 451 

La    Societe    Anonyme    de   Remor- 

quage  a  Helice  v.  Bennetts 1244 

Lawson  v.  State 267 

L.  D.  Willcutt  &  Sons  Co.  v.  Brick- 
layers' Benevolent  «fc  Protective 

Union  No.  3 1386 

Leahan  v.  Cochran 361 

T^eame  v.  Bray 155,  907 

Leame  v.  Bray 63,  910 

Leathern  v.  Craig 1280 

Lee  V.  Troy  Gaslight  Co 979 

Le  Fanu  v.  Malcomson 612,  613 

Leighs  (Lord)  Case 266 

Lemmon  v.   Wchl) 339 

Leonard  v.  Wilkins 197 

Letts  v.  Kessler 1229 

Lcvridge  v.  Hoskins 336 

Lewis  V.  Hoover 48 

Lewis  V.  Levy 679 

Lewis  v.  Terry 1070 

Leyman  v.  Latimer 656 

TAefert  v.  Galveston  L.  d  E.  R.  Co.  517 

Lillie  (Sir)   v.  Price 658 

Lines,   The  Eliza 30 

Little  V.  Chicago,  etc.,  R.  Co 849 

Livermore  v.  Batchelder 199 

Lock  v.   Ashton 103 

Ijoeschman  v.   Maohin 524 

Lombard  v.  Lennox 596 

Long  v.  Railroad  Co SS9 

longmeid  v.  holliuay 1075 

Longshore  Printing  Co.  v.  PIow- 

ELL 1393 

Longtin  v.  Per  sell 43 

Ix)ok  V.  Dean 275 

Lopard  v.  Sjinons 501 

Lord  V.  De  Witt 385 

Lord  CromicelVs  Case 644 

Lord  Derby,  The 63 

Lord  Leighs  Case 266 

Lord  Northaynpton's  Case 720 

Louisville,  etc.,  R.  Co.  v.  Jones  833 
Louisville  Home  Tel.  Co.  v.  Gas- 
per    875 

Low  V.  Grand  Trunk  Ry 1034 

Luka  V.  Lowrie 278 


Page 

Lumby  v.  Alldat 572 

Lnniley    v.    Gye 1237 

Lumley  v.  Gye 534 

Lumley  v.  Gye 1266,  1287, 1329 

Lundin  v.  Post  Pub.  Co 690 

Lutlopp  V.  Heckmann 132,  192 

Lygo  v.  Newbold 1025 

Lynch  v.  Knight 573 

Lynch  v.  Nurdiu 993 

Lynch  v.  Nurdin S6S,  1003 

Lynch  v.  Union   Inst,   for   Sav- 
ings    404 

McAndrews  v.  Coli.erd 911 

Macaiilcy  Bros.  v.  Tierney 1314 

McAvoy  V.  Medina   457 

McBride  v.  Ellis 585 

ilcCahill  V.  New  York  Transp.  Co.  832 

McCarthy  v.  Heiselman 467 

McChesney  v.  Wilson 2(i0,  220 

McClnskey  v.  Wile 341 

McDoiiald  V.  Kugent 565 

McDougall  V.  Claridge 712 

McDowall  V.  Great  Western  R.  Co.  866 

McGonigle  v.  Atchison 441 

Mack  V.  Sharp 119S 

Mackintosh  v.  Dun 707 

Mackintosh  v.  Trotter 445 

INlcLaughlin  v.  Cowley 665 

McLoughlin  v.  American  Circular 

Loom  Co 640 

McNulty  V.  Ludicig  tC-  Co 341 

McPhex-son  v.  Daniels 718 

McVoy  V.  Oakes 987 

Magar  v.    Hammond 1124 

:\Iagee  v.  Scott 469 

Mahan  v.  Brown 1331 

Maleverer  v.  Spinke Ill 

Malone  v.  Belcher 1202 

Malone  v.  Laskey 349 

Maloy  V.  St.  Paul 1121 

Miiuvell  V.  Thomson 545 

Marble  v.  Worcester 813 

March  v.  Bricklayers'  and  Plaster- 
ers' Union  No.  1 1433 

Marentille  v.   Oliver 114 

Marentille  v.   Oliver 60 

Marine  Bank  v.  Fiskc 504 

Markley  v.   Whitman 137 

Marlow  v.    Wcekcs 115 

Marshal  v.  Steward 560 

Marshalsea's  Case 231 

Marten  v.  \A'liite  1321 

Martell  v.  White 1366,  1388, 

1396,  1440 

Marys'  Case 533 

Mason  v.   Keeling 770 

Massce  V.  Williams  622 

Matthow  V.  Crass 575 

Ma'ithew  V.   Ollerton 142 

Maxham  v.  Day 30M 


TABLE   OF   CASES 


XXV 


Page 

May  V.  Burdett 772 

May  V.  Burdett 781 

May  v.   Burdett 793 

May  V.  Nahant 801 

Mayor   v.   Pickles 1247 

Mayor,    Aldermen    &    Citizens    of 

IManchester  v.  Williams 639 

Mazetti  v.  Armour  »fc  Co .1077 

Mead    v.    Thompson 483 

Mellin  v.  White 1207 

Mennie  v.  Blake 306 

Mercer  v.  Sparks 635 

Merchant  Prince,  The 167 

Meredith   v.   Reed 935 

Merle    v.     Sociological     Research 

Film   Corporation    601 

Middleton  v.  Bridelyngton 146 

Mill) lime  t\   Byrne 539 

Miller  v.  Baker 116 

Miller  v.  David 571 

Mill-er  v.  Hyde 452 

Miller  v.   Race 450 

Mills   V.    Armstrong 1149 

Mills  V.  Graham 300 

Milman  v.   Dohvell 127 

Milwaukee  R.  Co.  v.  Kellogg.  . .  875 
Milwaukee  &  St.  P.  R.  Co.  v.  Kel- 
logg    822 

Milwaukee   &   St.   P.   R.    Co.   v. 

Kellogg   837 

Missouri,  K.  &  T.  R.  Co.  of  Texas 

V.  Wood    1085 

Mitchell  V.  Mitchell 51 

:\iitchil  V.  Alestree 905 

Mogul  S.  S.  Co.  V.  McGregor 1261 

Mogul  S.  S.  Co.  v.  McGregor.  . . 
12o9,  1260,  1284,  1287,  1312, 
1313,     1323,     1325,     1340,    1365, 

1397,   1403,  1401,   1411 

:\Iohr  V.  Williajns 78,  138 

Monson  v.  Lewis 204 

Montgomery  Ward  &  Go.  v.  South 
Dakota     Retail     Merchants'     & 

Uardiiarc  Dealers'  Ass'n 1315 

Moo7-e  V.  Bank 705 

Moore  v.  Bloomington 151 

Moore  v.  Dame  Browne 359 

Moore  v.  Duke 283,  286,  293 

Moore  v.  Francis 002 

Moore  V.  Meagher 577 

Moreton  v.  Hardern 909 

Morgan  v.  Bliss 1215 

Morris  v.  Laxgdale 569 

Morris  v.  Miller 143 

Morrison  v.  Eitchie  d  Co 636 

Moses  V.  Dubois 84,  1.34 

Mouse's  Case 175 

Muetze  v.   Tuteur 743 

Mulfjrave  v.  Ogden 442 

Mullen  V.  St  John 953 

Mullen  V.  St.  John 957 


Paso 

Multerer  v,  Dallendorfer 487 

Munsey  v.  Webb S42 

Munster  v.  Lamb 663 

Munster  v.  Lamb 661,  666 

Murphy  v.  Great  Northern  Ry.  Co.  865 

Murray  v.  Iltzgerald 545 

Murray  v.  South  Carolina  R.  Co. ..1131 

Murtha    V.    Lovewell 433 

Myers  v.  Hodges 666 

.Myers  v.  Malcolm 356 

'National  Copper  Co.  v.  Minnesota 

Min.  Co 339 

National  Phonograph  Co.  v.   Edi- 
son-Bell     Consol.      Phonograph 

Co 13.35 

National    Protective    Ass'n    v. 

Gumming    1429, 1432 

National      Protective      Ass'n      of 
Steam   Fitters   and   Helpers   v. 

Gumming    1377 

Nelson  v.  Crawford 52 

New  England  Cement  Gun  Co.  v. 

McGivern   1439 

Newkirk  v.  Sabler 182 

Newsom  v.  Anderson 159 

Neivton  v.  Grubbs 617 

Neivton  v.  Harland 223 

New  World,  The,  v.  King 935 

Niagara  Oil  Co.  v.  Ogle 346 

Niblet  V.  Smith 305 

Nichol  V.   Martyu 541 

Nichols  V.  Marsland 785 

Nichols  v.  Marsland 795 

Nichols  &  Shepard  Co.  v.  Miimeso- 

ta  Threshing  Mfg.  Co 462,  498 

Nicol  V.  Oregon-Washington  R.  & 

Nav.  Co 1164 

Niven  v.  Miinn 649 

Norman  v.  Bell 496 

Northampton's  (Lord)  Case 720 

Northern  Indiana  R.  Co.  v.  Mich- 
igan Cent.  R.  Co 349 

Northrop  v.  Tibbies 608 

Norton  v.  Chandler  d  Co 865 

Norton  v.  Union  R.  Co 81 

Norvell    v.    Thompson 28 

Noyes  v.  Colby 768 

Nyberg  v.  Handelaar 303 

Oakley  v.  Farrington 567 

O'Brien  v.  Loomis 912 

O'Connor  V.  Connecticut,  etc.,  Co...  970 

Oddv  V.  Lord  George  Paulet 743 

Oddy  V.  Paulet  (Lord) 743 

O'Donnell  v.  Nee 725 

Ogden  v.  Turner 558 

O'Hara  v.  Central  R.  Co.  of  Neio 

Jersey   976 

Ohio  Oil  Co.  V.  Indiana 1.300 

Olivant  v.  Berino ,. . . .  443 


XXVI 


TABLE   OF  CASES 


Pass 

Olive  r.  Van  Patten 1342 

Onnsbij  v.  Douglass 711 

Orton  V.  Butler 448 

Osborne  v.  Ivondon  &  N.  W.  R.  Co. .  1110 

Oshorne  v.  Van  Dyke 1G4 

O'Shaugnessy  v.  Baxter 231 

Ott  V.  Murphy 735 

Owen  V.  Ogilvie  Pub.  Co 627 

Pacific  Paclci}ig  Co.  v.  Bradstreet 

Co 710 

Page  v.   D night 207,  229 

Page   V.    Hollingsworth 33 

I'almer  v.  Gordon 988 

Palmer  v.  Ulniiw  Cent.  R.  Co 247 

Palmer  v.  Thorpe 5-"8 

Parle  V.  O'Brien 970 

Parkinson  v.  Council 1347,1432 

Parkinson  Co.  v.  Trades  Coun- 
cil     1253 

Parsons  v.  Age  Herald  Pub.  Co.. .  735 

Pasley  v.  Freeman 7,  1215 

Patrick  v.  Colerick 133 

Patrick  v.  Greenway 109 

Pattou  V.  Texas  &  P.  R.  Co 958 

Paul  V.  Slason 115 

Paxton  V.  Boyer 172 

Payne  v.  Smith 1154 

Peak  V.  Tatibman 714 

Pearse  v.  Pearse 711 

Pearson   v.   Lcmaitrc 712 

Peck  V.  Tribune  Co 591 

feck  V.  Trihune  Co 610 

Peek  V.  Derry 1219 

Pennsylvania  R.  Co.  v.  Kerr...   823 

People  v.   Croswell 605 

People  V.  McTvean 238 

1*E0PLE  V.  Smith 1386 

Peri-y  v.  Porter 738 

Peters  v.  Jones 552 

Peterson  v.  Haffncr 159 

Petrel,    The     1133 

Pfeift'er  v.   Grossman 110 

Phillips  V.  Janscn 620 

Ph  mips  V.  Jfm.es 299 

Pickering  v.  Kudd HI 

Pickett  V.  Walsh 1362 

Pickett  v.  Walsh 1387,  139.5, 

1438,  1440 

Piehl  V.  Albany  Rv 955 

Piehl  V.  Albany  It.  Co 957 

Piei'ce  V.   Stablemen's  Union,  Tx)- 

cal  No.  87G0 1427 

Pierce  Co.  v.  Wells  Fargo  <fe  Co..  .   945 

Pierson  v.  Glean 430 

Pile  V.  Pedrick 413 

Piper  V.  I'earson 233 

Piscata(/7ia  Nav.  Co.  v.  New  York, 

etc.,  R.   Co 322 

Pittsburg,  Ft.  W.  &  C.  R.  Co.  v. 

Bingham  919 


Page 

Plant  v.  Woods 1368 

Plant  V.   ^Yoods 1300 

Plant  v.  Woods.  .1249,  1256,  1365, 

1366,  1387 

Plonty  V.  Murphy 53 

Ploof  V.  Putnam 187 

I'lumer  v.  Harper 363 

Plummer   v.   Dill 10.32 

Plmnmer  v.   Dill 1043 

Poggi  v.  Scott 527 

Polkinliorn   v.   Wright 209 

Pollard  V.  Lyon 579 

Pollen  V.  Brewer 223 

Polsue  &  Alfieri  v.  Rushmer 424 

Pouting  V.  Noakes 982 

Post  Pub.  Co.  V.  Hallam 731 

Post  Pub.  Co.  V.  Peck 729 

Pouchan  v.  Godeau 724 

Powell  Duffryn  Steam-Coal  Co. 

V.  Taff  Vale  R.  Co 1355 

Pratt  V.  Davis 141 

Press  Co.  v.   Stewart 649 

Price  V.  Jenkings 625 

Priestley  v.  Fowler 1129 

Priestly   v.   Fowler 1133 

Proctor  V.  Adams 181 

Prnssak  v.  Hutton 358 

Pullman  v.  Hill  d  Co 629 

I'ursell  V.  Horn 55 

Puterbaugh  v.    Gold   Medal   Mfg. 

Co .' 629 

I'ut  »&  Hardy  v.  Rawsterne 437 

Quarts  Hill  Mining  Co.  v.  Kyre.  .  .1195 

Queen  v.  Carden 735 

Queen  v.  Dudley 30,  177 

Quinn  v.  Chicago,  etc.,  R.  Co 1171 

Quinn  v.   Leathern 1285 

Quinn  v.  LsATUEir 1337,  1390, 

1401,   1402,  1403,  1411,  1412 

Radley  v.  London  &  N.  AV.  R.  Co. .  .1158 

liadway  v.  Duffy 441 

Railroad   Co.   v.   Kekr 855 

Railroad  Co.  v.  Stout 810 

Ram  V.   Lamley 659 

itamsby  v.  Beozley 482 

Rapier  v.  London  Tramways  Co. . .  409 

Ravenga  v.  Mackintosh 1198 

Raycroft   v.    Tayntor 1j:47,  1346 

Raymond   Syndicate  v.  Guttentag  463 

Read  V.   Coker 53 

Read  v.  Edivards 35 

Read  v.  Friendly  Society  of  Oper- 
ative  Stonemasons  of  England, 

Ireland  and  Wales 1291 

Ifced  V.  (loldncck 199 

Reeve  v.  Palmer 301 

Reg.  v.  Druitt 1374 

Reg.    v.    Rowlands 1-69,  1270 

Regina  v.  Lesley 98 


TABLE   OF   CASES 


XXV 11 


Page 

Heilly  v.  Curtiss 573 

Reporters'  Ass'n  v.  Sun  Printing 

d  rub.  Co 581 

RespubUca  v.  De  Longehamps .  ...     62 
Retail  Lumber  Dealers'  Ass'n  v. 

Mississippi   1315 

Rex  V.  Wheatlij 11 

Kex  V.   Wright 679 

Rex  v.  Wright 6S0,  681 

Reynolds  v.  Clarice 336 

Reynolds  v.  Ficrson 148 

Rich  V.  Bastei-field 365 

Richards  v.  Daugherty 3.j6,  408 

Richards     v.     Pitts     Agricultural 

Works   475 

Richardson  v.  Babcock  &  Wilcox 

Co 924 

Richardson  v.  Gunby 721 

Richmond  v.  Fiske 77 

Rickards  v.  Lothian 795,  877 

Ricket  V.  Metropolitan  R.  Co .325 

Ricketts   v.   Dorrel 306 

RiDEOUT  V.  Knox 1296 

Rider  v.  Clarkson 402 

Ligby  v.  Hewitt 815 

Ripon  (Earl)  v.  Hobait 401 

Rishivorth  v.  Moss 141 

Robert  Marys'  Case 533 

Roberts  v.  Camden 643 

Roberts  v.  Gwyrfai  District  Coun- 
cil    391 

Roberts  v.  Harrison 354 

Robinson  v.   Balmain  New  Ferry 

Co 92 

Robinson  v.  Musser 14G 

Rockwood  V.  Feasar 495 

Rodgers  v.  Missouri  Pac.  R.  Co.. . .  900 

Rogers  y.  Dutt 1265 

Rogers  v.  Elliott 382 

Rogers  v.  Gilinger 446 

Rolater  v.  Strain 279 

Rosewell  v.   Prior 362 

Ross  V.  Butler 428 

Ross  V.  Fedden 798 

Royce,  Allen  &  Co.  v.  Oakes 449 

Rudd  V.  Cameron 722,  723 

Rumney  v.  Worthley 623 

Rushmer  v.  Polsue  &  Allleri 424 

Rush  worth  v.  Taylor 472 

Russell's  Case 583 

Russen  v.  Lucas 101 

Ruter  V.  Foy 148 

Rutherford  v.   Paddock 65:3 

Ryan  v.  Chown 514 

Ryan  \.  New  York  Cent.  R.  Co.  823 

Ryan  v.  Railroad  Co 855 

Ryan  v.  Toicar 1001 

Rylands  v.   Fletcher 776 

Rylands  v.  Fletcher 

784,  786,  789,  792,  797 


Page 
Sadgrove  v.  Hole 626 

Sager  v.  Blain 312 

St.  Helen's  Smelting  Co.  v.  Tiiiping  421 
St.  Louis  d  8.  F.  R.  Co.  v.  Elsing.  .1112 
St.  Louis  c€  S.  F.  Ry.  v.  Mathews.  .  767 
St.  Louis  &  Temv.  Packet  Go.  v. 

Murray  d  Wathan 1114 

Salisbury  v.  Herchenroder 884 

Samples  V.  Carnahan 704 

Samuel  v.  Payne 170 

Savage  v.  Stover 749 

Sawyer  v.  Davis 434 

Scanlon  v.  Wedger 149 

Scheffer  v.  Railroad  Co 835 

SCHEIBEL   V.    FAIRBAIN 1191 

Schlemnier  v.  Buffalo,  R.  &  P.  R. 

Co 1139 

Schloendorff   v.    Society    of    New 

York  Ilospital 80 

Schubert  v.  J.  R.  Clark  Co 1068 

Schultz  V.  Frankfort  Marine  Ins. 

Co 90 

Schwarz    Bros.     Co.    v.    Evening 

News  Pub.   Co 735 

Schirinn  v.  Perkins 207,  229,  230 

Scidmore  v.  Smith 121 

Scott  V.  London  &  St.  Katherine 

Docks    Co 950 

Scott  v.  Shepherd     56,  855 

Scott  v.  Stansfield 660,  741 

Scottish    Co-op.    Soc.    V.    Glasgow 

Flcshers'  Ass'n 1314 

Seaman  v.  Netherclift 667 

Sebrec  v.  Thompson 666 

Seckerson  v.  Sinclair 767 

Seigel  V.  Long 175 

Sell  v.  Facy 576 

Sesler  t\  Montgomery 622 

Severin  v.  Keppel 470 

Seveky  v.  Nickerson 1033 

Shea  V.  Milford 512 

Sheckell  v.  Jackson 739 

Sheckell  v.  Jackson 687 

Sheehan  v.  Sturges 267 

Shefflll  V.  Van  Deuseu 620 

She f tall  V.  Central  of  Georgia  Ry.  743 

Shepard  v.  Lamphier 625 

Shepard  v.  Seattle  .  , 379 

Shepheard  v.  Whitaker 606,  636 

Sheppard  v.  Wakeman 1203 

Sherman  v.  Western  Transp.  Co..  .  946 

Shinglcmcycr  v.  Wright 135,  725 

Shurilcff  V.  Stevens 748 

Silsbury  v.  McCoon 306 

Simmo)is  V.  Everson 408 

Simmons  v.  Lillystonc 349 

Simon  v.  Henry 911 

Simon  V.  Henry 42 

Simpson  v.  Press  Pub.  Co 564 

Sims  V.  Sims 16 


XXVIU 


TABLE   OF   CASES 


Page 

Singer  Mffj.  Co.  v.  Kin{f 504 

Singer  Se icing  Mach.  Co.  v.  Phipps     54 
Sioux  City  &  P.  R.  Co.  v.  Stout.  . .  905 

Sir  G.'  Gerard  v.  Dickenson 1204 

Sir  John  Carr  v.  Hood 728 

Sir  John  Scott  Lillie  v.  Price 658 

Six  Carpenters'  Case,  The 2S0 

Six  Cakpenters'   Case 2!>1 

Skevill  V.   Avery 207 

Sldnner  v.  Wilder 220 

Skinner  &  Co.  v.  Shew  &  Co 1259 

Slater  v.  Sivann 115 

Smith  V.  Delaware  River  Amuse- 
ment Co 976 

Smith  V.  Giddy 339,  399 

Smith  V.  Kahn 60 

Smith  y.  London  &  Southwestern 

R.  Co 817 

SinxH  V.  London  &  Southwest- 
ern R.  Co 852 

Smith  v.  McLean 477 

Smith  V.  Newsam 47 

Smith  V.  Shakopee 1113 

Smith  V.  Smith 112 

Smith  t'.  Spooner 1205 

Smith  V.   State 88 

Smith  V.  Stone 29 

Smith  V.  Streatfeild 756 

Sitiith  V.  Wood 722 

Smith  V.  Young 473,  500 

Smith's  Case 565 

Smithwick  v.  Hall  &  Upson  Co llOO 

Sneesby  v.  Railway  Co 854 

Sohn  V.  Cnmhern 348 

Soltau  V.  De  Held. 326 

Souierville  v.  Hawkins 716 

SouTHCOTE  V.  Stanley 1029 

Sotithold  V.   Daunston 644 

South   Wales  Miners'  Federation 

V.  Glamorgan  Coal  Co 1415 

Sowles  V.  INloore 803 

Speake  v.  Hughes 583 

Spears  v.  McCoy 567 

Specht  V.  Waterbury  Co 978 

Spoor  V.  Spooner 86 

Squib  Case,  The 56,  8-55 

Stafford  v.  Oreen 649 

Stanley  v.  Osbaston 566 

Stanley  v.  Potcell 155,  164 

Statmard  v.  Wilco.x  &  Gibhs  Sew- 
ing Mach.   Co 572,  642 

State  V.  Crow 50 

State  V.  Daniel 54 

State  V.  Glidden 1.362 

State  V.  Haskins 747 

State  V.  Hunter 243 

State  V.  IMoffett 398 

State  V.  Monroe 61 

State  V.  Morgan 49 

State  V.  Oliver 267 

State  V.  Rhodes 267 


Page 

State  V.  Vanderbilt 269 

Statute  of  Malicious  Appeals. ..  .1183 

Staub  V.  Tan  Bcnthuysen 633 

Steinmets  v.  Kelly 149 

Steiskal  v.  Marshall  Field  &  Co..  .1035 

Steketee  v.  Kimm 626 

Stephens  v.  Elwall 523 

Stetson  V.  Faxon 323 

Steudle  v.  Rentchler 67 

Stevens  v.   Sampson 683 

Stetcaii,  v.  Howe 563 

Stokes  v.  Saltonstall 844 

Stone  V.  Neto  York 176 

Stone    V.    Wakcman 348 

Stonehouse  v.  Elliott 170 

Stotleb  v.  Rochelle 378 

Stout  v.  Sioux  City  &  P.  R.  Co...  995 

Stout  V.  Wren 142 

Stnart   v.    Bell 701 

Sturges  V.  Bridgman 388 

Sullivan  v.   Dunham 08.   1.52,  165 

Sullivan  v.  Old  Ct>lony  St.  R.  Co.  968 

Sullivan  v.  Waterman 346 

Sumner  v.  Beeler 235 

Surocco  V.  Geary 176 

Sutton  V.  Smith 725 

Sweetly  v.  Old  Colony  R.  R 1043 

Tababt    v.    Tipper 729 

Talcott  v.  National  Exhibition  Co.     91 

Tarleton   v.    McGawley 1229 

Tableton  v.  McGawley 1266 

Tatlow  V.  Jaquctt 720 

Taunton  v.  Costar 222 

Taylor  v.  Bennett 385 

Taylor  v.  Daniel 551 

Taylor  v.  Hall 565 

Taylor  v.  Hearst 636 

Taylor  v.  Metropolitan  St.  R.  Co.. .1180 

Taylor  v.  Perkins 564 

Temi3ertoi4  v.  Russell 1274,  1367 

Tempebton  v.  Russell 1282, 

1284,  1287 

Tenant  v.  Goldioi/n 781 

Texas,  etc.,  R.  Co.  v.  Yolk 976 

Thomas   v.    Bradbury,    Agnew   «& 

Co 759 

Thomas  v.  Bradbury,  Agueiv  d  Co.  753 

Thomas  v.  Ono'termaine 1118 

Thomas   v.    Winchester 1052 

Thompson  v.   Bernard 645 

Thompson  v.  Dash  wood 699 

Thompson  v.  Gibson 413 

Thorley  v.  Kerry  (Lord) 586 

Thorley  v.  Lord  Kerry 586 

Thorn-Cut  ting  Case 155 

TiioKOGOOD    v.    Bryan 1145 

Thorite  r.  Bnim/itt 408 

Thrussell  v.  Handyside  &  Co 1134 

Thurston  v.   Blauchard 483 

Tickell  V.  Read. 195 


TABLE   OF   CASES 


XXIX 


Page 

Tidry  v.  Kent  Circuit  Judge 521 

Tidman  v.  Aht^lie 720 

Tilly  V.  Mitchell  d  Lewis  Co 323 

Timothy  v.  Simpson 247 

TiMOTHT  V.  Simpson 253 

Tinkler  v.  Poole 480 

Tobias  V.  Harland 600 

Todd  V.  Hawkins 699 

Tod-Heatley  v.  Benham 380 

Tom  V.  Nichols-Fifield  Shoe  Mach. 

Co 10S3 

Tombs  V.  Painter 47 

Toogood   V.    Spyring 744 

Toicaliga  Falls  Poicer  Co.  v.  Sims  354 

Trebby  v.  Transcript  Pub.  Co 688 

Trigss  V.  Sun  Printing  &  Publish- 
ing Ass'n 589,  735 

Trimble  v.  Morrish 714 

Teotman   v.    Dunn 668 

Trumbull  v.  Gibbons 623 

Tubervil  v.  Stamp 765 

Tuberville  v.  Savage 49,  194 

Tuff  V.  Warman 1155 

Tullidge  v.   Wade 533 

Tunney  v.  Midland  R.  Co 1134 

Turner  v.  Meymott 221 

Tuttle  V.  Atlantic  City  R.  Co 844 

Tuttle  V.  Buck 1246 

Tuttle  V.  Buck 1348 

Underwood  v.  Hewson 31,  158 

Underwood  v.  Parks 651 

Union    Labor    Hospital    Ass'n    v. 
Vance  Redwood  Lumber  Co. ...1316 

Union  Pac.  R.  Co.  v.  Cappier 932 

United  States  v.  Luce 408 

United  States  v.  Myers 49 

United  States  v.  Richardson 49 

Upton  V.   Times-Democrat 636 

Van  Buskirk  v.  Bond 348 

Vandalia  R.  Co.  v.  Clem 1107 

Vandenburgh  v.  Truax 855 

Vanderbilt  v.  Mathis 1191 

Vaughan  v.  Taff  Vale  R.  Co.  . .  819 

Vaughan  v.   Watt 502 

Vkgelahn  v.  Guntneb 1290,  1392 

ViCABS  V.  WiLCOCKS 1235 

Victor  Safe  &  Lock  Co.  v.  Deright  600 

Vile  V.  Pennsylvania  R.  Co 412 

Villers  v.   Monsley 584 

Vincent  v.   Stinehour 67 

Vizetelly  v.  Mudie's  Select  Library  630 
Vosburg  V.  Putney 76 

Wadhurst  v.  Damme 197 

Wahlheimer  v.  Hardenbergh 632 

Waite  V.  Northeastern  R.  Co 1150 

Wal^elin  v.  London  &  S.  W.  R.  Co.  971 
Wald  v.  Pittsburgh,  C,  C.  &  St. 
L.  R.  Co.   888 


Page 
Walker  v.  Cronin . .  i.  a  un  i . . . .  1259 

Walkeb  V.  Cbonin 1309, 1371 

Walker  v.  Jones 301 

Waller  v.  Loch 705 

Walling  v.  Cormnercial  Advertiser  720 

Walsh  V.  Pulitzer  Pub.  Co 732 

Walter  v.  Sample 1196 

Walter  v.  Selfe   373 

Walters  v.  W.  H.  Smith  &  Son 261 

Walther  v.  Southern  Pac.  Co 941 

Wandt  V.  Hearst's  Chicago  Ameri- 
can    609 

Ward  V.  Blunt 495 

Ward  V.  D amp skibselsk abet  Kjoe- 

benhaven    1118 

Waring  v.  Pennsylvania  R,  Co.. . .  520 

Warren  v.  Webb 348 

Warten  v.  Strane 315 

Washington  &  G.  R.  Co.  v.  Glad- 

mon   974 

Wason  V.  Walter 679 

Waterer  v.   Freeman 6, 1200 

Watson  V.  Christie 126 

Watson  V.  Jones 676 

Watson    V.    Kentuckv    &   Indiana 

Bridge  &  R.  Co 874 

Watson  V.  McEwan 676 

Weaver  v.   Bush 208 

Weaver  v.  Lloyd 652 

Weaver  v.  Ward 156 

Weaveb  v.  Wabd 908 

Webb  V.  Beavan 561 

Webb  V.  Portland  Mfg.  Co 9G4 

Webbe  v.  Leek 120 

Weeks  v.  McNulty 805 

Weir  v.  Hoss 619 

Wells  V.  Howell 108,  159 

Wells  V.  Knight 153 

Welsund  v.  Schueller 145 

Wemuan  v.  Ash 621 

Wcmihuk  V.   Morgan 622 

Weshbourn  and  Mordant's  Case.  .  334 

Wesson  v.  Washburn  Iron  Co 328 

West    V.    Bristol    Tramways    Co. 

411,  421 
Western  Union  Tel.  Co.  v.  Cash- 
man    . ., 620 

West  Munice  Strawboard   Co.  v. 

Slack  408 

West     Virginia     Transp.     Co.     v. 

Standard  Oil  Co 1340 

Whalen  v.  Citizens'  Gaslight  Co..  .  977 

Wheelock  v.    Wheelwright 488 

Wheelock  v.  Wheelwriglit 490 

White  V.  Carroll 672 

White  V.  Melliu 1209 

White  V.  Sander  (two  cases) 52 

White  V.  Spettigue 497 

White  v.  Steadman 1076,  1077 

Whithead  v.  Keyes 101 

Whiting  v.  Wh/iting 471 


XXX 


TABLE   OF   CASES 


Whituuin  V.  Atchison,  T.  &  S.  F. 

R.   Co 

M'hittah-cr  v.  Bradley 

WhUiaker  v.  Stangiick 

^Ulittt'more    v.    Baxter    Laundry 

Co 

Whitten  v.  Bennett 

WiGGiN   V.   Coffin 

Williraham  v.  Snow 

Wileox    V.   Moon 624, 

Wildgoose    v.    Kellaway 

Wiley  V.  Camphell 

Wilkes  V.  Huu^'erford  Market  Co. 

Wilkinson   v.   Verity 

Willard  v.   Cambridge 

Willard  v.   Kossi 

Willcutt  &  Sons  Co.  v.  Bricklay- 
ers'    Benevolent    &     Protective 

Union  No.  .'5 1?'S6 

Williams   v.    Gesse 441 

Williams  v.  Great  Western  R.  Co.  808 

Williams  v.  Ilicks  Printing  Co 637 

Williams    v.    Jones 241 

Williams  v.  New  York  Herald  Co.  725 
Willi<iins  V.  New  York  Herald  Co.  69.3 

Williams  v.  Poraeroy  Coal  Co 337 

Williams  V.  Poncll 86 

Williamson  v.  Freer 741 

Wilson  V.  Brett 933 

Wilson  V.  Camphell 230 


Page 

94 
639 
112 

410 
030 

1193 
456 
625 
27 
563 
324 
302 
322 
91 


Page 

Wilson  V.  McLanghlin 513 

Wilson  V.  Northern  Pac.  Ry.  Co.. .  831 

Winckwortli  v.  Man 10.'5 

Winferbottom    v.    Wriglit 1043 

WiNTERBOTTOM     V.  Wright.  .1067,  1073 

Wintringham    v.    Lafoy 116 

Wood  V.  Cummings 84 

Uooff.  V.  Lane 134 

Wood  V.  Pennsylvania  R.  Co 825 

Wood    V.    Smith 447 

Wooding    v.    Oxley 247 

WooDLEY   V.    Metropolitan    Dis- 
trict R.  Co 1134 

Woodman    v.    Huhhard 490 

Woolley  V.   Scovell 841 

Wright  V.  Compton 70 

Wright  V.  Frank  A.  Andrews  Co.  473 

Wright  v.   Lothrop 672 

Wright    V.    Ramscot 198 

Wright  V.  St.  Clond 1119 

Wright  V.   Wilson 80 

W  right  v.  Woodgate 752 

Yarmouth  v.   France 1117 

Yaska  v.    Swendrzyiiski 131,  192 

Yates  V.  Lansing. 001 

Youi    V.  Harbottle 527 

Young  v.  Muhling 492 

i'oung  V.  Rossi 91 

Yousling  V.  Dare 020,  621 


CASES  ON  TORTS 


INTRODUCTORY 


1 

"TORTS"  AND  "WRONGS" 


"Rectum"  is  a  proper  and  significant  word  for  the  right  that  any 
hath/  and  wrong  or  injury  is  in  French  aptly  called  "tort;"  -  because 
injury  and  wrong  is  wrested  or  crooked,  being  contrary  to  that  which 
is  right  and  straight. 

Coke  upon  Littleton  (1628)  158b. 


"Tort"  is  nothing  but  the  French  equivalent  of  our  English  word 
"wrong,"  and  was  freely  used  by  Spenser  as  a  poetical  synonym  for 
it.  In  common  speech  everything  is  a  wrong,  or  wrongful,  which  is 
thought  to  do  violence  to  any  right.  ]Manslaying,  false  witness,  breach 
of  covenant,  are  wrongs  in  this  case.  But  thus  we  should  include  all 
breaches  of  all  duties,  and  therefore  should  not  even  be  on  the  road 
to  anv  distinction  that  could  serve  as  the  base  of  a  legal  classification. 

Sir  Frederick  Pollock,  Torts  (3d  Ed.)  2. 

1  "Since  conduct  which  is  straiglitforn-ard  came  to  be  spols;en  of  eulosristi- 
cally  as  being  'rectum,'  'directum  (whence  'droit"),  'recht,'  and  'right,'  conduct 
of  tlie  opposite  character  naturally  came  to  be  expressed  by  the  terms  'de- 
lictum.' 'delit,'  as  deviating  from  the  right  path,  and  'wrong'  or  'tort,'  as 
twisted  out  of  the  straight  line."     Holland,  Jurisprudence  (1906)  318. 

For  the  scope  and  use  of  the  term  "delict."  "delictum."  see  Pollock  on  Torts 
(8th  Ed.)  16,  17;  Terry's  Leading  Principles  of  Anglo-Am  Law,  104;  Blacks 
Law  JMctionary,  348,  349 ;  and  compare  "Action  Ex  Delicto,"  1  Words  and 
Phrases,  141. 

2  "  'Tort,'  from  the  Latin  'tortus.'  a  French  word  for  injury  or  wrong,  as 
'de  son  tort  demesne,'  in  his  own  wrong."  Jacob's  Law  Dictionary  (1811)  vol. 
6,  p.  2.51. 

Hepb.Toets — 1 


2  INTRODUCTORY 

It  is  not  surprising,  in  any  case,  that  a  complete  theory  of  torts  is 
yet  to  seek,  for  the  subject  is  altogether  modern.  The  earliest  text- 
book I  have  been  able  to  find  is  a  meagre  and  unthinking  digest  of 
"The  Law  of  Actions  on  the  Case  for  Torts  and  Wrongs,"  published 
in  1720,  remarkable  chiefly  for  the  depths  of  historical  ignorance 
which  it  occasionally  reveals.  The  really  scientific  treatment  of  prin- 
ciples begins  only  with  the  decisions  of  the  last  fifty  years ;  their  de- 
velopment belongs  to  that  classical  period  of  our  jurisprudence  which 
in  England  came  between  the  Common  Law  Procedure  Act  and  the 
Judicature  Act. 

Sir  Frederick  Pollock,^  Introduction  to  the  first  edition  of  his  Torts. 


Take  the  law  of  tort  or  civil  liability  for  damages  apart  from  con- 
tract and  the  like.  Is  there  any  general  theory  of  such  liability,  or 
are  the  cases  in  which  it  exists  simply  to  be  enumerated,  and  to  be  ex- 
plained each  on  its  special  ground,  as  is  easy  to  believe  from  the  fact 
that  the  right  of  action  for  certain  well-known  classes  of  wrongs  like 
trespass  or  slander  has  its  special  history  for  each  class  ?  I  think  that 
there  is  a  general  theory  to  be  discovered,  although  resting  in  tendency 
rather  than  established  and  accepted.  I  think  that  the  law  regards  the 
infliction  of  temporal  damage  by  a  responsible  person  as  actionable, 
if  under  the  circumstances  known  to  him  the  danger  of  his  act  is  mani- 
fest according  to  common  experience,  or  according  to  his  own  experi- 
ence if  it  is  more  than  common,  except  in  cases  where  upon  special 
grounds  of  policy  the  law  refuses  to  protect  the  plaintiff  or  grants  a 
privilege  to  the  defendant.  I  think  that  commonly  malice,  intent,  and 
negligence  mean  only  that  the  danger  was  manifest  to  a  greater  or 
less  degree,  under  the  circumstances  known  to  the  actor,  although  in 
some  cases  of  privilege  malice  may  mean  an  actual  malevolent  motive, 
and  such  a  motive  may  take  away  a  permission  knowingly  to  inflict 
harm,  which  otherwise  would  be  granted  on  this  or  that  ground  of 
dominant  public  good.  But  when  I  stated  my  view  to  a  very  eminent 
English  judge  the  other  day,  he  said:  "You  are  discussing  what  the 
law  ought  to  be ;  as  the  law  is,  you  must  show  a  right.    A  man  is  not 

8  Tn  his  "open  letter,"  addressed  to  Mr.  Justice  Holmes.  introdndnE:  the  first 
edition  of  Polloolv  on  Torts.  The  professed  aim  of  this  book,  published  iu  1SS7, 
was  "to  show  that  there  really  is  a  Law  of  Torts,  not  merely  a  number  of 
rules  of  law  about  various  kinds  of  torts — that  this  is  a  true  living  branch  of 
the  Common  Law,  not  a  collection  of  heterogeneous  instances." 

"We  read  in  the  books  of  various  forms  of  actions  tor  violations  of  non- 
contract  legal  duties,  and  of  classiiied  civil  wrongs  of  this  .sort.  We  had,  as 
we  still  have.  Assault  and  Battery,  Slander  and  Libel,  Deceit,  Malicious  Pros- 
ecution, Trespass,  and  so  on,  all  pertaining  to  minor  divisions  within  the 
subject  of  this  volume.  In  1859  was  published  the  first  treatise  on  the  'Law 
of  Torts.'  It  was  by  Francis  Ililliard.  It  was,  as  all  know,  an  American 
book.  The  English  Addison  on  Torts  appeared  in  ISUO."  Bishop,  Mon-Lou- 
tract  Law  (1S8U)  1,  2. 


*'torts"  and  "wrongs"  3 

liable  for  negligence  unless  he  is  subject  to  a  duty,"  If  our  difference 
was  more  than  a  difference  in  words,  or  with  regard  to  the  proportion 
between  the  exceptions  and  the  rule,  then,  in  his  opinion,  liability  for 
an  act  cannot  be  referred  to  the  manifest  tendency  of  the  act  to  cause 
temporal  damage  in  general  as  a  sufficient  explanation,  but  must  be 
referred  to  the  special  nature  of  the  damage,  or  must  be  derived  from 
some  special  circumstances  outside  of  the  tendency  of  the  act,  for 
which  no  generalized  explanation  exists.  I  think  that  such  a  view  is 
wrong,  but  it  is  familiar,  and  I  dare  say,  generally  accepted  in  Eng- 
land.* 

Mr.  Justice  Holmes,  "The  Path  of  the  Law,"  10  Harv.  Law  Rev, 
457,  471  (1897). 


The  English  Law  of  Contract  and  (within  its  very  modest  limits) 
the  English  Law  of  Quasi-Contract,  are  scientific.  The  English  Law 
of  Torts  is  arbitrary,  and  (in  the  historical  sense  of  the  word)  barbaric. 
That  is  to  say,  it  is  possible  to  define,  in  simple  language,  wdiat  is  a 
contract  according  to  English  Law,  and  to  say  that  every  arrangement 
which  satisfies  that  definition  will  be  a  legally  enforceable  contract. 
Thus  we  may  say,  that  whenever  an  adult  and  normal  person  enters 
into  an  agreement,  with  only  a  lawful  object  in  view,  for  the  purpose 
of  affecting  his  legal  relations,  then,  if  that  agreement  is  either  mo- 
tived by  pecuniary  consideration  or  is  embodied  in  a  deed,  it  will  cre- 
ate a  contract  legally  binding  on  him.  That  is  a  definition  which  an 
educated  layman  may  fairly  be  expected  to  understand;  and  it  really 
tells  him  something. 

No  such  definition  of  a  tort  can  be  offered.  A  tort,  in  English  Law, 
can  only  be  defined  in  terms  w^hich  really  tell  us  nothing.  A  tort  is  a 
breach  of  a  duty  (other  than  a  contractual  or  quasi-contractual  duty) 
which  gives  rise  to  an  action  for  damages.  That  is,  obviously,  a  mere- 
ly procedural  definition,  of  no  value  to  the  layman.  The  latter  wants 
to  know  the  nature  of  those  breaches  of  duty  which  give  rise  to  ac- 
tions for  damages.  And  the  only  answer  that  can  be  given  to  him  is : 
"Read  this  and  the  preceding  volume."  To  put  it  briefly,  there  is  no 
English  Law  of  Tort ;  there  is  merely  an  English  Law  of  Torts,  i.  e., 
a  list  of  acts  and  omissions  w^hich,  in  certain  conditions,  are  action- 
able.   Any  attempt  to  generalize  further,  however  interesting  from  a 

4  In  1904,  Mr.  Justice  Holmes,  delivering  the  opinion  In  Aikens  v,  Wiscon- 
sin, 19-5  U.  S,  19-1,  204,  25  Sup.  Ct.  3,  5  (49  L.  Ed.  159),  remarked  as  follows: 
■'It  lias  been  considered  that  prima  facie  the  intentional  iutliction  of  temporal 
damage  is  a  cause  of  action,  which  as  a  matter  of  substantive  law,  whatever 
may  be  the  form  of  pleading,  requires  a  justili'/ation  if  the  defendant  is  to 
escape,'' 

See  the  remarks  of  Bowen,  L,  J  ,  in  Skinner  &  Co,  v.  Shew  &  Co.  (1893)  1 
ch.  4J.3,  422;  the  remarks  of  Professor  Ames  in  IS  Harv,  Law  Rev,  (1905)  411 
ec  seq.  See,  also,  26  Harv.  Law  Kev.  (1913)  740-742.  For  an  examination  of 
the  principle  involved,  see  infra,  Part  III,  Chapter  II,  "Torts  through  Malice." 


INTRODUCTORY 


speculative   standpoint,   would   be   profoundly   unsafe  as   a  practical 


guide. 


English  Law  stumbled  on  her  definition  of  contract  by  an  accident 
of  genius ;  for  six  hundred  years  she  has  been  seeking  in  vain  for  a 
definition  of  tort.  We  may  well  be  impatient ;  and  yet,  when  we  think 
of  the  dangers  involved,  on  the  one  hand  in  narrowness,  and,  on  the 
other,  in  vagueness,  we  shall  hesitate  long  before  committing  ourselves 
to  an  irrevocable  definition.^ 

J.  C.  Miles,  Digest  Eng.  Civil  Law,  Bk.  II,  pp.  xiv,  xv  (1910). 


II 

TORTS  AND  MORAL  WRONGS 


Primitive  law  regards  the  word  and  the  act  of  the  individual ;  it 
searches  not  his  heart.  "The  thought  of  a  man  shall  not  be  tried," 
said  Chief  Justice  Brian,  one  of  the  best  of  the  mediaeval  lawyers, 
"for  the  devil  himself  knoweth  not  the  thought  of  man." 

James  Barr  Ames,  "Law  and  Morals"  (1908)  22  Harvard  Law  Re- 
view, 97.* 


The  law  of  torts  abounds  in  moral  phraseology.  It  has  much  to 
say  of  wrongs,  of  malice,  fraud,  intent,  and  negligence.  Hence  it  may 
naturally  be  supposed  that  the  risk  of  a  man's  conduct  is  thrown  upon 
him  as  the  result  of  some  moral  short-coming.  But  while  this  notion 
has  been  entertained,  the  extreme  opposite  will  be  found  to  have  been 
a  far  more  popular  opinion ;  I  mean  the  notion  that  a  man  is  answer- 
able for  all  the  consequences  of  his  acts,  or,  in  other  words,  that  he 
acts  at  his  peril  always,  and  wholly  irrespective  of  the  state  of  his 
consciousness  upon  the  matter. 

Oliver  Wendell  Holmes,  Jr.,  The  Common  Law  (1881)  79,  80. 

5  "It  is  true  that  it  is  not  yet  possible  to  {rive  an  unexceptionable  dottnition 
of  a  tort.  But  we  thinlv  Mr.  Miles  goes)  too  far  in  saying  'there  is  no  English 
Law  of  Tort ;  there  is  merely  an  English  Law  of  Torts,  i.  e.,  a  list  of  acts 
and  omissions  which,  in  certain  conditions,  are  actionable.'  In  our  judgment 
tJie  Common  Law  is  coming,  if  it  has  not  already  come,  to  hold  that  a  man 
who  wilfidly  or  negligently  causes  temjioral  damage  ()f  any  kind  is  liable  un- 
less he  can  show  justification  or  excuse.  Tlie  real  dithculty  is  not  to  lind  a 
verbal  definition  of  tort  in  general,  but  to  define  the  substantial  principles  of 
justification  and  excuse  and  the  linnts  of  their  application."  Sir  Frederick 
Pollock,  2G  Law  Quart.  Rev.  420  (iniO). 

See,  also,  the  article,  by  Sir  Frederick  Pollock,  on  Torts,  in  27  Encyl.  Brit. 
(11th  Ed.  1911)  64. 

♦Kepublisbed  in  Lectures  on  Legal  History,  434  (1915). 


TORTS    AND    MORAL   WRONGS  5 

To-day  we  may  say  that  the  old  law  has  been  radically  transformed. 
The  early  law  asked  simply,  "Did  the  defendant  do  the  physical  act 
which  damaged  the  plaintiff?"  The  law  of  to-day,  except  in  certain 
cases  based  upon  public  policy,  asks  the  further  question,  "Was  the 
act  blameworthy?"  The  ethical  standard  of  reasonable  conduct  has 
replaced  the  unmoral  standard  of  acting  at  one's  peril.''' 

James  Barr  Ames,  Law  and  Morals,  22  Harv.  Law  Rev.  99  (1908).'' 


The  theory  of  torts  may  be  summed  up  very  simply.  At  the  two 
extremes  of  the  law  are  rules  determined  by  policy  without  reference 
of  any  kind  to  morality.  Certain  harms  a  man  may  inflict  even 
wickedly ;  for  certain  others  he  must  answer,  although  his  conduct 
has  been  prudent  and  beneficial  to  the  community. 

But  in  the  main  the  law  started  from  those  intentional  wrongs 
which  are  the  simplest  and  most  pronounced  cases,  as  well  as  the  near- 
est to  the  feeling  of  revenge  which  leads  to  self-redress.  It  thus 
naturally  adopted  the  vocabulary,  and  in  some  degree  the  tests,  of 
morals.  But  as  the  law  has  grown,  even  when  its  standards  have  con- 
tinued to  model  themselves  upon  those  of  morality,  they  have  neces- 
sarily become  external,  because  they  have  considered,  not  the  actual 
condition  of  the  particular  defendant,  but  whether  his  conduct  would 
have  been  wrong  in  the  fair  average  member  of  the  community,  whom 
he  is  expected  to  equal  at  his  peril. 

In  general,  this  question  will  be  determined  by  considering  the 
degree  of  danger  attending  the  act  or  conduct  under  the  known  cir- 
cumstances. If  there  is  danger  that  harm  to  another  will  follow,  the 
act  is  generally  wrong  in  the  sense  of  the  law. 

But  in  some  cases  the  defendant's  conduct  may  not  have  been 
morally  wrong,  and  yet  he  may  have  chosen  to  inflict  the  harm,  as 
where  he  has  acted  in  fear  of  his  life.     In  such  cases  he  will  be  liable, 

e  On  this  remark  by  Professor  Ames,  in  190S,  Professor  Roseoe  Pound  has 
this  comment  in  1914:  "But  the  ethical  standard  of  which  he  wrote,  which 
came  into  the  law  in  the  period  of  infusion  of  morals,  was  an  individualist 
ethical  standard.  To-day  there  is  a  strong  and  growing  tendency  to  revive 
the  idea  of  liability  without  fault,  not  only  in  the  form  of  wide  responsibility 
for  agencies  employed,  but  in  placing  upon  an  enterprise  the  burden  of  re- 
pairing injuries  without  fault  of  him  who  conducts  it,  which  are  incident  to 
the  undertaking.  There  is  a  strong  and  growing  tendency,  where  there  is 
no  blame  on  either  side,  to  ask,  in  view  of  the  exigencies  of  social  justice,  who 
can  best  bear  the  loss,  and  hence  to  shift  the  loss  by  creating  liability  where 
there  has  been  no  fault.  The  whole  matter  of  workmen's  compensation  and 
employer's  liability,  as  dealt  with  in  modern  legislation,  illustrates  thi.s." 
Roseoe  Pound,  "The  End  of  the  Law,"  27  Ilarv.  Law  Rev.  2315  (1914).  For 
the  development  of  the  doctrine  of  lialnlity  without  fault,  see  Part  I,  Torts 
through  Acts  of  Absolute  Liability.  For  the  development  of  the  doctrine  of 
liability  through  blameworthiness,  see  Part  III,  Torts  through  Acts  of 
Conditional   Liability. 

7  Republished  in  Lectures  on  Legal  History,  437  (1915). 


6  INTRODUCTORY 

or  not,  according  as  the  law  makes  moral  blameworthiness,  within  the 
limits  explained  above,  the  ground  of  liability,  or  deems  it  sufficient 
if  the  defendant  has  had  reasonable  warning  of  danger  before  acting. 
This  distinction,  however,  is  generally  unimportant,  and  the  known 
tendency  of  the  act  under  the  known  circumstances  to  do  harm  may 
be  accepted  as  the  general  test  of  conduct. 

The  tendency  of  a  given  act  to  cause  harm  under  given  circum- 
stances must  be  determined  by  experience.  And  experience  either  at 
first  hand  or  through  the  voice  of  the  jury  is  continually  working  out 
concrete  rules,  which  in  form  are  still  more  external,  and  still  more 
remote  from  a  reference  to  the  moral  condition  of  the  defendant,  than 
even  the  test  of  the  prudent  man  which  makes  the  first  stage  of  the 
division  between  law  and  morals.  It  does  this  in  the  domain  of 
wrongs  described  as  intentional,  as  systematically  as  in  those  styled 
unintentional  or  negligent. 

But  while  the  law  is  thus  continually  adding  to  its  specific  rules,  it 
does  not  adopt  the  coarse  and  impolitic  principle  that  a  man  acts  al- 
ways at  his  peril.  On  the  contrary,  its  concrete  rules,  as  well  as  the 
general  questions  addressed  to  the  jury,  show  that  the  defendant  must 
have  had  at  least  a  fair  chance  of  avoiding  the  infliction  of  harm 
before  he  becomes  answerable  for  such  a  consequence  of  his  conduct. 
And  it  is  certainly  arguable  that  even  a  fair  chance  to  avoid  bringing 
harm  to  pass  is  not  sufficient  to  throw  upon  a  person  the  peril  of  his 
conduct,  unless,  judged  by  average  standards,  he  is  also  to  blame  for 
what  he  does. 

Oliver  Wendell  Holmes.  Tr..  The  Common  Law  (1881)  161. 


There  must  be  not  only  a  thing  done  amiss,  but  also  a  damage  either 
already  fallen  upon  the  party,  or  else  inevitable.  And  therefore  19 
H.6  44  if  a  man  forge  a  bond  in  my  name,  I  can  have  no  action  upon 
the  case  yet,  but  if  I  am  sued,  I  may  for  the  wrong  and  damage, 
though  I  may  avoid  it  by  plea. 

Hobart,  C.  J.,  in  Waterer  v.  Freeman  (1619)  Hob.  266,  267.* 

8  The  case  was  this:  Waterer  brought  an  action  of  the  case  against  Free- 
man, and  declared  that  the  defoudaut  had  sued  out  at  Westm.  a  fieri  fac. 
upon  a  judgment  given  against  him  for  the  defendant,  for  a  trespass  in  Ox- 
fordshire, in  the  King's  Bench  to  the  Sheriffs  of  Oxfordshire,  who  by  virtue 
thereof  toolc  goods  of  the  plaintiff  to  the  value  of  the  damage,  and  so  made 
his  return,  and  that  the  goods  remained  in  his  hands  pro  defectu  emptoris, 
and  that  the  defendant  well  knowing  this  (to  the  intent  to  vex  and  double 
charge  him)  afterwards  did  sue  out  another  fieri  fac.  to  the  same  sheriff,  and 
delivered  it  to  him  to  be  executed,  who  did  thereupon  levy  the  money  of  other 
goods  of  the  plaintiff  and  paid  it  over  to  the  defendant  whereby  the  now 
plaintiff;  was  double  charged ;  whereupon  the  defendant  pleaded  not  guilty, 
and  it  was  found  against  him.  See  Ilobart,  205.  On  this  there  was  a  judg- 
ment for  the  plaintiff.     Hobart,  2G0,  80  Kepriut,  352. 


TOKTS   AND    OTHER    LEGAL    WRONGS  7 

It  seems  to  me  that  the  rule  laid  down  by  Croke,  J.,  in  Baily  v. 
Merrell  (1615)  3  Bulst.  95,  is  a  sound  and  solid  principle,  namely,  that 
fraud  without  damage,  or  damage  without  fraud,  will  not  found  an 
action ;    but  where  both  concur,  an  action  will  lie. 

Ashhurst,  J.,  in  Pasley  v.  Freeman  (1789)  3  T.  R.  51,  6L» 


The  law  of  torts  exists  for  the  purpose  of  preventing  men  from 
hurting  one  another,  whether  in  respect  of  their  property,  their  per- 
sons, their  reputations,  or  anything  else  which  is  theirs.  The  funda- 
mental principle  of  this  branch  of  the  law  is  "Alterum  non  Isedere" — 
to  hurt  nobody  by  word  or  deed.  An  action  of  tort,  therefore,  is 
usually  a  claim  for  pecuniary  compensation  in  respect  of  damage 
so  suffered. 

John  W.  Salmond,  Law  of  Torts  (1910)  7. 


Ill 
TORTS  AND  OTHER  LEGAL  WRONGS 


The  Law  of  Torts  forms  a  portion  of  what  is  called  private  law, 
or  that  which  is  concerned  with  questions  between  man  and  man,  as 
distinguished  from  public  law,  which  is  concerned  with  questions 
(1)  between  individuals  and  the  community,  as  in  criminal  law,  con- 
stitutional law,  ecclesiastical  law,  and  military  law ;  or  (2)  between 
the  community  and  another  community,  as  in  public  international 
law. 

We  may  regard  law,  whether  public  or  private,  as  consisting  of 
two  portions,  one  of  which,  called  substantive  law,  deals  with  rights, 
and  the  other,  called  adjective  law,  with  the  methods  by  which  sub- 
stantive law  is  administered.  For  instance,  the  law  of  contracts,  the 
law  of  torts,  the  law  of  trusts,  the  law  of  succession,  and  the  law  of 
landlord  and  tenant,  are  all  parts  of  the  substantive  portion  of  Pri- 
vate Law ;  while  the  rules  relating  to  the  procedure  by  which  the 
rights  under  those  several  branches  of  law  are  secured,  and  redress 
for  wrong  is  given,  are  called  Adjective  Law. 

The  Law  of  Torts  forms  a  part  of  the  substantive  portion  of  Pri- 
vate Law. 

9  The  defendant  had  made  a  false  affirmation  with  intent  to  defraud  the 
plaintiffs,  who  acted  upon  it  to  their  damaw.  The  plaintiffs'  actual  damage 
was  established.  There  was  no  evidence  that  the  defenilant  had  benetitcd  by 
his  deceit  or  had  colluded  with  those  who  had  received  a  benefit.  A  judg- 
ment tor  the  plaintiffs  was  sustained. 


8  INTRODUCTORY 

The  substantive  portion  of  private  law  comprises- -(1)  Rights  in 
rem,  or  riglits  as  against  all  the  world,  or  indeterminate  persons ; 
(2)  rights  arising  out  of  agreements  or  relations  between  two  or 
more  determinate  persons. 

Rights  in  rem  comprise  rights  of  (i)  person,  (ii)  reputation,  (iii) 
family  or  other  domestic  relations  (as  against  the  outside  world),  (iv) 
rights  to  the  due  performance  of  public  duties,  (v)  and  rights  in  ob- 
jects, privileges,  and  advantages. 

Rights  as  between  determinate  persons  arise  (a)  out  of  voluntary 
gifts  and  promises ;  out  of  assignments  not  voluntary ;  out  of  grants ; 
out  of  testamentary  dispositions ;  (b)  out  of  a  contract  (as  when  A. 
arranges  with  B.  that  B.  shall  do  a  certain  piece  of  work  for  him 
for  so  much  money) ;  (c)  out  of  family  relations  (as  between  one  mem- 
ber of  the  family  and  another) ;  (d)  out  of  fiduciary  relations ;  out 
of  trusts. 

A  tort  is  usually  said  to  be  "A  wrong  independent,  of  contract," 
i.  e.,  the  violation  of  a  right  independent  of  contract;  and  it  will  be 
seen  by  this  statement  that  the  rights,  of  which  a  tort  is  a  violation, 
are,  in  fact,  distinct  from  those  arising  out  of  contract.  But  they 
are  also,  as  will  be  seen,  distinct  from  a  vast  array  of  other  rights; 
so  that  the  usual  definition  is  as  defective  as  would  be  a  definition 
of  the  horse  as  "A  class  of   animal   independent  of  horned  cattle." 

Innes,  Principles  of  Torts  (1891)  3,  5,  6.- 


By  some  writers  a  tort  has  been  defined  as  the  violation  of  a  right 
in  rem,  giving  rise  to  an  obligation  to  pay  damages.  There  is  a 
tempting  simplicity  and  neatness  in  this  application  of  the  distinction 
between  rights  in  rem  and  in  personam,  but  it  may  be  gravely  doubted 
whether  it  does  in  truth  conform  to  the  actual  contents  of  the  English 
law  of  torts.  Most  torts  undoubtedly  are  violations  of  rights  in  rem, 
because  most  rights  in  personam  are  created  by  contract.  But  there 
are  rights  in  personam  which  are  not  contractual,  and  the  violation 
of  which,  if  it  gives  rise  to  an  action  for  damages,  must  be  classed 
as  a  tort.  The  refusal  of  an  innkeeper  to  receive  a  guest  is  a  tort, 
yet  it  is  merely  the  breach  of  a  noncontractual  right  in  personam.  So 
with  any  actionable  refusal  or  neglect  on  the  part  of  a  public  official 
to  perform  his  statutory  duties  on  behalf  of  the  plaintifif. 

John  W.  Salmond,  Jurisprudence  (1910)  437,  note. 


All  civilized  systems  agree  in  drawing  a  distinction  between  of- 
fenses against  the  State  or  Community  and  offenses  against  the  In- 
dividual, and  the  two  classes  of  injuries,  thus  kept  apart,  I  may  here, 
v.ithout  pretending  that  the  terms  have  always  been  employed  con- 
sistently in  jurisprudence,  call  Crimes  and  Wrongs,  crimina  and  dclic- 


TORTS    AND    OTHER    LEGAL   WRONGS  9 

ta.  Xow  the  penal  Law  of  ancient  communities  is  not  the  law  of 
Crimes ;  it  is  the  law  of  Wrongs,  or,  to  use  the  English  technical  word, 
of  Torts.  The  person  injured  proceeds  against  the  wrong-doer  by  an 
ordinary  civil  action,  and  recovers  compensation  in  the  shape  of  money 
damages  if  he  succeeds.  If  the  Commentaries  of  Gaius  be  opened  at 
the  place  where  the  writer  treats  of  the  penal  jurisprudence  founded 
on  the  Twelve  Tables,  it  will  be  seen  that  at  the  head  of  the  civil 
Wrongs  recognized  by  the  Roman  law  stood  Furtum  or  Theft. 
Offenses  which  we  are  accustomed  to  regard  exclusively  as  crimes 
are  exclusively  treated  as  torts  and  not  theft  only,  but  assault  and 
violent  robbery,  are  associated  by  the  jurisconsult  wath  trespass,  libel, 
and  slander.  *  *  *  jf^  therefore,  the  criterion  of  a  delict,  wrong, 
or  tort,  be  that  the  person  who  suffers  it,  and  not  the  state,  is  con- 
ceived to  be  wronged,  it  may  be  asserted  that  in  the  infancy  of  juris- 
prudence, the  citizen  depends  for  protection  against  violence  or 
fraud,  not  on  the  Law  of  Crime  but  on  the  Law  of  Tort. 
]\Iaine,  Ancient  Law  (1884)  357,  359. 


Torts  are  distinguished  in  the  modern  law  from  criminal  offences. 
In  the  mediaeval  period  the  procedure  whereby  redress  was  obtained 
for  many  of  the  injuries  now  classified  as  torts  bore  plain  traces 
of  a  criminal  or  quasi-criminal  character,  the  defendant  against  whom 
judgment  passed  being  liable  not  only  to  compensate  the  plaintiff,  but 
to  pay  a  fine  to  the  king.  Public  and  private  law  were,  in  truth,  but 
imperfectly  distinguished.  In  the  modern  law,  however,  it  is  settled 
that  a  tort,  as  such,  is  not  a  criminal  offence.  There  are  various  acts 
which  may  give  rise  to  a  civil  action  of  tort  and  to  a  criminal  pros- 
ecution, or  to  the  one  or  the  other  at  the  injured  party's  option;  but 
the  civil  suit  and  the  criminal  prosecution  belong  to  dift'erent  juris- 
dictions, and  are  guided  by  different  rules  of  procedure. 

Sir  Frederick  Pollock,  Law  of  Torts  (1904)  pp.  4,  5.^° 

10  See,  also,  Holland's  Jurisprudence,  319,  320:  "The  distinction  between 
those  wrongs  which  are  generically  called  'torts'  and  those  which  are  called 
'crimes'  may  at  first  sight  appear  to  be  a  fine  one.  The  same  set  of  circum- 
stances will,  in  fact,  from  one  point  of  view  constitute  a  tort,  while  from  an- 
other point  of  view  thej*  amount  to  a  crime.  In  the  case,  for  instance,  of 
assault,  the  right  violated  is  that  which  every  man  has  that  his  bodily  safety 
shall  be  respected,  and  for  the  wrong  done  to  this  right  the  sufferer  is  en- 
titled to  get  damages.  But  this  is  not  all.  The  act  of  violence  is  a  menace 
to  the  safety  of  society  generally,  and  will  therefore  be  punished  by  the  ^5tate. 
So  a  libel  is  said  to  violate  not  only  the  right  of  an  individual  not  to  be  de- 
famed, but  also  the  right  of  the  State  that  no  incentive  shall  be  given  to  a 
breach  of  the  peace.  It  is  sometimes  alleged  by  books  of  authoi'ity  that  the 
dift'erence  between  a  tort  and  a  crime  is  a  matter  of  procedure,  the  former 
being  redressed  by  the  civil,  while  tiie  latter  is  punished  by  the  criminal 
courts.  But  the  di-stinction  lies  deeper,  and  is  well  expressed  by  Blackstone, 
who  says  that  'torts  are  an  infringement  or  privation  of  the  private,  or  civil 
rights  belonging  to  individuals,  considered  as  individuals;  crimes  are  a, 
breach  of  public  rights  and  duties  which  afEect  the  whole  community,  con- 


10  INTRODUCTORY 

In  capital  causes,  in  favorem  vitae,  the  law  will  not  punish  in  so 
high  a  degree,  except  the  malice  of  the  will  and  the  intention  do  ap- 
pear; but  in  civil  trespasses  and  injuries  that  are  of  an  inferior 
nature,  the  law  doth  rather  consider  the  damage  of  the  party  wronged, 
than  the  malice  of  him  that  was  the  wrong-doer. 

And  therefore  the  law  makes  a  difference  between  killing  a  man 
upon  malice  forethought,  and  upon  a  present  heat:  but  if  I  give  a 
man  slanderous  words,  whereby  I  damnify  him  in  his  name  and  cred- 
it, it  is  not  material  whether  I  use  them  upon  sudden  choler  and  prov- 
ocation or  of  set  malice;  but  in  an  action  upon  the  case  I  shall 
render  damages  alike. 

So  if  a  man  be  killed  by  misadventure,  as  by  an  arrow  at  butts, 
this  hath  a  pardon  of  course:  but  if  a  man  be  hurt  or  maimed  only, 
an  action  of  trespass  lieth,  though  it  be  done  against  the  party's 
mind  and  will,  and  he  shall  be  punished  in  the  same  as  deeply  as  if 
he  had  done  it  of  malice. 

So  if  a  surgeon  authorized  to  practice  do,  through  negligence  in 
his  cure,  cause  the  party  to  die,  the  surgeon  shall  not  be  brought  in 
question  of  his  life ;  and  yet  if  he  do  only  hurt  the  wound,  whereby 
the  cure  is  cast  back  and  death  ensues  not,  he  is  subject  to  an  action 
upon  the  case  for  his  misfeasance. 

So  if  baron  and  feme  be,  and  they  commit  felony  together,  the 
feme  is  neither  principal  nor  accessory,  in  regard  of  her  obedience  to 
the  will  of  her  husband:  but  if  baron  and  feme  join  in  committing 
a  trespass  upon  land  or  otherwise,  the  action  may  be  brought  against 
them  both. 

So  if  an  infant  within  years  of  discretion,  or  a  madman,  kill  an- 
other, he  shall  not  be  impeached  thereof :  but  if  he  put  out  a  man's 
eye,  or  do  him  like  corporal  hurt,  he  shall  be  punished  in  trespass. 

Sir  Francis  Bacon,  Maxims  of  the  Law  (1596)  Regula  VII,  14 
Bacon's  Works  (Spedding's  Ed.)  219. 


The  distinction  of  public  wrongs  from  private,  of  crimes  and  misde- 
meanors from  civil  injuries,  seems  principally  to  consist  in  this:  that 
private  wrongs,  or  civil  injuries,  are  an  infringement  or  privation  of 
the  civil  rights  which  belong  to  individuals,  considered  merely  as  in- 
dividuals ;  public  wrongs,  or  crimes  and  misdemeanors,  are  a  breach 
and  violation  of  the  public  rights  and  duties  due  to  the  whole  com- 
munity, considered  as  a  community,  in  its  social  aggregate  capacity. 

sidered  as  a  community.'  The  right  wliirh  is  violated  by  a  tort  is  always  a 
dii'terent  ris^ht  rrom  that  which  is  violated  by  a  crime.  The  person  of  in- 
herence in  the  former  case  is  an  individual,  in  the  latter  case  the  State.  In 
a  French  criminal  trial  there  may  accordim^ily  appear  not  only  the  public 
prosecutor,  representing  the  State  and  demanding  the  punishment  of  the  of- 
fender, but  also  the  injured  individual,  as  '!':ntie  civile,'  asking  for  damages 
for  the  I0.S.S  Avhich  lie  has  ixjrsoually  sustained." 


TORTS    AND   OTHER   LEGAL    WRONGS  11 

As,  if  I  detain  a  field  from  another  man,  to  which  the  law  has  given 
him  a  right,  this  is  a  civil  injury,  and  not  a  crime;  for  here  only  the 
right  of  an  individual  is  concerned,  and  it  is  immaterial  to  the  public 
which  of  us  is  in  possession  of  the  land :  but  treason,  murder,  and 
robbery  are  properly  ranked  among  crimes ;  since,  besides  the  injury 
done  to  individuals,  they  strike  at  the  very  being  of  society,  which 
cannot  possibly  subsist  where  actions  of  this  sort  are  suffered  to  es- 
cape with  impunity. 

In  all  cases  the  crime  includes  an  injury:  every  public  offence  is 
also  a  private  wrong,  and  somewhat  more;  it  affects  the  individual, 
and  it  likewise  affects  the  community. ^^  Thus,  treason  in  imagining 
the  king's  death  involves  in  it  conspiracy  against  an  individual,  which 
is  also  a  civil  injury;  but,  as  this  species  of  treason,  in  its  conse- 
quences, principally  tends  to  the  dissolution  of  government,  and  the 
destruction  thereby  of  the  order  and  peace  of  society,  this  denominates 
it  a  crime  of  the  highest  magnitude.  Murder  is  an  injury  to  the  life 
of  an  individual ;  but  the  law  of  society  considers  principally  the 
loss  which  the  state  sustains  by  being  deprived  of  a  member,  and  the 
pernicious  example  thereby  set  for  others  to  do  the  like.  Robbery 
may  be  considered  in  the  same  view:  it  is  an  injury  to  private  proper- 

11  See  rx)rd  Mansfield's  opinion  in  Rex  v.  Wheatly  (1761)  2  Burr.  1126.  This 
was  an  indictment  against  a  brewer  for  fraudulently  delivering  "sixteen  gal- 
lons and  no  more"  of  beer  as  and  for  eighteen  gallons,  the  defendant  "then 
and  there  well  knowing  the  same  liquor  so  by  him  sold  and  delivered  to  want 
two  gallons  of  the  due  and  just  measure  as  aforesaid."  The  defendant  being 
convicted,  moved  in  arrest  of  judgment.  Lord  Mansfield :  "The  question  is, 
whether  the  fact  here  alledged  be  an  indictable  crime  or  not.  *  *  *  The 
offence  that  is  indictable  must  be  such  a  one  as  affects  the  public.  As  if  a 
man  uses  false  weights  and  measures  and  sells  by  them  to  all  or  to  many  of 
his  customers,  or  uses  them  in  the  general  course  of  his  dealing :  so,  if  a  man 
defrauds  another,  under  false  tokens.  For  these  are  deceptions  that  common 
care  and  prudence  are  not  sufficient  to  guard  against.  So,  if  there  be  a  con- 
spiracy to  cheat:  for  ordinary  care  and  caution  is  no  guard  against  this. 
Those  cases  are  much  more  than  mere  private  injuries:  they  are  public 
offences.  But  here,  it  is  a  mere  private  imposition  or  deception:  no  false 
weights  or  measures  are  used ;  no  false  tokens  given ;  no  conspiracy ;  only 
an  imposition  upon  the  person  he  was  dealing  with,  in  delivering  him  a  less 
quantity  instead  of  a  greater  which  the  other  carelessly  accepted.  It  is  only 
a  non-performance  of  his  contract:  for  which  non-performance,  he  may 
bring  his  action.  The  selling  an  unsound  horse,  as  and  for  a  sound  one,  is 
not  indictable:  the  buyer  should  be  more  upon  his  guard.  The  several  cases 
cited  are  alone  sufficient  to  prove,  that  the  offence  here  charged  is  not  an  in- 
dictable olTence.  But  besides  these,  my  brother  Denison  informs  me"  of  another 
case,  that  has  not  been  mentioned  at  the  Bar.  It  was  Mich.  Term,  6  Geo.  1, 
B.  R.  Rex  V.  Wilders,  a  Brewer:  he  was  indicted  for  a  cheat,  in  sending  in, 
to  Mr.  Hicks,  an  ale-house  keeper,  so  many  vessels  of  ale  marked  as  contain- 
ing such  a  measure,  and  writing  a  letter  to  Mr.  Hicks,  assuring  him  that  they 
did  contain  that  measure;  when  in  fact  they  did  not  contain  such  meas- 
ure, but  so  much  less,  etc.  This  indictment  was  quashed  on  argument,  ui>on 
a  motion:  which  is  a  stronger  case  than  the  present.  Therefore  the  law  is 
clearly  established  and  settled;  and  I  think  on  right  grounds:  but  on  what- 
ever grounds  it  might  have  been  originally  established,  yet  it  ought  to  be  ad- 
hered to,  after  it  is  established  and  settled.  Therefore  (though  I  may  be 
sorry  for  it  in  the  present  case,  as  circumstanced)  the  judgment  must  bo 
<ir  rested." 


12  INTRODUCTORY 

ty ;  but,  were  that  all,  a  civil  satisfaction  in  damages  might  atone  for 
it ;  the  public  mischief  is  the  thing  for  the  prevention  of  which  our 
laws  have  made  it  a  capital  offence.  In  these  gross  and  atrocious  in- 
juries the  private  wrong  is  swallowed  up  in  the  public:  we  seldom 
hear  any  mention  made  of  satisfaction  to  the  individual,  the  satisfac- 
tion to  the  community  being  so  very  great.  And  indeed,  as  the  public 
crime  is  not  otherwise  avenged  than  by  forfeiture  of  life  and  proper- 
ty, it  is  impossible  afterwards  to  make  any  reparation  for  the  private 
wrong,  which  can  only  be  had  from  the  body  or  goods  of  the  aggres- 
sor. But  there  are  crimes  of  an  inferior  nature,  in  which  the  public 
punishment  is  not  so  severe  but  it  affords  room  for  a  private  compen- 
sation also;  and  herein  the  distinction  of  crimes  from  civil  injuries 
is  very  apparent.  For  instance:  in  the  case  of  battery,  or  beating 
another,  the  aggressor  may  be  indicted  for  this  at  the  suit  of  the  king, 
for  disturbing  the  public  peace,  and  be  punished  criminally  by  fine  and 
imprisonment ;  and  the  party  beaten  may  also  have  his  private  remedy 
by  action  of  trespass  for  the  injury  which  he  in  particular  sustains, 
and  recover  a  civil  satisfaction  in  damages.  So  also,  in  case  of  a 
public  nuisance,  as  digging  a  ditch  across  a  highway :  this  is  punish- 
able by  indictment  as  a  common  offence  to  the  whole  kingdom  and 
all  his  majesty's  subjects;  but  if  any  individual  sustains  any  special 
damage  thereby,  as  laming  his  horse,  breaking  his  carriage,  or  the 
like,  the  offender  may  be  compelled  to  make  ample  satisfaction,  as 
well  for  the  private  injury  as  for  the  public  wrong. 

Upon  the  whole,  we  may  observe  that,  in  taking  cognizance  of  all 
wrongs  or  unlawful  acts,  the  law  has  a  double  view,  viz. :  not  only 
to  redress  the  party  injured  by  either  restoring  to  him  his  right,  if 
possible,  or  by  giving  him  an  equivalent,  *  *  *  j^^j^  ^jgQ  ^q  secure 
to  the  public  the  benefit  of  society,  by  preventing  or  punishing  every 
breach  and  violation  of  those  laws  which  the  sovereign  power  has 
thought  proper  to  establish  for  the  government  and  tranquillity  of  the 
whole. 

Sir  \Mlliam  Blackstone,  Commentaries  (1765)  bk.  4,  p.  5. 


The  distinction  between  civil  and  criminal  wrongs  depends  on  the 
nature  of  the  appropriate  remedy  provided  by  law.  A  civil  wrong  is 
one  which  gives  rise  to  civil  proceedings — proceedings,  that  is  to  say, 
which  have  as  their  purpose  the  enforcement  of  some  right  claimed 
by  the  plaintiff  as  against  the  defendant :  for  example,  an  action 
for  the  recovery  of  a  debt,  or  the  restitution  of  property,  or  for  the 
specific  performance  of  a  contract,  or  for  an  injunction  against  a 
threatened  injury,  or  for  the  recovery  of  damages  for  an  injury  com- 
mitted. Criminal  proceedings,  on  the  other  hand,  are  those  which 
have  for  their  object  the  punishment  of  the  defendant  for  some  act 
of  which  he  is  accused.     He  who  proceeds  civilly  is  a  claimant,  de- 


TORTS    AND    OTHER   LEGAL   WRONGS  13 

manding  the  enforcement  of  some  right  vested  in  himself;  he  who 
proceeds  criminally  is  an  accuser,  demanding  nothing  for  himself,  but 
merely  the  punishment  of  the  defendant  for  a  wrong  committed  by 
him. 

It  is  often  the  case  that  the  same  wrong  is  both  civil  and  criminal — 
capable  of  being  made  the  subject  of  proceedings  of  both  kinds.  As- 
sault, libel,  theft,  and  malicious  injury  to  property,  for  example,  are 
wrongs  of  this  kind.  Speaking  generally,  in  all  such  cases  the  civil 
and  criminal  remedies  are  not  alternative  but  concurrent,  each  being 
independent  of  the  other.  The  wrongdoer  may  be  punished  crimi- 
nally by  imprisonment  or  otherwise,  and  also  compelled  in  a  civil 
action  to  make  compensation  or  restitution  to  the  injured  person.^^ 

John  W.  Salmond,  Law  of  Torts  (1910)  1,  2. 


The  duty,  whatever  else  it  may  be,  is  a  duty  towards  our  neighbor. 
Breach  of  it  will  entitle  some  one  to  bring  an  action  for  redress.  An 
offence  punishable  by  the  State  may  not  create  any  such  private  right. 
If  it  does  not,  it  is  no  civil  wrong;  and  this  is  in  fact  the  case  with 
some  of  the  gravest  public  offences.  /^Iso  in  cases  of  tort  the  duty 
that  has  been  violated  is  general.  It  is  owed  either  to  all  our  fellow- 
subjects,  or  to  some  considerable  class  of  them,  and  it  is  fixed  by  the 
law  and  the  law  alone.  Here  lies  the  difference  between  civil  wrongs, 
properly  so  called,  and  breaches  of  contract.     It  is  not  right  to  break 

12  Frequently  the  tort  and  the  crime  bear  the  same  name,  yet  with  a  dif- 
ference. Compare,  for  instance,  the  crimes  of  "assault,"  "battery,"  "cham- 
perty,"' "conspiracy,"  "false  imprisomnent,"'  "libel,"  "nuisance,"  "trespass" 
(see  Mikell's  Cas.  Crim.  Law,  passim),  with  the  torts  of  the  same  name,  given 
infra. 

But  compare  the  following  cases,  in  wliich  substantially  the  same  act  was 
held  to  be  a  crime,  but  not  a  tort:  Deaton  v.  State  (1908)  53  Tex.  Cr.  R.  393. 
110  S.  W.  69.  and  Roliertson  v.  Edelstein  (1899)  104  Wis.  440,  80  N.  W.  725 
(D.  had  uttered  violent  and  abusive  hut  not  defamatory  language  of  P.). 

Compare  also  the  following,  in  which  substantially  the  same  act  was  held 
a  tort  but  not  a  crime: 

^^■hittington  v.  Gladwin  (1826)  5  B.  &  C.  29  R.  R.  211,  and  State  v.  McAr- 
thur  (1893)  5  Wa.sh.  558,  32  Pac.  367  (D.  had  orallv  imputed  insolvency  to  P.) 

Beach  \.  Hancock  (1853)  27  N.  H.  223,  59  Am.  Dec.  373,  and  Chapman  v. 
State  a8.S4)  78  Ala.  403,  Mikell's  Cas.  Crim.  Law  296  (D.  had  pointed  at  P., 
in  a  threatening  manner  and  within  .shooting  distance,  a  gun  which  D.  knew, 
but  P  did  not  know  to  be  unloaded).  But  see,  also,  State  v.  Shepard  (1859) 
10  Iowa.  126;  Com.  v.  White  (1813)  110  Mass.  409;  State  v.  Smith  (1841)  2 
Humph.  (Tenn.)  457 — where  the  act  was  deemed  a  crime. 

Garrett  v.  State  (1906)  49  Tex.  Cr.  R.  235,  91  S.  W.  577,  and  Baseley  v. 
Clarkson  (1681)  3  Lev.  37  (D.  had  inadvertently  entered  upon  the  prem- 
ises of  P.). 

Malcom  v.  Spoor  (1847)  12  Mete.  (Mass.)  279.  46  Am.  Dec.  675,  and  Milton 
V.  State  (1S9S)  40  Fla.  251.  24  South.  60,  Mikell's  Uas.  Crim.  Law  186  (D.,  an 
officer,  after  entering  P.'s  property  by  authority  of  the  law.  almsed  th(»  lib- 
erty which  the  law  gave  him:  held,  a  tort  [trespass  ab  initio]  but  not  a 
crime). 


14  INTRODUCTORY 

one's  contract,  though  in  cases  of  honest  error  due  to  the  parties' 
intentions  not  being  clearly  expressed  or  otherwise,  or  of  innocent  dis- 
ability preventing  performance,  there  may  be  legal  liability  without 
any  moral  blame.  But  breach  of  contract,  wilful  or  not,  is  the  breach 
of  duties  which  the  parties  have  fixed  for  themselves.  Duties  under 
a  contract  may  have  to  be  interpreted  or  supplemented  by  artificial 
rules  of  law,  but  they  cannot  be  superseded  while  there  is  any  contract 
in  being.  The  duties  broken  by  the  commission  of  civil  wrongs  are 
fixed  by  law,  and  independent  of  the  will  of  parties;  and  this  is  so 
even  where  they  arise  out  of  circumstances  in  which  the  responsible 
party's  own  act  has  placed  him.  Again,  these  general  duties  are  dif- 
ferent in  other  important  respects  from  those  which  arise  out  of  the 
domestic  relations,  although  they  agree  with  them  in  not  depending 
on  the  will  of  the  parties.  For  the  mutual  duties  of  husband  and  wife, 
parents  and  children,  and  the  like,  are  strictly  personal,  and  moreover 
only  part  of  them  can  be  or  is  dealt  with  at  all  by  positive  rules  of 
law.  Down  to  modern  times  they  were  regarded  in  this  country  as 
not  belonging  to  the  ordinary  jurisdiction  of  temporal  courts;  marital 
and  parental  authority  were  incidentally  recognised  but  matrimony 
and  matrimonial  causes  were  "spiritual"  matters. 

Sir  Frederick  Pollock,  The  Law  of  Torts  (7th  Ed.)  2. 


No  civil  wrong  is  a  tort,  if  it  is  exclusively  the  breach  of  a  con- 
tract. The  law  of  contracts  stands  by  itself,  as  a  separate  department 
of  our  legal  system,  over  against  the  law  of  torts ;  and  to  a  large 
extent  liability  for  breaches  of  contract  and  liability  for  torts  are 
governed  by  different  principles.  It  may  well  happen,  however,  that 
the  same  act  is  both  a  tort  and  a  breach  of  contract,  and  this  is  so  in 
at  least  two  classes  of  cases. 

(a)  The  first  and  simplest  of  these  is  that  in  which  a  man  under- 
takes by  contract  the  performance  of  a  duty  which  lies  on  him  already, 
independently  of  any  contract.  Thus  he  who  refuses  to  return  a  bor- 
rowed chattel  commits  both  a  breach  of  contract  and  also  the  tort 
known  as  conversion:  a  breach  of  contract,  because  he  promised  ex- 
pressly or  impliedly  to  return  the  chattel;  but  not  merely  a  breach 
of  contract,  and  therefore  also  a  tort,  because  he  would  have  been 
equally  liable  for  detaining  another  man's  property,  even  if  he  had 
made  no  such  contract  at  all. 

(b)  The  second  class  of  cases  is  one  which  involves  considerable 
difficulty,  and  the  law  on  this  point  cannot  yet  be  said  to  have  been 
thoroughly  developed.  In  certain  instances  the  breach  of  a  contract 
made  with  one  person  creates  liability  towards  another  person,  who 
is  no  party  to  the  contract.  It  is  a  fundamental  principle,  indeed,  that 
no  person  can  sue  on  an  obligatio  ex  contractu,  except  a  party  to  the 


TORTS    AND   THE    COMMON    LAW    ACTION    FOR   DAMAGES  15 

contract;  nevertheless  it  sometimes  happens  that  one  person  can  sue 
ex  delicto  for  the  breach  of  a  contract  which  was  not  made  with  him, 
but  from  the  breach  of  which  he  has  suffered  unlawful  damage.  That 
is  to  say  a  man  may  take  upon  himself,  by  a  contract  with  A.,  a  duty 
which  does  not  already  or  othenvise  rest  upon  him,  but  which, 
when  it  has  once  been  undertaken,  he  cannot  break  without  doing  such 
damage  to  B.,  a  third  person,  as  the  law  deems  actionable.  Thus,  if 
X.  lends  his  horse  to  Y.,  who  delivers  it  to  Z.,  a  livery  stablekeeper, 
to  be  looked  after  and  fed,  and  the  horse  is  injured  or  killed  by  in- 
sufficient feeding,  presumably  Z.  is  liable  for  this,  not  only  in  con- 
tract to  Y.,  but  also  in  tort  to  X.,  the  owner  of  the  horse.  It  is  true 
that,  apart  from  his  contract  with  Y.,  Z.  was  under  no  obligation  to 
feed  the  animal ;  apart  from  the  contract,  this  was  a  mere  omission 
to  do  an  act  which  he  was  not  bound  to  do.  Yet  having  taken  this 
duty  upon  himself,  he  has  thereby  put  himself  in  such  a  situation  that 
he  cannot  break  the  duty  without  inflicting  on  the  owner  of  the  horse 
damage  of  a  kind  which  the  law  deems  wrongful.  The  oniission  to 
feed  the  horse,  therefore,  although  a  breach  of  contract,  is  not  ex- 
clusively such,  and  is  therefore  a  tort,  inasmuch  as  it  can  be  sued  on 
by  a  person  who  is  no  party  to  the  contract. 
John  W.  Salmond,  Jurisprudence  (3d  Ed.)  436. 


IV 

TORTS  AND  THE  COMMON  LAW  ACTION  FOR  DAMAGES 


No  civil  injury  is  to  be  classed  as  a  tort  unless  the  appropriate  rem- 
edy for  it  is  an  action  for  damages.  Such  an  action  is  an  essential 
characteristic  of  every  true  tort.  *  *  *  No  civil  injury  is  to  be 
classed  as  a  tort  if  it  is  merely  a  breach  of  trust  or  a  breach  of  some 
other  merely  equitable  obligation.  The  reason  of  this  exclusion  is 
historical  only.  The  law  of  torts  is  in  its  origin  a  part  of  the  com- 
mon law,  as  distinguished  from  equity,  and  .it  was  unknown  to  the 
Court  of  Chancery.  Wrongs,  therefore,  such  as  breach  of  trust,  which 
fell  exclusively  within  the  jurisdiction  of  that  court,  stand  outside  the 
category  of  tort,  and  are  governed,  just  as  the  breach  of  contract  is, 
by  a  body  of  special  rules  differing  in  sundry  respects  from  those 
which  have  been  developed  by  the  common  law  of  torts.  And  although 
at  the  present  day  the  difference  between  equitable  and  common-law 
jurisdiction  has  disappeared,  it  is  still  requisite  to  preserve  the  mem- 
ory of  it  in  defining  the  limits  of  the  law  of  torts. 

John  W.  Salmond,  Law  of  Torts  (1910)  2,  5,  6. 


16  INTRODUCTORY 

The  body  of  the  act  provides  that  "a  married  woman  may  maintain 
an  action  in  her  own  name,  and  without  joining  her  husband  therein, 
lor  all  torts  committed  against  her,  or  her  separate  property,  in  the 
same  manner  as  she  lawfully  might  if  a  feme  sole."  **--;:  'pj-^g 
word  "torts"  in  legal  phraseology  has  a  well-defined  meaning.  It 
does  not  include  all  wrongful  acts  done  by  one  person  to  the  injury 
of  another,  but  only  those  for  which  individuals  may  demand  legal 
redress ;  or,  stated  in  another  way,  those  which  give  rise  to  an  action 
for  damages.  Cooley  on  Torts,  p.  2;  Add.  on  Torts,  p.  3.  Substitut- 
ing the  definition  of  the  word  in  place  of  the  word  itself,  the  statute 
provides  that  a  married  woman  may  maintain  an  action  in  her  own 
name,  and  without  joining  her  husband  therein,  for  all  wrongful  acts 
which  give  rise  to  an  action  for  damages  committed  against  her  or  her 
separate  property,  in  the  same  manner  as  she  lawfully  might  if  a 
feme  sole.  In  our  judgment  no  legislative  intent  is  to  be  perceived, 
either  in  the  title  of  this  act  or  in  its  body,  to  confer  upon  a  married 
woman  any  right  of  action  which  did  not  exist  previous  to  its  enact- 
ment.    The  defendants  are  entitled  to  judgment  upon  the  demurrer. 

Gummere,  J.,  in  Sims  v.  Sims  (1909)  17  N.  J.  Law,  251,  72  Atl.  424.^^ 


In  addition  to  the  remedy  by  action  for  damages  in  respect  of  torts 
which  have  actually  been  committed,  there  is,  in  certain  cases,  an  ancil- 
lary remedy  by  way  of  injunction  to  prevent  the  commission  of  torts 
which  are  threatened  or  anticipated,  or  in  cases  of  continuing  injuries 
to  restrain  their  continuance. 

The  principle  upon  which  such  injunction  is  granted  is  that  the 
injury,  if  suffered  to  be  inflicted,  v/ould  be  of  such  a  character  that 
the  plaintiff  could  not  practically  be   compensated   in   damages.     In 

13  Delivering  tlie  opinion  of  the  Supreme  Court,  77  N.  J.  Law,  251,  72  Atl. 
424.  Tlie  action  was  by  a  married  woman  for  the  alienation  of  her  hus- 
band's affections.  The  plaintiff  liased  her  right  to  sue  upon  the  statute  (pioted 
in  the  text.  On  error  (79  N.  J.  Law,  577,  76  Atl.  106.3,  29  L.  R.  A.  [N.  S.]  842) 
the  judgment  of  the  Supreme  Court  was  reversed,  the  Court  of  Errors  and 
Appeals  holding  that  the  wife  had  at  common  law  a  legal  right  in  such  a 
case  but  that  a  rule  of  common  law  procedure  stood  in  the  way  of  its  enforce- 
ment by  her,  and  that  th^  statute  merely  removed  this  obstacle. 

Compare  the  ratio  decidendi  of  this  case  aiid  the  following  definitions  or 
descriptions  of  a  tort,  found  in  standard  treatises  of  to-day: 

(1)  "A  tort  may  be  described  as  a  wrong  independent  of  contract,  for  which 
the  appropriate  remedy  is  a  common-law  action."  Clerk  &  Lindsell,  Law  of 
Torts  (1906)  1. 

(2)  "A  tort  may  be  said  to  be  a  breach  of  duty  established  by  municipal 
law  for  which  a  suit  for  damages  can  be  maintained."  Bigelow,  Law  of  Torts 
(1907)  64. 

(3)  "A  tort  is  an  act  or  omission  which  unlawfully  violates  a  person's  right, 
created  by  the  law,  and  for  which  the  appropriate  remedy  is  a  common-law 
action  for  damages  by  the  injured  person."     Burdick,  Law  of  Torts  (lOOS)  11. 

(4)  "A  tort  is  a  bx'each  of  duty  (other  than  a  contractual  or  quasi  con- 
tractual duty)  creating  an  obligation,  and  giving  rise  to  au  action  for  dam- 
ages."   J.  C.  Miles,  Dig.  Eng.  Civ.  Law  (190S)  §  722. 


TORTS    AND   THE    COMMON    LAW    ACTION    FOR    DAMAGES  17 

some  cases  the  injunction  takes  a  mandatory  form,  where  the  defend- 
ant has  created  a  permanent  source  of  injury,  such  as  the  erection  of 
a  building  to  the  nuisance  of  the  plaintiff's  lights  or  to  the  obstruction 
of  his  right  of  way,  and  orders  him  to  restore  the  plaintiff'  to  his 
right  by  removing  the  offending  building  or  other  source  of  damage. 
Clerk  and  Lindsell,  Law  of  Torts  (1906)  783. 


In  Edward  Fs  day,  at  the  end  of  the  thirteenth  century,  three  great 
courts  have  come  into  existence,  the  King's  Bench,  the  Common  Bench 
or  Court  of  Common  Pleas  and  the  Exchequer.  Each  of  these  has 
its  own  proper  sphere,  but  as  time  goes  on  each  of  them  attempts  to 
extend  its  sphere  and  before  the  middle  ages  are  over  a  plaintiff  has 
often  a  choice  between  these  three  courts  and  each  of  them  will  deal 
with  his  case  in  the  same  way  and  by  the  same  rules.  The  law  which 
these  courts  administer  is  in  part  traditional  law,  in  part  statute  law. 
Already  in  Edward  I's  day  the  phrase  "common  law"  is  current.  It 
is  a  phrase  that  has  been  borrowed  from  the  canonists — who  used  "jus 
commune"  to  denote  the  general  law  of  the  Catholic  Church  ;  it  de- 
scribes that  part  of  the  law  that  is  unenacted,  non-statutory,  that  is 
common  to  the  whole  land  and  to  all  Englishmen.  It  is  contrasted  with 
statute,  with  local  custom,  with  royal  prerogative.  It  is  not  as  yet 
contrasted  with  equity,  for  as  yet  there  is  no  body  of  rules  which 
bears  this  name. 

One  of  the  three  courts,  namely,  the  Exchequer,  is  more  than  a 
court  of  law.  From  our  modern  point  of  view  it  is  not  only  a  court 
of  law  but  a  "government  office,"  an  administrative  or  executive 
bureau  ;  our  modern  Treasury'  is  an  offshoot  from  the  old  Exchequer. 
What  we  should  call  the  "civil  service"  of  the  country  is  transacted 
by  two  great  offices  or  "departments" ;  there  is  the  Exchequer  which 
is  the  fiscal  department,  there  is  the  Chancery  which  is  the  secretarial 
department,  while  above  these  there  rises  the  king's  permanent  Council. 
At  the  head  of  the  Chancery  stands  the  Chancellor,  usually  a  bishop ; 
he  is  we  may  say  the  king's  secretary  of  state  for  all  departments,  he 
keeps  the  king's  great  seal  and  all  the  already  great  mass  of  writing 
that  has  to  be  done  in  the  king's  name  has  to  be  done  under  his  super- 
vision. 

He  is  not  as  yet  a  judge,  but  already  he  by  himself  or  his  subor- 
dinates has  a  great  deal  of  work  to  do  which  brings  him  into  a  close 
connexion  with  the  administration  of  justice.  One  of  the  duties  of 
that  great  staff  of  clerks  over  which  he  presides  is  to  draw  up  and 
issue  those  writs  whereby  actions  are  begun  in  the  courts  of  law — 
such  writs  are  sealed  with  the  king's  seal.  A  man  who  wishes  to 
begin  an  action  must  go  to  the  Chancery  and  obtain  a  writ.  Many 
writs  there  are  which  have  been  formulated  long  ago;  such  writs 
Hepb.Tobts — 2 


18  INTRODUCTORY 

are  writs  of  course  (brevia  de  cursu),  one  obtains  them  by  asking  for 
them  of  the  clerks — called  Cursitors — and  paying  the  proper  fees.  But 
the  Chancery  has  a  certain  limited  power  of  inventing  new  writs  to 
meet  new  cases  as  they  arise.  That  power  is  consecrated  by  a  famous 
clause  of  the  Second  Statute  of  Westminster  authorising  writs  "in 
consimili  casu."  Thus  the  Chancellor  may  often  have  to  consider 
whether  the  case  is  one  in  which  some  new  and  some  specially  worded 
writ  should  be  framed.  This  however  is  not  judicial  business.  The 
Chancellor  does  not  hear  both  sides  of  the  story,  he  only  hears  the 
plaintiff's  application,  and  if  he  grants  a  writ  the  courts  of  law  may 
afterwards  quash  that  writ  as  being  contrary  to  the  law  of  the  land. 

But  by  another  route  the  Chancellor  is  brought  into  still  closer  con- 
tact with  the  administration  of  justice.  Though  these  great  courts 
of  law  have  been  established  there  is  still  a  reserve  of  justice  in  the 
king.  Those  who  can  not  get  relief  elsewhere  present  their  petitions 
to  the  king  and  his  council  praying  for  some  remedy.  Already  by 
the  end  of  the  thirteenth  century  the  number  of  such  petitions  pre- 
sented in  every  year  is  very  large,  and  the  work  of  reading  them  and 
considering  them  is  very  laborious.  In  practice  a  great  share  of  this 
labour  falls  on  the  Chancellor.  He  is  the  king's  prime  minister,  he 
is  a  member  of  the  council,  and  the  specially  learned  member  of  the 
council.  It  is  in  dealing  with  these  petitions  that  the  Chancellor  begins 
to  develop  his  judicial  powers.     *     *     * 

We  ought  not  to  think  of  common  law  and  equity  as  of  two  rival 
systems.  Equity  was  not  a  self-sufficient  system,  at  every  point  it  pre- 
supposed the  existence  of  conunon  law.  Common  law  was  a  self-suffi- 
cient system.  I  mean  this :  that  if  the  legislature  had  passed  a  short  act 
saying  "Equity  is  hereby  abolished,"  we  might  still  have  got  on  fairly 
well;  in  some  respects  our  law  would  have  been  barbarous,  unjust, 
absurd,  but  still  the  great  elementary  rights,  the  right  to  immunity 
from  violence,  the  right  to  one's  good  name,  the  rights  of  ownership 
and  of  possession  would  have  been  decently  protected  and  contract 
would  have  been  enforced.  On  the  other  hand  had  the  legislature 
said,  "Common  law  is  liereby  abolished,"  this  decree  if  obeyed  would 
have  meant  anarchy.  At  every  point  equity  presupposed  the  existence 
of  common  law.  Take  the  case  of  the  trust.  It's  of  no  use  for  Equity 
to  say  that  A  is  a  trustee  of  Blackacre  for  B,  unless  there  be  some 
court  that  can  say  that  A  is  the  owner  of  Blackacre.  Equity  without 
common  law  would  have  been  a  castle  in  the  air,  an  impossibility. 
V  For  this  reason  I  do  not  think  that  any  one  has  expounded  or  ever 
will  expound  equity  as  a  single,  consistent  system,  an  articulate  body 
of  hnv.  It  is  a  collection  of  appendixes  between  which  there  is  no 
very  close  connexion.  If  we  suppose  all  our  law  put  into  systematic 
order,  we  shall  find  that  some  chapters  of  it  have  been  copiously  gloss- 
ed by  equity,  while  others  are  quite  free  from  equitable  glosses.  Since 
the  destruction  of  the  Star  Chamber  we  have  had  no  criminal  equity. 
The  Court  of  Chancery  kept  very  clear  of  the  province  of  crime,  and 


TORTS    AND   THE    COMMON   LAW    ACTION   FOR    DAMAGES  19 

since  the  province  of  crime  and  the  province  of  tort  overlap,  it  kept 
very  clear  of  large  portions  of  the  province  of  tort.  For  example, 
before  1875  it  would  grant  no  injunction  to  restrain  the  publication  of 
a  libel,  for  normally  the  libel  which  is  a  tort  is  also  a  crime  and  it  was 
thought,  and  rightly  thought,  that  such  a  matter  should  not  be  brought 
before  a  court  where  a  judge  without  any  jury  tried  both  fact  and  law. 
Indeed  if  you  will  look  at  your  books  on  tort  you  will  find  that  on  the 
whole — if  we  except  the  province  of  fraud — equity  has  had  little  to 
do  with  tort,  though  it  has  granted  injunctions  to  restrain  the  com- 
mission of  nuisances  and  the  like.  The  law  of  contract  has  been 
more  richly  provided  with  equitable  appendixes.  The  power  of  the 
Chancery  to  compel  specific  performance,  and  its  power  to  decree  the 
cancellation  or  rectification  of  agreements  brought  numerous  cases 
of  contract  before  it,  and  then  it  had  special  doctrines  about  mort- 
gages, and  penalties,  and  stipulations  concerning  time.  Pro}>erty  law 
was  yet  more  richly  glossed.  One  vast  appendix  was  added  to  it  under 
the  title  of  trusts.  The  bond  which  kept  these  various  appendixes 
together  under  the  head  of  Equity  was  the  jurisdictional  and  procedural 
bond.  All  these  matters  were  within  the  cognizance  of  courts  of 
equity,  and  they  were  not  within  the  cognizance  of  the  courts  of  com- 
mon law.  That  bond  is  now  broken  by  the  Judicature  Acts.  Instead 
of  it  we  find  but  a  mere  historical  bond — "these  rules  used  to  be 
dealt  with  by  the  Court  of  Chancery" — and  the  strength  of  that  bond 
is  being  diminished  year  by  year.  The  day  will  come  when  lawyers 
will  cease  to  inquire  whether  a  given  rule  be  a  rule  of  equity  or  a 
rule  of  common  law:  suffice  it  that  it  is  a  well-established  rule  ad- 
ministered by  the  High  Court  of  Justice.     >f=     *     * 

A  very  large  part  of  the  whole  province  of  Tort  is  a  proper  field 
for  the  injunction.^*  I  should  say  that  the  only  torts  which  lie  out- 
side the  field  of  injunctions  are  assault  and  battery,  false  imprison- 
ment, and  malicious  prosecution.  I  do  not  think  that  an  injunction 
has  been  used  or  could  be  used  to  prevent  these  torts,  which  if  they 
be  torts  will  also  at  least  in  most  cases  be  crimes.  Here  there  are 
other  remedies.  If  you  go  in  fear  of  a  man  you  can  have  him  bound 
over  to  keep  the  peace,  while  if  you  are  wrongfully  imprisoned  the 
writ  of  habeas  corpus  with  its  rapid  procedure  should  serve  your 
turn.  A  civil  court,  again,  must  not  prohibit  a  man  from  instituting 
criminal  proceedings.  The  Attorney-General's  nolle  prosequi  should 
be  a  sufficient  preventive  check  on  criminal  proceedings  of  an  obviously 
vexatious  kind.  But  with  these  exceptions  it  would  be  hard  to  find 
a  tort  which  might  not  in  a  given  case  be  a  proper  subject  for  an  in- 
junction. Of  libel  I  have  already  spoken,  and  something  I  have 
said  of  trespass  and  of  waste.     It  was  the  Chancery's  power  of  is- 

1*  In  the  thirteenth  edition  of  Story's  Equity  Jurisprudence,  §  87.3  (ISSG),  the 
following  are  enumerated  among  tbe  principal  objects  of  an  injiniorion:  '"To 
restrain  waste,  to  restrain  nuisances,  to  restrain  trespasses,  and  to  prevent 
other  irreparable  mischiefs." 


20  INTRODUCTORY 

suing  injunctions  against  acts  of  waste  that  begot  the  doctrine  of 
equitable  waste.  Sometimes  the  Chancery  would  give  an  injunction 
against  waste  for  which  a  Court  of  Law  would  give  no  damages. 
Nuisance  is  a  fertile  field,  so  is  the  infringement  of  copyright,  of 
patents,  of  trade  marks.  Indeed  there  are  many  rights  which  are 
chielly,  though  not  solely,  protected  by  an  injunction — the  remedy  by 
action  for  damages  being  but  a  poor  one.  Damages  and  injunction  are 
not,  you  will  understand,  alternative  remedies — in  old  times  you 
could  get  the  one  from  the  Courts  of  Common  Law,  the  other  from 
the  Court  of  Equity;  now-a-days  you  may  well  get  both  from  the 
same  court,  the  same  division  of  the  court  in  the  same  action,  dam- 
ages to  compensate  you  for  wrong  suffered,  and  an  injunction  to  pre- 
vent a  continuance  of  the  wrong,  it  may  be  a  mandatory  injunction 
to  prevent  the  continued  existence  of  a  wrongful  state  of  things. 
But  while  the  remedy  by  damages  is  a  matter  of  strict  right,  the 
remedy  by  injunction  is  not.  This  is  best  seen  by  referring  to  the 
cases  in  which  a  plaintiff  can  recover  nominal  damages.  He  has  not 
really  been  hurt;  he  has  not  been  made  the  poorer;  but  still  his 
rights  have  been  infringed  and  the  court  pronounces  a  judgment  in 
his  favour.  But  the  court  will  not  interfere  by  injunction  where  the 
tort  complained  of,  though  a  tort,  is  one  which  does  no  real  damage, 
and  it  will  not  interfere  by  injunction  if  damages  will  clearly  be  an 
adequate  remedy.  Then  again  it  may  consider  the  plaintiff's  conduct, 
and  in  particular  any  delay  of  his  in  bringing  the  action.  To  an  action 
for  damages  delay  is  no  defence  unless  the  case  has  been  brought 
within  one  of  the  Statutes  of  Limitation.  Either  the  plaintiff  still  is 
entitled  to  the  remedy  or  it  has  been  taken  from  him  by  a  statute,  and 
you  can  fix  the  precise  moment  of  time  at  which  the  statute  takes 
effect — one  moment  he  has  a  remedy,  the  next  moment  he  has  none. 
It  is  not  so  with  the  injunction;  the  court  may  well  hold  for  example 
that  my  neighbour  must  pay  me  damages  for  having  blocked  out  light 
from  my  ancient  windows,  and  yet,  as  I  stood  by  and  let  him  build, 
it  would  be  inequitable  to  compel  him  to  pull  down  his  wall.  Es- 
pecially when  a  mandatory  injunction  is  to  be  sought,  the  plaintiff 
must  at  once  take  action  and  prosecute  his  action  diligently.  The 
court,  it  is  said,  in  granting  a  mandatory  injunction  may  look  at  the 
balance  of  convenience.  The  defendant  is  by  supposition  in  the  wrong, 
but  on  the  whole  and  considering  the  conduct  of  both  parties,  shall 
we  not  be  inflicting  on  him  more  harm  than  he  deserves  if  we.  compel 
him  to  pull  down  his  wall  ? 

F.  W.  Maitland,  Equity,  2,  19,  261  (1910).* 


♦The  "province  of  Tort  as  a  proper  field  for  the  injunction"  is  developed  in 
Chapter  IV.  pases  71).S-1136,  "Injunction  in  Relation  to  Torts,"  in  Professor 
Boke's  Cases  on  E(]uity. 


CLASSIFICATION    OF   TORTS  21 

V 

CLASSIFICATION  OF  TORTS 


The  older  books  treat  the  different  specific  torts  under  the  heads  of 
the  different  forms  of  action.  Our  present  doctrine  is  apparently 
coming  to  a  view  of  torts  as  an  individual  branch  of  the  law,  but  it 
has  not  yet  settled  upon  a  general  principle  of  division  applicable  to  all 
specific  torts.  As  a  result,  the  current  classifications  of  torts  are  many 
and  varied.  But  since  the  broad  generalization  by  Mr.  Justice  Black- 
burn, in  Fletcher  v.  Rylands,  L.  R.  1  Ex.  265,  when  that  famous  case 
was  in  the  Exchequer-Chamber,  nearly  a  half  century  ago,  there  has 
been  authority  for  a  distribution  of  torts  into  two  main  categories.  The 
characteristic  of  the  torts  in  the  first  category  is  that  the  duty  which  the 
law  casts  upon  the  defendant  is  an  absolute  duty  to  do  or  to  refrain 
from  doing  a  certain  thing.  Here  the  defendant's  act  is  an  act  at 
peril — an  act  of  absolute  liability.  The  plaintiff's  prima  facie  cause 
is  complete  with  a  showing  of  the  defendant's  act,  except  that  in  some 
cases,  although  not  regularly  in  the  older  torts  in  this  class,  actual 
damage  resulting  from  the  act  must  be  shown. 

In  the  second  class  the  defendant's  liability  does  not  turn  on  the 
mere  question  whether  he  has  done  or  omitted  to  do  a  certain  thing. 
The  defendant  may  have  acted,  and  harm  may  have  come  to  the 
plaintiff  as  the  proximate  result  of  this  act,  but  his  prima  facie  cause 
is  not  complete  unless  something  further  appears  in  the  defendant's 
act. 

The  nature  and  extent  of  this  additional  element  are  not  yet  fully 
determined.  Perhaps,  all  its  aspects  cannot  be  exactly  marked  until 
the  doctrine  of  torts  has  ceased  to  grow.  But  in  general,  as  the  cases 
now  stand,  the  torts  which  turn  upon  an  act  of  conditional  liability 
show  two  markedly  different  classes,  first,  torts  in  which  the  plaintiff', 
in  order  to  show  a  prima  facie  case,  must  allege  and  prove  negligence 
on  the  part  of  the  defendant,  and,  secondly,  torts  in  which,  to  show 
his  prima  facie  case,  the  plaintiff  must  allege  and  prove  an  act,  in 
some  form,  of  intentional  harm  by  the  defendant. 

The  classification  then  which  will  be  used  in  the  following  pages, 
as  a  setting  for  the  cases  on  the  elements  of  the  specific  torts,  will  be 
primarily  two-fold:  (1)  Torts  through  Acts  of  Absolute  Liability; 
(2)  Torts  through  Acts  of  Conditional  Liability.  The  torts  within  the 
first  category  fall  into  various  groups  which  may  be  roughly  classified 
as  Trespasses  and  Absolute  Torts  other  than  Trespasses.  The  sec- 
ond  category   has   the   two   main   divisions   already   indicated.    Torts 


22  INTRODUCTORY 

through  NegHgence,  and  Torts  through  Act  of  Intentional  Harm.^' — 
[Ed. 

15  See  Holland's  Elements  of  Jurisprudence  (10th  Ed.,  1906)  320,  where 
five  different  principles  for  the  classitication  of  wrongs  are  sugj^esfed.  anil 
Halsbury's  Laws  of  England  (11)18)  vol.  27,  p.  472.  Working  classifications 
will  be  found  in  Pollock  on  Torts  (8th  Ed.)  7;  Clerk  &  Lindsell's  Law  of 
Tort^  (3d  Ed.)  7:  Bigelow  on  Torts  (8th  Ed.)  35;  Jaggard  on  Torts,  107. 
«ee,  also,  Mr.  Justice  Holmes'  early  article  on  "The  Theory  of  Torts"  (1873) 
7  Am.  Law.  Rev.  652.  663,  afterwards  developed  in  "The  Common  Law"  (1881); 
Piggotfs  Law  of  Toi-ts  (1885)  382;  luues'  I'rinciples  of  the  Law  of  Torts 
(ISiJl)  xxxii,  p.  146;  Wigmore's  General  Analysis  of  Tort  Relations  (1895)  8 
Ilarv.  Law  Rev.  377;    Salraond's  Jurisprudence  (1910)  339. 

In  Fletcher  v.  Rylands  the  question  was  put  in  this  form :  "The  plaintiff, 
though  free  from  all  blame  on  his  part,  must  bear  the  loss,  unless  he  can  es- 
tablish that  it  was  the  consequence  of  some  default  for  which  the  defendants 
are  responsible.  The  question  of  law  therefore  arises,  what  is  the  obligation 
which  the  law  easts  on  a  person  who,  like  the  defendants,  lawfully  brings  on 
his  land  something  which,  though  harmless  whilst  it  remains  there,  will 
naturally  do  mLschief  if  it  escape  out  of  his  land.  It  is  agreed  on  all  hands 
that  he  must  take  care  to  keep  in  that  which  he  has  brought  on  the  land  and 
keeps  there,  in  order  that  it  may  not  escape  and  damage  his  neighbors,  but 
the  question  arises  whether  the  duty  which  the  law  casts  upon  him,  under 
such  circumstances,  is  an  absolute  duty  to  keep  it  in  at  his  peril,  or  is,  as 
the  majority  of  the  Court  of  Exchequer  have  thought,  merely  a  duty  to  take 
all  reasonable  and  prudent  precautions,  in  order  to  keep  it  in,  but  no  more. 
If  the  first  be  the  law,  the  person  who  has  brought  on  his  land  and  kept 
there  something  dangerous,  and  failed  to  keep  it  in,  is  responsible  for  all  the 
natural  consequences  of  its  escape.  If  the  second  be  the  limit  of  his  duty, 
he  would  not  be  answerable  except  on  proof  of  negligence,  and  consequently 
would  not  be  answerable  for  escape  arising  from  any  latent  defect  which 
ordinary  piiidence  and  skill  could  not  detect."  Per  Blackburn,  J.,  Fletcher  v. 
Rylands  (1866)  L.  R.  1  Ex,  265,  279. 


PART  I 

TORTS  THROUGH  ACTS  OF  ABSOLUTE  LIABILITY 


CHAPTER  I 
TRESPASSES 


SECTION  1.— TRESPASSES  IN  GENERAL 
I.  Historical 


With  the  punishable  offence  we  contrast  the  "tort"  which  gives 
rise  to  a  civil  action,  though  the  tort  may  also  be,  and  very  often  is, 
a  punishable  offence.  Torts  again  fall  into  two  classes,  and  only 
those  which  involve  some  violence — the  violence  may  be  exceedingly 
small — are  known  as  trespasses. 

In  the  thirteenth  century  we  see  but  the  germs  of  this  scheme. 
"Trespass"  ("transgressio'")  is  the  most  general  term  that  there  is ; 
it  will  cover  all  or  almost  all  wrongful  acts  and  defaults.  Every 
felony,  says  Bracton,  is  a  trespass,  though  every  trespass  is  not  a 
felony.  In  a  narrower  sense  therefore  "trespass"  is  used  as  a  contrast 
to  "felony."  The  word  "misdemeanor"  belongs  as  a  term  of  art  to 
a  much  later  age.     *     *     * 

The  writs  of  trespass  are  closely  connected  with  the  appeals  for 
felony.  The  action  of  trespass  is,  we  may  say,  an  attenuated  appeal. 
The  charge  of  "felonia"  is  omitted;  no  battle  is  offered;  but  the 
basis  of  the  action  is  a  wrong  done  to  the  plaintiff  in  his  body,  his 
goods  or  his  land  "by  force  and  arms  and  against  the  king's  peace." 
In  course  of  time  these  sonorous  words  will  become  little  better  than 
a  hollow  sound;  there  will  be  a  trespass  with  force  and  arms  if  a 
man's  body,  goods  or  land  have  been  unlawfully  touched.  From  this 
we  may  gather  that  the  court  had  never  taken  very  seriously  the 
"arms"  of  the  writ  or  fixed  a  minimum  for  the  "force"  that  would 
beget  an  action.  Still  the  action  was  aimed  at  serious  breaches  of  the 
king's  peace,  and,  so  far  as  we  can  see,  the  court  in  Henry  III.'s 
reign  was  seldom,  if  ever,  troubled  with  "technical  trespasses"  or 
claims  for  "nominal  damages."     *     *     * 

(23) 


24  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

In  the  clays  when  the  writ  of  trespass  was  taking  a  foremost  place 
in  the  scheme  of  actions,  the  king's  court  had  its  hands  full  if  it  was 
to  redress  and  punish  the  wrongs  done  by  gentlemen  who  at  the  head 
of  armed  bands  of  retainers  ravaged  the  manors  of  their  neighbors. 
We  must  not  therefore  expect  to  find  cases  which  indicate  the  limits 
of  trespass.  We  may  guess  that  some  self-defence  was  permissible, 
while  all  self-help,  unless  it  took  the  form  of  the  timely  ejectment 
of  a  disseisor,  was  strictly  prohibited.  Also  we  may  guess  that  this 
somewhat  terrible  action  could  not  have  been  used  against  those  who 
were  not  to  be  charged  with  any  assault  on  a  person,  entry  on  land 
or  asportation  of  goods,  but  were  giiilty  of  some  misfeasance  while 
engaged  in  a  lawful  operation.  In  later  days,  slowly  and  with  difficul- 
ty, the  court  gave  an  action  against  the  clumsy  smith  who  lames  the 
horse  that  he  is  shoeing,  against  the  stupid  surgeon  who  poisons  the 
wound  that  he  should  cure.  Such  persons  could  not  be  charged  with 
breaking  the  king's  peace  by  force  and  arms. 

Pollock  and  Maitland,  2  Hist.  Eng.  Law.  511,  526,  527.^ 

1  "All  civil  injuries  are  of  two  Iviuds,  the  one  loithnut  force  or  violence,  as 
slander  or  breach  of  contract;  the  other  coupled  n-ith  force  and  violence,  as 
batteries  or  false  imprisonment  Which  latter  species  savor  something  of 
the  criminal  kind,  being  always  attended  with  some  violation  of  the  peace ; 
for  \^hich  in  strictness  of  law  a  fine  ought  to  be  paid  to  the  king,  as  well  as 
a  private  satisfaction  to  the  party  injured."     8  Kl.  Com.  (1765)  118,  119. 

'•The  recorded  instances  of  tresi^nss  in  the  royal  courts  prior  to  1252  are 
very  few.  In  the  'Abbreviatio  Tlacitorum'  some  twenty-five  cases  of  appeals 
of  different  kinds  are  mentioned,  belonging  to  the  period  1194-12.52.  but  not 
a  single  case  of  trespass.  In  the  year  37  Henry  III.  (1252-125::5)  no  fewer 
than  twenty-five  cases  of  trespass  are  recorded,  and  from  this  time  on  the 
action  is  frequent,  while  appeals  are  rarely  brought.  It  is  reasonable  to  sup- 
pose that  the  writ  of  trespass  w^as  at  first  granted  as  a  special  favor,  and 
became,  soon  after  the  middle  of  the  fourteenth  century,  a  writ  of  course. 

"The  introduction  of  this  action  was  a  very  simple  matter.  An  original 
writ  issued  out  of  Chancery  directing  the  sheriff  to  attach  the  defendant  to 
appear  in  the  King's  Bench  to  answer  the  plaintiff.  The  jurisdiction  of  the 
King's  Court  was  based  upon  the  commission  of  an  act  vi  et  armis  and  contra 
pacem  regis,  for  which  the  unsuccessful  defendant  had  to  pay  a  fine.  These 
words  were  therefore  invariably  inserted  in  the  declaration.  Indeed,  the 
count  in  trespass  was  identical  with  the  corresponding  appeal,  except  that  it 
omitted  the  offer  of  battle,  concluded  with  an  ad  damnum  clause,  and  sub- 
.stituted  the  words  "vi  et  armis"  for  the  words  of  felony, — "feloniter,"  "felo- 
uice,"  "in  felonia,"  or  "in  robberia."  The  count  in  the  appeal  was  doubtless 
borrowed  from  the  ancient  count  in  the  popular  or  communal  courts,  the 
words  of  felony  and  "contra  pacem  regis"  being  added  to  bring  the  case 
within  the  jurisdiction  of  the  royal  courts. 

"The  procedure  of  the  Kingls  Courts  was  much  more  expeditious  than  that 
of  the  popular  courts,  tlie  trial  was  by  jury  instead  of  by  wager  of  law,  and 
judgment  was  .sjitisfied  by  levy  of  execution  and  sale  of  the  defendant's  prop- 
erty, whereas  in  the  popular  courts  distress  and  outlawry  were  the  limits 
of  the  plaintiff's  rights.  As  an  appeal  might  be  brought  for  the  theft  of  any 
chattel  worth  12d.  or  more,  and  as  the  owner  now  had  an  option  to  bring 
trespass  where  an  appeal  would  lie,  there  was  danger  that  the  royal  courts 
would  be  encumbered  with  a  mass  of  petty  litigation.  To  meet  tliis  threat- 
ened evil  the  .Statute  6  Ed.  I.  e.  8,  was  passed,  providing  that  no  one  should 
hyve  writs  of  trespass  before  justices  unless  he  swore  by  his  faith  tliat  the 
goods  taken  awav  were  worth  4()s.  at  the  least." 

James  liarr  Ames,  "The  History  of  Trover,"  11  ilarv.  Law  Kov.  277,  282; 
3  Anglo-Amer.  Legal  Essays,  417,  422. 


Ch.  1)  TRESPASSES  25 

The  writ  of  trespass  was  fast  coming  into  use  in  the  course  of 
Henry  III.'s  reign.  During  the  twenty-two  years  between  the  middle 
of  the  century  and  his  death  it  became  common.  We  think  of  an 
action  of  trespass  nowadays  as  a  purely  civil  remedy,  a  means  of 
recovering  damages  if  the  plaintiff  succeeds ;  and  that  was  no  doubt 
its  main  object  and  advantage  even  from  the  first.  But  it  was  also 
a  penal  and  semi-criminal  proceeding,  and  preserved  traces  of  this 
character  down  to  modern  times.  The  trespass  was  complained  of  and 
dealt  with  as  a  punishable  breach  of  the  king's  peace,  and  the  plain- 
tiff was  bound  to  allege  force  and  arms  and  breach  of  the  peace  in 
order  to  give  the  king's  court  jurisdiction;  without  those  words  it 
was  only  a  matter  for  the  county  court.  In  fact  this  action  was,  in 
its  original  form,  closely  connected  with  the  distinctly  criminal  pro- 
cedure by  way  of  "appeal"  for  felony.  One  might  almost  regard  it, 
using  the  analogy  of  modern  French  procedure,  as  the  civil  side  of 
such  an  appeal,  which  became  separated  by  some  ingenious  experi- 
m.ent  or  happv  accident,  and  started  on  a  new  career  of  its  own. 

Sir  Frederick  Pollock.  "The  King's  Peace,"  13  H.  L.  R.  177,  185; 
2  Legal  Essays,  403,  412. 


In  their  determination  to  win  all  litigation  for  the  king's  courts,  the 
royal  justices,  at  the  very  end  of  this  period,  invented  or  adopted  a 
new  writ,  destined  to  be  of  enormous  importance  in  all  branches  of 
cur  law.  This  was  the  Writ  of  Trespass,  which  makes  its  appearance 
in  the  middle  of  the  thirteenth  century,  just  at  the  outbreak  of  the 
Barons'  War.  Doubtless,  in  those  troubled  times,  offences  of  violence 
were  unusually  frequent;  whilst  the  old  methods  of  redress  only 
tended  to  aggravate  the  disorder.  The  notion  of  the  "peace"  or  sus- 
pension of  hostilities  was  very  familiar  in  theory ;  whatever  its  rarity 
in  practice.  And,  of  all  "peaces"  the  peace  of  the  king  was  the  most 
powerful  and  best  protected.  If  the  royal  officials  could  once  estab- 
lish the  rule,  that  any  interference  with  possession,  however  slight, 
was  a  breach  of  the  king's  peace,  and  subjected  the  offender  to  be 
summoned  before  the  king's  justices,  the  ultimate  triumph  of  the 
royal  courts  was  secure.  With  a  little  ingenious  straining,  almost 
any  oft'ence  known  in  a  simple  state  of  society  could  be  treated  as  a 
breach  of  the  peace.  The  notion  of  the  sanctity  of  possession  had,  as  has 
been  seen,  been  growing  by  means  of  the  protection  afforded  to  "seisin" 
by  the  "petty  (or  'possessory')  assises"  and  the  Writs  of  Entry.  But 
the  notion  of  seisin  was  becoming  technical.  It  was,  for  special  rea- 
sons, gradually  being  restricted  to  the  possession  of  land  (as  distinct 
from  chattels),  and  of  land  by  a  freeholder,  or  a  man  who  claimed 
as  such.  Moreover,  the  notion  of  "diseisin"  was  held  to  imply  a  de- 
liberate attempt  to  assert  a  right  of  possession.  Something  simpler 
was  wanted — some  process  which  should  make  a  mere  casual  raid  or 
blow  punishable  by  sharp  and  speedy  process  in  the  royal  courts. 


26  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

This  is  exactly  what  the  Writ  of  Trespass  did,  as  the  following 

form  will  show: 

If  A.  gives  pledges  to  prosecute  his  complaint,  then  piat  B.  by  gage  and 
pledge  tliat  he  (B.)  be,  before  our  Justices  at  Wiestniinster  (on  such  a  day) 
prepared  to  show  why  with  force  and  arms  he  assaulted  the  said  A.  at  N.  (or 
broke  the  close  of  A.  at  N.,  or  took  and  carried  away  the  sheep  of  A.)  and 
otlier  enormities  to  him  did,  to  the  grave  damage  of  the  said  A.,  and  against 
our  peace.     *     *     * 

It  [the  Writ  of  Trespass]  aimed  originally  and,  to  some  extent,  aims 
still,  at  punishment,  rather  than  compensation — at  fine  and  imprison- 
ment, rather  than  "damages"  in  the  modern  sense.  It  was  not  long 
before  English  Law  took  the  one  step  needed  to  produce  the  modern 
scheme  of  legal  remedies.  And  when  it  did,  it  used  the  Writ  of  Tres- 
pass as  the  starting  point. 

Edward  Jenks,  Short  Hist.  Eng.  Law  (1912)  52,  67?- 


II.  Jurisdictional  Features  oe  a  Cause  in  Trespass 
INCLEDON  V.  BURGESS. 

(Court  of  King's  Bench,  16S8.     2  Salk.  636,  91  Reprint,  536.) 

Trespass  for  breaking,  entering,  and  depasturing,  36  Car.  2,  con- 
tinuando  the  depasturing  till  4  Jac.  2,  contra  pacem  domini  Regis  nunc, 
which  was  K.  James  the  Second.  This  was  held  naught,  for  then 
there  is  no  contra  pacem  to  the  trespass  tempore  Caroli  Secundi,  but 
it  is  omitted,  and  contra  pacem  is  substance.  Vide  Cro.  Car.  325 ; 
Cro.  Jac.  426,  443,  537. 

2  "The  king's  courts  were  approaching  the  field  of  tort  through  the  held 
of  crime'* ;  in  the  closing  years  of  the  seventeenth  century,  the  unsuccessful 
defendant  in  a  civil  action  of  trespass  is  nominally  still  a  criminal.  The 
preamble  of  the  statute  of  5  &  6  W.  &  M.  c.  12  (1694),  iims  thus:  "Whereas 
there  are  divers  suits  and  actions  of  ti-espass,  ejectment,  assaiilt,  and  false 
imprisonment,  brought  by  party  against  party  in  the  respective  courts  of  law 
at  Westminster,  and  upon  judgment  entered  against  the  defendant  or  de- 
fendants in  such  suits  or  actions,  the  respective  coui'ts  aforesaid  do  (ex 
officio)  issue  out  process  against  such  defendant  and  defendants,  for  a  fine 
to  the  crown,  for  a  breach  of  the  peace  thereby  committed,  which  is  not  as- 
certained, but  is  usually  compounded  for  a  small  sum  of  money  by  some  offi- 
cer in  each  of  tlie  said  courts,  but  never  estreated  into  the  Exchequer ;  which 
ofiicers  or  some  of  them,  do  veiT  often  outlaw  the  defendants  for  the  same, 
to  their  very  great  damage."  For  this  fine  the  statute  substitutes  a  fee  of 
6s.  and  8d.,  to  be  paid  by  the  plaintiflf  and  taxed  as  costs  against  the  defend- 
ant—[£'(J. 


Ch.  1)  TRESPASSES  27 

WILDGOOSE  V.  KELLAWAY. 

(Court  of  King's  Bench,  1691.     2  Salk.  636,  91  Reprint,  537.) 

Trespass  for  breaking  his  house  and  taking  away  his  dishes ;  the 
defendant  justified  under  a  by-law,  but  that  being  ill,  the  plaintifif 
demurred;  but  the  defendant  took  exception  to  the  declaration,  be- 
cause it  wanted  the  words  "vi  et  armis" ;  and  the  court  held  it  naught 
on  a  general  demurrer,  being  an  omission  of  the  substance;  for  it 
alters  the  judgment  from  a  capiatur  to  a  misericordia.  Item,  it  belongs 
to  the  jurisdiction  of  the  County  Court,  if  it  be  a  trespass  without  vi 
et  armis. 


DAND  V.  SEXTON. 

(Court  of  King's  Bench,  1789.    3  Term  R.  37,  100  Reprint,  442.) 

This  was  an  action  of  trespass  vi  et  armis  for  beating  the  plaintifif's 
dog,  whereby  the  dog  was  hurt,  and  the  plaintiff  lost  the  use  of  him. 
The  defendant  pleaded  the  general  issue.  On  the  trial  the  plaintiff 
lecovered  Is.  damages;  and  Lord  Kenyon,  Ch.  J.,  certified  under 
the  43  Eliz.  c.  6,^  that  the  damages  were  under  40s. 

Shepherd  moved  last  term  for  a  rule  to  shew  cause  why  the  certifi- 
cate should  not  be  set  aside,  on  the  ground  that  the  statute  only  ap- 
plied to  those  actions  which  could  be  brought  in  the  County  Court, 
and  that  of  course  it  did  not  extend  to  an  action  vi  et  armis.  And  a 
case  of  Delamotte  v.  Dixon  *  was  cited,  in  which  Buller,  J.,  under 
an  idea  that  the  statute  had  been  understood  to  be  thus  confined,  re- 
fused to  grant  a  certificate. 

Lord  Kenyon,  Ch.  J.  It  seems  to  me  that  this  case  comes  within 
the  statute,  which  extends  to  all  personal  actions,  not  being  for  any 
title  of  lands,  nor  for  any  battery.  And,  on  the  maxim  exceptio  pro- 
bat  regulam,  it  includes  all  other  actions  vi  et  armis.  It  is  true  indeed 
that  an  action  vi  et  armis  cannot  be  brought  in  a  County  Court;  but 
there  are  other  Inferior  Courts  which  by  charter  have  a  power  of 
trying  actions  vi  et  armis.  But,  as  some  of  the  Judges  have  enter- 
tained doubts  upon  the  question,  take  a  rule  to  shew  cause. 

3  By  this  statute,  passed  in  IGOl,  it  was  provided  that  "If  upon  any  action 
personal  to  be  brought  in  any  of  her  Majesty's  Courts  at  Westminster,  not 
being  for  any  title  or  interest  of  lands,  nor  concerning  the  free  hold  or  inher- 
itance of  any  lauds  nor  for  any  battery,  it  shall  appear  to  the  judges  for 
the  same  court,  and  so  signified  or  set  down  by  the  justices  before  whom  the 
same  shall  be  tried,  that  the  debt  or  damages  to  be  recovered  therein  in  the 
same  court,  shall  not  amount  to  the  sum  of  forty  shillings  or  above,"  then 
the  judges  should  not  award  for  costs  to  the  plaintiff  any  greater  sum  than 
"the  debt  or  damages  so  recovered  shall  amount  unto," 

*  Sittings  after  Mich.,  27  Geo.  Ill,  B.  K. 


28  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

Cause  was  to  have  been  shewn  this  day,  but  the  Court  were  extreme- 
ly clear,  on  the  authorities  of  Walker  v.  Robinson,  1  Wils.  93,  White 
V.  Smith,  1  Wils.  94,  and  Bartlet  v.  Robins,  2  Wils.  258,  that  the  stat- 
ute extended  to  the  present  cases ;   and  they 

Discharged  the  rule. 


^. 


III.  Characteristics  oe  a  Cause  in  Trespass 
I.  DE  S.  and  WIFE  v.  W.  DE  S. 

(At  the  Assizes,  Coram  Thorpe,  C.  J.,  1348  or  loil).     Y.  B.  Lib.  Ass. 

foi.  yy,  pi.  60.) 

I,  De  S.  &  M.  uxor  ejus  querunt  de  W.  De  S.  de  eo  quod  idem 
W.  anno,  etc.,  vi  et  armis,  etc.,  apud  S.,  in  ipsam  M.  insultum  fecit, 
et  ipsam  verberavit,  etc.  And  W.  pleaded  not  guilty.  And  it  was 
found  by  verdict  of  the  inquest  that  the  said  W.  came  in  the  night 
to  the  house  of  the  said  I.,  and  would  have  bought  some  wine,  but 
the  door  of  the  tavern  was  closed ;  and  he  pounded  on  the  door  with 
a  hatchet,  which  he  had  in  his  hand,  and  the  female  plaintiff  put  her 
head  out  at  a  window  and  told  him  to  stop ;  and  he  saw  her  and 
aimed  at  her  with  the  hatchet,  but  did  not  hit  her.  Whereupon  the 
inquest  said  that  it  seemed  to  them  that  there  was  no  trespass,  since 
there  was  no  harm  done. 

Thorpe,  C.  J.  There  is  harm  done,  and  a  trespass  for  which  they 
shall  recover  damages,  since  he  made  an  assault  upon  the  woman,  as 
it  is  found,  although  he  did  no  other  harm.  Wherefore  tax  his  dam- 
ages, etc.  And  they  taxed  the  damages  at  half  a  mark.  Thorpe,  C. 
J.,  awarded  that  they  should  recover  their  damages,  etc.,  and  that 
the  other  should  be  taken.  Et  sic  nota,  that  for  an  assault  one  shall 
recover  damages.^ 


NORVELL  v.  THOMPSON. 

(Coiu-t  of  Appeals  of  South  Carolina,  1834.     2  Hill,  470.) 

The  presiding  judge  made  the  following  report: 

Trespass  quare  elausuiu  frej^it.  The  trespass  was  committed  on  the  wood- 
lands of  the  plaintiffs,  and  consisted  in  cutting  a  few  saplings  and  bushes 
along  an  old  path,  in  order  to  open  it  sulhciently  for  the  passage  of  wagons, 
carts,  etc.  The  defendant  supposed  the  hind  belonged  to  another  per.son,  to 
whom  lie  applied  for  permission  and  obtained  it,  both  being  under  a  misap- 
prehension as  to  the  i)laintifts'  line.  None  of  the  witnesses  could  venture  to 
as.se.ss  the  value  of  the  timber  cut,  or  estimate  the  damage.  I  instructed  the- 
jury  if  there  were  actually  no  damage  done,  or  if  it  were  so  inconsiderable 
that  it  could  not  be  estimated,  as  the  defendant  set  up  no  claim  to  the  land, 
and  supposed  he  had  ponnission  of  the  real  owner,  they  might  find  a  verdict 
for  the  defendant;    and  they  did  so. 

6  This  case  is  reprinted  from  Ames'  Cases  on  Torts  (3d  Ed.)  p.  1. 


Ch.  1)  TRESPASSES  29 

The  plaintiffs  gave  notice  of  an  appeal  in  this  case,  and  that  they 
would  -move  the  Court  of  Appeals  for  a  new  trial,  on  the  following 
grounds : 

1.  Because  a  trespass  having  been  proven,  the  verdict  could  not 
legally  be  for  the  defendant. 

2.  Because  his  honor  was  mistaken  in  law,  in  charging  the  jury 
that  where  the  trespass  was  very  small  they  might  find  for  defendant. 

Harper,  J.  This  is  a  very  unimportant  case,  but  in  strictness  of 
law  I  suppose  the  plaintiffs  are  entitled  to  their  motion.  If  a  trespass 
be  proved,  the  plaintiffs  are  entitled  to  some  damages,  though  they 
may  be  merely  nominal.  Some  damage  was  certainly  proved,  though 
very  trifling.  In  some  cases,  where  the  jury  has  been  rightly  instruct- 
ed on  the  point  of  law,  but  in  cases  of  very  trifling  trespass  has  thought 
proper  to  find  for  the  defendant,  this  Court,  being  satisfied  that  sub- 
stantial justice  was  done,  has  refused  to  interfere.  But  this  is  the 
privilege  of  the  jury.  The  Court  is  bound  to  afford  relief  against 
an  erroneous  instruction  by  the  Court  on  a  point  of  law.  There  is 
something  in  the  reasoning  of  the  plaintiff's'  counsel.  No  trespass 
can  be  conceived  more  trifling  than  the  mere  passing  over  the  unclosed 
land  of  another,  and  it  would  be  impossible  to  estimate  the  damage 
resulting  from  a  particular  act  of  this  sort.  Yet,  if  no  recovery  could 
be  had  in  a  case  of  this  sort,  the  trespasser,  by  repetition  of  the  act 
and  the  lapse  of  time,  might  acquire  the  right  of  way,  in  spite  of  any- 
thing that  could  be  done  to  prevent  it. 

The  motion  is  granted. 


S^IITH  v.  STONE. 
(Court  of  King's  Bench,  1648.  Style,  65,  82  Reprint,  533.) 
Smith  brought  an  action  of  trespasse  against  Stone  pedibus  ambul- 
ando,  the  defendant  pleads  this  speciall  plea  in  justification,  viz.  that 
he  was  carryed  upon  the  land  of  the  plaintiff  by  force,  and  violence 
of  others,  and  was  not  there  voluntarily,  which  is  the  same  trespasse, 
for  which  the  plaintiff  brings  his  action.  The  plaintiff'  demurs  to  this 
plea :  in  this  case  Roll  lustice  said,  that  it  is  the  trespasse  of  the 
party  that  carryed  the  defendant  upon  the  land,  and  not  the  trespasse 
of  the  defendant:  as  he  that  drives  my  cattel  into  another  mans 
land  is  the  trespassor  against  him,  and  not  I  who  am  the  owner  of  the 
cattell. 


GILBERT  V.  STONE. 

(Court  of  King's  Reucli,  1648.     Style,  72,  82  Reprint,  530.) 
Gilbert  brought  an  action  of  trespasse  quare  clausum  fregit,  and  tak- 
ing of  a  gelding,  against  Stone.    The  defendant  pleads  that  he  for  fear 
of  his  life,  and  wounding  of  twelve  armed  men,  who  threatened  to 
kill  him  if  he  did  not  the  fact,  went  into  the  house  of  the  plaintiff', 


30  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

and  took  the  gelding.  The  plaintiff  demurred  to  this  plea;  Roll 
Justice,  This  is  no  plea  to  justify  the  defendant;  for  I  may.  not  do 
a  trespasse  to  one  for  fear  of  threatenings  of  another,  for  by  this 
means  the  party  injured  shall  have  no  satisfaction,  for  he  cannot  have 
it  of  the  party  that  threatened.  Therefore  let  the  plaintiff  have  his 
judgment.^ 


GIBBONS  V.  PEPPER. 

(Court  of  King's  Bench,  1694.     4  Mod.  405,   87  Reprint,  4G9.) 

Assault  and  battery.  The  defendant  pleaded,  that  he  was  riding  on 
a  horse  in  the  highway,  and  that  on  a  sudden  fright  the  horse  started 
and  run  upon  the  plaintiff,  who  continued  in  the  way  after  he  was 
called  to  go  out,  which  was  the  same  assault.  To  this  plea  the  plain- 
tiff demurred. 

It  was  moved  in  behalf  of  the  defendant,  that  what  he  had  pleaded 
was  a  sufficient  excuse ;  for  it  was  no  neglect  in  him,  and  the  mis- 
chief done  was  inevitable.     It  is  like  the  case  of  Weaver  v.  Ward, 

6  In  the  case  of  The  Eliza  Lines  (1905)  199  U.  S.  119,  130,  26  Sup.  Ct.  8,  50 
L.  Ed.  115,  4  Ann.  Cas.  406,  it  was  argued  that  for  a  crew  to  leave  a  ship 
under  stress  of  perils  of  the  sea  was  not  distinguishable  in  pi-inciple  from 
being  torn  bodily  away  from  it  by  tlie  tempest.  "This,"  said  Mr.  Justice 
Holmes,  "is  one  of  the  oldest  fallacies  of  the  law.  The  difference  between 
the  two  is  the  difference  between  an  act  and  no  act.  The  distinction  is  well 
settled  in  the  parallel  instance  of  duress  by  threats,  as  distinguished  from 
overmastering  physical  force  applied  to  a  man's  body  and  imparting  to  it  the 
motion  sought  to  be  attributed  to  him.  In  the  former  case  there  is  a  choice 
and  therefore  an  act,  no  less  when  the  motive  commonly  is  recognized  as  vei*y 
strong  or  even  generally  overpowering,  than  when  it  is  one  that  would  affect 
the  particular  person  only,  and  not  the  public  at  large.  It  has  been  held  on 
this  ground  that  duress  created  by  fear  of  immediate  death  did  not  excuse 
a  trespass.  Gilbert  v.  Stone,  Aleyn.  35,  Style,  72;  Scott  v.  Shepherd  (1763) 
2  W.  Bl.  S92,  896.  See  Miller  v.  Horton  (1891)  152  Mass.  540,  547,  20  N.  E. 
100,  10  L.  R.  A.  116,  23  Am.  St.  Rep.  850.  It  has  been  held  that  a  similar  plea 
in  the  case  of  shipwrecked  men  at  sea  did  not  prevent  the  killing  of  one  of 
them  from  being  murder.  Queen  v.  Dudley  (1884)  L.  R.  14  Q.  B.  Div.  273. 
See  United  States  v.  Holmes  (1842)  1  Wall.  Jr.  1,  Fed.  Cas.  No.  15,383.  It  is 
clear  that  a  contract  induced  by  such  fear  is  voidable  only,  not  void,  and  that 
the  ground  of  avoidance  being  like  fraud,  that  tlie  party  has  been  subjected 
to  an  improper  motive  for  action,  when  that  motive  has  been  created  by  a 
stranger,  and  is  unknown  to  the  party,  the  contract  stands.  Keilwey,  154a, 
pi.  3;  Fairbanks  v.  Snow  (1887)  145  Mass.  153,  13  N.  E.  590,  1  Am.  St  Rep. 
446.  So  a  conveyance  induced  by  duress  is  operative  until  avoided,  and  can 
not  be  set  aside  when  the  property  has  passed  to  a  jmrchaser  witliout  notice. 
Bainbrigge  v.  Browne  (1881)  L.  R.  18  Ch.  Div.  188,  197 ;  2  Wms.  Vend.  &  P. 
767;  Clark  v.  Pease  (1860)  41  N.  H,  414.  The  distinction  is  as  old  as  the 
Itomau  law.  Tamen  coactus  volui.  D.  4,  2.  21,  §  5;  1  Windscheid,  Pan 
dokten,  §  80." 

See  also  an  early  application  of  the  principle,  in  English  law,  in  Y.  B.  20 
Edw.  IV  (1481)  f.  11,  pi.  10,  an  action  of  trespass  because  the  defendants 
cattle  came  upon  the  plaintiff's  land,  in  an  effort  to  escape  from  the  dogs  of 
a  third  person.  The  prima  facie  trespass  here  was  admitted  and  the  ques- 
tion before  the  court  was  whether  the  facts  if  pleaded  would  make  a  de- 
fense— a  question  which  a  chief  justice  of  Edward  the  Fourth's  reign  an- 
swered in  the  negative. 


Ch.  1)  TRESPASSES  31 

Hobart,  134,  where  in  trespass,  assault,  and  battery,  the  defendant 
pleaded,  that  he  was  a  trained  soldier,  and  that  he  and  the  plaintiff 
were  under  one  captain,  and  in  mustering  he  discharged  his  gun,  which 
casualiter,  et  per  infortunium,  et  contra  voluntatem  suam,  did  hurt 
the  plaintiff;  and  it  was  there  held,  that  if  the  defendant  had  plead- 
ed that  he  could  not  have  avoided  it,  or  that  the  plaintiff  had  run 
across  the  gun  when  it  was  discharging,  or  had  set  forth  the  circum- 
stances so  that  it  might  appear  to  the  Court  to  be  inevitable,  that  such 
a  plea  had  been  a  sufficient  justification. 

But  it  was  answered,  that  case  was  not  parallel  with  this,  because 
the  fact  was  confessed  there ;  but  the  battery  is  not  answered  here. 
He  should  have  pleaded  the  general  issue,  for  if  the  horse  run  away 
against  his  will,  he  would  have  been  found  not  guilty,  because  in  such 
a  case,  it  cannot  be  said  with  any  colour  of  reason  to  be  a  battery  in 
the  rider/ 

The  plaintiff  had  judgment. 


UNDERWOOD  v.  HEWSON. 

(At  Nisi  Prius,  in  Middlesex,  1723.    Coram  Fortescue  et  Raymond,  Justices. 

1   Stra.   596;    93   Reprint,   722.) 

The  defendant  was  uncocking  a  gun  and  the  plaintiff  standing  to 
see  it,  it  went  off  and  wounded  him :  and  at  the  trial  it  was  held  that 
the  plaintiff  might  maintain  trespass.     Strange  pro  defendente. 


GREGORY  V.  PIPER. 

(Court  of  King's  Bench,  1829.     9  Bam.  &  C.  591,  109  Reprint,  220,  33  R.  R. 

268,  17  E.  C.  L.  266.) 

Trespass  for  casting  rubbish  against  the  plaintiff's  wall.  Plea,  not 
guilty.  At  the  trial  it  appeared  that  the  plaintiff  occupied  a  public- 
house  called  the  "Rising  Sun,"  in  Newmarket,  with  a  stable-yard  be- 
longing to  it,  where  he  put  up  the  horses  of  his  guests.  The  way 
to  the  stable  was  by  the  back  gate  from  High  Street,  through  a  yard 
called  the  Old  King's  Yard.  A  wall  belonging  to  the  plaintiff  sepa- 
rated his  stable  yard  from  the  Old  King's  Yard.  The  defendant  hav- 
ing purchased  the  property  surrounding  the  Old  King's  Yard,  dis- 
puted the  plaintiff's  right  to  pass  along  the  same  to  his  stable,  and 
employed  one  Stubbings,  a  labourer,  to  lay  down  a  quantity  of  rub- 
bish, consisting  of  bricks,  mortar,  stones,  and  dirt,  near  the  plaintiff's 


7  Ttiis  case  is  reported  also  in  1  LkI.  Raym.  38,  and  Salk.  637 ;    91  Reprint, 
922  and  539. 

Compare  Holmes  v.  Mather  (1875)  L.  R.  9  Ex.  201,  and  notes,  given  inrra. 


32  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

Stable-  yard,  in  order  to  obstruct  the  way ;  and  Stubbings,  on  the  26th 
of  April,  and  several  days  following,  laid  down  rubbish  accordingly, 
part  of  which  rolled  against  the  plaintiff's  wall  and  gates.  It  lay  about 
two  feet  high  against  the  plaintiff's  wall  for  about  five  or  six  yards 
in  length.  Stubbings  being  called  as  a  witness  on  the  part  of  the 
plaintiff,  stated  that  he  was  employed  by  the  defendant  to  lay  rubbish 
in  the  yard;  that  the  defendant  had  given  him  orders  not  to  let  any 
rubbish  touch  the  plaintiff's  wall,  that  he  executed  those  orders  as 
nearly  as  he  could,  and  accordingly  laid  the  rubbish  at  first  at  the 
distance  of  a  yard  and  a  half  from  the  wall ;  and  that  the  rubbish, 
being  of  a  loose  kind,  as  it  became  dry  naturally  shingled  down  toward 
and  ran  against  the  wall.  He  added  that  some  of  it  would  of  course 
run  against  the  wall.  It  further  appeared  that  on  the  3rd  of  May, 
when  an  application  was  made  by  the  plaintiff  to  the  defendant  to 
remove  the  rubbish,  the  latter  said  he  was  determined  not  to  remove 
it.  Upon  this  evidence  it  was  objected  by  the  defendant  that  trespass 
was  not  maintainable,  inasmuch  as  the  defendant  had  given  express 
orders  to  the  servant  not  to  let  the  rubbish  touch  the  plaintiff's  wall; 
that,  therefore,  the  touching  of  the  wall  was  occasioned  by  the  negli- 
gence of  the  defendant's  servant,  and  that  case,  not  trespass,  was 
therefore  maintainable. 

The  Lord  Chief  Baron  directed  the  jury  to  find  a  verdict  for  the 
plaintiff,  but  reserved  liberty  to  the  defendant  to  move  to  enter  a  non- 
suit.    A  rule  nisi  was  obtained  for  that  purpose. 

BayliJy,  J.  The  only  question  is  whether  the  trespass  was  the  act 
of  the  master.  The  master  desired  the  servant  to  lay  down  the  rub- 
bish so  as  not  to  let  it  touch  or  lean  against  the  wall  of  the  plaintiff. 
But  if  in  execution  of  the  order  it  was  the  necessary  or  natural  con- 
sequence of  the  act  ordered  to  be  done  that  the  rubbish  should  go 
against  the  wall,  the  master  is  answerable  in  trespass.  The  evidence 
shews  that  it  was  the  natural  consequence.  The  rule  must,  therefore, 
be  discharged. 

ParkK,  J.  I  think  that  the  defendant  is  liable  in  this  form  of  ac- 
tion. If  a  single  stone  had  been  put  against  the  wall  it  would  have 
been  sufficient.  Independently  of  Stubbing's  evidence  there  was  suffi- 
cient evidence  to  satisfy  the  jury  that  the  rubbish  was  placed  there 
by  the  defendant,  for  he  expressed  his  determination  not  to  remove  it. 
It  does  not  rest  there.  Stubbings  said  he  was  desired  not  to  let  the 
rubbish  touch  the  wall.  But  it  appeared  to  be  of  a  loose  kind,  and  it 
was  probable  that  some  of  it  naturally  might  run  against  the  wall. 
Stubbings  said  that  some  of  it  of  course  would  go  against  the  wall. 
Now  the  defendant  must  be  taken  to  have  contemplated  all  the  probable 
consequences  of  the  act  which  he  had  ordered  to  be  done,  and  one 
of  these  probable  consequences  was,  that  the  rubbish  would  touch  the 
plaintiff's  wall.  If  that  was  so,  then  the  laying  of  the  rubbish  against 
the  wall  was  as  much  the  defendant's  act  as  if  it  had  been  done  by 


Ch.  1)  TRESPASSES  33 

his  express  command.    The  defendant,  therefore,  was  the  person  who 
caused  the  act  to  be  done,  and  for  the  necessary  or  natural  consequence 
of  his  own  act  he  is  responsible  as  a  trespasser. 
Rule  discharged. 


PAGE  V.  HOLLINGSWORTH. 

(Supreme  Court  of  Indiana,  1S55.    7  Ind.  317.) 

Davison,  J.  Trespass.  The  complaint  is  that  the  defendant's  cat- 
tle broke  and  entered  the  plaintiffs'  close  and  destroyed  their  corn. 
Verdict  for  tlie  defendant.    New  trial  refused  and  judgment. 

It  appeared  that  in  January,  1852,  the  defendant  was  the  owner 
of  three  hundred  and  eighteen  head  of  cattle,  from  three  to  four  years 
old,  and  had  rented  from  Page,  one  of  the  plaintiffs,  a  stock  field 
for  pasture,  which  was  inclosed  by  an  indifferent  fence ;  that  the  cat- 
tle were  pastured  in  this  field  in  the  day  time,  and  there  watched  by 
Peter  and  Thomas  Kennedy,  who  were  employed  by  the  defendant 
to  take  care  of  them,  but  at  night  they  were  put  into  a  stubble  field 
furnished  by  Page,  which  was  inclosed  by  a  good  fence,  such  as  care- 
ful husbandmen  generally  keep ;  that  the  corn  field,  in  which  the  tres- 
passes were  committed,  belonged  jointly  to  the  plaintiffs,  and  adjoined 
the  stubble  field  in  which  the  cattle  were  kept  in  the  night  time ;  that 
the  Kennedys  went  round  this  field  every  evening,  saw  that  the  fences 
were  up  and  that  the  rails  which  the  cattle  had  knocked  off  the  night 
before  were  all  put  up  again ;  and  that  on  a  stormy  night,  a  few  days 
after  the  cattle  had  been  at  Page's,  they  broke  through  the  fence 
from  the  stubble  field  into  the  plaintiffs'  corn  field  and  destroyed  a 
quantity  of  their  corn.  Upon  the  trial,  there  was  evidence  sufficient 
to  warrant  the  jury  in  finding  that  the  cattle  were  not  breachy;  that 
they  were  carefully  attended  by  the  defendant's  employes;  and  that 
on  his  part  there  was  no  want  of  care. 

There  is  in  the  record  a  bill  of  exceptions,  which  shows  that  the 
Court  instructed  the  jury  as  follows: 

1.  If  the  defendant  exercised  all  the  attention  and  care  over  the  cattle  that 
was  necessary,  in  their  situation,  to  keep  that  number  of  cattle  from  tres- 
passing or  breaking  the  inclosure,  and  was  guilty  of  no  wrongful  act  or  omis- 
sion of  duty  in  the  premises,  and  the  damages  were  done  unavoidably,  by  cir- 
cumstances which  the  defendant  could  not  control  or  avoid,  the  law  is  with 
the  defendant. 

2.  There  must  be  some  positive  wrong  on  the  part  of  the  defendant  In  this 
cause,  before  a  verdict  can  be  found  against  him. 

If  the  trespass  in  this  case  had  been  committed  against  the  person 
or  personal  property  of  the  plaintiffs,  and  not  against  their  real  estate, 
the  instructions  would  have  been  clearly  right,  because  cattle,  such  as 
those  charged  with  having  broken  and  entered  the  plaintiffs'  close, 
viz.,  cows,  oxen,  steers,  and  the  like,  are  regarded  mansuetse  nat- 
urae, not  naturally  inclined  to  commit  mischief.  And  the  owner,  foi 
Hepb.Tokts — ^3 


34  TORTS  THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

such  trespass  merely  against  the  person  or  personal  property,  would 
not  be  held  liable,  unless  it  could  be  shown  that  he  previously  had 
notice  of  their  viciousness,  or  that  the  injury  was  attributable  to  some 
neglect  on  his  part.  1  Chit.  PI.  82,  83 ;  Bac.  Ab.  tit.  Trespass,  1 ; 
\'rooman  v.  Lawyer,  13  Johns.  (N.  Y.)  339;  Lyke  v.  Van  Leuven, 
4  Denio  (N.  Y.)  127. 

But  this  rule  does  not  apply  to  the  case  before  us.  Here  a  close 
was  broken  and  entered  by  such  animals ;  and  though  their  owner 
may  not  know  when  they  are  incHned  to  commit  mischief,  still  it  is 
said  "they  have  a  natural  and  notorious  propensity  to  rove,"  which 
he  is  always  presumed  to  know.  Hence,  he  is  bound,  at  his  peril,  to 
confine  them  on  his  own  land ;  for  if  they  escape  and  commit  a  tres- 
pass on  the  land  of  another,  unless  through  the  defect  of  fences  which 
the  latter  ought  to  repair,  the  law  deems  the  owner  himself  a  tres- 
passer, and  holds  him  liable  in  trespass  quare  clausum  fregit,  though 
he  had  no  notice  in  fact  of  such  propensity.  3  Bl.  Comm.  211;  Rust 
V.  Low,  6  Mass.  90;  Thayer  v.  Arnold,  4  Mete.  (Mass.)  589;  Sher- 
idan v.  Bean,  8  id.  284,  41  Am.  Dec.  507 ;  Chit.  PI.  83.  This  is  the 
common  law  rule  on  the  subject,  and  we  have  heretofore  decided 
that,  as  a  general  rule,  it  prevails  in  Indiana.  Williams  v.  New  Al- 
bany, etc.,  R.  Co.,  5  Ind.  Ill ;  Lafayette,  etc.,  R.  Co.  v.  Shriner,  6  Ind. 
141. 

If  the  principles  above  stated  are  sound,  as  we  think  they  are,  the 
ruling  of  the  Common  Pleas  can  not  be  sustained.  Against  the  plain- 
tiffs, no  delinquency  was  shown.  The  fence  through  which  the  cattle 
broke  and  entered  the  corn  field,  was  considered  by  the  parties  sui^- 
cient  and  in  good  repair,  and  the  authorities  we  have  cited  establish 
the  principle,  that  the  owner  of  such  cattle  can  not,  in  defence  of  a 
suit  like  the  present,  set  up  the  care  and  diligence  which  he  may  have 
exercised  in  an  unavailing  effort  to  confine  them  on  his  own  land. 
Indeed  the  defendant  in  this  case  may  have  been  entirely  innocent; 
yet  his  cattle  having  broken  and  entered  the  close,  and  therein  de- 
stroyed corn,  the  plaintiffs  not  being  in  fault,  the  law  holds  him 
responsible  for  the  trespass.  The  jury,  in  our  opinion,  were  improp- 
erly instructed. 

The  judgment  is  reversed  with  costs. ^ 

8  Accord:  Ellis  v.  Loftus  Iron  Co.  (1S74)  .L.  R.  10  C.  P.  10,  the  facts  of 
which  are  given  infra;  Brady  v.  Warren  (1000)  2  I.  R.  (VoO  (tamo  deer  kept 
by  D.  stray  upon  the  land  of  P.)  ;  Wells  v.  Howell  (1822)  19  Johns.  (N.  Y.) 
385,  the  facts  of  which  appear  infra;  Dolph  v.  Ferris  (1S44)  7  Watts  &  S. 
(Pa.)  367,  42  Am.  Dec.  246  (D.'s  bull  jumped  a  fence  into  P.'s  inclosure  and 
gored  his  horse). 

On  the  question  whether  accident  or  mistake  will  excuse  the  prima  facie 
trespass,  see  infra,  "The  Different  Kinds  of  Justification  or  Excuse  in  Tres- 
pass." 

"There  Is  one  case  of  absolute  liability  for  accident  which  deserves  special 
notice  by  reason  of  its  historical  orij^in.  Every  man  is  absolutely  resi)onsi- 
ble  for  the  trespasses  of  his  cattle.  If  my  horse  or  my  ox  escapes  from  my 
land  to  that  of  another  man,  I  am  answerable  for  it  without  any  proof  of 


Ch.  1)  TRESPASSES  35 


COX  V.   BURBIDGE. 

(Court  of  Common  Pleas,  1SG3.     13  C.  B.  [N.  S.]  430,  143  Reprint,  171,  134 

R.  R.  5S6.) 

A  horse  belonging  to  the  defendant  was  grazing  on  a  newly  made 
road  which  led  to  some  houses,  and  which  had  for  some  time  been 
used  as  a  road,  but  not  adopted  by  the  parish.  The  plaintiff,  a  little 
boy  about  five  years  of  age,  was  playing  in  the  road,  when  the  horse, 
which  was  on  the  foot-path,  struck  out  and  kicked  him  in  the  face, 
injuring  him  very  severely.  There  was  no  evidence  to  show  how  the 
horse  got  to  the  spot,  or  that  the  defendant  knew  he  was  there,  or  that 
the  animal  was  at  all  vicious,  or  that  the  child  had  done  anything  to 
irritate  it. 

Under  these  circumstances,  it  was  submitted  on  the  part  of  the 
defendant  that  there  was  no  case  to  go  to  the  jury.  The  learned 
Judge,  however,  did  not  like  to  withdraw  the  case;  but  he  reserved 
the  question  of  liability;  and  the  jury  returned  a  verdict  for  the 
plaintiff  for  £20.  The  defendant  obtained  a  rule  nisi  to  enter  a  non 
suit. 

negligence.  Such  a  rule  may  probably  be  justified  as  based  on  a  reasonable 
presumption  of  law  that  all  such  trespasses  are  the  outcome  of  negligent 
keeping.  Viewed  historically,  however,  the  rule  is  worth  notice  as  one  of  the 
last  relics  of  the  ancient  principle  that  a  man  is  answerable  for  all  damage 
done  by  his  property.  In  the  theory  of  ancient  law  I  am  liable  for  the  tres- 
passes of  my  cattle,  not  because  of  my  negligent  keeping  of  them,  but  be- 
cause of  my  ownership  of  them.  For  the  same  reason  in  Roman  law  a  mas- 
ter was  liable  for  the  offences  of  his  slaves.  The  case  is  really,  in  its  his- 
torical origin,  one  of  vicarious  liability."  Salmoud,  Jurisprudence  (1910) 
378.  And  see  the  question  whether  accident  excuses  a  trespass,  discussed 
infra,  "The  Different  Kinds  of  Justification  or  Excuse  in  Trespass." 

For  the  limits  of  the  doctrine,  see  the  remarks  of  Willes,  J.,  in  Read  v. 
Edwards  (1864)  17  C.  B.  (N.  S.)  245,  260:  "The  question  was  much  argued 
v.hether  the  owner  of  a  dog  is  answerable  in  trespass  for  every  unauthor- 
ized entry  of  the  animal  into  the  land  of  another,  as  in  the  case  of  an  ox. 
And  reasons  were  offered,  which  we  need  not  now  estimate,  for  a  distinc- 
tion in  this  respect  between  oxen  and  dogs  or  cats,  on  account,  first,  of  the 
difficulty  or  impossibility  of  keeping  the  latter  under  restraint,  secondly,  the 
slightness  of  the  damage  which  their  wandering  ordinarily  causes,  thirdly, 
the  common  usage  of  mankind  to  allow  them  a  wider  liberty,  and  lastly,  their 
not  being  considered  in  law  so  absolutely  the  chattels  of  the  owner,  as  to  be 
the  subject  of  larceny. 

"It  is  not,  however,  necessary  in  the  principal  case  to  answer  this  ques- 
tion ;  because  it  was  proved  at  the  trial  that  the  dog  which  did  the  damage 
was  of  a  peculiarly  mischievous  disposition,  being  accustomed  to  chase  and 
destroy  game  on  its  own  account,  that  that  vice  was  known  to  its  owner,  the 
defendant,  and  that  he  notwithstanding  allowed  it  to  be  at  large  in  the  neigh- 
bourhood of  the  plaintiff's  wood,  in  which  there  were  game ;  so  that  the  en- 
try of  the  dog  into  the  wood,  and  the  destruction  of  the  game,  was  the  nat- 
ural and  immediate  result  of  the  animal's  peculiarly  mischievous  disposition, 
which  his  owner  knew  of,  and  did  not  control." 

See  also  the  remarks  of  Palles,  C.  B.,  in  Brady  v.  Warren,  [1900]  2  I.  R. 
632.  659   Crabl)its  from  D.'s  land  trespass  upon  P.'s  land). 

For  other  distinctions  and  cases  in  the  doctrine  see  2  Cyc.  376,  note  38; 
and  Key-No.,  "Animals,"  §  97. 


36  TORTS  THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

Williams,  J.  *  *  *  If  I  am  the  owner  of  an  animal  in  which 
by  law  the  right  of  property  can  exist,  I  am  bound  to  take  care  that 
it  does  not  stray  into  the  land  of  my  neighbour;  and  I  am  liable  for 
any  trespass  it  may  commit,  and  for  the  ordinary  consequences  of  that 
trespass.  Whether  or  not  the  escape  of  the  animal  is  due  to  my  neg- 
ligence, is  altogether  immaterial.  I  am  clearly  liable  for  the  trespass, 
and  for  all  the  ordinary  consequences  of  the  trespass,  subject  to  a 
distinction  which  is  taken  very  early  in  the  books,  that  the  animal  is 
such  that  the  owner  may  have  a  property  in  it  which  is  recognizable  by 
law.  May  v.  Burdett,  9  O.  B.  101.  For  instance,  if  a  man's  cattle, 
or  sheep,  or  poultry,  stray  into  his  neighbour's  land  or  garden,  and 
do  such  damage  as  might  ordinarily  be  expected  to  be  done  by  things 
of  that  sort,  the  owner  is  liable  to  his  neighbour  for  the  consequences. 

The  question,  then,  is,  whether  the  injury  which  is  the  subject  of 
this  action  falls  within  that  rule.  Upon  the  result  of  the  authorities, 
I  am  of  opinion  that  it  does  not.  We  must  assume  that  the  injury 
to  the  plaintiff  was  caused  by  the  horse  having  viciously  kicked  him, 
as  a  horse  of  ordinary  temper  would  not  have  done.  Taking  that  to 
be  so,  I  am  of  opinion  that  the  plaintiff  cannot  maintain  the  action 
because  he  has  not  shown  that  the  defendant  knew  that  the  horse 
was  subject  to  that  infirmity  of  temper.  That  brings  the  case  within 
the  ordinary  rule  by  which  it  is  established  that  the  owner  is  not 
liable  unless  it  can  be  shown  that  he  was  aware  of  the  irritable  temper 
and  vice  of  the  animal.  There  is  no  trace  to  be  found  in  the  books 
of  an  owner  being  held  liable  beyond  the  consequences  of  ordinary 
trespasses,  in  the  absence  of  such  evidence  as  I  have  above  pointed 
out:   and  I  think  we  ought  not  to  introduce  a  new  ground  of  action." 


HAY  v.   COHOES  CO. 
(Court  of  Appeals  of  New  York,  1849.    2  N.  Y.  159,  51  Am.  Dec.  279.) 

Hay  sued  the  Cohoes  Company,  a  New  York  corporation,  in  the 
court  of  common  pleas  of  Albany  county.  The  declaration  alleged 
that  the  defendants,  by  their  agents,  wrongfully  and  unjustly  blasted 
and  threw  large  quantities  of  earth,  and  stones  upon  the  dwelling 
house  and  premises  of  the  plaintiff,  and  broke  the  windows,  doors, 
etc.,  to  the  plaintiff's  damage.  Plea,  not  guilty.  On  the  trial  the 
plaintiff  gave  evidence  tending  to  prove  his  declaration,  and,  among 
other  things,  that  the  agents  of  the  defendants,  in  excavating  a  canal 
on  land  of  which  they  claimed  to  be  the  owners,  knocked  down  the 
stoop  of  plaintiff's  house  and  part  of  his  chimney.  The  defendants 
moved  for  a  nonsuit,  insisting  that  to  make  them  liable  the  plaintiff 

0  The  statement  of  the  case,  which  was  framed  in  negligence,  is  abridged. 
The  concurring  opinions  of  Erie,  C.  J.,  and  Willes,  J.,  are  omitted. 


Ch.  1)  TRESPASSES  37 

must  both  aver  and  prove  that  there  was  negligence,  unskillfulness,  or 
wantonness  on  the  part  of  the  defendants,  and  this  the  plaintiff  fail- 
ed to  do.  The  common  pleas  nonsuited  the  plaintiff.  On  error,  the 
supreme  court  reversed  the  judgment,  and  granted  a  new  trial,  from 
which  decision  the  defendants  appealed.^^ 

Gardiner,  J.  The  defendants  insist  that  they  had  the  right  to  ex- 
cavate the  canal  upon  their  own  land,  and  were  not  responsible  for 
injuries  to  third  persons,  unless  they  occurred  through  their  negli- 
gence and  want  of  skill,  or  that  of  their  agents  and  servants. 

It  is  an  elementary  principle  in  reference  to  private  rights,  that 
every  individual  is  entitled  to  the  undisturbed  possession  and  lawful 
enjoyment  of  his  own  property.  The  mode  of  enjoyment  is  necessari- 
ly limited  by  the  rights  of  others — otherwise  it  might  be  made  de- 
structive of  their  rights  altogether.  Hence  the  maxim  sic  utere  tuo, 
etc.  The  defendants  had  the  right  to  dig  the  canal.  The  plaintiff 
had  the  right  to  the  undisturbed  possession  of  his  property.  If  these 
two  rights  conflict,  the  former  must  yield  to  the  latter,  as  the  more  im- 
portant of  the  two,  since,  upon  grounds  of  public  policy,  it  is  better 
that  one  man  should  surrender  a  particular  use  of  his  land,  than  that 
another  should  be  deprived  of  the  beneficial  use  of  his  property  al- 
together, which  might  be  the  consequence  if  the  privilege  of  the 
former  should  be  wholly  unrestricted.  The  case  before  us  illustrates 
this  principle.  For  if  the  defendants  in  excavating  their  canal,  in  it- 
self a  lawful  use  of  their  land,  could,  in  the  manner  mentioned  by  the 
witnesses,  demolish  the  stoop  of  the  plaintiff*  with  impunity,  they 
might,  for  the  same  purpose,  on  the  exercise  of  reasonable  care,  de- 
molish his  house,  and  thus  deprive  him  of  all  use  of  his  property. 

The  use  of  land  by  the  proprietor  is  not  therefore  an  absolute  right, 
but  qualified  and  limited  by  the  higher  right  of  others  to  the  lawful 
possession  of  their  property.  To  this  possession  the  law  prohibits  all 
direct  injury,  without  regard  to  its  extent  or  the  motives  of  the  ag- 
gressor. A  man  may  prosecute  such  business  as  he  chooses  upon  his 
premises,  but  he  cannot  erect  a  nuisance  to  the  annoyance  of  the  ad- 
joining proprietor,  even  for  the  purpose  of  a  lawful  trade.  Aldred's 
Case,  9  Coke,  58.  He  may  excavate  a  canal,  but  he  cannot  cast  the 
dirt  or  stones  upon  the  land  of  his  neighbor,  either  by  human  agency 
or  the  force  of  gunpowder.  If  he  cannot  construct  the  work  without 
the  adoption  of  such  means,  he  must  abandon  that  mode  of  using  his 
property,  or  be  held  responsible  for  all  damages  resulting  therefrom. 

i^The  declaration  was  in  case.  Whether  this  form  of  action  was  proper 
for  the  cause  asserted  was  questioned  by  the  Supreme  Court ;  and  the  action 
was  saved  with  difficulty.  See  the  report  of  the  case  in  Hay  v.  Cohoes  Co. 
(1848)  3  Barb.  (N.  Y.)  45--i9.  For  the  principle  of  pleading  involved,  see 
Whittier's  Cases  on  Common  Law  Pleading. 

The  act  of  the  New  York  Legislature  incoi^porating  the  defendant  company 
authorized  it  to  excavate  canals  on  its  own  land.  See  Hay  v.  Cohoes  Co. 
(1848)  3  Barb.  (N.  Y.)  42,  46. 

The  statement  of  facts  is  slightly  abridged.    Part  of  the  opinion  i*  omitted. 


38  TORTS  THROUGH    ACTS   OP   ABSOLUTE   LIABILITY  (Part  1 

He  will  not  be  permitted  to  accomplish  a  legal  object  in  an  unlawful 
manner.     *     *     * 

In  this  case,  the  plaintiff  was  in  the  lawful  possession  and  use  of 
his  own  property.  The  land  was  his,  and,  as  against  the  defendant, 
by  an  absolute  right  from  the  center  usque  ad  coelum.  The  defend- 
ants could  not  directly  infringe  that  right  by  any  means  or  for  any 
purpose.  They  could  not  pollute  the  air  upon  the  plaintiff's  premises, 
Morley  v.  Pragnell,  Cro.  Car.  510,  nor  abstract  any  portion  of  the 
soil,  Rol.  Abr.  565,  note;  Thurston  v.  Hancock,  12  Mass.  221;  nor 
cast  anything  upon  the  land,  Lambert  v.  Bessy,  Sir  T.  Raymond,  421, 
by  any  act  of  their  agents,  neglect,  or  otherwise.  For  this  would 
violate  the  right  of  domain.  Subject  to  this  qualification  the  defend- 
ants were  at  liberty  to  use  their  land  in  a  reasonable  manner,  accord- 
ing to  their  pleasure.  H  the  exercise  of  such  a  right  upon  their  part, 
operated  to  restrict  the  plaintiff  in  some  particular  mode  of  enjoying" 
his  property,  they  would  not  be  liable.  It  would  be  damnum  absque 
injuria. 

No  one  questions  that  the  improvement  contemplated  by  the  de- 
fendants upon  their  own  premises  was  proper  and  lawful.  The  means 
by  which  it  was  prosecuted  were  illegal  notwithstanding.  For  they 
disturbed  the  rightful  possession  of  the  plaintiff  and  caused  a  direct 
and  immediate  injury  to  his  property.  For  the  damages  thus  re- 
sulting, the  defendants  are  liable.     ***■}- 

Judgment  affirmed. 


BOOTH  V.  ROME,  W.  &  O.  T.  R.  CO. 

(Court  of  Appeals  of  New  York,  1893.     140  N.  Y.  267,  35  N.  E.  592,  24  L.  R. 

A.  105,  37  Am.  St.  Rep.  552.) 

In  making  a  lawful  excavation  on  its  own  land,  in  order  to  remove 
rock,  the  defendant  railway  company  loosened  the  rock  by  blasting. 
In  consequence  of  this  blasting  the  plaintiff's  house,  on  an  adjoining 
lot,  was  seriously  damaged,  the  foundations  being  cracked,  the  beams 
and  joists  pulled  apart,  the  plaster  loosened.  No  rocks  or  materials, 
however,  were  thrown  upon  the  plaintiff's  lot  or  against  his  house.  The 
inference  was  that  the  damage  to  the  plaintiff's  house  was  caused  by 

t  Accord:  Henry  Hall  Sons'  Co.  v.  Sundstrom  Co.  (1910)  138  App.  Div.  548, 
123  N.  Y.  Supp.  31)0:  The  complaint  allosed  that  the  defendant  was  blastiug 
near  the  plaintiff's  factory,  and  that  this  "Idasting  was  conducted  in  such  a 
manner  by  reason  of  the  negUgence  of  the  defendiint  that  large  rocks,  stones 
and  other  material  were  thrown"  upon  and  against  the  plaintill's  factory. 
The  character  of  the  cause  was  held  to  be  trespass,  notwithstanding  the  iso- 
lated allegation  of  negligence. 

Langhorne  v.  Turman  (1911)  141  Ky.  809,  133  S.  W.  1008,  34  L.  R.  A.  (N.  S.) 
211:  D.,  a  railway  company,  was  blasting  upon  its  right  of  way,  and  thereby 
caused  *<oil  and  rocks  to  be  thrown  ujion  I'.'s  land.  The  instruction  author- 
ized a  recovery  without  regard  to  whether  the  blasting  in  the  right  of  way 
was  d-one  negligently. 

For  other  cases,  see  Dec.  Dig,,  Key  No.,  "Explosives,"  §  12. 


Ch.  1)  TRESPASSES  39 

the  jarring  of  the  ground  or  the  concussion  of  the  atmosphere  created 
by  the  explosion,  or  by  both  causes  combined.  It  was  conceded  that 
the  defendant  exercised  due  care  in  the  blasting,  and  that  blasting  was 
necessary  in  order  to  remove  the  rock. 

In  an  action  to  recover  for  the  damage  thus  sustained  the  trial  judge 
instructed  the  jury  that  the  defendant  in  using  powerful  explosives  in 
blasting  the  rock  used  them  at  its  peril,  and  that  if  the  plaintiff's 
house  was  injured  thereby  the  defendant  was  liable  for  the  damages 
occasioned,  and  "that  it  made  no  difference  whether  the  work  was  done 
carefully  or  negligently."  Exception  was  taken  by  the  defendant  to 
this  instruction.  The  jury  found  that  the  damage  to  the  house  from 
the  blasting  was  $1,750,  and  this  sum  was  included  in  the  verdict.^' 
A  judgment  for  the  plaintiff  upon  this  verdict  was  affirmed  by  the 
General  Term  of  the  Supreme  Court.    The  defendant  appealed. ^- 

AndrEws,  C.  J.  *  *  *  The  plaintiff",  upon  the  findings  of  the 
jury,  sustained  a  serious  injury.  It  is  true  that  witnesses  on  the  part 
of  the  defendant  gave  evidence  tending  to  show  that  the  house  was 
imperfectly  constructed,  and  that  the  foundation  walls  were  giving 
way  before  the  excavation  was  commenced.  But  the  verdict  having 
been  affirmed  by  the  General  Term,  there  can  be  no  controversy  here 
that  the  blasting  caused  damage  to  the  house  to  the  amount  of  the 
verdict.    But  mere  proof  that  the  house  was  damaged  by  the  blasting 

11  This  statement  is  substituted  for  a  longer  statement  by  tbe  reporter. 
The  arguments  of  counsel  and  portions  of  the  opinion  are  oniittcid. 

12  "When  an  examination  is  made  of  the  cases  in  which  the  exact  point 
raised  in  the  case  at  bar  has  been  at  issue,  viz.,  whether  one,  who,  by  blasting 
with  powerful  explosives,  produces  severe  concussions  or  vibrations  in  sur- 
rounding earth  and  air,  and  so  materially  damages  buildings  belonging  to 
others,  is  liable  Irrespective  of  negligence  on  his  part,  a  sharp  and  irrecon- 
cilable conflict  of  authority  is  disclosed.  The  point  seems  to  have  come  up 
flrst  in  the  lower  courts  of  New  York,  where  it  was  decided  in  favor  of  the 
plaintiff,  following  the  reasoning  of  Hay  v.  Cohoes  Co.,  supra,  1(1849)  2  N. 
Y.  159,  51  Am.  Dec.  279],  and  other  cases.  ]\Iorgan  v.  Bowes,  62  Hun,  628, 
17  N.  Y.  Supp.  22  (Sup.  Ct.  1891) ;  Booth  v.  Rome,  etc.,  R.  Co.,  63  Hun,  624, 
17  N.  Y.  Supp.  336  (Sup.  Ct.  1892).  In  the  former  of  these  two  cases  the  Su- 
preme Court  says:  'The  appellants  claim  reversal  upon  two  grounds:  *  *  * 
Second,  that  an  action  for  damages  caused  by  blasting  on  one's  own  land 
will  only  lie  when  an  actual  trespass  upon  the  res  is  committed,  as  where 
rock  or  soil  is  blown  over  into  the  adjoining  lot  or  against  the  adjoining  house. 
*  *  *  We  think  the  second  point  taken  by  the  appellants  also  is  untenable. 
The  rules  which  have  been  laid  down  upon  the  subject  of  private  nuisances, 
causing  damage  to  individuals,  do  not  limit  the  right  of  action  as  thus  contend- 
ed for.  It  is  true  that  in  Hay  v.  Cohoes  Co.  (1849)  2  N.  Y.  159  [51  Am.  Dec. 
279],  fragments  of  the  rock  blasted  by  the  defendants  were  actually  thrown 
against  and  injured  the  iidjoining  building,  which  belonged  to  the  plaintiff. 
The  observations  of  the  learned  court  were  made  with  reference  to  that  fact: 
but  it  was  by  no  means  intimated  that  such  an  action  could  not  be  maintained, 
where  the  same  damage  was  produced  by  violent  and  continuous  concussions. 
On  the  contrary,  the  disturbance  of  the  plaintiff's  rightful  possession,  and  the 
direct  and  immediate  injury  to  his  property,  were  the  grounds  upon  which  the 
right  of  recovery  was  placed.  There  the  plaintiff's  stoop  was  demolished.  It 
was  certainly  unimportant  whether  such  demolition  resulted  from  the  direct  at- 
tack of  broken  rock  or  from  the  concussion  caused  bj'  the  blast.'  "  I'er  John- 
s(jn,  J.,  delivering  the  opinion  in  Ilickcy  v.  McCabe  (1910)  30  R.  I.  346,  75 
Atl.  404,  27  L.  R.  A.  (N.  S.)  425,  19  Ann.  Cas.  783. 


40  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

would  not  alone  sustain  the  action.  It  must  further  appear  that  the 
defendant  in  using  explosives  violated  a  duty  owing  by  him  to  the 
plaintiff  in  respect  of  her  property,  or  failed  to  exercise  due  care. 
Wrong  and  damage  must  concur  to  create  a  cause  of  action. 

If  the  injury  was  occasioned  by  the  omission  to  use  due  care,  this 
alone  would  sustain  the  action,  even  if  the  right  of  the  defendant  to 
use  explosives  in  removing  the  rock  was  conceded.  If  one  by  care- 
lessness in  making  an  excavation  on  his  own  land  causes  injury  to  an 
adjoining  building,  even  where  the  owner  of  the  house  has  no  easement 
of  support,  he  will  be  liable.  Leader  v.  Moxon,  3  Wils.  460;  Law- 
rence V.  Great  Northern  Railway  Co.,  16  Ad.  &  El.  643-653 ;  Leake's 
Law  of  Real  Prop.  248.  The  law  exacts  from  a  person  who  under- 
takes to  do  even  a  lawful  act  on  his  own  premises,  which  may  produce 
injury  to  his  neighbor,  the  exercise  of  a  degree  of  care  measured  by 
the  danger,  to  prevent  or  mitigate  the  injury.  The  defendant  could 
not  conduct  the  operation  of  blasting  on  its  own  premises,  from  which 
injury  might  be  apprehended  to  the  property  of  his  neighbor,  without 
the  most  cautious  regard  for  his  neighbor's  rights.  This  would  be 
reasonable  care  only  under  the  circumstances.  If  it  was  practicable 
in  a  business  sense  for  the  defendant  to  have  removed  the  rock  with- 
out blasting,  although  at  a  somewhat  increased  cost,  the  defendant 
would,  we  think,  in  view  of  the  situation,  and  especially  after  having 
been  informed  of  the  injury  that  was  being  done,  have  been  bound  to 
resort  to  some  other  method.  *  *  *  'x^he  plaintiff,  however,  on 
this  record,  is  precluded  from  claiming  that  the  judgment  may  be 
sustained  because  of  negligence  in  the  mode  of  blasting.  It  must  be 
assumed  from  concessions  made  on  the  trial  and  from  the  rule  of 
law  laid  down  by  the  court,  that  blasting  was  the  only  mode  of  re- 
moving the  rock  practically  available,  that  it  was  conducted  with  due 
care,  and  that  it  was  necessary  to  enable  the  defendant  to  conform  the 
roadbed  to  the  established  grade.     *     *     * 

The  rule  announced  by  the  trial  judge,  that  the  use,  by  an  owner 
of  property,  of  explosives  in  excavating  his  land,  is  at  his  peril  and 
imposes  liability  for  any  injury  caused  thereby  to  adjacent  property 
irrespective  of  negligence,  is  far  reaching.  It  would  constitute,  if 
sustained,  a  serious  restriction  upon  the  use  of  property,  and  in  many 
cases  greatly  impair  its  value.  The  situation  in  the  city  of  New  York 
furnishes  an  apt  illustration.  The  rocky  surface  of  the  upper  part  of 
Manhattan  Island  makes  blasting  necessary  in  the  work  of  excavation, 
and,  imless  permitted,  the  value  of  lots,  especially  for  business  uses, 
would  be  seriously  affected.  May  the  man  who  has  first  built  a  store 
or  warehouse  or  dwelling  on  his  lot  and  has  blasted  the  rock  for  a 
basement  or  cellar,  prevent  his  neighbor  from  doing  the  same  thing 
when  he  comes  to  build  on  his  lot  adjoining,  on  the  ground  that  by 
so  doing  his  own  structure  will  be  injured?  Such  a  rule  would  enable 
the  first  occupant  to  control  the  uses  of  the  adjoining  property,  to 
the  serious  injury  of  the  owner,  and  prevent  or  tend  to  prevent  the 


Ch.  1)  TRESPASSES  41 

improvement  of  property.  The  first  occupant  in  building  on  his  lot 
exercised  an  undoubted  legal  right.  But  his  prior  occupation  deprived 
his  neighbor  of  no  legal  right  in  his  property.  The  first  occupant  ac- 
quires no  right  to  exclude  an  adjoining  proprietor  from  the  free  use 
of  his  land,  nor  to  use  his  own  land  to  the  injury  of  his  neighbor 
subsequently  coming  there.  Piatt  v.  Johnson,  15  Johns.  213,  8  Am. 
Dec.  233;  Thurston  v.  Hancock,  12  Mass.  220;  Tipping  v.  St.  Helen's 
Smelting  Co.,  L.  R.  (1  Ch.  App.)  66;  Campbell  v.  Seaman,  63  N.  Y. 
568,  20  Am.  Rep.  567.  The  fact  of  proximity  imposes  an  obligation 
of  care,  so  that  one  engaged  in  improving  his  own  lot  shall  do  no 
unnecessary  damage  to  his  neighbor's  dwelling,  but  it  cannot,  we 
think,  exclude  the  former  from  employing  the  necessary  and  usual 
means  to  adapt  his  lot  to  any  lawful  use,  although  the  means  used 
may  endanger  the  house  of  his  neighbor. 

We  have  found  no  case  directly  in  point  upon  the  interesting  and 
important  practical  question  involved  in  this  appeal.  It  was  held  in 
the  leading  case  of  Hay  v.  Cohoes  Co.,  2  N.  Y.  159,  51  Am.  Dec.  279, 
that  the  right  of  property  did  not  justify  the  owner  of  land  in  com- 
mitting a  trespass  on  the  land  of  his  neighbor  by  casting  rocks  there- 
on in  blasting  for  a  canal  on  his  own  land  for  the  use  of  his  mill, 
although  he  exercised  all  due  care  in  executing  the  work.  In  that 
case  there  was  a  physical  invasion  by  the  defendant  of  the  land  of  the 
plaintifif.  This  the  court  held  could  not  be  justified  by  any  considera- 
tion of  convenience  or  necessity  connected  with  the  work  in  which 
the  defendant  was  engaged.  In  the  conflict  of  rights  the  court  con- 
sidered that  public  policy  required  that  the  right  of  the  defendant 
to  dig  the  canal  on  his  own  land  must  yield  to  the  superior  right  of 
the  plaintiff  to  be  protected  against  an  invasion  of  his  possession  by 
the  act  of  the  defendant.     *     *     * 

Many  of  the  cases  cited  by  the  counsel  are  cases  of  the  permanent 
appropriation  of  property,  for  damages,  or  noxious  uses  causing  dam- 
age. The  distinction  between  such  cases  and  those  where  the  injury 
arises  from  acts  done  in  the  necessary  adjustment  of  property  for  a 
lawful  use  by  means  necessary,  and  not  unusual,  but  involving  damage 
to  adjacent  property,  has  been  adverted  to.  We  recognize  the  difficulty 
of  formulating  a  general  rule  regulating  the  rights  of  adjacent  land- 
owners in  the  use  of  their  property,  and  we  realize  how  narrow  the 
margin  is  which  separates  this  from  some  decided  cases.  In  Marvin  v. 
Brewster  Iron  Co.,  55  N.  Y.  557,  the  opinion  of  the  learned  judge  who 
wrote  in  that  case  sustains  the  conclusion  we  have  reached  in  this  case. 
But  the  point  was  not  necessarily  involved,  since  it  was  held  that  the 
defendant  there  had  acquired  by  grant  the  right  to  employ  blasting  in 
removing  the  mineral,  and  that  the  plaintiff,  a  subsequent  grantee 
of  the  surface,  could  not  complain  of  injury  to  his  house  therefrom, 
in  the  absence  of  negligence  on  the  part  of  the  defendant  in  conduct- 
ing the  work.  Judge  Folger,  in  that  case,  said :  "Whatever  it  is 
necessary  for  him  [defendant]  to  do  for  the  profitable  and  beneficial 


42  TORTS   THROUGH   ACTS   OF   ABSOLUTE    LIABILITY  (Part  1 

enjoyment  of  his  own  possession,  and  whicli  he  may  do  with  no  ill 
effect  to  the  adjacent  surface  in  its  natural  state,  that  he  may  do, 
though  it  harm  erections  lately  put  there."  If  the  learned  judge  in- 
tended to  lay  down  the  rule  that  the  owner  of  land  may  do  anything 
on  his  own  land  which  would  do  no  injury  to  the  adjacent  property  if 
it  had  remained  in  its  natural  state,  the  proposition  is  probably  too 
broad.  One  may  do  in  a  barren  waste  many  things  which  he  could 
not  lawfully  do  in  or  near  an  inhabited  town. 

But  the  defendant  here  was  engaged  in  a  lawful  act.  It  was  done 
on  its  own  land,  to  fit  it  for  a  lawful  business.  It  was  not  an  act 
which,  under  all  circumstances,  would  produce  injury  to  his  neighbor, 
as  is  shown  by  the  fact  that  other  buildings  near  by  were  not  injured. 
The  immediate  act  was  confined  to  its  own  land ;  but  the  blasts,  by 
setting  the  air  in  motion,  or  in  some  other  unexplained  way,  caused 
an  injury  to  the  plaintiff's  house.  The  lot  of  the  defendant  could  not 
be  used  for  its  roadbed  until  it  was  excavated  and  graded.  It  was  to 
be  devoted  to  a  common  use;  that  is,  to  a  business  use.  The  blasting 
was  necessary,  was  carefully  done,  and  the  injury  was  consequential. 
There  was  no  technical  trespass.  Under  these  circumstances,  we  think, 
the  plaintiff  has  no  legal  ground  of  complaint.  The  protection  of  prop- 
erty is  doubtless  one  of  the  great  reasons  for  government.  But  it  is 
equal  protection  to  all  which  the  law  seeks  to  secure.  The  rule  gov- 
erning the  rights  of  adjacent  landowners  in  the  use  of  their  property 
seeks  an  adjustment  of  conflicting  interests  through  a  reconciliation 
by  compromise,  each  surrendering  something  of  his  absolute  freedom 
so  that  both  may  live.  To  exclude  the  defendant  from  blasting  to 
adapt  its  lot  to  the  contemplated  uses,  at  the  instance  of  the  plaintiff, 
would  not  be  a  compromise  between  conflicting  rights,  but  an  extin- 
guishment of  the  right  of  the  one  for  the  benefit  of  the  other.  This 
sacrifice,  we  think,  the  law  does  not  exact.  Public  policy  is  sustained 
by  the  building  up  of  towns  and  cities  and  the  improvement  of  prop- 
erty. Any  unnecessary  restraint  on  freedom  of  action  of  a  property 
owner  hinders  this.  The  law  is  interested,  also,  in  the  preservation 
of  property  and  property  rights  from  injury.  Will  it,  in  this  case, 
protect  the  plaintiff's  house  by  depriving  the  defendant  of  his  right  to 
adapt  his  property  to  a  lawful  use,  through  means  necessary,  usual, 
and  generally  harmless?    We  think  not. 

The  judgment  should  be  reversed,  and  a  new  trial  ordered,  with 
costs  to  abide  the  event.     All  concur. 

Judgment  reversed. ^^ 

J 3  Accord:  Simon  v.  Henry  (1898)  02  N.  J.  Law,  486,  41  Atl.  002:  "The 
temporary  use  of  explosives  in  tlie  blasting  of  rock,  provided  reasonable  care 
be  exorci.^od,  is  lawful,  and  damage  rosulliiig  from  concussion  thereby  pro- 
duced is  damnum  absque  injuria."  And  st>e  Derrick  v.  Kelly  (1!)1())  l.'UJ  App. 
Div.  4.'}3,  120  N.  Y.  iSupp.  !)'.)0  (D.  is  blasting  rock  on  his  own  property,  with- 
out negligence.  The  concussion  of  the  blast  breaks  a  water  main  under  the 
sidewalk.    The  water  floods  P.'s  cellar)  ;   Bleak  v.  Runde  (1912)  78  Misc.  Rep. 


Ch.  1)  TRESPASSES  43 

CLISSOLD  V.   CRATCHLEY  and  RICHARDS.  f'''^^ 

(High  Court  of  Justice,  King's  Bench  Division.     [1910]  1  K.  B.  374.) 

In  an  earlier  action  by  the  plaintiff,  against  Mrs.  Cratchley,  the 
Court  had  ordered  Clissold  to  pay  costs  amounting  to  127 .  12s.  4d. 
This  order  was  equivalent  to  a  judgment.  ]\Irs.  Cratchley's  solicitor, 
Richards,  who  had  an  office  in  London  with  a  branch  office  in  Glouces- 
tershire, wrote  from  his  London  office  to  plaintiff's  agents  in  London 
demanding  payment  by  11  A.  M.  of  December  16.  At  3:45  P.  M. 
of  that  day,  thinking  that  payment  had  not  been  made,  Richards  took 
out  a  writ  of  fi.  fa.  in  London.  This  writ  was  sent  to  the  sheriff  of 
Gloucestershire,  where  Clissold  resided,  and  an  execution  was  there 
levied  upon  personal  property  belonging  to  Clissold,  on  December  17. 
About  noon  of  December  16.  Clissold  had  paid  the  full  amount  of 
the  costs  to  Richard's  agent  in  Gloucestershire,  and  taken  a  receipt; 
and  this  agent  had  at  least  implied  authority  to  receive  payment  and 
give  a  receipt.  He  did  not,  however,  notify  Richards  of  the  pay- 
ment until  after  the  levy  of  the  execution.    Richards  then  telegraphed 

.358,  138  N.  Y.  Supp.  413  fP.'s  damage  was  caused  by  D.'s  hammering  on  the 
joists  of  his  adjoining  house.  "In  the  absence  of  evidence  that  this  hammer- 
ing was  excessive,  there  can  be  no  recovery  for  this  damage.  The  defendant 
has  a  right  to  alter  her  house  if  she  did  so  without  negligence."  Per  Leh- 
man, J.). 

On  the  application  of  the  principle  of  Booth  v.  Rome  R.  R'.  Co.,  see,  also, 
French  v.  Vix  (1S94)  143  N.  Y.  90,  93,  37  N.  E.  612;  Holland  House  v.  Baird 
(1901)  169  N.  Y.  136,  140,  62  N.  E.  149 ;  Page  v.  Dempsey  (1906)  184  N.  Y.  249, 
251,  77  N.  E.  11;  Dec.  Dig.,  Key  No.,  "Explosives,"  §  12;  "Adjoining  Land- 
owners," §  8 ;    19  Cyc.  7,  S,  note  32. 

But  in  some  cases  the  historic  reason  for  the  distinction  taken,  because  of 
the  technical  trespass,  in  Hay  v.  Cohoes  Co.  and  Booth  v.  Railway  Co.  is 
disregarded.  Thus,  it  is  remarlied,  per  Holloway,  J.,  in  Longtin  v.  Persell 
(l[i04)  30  Mont.  306,  76  Pac.  699,  65  L.  R.  A.  655,  104  Am.  St.  Rep.  723,  2  Ann. 
Cas.  198:  "If  the  damages  to  plaintiffs  property  had  been  caused  by  frag- 
ments of  rock  thro-mi  upon  his  property  or  against  his  dwelling  house  by  the 
blasting  which  defendants  were  doing,  the  authorities  are  practically  unani- 
mous in  holding  that  the  defendants  would  be  liable  even  though  they  exer- 
cised reasonable  care  in  their  operations.  Cooley  on  Torts,  332.  We  can  see 
no  reason  whatever  for  adopting  that  view,  and  at  the  same  time  holding 
that  they  are  not  liable  for  damages  occasioned  by  the  vibrations  of  the 
ground  or  the  concussion  of  the  air.  The  agency  employed  in  either  case 
is  the  same,  and  tlie  danger  as  imminent  in  one  case  as  in  the  other."  And 
see  Hickev  v.  McCabe  (1910)  30  R.  I.  346,  75  Atl.  404,  27  L.  R.  A.  (N.  S.)  425, 
19  Ann.  Cas.  783 ;  Patrick  v.  Smith  (1913)  75  Wash.  407,  134  Pac.  1076,  48  L. 
li.  A.  (X.  S.)  740;  10  Columbia  Law  Rev.  465,  27  Harvard  Law  Rev.  188. 
The  result  is  either  to  widen  our  inherited  doctrine  of  trespass,  imposing  a 
civil  liability  irrespective  of  the  question  of  blameworthiness,  or  to  bring  the 
concussion  of  the  air,  through  the  defendant's  intentional  act,  into  the  his- 
toric class  of  acts  vi  et  armis.  "Probably  the  reason  for  the  distinction  is 
that  the  courts  have  felt  them.selves  fettered  by  precedent  in  the  case  of  the 
technical  trespass,  and  yet  have  been  unwilling  to  extend  the  doctrine  of  the 
vibration  cases."     27  Harvard  Law  Rev.  189. 

For  cases  developing  the  doctrine,  see  Key  No.,  Dec.  Dig.,  "Adjoining  Land- 
owners," §  8;   and  see  19  Cyc.  8,  note  32. 


44  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

the  sheriff  to  withdraw  from  possession  immediately,  and  this  was  ac- 
cordingly done.^* 

Darling,  J.  (after  stating  the  facts).  Upon  these  facts  an  action 
is  brought  by  the  plaintiff  against  the  two  defendants,  and  it  is  con- 
tended that  they  are  liable  inasmuch  as  the  debt  was  paid  before  the 
writ  of  fi.  fa.  was  issued,  and  that  therefore  the  writ  was  irregular 
and  void.  Many  authorities  have  been  referred  to  which  seem  to 
me  to  establish  this,  that  an  action  on  the  case  will  not  lie  against  a 
person  suing  out  a  writ  after  the  debt  has  been  paid  unless  malice  on 
his  part  is  proved.     *     *     *  ^° 

It  is  contended,  however,  that  the  plaintiff  is  entitled  to  maintain  an 
action  of  trespass.  That  contention  is  based  upon  this,  that  Richards 
indorsed  upon  the  writ  of  fi.  fa.  a  direction  to  the  sheriff  to  levy  the 
amount  specified  therein  as  being  due  and  payable,  whereas  in  fact 
it  was  not  then  due  and  payable,  and  that  such  direction  to  the  sheriff' 
to  levy  execution  when  no  debt  existed  made  Richards,  who  gave  the 
direction,  and  his  client  trespassers.  I  was  at  first  rather  captivated 
by  that  argument,  and  thought  that  the  plaintiff  might  perhaps  main- 
tain an  action  of  trespass,  but  I  have  upon  further  reflection  come  to 
the  conclusion  that,  before  he  can  do  so,  he  must  distinguish  the  pres- 
ent case  from  Gibson  v.  Chaters.^*^  I  do  not  think  that  he  has  suc- 
ceeded in  distinguishing  that  case.  It  was  said  that  that  case  was  dis- 
tinguishable by  reason  of  the  fact  that  the  affidavit  of  the  defendant 
upon  which  the  writ  was  issued  was  made  before  the  debt  was  paid. 
That  is  true,  but  the  affidavit  was  not  the  ground  of  the  action.  The 
ground  of  the  action  was  this,  that  the  affidavit  having  been  made 
by  the  defendant  while  the  debt  was  unpaid  and  a  writ  of  capias 
having  been  issued  upon  it,  inasmuch  as  that  writ  could  not  be  ex- 
ecuted, afterwards  when  the  debt  had  been  paid  an  alias  writ  was 
taken  out  by  the  defendant's  attorney  grounded  upon  the  former  af- 
fidavit, and  the  plaintiff  was  arrested  under  this  latter  writ.  It  was 
not  the  making  of  the  affidavit,  but  the  issue  of  the  alias  writ,  which 
caused  the  plaintiff  to  be  arrested.  In  the  present  case  Richards  has 
done  nothing  more  than  was  done  by  the  defendant's  attorney  in 
that  case.  Richards  by  mistake,  thinking  that  t.he  debt  of  £27 .  12s. 
4d.  had  not  been  paid,  sued  out  a  writ  of  fi.  fa.,  indorsing  upon  the 
writ  a  statement  that  the  debt  was  due  and  payable  in  order  to  en- 
title him  to  have  the  writ  issued.  So  too  the  attorney  in  the  case 
of  Gibson  v.  Chaters  could  not  have  taken  out  the  alias  writ  unless 
he  had  stated  that  the  debt  was  unpaid.  Therefore,  unless  Gibson 
was  entitled  to  maintain  an  action  of  trespass  against  Chaters,  this 
action  will  not  lie  against  the  present  defendants.     It  was  not  sug- 

14  The  statement  of  facts  has  been  abridged;  the  arguments  of  counsel  are 
omitted. 

IB  See  infra,  "Malicious  Prosecution." 

10  Gibson  v.  Chaters  (ISOO)  2  Bos.  &  P.  120,  126  Reprint,  1196.  See  infra, 
"Malicious  Prosecution." 


Ch.  1)  TRESPASSES  45 

gested  in  Gibson  v.  Chaters  that  an  action  of  trespass  would  lie  if 
the  action  on  the  case  was  not  maintainable.  Therefore  I  am  of  opin- 
ion that  that  case  is  not  distinguishable  and  that  the  plaintiff  cannot 
maintain  this  action  for  trespass.     *     *     *  i^ 


CLISSOLD  V.   CRATCHLEY  and  RICHARDS.         ^'">^^-^ 
(Court  of  Appeal  [1910].     2  K.  B.  244.) 

The  Divisional  Court  (Darling  and  Phillimore,  JJ.)  having  held  that 
the  defendants  were  not  liable  in  trespass,  the  plaintiff  appealed.^** 

Vaughan  Williams,  L.  J.  I  am  of  opinion  that  this  appeal  must 
be  allowed,  although  I  do  not  think  that  the  principles  of  law  upon 
which  I  base  my  judgment  are  in  any  way  contravened  by  the  judg- 
ments delivered  in  the  Divisional  Court.  When  those  judgments  are 
read,  it  is  clear  that  both  of  them  recognize  the  distinction  between 
an  action  on  the  case  and  an  action  of  trespass ;  they  recognize  that 
in  an  action  on  the  case  for  maliciously  suing  out  process  the  allega- 
tion of  malice  is  one  of  fact  which  must  be  proved  by  the  plaintiff, 
and  that,  if  it  is  not  proved,  the  action  cannot  be  supported.  They 
further  recognize  that,  if  an  action  for  maliciously  suing  out  process 
is  not  an  action  on  the  case  but  an  action  of  trespass,  malice  is  in  no 
sense  essential  to  its  maintenance.  I  am  not  sure  how  it  came  to  pass 
that,  recognizing  these  distinctions,  the  judges  in  the  Divisional  Court 
decided  the  present  case  on  the  basis  that  this  action  could  not  succeed 
without  proof  of  malice.  The  plaint  in  the  action  shews  that  there 
were  alternative  causes  of  action  alleged :  the  action  was  in  part  for 
maliciously  issuing  process,  and  alternatively  for  trespass :  the  coun- 
ty court  judge  in  terms  recognized  this  fact  in  his  judgment,  which 
was  delivered  as  a  judgment  in  an  action  of  trespass.  Arriving,  as 
I  do,  at  the  conclusion  that  this  was  an  action  of  trespass,  and  that 
it  was  totally  unnecessary  for  the  plaintiff  to  give  evidence  of  malice, 
it  is  necessary  to  see  whether  anything  can  be  relied  on  as  shewing 
that  a  judgment  in  trespass  was  wrong.  I  can  see  nothing  at  all  to 
warrant  such  a  conclusion.  It  is  suggested  that,  when  execution  was 
issued,  the  judgment  against  the  plaintiff  was  still  in  force,  notwith- 
standing that  the  total  amount  of  debt  and  costs  ordered  by  it  to  be 
paid  by  the  plaintiff  had  in  fact  been  paid,  and  a  receipt  had  been 
given  for  it  by  a  person  authorized  to  receive  the  money  and  give 
the  receipt.  It  is  said  that,  notwithstanding  that  fact,  there  was  a 
still  existing  judgment  which  would  support  the  writ  of  execution, 
and  which  was  still  in  force.     But  common  sense,  wholly  apart  from 

17  Part  of  the  opinion  of  Darling,  J.,  and  the  concurring  opinion  of  Philli- 
more, J.,  are  omitted. 

18  The  statement  of  facts,  the  arguments  of  counsel,  and  the  concurring 
opinion  of  Farwell,  J.,  are  omitted. 


46  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

authority,  tells  one  that,  when  the  total  amount  has  been  paid  which 
is  ordered  by  a  judgment  to  be  paid,  the  judgment  ought  no  longer  to 
be  of  any  force  or  effect.  But,  as  it  has  been  argued  that  a  writ  of 
execution  is  good  so  long  as  the  judgment  under  which  the  moneys 
have  been  paid  has  not  in  law  been  set  aside,  it  is  convenient  to  shew 
the  authority  for  the  proposition  that,  when  the  total  amount  of  a 
judgment  debt  has  been  paid,  the  judgment  ceases  to  be  of  any  avail. 
In  Tebbutt  v.  Holt  (1844)  1  Car.  &  K.  280,  at  p.  289,  Parke,  B.,  said, 
"The  law  also  is  that,  if  the  debt  and  costs  are  paid  or  satisfied,  the 
judgment  is  at  an  end."  This  judgment  is  at  an  end.  And  in  Bullen 
and  Leake's  Precedents  (3d  Ed.)  at  p.  353,  I  find  this  statement :  "An 
action  will  not  lie  for  an  arrest  on  final  process  upon  a  subsisting  un- 
satisfied judgment  (Blanchenay  v.  Burt  [1843]  4  O.  B.  707;  Huffer 
V.  Allen  L.  R.  2  Ex.  15,  36  L.  J.  Ex.  17);  but  if  the  party  arrested 
can  get  the  judgment  set  aside  for  irregularity  or  on  any  other  ground, 
or  can  shew  that  the  judgment  was  satisfied  by  payment  or  otherwise 
before  the  arrest,  he  may  then  maintain  an  action :  the  arrest  in  such 
case  would. in  general  support  an  action  of  trespass."  Under  the  cir- 
cumstances it  seems  unnecessary  to  add  anything.  The  cases  on  which 
reliance  has  been  placed  on  behalf  of  the  defendants  are  all  instances 
of  actions  on  the  case  for  maliciously  issuing  process;  not  a  single 
authority  has  been  cited  to  justify  the  proposition  that  a  satisfied  judg- 
ment is  nevertheless  still  an  existing  judgment  for  the  purpose  of  is- 
suing a  writ  of  execution.  If  the  judgment  was  not  an  existing  judg- 
ment, it  is  manifest  that  the  writ  of  execution  issued  under  it  was 
void  ab  initio,  and  that  an  entry  has  been  made  upon  the  plaintiff's 
premises  under  a  writ  void  ab  initio.  The  defendants  are  consequent- 
ly liable  in  an  action  of  trespass. 

FivETcHKR  MouLTON,  L.  J.  I  am  of  the  same  opinion.  The  acts 
complained  of  clearly  constituted  a  trespass,  and  it  was  for  the  de- 
fendants to  justify  their  action.  The  sole  defence  relied  on  is  that 
there  was  an  order  for  payment  of  costs  which  was  equivalent  to  a 
judgment,  and  that  a  writ  of  execution  was  sued  out,  under  which 
the  defendants  acted.  The  plaintiff  replies  that  (as  is  now  admitted 
to  be  the  case)  prior  to  the  suing  out  of  the  writ  the  order  had  been 
obeyed.  I  am  satisfied  that  in  this  state  of  things  the  order  was  dead 
for  all  purposes,  and  that  the  suing  out  of  a  writ  of  execution  un- 
der an  order  which  had  already  been  obeyed  was  an  act  void  ab  initio 
and  could  justify  nothing.  This  is  therefore,  in  my  opinion,  an  un- 
defended action  of  trespass.  The  judges  in  the  Divisional  Court  did 
not,  I  think,  realize  that  at  the  date  of  the  decision  of  Gibson  v.  Cha- 
ters  ^®  the  form  of  an  action  was  of  prime  importance  in  the  eyes  of 
the  Court,  nor  did  they  realize  how  great  would  be  considered  the 
difference  between  actions  for  maliciously  holding  to  bail  or  actions 
on  the  case  in  which  malice  is  alleged,  on  the  one  hand,  and  action;? 

19  1800,  2  Bos.  &  P.  129,  126  Reprint,  1196. 


Ch.  1)  TRESPASSES  47 

of  trespass,  on  the  other.  No  case,  however,  was  cited  either  in  the 
Divisional  Court  or  before  us  which  in  any  way  contravenes  the  prop- 
osition that  a  writ  of  execution  upon  a  satisfied  judgment  is  null  and 
void. 

Appeal  allowed. 


SECTION  2.— ELEMENTS  OF  A  PRIMA  FACIE  CAUSE  IN 

TRESPASS 

I.  In  Trespass  to  the;  Person 
(A)  In  Assault 


SMITH  V.  NEWSAM. 

(Court  of  King's  Bench,  1674.     3  Keble,  283,  84  Reprint,  722.) 

In  trespass  of  assault  and  battery,  on  verdict  of  the  assault,  and  not 
guilty  of  the  battery,  being  only  of  a  woman's  shaking  a  sword  against 
the  plaintiff  in  a  cutlers  shop,  being  on  the  other  side  of  the  street. 

Hale,  Chief  Justice,  certified  the  assault  well  proved:  and  now 
Saunders  prayed  no  more  costs  than  damages,  which  was  a  noble ; 
and  per  curiam  it  was  granted :  and  Hale,  Chief  Justice,  said  he  cer- 
tified industriously,  thinking  this  not  within  the  statute  unless  the  bat- 
tery had  been  found. -° 


TOMBS  v.  PAINTER. 

(Court  of  King's  Bench,  1810.     13  East,  1,  104  Reprint,  265.) 

Debt  on  bond,  in  the  penalty  of  ilOO.,  conditioned  not  to  assault, 
molest,  or  injure  the  person  of  the  plaintifif  wilfully  or  designedly  in 
anywise  howsoever.  Plea,  that  the  defendant  had  not  done  so.  Rep- 
lication, that  the  defendant  on  such  a  day,  assaulted,  molested,  and 
injured  the  person  of  the  plaintiff  wilfully  and  designedly,  by  then 
and  there  with  force  and  arms  wilfully  and  designedly  beating,  bruis- 
ing, wounding,  and  otherwise  ill-treating  him.     Rejoinder,  that  the  de- 

20  The  statute  referred  to  is  the  act  of  1670  (22-23  Car.  II,  c.  9),  which  pro- 
vided that  •'in  all  actions  of  ti'espass,  assault  and  battery,  and  other  personal 
actions,"  if  the  jury  found  the  damages  to  be  under  40s.,  the  plaintiff  should 
have  no  more  costs  than  damages,  unless  the  judge  "shall  find  and  certify 
under  his  hand  upon  the  back  of  the  record  that  an  assault  and  battery  was 
sufhciently  i)roved  by  the  plaintiff  against  the  defeudant,  or  that  the  free- 
hold or  title  of  the  land  mentioned  in  the  plaintiff's  declaration  was  chiefly 
in  question."  Tliat  the  question  was  a  troublesome  one,  see  Newsam  v. 
Smith  (1674)  3  Keble,  292;    Smith  v.  Nusam  (1674)  3  Keble,  303. 


48  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

fendant  did  not  assault,  molest,  or  injure  the  person  of  the  plaintiff, 
wilfully  and  designedly,  modo  et  forma ;   and  concluding  to  the  country. 

At  the  trial,  the  evidence  was  that  these  parties  being  in  the  same 
public-house  in  different  parts  of  the  room,  the  defendant  jumped  up 
from  his  seat,  with  his  fist  clenched,  as  if  to  strike  the  plaintiff',  but 
was  pulled  back  to  his  seat  by  another  person,  and  did  not  get  within 
reach  of  the  plaintiff";  but  he  abused  him  and  swore  at  him,  and 
drank  the  beer  out  of  his  cup.  This,  it  w^as  contended,  did  not  sup- 
port the  issue  of  the  plaintiff,  which  was  that  the  defendant  assaulted, 
molested,  and  injured  the  plaintiff's  person  by  beating,  etc.,  "and  oth- 
erwise ill-treating"'  him.  But  the  learned  Judge  thought  that  the 
evidence  satisfied  the  latter  w^ords,  and  the  plaintiff  took  a  verdict 
with  one  shilling  damages  for  the  detention  of  the  debt  and  one  shil- 
ling damages  upon  the  breach  assigned.    And  now. 

Lens,  Serjt.,  moved,  by  leave,  to  set  aside  the  verdict  and  enter  a 
nonsuit;  and,  first,  renewed  the  objection,  that  the  evidence  did  not 
sustain  the  issue,  which  was  confined  to  an  ill  treatment  of  the  plain- 
tiff''s  person. 

Lord  Elle;nborough,  C.  J.  The  clenching  his  fist  at  the  plaintiff 
was  an  assault,  and  an  act  of  personal  offence.     *     *     * 

Rule  refused. 


LEWIS  v.  HOOVER. 

(Supreme  Court  of  Indiana,  1834.    3  Blackf.  407.) 

Trespass,  assault  and  battery.  Plea,  not  guilty.  Verdict  and  judg- 
ment for  the  defendant.  The  plaintiff  asked  the  Court  to  charge 
the  jury  that  if  they  thought  from  the  evidence  that  the  defendant 
struck  at  the  plaintiff  with  a  stick,  in  a  violent  and  angry  manner, 
within  striking  distance  of  him,  they  ought  to  find  for  the  plaintiff. 
This  charge  the  Court  gave,  but  added,  as  an  additional  charge,  that 
if  no  damage  was  proved  to  have  resulted  from  the  said  assault,  they 
ought  to  find  for  the  defendant.  To  this  additional  and  latter  charge 
the  plaintiff  excepted,  and  prosecuted  a  writ  of  error. 

Stevens,  J.  The  only  question  to  be  determined  is,  whether  that 
latter  and  additional  charge  of  the  Court  was  correct?  An  assault 
is  an  attempt  or  offer  with  violence  to  do  a  corporal  hurt  to  another, 
as  if  one  lift  up  his  cane  or  fist  at  another  in  a  threatening  manner, 
or  strike  at  him  with  a  stick,  his  fist,  or  any  weapon,  within  striking 
distance,  but  miss  him.  This  is  called  an  unlawful  setting  upon  one's 
person,  and  is  an  inchoate  violence  for  which  the  party  assaulted  may 
have  redress  by  an  action  of  trespass  vi  et  armis,  and  shall  recover 
damages  as  a  compensation,  although  no  actual  suft'cring  or  injury 
is  proved.  The  damages  are  not  assessed  for  the  mere  corporal  in- 
jury or  pecuniary  loss,  but  for  the  malicious  and  insulting  conduct 
of  the  defendant.     3  Bl.  Com.  120;    1  Bac.  Abr.  242;    1  Saund.  on 


Ch.  1)  TRESPASSES  49 

PI.  &  Ev.  103,  104.  From  this  it  appears  that  the  above  additional  and 
latter  charge  of  the  Circuit  Court  to  the  jury  is  incorrect,  and  should 
not  have  been  given. 

Per  Curiam.    The  judgment  is  reversed,  and  the  verdict  set  aside, 
with  costs.    Cause  remanded,  etc. 


TUBERVILLE  v.  SAVAGE. 

(Court  of  King's  Bench,  1669.     1  Mod.  3,  86  Reprint,  684.) 

Action  of  assault,  battery,  and  wounding.  The  evidence  to  prove 
provocation  was,  that  the  plaintiff  put  his  hand  upon  his  sword  and 
said,  ''If  it  were  not  assize-time,  I  would  not  take  such  language  from 
you."     The  question  was.  If  that  were  an  assault? 

The  Court  agreed  that  it  was  not ;  for  the  declaration  of  the  plain- 
tiff was,  that  he  would  not  assault  him,  the  Judges  being  in  town; 
and  the  intention  as  well  as  the  act  makes  an  assault.  Therefore  if 
one  strike  another  upon  the  hand,  or  arm,  or  breast  in  discourse,  it  is 
no  assault,  there  being  no  intention  to  assault;  but  if  one,  intending 
to  assault,  strike  at  another  and  miss  him,  this  is  an  assault:  so  if 
he  hold  up  his  hand  against  another  in  a  threatening  manner  and  say 
nothing,  it  is  an  assault. 

In  the  principal  case  the  plaintiff  had  judgment.^^ 


UNITED  STATES  v.  MYERS. 

(Circuit  Court,  District  of  Columbia,  1806.    1  Crauch,  C.  C.  310, 

27  Fed.  Cas.  43.) 

Presentment,  for  an  assault  on  Jane  McGratb-  The  evidence  was 
that  the  defendant  (Samuel  Myers)  doubled  his  fist  and  ran  it  towards 
the  witness,  saying,  "If  you  say  so  again,  I  will  knock  you  down." 

Mr.  Key,  for  defendant,  contended  that  it  was  not  an  assault.  The 
words  explain  the  act,  and  show  the  intention  not  to  be  to  commit  a 
battery.  It  was  like  the  case  of  the  man  putting  his  hand  on  his 
sword,  and  saying,  "If  it  were  not  term  time  or  assizes,  I  would  kill 
you,"  etc. ;  and  he  moved  the  court  to  instruct  the  jury  that  it  was 
no  assault. 

The  Court  (nem.  con.)  refused  to  give  the  instruction. 

Verdict,  "Guilty."    Fined  five  dollars.-^ 

21  Compare  Keep  v.  Quallman  (1887)  68  Wis.  451,  32  N.  W.  233,  the  facts  of 
which  are  given  infra,  "Defence  of  the  Person." 

22  Accord :  United  States  v.  Richardson  (1837)  5  Cranch,  C.  C.  348,  27  Fed. 
Cas.  798  (D.  raised  a  club  over  the  head  of  a  woman,  within  striking  distance, 
and  threatened  to  strike  her  if  she  opened  her  mouth)  ;  State  v.  Morgan 
(1842)  3  Ired.  (25  N.  C.)  186,  38  Am.  Dec.  714  (D.,  stepping  within  reach  of  P. 

Hepb. Torts — 1 


50  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

and  holding  an  ax  up  in  a  position  to  strike,  said  to  P.:  "Give  up  the  gun,  or 
I'll  split  you  down")  ;  Keefe  v.  State  (1857)  19  Ark.  190  (K.  drew  a  pistol, 
cocked  it,  pointed  it  towards  the  breast  of  F.,  and  said:  "If  you  do  not  pay 
me  my  money  I  will  have  your  life"'). 

On  the  reason  for  the  rule,  see  the  remarks  of  Gaston,  J.,  in  State  v.  Mor- 
gan, ante:  "There  are  several  ancient  cases  in  which  it  was  held,  that  an 
as.sault  might  be  committed  by  threats  of  future  violence;  but  it  has  long 
been  settled,  that  words  alone  can  not  constitute  an  assault.  They  may  en- 
danger the  public  peace,  but  do  not  break  it.  There  is  no  assault,  unless 
there  be  some  act,  amounting  to  an  attempt  or  offer  to  commit  personal  vio- 
lence. The  instances  usually  given  of  such  attempts  or  offers  to  do  wrong 
to  the  person  of  another,  are  'by  the  striking  at  him  with  or  without  a  weap- 
on, or  presenting  a  gun  at  him  within  a  distance  which  the  gun  will  carry, 
or  pointing  a  pitchfork  at  him  standing  within  the  reach  of  it,  or  by  holding 
up  one's  fist  at  him  in  an  angry,  threatening  manner.'  1  Hawk.,  c.  15.  The 
law  regards  these  acts  as  breaches  of  the  peace,  because  they  directly  invade 
that  personal  security,  which  the  law  guarantees  to  every  citizen.  They  do 
not  excite  an  apprehension  that  his  person  may  be  attacked  on  a  future  occa- 
sion, and  thus  authorize  a  resort  to  cautionary  remedies  against  it;  but  they 
are  the  beginnings  of  an  attack,  excite  terror  of  immediate  personal  harm 
or  disgrace,  and  justify  a  resort  to  actual  violence  to  repel  the  impending 
injury  and  insult.  But  even  acts,  which  prima  facie  and  unexplained  are 
undoubtedly  assaults,  like  other  acts  which  are  not  unequivocal  in  their  char- 
acter, may  be  shovpn  to  be  in  truth  different  from  what  they  purport  to  be; 
that  they  are  not  attempts  or  offers  to  do  harm,  but  merely  angry  gestures 
without  any  accompanying  purpose  of  mischief.  The  attending  circumstances 
may  plainlj'  show  this,  and,  among  other  circumstances,  the  declarations  of 
the  party  at  the  time,  inasmuch  as  such  declarations  are  ordinarily  indica- 
tive of  the  party's  purpose,  are  very  proper  to  be  considered  and  weighed. 
The  ordinary  illustration  of  the  doctrine,  that  a  seeming  assault  may  be 
explained  away  by  the  declarations  of  the  supposed  assailant,  is  the  very 
familiar  case,  where  a  man  laid  his  hand  on  his  sword  and  said  to  the  per- 
son, with  whom  he  was  quarreling :  'If  it  were  not  assize-time,  I  would  not 
take  such  language  from  you.'  There  is  also  an  illustration  of  it  in  the  case 
of  the  State  v.  Crow  (1841)  23  N.  C.  875,  where  the  defendant,  when  he 
raised  the  whip,  used  the  words:  'If  you  were  not  an  old  man,  I  would  knock 
you  down.'  In  both  it  was  held  to  be  a  fair  subject  of  inquiry,  whether,  at  the 
time  these  acts  were  done,  there  was  a  present  purpose  of  doing  harm,  and 
that,  if  there  was  not,  the  acts  did  not  amount  to  an  assault.  But  these,  and 
all  the  cases  within  our  recollection  where  this  doctrine  has  been  held,  were 
cases,  in  which  there  was  a  declared  intent  not  to  do  harm  at  the  time.  The 
present  case  is  one  of  a  very  different  character.  The  act  was  not  only  ap- 
parently a  most  dangerous  assault,  but  accompanied  with  a  present  purpose 
to  do  great  bodily  harm ;  and  tlie  only  declaration,  by  which  its  character  is 
attempted  to  be  changed,  is,  that  the  assailant  was  not  determined  to  execute 
his  savage  purpose  unconditionally  and  without  a  moment's  delay.  He  had 
commenced  the  attack  and  raised  the  deadly  weapon  and  was  in  the  attitude 
to  strike,  but  suspended  the  blow,  to  afford  the  object  of  his  vengeance  an 
opportunity  to  buy  his  safety,  by  compliance  with  the  defendant's  terms.  To 
hold  that  such  an  act,  under  such  circumstances,  was  not  an  offer  of  vio- 
lence— not  an  attempt  to  commit  violence — would  be,  we  think,  to  outrage 
principle  and  manifest  an  utter  want  of  that  solicitude  for  the  preservation 
of  peace  which  characterizes  our  law,  and  which  should  animate  its  admin- 
istrators. To  every  purpose — both  in  fact  and  in  law — the  attack  on  the 
prosecutor  was  begun;  and  in  the  pause,  which  intervened  before  its  con- 
summation, most  hai)pily  for  botli  i)arties  an  arrangement  was  made,  which 
prevented  the  probably  fatal  result.  Tut  this  pause — though  intentional,  and 
announced  when  the  attack  began — does  not  prevent  that  attack  from  being 
an  offer  or  attempt  to  strike.  If  a  rullian  were  to  level  his  rifle  at  a  traveler, 
and  announce  to  him  that  he  might  have  fifteen  minutes  to  make  his  peace 
with  his  God — and  the  unfortunate  man  should  save  his  life  by  prayers,  b.v 
remonstrance,  by  money,  or  by  any  other  means  before  the  expiration  of 
that  time,  could  it  be  pretended  that  there  had  been  no  attempt  nor  offer  to 
hurt  him,  because  the  intent  was  not  to  kill  instantaneously,  and  therefore 


Ch.  1)  TRESPASSES  51 


BEACH  V.  HANCOCK. 

(Supreme  Court  of  Judicature  of  New  Hampshire,  1853.    27  N.  H.  223, 

59  Am.  Dee.  373.) 

Trespass  for  an  assault.  At  the  trial  it  appeared  that  the  plain- 
tiff and  the  defendant  were  engaged  in  an  angry  altercation,  when  the 
defendant  stepped  into  his  office  and  brought  forth  a  gun,  which  he 
pointed  in  an  excited  and  threatening  manner  at  the  plaintiff,  who 
was  standing  three  or  four  rods  distant.  The  gun  was  not  loaded,  but 
this  fact  was  not  known  to  the  plaintiff.  The  evidence  tended  to 
show  that  the  defendant  snapped  the  gun  twice  at  the  plaintiff.  The 
court  ruled  that  pointing  a  gun,  in  an  angry  and  threatening  manner, 
at  a  person  three  or  four  rods  distant,  who  was  ignorant  whether  the 
gun  was  loaded  or  not,  was  an  assault,  though  it  should  appear  that 
the  gun  was  not  loaded,  and  that  it  made  no  difference  whether  the 
gun  was  snapped  or  not.  The  court  further  instructed  the  jury  that, 
in  assessing  the  damages,  it  was  their  right  and  duty  to  consider  the 
effect  which  the  finding  of  light  or  trivial  damages  would  have  to  en- 
courage disturbances  and  breaches  of  the  peace.  Defendant  excepted 
to  both  of  these  instructions. 

Gilchrist,  C.  J.  *  *  *  One  of  the  most  important  objects 
to  be  attained  by  the  enactment  of  laws  and  the  institutions  of  civil- 
ized society  is,  that  each  of  us  shall  feel  secure  against  unlawful  as- 
saults. Without  such  security,  society  loses  most  of  its  value.  Peace 
and  order  and  domestic  happiness,  inexpressibly  more  precious  than 
mere  forms  of  government,  cannot  be  enjoyed  without  the  sense  of 
perfect  security.  We  have  a  right  to  live  in  society  without  being  put 
in  fear  of  personal  harm.  But  it  must  be  a  reasonable  fear  of  which 
we  complain.  And  surely  it  is  not  unreasonable  for  a  person  to  en- 
tertain a  fear  of  personal  injury  wlien  a  pistol  is  pointed  at  him  in  a 
threatening  manner,  when,  for  aught  he  knows,  it  may  be  loaded,  and 
may  occasion  his  immediate  death.  The  business  of  the  world  could 
not  be  carried  on  with  comfort  if  such  things  could  be  done  with 
impunity. 

We  think  the  defendant  guilty  of  an  assault,  and  we  perceive  no 
reason  for  taking  any  exception  to  the  remarks  of  the  court.  Finding 
trivial  damages  for  breaches  of  the  peace,  damages  incommensurate 

did  not  accompany  the  act?  Will  it  be  doubted,  if  a  bully  should  present  his 
pistol  at  a  citizen  and  order  him,  under  pain  of  death,  not  to  wallv  on  the 
same  side  of  the  street  with  him,  wliether  there  was  an  otter  of  violence,  be- 
cause tlie  purpose  to  liill  was  not  absolute  but  conditional  mei'oly?  Whether 
the  act  is  done  in  part  execution  of  a  purpose  of  violence — whether  that  pur- 
pose be  al)solute  or  provisional — makes  no  ditference  as  respects  the  question, 
whether  the  act  be  an  assault.  In  both  cases  the  assailant  eipially  violates 
the  public  peace.  In  both  he  breaks  down  the  barrier  which  the  law  has 
erected  for  the  security  of  the  citisceu.  In  the  former  he  sets  up  none  in  its 
place.  In  the  latter,  he  substitutes  for  It  the  protection  of  his  grace  and 
favor." 


52  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

with  the  injury  sustained,  would  certainly  lead  the  ill  disposed  to 
consider  an  assault  as  a  thing  that  might  be  committed  with  impunity. 
But  at  all  events,  it  was  proper  for  the  jury  to  consider  whether  such 
a  result  would  or  would  not  be  produced:  Flanders  v.  Colby,  28  N. 
H.  34. 

Judgment  on  the  verdict.^^ 


WHITE  V.  SANDER  (two  cases). 
(Supreme  Judicial  Court  of  Massachusetts,  1897.    168  Mass.  296,  47  N.  E.  90.) 

These  were  two  actions  of  tort,  one  by  Benjamin  White,  and  the 
other  by  Emma  White,  his  wife,  against  »Sander,  to  recover  damages 
for  personal  injuries  from  fright  caused  by  the  defendant  throwing  a 
stone  into  a  room  where  the  wife  was.  The  jury  returned  a  verdict 
for  the  husband  for  $179.30  and  for  the  wife  for  $847.47,  and  the  de- 
fendant excepted. 

Allen,  J.  There  was  no  evidence  that  the  defendant  had  any 
intention  to  injure  the  female  plaintiff,  or  that  he  was  aware  of  her 
condition  of  health.  The  house  did  not  belong  to  her,  but  to  her 
father,  with  whom  the  defendant  had  an  altercation.  The  defendant's 
declared  purpose  was  to  injure  the  house,  and  he  threw  a  large  stone 
against  it,  in  her  presence.  She  then  ran  into  the  front  room,  with 
her  little  child,  whereupon  a  large  stone  was  willfully  thrown  by  the 
defendant,  which  passed  through  one  of  the  blinds,  all  of  the  blinds 
upon  the  front  windows  being  closed.  This  greatly  frightened  her, 
though  she  was  not  struck  or  touched.  We  do  not  understand  by  the 
bill  of  exceptions  that  the  defendant  knew  that  she  was  in  that  room, 
or  that  he  had  any  purpose  either  to  hit  or  to  frighten  her,  or  that  it 
was  designed  to  present  to  us  a  case  of  an  intentional  injury  to  her 
or  to  her  property.  These  elements  being  absent,  the  defendant  w^as 
not  responsible  in  damages  for  her  fright  or  the  consequent  injury 
to  her  health.  Spade  v.  Railroad  Co.,  168  Mass.  285,  47  N.  E.  88. 
38  L.  R.  A.  512,  60  Am.  St.  Rep.  393.  Under  the  order  taking  off  the 
default,  the  defendant  was  responsible  for  nominal  damages.  Ex- 
ceptions sustained. 


NELSON  v.  CRAWFORD. 

(Supreme  Court  of  Michigan,  1899.    122  Mich.  466,  81  N.  W.  335, 

80  Am.  St.  Rep.  577.) 

Action  for  personal  injuries  by  Sarah  Nelson  against  Robert  Craw- 
ford.    From  a  judgment  for  defendant,  plaintiff  brings  error. 

Plaintiff  and  her  husband  resided  on  a  farm  about  40  rods  from  the 
residence  of  defendant.     One  evening  defendant,  dressed  in  woman's 

2  3  The  statement  of  the  case  is  abridged.  Only  so  much  of  the  opinion  is 
given  as  relates  to  the  one  point. 


Ch.  1)  TRESPASSES  53 

clothes,  navy  blue  bicycle  skirt,  light  waist,  sailor  hat,  with  flowers 
on  it,  and  thin,  black  face  veil,  took  a  parasol,  and  went  to  her  house. 
He  had  been  a  frequent  visitor  there  and  was  accustomed  to  play  with 
her  children.  Although  for  many  years  he  had  been  adjudged  in- 
sane or  incompetent,  his  mialady  was  of  a  harmless  character,  and  it 
had  never  been  considered  necessary  to  restrain  him.  There  is  no 
testimony  to  show  that  he  acted  from  malicious  motives,  or  with  any 
intent  to  do  injury  to  plaintiff  or  any  one.  He  said  to  others,  shortly 
afterwards,  "I  did  it  to  have  a  little  fun;  to  see  if  they  had  any 
nerve."  As  he  approached  the  back  of  the  house,  plaintiff  stepped  to 
the  back  door,  and  saw  defendant  standing  three  or  four  rods  away. 
She  spoke  to  him,  but  he  made  no  reply,  *  *  *  only  "mumbled." 
She  testified  that  she  was  frightened  and  ran  into  the  house,  and  into 
her  bedroom,  where  her  husband  was  in  bed ;  that  she  called  to  her 
husband  to  get  up,  telling  that  "there  is  something  here ;  I  don't  know 
what  it  is;"  that  defendant  followed  her  into  the  house,  and  to  the 
bedroom  door;  that  her  husband  took  up  a  stick  of  wood,  raised  it, 
and  told  defendant  to  get  out  of  the  house;  that  defendant  then  gave 
his  name ;  that  she  was  made  ill  by  fright ;  and  that  on  October  22d, 
42  days  after  the  fright,  she  had  a  miscarriage,  which  she  attributes 
to  the  fright.  The  only  demonstration  he  made  was  by  tapping  the 
end  of  his  parasol  on  the  ground  or  floor.  This  suit  is  brought  to 
recover  damages  resulting  from  the  fright.  The  court  directed  a  ver- 
dict for  the  defendant. 

Grant,  C.  J.     We  think  the  court  properly  held  that  no  violence 
was  offered  or  threatened,  and  therefore  there  was  no  assault.^* 


24  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point. 

In  the  ouiitted  portion  of  the  opinion,  the  court  considers  the  question  wheth- 
er fright  unaccompanied  by  pliysical  injury  is  recognized  by  the  law  as  a  basis 
for  damages.    The  answer  was  in  the  negative. 

Compare  the  query  of  Chief  Justice  Jervis,  in  Read  v.  Coker  (1853)  13  C.  B. 
850,  854 :  "If  a  man  comes  into  a  room,  and  lays  his  cane  on  the  table,  and 
says  to  another,  'If  you  don't  go  out  I  will  knock  you  on  the  head'  would  not 
that  be  an  assault?"  And  consider  the  answer  of  Sergeant  Byles :  "Clearly 
not :  it  is  a  mere  threat  unaccompanied  by  any  gesture  or  action  towards  car- 
rying it  into  effect." 

In  Read  v.  Coker,  the  plaintiff  was  in  the  defendant's  workshop  and  refused 
to  leave  when  ordered  by  the  d-^fendant;  thereupon  the  defendant  and  his  serv- 
ants surrounded  the  plaintiff,  and  tucking  up  their  sleeves  and  aprons  threat- 
ened to  break  his  neck  if  he  did  not  go  out;  "fearing  that  the  men  would  strike 
him  if  he  did  not  do  so,  the  plaintiff  went  out." 

Compare,  also,  Plenty  v.  Murphy  (1901)  82  Minn.  268,  84  N.  W.  1005  (The 
defendant,  a  man  78  years  of  age,  was  the  owner  of  tenements  near  the  house 
in  which  the  plaintiff,  a  woman  of  38  years,  resided  with  her  husband  and 
children.  A  pailful  of  banana  peelings  and  other  refuse  had  been  emptied  in 
the  yard  of  one  of  these  tenements.  Defendant  went  to  the  plaintiff's  house,  un- 
ceremoniously entered  the  kitchen,  where  she  was  at  work  alone,  demanded  that 
her  boy.  aged  5  years,  remove  this  refuse,  and  notified  her  that  if  he  again 
found  the  boy  in  that  yard  he  would  "thrash"  him.  The  plaintiff  informed  him 
tliat  the  boy  would  do  as  requested.  Defendant  remained  in  the  house  about  iO 
minutes,  talking  in  an  excited  and  angry  manner,  shook  his  fist  at  plaintiff 


54  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

MITCHELL  V.  MITCHELL. 

(Supreme  Court  of  Minnesota,  IS'JO.    45  Minn.  50,  47  N.  W.  80S.) 

GiLFiLLAN,  C.  J.  But  the  general  allegation  that  they  "assaulted 
her"  standing  alone  would  be  sufficient.  Whether  they  assaulted  her 
is,  SO  far  as  pleading  is  concerned,  a  conclusion  of  fact,  or  statement 
of  an  ultimate  fact,  although  it  may  have  to  be  arrived  at  by  apply- 
ing rules  of  law  to  minor  or  proved  facts  or  details  of  fact,  just  as, 
for  the  purposes  of  pleading,  title  to  real  or  personal  property  is  or- 
dinarily a  pleadable  fact,  although  to  establish  it  may  require  the  ap- 
plication of  rules  of  law  to  the  proved  facts.  The  general  allegation 
of  an  assault  may,  of  course,  be  qualified  by  a  specification  of  the  acts 
which  it  is  claimed  constituted  the  assault.  One  of  the  particulars 
specified  is  that  defendants  shook  their  fists  in  plaintiff's  face,  accom- 
panied with  a  threat  to  strike  her.  It  is  to  be  understood  from  this 
that  they  shook  their  fists  at  her  face  in  close  proximity  to  it ;  with- 
in reach  of  it.     That  would  constitute  an  assault.^ ^ 

when  within  stril>:ing  distance,  raised  his  hand  as  if  he  would  strilie  her,  and 
she  testified  tliat  she  was  afraid  he  would  strike). 

And  see  State  v.  Daniel  (1904)  136  N.  C.  571,  48  S.  E.  544,  103  Am.  St.  Rep 
970 :  P.,  a  colored  man  in  a  southern  State,  on  a  Sunday  morning  went  tc 
feed  his  hogs.  As  P.  was  leaving  the  pig  pen,  D.,  a  white  man,  who  with  an- 
other was  near  b.v,  called  to  P.  bidding  him  come.  P.,  instead  of  returning, 
said  that  he  was  in  a  hurry  to  go  home  and  dress  for  church.  Thereupon  D. 
responded :  "You  come  here."  P.  replied,  "Yes,  boss-man,  of  course  if  you 
order  me  to  come,  I'll  come,"  and  taking  off  his  hat  went  to  D.,  who  cursed  liim 
and  said,  "Why  can't  you  come  when  I  call  you."  The  trial  court  instructed 
the  jury  that  if  D.  cursed  P.  and  ordered  him  to  come  to  him,  and  P.  obeyed 
through  fear,  then  D.  was  guilty  of  an  assault.    The  defendant  excepted. 

2  5  "It  is  not  necessary  to  aver  in  a  complaint  to  recover  damages  for  an  al- 
leged assault  and  battery,  that  the  beating  was  unlawful  and  wrongful."  Carey 
V.  Sheets  (1S77)  60  Ind.  17. 

An  assault  is  an  unlawful  attempt,  coupled  with  a  present  ability,  to  connuit 
a  violent  injury  upon  the  person  of  another.  When  it  is  charged  that  the  de- 
fendant assaulted  and  beat  the  plaintiff,  the  legal  implication  is  that  the  act 
was  unlawful,  and  the  burden  of  justifying  his  conduct  is  cast  upon  the  defend- 
ant.   Benson  v.  Bacon  (1884)  99  Ind.  156;    3  Works  Pr.  28. 

Compare  Singer  Sewing  Machine  Co.  v.  Phipps  (1911)  49  Ind.  App.  116,  94 
N.  E.  793.  where  a  complaint  alleging  that  the  defendant  "did  wrongfully  and 
unlawfully  make  an  assault  on  this  i)]aiutiff"  was  met  with  the  objection  on 
the  part  of  the  defendant  that  it  stated  a  mere  conclusion. 

It  has  been  the  practice  from  an  early  day  to  plead  an  assault  and  a  battery 
together,  and  to  permit  a  recovery  on  whichever  cause  is  proven.  "For  every 
battery  includes  an  assault;  therefore,  if  the  assault  be  ill  laid,  and  the  bat- 
tery good,  it  is  sufficient."     Jacob's  Law  Dictionary  (1809)  "Assault,"  1-35. 

See  the  declaratiou  in  Trespass  for  Assault  and  Battery  in  Whittier's  Cases 
In  Common  Law  PI.  25.  Compare  the  Statement  of  Claim  for  an  assault  in 
Cunningham  &  Mattinson's  Precedents  under  the  Judicature  Acts  (1884)  1.'54 : 
"The  iilaintiff  has  suffered  damage  from  personal  injuries  to  the  plaintiff, 
caused  by  the  defendant  assaulting  him  on  the  1st  of  May,  1882,  and  boating 
him  about  the  head  and  shoulders."  And  see  the  form  of  Petition  recom- 
mended by  the  Ohio  Code  Commissioners  in  1853  for  Assault  and  Battery : 
"Plaintiff  says  that  on  *  *  *  at  *  *  *  the  defendant  assaulted  and 
beat  the  plaintiff  by  which  he  says  he  is  damaged  to  the  amount  of  *  *  * 
dollars,  for  which  he  asks  judgment." 


Ch.  1)  TRESPASSES  55 


(B)  In  Battery 
PURSELL  V.  HORN  et  ux. 

(Court  of  Queeu's  Bench,  IS^S.    8  Add.  &  E.  602,  112  Reprint,  96G.) 

Trespass.  The  declaration  stated  that  the  defendant  Elizabeth  as- 
saulted the  plaintiff,  "and  then  cast  and  threw  divers  large  quantities 
of  boiling  water  on  the  plaintiff,  and  then  also  wetted,  damaged,  and 
spoiled  the  clothes  and  wearing  apparel,  to  wit,  one  great  coat,  which 
the  plaintiff  then  wore:"  by  means  of  which  he  was  hurt,  scalded, 
etc.,  and  forced  to  expend  money  in  endeavoring  to  cure  himself. 
Plea  of  not  guilty,  with  a  verdict  for  the  plaintiff  for  one  farthing 
above  his  costs  and  40s.  costs. 

On  argument  whether  the  case  was  within  the  statute  of  22  & 
23  Car.  II.,  c.  9,  which  deprived  of  costs  "in  all  actions  of  trespass, 
assault  and  battery,  and  other  personal  actions,"  where  the  damages 
were  found  below  40s.  and  the  judge  does  not  certify  "that  an  as- 
sault and  battery  was  sufficiently  proved." 

Waddington,  for  the  defendant,  obtained  a  rule  nisi  for  amending 
the  postea  by  substituting  one  farthing  costs  for  40s. 

Humfrey,  for  the  plaintiff,  argued  that  this  was  not  a  case  within 
the  statute,  because  no  battery  was  alleged.  It  is  laid  down  in  Com. 
Dig.  Battery  (C),  that,  "If  a  man  strike  at  another,  and  do  not  touch 
him,  it  is  no  battery,  but  it  will  be  an  assault."  So,  "If  he  throws 
stones,  water,  or  other  liquor  upon  him."  (Lord  Denman,  C.  J.  Is 
it  no  battery,  if  a  man  throws  a  stone  at  another  and  breaks  his  arm? 
The  notion  must  have  been  that  battery  could  not  be  committed  ex- 
cept with  something  that  the  party  held  in  his  hand  at  the  time ;  but 
that  cannot  be  maintained.) 

Waddington,  contra,  argued  that  "the  words  'upon  him,'  in  Com. 
Dig.  Battery  (C),  must  have  been  used  by  mistake." 

Lord  Di^nman,  C.  J.  I  think  that  a  battery  does  not  neces- 
sarily mean  something  done  cominus.  But  it  must  imply  personal  vio- 
lence.    *     *     * 

Littlddale;,  J.  The  argument  for  the  plaintiff  on  the  first  point 
would  go  the  length  of  saying  that  to  shoot  at  a  person  and  hit  him 
would  be  no  battery.     Patte;son  and  Williams,  J  J.,  concurred. 

Rule  absolute.^® 

26  The  statement  of  facts  has  been  abridf,'C(l,  and  only  so  much  of  the  case  is 
given  as  relates  to  the  one  point. 

Compare  Smith  v,  N^wsam  (1674)  3  Keble,  283,  given  ante,  page  47,  "As- 
sault." 


•c-^ 


56  TORTS  THROUGH   ACTS   OF  ABSOLUTE  LIABILITY  (Part  1 

SCOTT,  an  Infant,  by  His  Next  Friend,  v.  SHEPHERD,  an  Infant, 

by  His  Guardian. 

(Court  of  Common  Pleas,  1773.    3  Wils.  403,  95  Reprint,  1124.) 

Trespass  and  assault  for  throwing  a  lighted  squib  against  the  plain- 
tiff and  striking  him  therewith  on  the  face  and  so  burning  one  of  his 
eyes  that  he  lost  the  sight  of  it. 

The  defendant  by  his  guardian  pleaded  not  guilty,  whereupon  issue 
being  joined,  this  cause  came  on  to  be  tried  at  the  last  Summer  As- 
sizes for  the  county  of  Somerset,  before  Mr.  Justice  Nares ;  when 
it  appeared  by  the  plaintift''s  evidence  that  in  the  evening  of  the  28th 
day  of  October  1770,  at  Milborne  Port  in  the  said  county,  it  being 
the  day  the  fair  was  held  there,  the  defendant  threw  a  lighted  serpent, 
being  a  large  squib,  consisting  of  gunpowder  and  other  combustible 
materials,  from  the  street  into  the  market-house,  which  is  a  covered 
building  supported  by  arches,  and  inclosed  at  one  end,  but  open  at 
the  other  end  and  on  both  sides,  when  a  large  concourse  of  people 
were  then  assembled;  and  that  the  said  lighted  serpent  or  squib,  so 
thrown  by  the  defendant,  fell  upon  the  standing  there  of  one  William 
Yates,  who  was  then  exposing  to  sale  gingerbread,  cakes,  pies  and 
other  pastry  wares  upon  his  said  standing;  that  one  James  Willis 
instantly,  and  to  prevent  injury  to  himself  and  to  the  said  wares  of 
the  said  William  Yates,  took  the  said  lighted  serpent  or  squib  from 
off  the  said  standing,  and  then  threw  it  across  the  said  market-house, 
when  it  fell  upon  another  standing  there,  of  one  James  Ryall,  on 
which  he  was  also  exposing  the  same  sort  of  wares  to  sale ;  that 
the  said  James  Ryall  instantly,  and  to  save  himself  and  his  goods 
from  being  injured,  took  up  the  said  lighted  serpent  or  squib  from 
off  the  sar.l  standing,  and  then  threw  it  to  another  part  of  the  said 
market-house,  and  in  so  throwing  it  struck  the  plaintiff  then  in  the 
said  market-house  in  the  face  therewith,  and  the  said  lighted  serpent 
or  squib  so  striking  against  the  plaintiff's  face,  and  the  combustible 
matter  therein  then  bursting  put  out  one  of  the  plaintiff's  eyes. 

Upon  this  evidence  the  jury  found  a  verdict  for  the  plaintiff  with 
ilOO.  damages,  subject  to  the  opinion  of  this  Court;  whether  upon 
these  facts  this  action  is  maintainable  against  the  defendant. 

Nares,  j_  *  *  *  j  ani  of  the  opinion  that  this  action  of  tres- 
pass vi  et  armis  doth  well  lie  against  the  defendant.  *  *  *  jj- 
is  objected  that  the  plaintiff's  eye  was  not  put  out  by  the  immediate 
act  of  the  defendant  but  by  the  immediate  act  of  James  Ryall,  and 
therefore  this  action  will  not  lie  against  the  defendant,  but  would 
well  have  laid  against  Ryall. 

I  answer,  that  the  act  of  throwing  the  squib  into  the  market  place 
was  of  a  mischievous  nature,  and  bespeaks  a  bad  intention,  and 
whether  the  plaintiff's  eye  was  put  out  mediately  or  immediately 
thereby,  the  defendant,,  who  first  threw  the  squib,  is  answerable  in 


Ch.  1)  TRESPASSES  57 

this  action :  but  supposing  the  defendant  had  no  bad  or  mischievous 
intention  when  he  threw  the  squib,  yet  as  the  injury  done  was  not 
inevitable,  this  action  well  lies  against  him;  for  the  malus  animus 
of  a  defendant  is  not  necessary  to  be  alleged,  proved  or  taken  into 
consideration  in  this  action;  "but  in  felony  it  shall  be  considered, 
as  where  a  man  shoots  [with  a  bow]  arrows  at  butts  and  kills  a  man 
it  is  not  felony,  and  it  should  be  construed  that  he  had  no  intent  to 
kill  him  ;  and  so  of  a  tyler  upon  a  house  who  with  a  tyle  kills  a  man 
unknowingly,  it  is  not  felony :  but  where  a  man  shoots  at  butts,  and 
wounds  a  man,  although  that  it  be  against  his  will,  he  shall  be  said 
to  be  a  trespasser.  21  Hen.  '7,  28  a."  If  the  injury  done  be  not  in- 
evitable, the  person  who  doth  it,  or  is  the  immediate  cause  thereof, 
even  by  accident,  misfortune,  and  against  his  will  is  answerable  in 
this  action  of  trespass  vi  et  armis ;  so  is  Stran.  596,  Underwood  v. 
Hewson,  Hob.  134,  Weaver  v.  \\'ard.  Sir  Thomas  Jones,  205,  Dicken- 
son V.  Watson,  6  Ed.  4,  7,  8.  Sir  Thomas  Raym.  422.  4  Alod.  404, 
5.  If  the  act  in  the  first  instance  be  unlawful,  trespass  will  lie;  but 
if  the  act  is  prima  facie  lawful,  and  the  prejudice  to  another  is  not 
immediate,  but  consequential,  it  must  be  an  action  upon  the  case,  and 
this  is  the  distinction  laid  down  by  Lord  Chief  Justice  Raymond  in 
Reynolds  v.  Clarke,  1  Stran.  635,  2  Ld.  Raym.  1399,  S.  C.     *     *     * 

BlackstonE,  J.  I  am  of  a  different  opinion.  I  take  it  here  is 
no  verdict;  the  declaration  and  special  case  are  stated  for  the  opin- 
ion of  the  Court,  whether  the  facts  in  the  case  amount  to  an  assault 
and  battery  vi  et  armis  by  the  defendant  upon  the  plaintiff? 

The  declaration  alleges  that  the  defendant  threw,  cast  and  tossed  a 
lighted  squib  against  the  plaintiff,  and  struck  him  on  the  face  there- 
with, whereby  he  lost  his  eye;  this  is  laid  as  an  immediate  injury 
done  by  the  defendant  to  the  plaintiff,  which  is  the  gist  of  this  action 
of  assault  and  battery;  for  if  the  injury  received  from  the  act  of 
the  defendant  was  not  immediate,  but  a  consequence,  trespass  vi  et 
armis  will  not  lie,  but  it  must  be  an  action  on  the  case ;  and  my 
Lord  Raymond,  in  thd  case  of  Reynolds  v.  Clarke,  2  Ld.  Raym.  1402, 
puts  the  dift'erence  where  he  says,  "The  distinction  in  law  is,  where 
the  immediate  act  itself  occasions  a  prejudice  or  is  an  injury  to  the 
plaintiff's  person,  house,  land,  etc.,  and  where  the  act  itself  is  not 
an  injury,  but  a  consequence  from  that  act  is  prejudicial  to  the  plain- 
tiff's person,  house,  land,  etc.  In  the  first  case  trespass  vi  et  armis  will 
lie;  in  the  last  it  will  not,  but  the  plaintiff's  proper  remedy  is  by  ac- 
tion on  the  case."  And  this  distinction  runs  through  all  the  cases 
which  have  been  cited. 

The  lawfulness  or  unlawfulness  of  an  act  is  not  the  criterion  be- 
tween these  two  actions,  for  a  man  may  become  an  immediate  tres- 
passer vi  et  armis  by  doing  a  lawful  act ;  as  if  a  man  doing  an  act 
lawful  in  itself,  hurts  another  by  accident,  misfortune,  and  against 
the  will  of  the  actor,  yet  he  shall  be  answerable  in  trespass  vi  et 
armis  for  immediate  injury  done;    unless  the  injury  was  inevitable, 


58  TORTS  THROUGH  ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

27  Hen.  '7,  28a.  1  Stran.  596,  and  many  other  cases  in  the  books  to 
this  purpose.  Trespass  on  the  case  will  lie  for  doing  an  unlawful 
act,  if  the  damage  sustained  thereby  be  not  immediate  but  conse- 
quential, 11  IMod.  108.  The  first  act  in  the  present  case  (I  allow) 
was  unlawful;  but  the  squib  by  the  first  act  did  not  strike  the  plain- 
tiff, the  first  act  was  complete  when  it  lay  on  Yates'  stall,  afterwards 
Willis  a  bystander  threw  it  across  the  market-house,  it  fell  on  the 
stall  of  another  man  who  threw  it  to  another  part  of  the  market- 
house  and  struck  the  plaintiff'  therewith  and  put  out  his  eye.  Willis 
who  took  up  the  squib  and  threw  it  across  the  market-house  is  not 
answerable  in  trespass  vi  et  armis,  for  he  did  that  act  to  prevent  in- 
jury to  himself,  and  did  no  harm  to  any  body.  Willis  and  Yates  gave 
the  squib  two  new  directions,  acting  as  free  agents,  not  by  the  insti- 
gation, command,  request,  or  as  servants  of  the  defendant,  but  in 
defence  of  their  persons,  so  the  injury  which  happened  to  the  plain- 
tiff was  the  consequence  of,  and  not  done  immediately  by  the  first 
act  of  the  defendant. 

It  is  said  the  first  act  is  not  complete  until  the  explosion  of  the 
squib ;  I  admit  the  squib  had  no  power  to  do  mischief  until  the  ex- 
plosion ;  but  it  doth  not  follow  from  thence  that  the  first  act  was 
not  complete,  at  the  instant  the  squib  received  a  new  direction  from  a 
second  act.  Suppose  several  persons  are  playing  at  foot-ball,  which 
is  tossed  by  many,  and  at  last  breaks  windows ;  trespass  vi  et  armis 
will  only  lie  against  the  man  who  struck  it  against  the  windows.  The 
throwing  the  squib  against  Yates'  stall  was  the  only  act  the  defendant 
did.     *     *     * 

Gould,  J,  I  diff'er  with  my  Brother  Blackstone;,  but  with  the 
utmost  respect  to  his  sentiments.  I  think  that  neither  Willis  nor 
Ryall  are  liable  to  an  action  in  this  case ;  if  that  be  so,  and  this 
action  will  not  lie  against  the  defendant  Shepherd  who  did  the  first 
act,  which  was  unlawful,  the  plaintiff  who  has  been  greatly  injured 
will  be  without  remedy.  The  damage  done  did  instantly  arise  by  and 
from  the  act  of  the  defendant :  Willis  and  Ryall  in  defence  of  them- 
selves and  their  goods,  being  in  a  state  of  fear,  without  power  of 
recollection,  instantly  tossed  and  threw  the  squib  away  from  them- 
selves, what  they  did  was  inevitable,  as  it  seemeth  to  me.  Suppose 
a  burning  squib  thrown  into  a  coach  passing  along  the  street,  and 
one  of  the  persons  therein  throws  it  out,  and  the  like  misfortune  as 
this  happens;  surely  the  person  throwing  the  squib  out  of  the  coach 
might  justify  or  excuse  himself  by  pleading;  though  this  is  not  so 
strong  a  case  I  think  as  the  present.  The  defendant  is  the  only  wrong 
doer;  his  act  put  Willis  and  Ryall  under  an  inevitable  necessity  of 
acting  as  they  did,  so  neither  of  them  is  liable  to  an  action :  upon 
the  whole  I  am  of  opinion  judgment  must  be  for  the  plaintiff". 

Lord  Chief  Justice  De  Grey.  The  distinction  between  actions 
of  trespass  on  the  case,  and  trespass  vi  et  armis  should  be  most  care- 
fully and  precisely  observed,  otherwise  we  shall  introduce  much  con- 


Ch.  1)  TRESPASSES  59 

fusion  and  uncertainty ;  this  is  that  kind  of  injury  where  the  distinc- 
tion is  very  nice.  It  strikes  me  thus ;  trespass  vi  et  armis  Hes  against 
the  person  from  whom  ain  injury  is  received  by  force.  So  the  ques- 
tion is,  whether  this  personal  injury  was  received  by  the  plaintiff  by 
force  from  the  defendant?  Or  whether  the  injury  was  received  from, 
or  resulting  from  a  new  force  of  another? 

The  real  or  true  question  (I  think)  is  not  whether  the  first  act 
of  throwing  the  squib  by  the  defendant  was  lawful  or  not;  for  I  see, 
that  in  doing  a  lawful  act,  trespass  vi  et  armis  will,  in  some  cases, 
lie  against  the  actor ;  and  yet  there  are  cases  where  trespass  vi  et 
armis  will  not  lie  against  a  person  for  doing  an  unlawful  act.     *     *     * 

The  throwing  the  squib  by  the  defendant  was  an  unlawful  act  at 
common  law,  the  squib  had  a  natural  power  and  tendency  to  do  mis- 
chief indiscriminately;  but  what  mischief,  or  where  it  would  fall, 
none  could  know ;  the  fault  egreditur  e  persona  of  him  who  threw 
the  squib,  it  would  naturally  produce  a  defence  to  be  made  by  every 
person  in  danger  of  being  hurt  thereby,  and  no  line  can  be  drawn  as 
to  the  mischief  likely  to  happen  to  any  person  in  such  danger ;  the 
two  persons  Willis  and  Ryall,  did  not  act  with  or  in  combination  with 
the  defendant,  and  their  removal  of  the  squib  for  fear  of  danger 
to  themselves  seems  to  me  to  be  a  continuation  of  the  first  act  of 
the  defendant  until  the  explosion  of  the  squib;  no  man  contracts 
guilt  in  defending  himself ;  the  second  and  third  man  were  not  guilty 
of  any  trespass,  but  all  the  injury  was  done  by  the  first  act  of  the  de- 
fendant; here  I  lay  the  stress,  and  here  I  differ  with  my  brother 
Blackstone ;  for  I  conceive  all  the  facts  of  throwing  the  squib  must 
be  considered  as  one  single  act,  namely  the  act  of  the  defendant;  the 
same  as  if  it  had  been  a  cracker  made  with  gunpowder  which  had 
bounded  and  rebounded  again  and  again  before  it  struck  out  the  plain- 
tiff's eye.  I  am  of  opinion  that  judgment  must  be  for  the  plaintiff, 
and  the  postea  was  accordingly  delivered  to  him,  by  the  opinion  of 
three  judges  against  one 


27 


27  Part  of  the  opinion  is  omitted.  The  statement  of  the  plaintiff's  pleading 
is  abridged. 

This  case  is  fully  reported,  also,  in  2  Wm.  Bl.  892,  whose  report  is  followed 
in  1  Smith  L.  C.  (8th  Ed.)  737.  Compare  Blackstone's  statement  of  the  prin- 
ciple in  3  Bl.  Com.  123 :  "It  is  a  settled  distinction  that  where  an  act  is  done 
which  is  in  itself  an  immediate  injury  to  another's  person  or  property,  there 
the  remedy  is  usually  an  action  of  trespass  vi  et  armis;  but  where  there  is 
no  act  done,  but  only  a  culpable  omission,  or  where  the  act  is  not  immediately 
injurious,  but  only  by  consequence  and  collaterally ;  there  no  action  of 
trespass  vi  et  armis  will  lie,  but  an  action  on  the  special  case,  for  the  damages 
consequent  on  such  omission  or  act." 

See  Holmes'  Common  Law,  104 :  "In  the  latter  case  [Scott  v.  Shepherd],  it 
is  pretty  clear  that  the  majority  of  the  court  considered  that  to  repel  personal 
danger  by  instantaneously  tossing  away  a  squib  thrown  by  another  upon  one's 
stall  was  not  a  trespass,  although  a  new  motion  was  thereby  imparted  to  the 
squib,  and  the  plaintiff's  eye  was  put  out  in  consequence." 

See,  also,  Terry's  Leading  I'rinciples  of  Anglo-American  Law,  75 :  "If  one 
person  wrongfully  causes  another  to  make  one  of  those  bodily  movements  which 


60  TORTS  THROUGH  ACTS  OP  ABSOLUTE   LIABILITY  (Part  1 

HOPPER  et  ux.  V.  REEVE. 

(Court  of  Common  Pleas,  1817.     7  Taunt.  698,  18  E.  R.  629,  129  Reprint,  27S.) 

The  plaintiff  declared  that  the  defendant  with  force  and  arms  drove 
a  gig  against  a  carriage  in  which  the  plaintiff's  wife  was  riding,  and 
overturned  it,  and  greatly  hurt  the  plaintiff's  wife. 

After  verdict  for  the  plaintiff  Pell,  Serjt.,  moved  in  arrest  of  judg- 
ment, upon  the  ground  that  this  ought  not  to  have  been  an  action  of 
trespass,  but  an  action  on  the  case,  for  that  the  declaration  did  not 
state  that  the  carriage  in  which  the  plaintift''s  wife  was  riding  was  the 
carriage  of  the  plaintiff,  nor  aver  any  injury  to  the  carriage,  but  was 
solely  for  an  injury  to  the  wife.  Though  that  injury  received  by  the 
plaintiff's  wife  arose  out  of  an  act  of  the  defendant,  yet  it  was  in  con- 
sequence of  the  defendant  having  run  against  the  carriage  of  some 
other  person,  for  such  it  must  be  intended  to  be,  not  being  stated  to 
be  the  carriage  of  the  plaintiff,  and  no  act  could  be  more  consequen- 
tial in  its  nature,  than  this  injury  to  the  plaintiff"'s  wife.  The  case 
of  Scott  V.  Shepherd,  2  W.  Bl.  892,  3  Wils.  403,  went  beyond  the  law, 
but  not  so  far  as  this.     The  Court  granted  a  rule  nisi. 

GiBBSj  Ch.  J.  I  do  not  think  I  could  point  out  any  defect  in  the 
legal  argument  of  either  of  the  counsel,  but  the  facts  are  not  brought 
within  the  law  stated  by  the  defendant's  counsel;  for  I  am  of  opin- 
ion that  he  who  throws  over  a  chair  or  a  carriage  in  which  another 
person  is  sitting,  commits  a  direct  trespass  against  the  person  of  him 
who  is  sitting  in  that  carriage  or  chair,  and  that  the  action  of  tres- 
pass may  be  well  maintained  for  it. 

Rule  discharged.^ ^ 

we  have  called  instinctive,  whether  or  not  the  movement  Is  reckoned  as  an  act 
of  the  doer  of  it,  it  is  imputed  as  an  act  of  the  person  who  so  caused  it.  This 
was  decided  in  the  famous  case  of  Scott  v.  Shepherd,  which  has  been  followed 
in  later  cases." 

2  8  Accord:  Dodwell  v.  Burford  (16G9)  1  Mod.  24,  86  Reprint,  70.3  (In  tres- 
pass for  a  battery,  P.  declared  that  D.  struck  the  horse  whereon  P.  rode,  so  that 
the  horse  ran  away  with  her,  whereby  she  was  thrown  down  and  another  horse 
ran  over  her)  ;  Mareutille  v.  Oliver  (ISOS)  1  Penn.  (2  N.  J.  Law)  358,  359  (D. 
struck  with  a  club  the  horse  before  a  carriage  in  which  P.  was  sitting);  Smith 
V.  Kahn  (191.3)  141  N.  Y.  Supp.  520  (D.  pushed  down  a  window  onto  P.'s  hand). 

Compare : 

Bull  V.  Colton  (185G)  22  Barb.  (N.  Y.)  94 :  D.  with  a  hoe  beat  P.'s  horse, 
hitched  to  a  buggy  in  which  P.  was  sitting.  The  action  was  before  a  justice 
of  the  peace,  who  had  jurisdiction  in  trespass  to  property,  but  no  jurisdiction 
in  trespass  for  an  assault  and  battery  upon  the  person. 

Kirland  v.  State  (1873)  43  Ind.  146,  13  Am.  Rep.  386:  The  court  had  in- 
structed the  jury  that  if  the  defendant  beat  the  horses  of  the  prosecuting  wit- 
ness while  he  was  driving  his  team  in  the  field,  in  the  act  of  gathering  corn, 
the  defendant  was  guilty  of  an  assault  and  battery.  Held,  error.  "In  the  case 
under  consideration,"  said  Buskirk,  .!.,  after  an  ehiborate  review  of  the  autlior- 
ities,  "the  court  ignores  all  these  things  and  instructs  the  jury  to  convict  on 
proof  alone  of  the  striking  of  the  horses  of  the  prosecuting  witness.  It  is  not 
even  necessary,  according  to  this  charge,  that  the  prosecuting  witness  should 
have  been  in  the  wagon  or  holding  the  lines,  or  connected  with  or  attached  to 
the  horses  in  any  way.     That  Bein  was  driving  his  team  and  gathering  his 


Ch.  1)  TRESPASSES  61 

STATE  V.  MONROE. 

(Supreme  Court  of  North  Carolina,  1897.    121  N.  C.  677,  28  S.  E.   547;   43  L.  R. 

A.  861,  61  Am.  St.  Rep.  686.) 

Faircloth,  C.  J.  Will  Horn  administered  to  Ernest  Barrett  a 
dose  of  croton  oil,  and  the  oil  had  an  injurious  effect  on  Barrett.  De- 
fendant admits  he  sold  the  oil  to  Horn,  and  at  his  request  dropped  it 
into  a  piece  of  candy.  *  *  *  Defendant  is  indicted  for  an  as- 
sault on  Barrett.  If  guilty,  he  must  be  so  as  a  principal,  and  not  as 
an  accessory.  His  guilt,  then,  depends  upon  whether  he  knew  or  had 
reason  to  believe  that  the  dose  was  intended  for  Barrett  or  some  oth- 
er person  as  a  trick,  and  not  for  medicinal  purposes. 

The  whole  evidence  was  submitted  to  a  jury  who  rendered  a  verdict 
of  guilty.  His  honor  instructed  the  jury  that  wdien  the  defendant 
sold  the  oil,  if  he  "knew  or  had  reason  to  believe,  and  did  believe  that 
it  was  intended  for  Barrett  or  some  other  person  by  way  of  a  trick 
or  joke,  and  not  for  a  medicinal  purpose,  the  defendant  would  be 
guilty  of  assault  and  battery." 

He  also  charged  that  it  was  not  necessary  that  it  should  be  a  poi- 
sonous or  deadly  dose ;  that  it  was  sufficient  if  it  was  an  unusual  dose, 
likely  to  produce  serious  injury.  To  this  instruction  we  see  no  ob- 
jection.     *      *      *  29 


DYK  V.  DE  YOUNG. 
(Appellate  Court  of  Illiuois,  First  District,  1889.     35  111.  App.  138.) 

Gray,  P.  J.  *  *  *  The  husband  of  the  appellee  was  to  pay 
the  appellant  $5.  The  appellant  wrote  a  receipt  which  (whether 
against  the  will  of  the  appellant  or  not  was  disputed)  the  husband 
took  into  his  hands.  The  husband  gave  it  to  the  appellee  and  she  said 
something  about  it  (but  what,  is  also  disputed),  and  the  appellant 
then  attempted  to  take  it  from  her  by  pulling  it  out  of  her  grasp.  In 
this  attempt  the  receipt  was  torn,  but  no  injury  came  to  the  appellee 
from  the  force  thus  used.     *     *     * 

The  appellant  complained  of  the  refusal  of  this  instruction : 

"The  jury  are  further  Instructed  that  if  they  believe  from  the  evidence  that 
the  plaintiff,  with  force,  and  without  the  consent  of  the  defendant,  obtained 
the  possession  of  the  receipt  in  question,  with  the  intention  of  keeping  the 
same  without  paying  the  money  described  in  the  receipt  for  the  purpose  of 
fraudulently  using  the  same  at  some  future  time,  then  the  defendant  had  a 
right  to  obtain  the  same,  using  no  more  force  or  violence  than  was  necessary 
to  obtain  the  same." 

corn  does  not  necessarily  so  connect  him  with  the  horses  that  the  touching 
of  the  horses  would  be  an  assault  and  battery  on  him.     He  may  have  been, 
as  is  frequently  done,  driving  his  horses  from  one  pile  of  corn  to  another,  by 
words  of  command,  without  being  in  the  wagon  or  having  hold  of  the  lines." 
2  8  Part  of  the  opinion  is  omitted. 


62  TORTS  THROUGH   ACTS   OP   ABSOLUTE   LIABILITY  (Part  1 

There  was  no  evidence  that  she  by  force  obtained  the  possession 
of  the  receipt.  If  he  was  entitled  to  it,  and  she  withheld  it,  a  request 
must,  in  such  a  case,  precede  the  exercise  of  force.  TuUay  v.  Reed, 
1  C.  &  P.  6,  and  cases  cited  in  2  Ch.  PI.  698  et  seq.,  16th  Am. 
from  7th  Lond.  Ed. 

The  mere  snatching  of  the  paper,  or  a  part  of  it,  from  her,  was  a 
technical  assault,  1  Selw.  N.  P.  27;  Respublica  v.  De  Longchamps, 
1  Dallas,  114,  1  L.  Ed.  59;  State  v.  Davis,  1  Hill  (S.  C.)  46,  and  though 
no  injury  followed,  would  entitle  the  appellee  to  some  damages. 
There  is  no  error  and  the  judgment  must  be  affirmed. 

Judgment  affirmed.^" 


INNES  V.  WYLIE  et  al. 

(At  Nisi  Prius,  1844.    1  Car.  &  Kir.  257,  70  R.  R.  786.) 

Assault.  The  declaration  stated  that  the  defendants,  on  the  30th 
day  of  November,  1843, — 

"assaulted  the  plaintiff,  he  then  being  a  member  of  a  certain  society  of- per- 
sons lawfully  and  voluntarily  associated  together  and  called  and  known  by  the 
name  of  'The  Caledonian  Society  of  London,'  he  the  plaintiff  then  being  about 
to  enter  into  a  certain  room  situated  in  and  forming  part  of  a  certain  hotel  or 
public-house  called  and  known  by  the  name  of  'Radley's  Hotel,'  and  situated 
in  the  city  of  London,  for  the  purpose  of  attending  at,  and  partaking  of,  a  pub- 
lic general  meeting  and  dinner  of  the  members  of  the  said  society  which  was 
then  about  to  be  held  and  take  place  in  the  said  room,  and  into  which  said 
room  the  said  plaintiff  as  such  member  of  the  said  society  as  aforesaid  then 
was  lawfully  entitled  and  then  had  a  legal  right  to  enter,  for  the  purpose  of 
attending  at,  and  partaking  of,  the  said  public  general  meeting  and  dinner  of 
the  members  of  the  said  society,  and  which  said  public  general  meethig  and 
dinner  the  said  plaintiff,  as  sucli  member  of  the  said  society  as  aforesaid,  then 
was  lawfully  entitled,  and  then  had  a  legal  right  to  attend  and  partake  of,  and 
then  pushed  and  shoved  the  plaintiff  from  the  said  room,  and  hindered  and 
prevented  the  plaintiff  from  entering  the  said  room,  and  from  attending  at,  and 
partaking  of,  the  said  public  general  meeting  and  dinner  of  the  members  of 
the  .said  society,  whereby  the  plaintiff  was  totally  hindered,  prevented,  and 
excluded  from  attending  at,  and  partaking  of,  the  said  public  general 
meeting  and  dinner  of  the  members  of  the  said  society,  and  from  enjoying  and 
participating  in  the  advantages,  benefits,  and  privileges  of  the  said  society  at 
the  said  public  general  meeting  and  dinner,  and  other  wrongs  to  the  plaintiff 
then  did,  against  the  peace,"  etc. 

The  defendant  pleaded,  first,  "not  guilty,"  and  secondly  that  the 
plaintiff  had  been  expelled  from  the  society  before  the  said  meeting. 
Replication  de  injuria. 

Lord  Denman,  Ch.  J.  (in  summing  up).  *  *  *  The  society 
was,  in  my  opinion,  wrong  in  removing  him  without  giving  him  dis- 

30  Tart  of  the  opinion  is  omitted. 

Compare  the  remark  of  McKean,  C.  J.,  in  Respublica  v.  De  Longchamps 
(1784)  1  Dallas,  111,  114  (1  L.  Ed.  59) :  "As  to  the  assault  [the  defendant  had 
struck  a  cane  in  the  hand  of  the  complainant]  this  is,  perhaps,  one  of  the 
kind  in  which  the  insult  is  Uiore  to  be  considered  than  the  actual  damage;  for, 
though  no  great  bodily  pain  is  suffei'cd  by  a  blow  on  the  palm  of  the  band,  or 
the  skirt  of  the  coat,  yet  these  are  clearly  within  the  legal  definition  of  assault 
and  battery,  and  among  gentlemen  too  often  induce  duelling  and  terminate  in 
murder." 


Ch.  1^  TRESPASSES  63 

tinct  and  positive  notice  that  he  was  to  come  and  answer  the  charge 
that  was  made  against  him,  and  I  hold  that  he  should  have  been  told 
what  the  charge  was,  and  called  on  to  answer  it,  and  told  that  it  was 
meant  to  remove  him  if  he  did  not  make  his  defence.  No  proceeding 
in  the  nature  of  a  judicial  proceeding  can  be  valid  unless  the  part)' 
charged  is  told  that  he  is  so  charged,  is  called  on  to  answer  the  charge, 
and  is  warned  of  the  consequences  of  refusing  to  do  so.  As  no  such 
notice  was  given  here,  I  think  that  the  removal  was  altogether  a  void 
act,  and  I  am  therefore  of  opinion  that  the  plaintiff  is  still  a  member 
of  the  society.  Being  so,  it  appears  that  he  went  to  one  of  its  meetings 
on  the  30th  of  November,  1843,  and  was  then  prevented,  by  a  police- 
man acting  under  the  orders  of  the  defendants,  from  entering  the 
room.  You  will  say,  whether,  on  the  evidence,  you  think  that  the 
policeman  committed  an  assault  on  the  plaintiff,  or  was  merely  pas- 
sive. If  the  policeman  was  entirely  passive  like  a  door  or  a  wall  put 
to  prevent  the  plaintiff  from  entering  the  room,  and  simply  obstruct- 
ing the  entrance  of  the  plaintiff,  no  assault  has  been  committed  on  the 
plaintiff,  and  your  verdict  will  be  for  the  defendant.  The  question 
is,  did  the  policeman  take  any  active  measures  to  prevent  the  plain- 
tiff from  entering  the  room,  or  did  he  stand  in  the  door  way  passive, 
and  not  move  at  all. 

Verdict  for  the  plaintiff.    Damages,  40s. ^^ 


THE  LORD  DERBY. 
(United  States  Circuit  Court,  E.  D.  Louisiana,  1883.    17  Fed.  265.) 

Admiralty  Appeal. 

The  libelant,  a  pilot,  was  taken  on  board  the  steamship  at  the  mouth 
of  the  Mississippi,  and  while  on  the  voyage  up  the  river  to  New  Or- 
leans he  was  very  seriously  bitten  by  a  dog,  which  had  been  brought 
from  Europe  for  sale  in  this  country,  and  which  was  kept  in  the  cabin, 
chained  under  the  table.  This  suit  was  brought  against  the  vessel  in 
rem  for  damages  suffered  thereby  by  the  libelant. 

Pardee,  J.  The  questions  presented  in  this  case  are:  First.  Is 
the  proceeding  properly  brought  against  the  ship  ?  ^^     *     *     * 

1.  It  is  contended  that  the  case,  as  presented  in  the  libel,  shows  a 
case  of  assault  and  battery,  which,  under  the  sixteenth  admiralty  rule, 
"shall  be  in  personam  only."  The  ingenuity  which  suggested  the  point 
has  not  failed  to  supply  the  court  with  an  ingenious  argument  to  sup- 
port it.  This  definition  is  given  of  assault  and  battery,  as  taken  from 
3  East  (Leame  v.  Bray)  593 : 

"Wlienever  one  willfully  or  negligently  puts  in  motion  a  force,  the  direct 
result  of  which  is  an  injury,  it  constitutes  an  assault  and  battery,  and  the  ac- 
tion brought  should  be  trespass  vi  et  aruiis." 

31  Part  of  the  opinion  is  omitted. 

32  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point. 


04  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

An  examination  of  the  case  shows  that  the  brief  goes  further  than 
the  authority  cited.  The  question  before  the  court  was  whether  the 
action  was  properly  brought  in  trespass,  and  all  the  judges  agreed 
that  where  an  injury  results  directly  from  force  trespass  lies,  but 
nothing  is  said  of  assault  and  battery.  The  other  cases  cited  (Gib- 
bons V.  Pepper,  1  Ld.  Raym.  39;  Blackman  v.  Simmons,  3  Car.  & 
P.  138)  are  also  cases  of  trespass.  An  assault  and  battery  is  where 
one  intentionally  inflicts  unlawful  violence  upon  another,  and  if  there 
is  a  case  in  the  books  which  goes  further  than  this,  it  is  an  unsafe 
case  to  follow.  That  there  may  be  such  gross  negligence  that  an  in- 
tent to  injure  may  be  inferred  therefrom,  may  be  conceded,  and  per- 
haps Blackman  v.  Simmons,  supra,  shows  such  gross  negligence; 
but  the  case  made  by  the  libel  does  not  show  such  negligence,  nor  does 
it  bring  such  negligence  home  to  any  particular  individual,  as  would 
be  necessary  in  a  case  of  assault  and  battery. 

In  my  opinion  the  case  made  in  the  libel  is  very  far  from  a  case  of 
"assaulting  and  beating,"  within  the  sixteenth  admiralty  rule.  And 
the  case,  as  disclosed  by  the  evidence,  seems  to  me  to  be  a  clear  case 
of  liability  on  the  part  of  the  ship.  The  dog  inflicting  the  injuries  on 
libelant  was  brought  over  on  the  ship,  with  the  consent  of  the  masters 
and  owners,  to  be  disposed  of  in  this  port.  It  was  part  of  the  cargo. 
The  libelant  was  lawfully  on  board  as  pilot,  and  entitled  to  be  carried 
safely.  An  injury  to  him  from  carelessness,  or  negligence  in  handling 
or  caring  for"  the  dog,  would  entitle  him  to  remuneration  from  the  ship 
the  same  as  if  his  injuries  had  resulted  from  goods  falling  on  him,  or 
from  defective  spars  or  rigging.     *     *     * 

A  decree  will  be  entered  for  the  libelant. 


HOLMES  et  ux.  v.  MATHER. 

(Court  of  Exchequer,  1S75.     L.  R.  10  Exch.  261.) 

The  first  count  of  the  declaration  alleged  that  the  female  plaintiff 
was  passing  along  a  highway,  and  the  defendant  so  negligently  drove 
a  carriage  and  horses  in  the  highway  that  they  ran  against  her  and 
threw  her  down,  whereby  she  and  the  male  plaintiff  were  damnified. 
The  second  count  alleged  that  the  defendant  drove  a  carriage  with 
great  force  and  violence  against  the  female  plaintiff  and  wounded 
her,  whereby,  etc.     Plea,  not  guilty,  and  issue  thereon. 

At  the  trial  the  following  facts  were  proved:  In  July,  1874,  the 
defendant  kept  two  horses  at  a  livery  stable  in  North  Shields,  and 
wishing  to  try  them  for  the  first  time  in  double  harness,  had  them 
harnessed  together  in  his  carriage.  At  his  request  a  groom  drove, 
the  defendant  sitting  on  the  box  beside  him.  After  driving  for  a 
short  time,  the  horses,  being  startled  by  a  dog  which  suddenly  ran 
out  and  barked  at  them,  ran  away  and  became  so  unmanageable  that 
the  groom  could  not  stop  them,  though  he  could  to  some  extent  guide 


Ch.  1)  TRESPASSES  65 

them.  The  groom  begged  the  defendant  to  leave  the  management  to 
him,  and  the  defendant  accordingly  did  not  interfere.  The  groom 
succeeded  in  turning  the  horses  safely  around  several  corners,  and  at 
last  guided  them  into  Spring  Terrace,  at  the  end  of  which  and  at 
right  angles  runs  Albion  Street,  a  shop  in  Albion  Street  being  opposite 
the  end  of  Spring  Terrace.  When  they  arrived  at  the  end  of  Spring 
Terrace  the  horses  made  a  sudden  swerve  to  the  right,  and  the  groom 
then  pulled  them  more  to  the  right,  thinking  that  was  the  best  course, 
and  tried  to  guide  them  safely  round  the  corner.  He  was  unable  to 
accomplish  this  and  the  horses  were  going  so  fast  that  the  carriage 
was  dashed  against  the  palisades  in  front  of  the  shop;  one  of  the 
horses  fell,  and  at  the  same  time  the  female  plaintifif,  who  was  on  the 
pavement  near  the  shop,  was  knocked  down  by  the  horses  and  severely 
injured.  The  jury  stopped  the  case  before  the  close  of  the  evidence 
offered  on  the  defendant's  part,  and  said  that  in  their  opinion  there 
was  no  negligence  in  anyone.  The  plaintiff's  counsel  contended  that 
since  the  groom  had  given  the  horses  the  direction  which  guided  them 
against  the  female  plaintiff',  that  was  a  trespass  which  entitled  the 
plaintiffs  to  a  verdict  on  the  second  count. 

The  verdict  was  entered  for  the  defendant,  leave  being  reserved 
to  the  plaintiffs  to  move  to  enter  it  for  them  for  i50.  on  the  second 
count,  the  Court  to  be  at  liberty  to  draw  inferences  of  fact,  and  to 
make  any  amendment  in  the  pleadings  necessary  to  enable  the  defend- 
ant to  raise  any  defence  that  ought  to  be  raised. 

Herschell,  Q.  C,  having  obtained  a  rule  nisi  to  enter  the  verdict 
for  the  plaintiffs  for  £50.,  pursuant  to  leave  reserved,  on  the  ground 
that,  upon  the  facts  proved,  the  plaintiff's  were  entitled  to  a  verdict  on 
the  trespass  count, 

C.  Russell,  O.  C,  and  Crompton,  for  the  defendant,  shewed  cause. 
BramweIvIv,  B.  I  am  inclined  to  think,  upon  the  authorities,  that 
the  defendant  is  in  the  same  situation  as  the  man  driving;  but,  with- 
out deciding  that  question,  I  assume,  for  the  purposes  of  the  opinion 
I  am  about  to  express,  that  he  is  as  much  liable  as  if  he  had  been 
driving. 

Now,  what  do  we  find  to  be  the  facts?  The  driver  is  absolutely 
free  from  all  blame  in  the  matter ;  not  only  does  he  not  do  anything 
wrong,  but  he  endeavours  to  do  what  is  best  to  be  done  under  the 
circumstances.  The  misfortune  happens  through  the  horses  being  so 
startled  by  the  barking  of  a  dog  that  they  run  away  with  the  groom 
and  the  defendant  who  is  sitting  beside  him.  Now,  if  the  plaintiff 
under  such  circumstances  can  bring  an  action,  I  really  cannot  see 
why  she  could  not  bring  an  action  because  a  splash  of  mud,  in  fhe 
ordinary  course  of  driving,  was  thown  upon  her  dress  or  got  into 
her  eye  and  so  injured  it.  It  seems  manifest  that,  under  such  circum- 
stances, she  could  not  maintain  an  action.  For  the  convenience  of 
mankind  in  carrying  on  the  affairs  of  life,  people  as  they  go  along 
Hepb.Torts — 5 


66  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

roads  must  expect,  or  put  up  with,  such  mischief  as  reasonable  care 
on  the  part  of  others  cannot  avoid.  I  think  the  present  action  not  to 
be  maintainable. 

That  is  the  general  view  of  the  case.  Now  I  will  put  it  a  little  more 
specifically,  and  address  myself  to  the  argument  of  Mr.  Herschell. 
Here,  he  says,  if  the  driver  had  done  nothing,  there  is  no  reason  to 
suppose  this  mischief  would  have  happened  to  the  woman ;  but  he 
did  give  the  horses  a  pull,  or  inclination,  in  the  direction  of  the  plain- 
tiff— he  drove  them  there.  It  is  true  that  he  endeavoured  to  drive 
them  further  away  from  the  place  by  getting  them  to  turn  to  the 
right,  but  he  did  not  succeed  in  doing  that.  The  argument,  therefore, 
is,  if  he  had  not  given  that  impulse  or  direction  to  them,  they  would 
not  have  come  where  the  plaintiff  was.  Now,  it  seems  to  me,  that  ar- 
gument is  not  tenable,  and  I  think  one  can  deal  with  it  in  this  way. 
Here,  as  in  almost  all  cases,  you  must  look  at  the  immediate  act  that 
did  the  mischief,  at  what  the  driver  was  doing  before  the  mischief 
happened,  and  not  to  what  he  was  doing  next  before  what  he  was 
then  doing.  If  you  looked  to  the  last  act  but  one,  you  might  as  well 
argue  that  if  the  driver  had  not  started  on  that  morning,  or  had  not 
turned  down  that  particular  street,  this  mischief  would  not  have  hap- 
pened. 

I  think  the  proper  answer  is.  You  cannot  complain  of  me  unless  I 
was  immediately  doing  the  act  which  did  the  mischief  to  you.  Now 
the  driver  was  not  doing  that.  What  I  take  to  be  the  case  is  this : 
he  did  not  guide  the  horses  upon  the  plaintiff ;  he  guided  them  away 
from  her,  in  another  direction ;  but  they  ran  away  with  him,  upon  her, 
in  spite  of  his  efforts  to  take  them  away  from  where  she  was.  It 
is  not  the  case  where  a  person  has  to  make  a  choice  of  two  evils,  and 
singles  the  plaintiff  out,  and  drives  to  the  spot  where  she  is  standing. 
That  is  not  the  case  at  all.  The  driver  was  endeavoring  to  guide  them 
indeed,  but  he  was  taken  there  in  spite  of  himself.  I  think  the  obser- 
vation made  by  my  Brother  Pollock  during  the  argument  is  irresisti- 
ble, that  if  Mr.  Herschell's  contention  is  right,  it  would  come  to  this : 
if  I  am  being  run  away  with,  and  sit  quiet  and  let  the  horses  run 
wherever  they  think  fit,  clearly  I  am  not  liable,  because  it  is  they, 
and  not  I,  who  guide  them ;  but  if  I  unfortunately  do  my  best  to  avoid 
injury  to  myself  and  other  persons,  then,  it  may  be  said  that  it  is 
my  act  of  guiding  them  that  brings  them  to  the  place  where  the  ac- 
cident happens.     Surely  it  is  impossible. 

As  to  the  cases  cited,  most  of  them  are  really  decisions  on  the  form 
of  action,  whether  case  or  trespass.  The  result  of  them  is  this,  and 
it  is  intelligible  enough  :  if  the  act  that  does  an  injury  is  an  act  of  di- 
rect force  vi  et  armis,  trespass  is  the  proper  remedy  (if  there  is  any 
remedy)  where  the  act  is  wrongful,  either  as  being  wilful  or  as  being 
the  result  of  negligence.  Where  the  act  is  not  wrongful  for  either 
of  these  reasons,  no  action  is  maintainable,  though  trespass  would 
be    the   proper    form   of    action   if    it   were    wrongful.      That   is    the 


Ch.  1)  TRESPASSES  67 

effect  of  the  decisions.  In  Sharrocl  v.  London  and  North  Western 
Ry.  Co.,  4  Ex.  580,  the  master  was  not  present.  In  M'Laughlin  v. 
Pryor,  4  Man.  &  G.  48,  the  defendant  was  present,  and  was  supposed 
to  be  taking  part  in  the  control  of  the  animals.  In  Leame  v.  Bray, 
3  East,  593,  599,  there  was  an  act  of  direct  force  vi  et  armis,  and 
there  was  negligence.  I  think,  therefore,  that  our  judgment  should 
be  for  the  defendant. 

I  think  I  could  distinguish  the  case  cited  from  the  Year  Book,  but 
I  will  only  say  that  there  the  defendant  let  out  animals,  liable  to 
stray,  whether  frightened  or  not,  in  a  place  not  inclosed,  and  without 
anybody  to  keep  them  in  bounds. ^^ 

ClEasby,  B.  I  would  only  add  a  word  as  to  a  point  on  which  my 
Brother  BramwELL  has  not  given  judgment,  and  that  is  this.  This 
is  not  a  case  where  the  act  that  is  done  must  be  justified,  as  where 
a  man  does  a  particular  thing  to  avoid  something  else,  but  it  is  a  case 
where  it  must  be  shewn  that  it  was  the  act  of  the  defendant  himself. 
I  sum  up  all  in  these  words :  in  my  opinion  the  horses  were  not 
driven  there  by  the  defendant's  servant,  but  they  went  there  in  spite 
of  him,  so  far  as  he  directed  them  at  all. 

Rule  discharged. 

3  3  The  "case  cited  from  the  Year  Book"  is  the  case  in  Y.  B.  21  Hen.  VIII, 
with  the  comment  upon  it  by  Grose,  .J.,  in  Leame  v.  Bray  (1S03)  3  East.  593, 
599.    See  infra,  "Inevitable  Accident." 

The  arguments  of  counsel  are  omitted. 

Accord:  Goodman  v,  Taylor  (1S32)  5  Car.  &  P.  410;  Trespass,  because  P.'s 
horse  had  been  hit  by  D.'s  pony  and  chaise.  Plea,  not  guilty.  The  evidence 
showed  that  P.'s  wife  stood  by  the  head  of  the  pony  holding  it  by  the  rein 
when  a  Punch  and  Judy  show  coming  by  frightened  the  pony  so  that  he  ran 
away,  breaking  from  D.'s  vife  notwithstanding  her  best  efforts  to  hold  him. 
Chief  Justice  Denman  was  inclined  to  consider  this  "as  an  inevitable  accident." 
See  infi-a,  "The  Different  Forms  of  Justification  or  Excuse  in  Trespass." 

Steudle  v.  Rentchler  (1872)  64  111.  161:  D.'s  horses  had  run  over  P.  The 
evidence  showed  that  a  boy  had  hit  one  of  the  horses  with  some  missile.  He 
began  to  kick  and  frightened  the  other  horse.  The  driver  jumped  from  the 
vehicle  and  seized  them  by  the  head.    They  overpowered  him  and  ran  awav. 

Compare  Vincent  v.  Stinehour  (1835)  7  Vt  62,  64  (29  Am.  Dec.  145) ,  where 
Williams,  C.  J.,  remarks:  "The  principle  of  law,  which  is  laid  down  by  all 
the  writers  upon  this  subject,  and  which  is  gathered  from  and  confirmed  by 
the  whole  series  of  reported  cases,  is  that  no  one  can  be  made  responsible,  in 
the  action  of  trespass  for  consequences,  where  he  could  not  have  prevented 
those  con.sequences  by  prudence  and  care.  Thus  it  has  been  laid  down,  that  if 
a  horse,  upon  a  sudden  surprise,  run  away  with  his  rider,  and  runs  against  a 
man  and  hurts  him,  this  is  no  battery.  Where  a  person,  in  doing  an  act  which 
it  is  his  duty  to  perform,  hurts  another,  he  is  not  guilty  of  battery.  A  man 
falling  out  of  a  window,  without  any  imprudence,  injures  another — there  is  no 
trespass.  A  soldier,  in  exercise,  hurts  his  companion — no  recovery  can  be  had 
against  him.  In  the  case  of  Gibbons  v.  Pepper  (1695)  4  Mod.  405,  it  was  dis- 
tinctly decided,  that  if  a  horse  runs  away  with  his  rider,  against  his  will,  and 
he  could  not  have  avoided  it,  and  runs  against  another,  it  is  no  battery  in  the 
rider,  and  he  can  defend  under  the  general  issue.  In  the  case  of  Wakenuin  v. 
Robinson  (1823)  1  Bing.  213,  in  trespass  for  driving  against  plaintiff's  horse, 
and  injuring  him  with  shafts  of  a  gig,  it  was  considered  a  good  defence,  that 
the  horse  was  frightened  by  the  noisy  and  rapid  approach  of  a  butcher's  cart, 
and  became  ungovernable,  so  that  the  injury  was  occasioned  by  unavoidable 
accident." 


68  TORTS  THROUGH   ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 


SULLIVAN  V.  DUNHAM  et  al. 

iCourt  of  Appeals  of  New  York,  WOO.     161  N.  Y.  290,  55  N.  E.  923,  47  L.  R.  A. 

715,  76  Am.  St.  Rep.  274.) 

Action  by  the  administratrix  of  Annie  E.  Harten  against  Carroll 
Dunham  and  others.  From  a  judgment  of  the  appellate  division  (36 
App.  Div.  639,  56  N.  Y.  Supp.  1117)  affirming  a  judgment  in  plain- 
tiff's favor,  defendants  appeal.  v^ 

The  plaintiff's  intestate,  a  young  lady  19  years  of  age,  while  travel- 
ing on  a  public  highway  near  the  village  of  Irvington,  was  killed  by 
a  blow  from  a  section  of  a  tree  which  fell  upon  her  after  it  had  been 
hurled  more  than  400  feet  by  a  blast.  The  defendants  Dinkel  & 
Jewell,  as  co-partners,  had  been  employed  by  the  defendant  Dunham, 
the  owner  of  a  tract  of  rough  land,  to  blast  out  certain  trees  standing 
upon  it.  On  the  south  side  of  the  tract,  about  300  feet  from  the  near- 
est point  of  the  highway  in  question,  there  was  a  large  living  elm  tree, 
from  60  to  70  feet  in  height,  between  which  and  the  highway  was 
some  woodland.  Dynamite  was  placed  under  the  roots  of  this  tree 
and  exploded,  shattering  it  and  throwing  a  section  of  the  stump  over 
the  intervening  forest,  a  distance  of  412  feet,  to  a  point  in  the  high- 
way where  the  plaintiff's  intestate  was  traveling.  She  was  struck  by 
it  with  such  force  as  to  cause  her  death  within  a  few  hours. 

This  action  was  brought  to  recover  damages  for  the  benefit  of  the 
next  of  kin  on  account  of  the  death  of  the  plaintiff's  intestate,  caused, 
as  alleged,  by  the  wrongful  act  of  the  defendants.  Notwithstanding 
their  objection  and  exception,  the  case  was  submitted  to  the  jury  on 
the  theory  that  it  was  not  essential  for  the  plaintiff"  to  establish  neg- 
ligence in  order  to  make  out  a  cause  of  action.  The  judgment  ren- 
dered in  favor  of  the  plaintiff  upon  the  first  trial  was  reversed  by 
the  appellate  division  on  account  of  erroneous  rulings  (10  App.  Div. 
438,  41  N.  Y.  Supp.  1083),  but  the  judgment  rendered  in  her  favor 
upon  the  second  trial  was  unanimously  affirmed;  and  the  defendants, 
having  first  obtained  leave,  now  come  here. 

Vann,  J.  The  main  question  presented  by  this  appeal  is  whether 
one  who,  for  a  lawful  purpose,  and  without  negligence  or  want  of 
skill,  explodes  a  blast  upon  his  own  land,  and  thereby  causes  a  piece 
of  wood  to  fall  upon  a  person  lawfully  traveling  in  a  public  highway, 
is  liable  for  the  injury  thus  inflicted. 

The  statute  authorizes  the  personal  representative  of  a  decedent  to 
"maintain  an  action  to  recover  damages  for  a  wrongful  act,  neglect, 
or  default,  by  which  the  decedent's  death  was  caused,  against  a  nat- 
ural person  who,  or  a  corporation  which,  would  have  been  liable  to 
an  action  in  favor  of  the  decedent,  by  reason  thereof,  if  death  had  not 
ensued."  Code  Civ.  Proc.  §  1902.  It  covers  any  action  of  trespass 
upon  the  person  which  the  deceased  could  have  maintained  if  she  had 


Ch.  1)  TRESPASSES  69 

survived  the  accident.  Stated  in  another  form,  therefore,  the  ques- 
tion before  us  is  whether  the  defendants  are  Hable  as  trespassers. 

This  is  not  a  new  question,  for  it  has  been  considered,  directly  or 
indirectly,  so  many  times  by  this  court  that  a  reference  to  the  earlier 
authorities  is  unnecessary.  In  the  leading  case  upon  the  subject  the 
defendant,  in  order  to  dig  a  canal  authorized  by  its  charter,  necessarily 
blasted  out  rocks  from  its  own  land  with  gunpowder,  and  thus  threw 
fragments  against  the  plaintiff's  house,  which  stood  upon  the  adjoin- 
ing premises.  Although  there  was  no  proof  of  negligence  or  want 
of  skill,  the  defendant  was  held  liable  for  the  injury  sustained.  All 
the  judges  concurred  in  the  opinion  of  Gardiner,  J.,  who  said:  "The 
defendants  had  the  right  to  dig  the  canal;  the  plaintiff',  the  right  to 
the  undisturbed  possession  of  his  property.  If  these  rights  conflict, 
the  former  must  yield  to  the  latter,  as  the  more  important  of  the  two, 
since,  upon  grounds  of  public  policy,  it  is  better  that  one  man  should 
surrender  a  particular  use  of  his  land  than  that  another  should  be 
deprived  of  the  beneficial  use  of  his  property  altogether,  which  might 
be  the  consequence  if  the  privilege  of  the  former  should  be  wholly 
unrestricted.  The  case  before  us  illustrates  this  principle;  for  if  the 
defendants,  in  excavating  their  canal,  in  itself  a  lawful  use  of  their 
land,  could,  in  the  manner  mentioned  by  the  witnesses,  demolish  the 
stoop  of  the  plaintiff  with  impunity,  they  might,  for  the  same  pur- 
pose, on  the  exercise  of  reasonable  care,  demolish  his  house,  and  thus 
deprive  him  of  all  use  of  his  property.  The  use  of  land  by  the  pro- 
prietor is  not,  therefore,  an  absolute  right,  but  qualified  and  limited 
by  the  higher  right  of  others  to  the  lawful  possession  of  their  prop- 
erty. To  this  possession  the  law  prohibits  all  direct  injury,  without 
regard  to  its  extent  or  the  motives  of  the  aggressor.  *  *  *  He 
may  excavate  a  canal,  but  he  cannot  cast  the  dirt  or  stones  upon  the 
land  of  his  neighbor,  either  by  human  agency  or  the  force  of  gun- 
powder. If  he  cannot  construct  the  work  without  the  adoption  of 
such  means,  he  must  abandon  that  mode  of  using  his  property,  or  be 
held  responsible  for  all  damages  resulting  therefrom.  He  will  not 
be  permitted  to  accomplish  a  legal  object  in  an  unlawful  manner." 
Hay  V.  Cohoes  Co.,  2  N.  Y.  159,  51  Am.  Dec.  279.  This  case  was 
followed  immediately  by  Tremain  v.  Same,  2  N.  Y.  163,  51  Am. 
Dec.  284, — a  similar  action  against  the  same  defendant, — which  of- 
fered to  show  upon  the  trial  "that  the  work  was  done  in  the  best 
and  most  careful  manner."  It  was  held  that  the  evidence  was  prop- 
erly excluded,  because  the  manner  in  which  the  defendant  performed 
its  work  was  of  no  consequence,  as  what  it  did  to  the  plaintift''s  in- 
jury was  the  sole  question. 

These  were  cases  of  trespass  upon  lands,  while  the  case  before  us 
involves  trespass  upon  the  person  of  a  human  being,  when  she  was 
where  she  had  the  same  right  to  protection  from  injury  as  if  she 
had  been  walking  upon  her  own  land.     As  the  safety  of  the  person 


70  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

is  more  sacred  than  the  safety  of  property,  the  cases  cited  should 
govern  our  decision,  unless  they  are  no  longer  the  law.     *     *     * 

We  think  that  the  Hay  Case  has  always  been  recognized  by  this 
court  as  a  sound  and  valuable  authority.  After  standing  for  50  years 
as  the  law  of  the  state  upon  the  subject,  it  should  not  be  disturbed, 
and  we  have  no  inclination  to  disturb  it.  It  rests  upon  the  principle, 
founded  in  public  policy,  that  the  safety  of  property  generally  is  su- 
perior in  right  to  a  particular  use  of  a  single  piece  of  property  by 
its  owner.  It  renders  the  enjoyment  of  all  property  more  secure,  b}'' 
preventing  such  a  use  of  one  piece  by  one  man  as  may  injure  all  his 
neighbors.  It  makes  human  life  safer,  by  tending  to  prevent  a  land- 
owner from  casting,  either  with  or  without  negligence  a  part  of 
his  land  upon  the  person  of  one  who  is  where  he  has  a  right  to  be. 
It  so  applies  the  maxim  of  "Sic  utere^  tuo"  as  to  protect  person  and 
property  from  direct  physical  violence,  which,  although  accidental,  has 
the  same  effect  as  if  it  were  intentional.  It  lessens  the  hardship  by 
placing  absolute  liability  upon  the  one  who  causes  the  injury.  The 
accident  in  question  was  a  misfortune  to  the  defendants,  but  it  was 
a  greater  misfortune  to  the  young  woman  who  was  killed.  The 
safety  of  travelers  upon  the  public  highway  is  more  important  to  the 
state  than  the  improvement  of  one  piece  of  property  by  a  special 
method  is  to  its  owner.  As  was  said  by  the  supreme  court  of  Indiana, 
in  following  the  Hay  Case :  "The  public  travel  must  not  be  endan- 
gered to  accommodate  the  private  rights  of  individuals."  Wright  v. 
Compton,  53  Ind.  337. 

We  think  the  courts  below  were  right  in  holding  the  defendants 
liable  as  trespassers,  regardless  of  the  care  they  may  have  used  in 
doing  the  work.  Their  action  was  a  direct  invasion  of  the  rights 
of  the  person  injured,  who  was  lawfully  in  a  public  highway,  which 
was  a  safe  place  until  they  made  it  otherwise  by  throwing  into  it  the 
section  of  a  tree.     *     *     * 

The  judgment  is  right  and  should  be  affirmed,  with  costs. 

Judgment  affirmed.^* 

3  4  Part  of  the  opinion  is  omitted. 

Accord :  Wright  v.  Compton  (1876)  !53  Tnd.  .3.37  (D..  quarrying:  .stone  near  a 
public  highway,  by  a  blast  of  gunpowder  threw  fragments  of  stone  against  a 
traveller  passing  along  the  highway.  Said  the  Court:  "The  question  involved 
is  not  one  of  negligence  on  the  part  of  the  defendants.  The  act  charged  against 
them  is  itself  unlawful — not  the  act  of  blasting  and  quarrying  stone,  but  the 
act  of  casting  fragments  of  rock  against  the  plaintiff.  *  *  *  The  defend- 
ants could  not  lawfully  so  use  their  stone  quarry  as  to  embarrass  the  rights  of 
travellers  along  the  public  highway");  Hoffman  v.  Walsh  (llKHi)  117  Mo.  A  pp. 
27S,  93  S.  W.  853  (A  blast  lawfully  set  off,  by  D.,  without  negligence,  caused  a 
piece  of  rock  to  strike  P.,  standing  on  a  scaffold,  on  the  inside  of  a  wall,  some 
500  feet  distant). 

Comjjare  Cleghorn  v.  Thompson  (1901)  62  Kan.  727,  64  Pac.  605,  54  L.  R.  A. 
402:  Dogs  trespassing  on  D.'s  land  around  his  slaughter  house  had  caused 
trouble.  To  get  rid  of  the  dogs,  D.  shot  at  one  of  them.  The  bullet,  missing 
the  dog,  struck  a  stone,  was  deflected  at  a  wide  angle,  and  hit  and  killed  P. 
There  was  no  negligence  on  the  part  of  D.  11  eld,  in  the  absence  of  negligence, 
there  can  be  no  recovery. 


Ch.  1)  TRESPASSES  71 

BELL  V.  MILLER. 

(Supreme  Court  of  Ohio,  1831.    5  Ohio,  2.50.) 

The  action  was  for  an  assault  and  battery ;  verdict  for  the  plaintiff. 
Three  reasons  were  assigned  for  a  new  trial : 

1.  That  the  court  charged  the  jury,  that  if  the  defendant  incited 
or  in  any  degree  promoted  the  commission  of  the  assault  and  battery 
upon  the  plaintiff,  he  was  liable  in  this  action,  though  not  in  a  situa- 
tion to  afford  any  actual  aid  to  the  person  who  committed  it.     *     *     * 

By  the  Court.  All  concerned  in  the  commission  of  a  trespass 
are  considered  principals.  An  assault  and  battery  may  be  commit- 
ted by  a  party  not  present,  if  he  be  a  principal  actor  in  or  advisor 
and  promoter  of  making  the  attack.  If  one  person  employ  another 
to  commit  an  assault  and  battery  or  any  other  trespass,  and  the  act 
is  perpetrated,  both  are  guilty,  and  both  responsible  in  damages.  It 
was  not  supposed  that  this  was  now  a  debatable  question.  There  is 
no  error  in  the  charge  of  the  court.     *     *     * 

New  trial  refused. ^^ 


DAINGERFIELD  v.  THO^IPSON. 
(Supreme  Court  of  Appeals  of  Virginia,  ISSO.    33  Grat.  136,  36  Am.  Rep.  783.) 

Thompson  sued  Daingerfield  and  Harrison  for  an  alleged  assault 
and  battery.  The  facts,  in  brief,  were  as  follows :  Daingerfield  and 
Harrison,  about  midnight,  came  to  Thompson's  restaurant.  It  was 
closed  but  a  light  was  burning  within.  They  demanded  admission, 
pounding  on  the  door.  Failing  to  get  in,  Daingerfield  said  to  Harri- 
son, "Fire  a  salute."  Harrison  thereupon  fired  a  pistol  at  the  door. 
Thompson,  who  was  just  opening  the  door,  was  struck  by  the  ball 
and  badly  hurt.  Daingerfield  subsequently  testified  that  he  had  not 
supposed  that  Harrison  "was  fool  enough  to  shoot  into  the  house." 

Both  parties  appeared  by  their  attorneys,  and  the  defendant  Dain- 
gerfield moved  the  court  that  the  cause  be  tried  as  to  each  of  the  de- 
fendants separately.  This  motion  the  court  granted,  and  the  cause 
was  continued  as  to  the  defendant  Harrison,  and  was  proceeded  with  as 
to  the  defendant  Daingerfield,  upon  the  issue  of  not  guilty  as  to  him. 
And  upon  this  issue  the  jury,  after  hearing  the  evidence,  found  a 
verdict  for  the  plaintiff  (the  defendant  in  error),  against  the  defend- 
ant Daingerfield,  and  assessed  his  damages  at  the  sum  of  $8,000. 
Upon  this  verdict  the  Circuit  Court  entered  its  judgment  for  the 
sum  of  $8,000 — the  damages  by  the  jury  in  their  verdict  ascertained, 
with  costs.  To  this  judgment  a  writ  of  error  was  awarded  by  one 
of  the  judges  of  this  court. 

se  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


72  TORTS   THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

Christl\x,  J.  *  *  *  It  is  earnestly  insisted  however  by  the 
learned  counsel  for  the  plaintiff  in  error  (Daingerfield),  that  the  evi- 
dence against  him  does  not  sustain  the  charge  in  the  declaration,  and 
in  each  count  thereof,  of  assault  and  battery;  that  while  such  as- 
sault is  proved  against  Harrison,  who  fired  the  pistol,  it  is  not  proved 
against  Daingerfield ;  that  he  committed  no  assault,  but  simply  ad- 
vised and  instigated  an  act  which  was  in  itself  harmless,  to  wit :  "Fire 
a  salute,"  and  that  this  act  was  not  a  trespass  or  assault  as  far  as 
Daingerfield  was  concerned ;  that  he  did  not  direct  Harrison  to  "shoot 
Thompson,  or  to  fire  into  his  house,  but  simply  to  "fire  a  salute,"  and 
that  Harrison  did  another  and  dift'erent  act  from  the  one  which  was 
advised  and  instigated  by  Daingerfield,  and  that  the  injury  resulted 
from  Harrison's  act  done  differently  from  the  act  directed  by  Dain- 
gerfield, and  consequently  Daingerfield  cannot  be  held  liable  in  this 
action. 

Now,  the  fatal  defect  in  this  argument  is  that  the  firing  of  a  pistol 
in  the  streets  of  a  city  is  not  a  harmless  act,  but,  on  the  contrary,  is 
an  unlawful  and  dangerous  act,  prohibited  and  made  unlawful  by 
express  ordinance.  And  besides,  the  evidence  abundantly  shows  that 
even  before  the  firing  of  the  pistol  Daingerfield  and  Harrison  w^ere 
joint  trespassers  upon  the  premises  of  Thompson.  The  firing  of  the 
pistol  was  an  aggravation  of  the  trespass,  and  being  in  itself  an  un- 
lawful act  (and  that  unlawful  act  causing  the  fatal  injury),  being 
instigated  and  prompted  by  Daingerfield,  he  is  equally  responsible 
with  Harrison  for  its  unhappy  consequences,  although  it  was  not  done 
maliciously  and  not  done  by  the  hand  of  Daingerfield. 

The  law  is  well  settled  that  any  person  who  is  present  at  the  com- 
mission of  a  trespass,  encouraging  or  inciting  the  same  by  words,  ges- 
tures, looks  or  signs,  or  who  in  any  way  or  by  any  means  countenances 
or  approves  the  same,  is  in  law  deemed  to  be  an  aider  and  abettor, 
and  liable  as  principal.  1  Hale  P.  C.  438;  3  Greenl.  §§  40,  41;  IMc- 
Mannus  v.  Lee,  43  Mo.  206,  97  Am.  Dec.  386,  and  cases  there  cited. 

There  seems  indeed  to  be  no  principle  of  law  better  settled,  and  for 
which  numerous  authorities  may  be  cited  if  necessary,  than  this : 
That  all  persons  who  wrongfully  contribute  in  any  manner  to  the 
commission  of  a  trespass  are  responsible  as  principals,  and  each  one 
is  liable  to  the  extent  of  the  injury  done. 

The  defendant  Daingerfield  being  present,  aiding  and  abetting  and 
instigating  Harrison,  was  equally  guilty  with  him  of  an  assault  to 
the  same  degree  as  if  he  had  fired  the  fatal  shot  himself.     *     *     * 

Judgment  afffrmed,^" 

36  The  statement  of  facts  is  rewritten  and  part  of  the  opinion  is  omitted. 

Compare  Bird  v.  Lynn  (IS.jO)  10  B.  Men.  (Ivy.)  422:  A  boy  who  had  been 
whipped  by  a  man  sued  liim  in  assault  and  battery  and  made  a  Mrs.  Jouett  a 
co-defendant.  There  was  no  evidence  that  Mrs.  Jouett  was  present  wlien  the 
boy  was  whipped.  But  the  court  charged  that  if  she  "encouracod  the  trespass" 
she  was  a  party  to  it.    The  verdict  and  the  judgment  went  against  her,  and  she 


Ch.  1)  TRESPASSES  73 

FORDE  V.  SKINNER  et  al. 

(At  Nisi  Prius,  1S30.    4  Car.  &  P.  239,  34  R.  R.  791.) 

False  imprisonment,  with  a  count  for  a  common  assault.  Plea,  gen- 
eral issue. 

The  defendants  were  the  parish  officers  of  the  parish  of  Ninfield, 
in  Sussex,  and  the  plaintiff  was  a  young  woman,  who  was  a  pauper 
in  the  poor-house  there.  The  false  imprisonment  was  not  proved; 
and  the  assault  complained  of  w^as,  that,  on  the  10th  of  December, 
1829,  the  defendants  sent  for  the  plaintiff  into  a  room  in  the  poor- 
house,  and  by  force,  and  against  her  consent,  cut  off'  her  hair;  and 
it  appeared,  that  in  the  struggle,  occasioned  by  her  resisting,  one  of 
her  arms  was  bruised.  It  was  shewn  that  the  plaintiff  wore  long 
hair,  and  kept  it  in  a  clean  and  neat  state ;  and  there  was  also  evi- 
dence given  that  when  the  plaintiff'  had,  shortly  before,  gone  with 
two  of  the  defendants  before  the  magistrates  at  Battle,  one  of  the 
defendants  said,  alluding  to  the  plaintiff'  and  her  sister,  who  was 
also  in  the  poor-house,  that  he  would  soon  do  something  "to  take 
their  pride  down."  It  also  appeared  that  the  sister's  hair  was  cut  off 
in  a  similar  way. 

Bayle;y,  J.  (in  summing  up).  However  desirable  such  a  regula- 
tion as  that  of  cutting  off'  the  hair  of  persons  in  a  poor-house  may  be 
with  regard  to  health  and  cleanliness,  yet  it  is  altogether  unauthorized 
by  law  and  is  a  wrongful  act,  if  done  without  the  consent  of  the 
party.  If,  in  this  case,  it  was  done  violently  and  with  force,  and  with 
the  malicious  intent  imputed,  namely,  "of  taking  down  their  pride," 

appealed.  Marshall,  C.  J.,  delivering  the  opinion  of  the  Court  of  Appeals,  re- 
ma  rived  as  follows:  "As  Mrs.  Jouett  was  not  present  when  the  trespass  was 
committed,  the  word  'encourage'  seems  to  be  not  sufficiently  definite  to  ex- 
press the  true  ground  of  liabilitj-.  If  Mrs.  Jouett  had  directed  Bird  to  whip 
or  beat  the  plaintiff,  and  he  had  done  it  in  consequence,  this  would,  undoubted- 
ly, have  been  an  encouragen;ent  of  the  trespass,  which  would  make  her  a  par- 
ty. If  she  had  said  in  Bird's  presence  that  the  plaintiff  was  a  bad  boy  and 
deserved  a  whipping,  or  that  he  had  mistreated  her.  and  she  wished  somebody 
would  whip  him.  in  consequence  of  which  Bird  had  beaten  him,  this  might,  in 
some  sense,  have  been  deemed  an  encouragement  of  the  trespass,  and  yet,  un- 
less she  had  used  this  language  for  the  purpose  or  with  the  intention  of  incit- 
ing Bird  to  commit  the  act  and  of  thus  producing  or  procuring  the  trespass,  we 
apprehend  that  Bird,  though  in  fact  committing  the  act,  in  consequence  of 
what  she  had  said,  should  be  regarded  as  a  mere  volunteer,  and  that  she  would 
not  be  a  co-trespasser  on  the  ground  of  having  encouraged  the  trespass.  To 
make  Mrs.  Jouett  liable  as  having  encouraged  the  trespass  by  words  used  on  a 
prior  occasion,  those  words  must  have  had  a  direct  relation  to  the  trespass,  and 
have  been  calculated  and  intended  to  produce  it  by  stimulating  or  exciting 
some  person  hearing  them  to  do  the  act  or  procure  it  to  be  done.  If  it  were 
sufficient  that  the  act  was  done  in  consequence  of  the  words  spoken,  then  one 
person  might  be  made  a  trespasser  and  e\  en  a  felon  against  his  or  her  consent, 
and  by  the  mere  rashness  or  precipitancy  or  overheated  zeal  of  another,  and  the 
mere  expression  of  just  anger  or  resentment,  or  the  statement  of  a  fact  cal- 
culated to  excite  indignation  against  an  individual,  and  to  create  an  opinion  or 
desire  that  he  should  be  chastised  might  make  the  party  using  such  expres- 
sions or  making  the  statement  liable  for  the  inconsiderate  act  of  another." 


74  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

and  not  with  a  view  to  cleanliness,  that  will  be  an  aggravation,  and 
ought  to  increase  the  damages.     You  will  therefore  decide  on  the  mo- 
tives which  actuated  the  defendants,  and  according  to  that  decision 
3'ou  will  estimate  the  amount  of  damages. 
Verdict  for  the  plaintiff.    Damages  £60.^^ 


ANDERSON  v.  ARNOLD'S  EX'R. 

(Court  of  Appeals  of  Kentucky,  ISSl.     79  Ky.  370.) 

Judge:  Pryor  delivered  the  opinion  of  the  court.  Section  1  of 
chapter  10,  General  Statutes,  provides :  "No  right  of  action  for  per- 
sonal injury,  or  injury  to  real  or  personal  estate,  shall  cease  or  die 
with  the  person  injuring  or  the  person  injured,  except  actions  for  as- 
sault and  battery,  slander,  criminal  conversation,  and  so  much  of 
the  action  for  malicious  prosecution  as  is  intended  to  recover  for 
the  personal  injury;  but  for  any  injury  other  than  those  excepted, 
an  action  may  be  brought  or  revived  by  the  personal  representative, 
or  against  the  personal  representative,  heir,  or  devisee,  in  the  same 
manner  as  causes  of  action  founded  on  contract." 

The  appellant,  James  Anderson,  instituted  his  action  in  the  Hardin 

circuit  court,  in  which  he  alleges  that  on  the  day  of  , 

in  the  year  1878,  the  appellee's  testator  negligently  and  recklessly,  but 
not  intentionally,  inflicted  a  wound  upon  the  body  of  the  plaintiff  (ap- 
pellant) with  a  pistol ;  in  other  words,  that  the  appellee's  testator 
shot  the  plaintiff  with  a  pistol,  causing  him  great  pain  and  bodily 
suffering,  and  for  which  he  asks  a  judgment,  etc.  On  the  hearing  of 
the  cause,  a  demurrer  was  filed  and  sustained  to  the  petition  on  the 

37  Compare  the  remark  of  Holt,  C.  J.,  in  Cole  v.  Turner  (1704)  6  Mod.  149: 
"The  least  touching  of  another  in  anger  is  a  battery." 

In  Courtney  v.  Kneib  (1908)  l."Jl  Mo.  App.  204,  110  S.  W.  665,  an  action  for 
assault  and  battery,  the  defendant  pleaded  that  the  plaintiff  made  the  firt^t 
assault.  The  trial  court  refused  to  give  the  following  instructions  asked  by 
the  defendant:  "The  court  instructs  the  jury  that  when  the  plaintiff  got  into 
the  wagon  of  Phillip  Kneib,  Sr..  for  the  purpose  of  taking  the  corn  away  from 
Philip  Kneib.  Sr.,  and  Philip  Kneib,  Sr..  then  undertook  to  prevent  him  from 
.so  doing,  and  the  plaintiff  laid  his  hands  upon  the  person  of  the  said  Philii> 
Kneib,  Sr.,  the  plaintiff  then  committed  an  assault  and  battery  upon  the  said 
Philip  Kneib,  Sr.,  and  his  conduct  was  in  violation  of  the  law."  On  this, 
Bioaddus,  P.  ,T.,  delivering  the  opinion  of  the  Kansas  City  Court  of  Appeals, 
renmrked:  "There  is  one  very  serious  oljjection  to  said  instruction,  and  that 
is  that  it  .seeks  to  make  an  assault  and  battery  out  of  the  fact  that  plaintiff 
merely  laid  his  hand  on  defendant's  fatlier,  I'hilip  Kneib,  Sr.  Such  an  act  of 
itself  did  not  constitute  an  assault  and  battery.  In  order  to  have  it  made 
such,  the  act  must  have  been  accompanied  with  anger  or  some  other  circum- 
stance of  the  kind  evincing  hostility.    All  concur." 

And  see  In  re  Murphy  (18S4)  lOJ)  111.  .'!1.  'M  :  In  our  judgment  malice  was 
the  gist  of  tlie  action  (for  assault  and  battery)  within  the  sense  (in  wliicli)  the 
svord  "malice"  is  used  in  the  .statute  (as  to  arrests  in  civil  action  when  malice 
"is  not  the  gist  of  the  action").  See.  also,  3  Cyc.  1068:  "Malice  is  the  gist  of 
the  action  for  assault  and  battery." 


Ch.  1)  TRESPASSES  T5 

ground  that  the  cause  of  action  died  with  the  person,  and  no  action 
could  be  maintained  against  Arnold's  personal  representative. 

Counsel  for  the  plaintiff  proceeded  on  the  idea  that  the  injury  must 
be  intentional  in  order  to  constitute  it  an  assault  and  battery,  and  if 
involuntary,  the  remedy  was  by  an  action  on  the  case :  as  if  A.  shoot 
at  B.  and  wound  C,  the  shooting  of  C.  being  unintentional  is  not  an 
assault  and  battery  on  C,  but  the  result  of  an  assault  on  B. 

The  various  statutes  authorizing  actions  by  the  widow,  heirs,  and 
personal  representative  of  one  whose  life  has  been  lost  by  the  neg- 
ligence of  another  are  not  involved  in  the  question  presented  in  this 
case,  and  there  is  no  reason  why  the  court  should  depart  from  the 
common  law  rule  in  defining  what  constitutes  an  assault  and  battery, 
although  the  appellant  may  have  sustained  great  injury.  The  action 
of  trespass  lies  for  injuries  committed  by  force,  and  generally  is 
only  for  such  as  are  immediate.  (Chitty's  Pleadings,  vol.  1,  p.  190.) 
When  the  act  complained  of,  and  not  the  consequences  of  the  act, 
causes  the  injury,  the  remedy  is  trespass  and  not  case.  "Nor,"  says 
Chitty,  "is  the  motive,  intent,  or  design  of  the  wrong-doer  towards 
the  complainant  the  criterion  as  to  the  form  of  the  remedy;  and  it 
is  clear  that  the  mind  need  not  in  general  concur  in  the  act  that  causes 
an  injury  to  another;  and  if  the  action  occasion  an  immediate  in- 
jury, trespass  is  the  proper  remedy  without  reference  to  the  intent." 
(Chitty's  Pleadings,  vol.  1,  p.  147.)  When  on  uncocking  a  gun  it 
went  off  accidentally  and  wounded  a  bystander,  it  was  held  that  the 
action  was  properly  brought  in  trespass.  So  when  the  defendant,  in 
firing  his  musket,  accidentally  wounded  the  plaintiff',  trespass  and 
not  case  was  the  remedy. 

The  familiar  illustrations  given  in  the  elementary  books  as  to  the 
distinctio'U  between  trespass  and  case  settle  the  question  here.  When 
a  log  is  thrown  in  the  highway,  and  in  the  act  of  throwing  it  strikes 
one,  it  is  a  trespass ;  but  if,  when  placed  in  the  highway,  one  is  in- 
jured by  falling  over  it,  case  is  the  proper  remedy.  So  of  the  lighted 
squib  that  was  thrown  in  the  market  space,  and  afterwards  thrown 
about  by  others  in  self-defense ;  the  new  impetus  given  to  it  by 
others  was  held  to  be  a  continuance  of  the  original  force,  and  tres- 
pass was  the  remedy.  Following,  therefore,  this  common  law  defini- 
tion, it  was  an  assault  and  battery  committed  upon  the  plaintiff',  al- 
though the  shot  was  fired  at  a  third  person;  and  the  meaning  of  the 
words  "assault  and  battery"  will  not  be  restricted  to  an  actual  and 
intentional  beating  of  another  so  as  to  authorize  the  recovery.  If 
an  assault  and  battery  at  common  law,  the  action  does  not  survive, 
and  that  it  was  there  can  be  no  doubt. 

Judgment  affirmed. 


76  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 


VOSBURG  V.  PUTNEY. 

(Supreme  Court  of  Wisconsin,  1891.    80  Wis.  523,  50  N.  W.  403, 
14  L.  R.  A.  226,  27  Am.  St.  Rep.  47.) 

The  action  was  brought  to  recover  damages  for  an  assault  and  bat- 
tery, alleged  to  have  been  committed  by  the  defendant  upon  the  plain- 
tiff on  February  20,  1889.  The  answer  is  a  general  denial.  At  the 
date  of  the  alleged  assault  the  plaintiff  was  a  little  more  than  14  years 
of  age,  and  the  defendant  a  little  less  than  12  years  of  age.  The 
injury  complained  of  was  caused  by  a  kick  inflicted  by  defendant  upon 
the  leg  of  the  plaintiff,  a  little  below  the  knee.  The  transaction  oc- 
curred in  a  school-room  in  Waukesha,  during  school  hours,  both 
parties  being  pupils  in  the  school.  A  former  trial  of  the  cause  re- 
sulted in  a  verdict  and  judgment  for  the  plaintiff  for  $2,800.  The 
defendant  appealed  from  such  judgment  to  this  court,  and  the  same 
was  reversed  for  error,  and  a  new  trial  awarded.  78  Wis.  84,  47 
N.  W.  99.  The  case  has  been  again  tried  in  the  circuit  court,  and  the 
trial  resulted  in  a  verdict  for  plaintiff  for  $2,500. 

On  the  last  trial  the  jury  found  a  special  verdict,  as  follows:  "(1) 
Had  the  plaintiff  during  the  month  of  January,  1889,  received  an  in- 
jury just  above  the  knee,  which  became  inflamed  and  produced  pus? 
Answer.  Yes.  (2)  Had  such  injury  on  the  20th  day  of  February,  1889, 
nearly  healed  at  the  point  of  the  injury?  A.  Yes.  (3)  Was  the  plain- 
tiff, before  said  20th  of  February,  lame,  as  the  result  of  such  injury? 
A.  No.  (4)  Had  the  tibia  in  the  plaintiff's  right  leg  become  inflamed 
or  diseased  to  some  extent  before  he  received  the  blow  or  kick  from 
the  defendant?  A.  No.  (5)  What  was  the  exciting  cause  of  the 
injury  to  the  plaintiff's  leg?  A.  Kick.  (6)  Did  the  defendant,  in 
touching  the  plaintiff  with  his  foot,  intend  to  do  him  any  harm?  A. 
No.  (7)  At  what  sum  do  you  assess  the  damages  of  the  plaintiff? 
A.  Twenty-five  hundred  dollars."  The  defendant  moved  for  judg- 
ment in  his  favor  on  the  verdict,  and  also  for  a  new  trial.  The  plain- 
tiff moved  for  judgment  on  the  verdict  in  his  favor.  The  motions 
of  defendant  were  overruled,  and  that  of  the  plaintiff  granted.  There- 
upon judgment  for  plaintiff,  for  $2,500  damages  and  costs  of  suit,  was 
duly  entered.     The  defendant  appeals  from  the  judgment. 

Lyon,  J.  Several  errors  are  assigned,  only  three  of  which  will  be 
considered. 

I.  The  jury  having  found  that  the  defendant,  in  touching  the  plain- 
tiff with  his  foot,  did  not  intend  to  do  him  any  harm,  counsel  for  de- 
fendant maintain  that  the  plaintiff  has  no  cause  of  action,  and  that 
defendant's  motion  for  judgment  on  the  special  verdict  should  have 
been  granted.  In  support  of  this  proposition  counsel  quote  from  2 
Greenl.  Ev.  §  83,  the  rule  that  "the  intention  to  do  harm  is  of  the 
essence  of  an  assault."  Such  is  the  rule,  no  doubt,  in  actions  or  prose- 
cutions for  mere  assaults.     But  this  is  an  action  to  recover  damages 


Cll.  1)  TRESPASSES  77 

for  an  alleged  assault  and  battery.  In  such  case  the  rule  is  correctly 
stated,  in  many  of  the  authorities  cited  by  counsel,  that  plaintiff  must 
show  either  that  the  intention  was  unlawful,  or  that  the  defendant  is 
in  fault.  If  the  intended  act  is  unlawful,  the  intention  to  commit  it 
must  necessarily  be  unlawful. 

Hence,  as  applied  to  this  case,  if  the  kicking  of  the  plaintiff  by 
the  defendant  was  an  unlawful  act,  the  intention  of  defendant  to 
kick  him  was  also  unlawful.  Had  the  parties  been  upon  the  play- 
grounds of  the  school,  engaged  in  the  usual  boyish  sports,  the  defend- 
ant being  free  from  malice,  wantonness,  or  negligence,  and  intending 
no  harm  to  plaintiff  in  what  he  did,  we  should  hesitate  to  hold  the 
act  of  the  defendant  unlawful,  or  that  he  could  be  held  liable  in  this 
action.  Some  consideration  is  due  to  the  implied  license  of  the  play- 
grounds. But  it  appears  that  the  injury  was  inflicted  in  the  school, 
after  it  had  been  called  to  order  by  the  teacher,  and  after  the  regular 
exercises  of  the  school  had  commenced.  Under  these  circumstances, 
no  implied  license  to  do  the  act  complained  of  existed,  and  such  act 
w^as  a  violation  of  the  order  and  decorum  of  the  school,  and  neces- 
sarily unlawful.  Hence  we  are  of  the  opinion  that,  under  the  evi- 
dence and  verdict,  the  action  may  be  sustained.     *     *     *  ^^ 


RICHMOND  V.  FISKE. 
(Supreme  Judicial  Court  of  Massachusetts,  1893.    160  Mass.  34,  35  N.  E.  103.) 

Trespass  by  Richmond  against  Fiske.  From  a  judgment  in  defend- 
ant's favor,  plaintiff  appeals. 

The  case  was  submitted  upon  the  following  agreed  statement  of 
facts : 

"Plaintiff  was  in  the  rightful  possession  of  a  tenement  on  the  second  floor 
of  No.  ir)2  Hancoclv  street,  i^pringfield.  His  tenement  was  reached  by  a  flight 
of  stairs,  at  the  head  of  which  was  a  door  opening  into  a  hall  12  or  15  feet 
long,  at  one  end  of  which  a  door  opened  into  the  Ivitchen.  and  at  the  other 
end  a  door  opened  into  plaintiff's  sleeping  room.  The  hallway  was  part  of 
the  plaintiff's  premises,  and  the  outer  entrance  was  about  midway  of  its 
length.  Defendant  was  a  milkman  in  the  employ  of  the  Springfield  i\Iilk  A.s- 
sociation,  and  he  delivered  milk  to  plaintiff  at  an  early  hour  every  morning. 
The  hall  and  kitchen  doors  were  left  unlocked,  so  that  defendant  could  enter, 
and  leave  the  milk  in  the  kitchen.  For  some  time  prior  to  the  act  complained 
of,  defendant  had,  with  plaintiff's  permission,  occasionally  entered  plaintiff's 
sleeping  room,  through  the  door  from  the  hall,  for  the  purpose  of  collecting 
the  milk  bills.  Prior  to  the  alleged  trespass,  plaintiff  had  forbidden  defend- 
ant entering  the  sleeping  room  any  more,  and  requested  him  to  keep  out.  On 
the  morning  in  question,  after  a  night  of  suffering  from  sick  headache,  the 
plaintiff'  had  dropped  off  into  sleep,  when  defendant,  entering  the  sleeping 
room  from  the  hall,  after  having  left  milk  in  the  kitchen  as  usual,  and  find- 
ing plaintiff"  asleep,  took  hold  of  his  arm  and  shoulders,  and  used  sufficient 
force  to  awaken  the  phiintift'  for  the  purpose  of  presenting  a  milk  bill.  If, 
upon  these  facts,  defendant  was  guilty  of  a  trespass,  as  alleged,  plaintiff  is  to 
be  awarded  such  sum  lor  damages  as  to  the  court  shall  seem  just;  otherwi.se 
judgment  is  to  be  for  defendant." 

88  Part  of  the  opinion  is  omitted. 


78  TORTS  THROUGH   ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 

Field,  C.  J.  The  declaration  contains  two  counts, — one  for  an 
assault  and  battery  upon  the  plaintiff,  and  the  other  for  forcibly  en- 
tering the  plaintiff's  close.  The  agreed  facts  show  that  the  defend- 
ant entered  the  plaintiff's  close  by  his  permission.  The  fact  that  after 
the  defendant  entered,  by  permission,  through  the  outer  door  into  the 
hall,  he  went,  against  the  commands  of  the  plaintiff,  into  the  plain- 
tiff's sleeping  room,  does  not  constitute  a  trespass  upon  the  close. 
Smith  V,  Pierce,  110  Mass.  35. 

But  the  facts  show  a  trespass  upon  the  person  of  the  plaintiff".  Com. 
V.  Clark,  2  Aletc.  (Mass.)  23.  On  the  facts  agreed,  it  must  be  taken 
that  the  defendant,  against  the  express  commands  of  the  plaintiff',  en- 
tered the  plaintiff'"s  sleeping  room,  and  "took  hold  of  his  arm  and 
shoulders,  and  used  sufficient  force  to  awaken  the  plaintiff,  for  the 
purpose  of  presenting  a  milk  bill."  If  there  were  any  circumstances 
which  would  justify  this,  they  do  not  appear  in  the  agreed  statement 
of  facts.  Although  the  trespass  is  slight,  the  damages  are  not  neces- 
sarily nominal,  and  they  should  be  left  to  be  assessed  by  the  superior 
court. 

The  judgment  should  be  reversed,  and,  in  accordance  with  the 
agreed  statement,  the  plaintiff's  damages  should  be  assessed  under  the 
first  count.    So  ordered. 


MOHR  V.  WILLIAMS. 

(Supreme  Coiu-t  of  Minnesota,  1905.     95  Minn.  261,  104  N.  W.  12,  1  L.  R.  A. 
[N.  S.]  439,  111  Am.  St.  Rep.  462,  5  Ann.  Cas.  303.) 

Action  to  recover  damages  for  an  alleged  assault  and  battery.  There 
was  a  verdict  for  plaintiff'  for  $14,322.50,  whereupon  the  defendant 
moved  for  judgment  notwithstanding  the  verdict,  on  the  ground  that, 
on  the  evidence  presented,  plaintiff  was  not  entitled  to  recover,  or,  if 
that  relief  was  denied,  for  a  new  trial  on  the  ground,  among  others, 
that  tlie  verdict  was  excessive.  The  trial  court  denied  the  motion  for 
judgment,  but  granted  a  new  trial  on  the  ground,  as  stated  in  the  or- 
der, that  the  damages  were  excessive.  Defendant  appealed  from  the 
order  denying  the  motion  for  judgment,  and  plaintiff'  appealed  from 
the  order  granting  a  new  trial. 

Brown,  J.  Defendant  is  a  physician  and  surgeon  of  standing  and 
character,  making  disorders  of  the  ear  a  specialty,  and  having  an 
extensive  practice  in  the  city  of  St.  Paul.  He  was  consulted  by 
plaintiff,  who  complained  to  him  of  trouble  with  her  right  ear,  and, 
at  her  request,  made  an  examination  of  that  organ  for  the  purpose 
of  ascertaining  its  condition.  He  also  at  the  same  time  examined  her 
left  ear,  but,  owing  to  foreign  substances  therein,  was  unable  to  make 
a  full  and  complete  diagnosis  at  that  time.  The  examination  of  her 
right  ear  disclosed  a  large  perforation  in  the  lower  portion  of  the 
drum  membrane,  and  a  large  polyp  in  the  middle  ear,  which  indicated 
that  some  of  the  small  bones  of  the  middle  ear  (ossicles)  were  proba- 


Ch.  1)  TRESPASSES  79 

bly  diseased.  He  informed  plaintiff  of  the  result  of  his  examination, 
and  advised  an  operation  for  the  purpose  of  removing  the  polyp  and 
diseased  ossicles.  After  consultation  with  her  family  physician,  and 
one  or  two  further  consultations  with  defendant,  plaintiff  decided  to 
submit  to  the  proposed  operation.  She  was  not  informed  that  her 
left  ear  was  in  any  way  diseased,  and  understood  that  the  necessity 
for  an  operation  applied  to  her  right  ear  only.  She  repaired  to  the 
hospital,  and  was  placed  under  the  influence  of  anaesthetics ;  and,  after 
being  made  unconscious,  defendant  made  a  thorough  examination  of 
her  left  ear,  and  found  it  in  a  more  serious  condition  than  her  right 
one.  A  small  perforation  was  discovered  high  up  in  the  drum  mem- 
brane, hooded,  'and  with  granulated  edges,  and  the  bone  of  the  inner 
wall  of  the  middle  ear  was  diseased  and  dead.  He  called  this  discov- 
ery to  the  attention  of  Dr.  Davis — plaintift''s  family  physician,  who 
attended  the  operation  at  her  request — who  also  examined  the  ear, 
and  confirmed  defendant  in  his  diagnosis.  Defendant  also  further 
examined  the  right  ear,  and  found  its  condition  less  serious  than  ex- 
pected, and  finally  concluded  that  the  left,  instead  of  the  right,  should 
be  operated  upon ;  devoting  to  the  right  ear  other  treatment.  He 
then  performed  the  operation  of  ossiculectomy  on  plaintiff's  left  ear ; 
removing  a  portion  of  the  drum  membrane,  and  scraping  away  the 
diseased  portion  of  the  inner  wall  of  the  ear.  The  operation  was 
in  every  way  successful  and  skillfully  performed.  It  is  claimed  by 
plaintiff  that  the  operation  greatly  impaired  her  hearing,  seriously  in- 
jured her  person,  and,  not  having  been  consented  to  by  her,  was 
wrongful  and  unlawful,  constituting  an  assault  and  battery;  and  she 
brought  this  action  to  recover  damages  therefor.     *     *     * 

The  last  contention  of  defendant  is  that  the  act  complained  of  did 
not  amount  to  an  assault  and  battery.  This  is  based  upon  the  theory 
that,  as  plaintiff's  left  ear  was  in  fact  diseased,  in  a  condition  dan- 
gerous and  threatening  to  her  health,  the  operation  was  necessary, 
and,  having  been  skillfully  performed  at  a  time  when  plaintiff  had 
requested  a  like  operation  on  the  other  ear,  the  charge  of  assault 
and  battery  cannot  be  sustained;  that,  in  view  of  these  conditions, 
and  the  claim  that  there  was  no  negligence  on  the  part  of  defendant, 
and  an  entire  absence  of  any  evidence  tending  to  show  an  evil  intent,  the 
court  should  say,  as  a  matter  of  law,  that  no  assault  and  battery  was 
committed,  even  though  she  did  not  consent  to  the  operation.  In 
other  words,  that  the  absence  of  a  showing  that  defendant  was  actu- 
ated by  a  wrongful  intent,  or  guilty  of  negligence,  relieves  the  act  of 
defendant  from  the  charge  of  an  unlawful  assault  and  battery. 

We  are  unable  to  reach  that  conclusion,  though  the  contention  is 
not  without  merit.  It  would  seem  to  follow  from  what  has  been 
said  on  the  other  features  of  the  case^^  that  the  act  of  defendant 

3  9  These  features  are  given  infra,  in  connection  with  the  different  forms  of 
ju.stification  or  excuse  in  trespass. 


80  TORTS   THROUGH   ACTS   OF   ABSOLUTE    LIABILITY  (Part  1 

amounted  at  least  to  a  technical  assault  and  battery.*"  If  the  opera- 
tion was  performed  without  plaintiff's  consent,  and  the  circumstances 
were  not  such  as  to  justify  its  performance  without,  it  was  wrong- 
ful; and,  if  it  was  wrongful,  it  was  unlawful.  As  remarked  in  1  Jag- 
gard  on  Torts,  437,  every  person  has  a  right  to  complete  immunity 
of  his  person  from  physical  interference  of  others,  except  in  so  far 
as  contact  may  be  necessary  under  the  general  doctrine  of  privilege ; 
and  any  unlawful  or  unauthorized  touching  of  the  person  of  another, 
except  it  be  in  the  spirit  of  pleasantry,  constitutes  an  assault  and  bat- 
tery. In  the  case  at  bar,  as  we  have  already  seen,  the  question  wheth- 
er defendant's  act  in  performing  the  operation  upon  plaintiff'  was 
authorized  was  a  question  for  the  jury  to  determine.  If  it  was  un- 
authorized, then  it  was,  within  what  we  have  said,  unlawful.  It  was 
a  violent  assault,  not  a  mere  pleasantry;  and,  even  though  no  neg- 
ligence is  shown,  it  was  wrongful  and  unlawful.  The  case  is  unlike 
a  criminal  prosecution  for  assault  and  battery,  for  there  an  unlawful 
intent  must  be  shown.  But  that  rule  does  not  apply  to  a  civil  action, 
to  maintain  which  it  is  sufficient  to  show  that  the  assault  complained 
of  was  wrongful  and  unlawful  or  the  result  of  negligence.  1  Addi- 
son on  Torts,  689;  Lander  v.  Seaver,  32  Vt.  114,  76  Am.  Dec.  156; 
Vosburg  V.  Putney,  80  Wis.  523,  50  N.  W.  403,  14  L.  R.  A.  226,  27 
Am.  St.  Rep.  47.    *    *    * 


(C)  In  False  Imprisonment 
(a)  In  General 

WRIGHT  V.  WILSON. 

(Summer  Assizes  at  Lincoln,  1699.    1  Ld.  Raym.  739,  91  Reprint,  1394.) 

A.  has  a  chamber  adjoining  to  the  chamber  of  B.  and  has  a  door 
that  opens  into  it,  by  which  there  is  a  passage  to  go  out ;  and  A. 
has  another  door,  which  C.  stops,  so  that  A.  cannot  go  out  by  that. 
This  is  no  imprisonment  of  A.  by  C.  because  A.  may  go  out  by  the 
door  in  the  chamber  of  B.  though  he  be  a  trespasser  by  doing  it.  But 
A.  may  have  a  special  action  upon  his  case  against  C.     Ruled  by 

<o  On  the  general  principle,  see  also,  Schloendorff  v.  Society  of  New  York 
Hospital  (N.  Y.  1914)  105  N.  E.  92:  A  patient  to  whom  ether  was  beiiis  ad- 
ministered in  the  surgical  ward  of  a  hospital  said  to  the  attendant  that  there 
must  be  no  operation  but  only  an  ether  examination.  The  surgeon  in  charge 
operated  while  the  patient  was  unconscious.  "In  the  case  at  hand,"  said 
Cardozo,  J.,  "the  wrong  coiiiplained  of  is  not  merely  negligence.  It  is  tres- 
pass. Every  human  being  of  adult  years  and  sound  mind  has  a  right  to  de- 
termine what  shall  be  done  with  his  own  body ;  and  a  surgeon  who  performs 
an  operation  without  his  patient's  consent  connnits  an  assault,  for  which  he 
is  liable  in  damages."  See,  also.  Pratt  v.  Davis  (1006)  224  111.  300,  79  N.  E. 
562,  7  L.  R.  A.  (N.  S.)  600,  8  Ann.  Cas.  197 ;  Rolater  v.  Strain  (1913)  39  Okl. 
572,  137  Pac.  90,  50  L.  R.  A.  (N.  S.)  880. 


Ch.l) 


TRESPASSES  81 


Holt,  Chief  Justice,  in  evidence  at  the  trial  in  an  action  of  false  im- 
prisonment.    And  the  plaintiff  was  nonsuit.*^ 

41  See  Bird  v.  Jones  (1845)  7  Q.  B.  742,  68  R.  R.  564,  115  Reprint,  668: 

A  part  of  Ilammersmitli  Bridge  wliicii  was  ordinarily  used  as  a  public  foot- 
way was  appropriated  for  seats  to  view  a  regatta,  and  was  separated  for  tliat 
purpose  from  tlie  cari-iage  way  by  a  temporary  fence.  Tlie  plaintiff  insisted 
in  passing  along  the  part  so  appropriated,  and  attempted  to  climb  over  the 
fence.  The  defendant  then  stationed  two  policemen  to  prevent,  and  they  did 
prevent,  the  plaintiff  from  proceeding  forward  along  the  footpath;  but  he 
was  told  that  he  might  go  back  to  the  carriage  way,  and  proceed  to  the 
other  side  of  the  bridge  if  he  pleased. 

Coleridge,  J.  "  *  *  *  I  am  of  opinion  that  there  was  no  imprisonment. 
To  call  it  so  appears  to  me  to  confound  partial  obstruction  and  disturbance 
witli  total  obstruction  and  detention.  A  prison  may  have  its  boundary  large 
or  narrow,  visible  and  tangible,  or,  though  real,  still  in  the  conception  only ; 
it  may  itself  be  movable  or  tixed;  but  a  boundary  it  must  have;  and  that 
boundary  the  party  imprisoned  must  be  prevented  from  passing;  he  must 
be  prevented  from  leaving  that  place,  within  the  ambit  of  which  the  party 
imprisoning  would  contine  him,  except  by  prison  breach.  Some  confusion 
seems  to  me  to  arise  from  confounding  imprisonment  of  the  body  with  mere 
loss  of  freedom:  it  is  one  part  of  the  definition  of  freedom  to  be  able  to  go 
withersoever  one  pleases ;  but  imprisonment  is  something  more  than  the 
mere  loss  of  this  power ;  it  includes  the  notion  of  restraint  within  some  limits 
dettned  by  a  will  or  power  exterior  to  our  own.  *  *  *  If  in  the  course  of 
a  night,  both  ends  of  a  street  were  walled  up,  and  there  was  no  egress  from 
the  house  but  into  the  street,  I  should  have  no  difficulty  in  saying  that  the 
inhabitants  were  thereby  imprisoned ;  but,  if  only  one  end  were  walled  up, 
and  an  armed  force  stationed  outside  to  prevent  any  scaling  of  the  wall  or 
passage  that  way,  I  should  feel  equally  clear  that  there  was  no  imprisonment. 
If  there  were  the  street  would  obviously  be  the  prison ;  and  yet,  as  obviously, 
none  would  be  confined  to  it.     *     *     *  " 

Lord  Denman,  C.  J.  "  *  *  *  But  this  liberty  to  do  something  else  does 
not  appear  to  me  to  affect  the  question  of  imprisonment.  As  long  as  I  am 
prevented  from  doing  wliat  I  have  a  right  to  do,  of  what  importance  is  it 
that  I  am  permitted  to  do  something  else?  How  does  the  imposition  of  an 
unlawful  condition  show  tliat  I  am  not  restrained V  If  I  am  locked  in  a  room, 
am  I  not  imprisoned  because  I  might  effect  my  escape  through  a  window,  or 
because  I  might  find  an  exit  dangerous  or  inconvenient  to  myself,  as  by  wad- 
ing through  water  or  by  taking  a  route  so  circuitous  that  my  necessary  affairs 
would  suffer  by  delay?  It  appears  to  me  that  this  is  a  total  deprivation  of 
liberty  with  reference  to  the  purpose  for  which  he  lawfully  wished  to  employ 
his  liberty:  and,  being  effected  by  force,  it  is  not  the  mere  obstruction  of 
a  way,  but  a  restraint  of  the  person.  The  case  cited  as  occurring  before  Chief 
Justice  Tindal,  as  I  understand  it,  is  nmch  in  point.  He  held  it  an  imprison- 
ment where  the  defendant  stopped  the  plaintiff  on  his  road  till  he  had 
read  a  libel  to  him.  Yet  he  did  not  prevent  his  escaping  in  another  direc- 
tion."    *     *     * 

And  see  19  Cyc.  322,  note  24. 

Compare  Norton  v.  Union  Ry.  Co.  (1908)  58  Misc.  Rep.  188,  109  N.  Y.  Supp. 
73  (P.,  having  a  transfer  neither  asked  for  nor  exhibited,  boarded  a  trolley 
car  which  was  not  run  farther,  but,  after  P.  and  all  intending  passengers 
had  been  asked  to  take  another  car,  there  standing,  it  was  put  upon  a  siding. 
Here  P.  and  three  others  sat  for  an  hour  or  more.  P.  claims  false  imprison- 
ment)'; Crossett  v.  Campbell  (1908)  122  La.  659,  666,  48  South.  141,  143,  20 
L.  R.  A.  (N.  S.)  967,  129  Am.  St.  Rep.  362  (P.  entered  upon  grounds  which 
were  lawfully  in  possession  of  schoolboys,  who  were  giving  a  free  picnic,  and 
who  had  given  notice,  in  advance,  that  later  in  the  day  a  game  of  baseball 
would  be  played,  to  which  a  ti'illing  admission  fee  would  be  charged.  When 
the  game  was  about  to  begin  he  refused,  though  repeatedly  requested  so  to  do, 
to  pay  the  fee  or  go  out,  and  he  was  thereupon  taken  by  the  arm  by  a  citizen — 
one  of  the  assembled  guests  or  patrons — acting  in  behalf  of  the  boys,  though 

Hepb.Tokts — 6 


82  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

HERRING  V.  BOYLE. 

(Court  of  Exchequer,  1S34.    1  Cr.  M.  &  R.  377,  40  R.  R.  610.) 

Trespass  for  assault  and  false  imprisonment.  Plea,  the  general  is- 
sue.   At  the  trial,  the  following  appeared  to  be  the  facts  of  the  case : 

The  phiintiff,  who  sued  by  his  next  friend,  was  an  infant  about  ten  years 
old.  He  was  placed  by  his  mother,  who  was  a  widow,  at  a  school  kept  by  the 
defendant.  The  terms  of  the  defendant's  school  were  twenty  guineas  a  year, 
payable  quarterly.  The  first  quarter,  which  became  due  on  the  29th  of  Sep- 
tember, 1833,  was  duly  paid.  On  the  24th  of  December  in  the  same  year,  the 
plaintiff's  mother  went  to  the  school  and  asked  the  defendant  to  permit  the 
plaintiff  to  go  home  with  her  for  a  few  days.  The  defendant  refused,  and 
would  not  permit  the  mother  to  see  the  son,  and  told  the  mother  that  he 
would  not  allow  him  to  go  home,  unless  the  quarter  ending  on  the  25th  of 
December  was  paid.  The  mother  remonstrated,  and  said  she  would  pay  the 
quarter's  schooling  in  a  short  time,  but  it  was  not  due  until  the  next  day.  A 
few  days  afterwards,  the  mother  went  again  to  the  defendant  at  his  school, 
and  demanded  from  him  to  see  her  son,  and  be  allowed  to  take  him  home 
with  her.  The  defendant  refused.  On  the  31st  of  December,  the  mother  went 
again  with  a  friend,  and  made  the  same  demand ;  but  the  defendant  refused 
to  let  her  see  the  plaintiff,  or  to  allow  her  to  take  him  home,  and  he  then 
claimed  another  quarter's  schooling,  as  a  few  days  of  the  quarter  after  the 
25th  of  December  had  then  elapsed,  and  he  insisted  on  keeping  the  plaintiff 
until  that  amount  also  should  be  paid.  A  formal  demand  was  afterwards 
made,  and  on  a  writ  of  habeas  corpus  being  sued  out,  the  plaintiff  was  sent 
home,  seventeen  days  having  elapsed  after  the  first  demand  by  his  mother. 
No  proof  was  given  that  the  plaintiff  knew  of  the  denial  of  his  mother,  nor 
was  there  any  evidence  of  any  actual  restraint  upon  him. 

On  these  facts  the  learned  Baron  was  of  opinion  that  there  was 
no  evidence  of  an  imprisonment  to  go  to  the  jury,  and  he  nonsuited 
the  plaintiff. 

Comyn  obtained  a  rule  to  set  aside  the  nonsuit  and  for  a  new  trial, 
against  which  cause  was  now  shewn  by 

Hutchinson,  for  the  defendant :  The  nonsuit  was  right.  There 
was  no  corporal  touch  or  restraint  on  the  plaintiff.  The  form  of 
the  proceeding  in  trespass  shews  that  there  must  be  an  actual  force. 
It  must  be  laid  contra  pacem  and  vi  et  armis.  Here  there  was  no 
force  or  restraint  for  which  either  an  indictment  or  action  of  tres- 
pass vi  et  armis  was  maintainable. 

Comyn  and  Butt,  contra :  The  boy  was  sent  by  his  mother  to  the 
defendant's  school.  She  had  authority  to  place  him  in  the  care  of 
the  schoolmaster,  and  she  had  authority  to  determine  his  continuance 
there.  Now  it  was  proved  that  the  authority  from  the  mother  to 
the  master  was  withdrawn,  and  the  defendant  could  not  justify  the 
detention  after  such  authority  was  withdrawn.  *  *  *  Here,  when 
the  authority  to  keep  the  boy  was  withdrawn,  the  master  persisted 
in  detaining  him  for  the  purpose  of  extortion.     (Aldi^Irson,  B.     The 

without  special  authority,  and  led  in  the  direction  of  the  gate,  always  with 
the  privilege  of  paying  and  staying,  and  the  alternative  ol"  not  paying  and 
going.  Before  reaching  the  gate,  he  paid  the  fee,  and  thereafter  stayed  and 
witnessed  the  game.  Held,  P.  had  no  ground  for  an  action  for  false  imprison- 
ment). 


Ch.  1)  TRESPASSES  83 

fallacy  seems  to  me  to  be,  that  you  assume,  for  the  purpose  of  your 
argument,  that  every  boy  at  school  is  in  prison.  If  that  were  so, 
you  would  go  a  long  way  to  convince  us  that  when  the  authority  to 
keep  him,  there  is  at  an  end,  his  remaining  at  school  might  be  an  im- 
prisonment. That  however  is  not  so  with  regard  to  a  boy  at  school. 
In  the  case  of  a  lunatic  perhaps  it  might  be  different.  A  person  of 
full  age  restrained  as  a  lunatic,  might  probably  be  taken  prima  facie 
to  be  detained  against  his  will.)  The  assent  of  a  child  of  such  tender 
years  may  perhaps  be  assumed,  in  the  first  instance,  because  the  law 
will  presume  the  assent  of  an  infant  to  what  is  for  his  benefit;  but 
that  assent  must  be  taken  to  be  revoked  when  the  contract  for  school- 
ing is  determined  by  the  act  of  the  mother.  In  the  present  case,  the 
plaintiff  was  detained  during  the  holidays,  and  it  may  fairly  be  pre- 
sumed that  keeping  at  school  during  the  holidays,  is  against  the  will 
of  a  school-boy.  (Holland,  B.  The  evidence  did  not  bring  the 
schoolmaster  and  the  plaintiff  into  contact,  so  as  to  shew  that  there 
was  any  the  least  restraint  of  the  one  upon  the  other.)  Every  de- 
tention against  the  will  is  a  false  im.prisonment,  and  every  false  im- 
prisonment includes  an  assault  in  point  of  law,  so  that  any  argument 
to  be  derived  from  the  form  of  the  action  for  assault  is  totally  un- 
founded. The  only  question  is,  whether  there  was  any  evidence  to 
go  to  the  jury  of  a  detention  against  the  will  of  the  plaintiff'.  It  is 
submitted  that  there  was.  The  child  was  kept  through  the  holidays, 
and  it  ought  to  have  been  left  to  the  jury,  whether  that  was  not 
against  the  plaintiff's  will.  Besides,  in  the  case  of  a  child  of  such 
tender  years,  the  will  of  the  parent  is  to  be  considered  as  the  will 
of  the  child,  and  in  this  case  the  wall  of  the  mother  was  sufficiently 
expressed.  The  master  declared  distinctly  that  he  would  detain  him 
until  he  was  compelled  by  habeas  corpus  to  deliver  him  up ;  and  he 
was  detained  at  school,  and  such  declaration  of  the  master,  coupled 
with  the  fact  of  the  boy  remaining  at  school  during  the  holidays,  was 
surely  evidence  to  go  to  the  jury  that  the  master  had  acted  on  such 
declaration  and  had  kept  the  boy  there  against  the  will  both  of  his 
mother  and  himself.  (AldLRSON,  B.  It  is  clear  that  the  assent  of 
the  plaintiff"  would  put  an  end  to  an  action  in  this  form ;  that  shews 
that  the  will  of  the  mother  is  not  the  will  of  the  child.  In  the  pres- 
ent case  there  was  no  proof  that  the  master  conducted  himself  to  the 
boy  in  a  different  manner  in  any  respect  before  and  after  the  refusal 
to  deliver  him  up  to  his  mother ;  as  against  the  mother  he  detained 
him  unlawfully ;  he  says  in  respect  to  the  mother,  I  will  not  give  liim 
up  to  you  without  a  habeas  corpus.  That  might  however  be  with  or 
without  the  assent  of  the  boy.  The  plaintiff  was  bound  to  prove  his 
dissent,  and  not  to  leave  that  question  in  ambiguity.)  Cur.  adv.  vult. 
The  judgment  of  the  Court  was  delivered  on  the  next  day : 
Holland,  B.  This  was  an  action  of  trespass  for  assault  and  false 
imprisonment,  brought  by  an  infant  by  his  next  friend.    *    *    *    There 


84  TORTS  THROUGH   ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 

are  many  cases  which  shew  that  it  is  not  necessary,  to  constitute  an 
imprisonment,  that  the  hand  should  be  laid  upon  the  person ;  but  in 
no  case  has  any  conduct  been  held  to  amount  to  an  imprisonment  in 
the  absence  of  the  party  supposed  to  be  imprisoned.  An  officer  may 
make  an  arrest  without  laying  his  hand  on  the  party  arrested ;  but 
in  the  present  case,  as  far  as  we  know,  the  boy  may  have  been 
willing  to  stay;  he  does  not  appear  to  have  been  cognizant  of  any 
restraint,  and  there  was  no  evidence  of  any  act  whatsoever  done  by 
the  defendant  in  his  presence.  I  think  that  we  cannot  construe  the 
refusal  to  the  mother  in  the  boy's  absence,  and  without  his  being  cog- 
nizant of  any  restraint,  to  be  an  imprisonment  of  him  against  his 
will;  and  therefore  I  am  of  opinion  that  the  rule  must  be  discharged.*^ 


MOSES  V.  DUBOIS. 
(Court  of  Appeals  of  South  Carolina,  1S3S.    Dud.  209.) 

False  imprisonment  against  the  captain  of  a  steamboat  for  carrying 
the  plaintiff,  a  deputy-sheriff,  to  sea  against  his  will.  Verdict  for 
$100.     Motion  for  a  new  trial. 

Earls,  J.  Every  unlawful  restraint  of  personal  liberty  is  an  im- 
prisonment, whether  accompanied  by  corporal  touch  or  not ;  whether 
in  a  house,  in  a  ship,  or  in  the  street.  But  force  of  some  sort  must 
be  used,  and  it  must  be  a  detention  against  the  will;  and  it  is  indis- 
pensable that  these  two  circumstances  should  unite.  The  force  may 
be  exhibited  in  a  variety  of  ways  without  actual  assault  or  corporal 
touch. — ^by  locking  a  door  after  enticing  one  within,  and  refusing  to 
open  it  for  his  departure;  by  setting  sail  or  pushing  off  from  shore, 
having  one  on  board,   and   refusing  to  allow  him  to  go  ashore;    or 

4  2  The  concurring  opinions  of  Alderson  and  Guvney,  BB.,  are  omitted. 
Lord  I.yndhurst  concurred  in  the  judgment. 

Compare: 

Com.  V.  Nickerson  (1862)  5  Allen  (Mass.)  .518:  N.  entered  a  school  room 
and  forcibly  seized  and  carried  away  a  boy  of  nine  years,  who  had  been  placed 
in  the  school  by  his  father,  the  legal  custodian  of  the  child.  N.'s  acts  were 
under  the  direction  of  the  mother  of  tlio  boy,  who,  when  he  learned  the  pur- 
pose of  the  seizure,  wished  to  have  it  carried  out.  Is',  had  no  actual  knowl- 
edge that  his  acts  were  violating  the  father's  legal  rights.  Held  that  such 
evidence  sustained  an  indictment  for  false  imprisonment.  "Being  in  the  ac- 
tual custody  of  his  father,  whose  will  alone  was  to  govern  as  to  his  place  of 
residence  and  the  selection  of  a  teacher  and  custodian,  this  child  of  nine  years 
of  age  was  incapable  of  assenting  to  a  forcible  removal  from  the  custody  of 
his  teacher,  and  a  transfer  to  other  persons  forliidden  by  law  to  take  such 
custody.  He  was  under  illegal  restraint,  when  taken  away  from  the  lawful 
custody  and  against  the  will  of  his  riglitful  custodian ;  and  such  taking  is  in 
law  deemed  to  be  forcible  and  against  the  will  of  the  child."  Per  Dewey,  J., 
5  Allen,  page  o2C. 

Wood  v.  Cuniniings  (1908)  197  Mass.  80,  83  N.  E.  318:  D.  locked  the  outside 
door  of  a  building  while  P.  was  within,  not  to  detain  P.,  but  as  a  means  of 
protection  against  interference  from  without;  the  door  was  unlocked  as  soon  as 
P.  made  known  his  desire  to  go  out. 


Ch.  1)  TRESPASSES  85 

by  detaining  one  on  the  highway  by  threats  of  personal  violence  if 
he  departed.  And  it  is  equally  essential  that  the  person  should  be 
detained  against  his  will;  for  if  he  voluntarily  place  himself  in  a  sit- 
uation where  another  may  lawfully  do  that  which  has  the  effect  of 
restraining  liberty,  especially  if  he  refuse  to  depart  when  he  may,  he 
cannot  complain  that  he  is  unlawfully  imprisoned  against  his  will.  A 
sheriff's  officer  goes  to  the  house  of  A.  on  the  evening  of  an  •enter- 
tainment, w-ith  a  bail  process  against  one  of  his  guests,  and  enters, 
as  he  lawfully  may,  and  makes  the  arrest,  A.  refusing  to  assist  him, 
but  offering  no  hinderance ;  being  unable  to  remove  his  prisoner,  he 
chooses  to  remain  until  the  close  of  the  entertainment,  expecting  then 
to  accomplish  his  purpose  on  the  departure  of  the  guests ;  but  the 
prisoner,  being  on  a  visit  there,  remains.  The  officer,  being  informed 
that  the  doors  are  about  to  be  closed,  is  requested  to  depart  with  his 
prisoner,  if  he  can  take  him,  else  without  him ;  but  he  is  unable  to 
take,  and  refuses  to  go  w'ithout  him.  If  A.  should  lock  his  doors 
and  retire  to  rest,  could  the  officer  complain  of  false  imprisonment 
if  A.  should  refuse  to  rise  at  a  late  hour  of  the  night,  at  his  request, 
to  open  the  door?  I  should  think  not.  If  a  man  enters  a  tavern 
and  continues  there  all  night  against  the  will  of  the  landlord,  it  is  a 
trespass, — could  he  complain  if  the  landlord  shuts  his  door  upon  him? 
The  general  rule  is,  that  a  trespass  will  not  lie  for  a  mere  non- 
feasance ;  and  it  seems  to  follow  from  that  proposition  that  when 
an  act  has  been  done,  in  the  first  instance  lawful  in  itself,  it  cannot 
be  rendered  unlawful  ab  initio,  except  by  some  positive  act  incom- 
patible with  the  exercise  of  the  legal  right  to  do  the  first  act.  Gates 
v.  Lounsbury,  20  John.  429;    Gardner  v.  Campbell,  15  ib.  401, 

In  the  case  made  by  the  evidence  it  does  not  appear  that  the  plain- 
tiff was  carried  from  the  shore  against  his  will,  but  the  reverse.  The 
destination  of  the  boat  was  known, — the  accustomed  hour  of  departure 
was  passed;  the  boat  w-as  in  the  act  of  getting  under  way;  at  that 
moment  the  plaintiff  chose  to  go  on  board  to  arrest  a  person  on  a 
bail  process,  evidently  under  the  mistaken  impression  as  to  the  ex- 
tent of  his  authority;  and,  seeing  the  boat  leaving  the  wharf,  he 
chooses  to  remain.  Here,  then,  there  was  no  unlawful  detention,  ac- 
cording to  the  principles  I  have  laid  down :  the  defendant  was  in 
discharge  of  his  known  and  accustomed  duty,  and  therefore  in  the 
performance  of  a  lawful  act,  and  the  plaintiff'  was  not  detained  against 
his  will.  i\t  what  time  did  the  false  imprisonment  commence?  After 
the  boat  had  proceeded  into  the  stream  some  distance  from  the  wharf, 
the  defendant  came  and  proposed  to  the  plaintiff  to  send  him  ashore 
with  his  prisoner,  if  he  could  take  him,  else  to  send  him  alone.  The 
plaintiff  refused  to  go  unless  the  defendant  would  aid  him  in  carry- 
ing his  prisoner.  It  need  not  be  repeated  that  this  the  defendant  was 
not  bound  to  do.     It  was  his  duty  to  interpose  no  obstacle  to  the  ar- 


86  TORTS  THROUGH  ACTS  OP  ABSOLUTE   LIABILITY  (Part  1 

rest  or  the  removal  of  the  prisoner,  but  rather  to  afford  such  facilities 
as  he  could  to  the  service  of  legal  process.  This  he  seems  to  have 
done,  and  more  could  hardly  have  been  expected.  On  the  refusal  of 
the  plaintiff  to  go  ashore,  the  defendant  proceeded  on  his  voyage, — 
one  on  which  the  plaintiff"  knew  the  boat  was  in  the  act  of  departing 
when  he  went  aboard.  This  was  also  the  accustomed  duty,  the  of- 
fice of^the  defendant,  and  was  therefore  a  lawful  act. 

If  the  defendant  was  not  bound  to  aid  in  the  arrest  and  removal 
of  the  prisoner,  I  do  not  perceive  that  he  was  bound  either  to  delay 
his  voyage  or  put  back  his  boat  to  enable  the  plaintiff  to  procure  as- 
sistance. When  the  boat  had  arrived  at  the  mouth  of  the  harbor, 
near  Sullivan's  Island,  the  plaintiff  demanded  to  be  put  ashore,  which 
the  defendant  then  refused ;  here  commenced  the  detention  of  the 
plaintiff'  against  his  will.  Was  it  unlawful?  I  think  it  cannot  be  so 
held ;  the  defendant  only  proceeded  on  his  voyage.  His  refusal  to 
send  the  plaintiff  ashore  at  that  time,  which  would  have  delayed  his 
progress  and  put  him  in  trouble,  was  a  mere  non-feasance,  which  if 
he  had  been  guilty  of  no  trespass  up  to  that  time,  did  not  render  him  a 
trespasser  ab  initio :  it  was  not  a  positive  act,  incompatible  with  the 
legal  exercise  of  the  right  to  proceed  from  the  wharf,  the  plaintiff 
being  on  board. 

Motion  for  a  new  trial  granted.** 

4  3  Compare: 

Spoor  V.  Spooner  (1S47)  12  Mete.  (Mass.)  281:  A  ship  was  on  the  point  of 
sailing  when  P.,  a  constable,  came  on  board  with  a  civil  process  to  arrest  the 
steward.  The  sails  were  set  and  the  fasts,  by  which  the  ship  was  held  to  the 
wharf,  were  singled.  P.  immediately  npon  going  on  board,  found  and  ar- 
rested the  steward,  but  remained  standing  with  him  ten  or  twelve  minutes 
without  attempting  to  leave.  In  common  with  others,  P.  had  repeated  notice 
that  the  fasts  were  about  to  be  cast  off,  and  that  all  persons  not  belonging 
on  board  should  quit  the  ship.  After  full  notice,  the  fasts  were  cast  off  and 
the  ship  sailed  with  P.  still  on  board.  He  sues  the  master  in  trespass  for 
false  imprisonment. 

Williams  v.  Powell  (1869)  101  Mass.  467,  3  Am.  Rep.  306:  P.,  a  constable, 
attached  the  desk  and  law  books  of  an  attorney,  in  the  office  of  D.,  an  insur- 
ance brolcer,  and  placed  a  keeper  over  them.  The  property  attached  did  not 
amount  to  more  than  $1100  in  value ;  but  P.  neglected  to  remove  them  during 
the  five  hours  of  daylight.  P.  then  demanded  of  1).  a  key  to  the  door  of  the 
office,  that  he  might  continue  his  possession  through  the  night,  and  on  being 
refused  procured  a  key  from  a  locksmith.  It  being  near  sunset,  D.  put  an- 
other lock  on  the  door  and  gave  I*,  notice  to  remove  the  attached  chattels  im- 
mediately and  leave  the  ofhce.  P.  refused  to  leave,  saying  that  he  could  not 
move  the  goods  that  night,  but  would  move  them  early  in  the  morning.  D. 
then  secured  the  door  for  the  night,  locking  in  P.  and  the  keeper.  P.  sues 
for  false  imprisonment. 

Robinson  v.  Balmain  Ferry  Company  (1910)  A.  C.  295,  the  facts  of  which 
are  given  infra. 

And  see  "Leave  and  License,"  infra. 


Ch.  1)  TRESPASSES  87 

GARNIER  V.   SQUIRES. 
(Supreme  Court  of  Kansas,  1900.     62  Kan.  321,  62  Pac.  1005.) 

Action  by  Garnier  against  Squires  on  three  causes  of  action :  First, 
for  slander  in  charging  plaintiff  with  the  larceny  of  $500;  second, 
for  false  imprisonment;  third,  for  an  unlawful  search  of  plaintiff's 
premises.  There  was  a  judgment  for  defendant,  and  plaintiff  brings 
error. 

Johnston,  j.  *  *  *  The  facts  out  of  which  the  controversy 
arose  are  substantially  as  follows :  On  the  night  of  February  14,  1878, 
Squires  claimed  that  when  he  retired  he  had  $500  in  his  vest  pocket ; 
that  it  was  taken  therefrom  at  some  time  during  the  night ;  that 
Garnier  was  in  the  house,  and  knew  that  defendant  had  the  money; 
that  the  doors  of  the  house  were  securely  locked,  and  there  was  no 
one  else  in  the  house  who  could  or  would  have  taken  the  money. 
And  he  charged  that  Garnier  stole  it  from  him.  On  the  next  morning 
after  missing  his  money  Squires  went  to  Garnier's  place  of  business, 
and  pointed  a  loaded  revolver  at  Garnier's  head  and  demanded  $500 
which  he  said  Garnier  had  stolen  from  him.  He  admits  in  his  plead- 
ing and  in  his  testimony  that  he  followed  Garnier  to  his  office,  ac- 
cused him  of  stealing  his  money,  and  that  he  threatened  to  shoot  him 
if  he  did  not  unlock  the  safe  and  give  him  the  money.  The  plaintiff' 
says  that  about  9  o'clock  in  the  morning,  and  while  he  was  busy,  some 
one  approached  him  with  an  oath,  saying,  "If  you  don't  give  me  that 
five  hundred  dollars  you  stole  from  me,  I  will  blow  you  full  of  holes," 
and  that  when  he  looked  around  he  was  facing  a  revolver  in  the  hands 
of  "Sir.  Squires ;  that  Squires  held  a  revolver  on  him  and  made  him 
unlock  the  safe ;  that  he  was  scared  and  thought  Squires  was  going 
to  kill  him.  But  the  nioney  was  not  found  in  the  safe  or  on  the 
premises,  and  no  direct  proof  was  offered  of  the  steaHng  of  the 
money  by  any  one.  The  defendant  alleged  that  he  honestly  believed, 
and  still  believes,  that  Garnier  stole  the  money  from  him. 

After  the  testimony  was  received  the  court  instructed  the  jury: 

"If  you  believe  from  the  evidence  that  the  defendant  lost  said  sum  of  S.iOO, 
and  had  reasonable  grounds  for  believing  that  the  plaintiff  had  stolen  it  from 
him,  and  without  malice  towards  the  plaintiff,  but  in  an  endeavor  to  recover 
said  sum  of  §500,  went  to  the  place  of  business  of  the  plaintiff  and  there  de- 
manded a  return  of  said  money,  and  there  accused  the  plaintiff  of  having  stol- 
en said  money,  and  detained  the  plaintiff  by  pointing  at  him  a  loaded  revolver, 
then  you  should  render  a  verdict  for  the  defendant." 

Objection  was  made  to  this  instruction  when  it  was  given,  and  it 
constitutes  the  principal  ground  assigned  for  the  reversal  of  the  judg- 
ment that  was  rendered  against  the  plaintiff.  It  was  intended  to 
apply  to  the  testimony  given  in  support  of  the  count  for  false  im- 
prisonment, and  we  think  it  does  not  correctly  state  the  law  applica- 
ble to  that  phase  of  the  case.  The  testimony  in  the  case  justified  a 
charge  as  to  what  were  the  constituent  elements  of  false  imprison- 


88  TORTS  THROUGH  ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 

ment,  chief  of  which  are  the  detention  and  restraint,  and  the  unlaw- 
fulness of  such  detention  and  restraint.  The  testimony  for  the  plain-" 
tiff  tended  to  show  actual  restraint  for  a  short  time,  accomplished 
through  fear  of  violence  and  bodily  harm.  It  is  true,  there  was  no 
judicial  proceeding,  no  warrant  of  arrest,  nor  any  manual  touching 
or  taking  into  custody.  But  these  are  not  essential  elements.  "False 
imprisonment  is  necessarily  a  wrongful  interference  with  the  personal 
liberty  of  an  individual.  The  wrong  may  be  committed  by  words 
alone  or  by  acts  alone,  or  by  both,  and  by  merely  operating  on  the 
will  of  the  individual,  or  by  personal  violence,  or  by  both.  It  is  not 
necessary  that  the  individual  be  confined  within  a  prison  or  within 
walls,  or  that  he  be  assaulted  or  even  touched.  It  is  not  necessary  that 
there  should  be  any  injury  done  to  the  individual's  person  or  to  his 
character  or  reputation ;  nor  is  it  necessary  that  the  wrongful  act 
be  committed  with  malice  or  ill  will,  or  even  with  the  slightest  wrong- 
ful intention ;  nor  is  it  necessary  that  the  act  be  under  color  of  any 
legal  or  judicial  proceeding.  All  that  is  necessary  is  that  the  in- 
dividual be  restrained  of  his  liberty  without  any  sufficient  legal  cause 
therefor,  and  by  words  or  acts  which  he  fears  to  disregard."  Comer 
V.  Knowles,  17  Kan.  436.'^* 
Judgment  reversed. 


SMITH  V.  STATE. 

(Supreme  Court  of  Tennessee,  1846.     7  Humph.  43.) 

Rodgers,  with  horse  and  carryall,  was  carried  over  the  Chucky 
river  by  Smith  in  his  ferry  boat.  Smith  was  the  keeper  of  a  public 
ferry.  When  over.  Smith  demanded  the  ferriage,  which  Rodgers 
said  was  already  paid;  on  this  a  dispute  occurred,  and  Smith  told 
him  he  should  not  go  on  till  he  paid  the  ferriage.  Some  other  con- 
versation ensued,  when  Rodgers  paid  the  ferriage  demanded.  Rodgers 
was  detained  ten  or  fifteen  minutes. 

An  indictment  was  found  against  Smith  for  an  assault  and  false 
imprisonment.  Rodgers  stated  on  the  trial  that  Smith  had  not  touched 
his  bridle  or  his  horse ;  that  he  made  no  eft'ort  to  strike  or  touch  his 
person  or  his  horse ;  and  that  he  made  no  threats  of  personal  violence, 
but  that  he  was  afraid  of  a  difficulty  with  Smith.  Smith  told  Rodgers, 
after  he  had  paid  the  charge,  that  if  he  had  not  paid  it  he  had  deter- 
mined to  have  put  his  carryall  and  horse  back  into  the  boat,  and  to 
have  carried  them  back.  A  verdict  and  judgment  were  rendered  for 
the  state,  and  defendant  appealed. 

Green,  J.     The  court  charged  the  jury: 

"That,  to  make  out  the  offence  as  charged,  no  actual  force  was  necessary, 
but  that  a  man  might  be  assaulted  by  being  beset  by  another;    and  if  the 

**  A  portion  of  the  opinion,  mainly  on  other  points,  is  omitted. 


Ch.  1)  TRESPASSES  89 

opposition  to  the  prosecutor's  going  forward  was  such  as  a  prudent  man 
would  not  risk,  then  the  defendant  would,"  in  contemplation  of  law,  be  guilty 
of  false  imprisonment." 

This  charge  is  correct  in  all  its  parts,  and  the  facts  were  fairly  left 
to  the  jury.  A  verdict  of  guilty  has  been  pronounced,  and  we.  do  not 
feel  authorized  to  disturb  it.  The  prosecutor  and  defendant  disputed 
about  the  ferriage  defendant  claimed.  Smith  insisted  upon  his  de- 
mand, and  said  he  did  not  choose  to  sue  every  man  that  crossed  at 
his  ferry.  Although  he  did  not  take  hold  of  the  prosecutor,  or  offer 
violence  to  his  person,  yet  his  manner  may  have  operated  as  a  moral 
force  to  detain  the  prosecutor. 

And  this  appears  the  more  probable,  as,  after  the  affair  was  set- 
tled, the  prosecutor  inquired  what  defendant  would  have  done  if  he 
had  not  paid  the  ferriage  demanded,  to  which  the  defendant  replied, 
"he  would  have  put  his  carryall  and  horse  back  into  the  boat  and 
taken  them  across  the  river  again."  As  this  determination  existed  in 
his  mind,  it  doubtless  was  exhibited  in  the  manner  of  the  defendant, 
and  thus  operated  upon  the  fears  of  the  prosecutor. 

Affirm  the  judgment.*^ 

45  Compare  Hebrew  v.  Pulis  (1906)  7.3  N.  J.  Law.  621.  64  Atl.  121.  7  L.  R. 
A.  (X.  S.)  .580,  lis  Am.  St.  Rep.  716:  P.,  a  maid  servant  in  the  employ  of  S., 
was  suspected  by  S.  of  stealing  a  ring.  S.  called  in  a  policeman  in  uniform, 
D.,  and  summoned  P.  to  their  presence.  D.  asked  P.  if  she  had  the  ring.  P. 
denied  having  it  or  knowing  where  it  was.  After  further  parley  D.  roughly  or- 
dered P.  to  go  to  her  room  "and  strip  herself  to  the  hide,"  remarking:  "We  are 
going  to  search  every  piece  of  clothing  you  own.  I  am  going  to  find  that 
ring."  P.  protested  but  made  no  physical  resistance,  and  the  search  was  made 
by  S.  as  directed,  D.  meanwhile  standing  at  the  door.  On  the  question  whether 
there  was  an  imprisonment  although  D.  did  not  lay  a  hand  on  P.,  Swayze,  J., 
remarked:  "The  fact  that  Pulis  [D.]  was  a  police  officer  and  known  to  the 
plaintiff  to  be  such,  that  she  was  confronted  not  only  by  him,  but  her  employ- 
ers, that  she  was  suspected  of  larceny  for  which  the  otficer  might  arrest  her 
if  he  had  reasonable  ground  to  believe  that  the  crime  had  been  committed, 
warranted  her  in  believing  that  if  she  failed  to  submit  to  Pulis'  demands  she 
would  be  actually  arrested.  The  emphatic  language  in  which  the  officer 
commanded  her  to  strip  to  the  hide  was  calculated  to  terrorize  a  girl  in  her 
situation,  and  the  verj'  fact  that  the  officer,  wholly  without  right,  asserted 
such  authority  and  gave  such  a  command  justifies  the  inference  that  he  and 
his  employers  and  codefendants  intended  to  terrorize  the  plaintiff  and  to  se- 
cure the  effect  of  a  search  without  legal  process.  If  it  was  only  intended  to 
secure  the  consent  of  the  plaintiff'  to  a  thorough  search,  the  presence  of  the 
police  officer  was  quite  unnecessary.  The  appeal  of  the  Misses  Sands  would 
have  been  as  persuasive  as  the  command  of  the  officer,  but  for  his  seeming 
authority.  We  think  the  case  at  least  presents  a  question  for  the  jury,  and 
that  the  reason  given  by  the  learned  trial  judge  is  not  sufficient  to  justify  his 
conclusion.  We  think,  further,  that  the  nonsuit  cannot  be  .sustained  on  any 
other  ground.  There  is,  indeed,  no  proof  that  the  defendants  laid  hands  on 
the  plaintiff ;  but  that  is  unnecessary.  Whatever  doubt  may  have  been 
tlirown  upon  this  question  by  some  of  the  earlier  English  cases  is  now  re- 
moved by  the  later  authorities.  Grainger  v.  Hill  (1S.3S)  4  P>ingham,  N.  C,  212; 
Warner  v.  Riddiford  (1858)  4  Common  Bench,  X.  S.,  180.  The  American  cases 
are  to  the  same  effect.  Bissell  v.  Gold  (1828)  1  Wend.  (X.  Y.)  210,  19  Am.  Dec. 
480 ;  Pike  v.  Hanson  (1838)  9  X.  H.  491 ;  Rrushaber  v.  Stegemann  (1871)  22 
Mich.  266;  Johnson  v.  Tompkins  (183.3)  Baldw.  571,  601,  602,  Fed.  Cas.  Xo. 
7,416.  Tlie  essential  thing  is  the  constraint  of  the  person.  This  constraint 
may  be  caused  by  threats,  as  well  as  by  actual  force ;   and  the  threats  may  be 


90  TORTS  THROUGH  ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 

FOTHERINGHA^I  v.  ADAMS  EXPRESS  CO. 
(United  States  Circuit  Court,  E.  D.  Missouri,  18S8.    36  Fed.  252, 1  L.  R.  A.  474.) 

Action  by  Fotheringham  against  the  Adams  Express  Company. 
Verdict  for  the  plaintiff.     Motion  for  a  new  trial. 

Thayer,  j,  *  *  *  j  entertain  no  doubt  that  the  jury  were 
warranted  in  finding  that  plaintiff  was  unlawfully  restrained  of  his 
liberty  from  about  the  27th  or  28th  of  October  until  the  10th  of 
November  following ;  that  is  to  say,  for  a  period  of  about  two  weeks. 
The  testimony  in  the  case  clearly  showed  that  during  that  period  he 
was  constantly  guarded  by  detectives  employed  by  defendant  for 
that  purpose ;  that  he  was  at  no  time  free  to  come  and  go  as  he 
pleased;  that  his  movements  were  at  all  times  subject  to  the  control 
and  direction  of  those  who  had  him  in  charge;  that  he  was  urged  by 
them  on  several  occasions  to  confess  his  guilt,  and  make  known  his 
confederates ;  and  that  he  was  subjected  to  repeated  examinations 
and  cross-examinations  touching  the  robbery,  of  such  character  as 
clearly  to  imply  that  he  was  regarded  as  a  criminal,  and  that  force 
would  be  used  to  detain  him  if  he  attempted  to  assert  his  liberty.  The 
jury  in  all  probability  found  (as  they  were  warranted  in  doing)  that  dur- 
ing the  time  plaintiff  remained  in  company  with  the  detectives,  he  was 
in  fact  deprived  of  all  real  freedom  of  action,  and  that  whatever 
consent  he  gave  to  such  restraint  was  an  enforced  consent,  and  did  not 
justify  the  detention  without  a  warrant.  It  is  manifest  that  the  court 
ought  not  to  disturb  the  finding  on  that  issue.     *     *     * 

Motion  overruled.*® 

by  conduct  or  by  words.  If  the  words  or  conduct  are  such  as  to  induce  a 
reasonable  apprehen.siou  of  force,  and  the  means  of  coercion  are  at  hand,  a 
])erson  may  be  as  effectually  restrained  and  deprived  of  liberty  as  by  prisou 
bars.  Unless  it  is  clear  that  there  is  no  reasonable  apprehension  of  force, 
it  is  a  question  for  the  jury  whether  the  submission  was  a  voluntary  act,  or 
brought  about  by  fear  that  force  would  be  used.  No  doubt  cases  may  arise 
where  it  will  be  a  question  of  difficulty  to  determine  how  far  the  free  will  of 
the  plaintiff  was  overcome,  but  that  determination  rests  with  the  jury." 

4  0  Part  of  the  opinion  is  omitted. 

The  verdict  was  for  $20,000  damages.  The  court  overruled  the  motion 
for  a  new  trial  only  on  condition  that  the  plaintiff  "remit  at  least  40  per  cent, 
of  the  verdict  within  the  next  five  days." 

Compare  Schultz  v.  Frankfurt  Marine  Ins.  Co.  (1913)  151  Wis.  537,  139 
N.  W.  386,  43  L.  R.  A.  (N.  S.)  520:  P.  had  been  a  witness  adverse  to  D.  in 
an  action.  While  a  motion  for  a  new  trial  was  pending  in  this  action  P.  was 
"rough  shadowed,"  at  D.'s  instance,  by  detectives.  The  court  asks,  and  an- 
swers in  the  allirmative,  the  question  whether,  "omitting  all  alleged  restraint 
of  personal  liability"  any  personal  right  is  "violated  by  openly  and  publicly 
following  and  watching  one."  See  "Defamation,"  infra,  and  13  Col.  Law  Rev. 
336,  337. 


Ch.  1)  TRESPASSES  91 

YOUNG  V.  ROSSI. 

WILLARD  V.  ROSSI. 
(United  States  District  Court,  E.  D.  New  York,  18S7.    .30  Fed.  231.) 

In  Admiralty. 

Benedict,  J.  These  cases  can  be  disposed  of  together.  In  each 
case  the  hbelant  seeks  to  recover  of  the  defendant  damages  for  false 
imprisonment.  The  wrongful  detention  of  the  men  on  board  his 
vessel  by  the  defendant  is  admitted.  But  it  is  not  a  case  for  large 
damages ;  no  loss  resulted  to  the  libelants  from  their  detention.  If 
$100  be  paid  each  libelant,  a  sufficient  remuneration  will  be  received 
for  the  infringement  of  their  personal  rights  and  any  inconvenience 
to  which  they  were  put. 

Let  each  libelant  have  a  decree  for  $100,  and  his  costs. 


TALCOTT  V.   NATIONAL  EXHIBITION  CO. 

(Supreme  Court  of  New  York,  Appellate  Division,  1911.     144  App.  Div.  337. 

128  N.  Y.  Supp.  1059.) 

Carr,  J.  The  defendant  appeals  from  a  jtidgment  of  a  Trial  Term 
of  the  Supreme  Court  in  Westchester  county,  entered  upon  a  verdict 
of  a  jury  in  an  action  for  false  imprisonment,  and  from  an  order 
denying  a  motion  for  a  new  trial.     The  facts  are  as  follows  : 

On  the  morning  of  the  8th  of  October,  1908,  the  plaintiff  went  into 
the  inclosure  of  the  defendant  in  the  city  of  New  York  to  buy  some 
reserved  seats  for  a  baseball  game  which  was  to  be  held  there  in  the 
afternoon  of  that  day.  These  seats  were  sold  at  a  number  of  booths 
within  the  inclosure.  The  plaintiff  was  unsuccessful  in  his  quest,  as 
all  the  reserved  seats  had  been  sold.  He  tried  to  leave  the  inclosure 
through  some  gates  used  generally  for  ingress  and  exit.  A  consider- 
able number  of  other  persons  were  trying  to  leave  the  inclosure 
through  the  same  gates  at  the  same  time.  It  appears  that  the  base- 
ball game  which  was  to  take  place  was  one  of  very  great  importance 
to  those  interested  in  such  games,  and  a  vast  outpouring  of  people 
were  attracted  to  it.  IMany  thousands  of  these  came  early  in  the  day 
to  seek  admittance  to  the  ball  grounds,  and  the  result  was  that  the 
various  gates  used  generally  for  entrance  or  exit  were  thronged  with 
a  dense  mass  of  people  coming  in.  The  plaintiff  was  prevented  by  the 
servants  of  the  defendant  from  attempting  to  pass  out  through  this 
throng,  and  as  a  result  of  this  interference  he  was  detained  in  the  in- 
closure for  an  hour  or  more,  much  to  his  annoyance  and  personal  in- 
convenience. The  plaintiff  and  those  similarly  situated  made  many 
attempts  to  get  out  through  these  gates,  and  in  the  restraint  put  upon 
them  to  defeat  their  efforts  they  were  subjected  to  some  hauling  and 


92  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

pushing  by  the  defendant's  special  policemen.  Finally  the  plaintiff  and 
the  others  were  taken  through  a  club  house  within  the  inclosure  and 
allowed  to  go  out  through  the  entrance  to  the  club  house  to  the  street. 

Concededly  the  plaintiff  had  a  legal  right  to  leave  the  inclosure, 
and  the  defendant  had  no  legal  right  to  detain  him  therein  against 
his  will.  But  the  right  of  each  had  corresponding  duties.  A  tem- 
porary interference  with  the  plaintiff's  legal  right  of  egress  could 
be  justified  as  a  proper  police  measure,  if  the  plaintiff  sought  to  exer- 
cise such  right  under  circumstances  likely  to  create  disorder  and 
danger.  Assuming,  however,  that  the  defendant  was  justified  in  pre- 
venting the  plaintiff'  from  passing  out  through  the  gates  in  question, 
it  should  have  directed  him  to  pass  out  through  some  other  means  of 
exit,  if  there  were  any.  The  plaintiff'  told  the  agents  of  the  defendant 
of  his  desire  to  get  out,  but  received  no  directions  or  suggestions  how 
to  get  out.  The  defendant  claims  that  the  plaintiff  might  have  gone 
out  through  other  gates  in  another  portion  of  the  field  used  for  the 
entrance  of  motor  cars  and  other  vehicles ;  but  the  plaintiff  swears 
that  he  did  not  know  of  the  other  gates,  and  there  is  no  proof  that  his 
attention  was  called  to  them  in  any  way  when  he  and  the  others  sought 
to  go  out.  He  got  out  in  the  end,  not  through  the  gates  for  vehicles, 
but  through  the  club  house,  on  the  permission  and  direction  of  the 
defendant.  Granting  that  the  restraint  placed  upon  the  plaintiff"  in  pre- 
venting his  going  out  through  the  gateways  through  which  he  sought 
exit  was  justifiable  as  a  police  measure,  yet  the  defendant  owed  him 
an  active  duty  to  point  out  the  other  existing  methods  of  egress.  It 
could  not  stand  idly  by  and  simply  detain  and  imprison  the  plaintiff 
against  his  will. 

Judgment  affirmed. 


ROBINSON  V.  BALMAIN  NEW  FERRY  CO.,  Limited. 
(Judicial  Committee  of  the  Privy  Council  [1910]  A.  C.  295.) 

Appeal  by  special  leave  from  an  order  of  the  High  Court  of  Aus- 
tralia, reversing  a  judgment  of  the  Supreme  Court  of  New  South 
Wales  which  discharged  a  rule  nisi  for  a  new  trial  or  a  verdict  for 
the  defendants  in  an  action  by  the  appellant,  a  barrister-at-law  of  the 
State  of  New  South  Wales,  for  assault  and  false  imprisonment. 

The  respondents  carry  on  the  business  of  a  harbour  steam  ferry 
between  the  city  of  Sydney  and  Balmain  and  have  on  the  Sydney  side 
of  their  steam  ferry  a  wharf  and  premises  held  by  them  under  lease 
from  the  Sydney  Harbour  Trust  Commissioners.  A  barrier  with  two 
turnstiles  separates  the  wharf  from  the  street.  Persons  coming  upon 
the  wharf  enter  it  by  one  of  the  turnstiles  and  leave  it  by  the  other. 
There  is  also  a  gate  with  a  door  in  it  opening  parallel  to  the  street 


Ch.  1)  TRESPASSES  93 

and  at  right  angles  to  the  turnstiles.  At  each  turnstile  an  officer  of 
the  respondents  is  stationed.  By  the  lawful  regulations  of  the  re- 
spondents, one  penny  has  to  be  paid  by  all  persons  entering  the  wharf 
to  the  officer  at  the  entry  turnstile  and  by  all  persons  leaving  the  wharf 
to  the  officer  at  the  exit  turnstile.  No  other  charge  is  made  for  the 
use  of  the  ferry,  either  to  or  from  Balmain.  The  turnstiles  automati- 
cally register  the  number  of  persons  passing  through  them  and  so 
check  the  takings  of  the  two  officers. 

A  few  feet  above  the  two  turnstiles  and  on  each  side  of  the  bar- 
rier is  a  notice  board  placed  so  as  to  be  seen  by  passengers,  on  which 
is  painted  the  words  "Notice.  A  fare  of  one  penny  must  be  paid  on 
entering  or  leaving  the  wharf.  No  exception  will  be  made  to  this 
rule,  whether  the  passenger  has  travelled  by  the  ferry  or  not." 

On  June  5,  1905,  at  about  7:45  P.  AL,  the  appellant  entered  the 
wharf  by  the  entry  turnstile,  intending  to  cross  to  Balmain  by  one 
of  the  respondents'  steamers.  He  paid  one  penny  to  Penson,  the 
off.cer  of  the  respondents  in  charge  of  the  entry  turnstile.  Finding 
that  the  next  steamer  would  not  start  for  some  twenty  minutes,  the 
appellant  informed  Penson  of  his  wish  to  leave  the  wharf,  and  was 
directed  by  him  to  the  exit  turnstile.  Anderson,  the  officer  in  charge 
thereof,  demanded  a  penny,  which  the  appellant  declined  to  pay.  He 
then  endeavoured  to  force  his  way  past  the  two  officers,  who  for  a 
time  prevented  him.  Eventually  he  succeeded  in  getting  past  them 
and  squeezed  himself  through  a  narrow  space  between  the  entry  turn- 
stile and  the  bulkhead  into  the  street. 

At  the  trial  Darley,  C.  J.,  refused  to  nonsuit,  directing  the  jury  that 
there  was  no  evidence  that  the  appellant  knew  of  the  notice  when  he 
went  onto  the  respondents'   wharf.     The  jury   found   a  verdict   for 
the  appellant  for  £100. 
•  The  judgment  of  their  Lordships  was  delivered  by 

Lord  LorEburx,  L.  C,  *  *  *  The  plaintiff  paid  a  penny  on 
entering  the  wharf  to  stay  there  till  the  boat  should  start  and  then 
be  taken  by  the  boat  to  the  other  side.  The  defendants  were  admit- 
tedly always  ready  and  willing  to  carry  out  their  part  of  this  contract. 
Then  the  plaintiff  changed  his  mind  and  wished  to  go  back.  The  rules 
as  to  the  exit  from  the  wharf  by  the  turnstile  required  a  penny  for 
any  person  who  went  through.  This  the  plaintiff'  refused  to  pay,  and 
he  was  by  force  prevented  from  going  through  the  turnstile.  He 
then  claimed  damages  for  assault  and  false  imprisonment. 

There  was  no  complaint,  at  all  events  there  was  no  question  left  to 
the  jury  by  the  plaintiff's  request,  of  any  excessive  violence,  and  in 
the  circumstances  admitted  it  is  clear  to  their  Lordships  that  there 
was  no  false  imprisonment  at  all.  The  plaintiff  was  merely  called 
upon  to  leave  the  wharf  in  the  way  in  which  he  contracted  to  leave  it. 
There  is  no  law  requiring  the  defendants  to  make  the  exit  from  their 
premises  gratuitous  to  people  who  come  there  upon  a  definite  contract 


94  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

which  involves  their  leaving  the  wharf  by  another  way;  and  the  de- 
fendants were  entitled  to  resist  a  forcible  passage  through  their  turn- 
stile. 

The  question  whether  the  notice  which  was  affixed  to  these  premises 
was  brought  home  to  the  knowledge  of  the  plaintiff  is  immaterial, 
because  the  notice  itself  is  immaterial. 

When  the  plaintiff  entered  the  defendants'  premises  there  was  noth- 
ing agreed  as  to  the  terms  on  which  he  might  go  back,  because  neither 
party  contemplated  his  going  .back.  When  he  desired  to  do  so  the 
defendants  were  entitled  to  impose  a  reasonable  condition  before  al- 
lowing him  to  pass  through  their  turnstile  from  a  place  to  which  he 
had  gone  of  his  own  free  will.  The  payment  of  a  penny  was  a  quite 
fair  condition,  and  if  he  did  not  choose  to  comply  with  it  the  defend- 
ants were  not  bound  to  let  him  through.  He  could  proceed  on  the 
journey  he  had  contracted  for. 

Under  these  circumstances  their  Lordships  consider  that,  when  the 
defendants  at  the  end  of  the  case  submitted  that  there  ought  to  be  a 
nonsuit,  the  learned  judge  ought  to  have  nonsuited  the  plain- 
tiff.    *     *     * 

Their  Lordships  will  humbly  advise  His  Majesty  that  this  appeal 
should  be  dismissed  with  costs.*'' 


WHITMAN  v.  ATCHISON,  T.  &  S.  F.  RY.  CO. 

(Supreme  Court  of  Kansas,  1911.     85  Kan.   150,  116  Pac.  231,  34   L.   R.  A. 

[N.  S.]  1029,  Ann.  Cas.  1912D,  722.) 

Action  by  Whitman  against  the  railway  company  for  a  personal  in- 
jury.    Judgment  for  the  plaintiff  and  defendant  appealed. 

The  plaintiff  recovered  a  judgment  against  the  railway  company 
for  $400  on  account  of  injuries  received  in  alighting  from  the  caboose 
of  a  freight  train  at  the  station  of  Cherryvale.  At  the  time  of  the 
injury,  he  was  75  years  of  age.  When  the  train  reached  Cherryvale 
about  dusk,  it  did  not  stop  at  the  depot,  but  continued  across  Alain 
street  in  order  not  to  block  that  street,  and  came  to  a  stop  about  275 
feet  from  the  depot.  The  plaintiff'  expected  the  train  to  stop  at  the 
depot,  and,  fearing  that  he  would  be  carried  past  his  station,  left  his 
seat  and  went  upon  the  platform.  Thinking  that  the  train  was  go- 
ing slowly  enough  he  attempted  to  get  off,  and  was  thrown  or  fell 
to  the  ground,  and  sustained  a  fracture  of  the  leg.  When  he  came 
out  on  the  platform,  the  conductor  was  standing  there,  facing  toward 
the  front  of  the  train  and  signaling  to  the  engineer  with  a  lantern. 
After  the  train  stopped  and  the  conductor  learned  that  some  one  had 
been  hurt,  he  went  to  where  the  plaintiff  lay  upon  the  pavement,  and 

*^  The  statement  of  the  case  is  abridged,  and  the  arguments  are  omitted 


Ch.  1)  TRESPASSES  95 

informed  him  that  he  would  have  to  obtain  a  statement  in  regard  to 
the  accident;  that  the  law  required  the  conductor  to  obtain  such 
statement  from  every  injured  passenger.  A  cab  was  called,  plaintiff, 
at  his  request,  was  lifted  into  it,  and,  at  the  direction  of  the  conductor, 
he  was  driven  to  where  the  caboose  was  standing.  The  conductor 
brought  his  papers  from  the  caboose,  got  into  the  cab  with  the  plain- 
tiff, and  filled  out  the  blank  forms,  which  the  plaintiff  then  signed. 
One  of  these  was  a  personal  injury  report  required  by  the  company's 
rules,  and  the  other  was  a  report  required  by  the  Interstate  Com- 
merce Commission.  Immediately  after  the  statements  were  signed, 
plaintiff  was  taken  to  his  home,  ^^hen  plaintiff  purchased  his  ticket 
at  Independence,  he  signed  a  freight  train  release  authorized  by  a 
statute  then  in  force,  releasing  the  company  from  liability  for  loss 
or  damage  to  his  person  while  on  such  train,  or  while  going  to  or 
from  the  same,  except  in  case  of  willful  negligence. 

Plaintiff'  relied  upon  two  causes  of  action.  The  first  was  based  upon 
an  alleged  willful  injury,  the  second,  upon  an  alleged  unlawful  re- 
straint by  the  conductor. 

Porter,  J.  *  *  *  In  the  case  at  bar  it  appears  from  the  evi- 
dence that  the  rules  of  the  company  required  the  conductor  to  send  in 
a  report  of  all  accidents,  and  the  company  furnished  him  with  a 
blank  for  the  purpose  of  obtaining  a  statement  of  any  passenger 
who  might  be  injured,  with  instructions  that:  "This  blank  should  be 
filled  out  immediately  upon  the  happening  of  the  accident,  if  the  in- 
jured party  is  able.  If  not,  then  at  the  earliest  time  thereafter."  The 
company  also  furnished  the  conductor  a  blank  prepared  in  conformity 
with  the  interstate  commerce  law,  to  be  signed  by  the  injured  pas- 
senger, which  contained  the  following  statement :  "To  Passengers : 
The  law  requires  railway  companies  to  report  accidents  to  the  Inter- 
state Commerce  Commission.  That  tliis  law  may  be  complied  with 
you  are  requested  to  fill  the  following  blank."  The  rules  of  the  com- 
pany authorized  the  conductor  to  obtain  from  any  injured  passenger 
a  statement  in  writing ;  but  there  was  no  law  nor  any  rule  of  the 
company  W'hich  required  a  passenger  to  make  either  statement,  and  it 
will  not  be  seriously  contended  that  what  the  conductor  told  the  plain- 
tiff as  to  the  law  was  true.  It  was  a  misrepresentation  which,  ac- 
cording to  the  plaintiff's  evidence,  induced  him  to  consent,  while  suf- 
fering from  his  injuries  and  desiring  needed  medical  attention,  to  re- 
main there  until  what  he  had  been  falsely  informed  was  a  requirement 
of  the  law  had  been  complied  with.  This  amounted  to  an  unlawful  re- 
straint of  his  personal  liberty,  and  it  is  obvious  that  the  same  princi- 
ple should  apply  as  though  he  had  suffered  an  unlawful  imprisonment, 
notwithstanding  there  is  no  evidence  of  such  coercion  by  the  conductor 
as  to  bring  the  case  squarely  within  the  rules  which  ordinarily  govern 
in  cases  of  false  imprisonment.  The  conductor  had  the  right  to  re- 
quest him,  if  able,  to  make  the  statement,  but  had  no  right  to  induce 


9G  TORTS  THROUGH   ACTS  OP  ABSOLUTE   LIABILITY  (Part  1 

him  to  remain  and  make  the  statements  by  misrepresenting  that  the  law 
of  the  state  required  him  to  make  them  at  that  time  and  place. 

Probably  the  injuries  sustained  by  plaintiff  by  reason  of  this  un- 
lawful detention  were  slight;  but  that  does  not  affect  the  principle 
involved.  If  he  had  sustained  a  severed  artery  which  required  im- 
mediate attention  to  prevent  him  from  bleeding  to  death,  and  the  con- 
ductor had  used  the  same  unlawful  means  to  detain  him,  and  pro- 
cured the  statement  against  his  will,  the  case  would  only  differ  in  de- 
gree, but  not  in  principle.  The  giving  of  the  instruction  complained 
of  cannot,  therefore,  be  regarded  as  error,  although  it  might  have 
been  worded  differently  in  order  to  apply  to  the  actual  facts  in  evi- 
dence. All  that  was  necessary,  in  order  for  the  plaintiff'  to  recover 
upon  the  second  cause  of  action,  was  to  show  that  he  was  unlawfully 
restrained  of  his  liberty  without  any  sufficient  legal  cause  therefor, 
and  by  words  or  acts  which  he  feared  to  disregard.  He  testified  that 
he  agreed  to  remain  and  make  the  statements,  because  he  had  been 
informed  that  the  law  required  him  to  do  so.  This,  in  connection 
with  his  age,  his  suffering,  and  his  helpless  condition,  and  all  the  cir- 
cumstances in  evidence,  would  warrant  a  jury  in  finding  that  he  was 
restrained  by  words  and  acts  which  he  feared  to  disregard. 

The  defendant  contends  further  that,  if  the  acts  of  the  conductor 
amounted  to  an  unlawful  restraint  of  the  plaintiff,  they  were  not 
within  the  scope  of  his  authority.  The  evidence  shows  that  the  printed 
instructions  of  the  conductor  were  to  obtain  a  statement  from  the 
injured  passengers;  the  instructions  reading:  "All  conductors  of 
trains  carrying  passengers  must  have  a  supply  of  this  form  on  hand 
at  all  times  when  on  duty,  and  as  soon  as  possible  after  the  occur- 
rence of  an  accident,  the  conductor  will  obtain  from  each  passenger, 
*  *  *  wdiether  injured  or  not,  a  statement  hereon  and  forward 
by  the  first  train  to  the  superintendent."  The  defendant  having  in- 
structed its  servant  and  employe  to  obtain  the  statement  from  any  in- 
jured passenger  must  be  held  to  have  authorized  him  to  use  what  he 
considered  necessary  means  to  obtain  it.  Defendant  relies  upon  the 
recent  case  of  Crelly  v.  Telephone  Co.,  84  Kan.  19,  113  Pac.  386, 
33  L.  R.  A.  (N.  S.)  328,  where  the  local  manager  of  a  telephone  com- 
pany was  held  not  to  have  been  acting  in  the  scope  of  his  employment 
when  he  violently  assaulted  and  beat  an  operator  w-ho  was  about  to 
quit  the  service,  because  she  refused  to  sign  a  voucher  for  the  com- 
pensation due  her.  The  opinion  in  that  case  quotes  Collette  v.  Rebori, 
107  Mo.  App.  711,  82  S.  W.  552,  holding  that  the  master  is  liable  for 
the  tortious  acts  of  his  servant  when  it  is  shown  that  the  act  com- 
plained of  was  done  as  a  means  or  for  the  purpose  of  doing  the  work 
assigned  by  the  master.  The  conductor  was  authorized  to  obtain  from 
the  passenger  the  statement,  and,  for  the  purpose  of  obtaining  it,  he 
represented  to  him  that  the  law  required  the  statement  to  be  made. 
This  is  far  different  in  principle  from  the  act  of  a  ser^^ant  in  commit- 


Ch.  1)  TRESPASSES  97 

ting  an  assault  which  would  be  unlikely  to  bring  about  the  accom- 
plishment of  the  purpose.  The  representation  that  the  law  required 
the  report  to  be  signed  by  the  passenger  was  something  quite  likely 
to  induce  compliance  with  the  request,  and  which  the  company  might 
well  have  anticipated  its  servant  would  do.  The  tendency  of  modern 
decisions  is  to  a  wider  interpretation  of  the  implied  authority  of  the 
servant  in  cases  of  this  kind  (19  Cyc.  329),  especially  where  the  re- 
lation of  carrier  and  passenger  exists.  A.,  T.  &  S.  F.  R.  Co.  v.  Henry, 
55  Kan.  715,  723,  41  Pac.  952,  29  L.  R.  A.  465.  Unquestionably  the 
plaintiff  was  a  passenger  at  the  time  the  conductor  detained  him.  He 
was  injured  in  alighting  from  the  train  at  his  destination.  Before  he 
had  been  removed  from  the  company's  right  of  way,  the  conductor 
took  control  over  him  for  the  purpose  of  obtaining  a  statement  from 
him  as  an  injured  passenger,  and  we  think  the  relation  of  carrier  and 
passenger  continued  during  the  time  the  conductor  detained  him.  We 
think  the  acts  of  the  conductor  were  fairly  and  reasonably  within  the 
scope  of  his  employment.*^ 


BENNETT  v.  AUSTRO  AMERICANA  S.  S.  CO. 
(Supreme  Court  of  New  York,  Appellate  Division,  1914.    147  N.  Y.  Supp.  193.) 

Bennett  brought  an  action  in  New  York  for  an  alleged  false  im- 
prisonment. From  a  judgment  dismissing  the  complaint,  the  plaintiff" 
appeals. 

Carr,  J.  On  the  trial  of  this  action,  the  complaint  was  dismissed 
by  the  trial  court  at  the  close  of  the  defendant's  evidence,  and  judg- 
ment was  entered  accordingly,  from  which  the  plaintiff  appeals.  The 
only  question  involved  in  the  case  before  us  is  whether,  considering 
the  plaintiff"s  proofs  in  their  most  favorable  aspect,  he  has  made  out 
a  cause  of  action.  He  is  a  nonresident  of  the  state,  the  defendant 
is  a  foreign  corporation,  and  the  facts  set  forth  in  the  complaint  hap- 
pened and  the  action  was  brought  before  the  recent  amendment  to 
section  1780  of  the  Code  of  Civil  Procedure.  Hence  this  court  had 
no  jurisdiction  of  the  plaintiff's  cause  of  action  unless  it  arose  within 
this  state.  Payne  v.  N.  Y.,  S.  &  W.  R.  R.  Co.,  157  App.  Div.  302, 
142  N.  Y.  Supp.  241. 

The  facts  appearing  in  the  plaintiff''s  proofs  show  that  in  August, 
1908,  he  was  a  second  cabin  passenger  on  one  of  the  defendant's 
steamships  journeying  from  a  port  in  Greece  to  the  port  of  New 
York.     The  vessel  was  crowded  with  emigrants  and  a  large  number 

4  8  The  statement  of  facts  is  abridged.  A  portion  of  the  opinion  is  omitted. 
The  first  cause  was  hold  open  to  a  demurrer  to  the  evidence.  As  the  verdict 
was  general  with  nothing  to  indicate  how  much  of  the  damages  allowed  was 
apportioned  to  the  first  cause,  the  judgment  was  reversed,  and  remanded  for 
further  proceedings  on  the  cause  for  false  imprisonment. 

There  was  a  dissent  in  part  from  Burth  and  Porter,  JJ. 
Hepb.Torts — 7 


98  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

of  second  cabin  passengers.  The  latter,  or  a  large  number  of  them, 
became  dissatisfied  with  the  food  furnished  to  them,  and  with  other 
matters,  and  claimed  improper  attention  to  their  needs  and  comfort 
on  the  part  of  the  ship's  ofificers.  A  letter  was  framed  for  the  pur- 
pose of  complaint  and  publication  on  the  arrival  of  the  ship  at  the 
port  of  New  York,  and  the  plaintiff  undertook  to  get  signatures  to 
it,  even  from  first-class  passengers.  He  was  told  that  a  Mr.  Allen, 
a  first-class  passenger,  would  sign  this  letter.  The  ship  was  then  on 
the  high  seas,  nearing  the  port  of  New  York.  The  plaintiff  went 
to  the  first  cabin  music  room,  where  he  found  Mr.  Allen  and  tendered 
him  the  letter  for  signature.  The  latter  took  the  letter  and  began 
to  read  it  before  signing  it.  Thereupon  the  ship's  captain  entered 
the  music  room  and  took  the  letter  from  Mr.  Allen  and  ordered  the 
plaintiff  from  the  room,  on  the  ground  that  he,  as  a  second-class 
passenger,  had  no  right  to  be  in  the  first  cabin  quarters.  The  plain- 
tiff answered  that  he  would  not  leave  the  room  until  he  got  back  his 
letter.  The  captain  refused  to  return  it,  and  again  ordered  the  plain- 
tiff to  leave  the  room,  and  on  his  refusal  to  go  the  captain  struck  him 
and  ordered  his  removal  forcibly  by  members  of  the  crew.  He  was 
then  confined  in  a  stateroom,  and  the  imprisonment  continued  while 
the  vessel  entered  the  port  and  for  several  hours  after  it  had  docked 
in  New  York  City.  The  respondent  contends  that  if  the  plaintiff  has 
any  cause  of  action  it  "arose"  upon  the  high  seas  and  this  court  had 
no  jurisdiction  of  it.  The  appellant  contends  that  he  has  a  cause  of 
action  for  false  imprisonment  to  the  extent  of  such  imprisonment 
while  within  the  jurisdiction  of  this  state,  even  though  such  imprison- 
ment began  outside  the  jurisdiction,  for  its  continuance  made  a  fresh 
cause  of  action  in  his  favor  as  long  as  it  lasted,  and,  if  it  continued 
within  this  jurisdiction,  a  fresh  cause  of  action  arose  within  this  ju- 
risdiction to  the  extent  of  the  continued  imprisonment.  In  this  con- 
tention we  think  the  appellant  is  correct.  Hardy  v.  Ryle,  9  B.  &  C. 
608;  Huggins  v.  Toler,  64  Ky.  (1  Bush)  192;  Dusenbury  v.  Keiley, 
8  Daly,  537;    s.  c,  85  N.  Y.  383;    Van  Ingen  v.  Snyder,  24  Hun, 

01  *         *         *   49 

Judgment  reversed  and  new  trial  granted. ^° 

40  Compare  Rogina  v.  Lesley  (1860)  Bell,  220,  8  Cox,  C.  C.  2G9:  P.  and 
others,  being  in  Chili  and  subjects  of  that  state,  were  banished  by  the  govern- 
ment of  Chili  to  England.  D.,  the  master  of  an  English  merchant  vessel  lying 
in  the  territorial  waters  of  Chili,  contracted  with  that  government  to  take  P. 
and  his  companions  from  Valparaiso  to  Liverpool  and  they  were  accordingly 
bronght  on  board  D.'s  vessel  by  the  oflicers  of  the  government  and  carried  by 
D.  to  Liverpool  under  his  contract.  Assuming  that  D.'s  act  within  Chilian 
waters  was  justified  the  question  was  whether  D.  was  liable,  in  an  English 
court,  on  a  charge  of  false  imprisonment  for  what  was  done  on  the  high  seas? 

6  0  Part  of  the  opinion,  on  a  question  of  excess,  is  omitted. 


Ch.  1)  TRESPASSES  99 

HARNESS  V.  STEELE. 

(Supreme  Court  of  ludiana,  19012.     159  Ind.  2S6,  64  N.  E.  875.) 

The  action  was  by  Steele.  There  was  a  judgment  for  the  plaintiff 
and  the  defendant  appealed. 

Jordan,  J.  Appellee,  a  minor,  by  his  next  friend,  sued  appellant, 
the  sheriff  of  Howard  county,  together  with  one  Strubbs,  to  recover 
damages  for  false  imprisonment.  A  trial  before  a  jury  resulted  in  a 
verdict  against  appellant  for  S400,  and  a  finding  in  favor  of  the  de- 
fendant Strubbs.  Over  appellant's  motion  for  a  new  trial,  wherein  he 
assigns  various  reasons,  the  court  rendered  judgment  on  the  verdict, 
from  which  appellant  appealed  to  the  appellate  court.  The  appeal  was 
transferred  to  this  court  under  the  act  of  March  13,  1901. 

The  first  error  argued  by  counsel  for  appellant  is  the  overruling  of 
the  demurrer  to  the  first  paragraph  of  the  amended  complaint.  This 
complaint  consists  of  two  paragraphs.  The  first,  omitting  the  caption, 
is  as  follows :  "Plaintiff,  for  his  amended  complaint,  complains  of 
the  defendant,  and  says  that  on  the  15th  day  of  May,  1900,  the  de- 
fendant unlawfully  imprisoned  the  plaintiff  and  deprived  him  of  his 
liberty  for  the  space  of  one  hour,  to  his  damage  in  the  sum  of  $2,000, 
for  which  he  demands  judgment."  It  is  contended  that  this  paragraph 
contains  no  facts  to  show  that  appellee  was  falsely  imprisoned  and 
deprived  of  his  liberty,  but  consists  merely  of  conclusions.  While  the 
paragraph  is  somewhat  terse,  it  is  an  exact  copy  of  the  form  given  in 
3  Works,  Prac.  p.  152.  It  may  also  be  said  that  it  substantially  fol- 
lows the  averments  in  a  form  given  in  1  Estes,  PI.  &  Forms,  p.  561, 
with  the  exception  that  the  latter  form  does  not  contain  the  word 
"unlawfully,"  and  states  that  the  imprisonment  was  "without  probable 
cause,"  and  also  gives  the  place  at  which  the  plaintiff  was  imprisoned. 
The  charge  that  "the  defendants  *  *  *  imprisoned  the  plaintiff 
and  deprived  him  of  his  liberty  for  the  space  of  one  hour"  is  certainly 
not  a  mere  conclusion  of  the  pleader,  but  is  a  composite  statement  of 
an  ultimate  fact,  the  imprisonment  of  the  plaintiff.  The  word  "un- 
lawful" is  not  essential,  and  may  be  omitted  from  the  pleading,  for 
the  rule  is  settled  in  this  state  that  a  complaint  for  false  imprisonment 
is  sufficient  without  alleging  that  the  act  complained  of  was  illegal, 
or  wrongful,  or  that  the  arrest  or  imprisonment  was  without  competent 
authority,  or  malicious,  or  without  probable  cause.  Colter  v.  Lower, 
35  Ind.  285,  9  Am.  Rep.  735 ;  Gallimore  v.  Ammerman,  39  Ind.  323 ; 
Boaz  v.  Tate,  43  Ind.  60.  The  paragraph  in  controversy  is  at  least  suf- 
ficient on  demurrer.  It  might  possibly  have  been  open  to  the  objec- 
tion, upon  a  motion  to  make  it  more  specific,  that  it  did  not  state  the 
venue  where  the  alleged  wrong  was  perpetrated  by  the  defendants; 
but  in  respect  to  this  question  we  do  not  decide.     *     *     *  si 

51  Part  of  the  opinion  is  omitted. 


100  TORTS  THROUGH  ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 


(b)   In  Arrest 

GENNER  V.  SPARKES. 
(Court  of  King's  Bench,  1704.    1  Salk.  79,  91  Reprint,  74.) 

Genner,  a  bailiff  having  a  warrant  against  Sparkes,  went  to  him  in 
his  yard,  and  being  at  some  distance  told  him,  he  had  a  warrant,  and 
said  he  arrested  him.  Sparkes  having  a  fork  in  his  hand,  keeps  off 
the  bailiff  from  touching  him,  and  retreats  into  his  house.  And  this 
was  moved  as  a  contempt.  Et  per  Cur.  The  bailiff  cannot  have 
an  attachment,  for  here  was  no  arrest  nor  rescous.  Bare  words  will 
not  make  an  arrest ;  but  if  the  bailiff  had  touched  him,  that  had  been 
an  arrest,  and  the  retreat  a  rescous,  and  the  bailiff  might  have  pur- 
sued and  broken  open  the  house ;  or  might  have  had  an  attachment 
or  rescous  against  him ;  but  as  this  case  is,  the  bailiff  has  no  remedy 
but  an  action  for  assault;  for  the  holding  up  of  the  fork  against  him 
when  he  was  within  reach,  is  good  evidence  of  that. 


HUNTINGTON  v.  SHULTZ. 
(Constitutional  Court  of  Soutli  Carolina,  1824.     Harp.  452,  18  Am.  Dec.  660.) 

The  defendant  was  served  with  a  capias  ad  respondendum  when 
he  was  attending  on  court,  as  a  party  to  a  suit.  He  moved  to  set 
aside  the  service  of  the  writ,  on  the  ground  that  he  was  privileged 
from  the  service  of  this  writ  during  his  attendance  on  the  court. 
The  court  granted  the  motion,  and  the  plaintiff  appealed. 

Richardson,  J.  The  question  in  this  case  depends  upon  the  act 
of  1791:  1  Faust,  44;  1  Brevard,  223;  which  enacts  that  "all  per- 
sons necessarily  going  to,  attending  on,  or  returning  from  the  same" 
(referring  to  the  superior  courts),  "shall  be  freed  from  arrest  in  any 
civil  action."  Now,  what  does  the  term  "arrest"  mean?  Wood  (see 
Institutes,  595)  defines  it :  "A  detention  of  the  person."  And  Black- 
stone,  vol.  3,  p.  288,  says :  "An  arrest  must  be  by  corporal  seizing 
the  defendant's  body;  after  which  the  sheriff  may  justify  breaking 
open  the  house,  in  order  to  take  him ;"  and  in  page  289,  he  says : 
"When  the  defendant  is  arrested,  he  must  either  go  to  prison,  or  put 
in  special  bail  to  the  sheriff."  These  authorities  show  that  an  arrest 
is  synonymous  with  actual  detention  of  the  person  of  the  party  ar- 
rested ;  and  does  not  mean  merely  a  summons,  or  citation. 

The  scope  and  object  of  the  act  of  1791,  too,  evidently  require  no 
more  than  that  the  person  of  the  party  attending  court  shall  be  free 
from  detention ;  and  he  may  be  cited  or  summoned  without  any  de- 
tention of  his  person.     *     *     * 

The  motion  is  granted. 


Ch.  1)  TRESPASSES  101 


RUSSEN  V.  LUCAS. 

(At  Nisi  Prius,  Sittings  after  Hilary  Term,  1824.     1  Car.  &  P.  153, 

12  E.  C.  L.  9S.) 

Action  against  a  sheriff  for  an  escape.  The  only  point  in  dispute 
was,  whether  a  person  named  Hamer  was  arrested  by  the  sheriff's 
officer,  and  escaped. 

The  officer  having  the  warrant  went  to  the  One  Tun  tavern  in 
Jermyn  street,  where  Hamer  w^as  sitting.  He  said,  "j\Ir.  Hamer, 
I  want  you."  Hamer  rephed,  "^^'ait  for  me  outside  the  door,  and  I 
will  come  to  you."  The  officer  went  out  to  wait,  and  Hamer  went 
out  at  another  door,  and  got  away. 

Abbott,  C.  J.  Mere  words  will  not  constitute  an  arrest;  and  if 
the  officer  says,  "I  arrest  you,"  and  the  party  runs  away,  it  is  no 
escape;  but  if  the  party  acquiesces  in  the  arrest,  and  goes  with  the 
officer,  it  will  be  a  good  arrest.  If  Hamer  had  gone  even  into  the 
passage,  the  arrest  would  have  been  complete :  but,  on  these  facts,  if 
I  had  been  applied  to  for  an  escape-warrant  I  would  not  have  grant- 
ed it. 

Nonsuit. 


WHITHEAD  V.  KEYES. 

(Supreme  Judicial  Court  of  Massachusetts,  1S62.    3  Allen.  495, 

81  Am.  Dec.  672.) 

Tort  against  a  sheriff"  for  an  escape  suffered  by  his  deputy.     *     *     * 

The  defendant  also  requested  the  court  to  instruct  the  jury  that  if 
the  hold  taken  by  Stoddard  by  the  officer  was  only  for  an  instant,  and 
Stoddard  broke  away  from  that  hold  by  superior  force,  or  was 
rescued  therefrom  by  the  interference  of  others,  this  would  be  a  suffi- 
cient retaking  by  the  officer  to  allow  him  to  return  a  rescue.  The 
judge  declined  so  to  rule,  and  instructed  the  jury  that  to  enable  the 
defendant  to  set  up  a  rearrest  of  Stoddard  by  the  officer,  the  hold 
by  the  officer  would  not  be  stifficient  unless  Stoddard  was  held  and 
stopped,  or  the  officer  had  such  a  hold  on  him  that  it  was  in  his  power 
to  stop  him. 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendant 
alleged  exceptions. 

Metcalf,  j  *  *  *  "We  are  also  of  the  opinion  that  the  jury 
were  wrongly  instructed  that  to  enable  the  defendant  to  set  up  a  re- 
arrest of  the  debtor  (Stoddard)  by  the  officer  (Thomas)  the  hold  of 
the  debtor  by  the  officer  would  not  be  sufficient,  unless  the  debtor  was 
held  and  stopped,  or  the  officer  had  such  a  hold  on  him,  that  it  was 
in  his  power  to  stop  him. 


102  TORTS  THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

There  cannot  be  either  an  escape  or  a  rescue  of  a  person  unless 
he  is  first  arrested.  If  an  arrest  is  prevented  by  a  party's  avoidance 
or  resistance  of  an  officer,  or  by  the  interference  of  others,  the  party 
does  not  escape,  and  the  officer  is  not  liable  in  an  action  for  an  escape, 
but  is  liable,  if  at  all,  in  an  action  for  negligence  in  not  making  an 
arrest  when  he  might  and  ought.  And  the  law  is  the  same  in  regard 
to  a  rescue.  An  officer  cannot  legally  return  a  rescue  of  a  party  whom 
he  had  not  arrested.  Such  a  return  would  be  false.  We  have  there- 
fore, in  deciding  on  this  last  instruction  given  to  the  jury,  to  con- 
sider the  question — what  constitutes  an  arrest?  And  our  opinion  is, 
that  an  officer  effects  an  arrest  of  a  person  whom  he  has  authority  to 
arrest,  by  laying  his  hand  on  him  for  the  purpose  of  arresting  him, 
though  he  may  not  succeed  in  stopping  and  holding  him.  1  Hale  P. 
C.  459.  Genner  v.  Sparkes,  1  Salk.  79,  and  6  Mod.  173.  Sheriff  of 
Hampshire  v.  Godfrey,  7  Mod.  (Leach's  Ed.)  289.  Williams  v.  Jones, 
Rep.  Temp.  Hardw.  301.  Bui.  N.  P.  62.  Watson's  Sheriff,  90.  Unit- 
ed States  v.  Benner,  Bald.  239,  Fed.  Gas.  No.  14,568.  And  we  need 
not  express  an  opinion  as  to  what  else  will  or  will  not  amount  to  an 
arrest.  We  think  that  the  instruction,  prayed  for  on  this  point  by 
the  defendant,  should  have  been  granted,  and  that  the  exception 
taken  to  the  instruction  that  was  given  must  be  sustained. 

New  trial  granted. ^^ 


GOODELL  v.  TOWER. 

(Supreme  Court  of  Vermont,  1904.     77  Vt.  61,  58  Atl.  790,  107 

Am.  St.  Rep.  745.) 

Goodell  brought  trespass  for  a  false  imprisonment  against  Tower. 
Hastings  and  another.  There  was  a  judgment  in  favor  of  the  plain- 
tiff.    The  defendants  bring  exceptions. 

Tyler,  J.  *  *  *  It  is  contended  in  defendant  Hastings'  be- 
half that  he  did  not  restrain  the  plaintiff  of  his  liberty.  The  trial  court 
found  that,  having  the  complaint  and  warrant  signed  respectively  by 
the  other  two  defendants,  he  met  the  plaintiff  and  stopped  him  by 
speaking  to  him,  as  he  was  driving  along  on  a  business  errand,  read 
the  paper  to  him,  and  told  him  he  would  have  to  go  with  him,  Hast- 
ings ;  that  the  plaintiff  told  the  officer  that  he  would  have  to  get  some- 
one to  take  his  team ;  that  the  officer  permitted  him  to  do  his  errand, 
but  directed  him  to  return  as  soon  as  he  could ;  that  the  plaintiff  then 
drove  along ;  that  Hastings  became  impatient,  and  went  to  meet  him, 
turned  in  behind  the  plaintiff's  team  and  followed  him  to  the  village; 
that  he  went  to  the  place  of  trial  with  the  plaintiff,  delivered  the.  paper 
to  the  justice  and  informed  him  that  the  plaintiff  was  present;  that 
this  was  all  that  Hastings  did  besides  making  his  return  upon  the  war- 
rant;  that  he  understood  that  the  plaintiff'  was  in  his  custody. 

62  The  statemont  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Gh.  1)  TRESPASSES  103 

The  action  of  the  officer  constituted  a  false  imprisonment  of  the 
plaintiff.  It  was  not  necessary  that  he  should  lay  his  hands  upon  him. 
It  was  sufficient  that  the  plaintiff  was  within  his  power  and  submitted 
to  the  arrest:  Mowry  v.  Chase,  100  Mass.  79.  Every  restraint  upon 
a  man's  liberty  is,  in  the  eye  of  law,  an  imprisonment,  wherever  may 
be  the  place  or  whatever  may  be  the  manner  in  which  the  restraint  is 
effected :  2  Kent's  Commentaries,  26.  And  see  Pike  v.  Hanson,  9 
N.  H.  491,  cited  in  the  notes,  where  it  was  held  that  the  words  may 
constitute  an  imprisonment,  if  they  impose  a  restraint  upon  the  per- 
son, and  he  is  accordingly  restrained  and  submits.  The  law  is  so  well 
settled  upon  this  point  that  it  is  hardly  necessary  to  cite  authorities, 
but  the  notes  in  Bissell  v.  Gold,  1  Wend.  (N.  Y.)  210,  19  Am.  Dec. 
480,  are  interesting  and  clearly  elucidate  the  rule  that  to  constitute 
an  arrest  there  must  be  some  real  or  pretended  legal  authority  for 
taking  the  party  into  custody ;  that  he  must  be  restrained  of  his  lib- 
erty; that  if  he  submits  and  is  within  the  power  of  the  officer  it  is 
sufficient  without  an  actual  touching  of  his  person.  This  is  the  rule 
laid  down  by  Savage,  C.  J.,  in  the  main  case,  and  it  has  not  been  de- 
parted from  in  recent  authorities.     *     *     * 

Judgment  affirmed.^^ 


(c)  Imprisonment — Distinguished  from  Malicious  Prosecution 

LOCK  V.  ASHTON. 

(Court  of  Queen's  Bench,  1848.    12  Q.  B.  871,  IIG  Reprint,  1097, 

76  R.  R.  434.) 

Trespass  for  an  alleged  imprisonment.  Plea,  not  guilty.  On  the 
trial  it  appeared  that  the  plaintiff,  being  servant  to  the  defendant, 
who  was  a  corn  dealer,  was  sent  by  him  with  a  cart  to  the  premises  of 
Messrs.  Rosling  and  Watson,  also  corn  dealers,  for  twenty  sacks  of 
oats.  The  whole  quantity  was  not  delivered ;  and  the  plaintiff  signed 
a  receipt  note  for  eighteen.  On  his  return  to  the  defendant's  it  was 
found  that  only  seventeen  sacks  were  in  the  cart.  Messrs.  Rosling 
and  Watson,  on  enquiry  by  the  defendant,  insisted  that  they  had  de- 
livered eighteen  sacks.  The  plaintiff,  being  further  questioned,  made 
unsatisfactory  answers :  and  the  defendant  then  gave  him  into  cus- 
tody, and  had  him  conveyed  to  a  station  house,  and  from  thence  to  a 
police  office.  The  magistrate,  after  hearing  witnesses,  remanded  the 
plaintiff'  for  further  examination.  He  was  again  brought  up  for  ex- 
amination, and  a  second  time  remanded.  Before  the  third  hearing, 
Messrs.  Rosling  and  Watson,  discovered  that  the  missing  sack  had 
remained  on  their  premises  undelivered;    they  communicated  this  to 

53  Part  of  the  opinion  is  omitted. 


104  TORTS  THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

the  defendant ;  and  he  stated  it  to  the  magistrate  on  the  third  exami- 
nation :  and  the  plaintiff  was  thereupon  discharged.  There  was  no 
evidence  to  show  that  the  defendant  had  induced  the  magistrate  to 
remand  the  plaintiff  on  the  first  or  second  examination,  or  that  he  had 
unduly  delayed  making  the  statement  on  which  the  plaintiff  was  liberat- 
ed. It  was  urged,  on  the  defendant's  behalf,  that  in  this  action  he  could 
be  liable  only  for  the  first  imprisonment  and  taking  before  the  mag- 
istrate, not  for  the  remand  or  the  subsequent  detention,  these  being 
the  acts  of  the  justice.  Lord  Denman,  Ch.  J.,  asked  if  there  was  any 
authority  for  this  position ;  and,  none  being  cited,  he  left  the  case 
to  the  jury  on  the  whole  matter  of  complaint.  Verdict  for  the  plain- 
tiff, damages  £10. 

Whitehurst,  in  support  of  a  rule  for  a  new  trial :  It  is  true  that  the 
defendant  may  be  liable  for  all  that  happened  till  the  parties  appeared 
before  the  magistrate.  After  that,  the  justice  acted  in  the  discharge 
of  his  official  duty;  and  the  acts  done  were  his.  He  was  bound  to 
retain  the  plaintiff,  even  if  the  defendant  had  pressed  for  his  release. 
A  mistake  was  discovered ;  but  before  that  time  the  case  was  out  of 
the  defendant's  control.  The  argument  for  the  plaintiff  would  make 
a  prosecutor  in  such  a  case  answerable  for  the  detention  even  to  the 
time  of  trial.  The  remands,  then,  not  being  his  acts,  could  not  be  the 
subject  of  an  action  of  trespass;  case  might  have  lain;  but  then 
malice  and  want  of  probable  cause  must  have  been  alleged  and  shown. 
This  appears  by  the  well  known  series  of  cases  in  which  persons  hav- 
ing wrongfully,  as  was  alleged,  put  a  Court  in  motion,  have  been  sued 
in  case  or  trespass,  and  trespass  has  been  held  not  to  lie.  *  *  * 
(Coleridge,  J. :  Suppose  the  defendant  takes  the  plaintiff'  to  a  police 
office  on  a  day  when  he  knows  that,  as  a  matter  of  course,  there  will 
be  a  remand.)  That  would  be  evidence  of  malice  in  an  action  for  ma- 
licious prosecution.  (ErlE,  J. :  If  the  arresting  were  a  trespass,  and 
the  remand  were  ground  only  for  an  action  on  the  case,  the  same 
course  of  prosecution  would  be  trespass  on  Saturday  and  case  on 
Monday.)  It  would.  (Coleridge,  J. :  Is  not  the  remand  a  matter  by 
which  to  measure  the  damages?)  It  was  so  treated,  but  mistakenly. 
The  defendant  was  not  liable,  as  to  the  remand,  in  trespass,  or  in  any 
form,  if  he  arrested  bona  fide  in  the  first  instance.  (ErlE,  J. :  A  turn- 
ing point  here  may  be,  whether  or  not  the  remand  was  at  defendant's 
instance.) 

Lord  Denman,  Ch.  J.  Much  may  depend  on  that.  *  *  *  jf 
the  remand  here  is  considered  as  the  independent  judicial  act  of  the 
magistrate,  it  will  be  difficult  to  say  that  the  defendant  is  liable  in 
this  form  of  action.  We  will  look  at  the  declaration  and  the  Judge's 
notes. 

Cur.  adv.  vult. 

Lord  Denman,  Ch.  J.  (on  the  last  day  of  the  Term).  The  verdict 
in  this  case  cannot  be  sustained,  the  action  being  trespass,  and  the 


Ch.  1)  TRESPASSES  105 

jnry  having  given  damages  not  only  for  the  trespass  in  arresting,  but 
for  the  remand,  which  was  the  act  of  the  magistrate. 
Rule  absolute.^^* 


II.  In  Tre:spass  to  Propejrty 

(A)  In  Trespass  to  Real  Property 

WINCKWORTH  v.  MAN. 

(Court  of  Common  Pleas,  160S.     1  Brownl.  &  G.  210,  123  Reprint,  759.) 

The  plaintiff  declares  for  a  trespass  in  one  acre  of  land  in  D.  and 
abuts  that,  east,  west,  north  and  south ;  and  upon  not  guilty  pleaded, 
the  jury  found  the  defendant  guilty  in  half  an  acre  within  written, 
and  moved  in  arrest  of  judgment,  because  upon  the  matter  no  tres- 
pass had  been  found,  for  there  is  no  moiety  bounded  as  the  plaintiff 
had  declared,  for  the  whole  acre  is  only  bounded  by  the  plaintiff  con- 
taining his  trespass  within  those  bounds,  and  the  defendant  ought 
to  be  found  a  trespasser  within  those  bounds,  for  otherwise  it  is  not 
good ;    and  it  is  impossible  for  the  moiety  of  one  acre  to  be  within 

5  4  Part  of  the  opinion  is  omitted. 

"The  distinction  between  false  imprisonment  and  malicious  prosecution  is 
well  illustrated  by  the  case  where,  parties  being  before  a  magistrate,  one 
makes  a  charge  against  another,  whereupon  the  magistrate  orders  the  person 
charged  to  be  taken  into  custody  and  detained  until  the  matter  can  be  in- 
vestigated. The  party  making  the  charge  is  not  liable  to  an  action  for  false 
imprisonment,  because  he  does  not  set  a  ministerial  officer  in  motion,  but  a 
judicial  officer.  The  opinion  and  judgment  of  a  judicial  officer  are  Inter- 
posed between  the  charge  and  the  imprisonment."  Per  Willes,  J.,  in  Austin 
V.  Dowling  (1870)  L.  R.  5  C.  P.  534,  540. 

"If  an  individual  prefers  a  complaint  to  a  magistrate,  and  procures  a  war- 
rant to  be  granted,  upon  which  the  accused  is  taken  into  custody,  the  com- 
plainant, in  such  a  case,  is  not  liable  in  trespass  for  the  imprisonment ;  and 
that,  even  although  the  magistrate  had  no  jurisdiction.  According  to  the  case 
of  West  V.  Smallwood  ([183S]  3  M.  &  W.  418,  49  R.  R.  CG6),  a  party  who  shall 
make  a  direct  application  to  a  magistrate  for  a  warrant,  that  another  may 
be  taken  into  custody,  is  deemed  thereby  only  to  make  an  appeal  to  the 
magistrate  to  exercise  his  jurisdiction:  and  the  imprisonment  is  referred  to 
the  magistrate's  authority,  so  as  to  exempt  the  complainant  from  all  liability 
in  trespass:  and  what  takes  place  in  the  presence  of  the  magistrate,  ought 
to  be  referred  to  the  exercise  of  his  authority,  as  in  Barber  v.  Rollinson 
([1833]  1  Cr.  &  M.  330).  In  that  case,  the  plaintiff  having  been  discharged 
from  criminal  custody  by  a  magistrate,  was  leaving  the  post-office,  when  the 
defendant  said,  "I  have  another  charge  against  him,  for  forgery;"  upon  which 
the  plaintiff  was  again  taken  and  placed  at  the  Bar,  and  upon  the  trial  before 
Lord  Lyndhurst,  in  an  action  of  trespass  in  respect  of  this  second  imprison- 
ment, the  plaintiff  was  nonsuited  ;  and,  upon  motion  to  set  aside  the  nonsuit, 
it  was  held  that  the  acts  of  the  defendant  were  part  of  the  proceedings  before 
the  magistrate,  for  which  the  defendant  could  not  be  held  .liable  in  trespass; 
that  the  taking  could  not  be  consitk-red  as  the  act  of  the  defendant,  who  had 
only  put  the  law  in  motion,  for  which  he  might  be  liable  in  case."  Per  Colt- 
man,  J.,  in  Brown  v.  Chapman  (1848)  G  C.  B.  3U5,  37G,  77  R.  R.  347,  355. 


106  TORTS   THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

those  bounds :  but  the  whole  Court  except  Fenner,  were  of  opinion 
that  the  plaintiff  should  have  his  judgment:  for  if  the  plaintiff  layeth 
his  action  for  a  trespass  committed  in  one  acre,  and  the  jury  find  that 
only  to  be  in  one  foot  of  it,  it  is  good;  and  here  they  have  found  the 
trespass  in  the  moiety  of  the  acre  bounded,  which  is  sufficient  in  this 
action,  where  damages  only  are  to  be  recovered,  but  if  it  had  been  in 
ejectment,  the  verdict  had  been  naught,  for  it  is  uncertain  in  what 
part  he  should  have  his  writ  of  habere  facias  possessionem. 


GRAHAM  v.  PEAT. 
(Court  of  King's  Bench,  1801.    1  East,  244,  102  Reprint,  95.) 

Trespass  quare  clausum  fregit.  Plea  the  general  issue,  and  certain 
special  pleas  not  material  to  the  question.  At  the  trial  before  Gra- 
ham, B.,  the  trespass  was  proved  in  fact;  but  it  also  appeared  that 
the  locus  in  quo  was  part  of  the  glebe  of  the  rector  of  the  parish 
of  Workington  in  Cumberland,  which  had  been  demised  by  the  rector 
to  the  plaintiff,  and  that  the  rector  had  not  been  resident  within  the 
parish  for  five  years  last  past,  and  no  sufficient  excuse  was  shewn 
for  his  absence.  Whereupon  it  was  objected  that  the  action  could 
not  be  maintained,  the  lease  being  absolutely  void  by  the  Act  of  13 
Eliz.  c.  20,  which  enacts,  "That  no  lease  of  any  benefice  or  ecclesiasti- 
cal promotion  with  cure  or  any  part  thereof  shall  endure  any  longer 
than  while  the  lessor  shall  be  ordinarily  resident  and  serving  the  cure 
of  such  benefice  without  absence  above  fourscore  days  in  any  one 
year;  but  that  every  lease  immediately  upon  such  absence  shall  cease 
and  be  void."     And  thereupon  the  plaintiff  w-as  nonsuited. 

A  rule  was  obtained  in  ]\Iichaelmas  term  last  to  shew  cause  why  the 
nonsuit  should  not  be  set  aside,  upon  the  ground  that  the  action  was 
maintainable  against  a  wrong-doer  upon  the  plaintiff's  possession  alone, 
without  shewing  any  title. 

Cockell  Serjt.,  Park,  and  Wood,  now  shewed  cause,  and  insisted 
that  possession  was  no  further  sufficient  to  ground  the  action  even 
against  strangers  than  as  it  was  prima  facie  evidence  to  title,  and 
sufficient  to  warrant  a  verdict  for  the  plaintiff,  if  nothing  appeared 
to  the  contrary.  But  here  it  did  expressly  appear  by  the  plaintiff's 
own  case  that  his  possession  was  wrongful,  for  it  was  a  possession 
in  fact  against  the  positive  provisions  of  an  act  of  Parliament,  without 
any  colour  of  title  even  against  strangers.  [Carter  &  Claycoles  Case] 
1  Leon.  307.  He  was  not  even  so  much  as  tenant  at  sufferance; 
though  it  is  not  certain  that  this  latter  can  maintain  a  trespass.  It 
is  settled  that  the  plaintiff  could  not  have  maintained  an  ejectment 
against  a  stranger  who  had  evicted  him. 

Lord  Kicxvox,  C.  J.  There  is  no  doubt  that  the  plaintiff's  pos- 
session   in   this   case    was   sufficient   to   maintain   trespass   against   a 


Ch.  1)  TRESPASSES  107 

wrong-doer;  and  if  he  could  not  have  maintained  an  ejectment  upon 
such  a  demise,  it  is  because  that  is  a  fictitious  remedy  founded  upon 
title.  Any  possession  is  a  legal  possession  against  a  wrong-doer. 
Suppose  a  burglary  committed  in  the  dwelling  house  of  such  a  one, 
must  it  not  be  laid  to  be  his  dwelling  house  notwithstanding  the 
defect  of  his  title  under  that  statute. 
Per  Curiam.     Rule  absolute. ^^ 


LANE  V.  DIXON. 

(Court  of  Common  Pleas,  1847.    3  C.  B.  776,  71  R.  R.  484,  136  Reprint,  311.) 

Trespass.  The  declaration  stated  that  the  defendant  with  force 
and  arms  broke  and  entered  certain  rooms  of  the  plaintiff,  in  a  parcel 
of  a  certain  dwelling  house,  and  then  ejected  the  plaintiff  and  his 
family  from  the  possession  of  the  said  rooms  and  kept  them  so  eject- 
ed and  expelled.  Pleas,  not  guilty  and  live  special  pleas.  The  facts 
shewn  upon  the  trial  were  as  follows:  In  August,  1845,  the  plaintiff, 
a  medical  practitioner,  hired  from  one  Johnson  certain  rooms  in  Bury 
Street,  St.  James's,  at  a  rent  of  i50.  a  year,  with  the  privilege  of 
putting  a  brass  plate  with  his  name  engraved  thereon,  upon  the  front 
door,  there  to  remain  so  long  as  he  should  continue  to  occupy  the 
apartments.  In  September,  Johnson  demised  the  whole  house  to  the 
defendant,  for  twenty-one  years.  On  the  15th  of  January,  1846,  the 
rent  being  unpaid,  the  defendant  removed  the  plaintiff's  brass  plate 
from  the  door,  and  refused  to  allow  the  plaintiff  to  have  access  ro 
his  apartments.  It  appeared  that  the  defendant  let  the  whole  of  the 
house  in  separate  apartments:  but  there  was  no  direct  evidence  that 
the   defendant  had   actually   entered   the  plaintiff's   rooms. 

This  action  was  commenced  early  in  February,  1846.  On  the  part 
of  the  defendant,  it  was  insisted  that  the  charge  of  breaking  and 
entering  the  plaintiff's  rooms  was  not  proved.  *  *  *  Verdict  for 
the  plaintiff,  leave  being  reserved  to  the  defendant  to  move  to  enter 
a  verdict  for  him,  or  a  nonsuit,  if  the  Court  should  be  of  opinion  that 
there  was  no  evidence  of  a  breaking  and  entering. 

Byles,  Serjt.,  in  Trinity  Term,  obtained  a  rule  nisi  accordingly,  and 
also  for  a  new  trial,  on  the  ground  there  was  no  evidence  to  justify 
the  verdict. 

55  Compare: 

Cary  v.  Holt  (1746)  2  Str.  12.18:  P.  deelarod  in  trespass  upon  his  possession. 
D.  made  title  and  gave  colour  to  P.,  wlio,  in  a  replication  de  injuria,  denied 
the  title  set  out  by  D.  Held,  a  good  replicntion  "for  it  lays  the  defendant's 
title  out  of  the  case,  and  then  it  stands  upou  the  plaintiff's  possession,  which 
is  good  enough  against  a  wrongdoer." 

Harker  v.  Birbeck  (17G4)  3  Burr.  1556:  P.  has  a  liberty  of  digging  in  a  lead 
mine  but  has  no  property  in  the  soil  above  the  mine.  For  an  encroachment  on 
the  mine  P.  sues  in  trespass  on  the  case.  Lord  Manslield:  "We  are  all  clear 
that  the  action  ought  to  have  been  trespass." 


108  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Parti 

Wilde,  C.  J.  One  ground  upon  which  this  rule  was  moved,  is, 
that  there  was  no  evidence  to  go  to  the  jury,  in  support  of  so  much  of 
the  declaration  as  alleges  a  trespass  to  the  plaintiff's  rooms,  and  eject- 
ing him  therefrom,  and  seizing  his  goods.  The  evidence  offered 
was  that  the  plaintiff  had  taken  apartments  in  the  house  in  question, 
for  a  certain  term;  and  that,  before  that  term  had  expired,  the  de- 
fendant refused  to  permit  the  plaintiff  to  have  access  to  them.  It 
appears  to  me  that  that  was  competent  evidence  to  submit  to  the 
jury,  and  that  it  afforded  a  reasonable  foundation  for  a  verdict  for 
the  plaintiff.  The  period  of  time  during  which  the  plaintiff  was  ex- 
cluded, the  nature  of  the  property  and  other  surrounding  circum- 
stances, were  all  proper  to  be  taken  into  account  in  determining  wheth- 
er or  not  it  was  to  be  presumed  that  the  defendant  broke  and  en- 
tered the  rooms.  It  appeared  that  the  apartments  in  question  were 
open,  and  that  the  defendant  took  advantage  of  the  temporary  ab- 
sence of  the  plaintiff,  to  fasten  the  outer  door  and  so  exclude  the 
plaintiff  from  his  lodgings.  Considering  that  the  whole  house  was  let 
out  in  separate  suits  of  apartments,  and  that  the  defendant  refused 
to  permit  the  plaintiff  to  return  to  the  rooms,  what  is  the  reasonable 
intendment  of  the  use  to  which  the  plaintiff  would  put  them?  Out 
of  Court,  no  one  would  for  a  moment  doubt  that  he  would  at  once 
enter  them  for  his  own  occupation  or  for  the  purpose  of  letting.  All 
the  circumstances  were  proper  to  be  submitted  to  the  jury,  and 
could  not  properly  be  withheld  from  them :  and  I  see  no  ground 
for  saying  that  the  inference  they  have  drawn  was  incorrect.  The 
first  ground  of  the  motion,  therefore,  fails.     *     *     * 

Rule  discharged./*® 


WELLS  V.  HOWELL. 

(Supreme  Court  of  Judicature,  New  York,  1822.    19  .Johns.  .SS5.) 

Howell  sued  Wells  before  a  justice,  because  the  defendant's  horse 
had  entered  the  plaintiff's  field  and  destroyed  the  grass.  Wells 
pleaded  that  there  was  no  fence  around  the  field  when  the  damage 
was  done,  and  admitted  the  trespass  and  the  damage.  Howell  de- 
murred to  the  plea.  It  was  admitted  that  there  was  no  fence,  as 
stated,  and  that  there  was  no  town  by-law  about  fences,  or  cattle 
running  at  large.  The  justice  gave  judgment  for  the  plaintiff  below 
for  $10  and  costs. 

Per  Curiam.  Every  unwarrantable  entry  on  another's  land  is  a 
trespass,  whether  the  land  be  inclosed  or  not.  3  Bl.  Com.  209;  3 
Selw.  N.  P.  1101.  A  person  is  equally  answerable  for  the  trespass 
of  his  cattle,  as  of  himself.    3  Bl.  Com.  211.    The  defendant  below 

58  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point.  The  con- 
curring opinions  of  Maule,  Cresswell,  and  V.  Williams,  JJ.,  are  omitted. 


Ch.  1)  TRESPASSES  109 

was  bound  to  show  a  right  to  permit  his  cattle  to  go  at  large ;  and 
it  is  conceded  that  there  was  no  town  regulation  on  the  subject. 
The  judgment  must  be  affirmed. 
Judgment  affirmed. ^^ 


PATRICK  V.  GREENWAY. 

(Court  of  Common  Pleas,  1796.    1  Wms.  Sauud.  343,  344  note.  So  Re- 
print, 495,  498.) 

This  was  an  action  of  trespass  for  fishing  in  the  plaintift's  several 
fishery.  It  appeared  in  evidence  that  the  defendant  fished  there  but 
did  not  take  any  fish ;  neither  was  it  alleged  in  the  declaration  that 
the  defendant  caught  any  fish.  The  plaintifT  obtained  a  verdict, 
which,  in  the  following  term,  the  defendant  moved  to  set  aside. 
But  the  Court  of  Common  Pleas  refused  even  a  rule  to  shew  cause, 
upon  the  ground  that  the  act  of  fishing  was  not  only  an  infringe- 
ment of  the  plaintiff's  right,  but  would  hereafter  be  evidence  of  an 
using  and  exercising  of  the  right  of  the  defendant  if  such  an  act  were 
overlooked.^  ^ 

57  Accord:  Y.  B.  20  Edw.  IV.  (1481)  f.  11,  pi.  10:  Trespass  with  cattle. 
Plea,  that  the  plaintiff's  land  adjoined  a  place  where  defendant  had  common, 
that  the  cattle  strayed  from  the  common  and  defendant  drove  them  back  as 
•soon  as  he  could.  Brian,  C.  J.:  "If  the  land  in  which  he  has  common  be  not 
Inclosed,  it  behooves  him  to  keep  the  beasts  in  the  common  and  out  of  the 
land  of  any  other."' 

Star  V.  Rookesby  (1711)  1  Salk.  336,  91  Reprint,  295  ("for  the  law  bounds 
ever^'  man's  propert3'  and  is  his  fence"). 

Compare  Ellis  v.  Loftus  Iron  Co.  (1874)  ,L.  R.  10  C.  P.  10:  P.  sued  to 
recover  damages  because  his  mare  had  been  kicked  and  bitten  by  D.'s  horse. 
It  appeared  that  D.  was  accustomed  to  graze  his  horse  in  a  plot  of  ground 
which  was  separated  from  the  plaintiff's  pasture  by  a  wire  fence,  and  that 
the  horse,  without  going  into  P.'s  ground,  had  caused  the  injury  complained 
of  bj-  biting  and  kicking  the  mare  through  the  fence.  No  negligence  on  the 
part  of  D.  was  established.  Brett,  J.:  "*  *  *  I  had  no  doubt  that  if 
there  was  evidence  of  negligence  and  as  a  result  of  such  negligence  an  animal 
of  the  defendant's  passed  wholly  or  in  part  onto  the  plaintift's  land,  such  a 
circumstance  would  constitute  a  trespass ;  but  what  I  did  doubt  for  some  time 
was  whether,  when  there  was  no  negligence  at  all  on  the  part  of  the  de- 
fendant, the  same  consequence  would  follow.  Having  looked  into  the  au- 
thorities, it  appears  to  me  that  the  result  of  them  is  that  in  the  case  of  ani- 
mals trespassing  on  land  the  mere  act  of  the  animal  belonging  to  a  man,  which 
he  could  not  foresee,  or  which  he  took  all  reasonable  means  of  preventing, 
may  be  a  trespass,  ina.smuch  as  the  same  act.  if  done  by  himself,  would  have 
been  a  trespass.  Blackstone  (16th  Ed.)  vol.  iii,  c.  12,  p.  211 ;  Chitty  on  Plead- 
ing (7th  Ed.)  vol.  i,  p.  98;  and  Comyns'  Digest,  title  'Trespass  C,'  are  all  au- 
thorities to  this  effect." 

Compare  Salmond,  Jurisprudence  (1910)  378. 

5  8  The  case  is  reported  from  a  note  to  Mellor  v.  Spateman  (1670)  1  Wms. 
Saund.  343. 


110  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

PFEIFFER  V.  GROSSMAN. 

(Supreme  Court  of  Illinois,  1853.     15  111.  53.) 

This  was  an  action  of  trespass  quare  clausum  fregit.  The  plea 
was,  not  guilty.  On  the  trial  the  court  refused  to  give  these  instruc- 
tions : 

"That  the  putting  of  a  fence  or  letting  it  stay  on  the  land  of  another  is  a 
trespass  in  the  eye  of  the  law,  for  which  the  aggrieved  person  is  entitled  to 
at  least  nominal  damages;  that  the  plowing  up  of  another  man's  land  and 
cultivating  it,  although  the  land  may  thereby  be  improved,  is  still  a  trespass 
in  the  law,  for  which  the  person  aggrieved  is  entitled  to  at  least  nominal  dam- 
ages." 

The  jury  found  for  the  defendant,  and  the  court  rendered  judg- 
ment on  the  verdict.    The  plaintiff  went  up  on  error. 

Treat,  C.  J.  The  instructions  not  only  asserted  correct  legal  prin- 
ciples, but  they  were  strictly  applicable  to  the  case.  If  a  party  puts 
a  fence  on  another's  land  or  plows  up  the  soil,  he  is  liable  as  a  tres- 
passer. Such  acts  are  a  violation  of  the  owner's  right  of  possession, 
to  redress  which  the  law  gives  him  an  action.  And  the  action  is  main- 
tainable, although  the  owner  is  not  substantially  injured.  He  is 
entitled  to  nominal  damages  for  the  intrusion  upon  his  possession. 
The  defendant  cannot  defeat  the  action  by  showing  that  the  plain- 
tiff is  not  materially  prejudiced,  or  even  that  he  is  actually  benefit- 
ed. A  right  is  invaded  and  a  wrong  committed,  and  that  is  a  suffi- 
cient basis  for  an  action.  Every  unauthorized  entrance  on  the  land 
of  another  is  a  trespass,  for  which  an  action  will  lie.  The  law  im- 
plies damage  to  the  owner,  and  in  the  absence  of  proof  as  to  the  ex- 
tent of  the  injury,  he  is  entitled  to  recover  nominal  damages.  Es- 
pecially is  this  the  case  where  the  suit  is  brought  for  the  purpose  of 
settling  a  question  of  right.  Dixon  v.  Clow,  24  Wend.  (N.  Y.)  188  ; 
Pastorius  v.  Fisher,  1  Rawle  (Pa.)  27;  Bagby  v.  Harris,  9  Ala.  173; 
Plumleigh  v.  Dawson,  1  Oilman,  544,  41  Am.  Dec.  199;  Bolivar 
Manuf.  Co.  v.  Neponset  Manuf.  Co.,  16  Pick.  (Mass.)  241 ;  Whipple 
V.  The  Cumberland  Manuf.  Co.,  2  Story's  R.  561. 

The  judgment  is  reversed  and  the  cause  remanded.^® 

59  "And  although  a  thing  appear  for  the  profit  of  a  man,  and  not  to  his  dam- 
age, yet  it  is  not  lawful  for  a  man  to  commit  a  tort.  As  if  a  man  saw  the 
beasts  of  his  neighbour  in  another  land  damage  feasants,  it  is  not  lawful  for 
him  to  drive  them  off,  and  if  he  do,  the  owner  shall  have  trespass;  and  yet 
he  did  a  good  act,  and  saved  the  owner  from  damages  for  the  depasturing 
of  his  beasts.  Also  it  is  ruled  in  21  H.  7.  (27.  b.)  that  a  person  brings  tres- 
pass for  corn  carried  away,  the  defendant  pleads  that  the  corn  was  severed 
from  the  nine  parts  and  was  in  danger  of  being  destroyed  by  cattle,  wherefore 
the  defendant  carried  it  to  the  plaintiffs  own  barn,  and  laid  it  there,  and 
judgment,  etc.  And  this  was  adjudged  no  plea,  and  yet  he  received  no  dam- 
age. So  here,  although  the  termor  has  reiiaired  the  house  of  the  lessor  with 
the  tre<^s,  which  sounds  to  his  advantage;  yet,  inasnuich  as  he  hatli  ex- 
ceeded his  duty,  and  taken  upon  him  the  authority  of  the  lessor,  without  any 
request,  it  is  a  reason  why  he  should  be  punished.    As  if  the  commoner  make 


Ch.  1)  TRESPASSES  HI 

PICKERING  V.  RUDD. 

(At  Nisi  Prius,  1815.    4  Camp.  219,  16  R.  R.  777.) 

Trespass  for  breaking  and  entering  the  plaintiff's  close,  and  placing 
a  board  over  it,  and  cutting  a  tree,  etc.  Plea,  not  guilty  as  to  the  claus- 
um  f regit;  and  as  to  cutting  the  tree,  a  justification  that  it  was  wrong- 
fully growing  against  the  wall  of  the  defendant,  and  that  he  there- 
fore removed  it,  as  he  lawfully  might.  New  assignment  of  excess, 
and  issue  thereupon. 

The  defendant's  house  adjoins  to  the  plaintiff's  garden,  the  locus  in 
quo ;  and  to  prove  the  breaking  and  entering  of  this  the  evidence  was, 
that  the  defendant  had  nailed  upon  his  house  a  board,  which  projected 
several  inches  from  the  wall,  and  so  far  overhung  the  garden. 

Garrow,  A.  G.  and  Richardson  for  the  plaintiff  contended  that  this 
was  a  trespass  for  which  he  had  a  right  to  maintain  the  present  action. 
Cujus  est  solum,  ejus  est  usque  ad  coelum.  The  space  over  the  soil 
of  the  garden  is  the  plaintiffs,  like  the  minerals  below,  and  an  invasion 
of  either  is,  in  contemplation  of  law,  a  breaking  of  his  close.  A  mere 
temporary  projection  of  a  body  through  the  air  across  the  garden  may 
not  be  actionable ;  but  where  a  board  is  caused  permanently  to  over- 
hang the  garden,  this  is  a  clear  invasion  of  the  plaintiff's  possession. 
If  this  be  not  a  trespass,  it  is  easy  to  conceive  that  the  whole  garden 
may  be  overshadowed  and  excluded  from  the  sun  and  air  without  a 
trespass  being  committed. 

Lord  Ellenborough,  Ch.  J.  I  do  not  think  it  is  a  trespass  to 
interfere  v.ith  the  column  of  air  superincumbent  on  the  close.  I  once 
had  occasion  to  rule  upon  the  circuit,  that  a  man  who,  from  the  out- 
side of  a  field,  discharged  a  gun  into  it.  so  that  the  shot  must  have 
struck  the  soil,  was  guilty  of  breaking  and  entering  it.  A  very  learned 
Judge,  who  went  the  circuit  with  me,  at  first  doubted  the  decision,  but 
I  believe  he  afterwards  approved  of  it,  and  that  it  met  with  the  gen- 
eral concurrence  of  those  to  whom  it  was  mentioned.  I  am  by  no 
means  prepared  to  say,  that  firing  across  a  field  in  vacuo,  no  part  of 
the  contents  touching  it,  amounts  to  a  clausum  fregit.  Nay,  if  this 
board  overhanging  the  plaintift"s  garden  be  a  trespass,  it  would  follow 
that  an  aeronaut  is  liable  to  an  action  of  trespass  quare  clausum  fregit 
at  the  suit  of  the  occupier  of  every  field  over  which  his  balloon  passes 
in  the  course  of  his  voyage.  Whether  the  action  may  be  maintained 
cannot  depend  upon  the  length  of  time  for  which  the  superincumbent 
air  is  invaded.  If  any  damage  arises  from  the  object  which  overhangs 
the  close,  the  remedy  is  by  an  action  on  the  case.  Here  the  verdict  de- 
pends upon  the  new  assignment  of  excess  in  cutting  down  the  tree. 

The  jury  found  for  the  defendant. 

a  trench  in  the  soil,  whereby  the  soil  is  made  better,  yet  he  shall  be  punish- 
able, because  he  has  transgressed."  Maleverer  v.  iSpiuke  (1538)  1  Dyer,  ooh, 
36b,  73  Reprint,  79,  81. 


112  TORTS  THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

SMITH  V.  SMITH. 
-(Supreme  Judicial  Court  of  Massachusetts,  1872,    110  Mass.  302.) 

Tort.  The  declaration  alleged  that  the  defendant  built  a  part  of  a 
barn  upon  the  plaintiff's  close,  and  thereby  expelled  and  put  out  the 
plaintiff  from  possession  and  occupation  of  a  part  of  the  close,  and 
kept  and  continued  him  so  kept  out  and  expelled  from  said  part  of  the 
close.  Verdict  for  the  defendant.  The  following  bill  of  exceptions 
was  allowed :  The  plaintiff  offered  to  prove  that  the  eaves  of  the  barn, 
alleged  to  have  been  built  and  erected  upon  the  plaintiff's  close  by  the 
defendant,  extended  over  on  to  the  close  from  fifteen  to  eighteen  inch- 
es, but  the  judge  excluded  the  evidence. 

Morton,  j.  *  *  *  "\Ve  think  it  was  competent  for  the  plain- 
tiff to  prove"  that  the  eaves  of  the  defendant's  barn  projected  over  the 
plaintiff's  close.  Projecting  his  eaves  over  the  plaintiff's  land  is  a 
wrongful  act  on  the  part  of  the  defendant  which,  if  continued  for 
twenty  years,  might  give  him  a  title  to  the  land  by  adverse  occupation. 
It  is  a  wrongful  occupation  of  the  plaintiff's  land,  for  which  he  may 
maintain  an  action  of  trespass.  Codman  v.  Evans,  7  Allen,  431.  Car- 
brey  v.  Willis,  7  Allen,  364,  83  Am.  Dec.  688. 

Exceptions  sustained.''" 

6  0  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point. 

As  to  trespass  on  superjacent  space,  see  Butler  v.  Frontier  Telephone  Co. 
(1900)  ISO  N.  Y.  486,  491,  79  X.  E.  710,  116  Am.  St.  Rep.  563,  11  L.  R.  A.  (N. 
S.)  920,  9  Ann.  Cas.  858:  D.  had  strung  a  telephone  wire  across  P.'s  lot,  alout 
30  feet  above  the  surface.  The  wire  reaches  the  entire  width  of  the  lot,  but 
does  not  touch  the  soil  or  any  building  on  the  lot.  P.  brings  ejectment.  In 
this  case  Yann,  J.,  remarks:  "What  is  'real  property'?  What  does  the  term 
include  so  far  as  the  action  of  ejectment  is  concerned?  The  answer  to  these 
questions  is  found  in  the  ancient  principle  of  law:  Cujus  est  solum,  ejus  est 
usque  ad  ccclum  et  ad  inferos.  The  surface  of  the  ground  is  a  guide,  but  not 
the  full  measure,  for  within  reasonable  limitations  land  includes  not  only  the 
surface  but  also  the  space  above  and  the  part  beneath.  Co,  Litt.  4a ;  2  Black- 
stone's  Comm.  IS;  3  Kent's  Com.  (14th  Ed.)  401.  'Usque  ad  coelum'  is  the 
upper  boundary,  and  while  this  may  not  be  taken  too  literally,  there  is  no 
limitation  within  the  bounds  of  any  structure  yet  erected  by  man.  So  far  as 
the  case  before  us  is  concerned,  the  plaintiff  as  the  owner  of  the  soil  owned 
upward  to  an  indefinite  extent.  He  owned  the  space  occupied  by  the  wire  and 
had  the  right  to  the  exclusive  possession  of  that  space  which  was  not  per- 
sonal property,  but  a  part  of  his  land.  According  to  fundamental  principles 
and  within  the  limit;ition  mentioned  space  above  land  is  real  estate  the  same 
as  the  land  itself.  The  law  regards  the  empty  space  as  if  it  were  a  solid, 
inseparable  from  the  soil,  and  protects  it  from  hostile  occupation  accordingly." 

Compare: 

Ilannabalson  v.  Sessions  (190!i)  116  Iowa,  457,  90  N.  W.  93,  93  Am.  St.  Rep. 
250:  n.  and  S.  lived  upon  adjoining  lots.  Upon  the  boundary  between  the 
lots  there  was  a  tight  board  fence.  Between  the  families  there  was  a  frequent 
war  of  words.  H.  was  leaning  against  the  fence,  on  her  own  side,  with  her 
arm  extended  over  the  top,  on  the  other  side.  S.  claims  that  this  is  a  tres- 
pass upon  his  real  estate.     See  infra,  under  "Defenses." 

Whittaker  v.  Stangvick  (1!)07)  100  Miim.  3S0,  111  N.  W.  295,  117  Am.  St. 
Rep.  703,  10  L.  R.  A.  (N.  S.)  921,  10  Ann.  Cas.  528:  P.  owned  a  narrow  duck 
pass  between  two  navigable  lakes;    D.  was  about  to  erect  blinds  in  front  of 


Ch.  1)  TRESPASSES  113 

COSTIGAN  V.  PENNSYLVANIA  R.  CO. 

(Supreme  Court  of  New  Jersey,  1892.    54  N.  J.  Law,  233,  23  Atl.  810.) 

Action  by  Costigan  against  the  Pennsylvania  Railroad  Company  to 
recover  damages  for  an  injury  to  the  plaintiff's  premises.  Case  cer- 
tified to  the  Supreme  Court  for  advice. 

Depue,  J.  The  plaintiffs  are  owners  of  a  lot  of  land  on  which  were 
erected  two  dwelling-houses.  The  premises  are  situated  near  to  a 
strip  of  land  on  which  the  defendants  are  engaged  in  constructing 
a  railroad.    The  declaration  charges  that : 

"The  defendants,  wrongfully  and  injuriously  intending,  etc.,  on  divers  days 
and  times,  etc.,  dumped  and  filled  into  and  upon  the  natural  surface  of  cer- 
tain lands  near  to  plaintiff's  said  lot  and  dwelling-houses  a  vast  quantity,  to 
wit,  two  hundred  thousand  tons  of  earth,  gravel,  stones  and  other  filling, 
and  raised  and  banked  upon  said  lands  embankments  of  great  height,  to  wit, 
of  the  height  of  thirty  feet,  and  thereby  forced  and  pressed  large  quantities, 
of  the  said  earth,  gravel,  stones  and  other  filling  into  and  upon  the  said  lot 
of  plaintiffs'  beneath  the  surface  of  the  same,  and  thereby  upheaved  and 
greatly  disturbed  the  surface  and  soil  of  said  lot,  and  forced  and  carried  the 
said  dwelling-houses  to  the  northward  and  eastward  of  their  proper  position 
upon  said  lot.  and  to  and  upon  the  lauds  of  others,  and  thereby  caused  the 
foundation  of  said  dwelling-houses  to  fall  away,  crack  and  crumble,  and  the 
Vi-alls  of  said  houses  to  become  broken,  shattered  and  defaced,  and  to  topple 
and  lean  over,"  etc. 

The  defendants,  by  a  special  plea,  justify  as  lessees  of  the  New- 
Jersey  Junction  Railroad  Company,  a  corporation  of  this  state  or- 
ganized under  the  General  Railroad  law,  and  authorized  to  lay  out, 
construct,  maintain  and  operate  a  railroad  between  certain  designated 
points.     *     *     * 

The  cause  of  action  set  out  in  the  declaration  is  a  trespass  upon  the 
plaintiffs'  lands.  The  allegation  that  the  acts  of  the  defendants  were 
wrongfully  and  injuriously  done  is  a  sufficient  averment  to  sustain 

the  pass,  and  about  300  feet  away,  with  the  intention  of  shooting  ducks  flying 
over  the  pass.    In  so  doing  D.  would  shoot  across  P.'s  land. 

See,  also,  the  provision  of  the  German  Civil  Code  (taking  effect  in  1000)  § 
905:  "The  right  of  the  owner  of  a  piece  of  land  extends  to  the  space  above  the 
surface  and  to  the  substance  of  the  earth  beneath  the  surface.  The  owner 
may  not,  however,  forbid  interference  which  takes  place  at  such  a  height  or 
depth  that  he  has  no  interest  in  its  prevention."     (Wang's  trans.) 

And  compare  25  Harv.  Law  Rev.  486  (1912):  "The  landowner  cannot  safely 
rely  on  the  old  maxim,  'Cujus  est  solum,  ejus  est  usque  ad  coelum,'  as  furnish- 
ing a  satisfactory  ratio  decidendi.  That  maxim,  taken  in  its  literal  and  un- 
qualified sense,  is  not  likely  to  be  recognized  at  the  present  time  as  a  com- 
plete statement  of  the  law.  Two  theories  are  prominent:  One,  that  the  air 
space  above  the  earth  belongs  to  the  public ;  the  other,  that  it  belongs  to  the 
landowner.  But  each  theory  is  subject  to  provisos  and  limitations  which,  in 
the  great  majority  of  cases,  would  bring  the  same  result,  whichever  theory 
is  adopted.  The  public  right,  under  the  first  theory,  is  subject  to  be  exercised 
with  due  regard  to  the  interests  of  the  landowner.  On  the  other  hand,  the 
ownership  of  the  landowner  under  the  second  theory,  is  burdened  by  a  right 
of  passage  for  the  public."    And  see  38  Cyc.  49S,  note  83. 

Hepb.Torts — 8 


114  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

the  declaration.     The  merits  of  this  controversy  arise  upon  the  con- 
sideration of  the  pleas  filed  by  way  of  justification.     *     *     * 

On  both  pleas  the  plaintiffs  are  entitled  to  judgment.     The  Circuit 
Court  is  advised  accordingly.®^ 


(B)  hi  Trespass  to  Personal  Property 

MARENTLLLE  v.  OLIVER. 
(Supreme  Court  of  New  Jersey,  ISOS.     1  Peuu.  [2  N.  J.  Law]  379.) 

Trespass.  The  charge  was  that  the  defendant  unlawfully,  forcibly, 
and  with  great  violence,  with  a  large  stick,  struck  the  horse  of  the 
plaintiff,  on  a  public  highway,  which  said  horse  was  then  before  a 
carriage,  in  which  the  plaintiff  was  riding,  on  the  said  public  highway, 
to  the  damage  of  the  plaintiff,  $50.  Verdict  and  judgment  for  the 
plaintiff'  with  $15  damages. 

Pennington,  J.  *  *  *  To  attack  and  strike  with  a  club,  with 
violence,  the  horse  before  a  carriage,  in  which  a  person  is  riding, 
strikes  me  as  an  assault  on  the  person ;  and  if  so,  the  justice  had  no 
jurisdiction  of  the  action.  But  if  this  is  to  be  considered  as  trespass 
on  property,  unconnected  with  an  assault  on  the  person,  I  think  it 
was  incumbent  on  the  plaintiff  below,  to  state  an  injury  done  to  the 
horse,  whereby  the  plaintiff  suff'ered  damage ;  that  he  was,  in  conse- 
quence of  the  blow,  bruised  or  wounded,  and  unable  to  perform  serv- 
ice; or  that  the  plaintiff"  had  been  put  to  expense  in  curing  him,  or 
the  like.  All  the  precedents  of  declarations  for  injuries  done  to  do- 
mestic animals,  as  far  as  my  recollection  goes,  are  in  that  way ;  and 
I  think  with  good  reason.  Suppose  a  man,  seeing  a  stranger's  horse 
in  the  street,  was  to  strike  him  with  a  whip,  or  large  stick,  if  you 

61  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point. 

For  instances  of  trespass  on  subjacent  space,  see  Comyu  v.  Kyneto  (1604) 
Cro.  .Jae.  ino,  79  Reprint,  131,  where  it  was  objected  in  vain  that  "an  eject- 
ment lies  not  of  a  coal  mine  becaiise  it  is  quoadam  proficuum  subtus  solum, 
and  an  habere  facias  possessionem  cannot  be  thereof." 

See.  also.  Golden  Reward  Mining  Co.  v.  Buxton  Mining  Co.  (1S99)  97  Fed. 
413,  38  C.  C.  A.  228  (P.  and  D.  were  owners  of  adjoining  mining  claims  in 
South  Dakota.  D.  ran  tunnels  from  his  property  into  I'.'s  projiorty.  and  ex- 
tracted a  large  amount  of  ore.  This  was  discovered  four  years  later,  when 
D.'s  excavations  caused  the  superimposed  earth  to  settle,  making  depressions 
on  the  surface.  P.  thereupon  sued  for  trespass  upon  his  real  property) ; 
Chartiers  Block  Coal  Co.  v.  Mellon  (1893)  152  Pa.  286,  25  Atl.  597,  598,  18  L. 
R.  A.  702,  34  Am.  St.  Rep.  015;   and  the  remarks  of  Paxson,  O.  J.,  ibid. 

As  to  the  time  when  the  cause  of  action  for  such  hidden  trespasses  accrues, 
see  Lewey  v.  Frick  Coke  Co.  (1895)  166  Pa.  536,  31  Atl.  261,  28  L.  R.  A.  283, 
45  Am.  St.  Rep.  681  (the  statute  of  limitations  against  the  owner  in  favor 
of  taking  coal  from  beneath  the  surface  begins  to  run  from  the  time  of  the 
actual  di.scovery  of  the  trespa.ss,  or  the  time  when  the  discovery  was  reason- 
ably po.ssible) ;    and  9  llarv.  Law  Rev.  147. 


Ch.  1)  TRESPASSES  115 

please,  and  no  injury  was  to  ensue,  could  the  owner  of  the  horse  main- 
tain an  action  for  this  act?  I  apprehend  not.  For  these  reasons,  I 
incline  to  think  that  this  judgment  ought  to  be  reversed,®^ 

KiRKPATRiCK,  C.  J.,  concurred  in  the  reversal. 

Judgment  reversed. 

6  2  Part  of  the  opinion  is  omitted. 

Compare  Slater  v.  Swann  (1729)  Stra.  872:  Action  upon  the  case,  for  that 
the  plaintiff  was  possessed  of  a  horse  and  cart,  and  the  defendant  so  vio- 
lently beat  the  horse,  that  the  plaintiff  was  deprived  of  the  use  of  his  horse 
and  cart  for  several  days.  The  Chief  Justice  (Lord  Raymond)  said:  "This 
differed  from  trespass  vi  et  armis  for  assaulting  a  man,  where  the  assault  is 
a  cause  of  action ;  but  here  the  assault  on  the  horse  is  no  cause  of  action, 
unless  accompanied  with  a  special  damage." 

In  Marlow  v.  Weekes  (1744)  Barnes'  Notes,  452,  which  was  an  action  of 
trespass  for  beating  the  plaintiffs  mare,  the  court  remarked:  "Assault  upon 
a  ship  (a  dead  thing)  bad ;  but  for  an  iniury  to  a  beast  a  writ  in  trespass  vi 
et  armis  appears  in  the  Register."  But  see  Professor  Ames'  comment  on  this: 
"There  seems  to  be  no  such  writ  in  the  Register.  Trespass  for  the  asporta- 
tion or  the  destruction  of  a  chattel  are  the  only  writs  for  trespass  affecting 
personal  property.  Other  injuries  to  chattels  were  doubtless  deemed  of  too 
trivial  a  nature  to  warrant  a  proceeding  in  the  King's  Court,  and  were  re- 
dressed in  the  inferior  Courts."  Ames'  Cases  on  Torts,  vol.  1,  p.  61,  3d  Ed. 
And  see  Pollock  on  Torts  (7th  Ed.)  o42:  "Authority,  so  far  as  known  to  the 
present  writer,  does  not  clearly  show  whether  it  is  in  strictness  a  trespass 
merely  to  lay  hands  on  another's  chattel  without  either  dispossession  or  ac- 
tual damage.  By  the  analogy  of  trespass  to  land  it  seems  that  it  must  be 
so.    There  is  no  doubt  that  the  least  actual  damage  would  be  enough." 

Salmond.  Law  of  Torts  (2d  Ed.)  340:  "It  is  probable  that  a  trespass  to  chat- 
tels is  actionable  per  se  without  any  proof  of  actionable  damage.  This,  in- 
deed, seems  never  to  have  been  decided,  but  it  is  clearly  so  in  the  case  of 
trespass  to  land  and  to  the  person,  and  there  is  no  reason  why  it  should  be 
otherwise  in  the  case  of  goods.  If  this  is  so,  any  unauthorized  touching  or 
moving  of  a  chattel  is  actionable  at  the  suit  of  the  possessor  of  it,  even  though 
no  harm  ensues.  It  may  be  necessary  for  the  protection  of  certain  kinds  of 
property  that  this  should  be  the  law," 

In  Paul  V.  Slason  (1S50)  22  Vt.  281,  54  Am.  Dec.  75,  D.,  a  sheriff,  who  had 
attached  hay  belonging  to  P.,  used  P.'s  pitchfork,  without  his  consent,  in  re- 
moving the  hay.  P.  sued  in  trespass.  The  court  charged  the  jury  that  if 
they  believed  from  the  evidence  that  the  defendant  took  and  carried  away  the 
pitchfork,  they  should  give  the  plaintiff  its  value ;  that  if  it  was  used  and 
left  on  the  premises,  so  that  the  defendant  received  it  again,  and  it  was  dam- 
aged by  this  use,  the  plaintiff'  would  be  entitled  to  recover  the  amount  of 
such  damage ;  but  that  if  the  pitchfork  was  merely  used  in  removing  the 
piaintift"s  property  there  attached,  and  was  left  where  it  was  found,  so  that 
the  plaintiff"  had  it  again,  and  the  pitchfork  was  not  damaged  by  this  use,  they 
were  not  bound  to  give  the  plaintiff  damages.  A  judgment  on  a  vei'dict  for 
the  defendant  was  sustained  by  the  Supreme  Court,  but  on  the  principle  of 
de  minimis  non  curat  lex.     But  see  Fullam  v.  Stearns  (1897)  30  Vt.  443,  456. 

See  the  remarks  of  Wilson,  J.,  in  Graves  v.  Severeus  (18GS)  40  Vt.  636.  640: 
"It  is  true  that  for  an  unlawful  entry  upon  the  real  property,  or  disturbance 
of  incorporeal  rights,  when  the  unlawful  act  might  have  an  effect  upon  the 
rights  of  the  party  and  be  evidence  in  favor  of  the  wrong  door,  if  his  right 
ever  came  in  question,  an  action  may  be  supported,  though  there  be  no  actual 
damage  done.  And  where  anyone  wantonly  invades  another's  rights  for  the 
purpose  of  injury,  an  action  will  lie,  though  no  actual  damage  be  done.  But 
It  would  seem  to  be  settled  that  an  action  for  a  trespass  to  personal  property 
will  not  lie,  when  no  unlawful  intent,  or  disturbance  of  a  right  or  possession, 
is  shown,  and  when  no  actual  damage  has  been  done,  but  all  damage  is  ex- 
pressly disproved,  unless  there  be  some  right  in  question,  which  it  is  important 
to  the  plaintiff  to  establish.  Paul  v.  Slas«m  (1850)  22  Vt.  231,  54  Am,  Dec.  75: 
Fairbanks  v.  Kittredge,  24  Vt.  9;    Sedgwick  on  Dam,  62." 


IIG  TORTS  THROUGH  ACTS  OP  ABSOLUTE   LIABILITY  (Part  1 

WINTRINGHAM  v.  LAFOY. 
(Supreme  Court  of  New  York,  1S27.    7  Cow.  735.) 

On  error  from  the  C.  P.  of  the  City  and  County  of  N.  Y.  The 
action  in  the  court  below  was  trespass  de  bonis  asportatis  by  Lafoy 
against  Wintringham.  It  appeared  on  the  trial  that  Wintringham 
was  a  constable,  who  held  a  fi.  fa.  issued  by  the  Marine  Court  of  the 
city,  against  the  goods  and  chattels  of  one  Gallis ;  and  that,  Jan.  19. 
1826,  he  levied  on  the  articles  in  question,  consisting  of  jewelry  in 
the  store  occupied  by  Gallis,  who  was  present  at  the  levy.  That  Gal- 
lis informed  the  defendant  below  that  the  goods  had  been  assigned  by 
him  (Gallis),  and  the  defendant  below  said  he  was  indemnified.  That 
Gallis  placed  the  articles  on  the  glass  case,  so  that  the  defendant  be- 
low might  look  at  them  to  ascertain  their  value.  That  the  defendant 
below  made  an  inventory,  and  said  he  would  remove  the  goods,  un- 
less security  was  given  that  they  would  be  forthcoming,  to  answer  the 
execution.  That  security  was,  therefore,  given,  and  the  articles  were 
left  in  the  store.  It  further  appeared  that,  Dec.  21,  1825,  Gallis  had 
executed  an  assignment  of  all  his  property  to  the  plaintiff  below,  La- 
foy, for  the  purpose,  first,  of  paying  law  expenses,  then  the  debt  of 
the  plaintiff  below,  then  certain  other  creditors  named,  and  then  the 
rest  of  his  creditors.     *     *     * 

Savage;,  C.  J.  It  is  not  denied  that  a  debtor  in  failing  circum- 
stances may  prefer  one  of  his  creditors,  or  one  set  of  creditors  to 
another ;  nor  is  it  pretended  that  any  fraud  in  fact  was  proved  in  the 
court  below.  Indeed  this  was  negatived  by  the  proof  and  verdict  of 
the  jury.     *     =f=     * 

W^as  there  any  evidence  of  a  trespass?  If  a  sheriff  takes  the 
goods  of  a  stranger,  he  is  liable  in  this  action.  It  is  contended,  how- 
ever, that  admitting  the  goods  to  belong  to  the  plaintiff,  the  defendant 
did  no  tortious  act.  Every  unlawful  interference,  by  one  person  with 
the  property  or  person  of  another,  is  a  trespass.  The  defendant  in 
the  court  below  undertook  to  control  the  property  levied  on.  He  took 
it  into  his  possession,  though  there  was  no  manual  seizing  of  it.  He 
was  about  to  take  it  away,  and  would  have  done  so,  but  for  the  se- 
curity given  him  that  it  should  be  forthcoming  upon  the  execution. 
He  exercised  dominion  over  it.  This  was  enough  to  constitute  him  a 
trespasser,  he  having  no  authority.  Trover  lies  against  a  defendant 
who  undertakes  to  control  property  in  defiance  or  exclusion  of  the 
owner.  Reynolds  v.  Shulcr,  5  Cow.  325,  326,  and  cases  cited.  The 
same  doctrine  is  applicable  in  trespass,  as  in  trover,  where  the  con- 
version is  the  tortious  intermeddling  with  the  goods  of  another. *^^ 

The  judgment  must  be  affirmed. 

63  The  statement  of  facts  is  abriduerl  and  part  of  the  opinion  Is  omitted. 

See  remarks  of  Dewey,  J.,  in  Miller  v.  Baker  (1840)  1  Mete.  (Mass.)  ill,  liO: 

"A  forcible  taking  of  goods  is  not  necessary  to  enable  the  owner  to  maintain 


Ch.  1)  TRESPASSES  117 

HARTLEY  v.  MOXHAM. 

<Court  of  Queen's  Bcncb.  1842.     3  Q.  B.  701,  114  Reprint,  675,  61  R.  R.  359.) 

Trespass  for  seizing,  taking,  carrying  away  and  converting  arti- 
cles, goods  and  chattels  of  the  plaintiff.  Plea,  not  guilty.  On  the 
trial,  before  Cresswell,  J.,  the  following  facts  appeared :  The  plain- 
tiff had  lodged  in  the  house  of  the  defendant.  In  September,  1841, 
plaintiff"  was  packing  up  some  goods  for  the  purpose  of  taking  them 
to  Gloucester  for  sale,  when  defendant  said  that  nothing  should  be 
removed  till  plaintiff  had  paid  defendant  his  bill.  A  dispute  arose; 
and  the  bill  was  not  paid.  Plaintiff  put  the  goods  under  the  charge 
of  his  own  servant,  in  his  bedroom :  and  defendant  then  locked 
them  up  in  that  room,  kept  the  key,  and  detained  the  goods  till 
plaintiff'  was  prevented  from  going  on  his  intended  journey.  It  was 
objected  that  trespass  would  not  lie,  inasmuch  as  no  act  of  taking 
appeared,  but,  at  most,  only  a  wrongful  detention,  the  defendant 
never  having  touched  the  goods  ;  and  Cresswell,  J.,  being  of  opinion 
that  no  taking  was  proved  which  would  support  an  action  of  tres- 
pass, directed  a  nonsuit. 

Erie  now  moved  for  a  new  trial,  contending,  that  if  the  goods 
were  not  in  a  literal  sense  taken  away,  they  were  separated  from  the 
owner  by  locking  the  door  upon  them.*'* 

Lord  Denman,  C.  J.  There  is  no  ground  for  this  motion.  Cases 
like  the  present  must  often  have  occurred ;  yet  there  is  no  authority 
for  an  action  of  trespass  under  the  circumstances.  The  case  diff'ers 
from  that  of  a  distress,  where  the  landlord  asserts  that  he  takes  the 
goods,  and  thereby  acquires  an  authority  and  power  and  control 
over  them.  And,  even  in  such  a  case  of  taking,  it  has  never  been 
held  that  trespass  would  lie  if  the  act  was  wrongful. 

Rule  refused. 

trespass.  On  a  similar  question,  in  Gibbs  v.  Ghase,  10  Mass.  128,  Sewall,  J., 
says:  'No  actual  force  is  necessary  to  be  proved.  He  who  interferes  with  my 
goods,  and  without  delivery  by  me,  and  without  my  consent,  undertakes  to 
dispose  of  them  as  having  the  property,  general  or  special,  does  it  at  his 
peril  to  answer  me  the  value  in  trespass  or  trover.'  It  is  sufficient  to  maintain 
trespass,  if  the  party  exercises  an  authority  over  the  goods  against  the  will 
and  to  the  exclusion  of  the  owner  by  an  unlawful  intermeddling,  though  there 
be  no  manual  taking  or  removal.  Wintrincham  v.  Lafoy,  7  Cow.  (N.  Y.) 
735;  Phillips  v.  Hall,  8  Wend.  (X.  Y.)  610,  24  Am.  Dec.  108.  In  the  present 
case  there  was  not  only  an  attachment  of  the  property,  but  the  placing  of  a 
keeper  over  it  with  directions  to  permit  no  one  to  remove  the  same,  and 
an  entry  and  exclusive  possession  by  the  keeper.  It  seems,  therefore,  that 
as  to  so  much  of  the  property  in  controversy  as  is  conceded  to  be  personal 
chattels,  the  case  is  clearly  with  the  plaintiff." 

6*  The  statement  of  the  case  is  slightly  abridged,  and  a  pica  in  justification, 
on  which,  as  it  turned  out,  nothing  depended,  that  the  defendant  was  an 
innkeeper,  is  omitted.  Williams,  Coleridge,  and  Wright,  JJ.,  concurred  with 
the  Chief  Justice. 


118  TORTS   THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

BROOKS  V.  OLMSTEAD. 
(Supreme  Court  of  Pennsylvania,  1851.     17  Pa.  24.) 

This  was  an  action  of  trespass  brought  by  Henry  Olmstead 
against  Brooks  and  Tozer,  before  a  justice  of  the  peace,  and  brought 
into  court  by  an  appeal  from  the  judgment  of  the  justice.  The 
plaintiff  filed  a  special  declaration  in  the  court  below  for  taking  and 
driving  away  a  heifer,  the  property  of  the  plaintiff,  to  which  the  de- 
fendants pleaded  not  guilty.  On  the  trial,  the  defendants  admitted 
that  the  heifer  was  found  in  their  possession,  but  denied  their  liabil- 
ity as  trespassers,  alleging  that  the  heifer  was  put  into  their  posses- 
sion without  their  knowledge  or  assent,  and  so  continued  in  their 
possession,  without  their  knowledge,  till  found  by  the  defendants  in 
error,  when  they  purchased  the  heifer  and  paid  for  her,  which  was 
the  material  question  in  the  cause. 

Coulter,  J.  It  is,  no  doubt,  true  that  one  who  comes  to  the  pos- 
session of  goods  by  delivery,  and  who  has  been  guilty  of  no  fault  on 
his  part,  although  it  may  turn  out  that  the  person  who  made  the 
delivery  to  him  had  no  title  himself  and  was  a  wrongdoer,  yet  the 
receiver,  guilty  of  no  fault,  cannot  be  treated  as  a  trespasser.  For, 
in  such  case,  he  has  done  no  act  which  aided  in  depriving  the  true 
owner  of  his  property.  He,  nevertheless,  holds  the  property  for  the 
true  owner,  who  may  recover  in  trover,  if  the  recipient  of  the  prop- 
erty has  converted  it  to  his  own  use ;  or  he  is  liable  in  replevin.  So 
it  may  be  stated,  safely,  that  he  who  buys  property  from  a  trespass- 
er, without  any  knowledge  whatever  of  the  original  trespass,  cannot 
be  treated  as  a  trespasser  himself;  because  he  has  been  guilty  of 
no  fault,  or  assisted  in  any  way  in  depriving  the  true  owner  of  his 
property.  And  this  is  the  general  import  of  the  cases  cited  from  the 
New  York  books  of  reports.  The  law  is  correctly  enough  expound- 
ed in  these  books,  and  accurately  stated.  Indeed,  the  court  .below, 
in  this  case,  seems  fully  to  acknowledge  this  principle. 

But,  before  testing  the  accuracy  of  the  opinion  of  the  court  below, 
we  must  look  at  the  exact  case  which  was  before  them.  Two  drovers, 
Brooks  and  Tozer,  purchased  a  drove  in  Bradford  county,  and  had 
them  collected,  as  is  customary,  by  their  agents,  at  the  field  of  one 
Watkins.  Among  the  cattle  driven  into  that  field  was  the  heifer  or 
cow  about  which  this  dispute  originated,  which  heifer  the  defendants 
never  did  purchase,  nor  had  they  paid  anything  for  it,  either  by  them- 
selves or  their  agents.  Before  they  drove  off  the  cattle  from  Wat- 
kins'  field,  it  appears  distinctly  from  the  testimony  of  one  of  their 
agents,  that  they  knew  there  was  one  beast  more  than  their  number, 
or  than  they  had  purchased.  One  of  the  witnesses,  however,  Ben- 
jamin Sawyer,  testifies,  that  four  days  before  the  cattle  were  driven 
off,  Brooks  and  Tozer  called  on  him,  and  he  stated  to  them  that  he 


Ch.  1)  TRESPASSES  119 

knew  Olmstead's  heifer,  and  pointed  her  out;    they  then  asked  him 
if  he  thought  Ohnstead  would  sell  her. 

The  counsel  for  the  defendant  requested  the  court  to  charge  the 
jury,  that  "if  the  heifer  in  question  came  into  possession  of  the  de- 
fendants by  the  act  of  their  servant,  without  their  knowledge  or  as- 
sent, and  continued  in  their  drove  without  their  knowing  that  the 
heifer  was  among  their  cattle,  trespass  would  not  lie."  The  court  an- 
swers that : 

"Although  the  taking  of  the  heifer  by  Charles  Brooks,  their  agent,  and  his 
driving  her  to  Watkins',  and  there  putting  her  into  their  drove  of  cattle,  if 
without  their  knowledge,  would  not  make  them  trespassers;  yet  if  they  took 
possession  of  the  heifer  with  their  other  cattle,  and  drove  her  away  from  Wat- 
kins'  in  Athens,  to  Sullivan  county,  where  they  were  overtaken  by  plaintiff, 
they  might  be  treated  as  trespassers,  and  their  want  of  knowledge  that  the 
heifer  was  brought  into  their  drove  would  not  bar  the  plaintiff's  right  to  re- 
cover in  this  case." 

This  answer  is  a  little  indistinct;  but  substantially,  it  answers  the 
point  of  the  defendants  quite  as  favorably  as  the  law  allowed.  For 
it  was  the  duty  of  the  defendants,  before  they  became  the  actors  in 
depriving  the  plaintiff  of  his  property,  by  driving  it  far  away,  to  take 
the  usual  and  proper  precautions  to  ascertain  whether  they  had  more 
than  their  own.  I  believe  it  is  the  universal  custom  of  drovers  be- 
fore they  start  off  with  the  drove,  to  count  their  cattle — a  custom  dic- 
tated by  their  own  interest,  in  order  that  they  may  know  whether  they 
have  all  they  purchased;  as  well  as  by  a  due  regard  to  the  interest 
of  others,  in  order  that  they  may  know  that  they  do  not  take  awa)' 
the  property  of  other  people. 

Were  the  defendants  then  not  in  fault?  Surely  they  were.  For 
it  will  not-  do  to  allow  any  person  the  privilege  of  alleging  his  own 
recklessness,  carelessness,  or  negligence,  as  an  excuse  for  depriving 
another  man  of  his  property  or  rights.  A  man  may  be  guilty  of 
a  high  crime,  if  he  rashly  and  recklessly,  without  proper  precaution, 
does  an  act  which  injures  another,  although  he  does  not  intend  to 
commit  the  crime  or  actually  knows  that  he  is  doing  so.  Com.  v. 
Cornish,  6  Bin.  249.  A  fortiori  he  may  be  guilty  of  a  trespass.  If 
the  law  were  held  otherwise,  farmers  and  people  in  villages  where 
cattle  are  allowed  to  run  at  large,  would  be  exposed  to  great  trouble 
and  expense  in  regaining  their  cattle,  driven  off  by  the  agents  or 
servants  of  drovers.  Because  in  the  action  of  trover,  if  they  were 
driven  to  that,  the  measure  of  damages  would  be  the  value  of  the 
goods  and  chattels  at  the  time  of  the  demand  with  interest,  which 
would  be  no  compensation  for  the  loss  of  time,  the  expense  and  trou- 
ble in  pursuing  cattle  to  u  great  distance.  When  the  plaintiff'  fol- 
lowed the  defendants,  in  pursuit  of  his  property,  into  Sullivan  county, 
the  defendants,  when  overtaken,  admitted  the  right  of  property  in  the 
heifer  to  be  in  plaintiff,  and  offered  to  buy  her.  The  plaintiff"  finally 
agreed  to  take  $15  for  the  heifer,  but  they  could  not  agree  as  to  the 
amount  of  damages  for  expenses  and  trouble  in  following  after  the 


120  TORTS   THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

heifer,  and  at  last  it  was  agreed  that  that  sum  should  be  settled  when 
the  drovers  returned  from  the  sale  of  their  drove.  It  does  not  ap- 
pear that  the  defendants,  after  their  return,  made  any  attempt  to 
settle  or  pay  the  damages,  and  the  plaintiff  brought  this  action  of  tres- 
pass. 

The  counsel  for  the  defendants  submitted  a  second  point  to  the 
court  as  follows :  "That  Olmstead,  having  sold  the  heifer  to  the 
defendants,  and  assented  to  settle  the  damages  with  the  defendants 
after  their  return  home,  could  not  maintain  this  action  of  trespass." 
The  counsel  for  plaintiffs  in  error  contends  that  the  court  did  not 
answer  this  point.  It  is  true  they  did  not  answer  it  separately  and 
distinctly;  but  it  was  substantially  answered  by  the  instruction  ta 
the  jury,  that  the  defendants  below  might  be  treated  as  trespassers,, 
and  that  the  action  would  lie.  The  point,  however,  wants  substance, 
and  if  answered  directly  against  the  plaintiff  there  would  not  have 
been  error.  Taking  pay  for  the  heifer  and  expressly  reserving  the 
question  of  damages,  left  the  matter  open,  and  did  not  purge  or  wipe 
away  the  action  of  trespass.  The  wrong  was  not  atoned  for  or  sat- 
isfied; and  the  original  action  remained  as  well  by  the  understanding 
of  the  parties,  as  by  operation  of  law, 

I  do  not  well  see  what  other  action  would  lie  for  the  enforcement 
of  these  damages  under  the  circumstances. 

We  are  of  the  opinion  that  the  action  of  trespass  was  maintainable. 

Judgment  affirmed. 


WEBBE  V.  LEEK. 

(Court  of  Common  Pleas,  13SS.     Y.  B.  12  Rich.  II.,  Trinity  Term.) 

Trespass  brought  by  one  man  against  another,  and  counted  by  Rik- 
hill  that  by  force  and  arms  he  broke  the  house  of  the  plaintiff  in  a 
certain  vill  and  took  and  carried  away  a  servant  of  his  found  there 
ready,  etc. 

W'adham.  As  to  all  but  the  servant,  not  guilty ;  and  as  to  the 
servant  we  say  that  on  the  same  day  of  the  trespass  that  he  has  com- 
plained of,  we  came  to  the  said  vill  and  we  say  that  this  which  he 
has  said  was  his  servant  was  only  an  infant  of  the  age  of  four  years 
and  we  found  the  infant  wandering  in  the  same  vill,  wherefore  we 
took  the  said  infant  for  charity  and  to  satisfy  his  needs  and  we  de- 
mand judgment  if  wrong  (were  done).     *     *     * 

Thirning,  J.  This  action  is  not  taken  upon  the  statute  of  laborers, 
"Quod  potens  in  corpore,  etc.,"  but  it  is  an  action  which  was  at  the 
common  law,  for  at  the  common  law  a  man  shall  have  an  action  for 
his  infant  or  his  servant  taken  out  of  his  keeping,  and  it  can  be  un- 
derstood that  although  he  was  only  of  such  an  age,  still  he  could  con- 
fer ease  and  advantage  on  his  master,  as  by  taking  care  of  a  house  and 


Ch.  1)  TRESPASSES  121 

Other  things,  and  it  is  reason  that  he  have  his  action  which  is  given 
to  him  at  the  common  law. 

Alarkham.  A  man  shall  have  a  good  writ  of  trespass  "quare  quon- 
dam puerum  suum  in  custodia  sua  existente"  whether  it  be  his  serv- 
ant or  his  infant  of  whatever  age  he  may  be,  but  not  "quare  servien- 
tem"  and  particularly  in  this  case,  because  it  cannot  be  understood 
that  an  infant  of  four  years  could  render  service  to  any  one,  etc. 

And  by  the  opinion  of  Charlton  and  Thirxixg  his  action  might 
be  maintained  at  the  common  law,  whatever  his  age.*^^ 


HYDE  v.  SCYSSOR. 

(In  the  Exchequer  Chamber,  1620.     Cro.  Jac.  538,  79  Reprint,  462.) 

Trespass;  for  that  the  defendant,  21  ^lay,  6  Jac.  1,  made  an  as- 
sault upon  Elizabeth  the  plaintiff's  wife, 

•et  illam  verberavit,  et  male  tractavit,  necnon  the  said  Elizabeth  simul  cum 
one  gown,  one  petticoat,  etc.,  of  the  goods  of  the  plaintiff,  simul  cum  the  said 
EUzabeth,  at  D.  tunc  et  ibidem  cepit,  abduxit,  et  abcai'iavit,  necnon  eandem 
Elizabetham  per  5  annos  ab  eodem  le  plaintiff  detinuit  et  custodivit,  per  quod 
le  plaintiff  solamen  et  consortium,  necnon  consilium  et  auxilium  in  rebus 
domesticis  quae  idem  le  plaintiff  habere  debuisset  et  potuisset  cum  uxore  sua 
per  totam  tempus  prsed.  perdidit  et  amisit,  et  alia  enormia,  etc. 

The  defendant  pleaded  not  guilty;  and  it  was  found  against  him, 
and  damages  assessed  to  £300.,  and  judgment  found  for  the  plain- 
tiff :  and  now  a  writ  of  error  thereof  was  brought  in  the  Exchequer 
Chamber. 

The  first  error  assigned  was,  because  the  action  was  by  the  husband 
solely  for  the  battery  of  his  wife,  which  ought  not  to  be ;  for  the 
tort  and  damages  are  properly  done  to  the  wife,  and  therefore  the 
husband  sole  without  the  wife  could  not  maintain  the  action;  and 
then  the  damages  being  entirely  given,  the  judgment  is  erroneous. 
Vide  9  Edw.  4,  pi.  52 ;  46  Edw.  3,  pi.  3 ;  22  Ass.  pi.  16. 

But  all  the  Justices  and  Barons  held,  that  true  it  is  the  husband,  for 
the  battery  of  his  wife,  ought  to  join  his  wife  with  him  in  the  action, 
if  this  had  been  brought  for  that  cause ;  but  here  the  action  is  not 
brought  for  the  battery  of  his  wife,  but  for  the  loss  and  damage  of 

6  5  Part  of  the  case  is  omitted. 

The  translation  is  from  Mr.  George  F.  Deiser's  edition  of  the  Year  Book  of 
12  Ricliard  II.,  for  the  Ames  Foundation. 

Compare  Scidmore  v.  Smith  (1816)  1-3  Johns.  (N.  Y.)  322:  "Smith  brought 
an  action  of  trespass  to  recover  damages  for  seducing  and  harboring  his  man- 
servant. It  was  objected  that  the  action  should  have  been  debt,  under  the 
15th  section  of  the  'Act  Concerning  Slaves  and  Servants'  (2  Rev.  Laws  ISi;;, 
p.  206) ;  but  the  exception  was  ovei-ruled,  and  judgment  was  given  for  the 
plaintiff.  Per  Curiam:  The  statute  penalty  for  harboring  slaves  or  servants 
is  cumulative,  and  does  not  destroy  the  common  law  remedy."  See  also  Fores 
v.  Wilson  (1701)  1  Peake,  77,  3  R.  R.  052:  P.  sues  for  debauching  his  maid- 
servant. Erskme,  for  the  defendant,  objected,  in  vain,  that  the  plaintiff  was 
■"no  relation  to  the  person  seduced." 


122  TORTS  THROUGH   ACTS   OP   ABSOLUTE    LIABILITY  (Part  1 

the  husband,  for  want  of  her  company  and  aid ;   and  all  is  concluded 
with  the  per  quod  consortium  amisit,  which  extends  to  all  that  was 
before;    as  where  an  action  brought  by  the  master   for  the  battery 
of  his  servant,  per  quod  servitium  amisit,  etc. 
Judgment  affirmed. 


SECTION  3.— JUSTIFICATION  OR  EXCUSE  OF  A  PRIMA 

FACIE  TRESPASS 

I.  Showing  the  Justification 


[Note:  on  the  Prima  Facie  Cause  and  the  Aesoi^ute  Cause. 
The  question.  What  are  the  essentials  of  a  cause  in  trespass? — or 
of  any  cause  in  tort  or  contract — is  apt  to  arise,  in  a  given  case,  not 
as  a  question  of  the  essentials  of  an  absolute  cause,  but  as  a  question 
of  the  prima  facie  cause.  To  a  great  extent,  the  real  difficulty  in  the 
law  of  torts  is  "to  define  the  substantial  principles  of  justification  and 
excuse."  But  of  the  defendant's  justification  or  excuse,  although  rest- 
ing on  facts  which  are  cotemporaneous  with  the  facts  set  up  by  the 
plaintiff  in  his  first  pleading,  and  well  within  his  knowledge,  the  plain- 
tift''s  first  pleading  makes  no  mention.  He  pleads  only  the  facts  of 
a  prima  facie  cause.  And  unless  the  defendant  pleads  his  justification 
or  excuse,  the  court,  answering  the  question  whether  the  facts  in  the 
case  make  a  valid  cause,  will,  as  a  rule,  pay  no  heed  to  this  outlying 
fact;  yet  its  possible  existence  often  colors  the  general  notion  of  this 
tort. 

The  defendant  can  meet  the  prima  facie  cause  presented  in  the 
plaintiff's  first  pleading — his  declaration  at  common  law,  his  complaint 
or  petition  under  the  code,  in  one  or  the  other  of  three  ways:  (1)  The 
defendant  may  demur,  and  thus  raise  the  question  whether  the  facts 
which  appear  in  the  plaintift"'s  pleading  are  sufficient  in  law  to  consti- 
tute a  good  prima  facie  cause  existing  in  his  right  against  the  defend- 
ant. (2)  The  defendant  may  traverse,  or  deny,  one  or  more  of  the 
facts  alleged  in  the  plaintift"'s  pleading,  and  thus  put  the  plaintiff'  to 
the  proof  of  the  material  facts  denied.  The  facts  not  denied  are  ad- 
mitted. (3)  The  defendant  may  plead,  or  answer,  by  confession  and 
avoidance. 

The  effect  of  a  confession  and  avoidance  is  to  admit  the  plaintiff's 
case  as  pleaded,  but  to  offer  to  avoid  its  prima  facie  eft'ect  through  the 
proof  by  the  defendant  of  the  "new  matter"  which  he  has  pleaded.  If 
the  defendant  does  not  succeed  in  this,  and  the  burden  of  proof  as  to 
the  new  facts  is  on  him,  the  plaintiff  succeeds  once  more  on  his  prima 
facie  case. 


Ch.  1)  TRESPASSES  123 

It  is  to  be  remembered  that  the  office  of  a  traverse,  or  denial,  is  not 
to  excuse  but  to  contradict,  and  thus  deline  what  the  plaintiff  must 
prove.  It  cannot  "be  made  to  do  the  work  of  a  plea  in  confession  and 
avoidance."  Regularly  "all  matters  in  confession  and  avoidance  shall 
be  pleaded  specially."  (Rules  of  Hilary  Term,  1853,  rr.  12,  17.)  It 
should  be  remembered  also  that  matter  in  confession  and  avoidance 
is  of  two  kinds.  Admitting  that  the  facts  alleged  by  the  plaintiff  make 
a  good  prima  facie  case,  the  defendant  may  destroy  their  effect  by 
showing  that  the  plaintiff  never,  at  any  time,  had  an  absolute  cause 
of  action,  because  the  defendant's  act,  when  committed,  was  justifiable 
or  excusable.  Or  the  defendant  may  admit  that  the  plaintiff  had  for 
a  time  an  absolute  cause  of  action  against  him,  but  may  show  that  it 
has  been  discharged  or  released  by  something  occurring  subsequently. 
In  the  cases  given  in  the  text,  only  the  defence  of  justification  or  ex- 
cuse is  considered. — Ed.] 


BADKIN  V.  POWELL  et  al. 
(Court  of  King's  Bench.  1776.     Covrp.  476,  9S  Eeprint.  1195.) 

Upon  shewing  cause  why  a  verdict  should  not  be  entered  in  this 
cas^  for  the  defendant  Chancellor ;  the  case  upon  the  report  of  Lord 
Mansfield,  before  whom  the  cause  was  tried,  appeared  to  be  as  fol- 
lows: 

The  plaintiff  was  a  running  dustman,  and  the  defendant  Powell,  a  publick 
scavenger.  Powell  and  King  detained  the  plaintiffs  cart  and  horses  as  they 
were  standing  in  the  street,  under  pretence  of  their  being  an  estray,  and  with- 
in the  City  of  London ;  and  carried  them  to  the  Green  Yard,  of  which  the 
defendant  Chancellor  was  the  pound-keeper ;  who  afterwards  insisted  upon 
being  paid  the  following  sums  before  he  would  deliver  them  up.  For  bringing 
them  in,  2s.,  for  crying  them,  2s.,  for  keeping  the  horses,  £2,  6s.  Sd.,  and  for 
the  care  of  the  cart  fl.  3s.,  which  the  plaintiff  accordingly  was  obliged  to 
pay:  upon  not  guilty  pleaded,  the  jury  found  a  verdict  for  the  plaintiff 
against  all  the  three  defendants. 

The  only  question  at  the  trial  was,  whether  this  action  of  trespass  could 
be  maintained  against  the  defendant  Chancellor  the  pound-keeper,  who  did 
no  other  act  than  barely  receiving  the  horses  and  cart  into  the  pound  when 
they  were  brought  there  and  keeping  them  several  days  till  redeemed.  I 
thought  he  ought  to  be  found  not  guilty ;  but  it  was  contended  he  was  a 
trespasser  by  continuing  them  in  the  pound,  being  wrongfully  impounded,  and 
the  jury  found  him,  as  well  as  the  other  defendants,  guilty. 

Mr.  Wallace  and  Mr.  Buller  shewed  cause,  and  argued,  1st.  That 
in  trespass  all  are  principals :  and  here  the  original  taking  being  tor- 
tious, the  pound-keeper,  by  refusing  to  release  the  cattle,  till  the  plain- 
tiff had  discharged  the  fees  and  all  expences,  had  adopted  the  original 
taking."^ 

Lord  Mansfikld.  This  is  an  action  of  trespass  against  three  de- 
fendants for  seizing  and  detaining  the  plaintiff's  cart  and  horses;  and 
they  have  all  pleaded  not  guilty.  The  question  reserved  is,  whether 
the  defendant  Chancellor  ought  to  be  found  guilty  or  not? 

68  The  arguments  and  Aston,  J.'s,  concurring  opinion  are  omitted. 


124  TOKTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  I 

It  has  been  argued  two  ways ;  1st,  whether  on  the  merits  of  the  case- 
he  was  a  trespasser?  2dly,  supposing  on  the  merits  of  the  case  he 
was  no  trespasser,  whether  by  pleading  the  general  issue  he  has  not 
mispleaded,  and  ought  to  have  justified? 

1st,  upon  the  merits  of  the  case:  it  was  necessary  for  the  plaintiff 
to  prove  him  guilty  of  the  trespass ;  otherwise  the  case  stands,  that 
two  persons  seized  the  cart  and  horses  and  brought  them  to  the  pound, 
of  which  Chancellor  was  the  keeper.  Chancellor  has  no  concern  in 
the  taking  or  bringing  them  there.  How  then  is  he  guilty  of  trespass? 
The  pound  is  the  custody  of  the  law :  and  the  pound-keeper  is  bound 
to  take  and  keep  whatever  is  brought  to  him,  at  the  peril  of  the  per- 
son who  brings  it.  There  is  no  judgment,  no  direction,  no  written 
warrant  or  examination  to  be  had  by  him.  When  is  the  trespass  com- 
mitted by  him?  He  does  nothing  to  ratify  it:  but  only  takes  the  cat- 
tle as  he  is  obliged  to  do,  at  the  peril  of  the  person  who  brings  them. 
If  wrongfully  taken,  they  are  answerable,  not  he.  It  would  be  ter- 
rible if  a  pound-keeper  were  liable  to  an  action  for  refusing  to  take 
cattle  in,  and  were  also  liable  in  another  action  for  not  letting  them 
go.  If  he  goes  one  jot  beyond  the  duty  and  assents  to  the  trespass, 
that  may  be  a  different  case.  But  here  he  has  done  nothing  beyond 
his  duty :  when  the  cattle  are  once  impounded,  he  cannot  let  them  go 
without  a  replevin,  or  without  the  consent  of  the  party.  Upon  their 
being  released  he  is  entitled  to  legal  fees.  If  he  is  guilty  of  extortion 
there  is  another  remedy. 

What  I  have  said  is  a  clear  answer  to  the  2d  objection,  that  he  has 
not  pleaded  specially,  as  it  has  been  contended  he  ought  to  have  done. 
No  man  is  bound  to  justify  who'  is  not  prima  facie  a  trespasser.  A 
gaoler  if  he  has  a  prisoner  in  custody  is  prima  facie  guilty  of  an  im- 
prisonment, and  therefore  must  justify.  But  here  it  comes  out  on  the 
plaintifif's  own  shewing,  that  the  pound-keeper  had  nothing  to  do  with 
the  taking.  The  law  thinks  him  so  indifferent  a  person,  that  if  the 
pound  is  broken,  the  pound-keeper  cannot  bring  an  action,  but  it 
must  be  brought  by  the  party  interested.  It  would  be  attended  with 
terrible  inconveniences,  if  he  were  answerable  for  a  wrongful  taking 
by  the  persons  who  bring  the  cattle  to  him ;  and,  therefore,  I  am  clear- 
ly of  opinion  there  ought  to  be  judgment  for  the  defendant  Chancel- 
lor in  this  case. 


BENNETT  v.  ALLCOTT. 

(Court  of  King's  Bench,  1787.    2  Term  R.  166,  100  Reprint,  90, 

31  R.  R.  667,  note.) 

Trespass  for  breaking  and  entering  the  plaintiff's  house,  debauching 
his  daughter  (describing  her  as  a  menial  servant),  and  getting  her 
with  child,  per  quod  servitium  amisit.  Plea,  not  guilty.  At  the  trial 
it  appeared,  that  the  defendant,  who  was  a  collector  of  the  land-tax, 
visited  the  plaintiff's  daughter  in  the  character  of  a  suitor,  but   at 


Ch.  1)  TRESPASSES  125 

the  time  when  his  entering  the  house  was  proved  in  order  to  support 
the  trespass,  he  went  to  demand  payment  of  the  land-tax,  when,  the 
plaintiff  being  from  home,  his  wife  invited  the  defendant  to  go  into 
the  daughter's  bed-chamber,  where  she  was  lying  upon  the  bed,  and 
left  them  together  for  several  hours.  The  jury  gave  a  verdict  for 
the  plaintiff  with  £200.  damages;  which  the  learned  judge  thought 
were  not  excessive.    A  motion  was  made  to  set  aside  the  verdict. 

Lane.  This  is  not  an  action  on  the  case  for  the  consequential 
damages,  where  the  per  quod  is  the  gist  of  the  action,  but  trespass 
for  the  immediate  injury.  Now  if  the  trespass  for  breaking  and  en- 
tering the  plaintiff's  house  fall  to  the  ground,  that  which  is  a  conse- 
quence must  necessarily  fall  with  it.  It  was  proved  that  the  defend- 
ant entered  the  plaintift"s  house  as  a  collector  of  the  land-tax,  there- 
fore his  entry  was  law^ful,  and  his  continuing  there  was  at  the  re- 
quest of  the  plaintiff's  wife;  this  would  have  supported  a  plea  of 
licence,  and  evidence  of  it  is  good  under  the  general  issue. 

BuLLER,  J.  An  action  merely  for  debauching  a  man's  daughter, 
by  which  he  loses  her  service,  is  an  action  on  the  case.  But  according 
to  Lord  Holt's  opinion.  [Russell  v.  Corne]  2  Lord  Raymond,  1032, 
where  the  offence  is  accompanied  with  an  illegal  entry  of  the  father's 
house,  he  has  his  election  either  to  bring  trespass  for  the  breaking  and 
entering,  and  lay  the  debauching  of  the  daughter  and  loss  of  her  serv- 
ice as  consequential ;  or  he  may  bring  the  action  on  the  case  merely 
for  debauching  his  daughter,  per  quod  servitium  amisit.  In  the  pres- 
ent case  the  plaintiff  has  made  his  election,  and  has  brought  an  action 
of  trespass  for  breaking  and  entering  his  house,  and  all  the  rest  is 
merely  consequential.  And  therefore  it  is  true,  as  was  said,  that  if 
the  trespass  had  not  been  proved,  the  defendant  would  have  been  en- 
titled to  a  verdict.  But  it  is  now  perfectly  clear  that  a  licence  to  en- 
ter cannot  be  given  in  evidence  under  the  general  issue.  The  plea 
of  "not  guilty"  only  goes  to  deny  the  fact  of  the  trespass :  now  as 
that  was  proved  in  fact,  the  plaintiff  was  entitled  to  a  verdict ;  and 
the  only  consideration  for  the  jury  was  as  to  the  quantum  of  dam- 
ages.    *     *     * 

Rule  discharged. ^^ 

6T  Part  of  the  opinion  is  omitted.  Ashhurst  and  Butler,  J  J.,  concurred  in 
the  result 

On  license  as  a  defense,  when  pleaded,  see  infra,  page  132,  "The  Different 
Kinds  of  Justification  or  Excuse  in  Trespass:    Consent." 


126  TOUTS  THROUGH   ACTS   OF  ABSOLUTE  LIABILITY  (Part  1 

WATSON  V.  CHRISTIE. 

(Court  of  Common  Pleas,  1800.    2  Bos.  &  P.  224,  126  Reprint,  1248,  5  R.  R.  ,579.) 

Trespass  for  assaulting  and  beating  the  plaintiff.  Plea  not  guilty. 
At  the  trial  it  appeared  that  the  defendant  was  the  captain  of  a  ship, 
and  the  plaintiff  one  of  his  crew;  that  the  plaintiff  while  under  the 
defendant's  command  had  been  so  severely  beaten  by  order  of  the 
defendant,  that  he  had  ever  since  that  time  been  in  a  state  of  extreme 
ill  health,  and  was  likely  to  continue  so  during  the  rest  of  his  life,  which, 
he  was  in  some  danger  of  ultimately  losing  in  consequence  of  the  as- 
sault. On  the  other  hand,  it  was  oft'ered  to  be  shewn  that  the  beating 
in  c|uestion  was  given  by  way  of  punishment  for  misbehaviour  on 
board  the  ship,  and  it  was  insisted  that  the  conduct  of  the  defendant 
at  the  time  of  the  assault  being  necessarily  in  evidence  proved  that 
misbehaviour. 

Lord  Eldon,  Ch.  J.,  before  whom  the  cause  was  tried,  directed 
the  jury  that  the  only  questions  for  their  consideration  were.  Whether 
the  defendant  was  guilty  of  the  beating?  and  what  damages  the  plain- 
tiff had  sustained  in  consequence  of  it?  that  although  the  beating  in 
question,  however  severe,  might  possibly  be  justified  on  the  ground 
of  the  necessity  of  maintaining  dicipline  on  board  the  ship,  yet  that 
such  a  defence  could  not  be  resorted  to  unless  put  upon  the  record, 
in  the  shape  of  a  special  justification;  that  the  defendant  had  not 
said  on  the  record  that  this  was  discipline,  or  justified  it  on  any 
ground ;  that  much  evil  beyond  the  mere  act  of  wrong  had  been  actu- 
ally suffered ;  which  evil  had  been  occasioned  by  a  cause  which  the 
defendant  admitted  he  could  not  justify;  that  in  his  Lordship's  judg- 
ment therefore  the  evil  actually  suffered  in  consequence  of  what  was 
not  justified  ought  to  be  compensated  for  in  damages;  that  the  jury 
should  give  damages  to  the  extent  of  the  evil  suffered,  without  les- 
sening them  on  account  of  the  circumstances  under  which  it  was  in- 
flicted; that  if  they  gave  damages  beyond  a  compensation  for  the  in- 
jury actually  sustained  they  would  give  too  much,  but  that  if  they 
gave  less  they  would  not  give  enough. 

The  jury  found  a  verdict  for  £500,  being  all  the  damages  laid  in 
the  declaration. 

Shepherd,  Serjt.,  now  moved  for  a  rule  calling  on  the  plaintiff  to 
shew  cause  why  this  verdict  should  not  be  set  aside  and  a  new  trial 
be  had,  on  the  ground  of  the  damages  being  excessive,  and  because  the 
jury  ought  not  to  have  been  directed  to  exclude  from  their  consider- 
ation those  circumstances  which  tended  to  shew  the  necessity  of  that 
punishment  being  inflicted  which  was  the  cause  of  the  action;  for 
that  although  the  plaintiff  might  perhaps  be  entitled  to  some  damages, 
since  the  circumstances  alluded  to  did  not  amount  to  a  legal  defence, 
yet  the  defendant  had  a  right  to  the  benefit  of  those  circumstances  by 
way  of  mitigation. 


Ch.  1)  TRESPASSES  127 

But  the  Court  were  of  opinion  that  his  Lordship's  direction  was 
perfectly  right  in  point  of  law,  and  that  it  did  not  appear  from  the 
report  that  the  damages  given  by  the  jury  were  excessive. 

Shepherd  took  nothing  by  his  motion.^ ^ 


MILMAN  V.  DOLWELL. 

(At  Nisi  Prius,  1810.     2  Campb.  378.) 

Trespass  for  cutting  the  plaintiff's  barges  from  their  moorings  in 
the  river  Thames;  whereby  they  had  been  set  adrift  and  been  injured. 
It  appeared  at  a  time  when  there  was  a  great  quantity  of  ice  in  the 
Thames,  the  defendant  took  two  barges  of  the  plaintiff  from  the 
middle  of  the  river,  where  they  were  moored,  to  the  opposite  shore, 
and  that  one  of  them  was  immediately  after  discovered  to  have  a 
hole  in  its  bottom,  but  there  was  no  evidence  to  show  how  this  had 
been  occasioned. 

Garrow,  for  the  defendant,  offered  to  prove,  that  at  the  time  of  the 
supposed  trespass  these  barges  were  in  the  greatest  danger  of  being 
carried  away  by  ice;  that  if  he  had  not  interfered,  they  most  prob- 
ably would  have  been  destroyed;  that  he  did  what  was  prudent  and 
most  for  the  plaintift''s  advantage  to  be  done  under  the  circumstances ; 
and  that  he  had  been  employed  by  the  plaintiff  generally  to  take 
charge  of  the  barges,  and  must  be  presumed  to  have  had  his  authority 
to  remove  them  from  a  place  of  danger  to  a  place  of  safety. 

Lord  EllKnborough.  These  facts  should  have  been  specially 
pleaded.  I  cannot  admit  evidence  of  them  under  the  plea  of  not 
guilty; — the  issue  joined  upon  which  is,  whether  the  defendant  re- 
moved the  barges  belonging  to  the  plaintiff  from  their  moorings,  not 
whether  he  was  justified  in  doing  so. 

Garrow  argued  that  the  plea  of  not  guilty  merely  denied  the  com- 
mitting of  any  trespass,  and  it  was  impossible  to  say  that  any  tres- 
pass was  committed,  if  the  barges  were  removed  by  the  plaintiff's 
own  orders  either  express  or  implied.  The  case  was  the  same  as  if 
the  plaintiff  had  stood  by  and  directed  how  the  thing  was  to  be  done, 
and  the  unmooring  of  the  barges  must  be  considered  the  act  of  the 
plaintiff  rather  than  of  the  defendant. 

Lord  EllEnborough.  The  defendant  allows  that  he  intermed- 
dled with  goods  which  were  the  property  and  in  the  possession  of  the 
plaintiff.  By  so  doing  he  is  presumed  to  be  a  trespasser ;  and  if  he 
has  any  matter  of  justification,  he  must  put  it  upon  the  record.  The 
plea  of  not  guilty  only  denies  the  act  done,  and  the  plaintiff's  title 

6  8  "Even  in  mitigation  of  damages  it  is  well  settled  that  you  cannot  go  into 
evidence  which,  if  proved,  would  constitute  a  justification."  The  Earl  of 
Halsbury,  L.  C,  in  Watt  v.  Watt  (inor>)  A.  C.  115,  118. 

See,  also,  Pujolas  v.  Holland  (1841)  3  Ir.  L.  R.  .53.3. 

On  discipline  as  a  defense,  when  pleaded,  see  infra,  "The  Different  Kinds 
of  Justification  or  Excuse  in  Trespass:     Discipline." 


128  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

to  the  subject  of  the  trespass.  If  the  defendant  has  any  authority, 
general  or  particular,  express  or  implied  from  the  plaintiff,  this  must 
be  specially  pleaded,  by  way  of  excuse. 

Garrow  then  offered  to  prove  that  these  barges  were  frozen  to 
some  others  belonging  to  J.  S.,  by  whom  the  defendant  was  employed 
to  get  the  latter  ashore,  and  that  it  was  utterly  impossible  to  do  this 
without  bringing  the  former  along  with  them. 

Lord  EllEnborough.  If  tlie  necessity  was  inevitable,  and  the 
barges  of  the  third  person  by  whose  express  orders  the  defendant 
acted,  must  otherwise  have  been  destroyed,  this  might  have  amounted 
to  a  justification;  but  like  the  first  set  up,  it  must  have  been  put  upon 
the  record. 

The  jury  found  a  verdict  for  the  plaintiff  with  one  farthing  damages. 

Garrow  afterwards  moved  for  a  new  trial,  on  the  ground  that  the 
evidence  had  been  improperly  rejected;  and  further  contended,  that 
the  action  should  have  been  case  and  not  trespass ;  but  the  court  were 
against  him  on  both  points,  and  refused  a  rule  to  show  cause. "^^ 


BRIDGETT  v.  COYNEY. 

(Court  of  King's  Bench,  1827.    1  Man.  &  R.  211,  31  R.  R.  316.) 

Trespass  against  a  magistrate  for  an  assault  and  false  imprison- 
ment.   Verdict  for  the  plaintiff.    Motion  for  a  new  trial. 

Lord  TenterdKn,  C.  J.  *  *  ■"  What  are  the  circumstances  of 
the  case?  The  plaintiff  appears  before  the  defendant,  who  is  a  mag- 
istrate, to  answer  the  complaint  of  Dawson,  of  having  unlawfully 
killed  his  dog.  The  defendant  proposes  to  the  parties  to  arrange 
the  matter  upon  amicable  terms.  The  plaintiff  rejects  the  proposal, 
upon  which  the  defendant  tells  him,  that  unless  he  pays  a  certain 
sum  of  money,  he  shall  convict  him  in  a  penalty  of  that  amount,  un- 
der an  act  of  parliament,  in  which  case  he  will  be  committed  to  prison. 
The  plaintiff  still  rejects  the  proposal  and  declares  that  he  will  carry 
the  case  elsewhere ;  that  is,  that  he  will  appeal  from  the  defendant's 
jurisdiction  to  a  higher  tribunal.  Upon  that  the  defendant  calls  in 
a  constable,  whom  he  orders  to  take  the  plaintiff  out,  and  if  the  par- 
ties cannot  settle  the  matter,  to  bring  him  in  again,  as  he  must  proceed 
to  commit  him  under  the  act.  The  plaintiff  accordingly  goes  out  with 
the  constable,  and  while  they  are  absent  the  affair  is  settled,  by  the 
plaintiff's  paying  a  sum  of  money.  It  seems  to  me  impossible  to  doubt 
that  the  plaintiff  went  out  on  that  occasion  in  custody,  having  been 
ordered  into  that  custody  by  the  defendant;  and  if  so,  there  is,  in 
the  eye  of  the  law,  an  assault  and  false  imprisonment  by  the  defendant 
upon  the  person  of  the  plaintiff.     Then  what  is  the  justification?     It 

CO  On  the  preservation  of  property  as  a  defense,  when  pleaded,  see  infra, 
"The  Different  Kinds  of  Justification  or  Excuse  in  Trespass:  Defense  of  Per- 
sonal Property." 


Ch.  1)  TRESPASSES  129 

is  said  that  the  plaintiff  was  convicted,  and  therefore  that  his  deten- 
tion was  legal.  What  evidence  is  there  of  his  conviction?  No  con- 
viction was  produced  at  the  trial,  or  is  laid  before  us  now;  indeed, 
it  is  admitted  that  none  has  ever  been  drawn  up :  then  how  can  we 
possibly  say  that  the  party  was  convicted  ?  The  final  arrangement  of  the 
matter  by  the  parties  in  an  amicable  way,  might  properly  prevent  the 
defendant  from  acting  upon  the  conviction,  if  there  had  been  one ;  but 
it  did  not  prevent  his  drawing  it  up  as  a  justification  for  his  own 
conduct  in  the  transaction ;  and  not  having  done  so,  he  is  without 
justification,  and  must  abide  the  consequences. 

The  other  judges  concurred. 

Rule  refused^" 


CARSON  V.  WILSON. 

(Supreme  Court  of  New  Jersey,  1S29.    11  N.  J.  Law  [6  Halst.]  43, 

19  Am.  Dec.  368.) 

EwixG,  C.  J.  The  declaration  is  in  trespass  for  breaking  and  en- 
tering the  house  of  the  plaintiff  and  taking  and  carrying  away  his 
goods  and  chattels.  The  plea  is.  Not  guilty.  On  the  trial  the  defend- 
ants oft'ered  evidence  to  justify  the  breaking  and  entry  and  the  taking 
of  the  property,  under  an  execution  from  a  court  for  the  trial  of  small 
causes,  in  debt,  at  the  suit  of  one  of  them,  placed  in  the  hands  of  an- 
other of  them  who  was  a  constable ;  and  to  shew  that  the  goods  and 
chattels  mentioned  in  the  declaration  were  the  property  of  one  Buck- 
alew  the  defendant  in  the  execution,  and  fraudulently  secreted  in  the 
house  of  the  plaintiff,  and  as  such  were  levied  on  and  taken  by  virtue 
of  the  execution.  The  Court  of  Common  Pleas  rejected  the  evidence 
and  a  verdict  and  judgment  were  rendered  for  the  plaintiff. 

Under  the  plea  of,  not  guilty  the  evidence  offered  by  the  defendants 
was  inadmissible.  The  charge  set  forth  in  the  declaration  and  proved 
on  the  trial  by  the  witness  of  the  plaintiff  appeared  prima  facie  to  be 
at  common  law  a  trespass.  In  such  case  the  rule  of  pleading  requires 
matter  of  justification  or  excuse,  to  be  specially  pleaded;  and  this  rule 
has  been  expressly  applied  to  an  entry  by  virtue  of  process  of  fieri  fa- 
cias, Co.  Lit.  282,  b;  283,  a;  Com.  Dig.  tit.  "Pleader,"  E.  15,  17;  3 
Bos.  &  Puller,  223 ;  1  Saund.  298,  n.  1 ;  1  Chit.  Plead.  492,  495 ;  2 
Chit.  PI.  587,  and  note  g. 

The  evidence  oft'ered  by  the  defendants  was  therefore  properly  over- 
ruled and  the  judgment  shall  be  affirmed. 

Judgment  affirmed. '^^ 

7  0  The  statement  of  facts  is  abridged  and  part  of  the  opinion  Is  omitted. 

On  lawful  detention  as  a  defense,  when  pleaded,  see  infra.  "The  Different 
Kinds  of  Justification  or  Excuse  in  Trespass:  Judicial  Process,  Lawful  Ar- 
rest." 

71  On  judicial  process  as  a  defense,  when  pleaded,  see  infra,  "The  Different 
Kinds  of  Justification  or  Excuse  in  Trespas^s :     Judicial  Process." 
Hepb. Torts — 9 


130  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

ANTHONY  V.  HANEYS  et  al. 
(Court  of  Common  Pleas,  1S32.     8  Bing.  186,  131  Reprint,  372,  34  R.  R.  G70.) 

Trespass  for  breaking  and  entering  the  plaintiff's  close.  Pleas,  the 
general  issue  and  a  special  plea  that  the  defendant  was  the  owner  of 
certain  goods  and  chattels,  to  wit,  10,000  bricks,  etc.,  then  in  and  upon 
the  close  of  the  plaintiff,  and  that  defendant  entered  to  remove  them, 
doing  no  unnecessary  damage.     Demurrer  and  joinder. 

BosANQUET,  J.  I  am  of  opinion  that  this  plea  is  no  answer  to  the 
trespass  with  which  the  defendant  is  charged.  It  is  put  broadly  and 
nakedly  that  the  defendant  has  a  right  to  enter  the  soil  of  another  to 
take  his  own  property  without  shewing  the  circumstances  under  which 
it  came  there.  The  case  has  been  argued  on  the  ground  of  necessity : 
but  on  that  ground  at  least  the  necessity  should  be  shewn.  There  are, 
no  doubt,  various  cases  in  which  it  has  been  held  that  the  party  is  en- 
titled to  enter,  but  in  all  of  them  the  peculiar  circumstances  have  been 
stated  on  which  the  party  rested  his  claim  to  enter.  It  would  be  too 
much  to  infer  that  the  party  may  enter  in  all  cases  where  his  goods  are 
on  the  soil  of  another,  because  he  may  enter  in  some  where  he  shows 
sufficient  grounds  for  so  doing. 

Judgment  for  plaintiff  J  ^ 


HALL  V.  FEARNLEY. 

(Court  of  Queen's  Bench,  1842.    3  Q.  B.  919,  114  Reprint.  761.) 

Trespass  for  driving  defendant's  cart  and  horse  against  plaintiff, 
and  thereby  knocking  him  down,  bruising  and  wounding  him.  Plea, 
not  guilty.  » 

On  the  trial,  it  was  proved  that  the  plaintiff  was  walking  on  a  nar- 
row part  of  the  pavement  in  a  public  street,  where  there  was  a  con- 
siderable curvature  in  it.  The  defendant  was  driving  a  cart  in  the 
road  near  the  pavement  at  the  edge  of  which  the  plaintiff  was  walk- 
ing. The  case  for  the  plaintiff  was  that  there  was  want  of  due  care 
on  the  part  of  the  defendant,  who  had  driven  so  close  to  the  pavement 
as  to  knock  the  plaintiff  down,  and  run  over  and  break  his  leg.  The 
defendant  endeavoured  to  shew  that  the  plaintiff  had  slipped  from 
the  curb-stone  at  the  moment  when  the  cart  was  passing,  and  had  so 
got  his  leg  under  the  wheel.  The  defendant  called  no  witnesses. 
WiGiiTMAN,  J.,  told  the  jury  that  the  question  for  them  was,  whether 
the  injury  was  occasioned  by  unavoidable  accident  or  by  the  defend- 
ant's default;    and  that,  if  they  thought  the  plaintiff  had  accidentally 

72  The  statement  of  the  pleadings  has  been  abridged.  The  argument  and  the 
concurring  opinions  of  Tindal,  C.  J.,  and  Parlv  and  Alderson,  JJ..  are  omitted. 

On  necessity  as  a  defense,  if  pleaded,  see  infra,  "The  Different  Kinds  of  Jus- 
tification or  Excuse  in  Trespass:    Necessity." 


Ch.  1)  TRESPASSES  131 

slipped  off  the  pavement  as  the  defendant's  cart  was  passing,  and  had 
been  run  over  in  consequence  of  such  accident,  they  ought  to  find  for 
the  defendant.     Verdict  for  the  defendant. 

In  the  same  term  Crowder  obtained  a  rule  nisi  for  a  new  trial  on 
the  ground  that  the  judge  had  misdirected  the  jury,  by  telling  them 
that,  on  the  issue,  if  the  injury  was  accidental,  the  defendant  was  en- 
titled to  a  verdict. 

Lord  Dexmax.  C.  J.  The  authorities  shew  that  if  the  accident  had 
resulted  entirely  from  a  superior  agency,  that  would  have  been  a  de- 
fence, and  might  have  been  proved  under  the  general  issue;  but  a 
defence  admitting  that  the  accident  resulted  from  an  act  of  the  de- 
fendant would  not  have  been  so  proveable. 

Coleridge;,  J.  Any  defence,  which  admits  the  trespass  complained 
of  to  be  the  act  of  the  defendant,  must  be  pleaded  specially. 

\\'iGHTMAX,  J.  The  act  of  the  defendant  was  prima  facie  unjus- 
tifiable, and  required  an  excuse  to  be  shown.  When  the  motion  in 
this  case  was  first  made,  I  had  in  my  recollection  the  case  of  Wake- 
man  V.  Robinson,  1  Bing.  213.  It  was  there  agreed  that  an  involun- 
tary act  might  be  a  defence  on  the  general  issue.  The  decision  indeed 
turned  on  a  difTerent  point ;  but  the  general  proposition  is  laid  down. 
I  think  the  omission  to  plead  the  defence  here  deprived  the  defend- 
ant of  the  benefit  of  it,  and  entitled  the  plaintiff  to  recover. 

Rule  absolute  for  a  new  trial. "^ 


YASKA  v.   SWEXDRZYNSKI  et  al. 
(Supreme  Court  of  Wisconsin,  1907.    133  Wis.  475,  113  N.  W.  959.) 

Action  for  an  assault  and  battery  alleged  to  have  been  committed 
by  the  three  defendants  jointly.  They  answered  separately  by  mere 
general  denial.  The  evidence  disclosed,  substantially  without  dis- 
pute, a  severe  beating  of  plaintiff  by  defendant  Swendrzynski,  and 
there  was  some  evidence  of  an  attack  by  each  of  the  other  defend- 
ants. There  was  also  some  attempt  to  prove  a  previous  agreement 
amongst  the  three  defendants  to  assault  plaintiff.  Evidence  was  ad- 
mitted tending  to  show  a  first  assault  by  plaintiff,  and  the  court  sub- 
mitted the  case  upon  the  theory  that  such  first  assault  might  consiitute 
a  defence,  and  the  jury  might  consider  whether  the  defendants  acted 
in  self-defence.  A  general  verdict  for  the  defendants  was  found, 
and  judgment  in  their  favor  rendered,  from  which  the  plaintiff  ap- 
pealed. 

Dodge,  J.  Obvious  error  was  committed  in  charging  the  jury  that 
the  assault  conceded  to  have  been   made  by  one  of  the  defendants, 

T3  On  accident  as  a  defense,  if  pleaded,  see  infra,  "The  Different  Kinds  of 
Justification  or  Excuse  in  Trespass:    Accident." 


w 


y 


132  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

and  of  which  there  was  some  evidence  as  to  the  others,  might  be 
justified,  and  a  verdict  for  the  defendants  found,  in  case  the  plain- 
tiff committed  the  first  assault  and  the  defendants  acted  in  self-de- 
fence. Respondents'  counsel  substantially  concede  that  such  justi- 
fication and  defence  was  not  admissible  under  mere  general  denial, 
and  such  is  the  law  as  settled  by  authorities.  Levi  v.  Brooks,  121 
Mass.  501;  Cooper  v.  McKenna,  124  Mass.  284,  26  Am.  Rep.  667; 
Barr  v.  Post,  56  Neb.  698,  77  N.  W.  123 ;  Atkinson  v.  Harran,  68 
^^'is.  405,  407,  32  N.  W.  756;  3  Cyc.  p.  1084;  2  Ency.  PI.  &  Pr.  p. 
862.  We  cannot  doubt  that  the  verdict  in  favor  of  all  of  the  de- 
fendants may  well  have  been  due  to  this  error.  Hence  no  course  is 
open  to  us  but  to  reverse  the  judgment  and  order  a  new  trial.  *  *  * 
Judgment  reversed  and  cause  remanded  for  a  new  trial,^* 


II.  The;  Diffkri^nt  Forms  of  Justification  or  Excuse; 

(A)  Consent 
(a)   Leave  and  License 

Harm  sufifered  by  consent  is,  within  limits  to  be  mentioned,  not 
a  cause  of  civil  action.  The  same  is  true  where  it  is  met  with  under 
conditions  manifesting  acceptance,  on  the  part  of  the  person  suffer- 
ing it,  of  the  risk  of  that  kind  of  harm.  The  maxim  by  which  the 
rule  is  commonly  brought  to  mind  is  "Volenti  non  fit  injuria."  "Leave 
and  licence''  is  the  current  English  phrase  for  the  defence  raised  in 
this  class  of  cases.  On  the  one  hand,  however,  "volenti  non  fit  injuria" 
is  not  universally  true.  On  the  other  hand,  neither  the  Latin  nor 
the  English  formula  provides  in  terms  for  the  state  of  things  in  which 
there  is  not  specific  will  or  assent  to  suffer  something  which,  if  in- 
flicted against  the  party's  will,  would  be  a  wrong,  but  only  conduct 
showing  that,  for  one  reason  or  another,  he  is  content  to  abide  the 
chance  of  it.'^ 

Pollock,  Law  of  Torts  (8th  Ed.)  159. 

7-1  A  part  of  the  opinion,  on  other  points,  is  omitted. 

So,  in  Connnon  L:i\v  States,  see  Lutlopp  v.  Heclimann  (1904)  70  N.  J.  Law, 
272,  57  Atl.  104G:  "In  order  to  set  up  in  such  a  case  [assault  and  battery]  the 
defense  of  son  assault  demesne,  it  must  he  pleaded  specially." 

On  son  assault  demesne  as  a  sufhcient  defense,  see  infra,  "The  Different 
Kinds  of  Justification  or  Excuse  in  Trespass:     Defense  of  the  Person." 

7B  The  standard  common  law  form  of  the  pica  of  leave  and  license  had  this 
as  its  cardinal  averment:  "Because  he  says  that  he.  the  said  defendant,  at 
the  said  several  times  when,  etc.,  by  the  leave  and  license  of  the  said  plaintiff, 
to  him  for  that  purpose  first  «iven  and  granted,  to  wit,  at,  etc.,  aforesaid,  ccin- 
mitted  the  said  several  supposed  trespasses  in  the  said  declaration  mentioned  : 


Ch.  1)  TRESPASSES  133 

PATRICK  V.  COLERICK. 

(Court  of  Exchequer,  1S3S.    3  Mees.  &  W.  483,  49  R.  R.  696.) 

Trespass  for  breaking  and  entering  the  plaintiff's  close  with  horsey 
and  waggons.  Third  plea,  that  the  defendant  being  possessed  of  ten 
cart  loads  of  straw,  the  plaintiff'  without  the  defendant's  leave  and 
against  his  will,  took  the  said  straw  and  wrongfully  carried  it  away  and 
placed  it  on  plaintiff's  said  close,  and  that  defendant  made  fresh  pur- 
suit after  his  said  straw,  and  then  quietly  and  peaceably  entered  the 
said  close, 

"and  with  said  horses,  mares,  geldings  and  waggons  in  the  introductory  part 
of  this  plea  mentioned  (the  same  then  being  necessary  and  proper  for  that  pur- 
pose) in  order  to  retake  his  said  straw  and  did  then  and  there  quietly  and; 
peaceably  retake  his  said  straw,  and  load  the  same  upon  the  last  mentioned 
waggons,  and  carry  the  same  away  from  and  out  of  the  said  close  in  the  said 
first  count  mentioned,  in  which,  etc.,  as  he  lawfully  might  for  the  cause  afore- 
said, doing  no  unnecessary  damage  to  the  plaintift." 

Demurrer,  and  joinder  in  demurrer.'^ ^ 

Parke,  B.  The  passage  in  Blackstone,  as  to  the  right  of  recaption, 
applies  to  the  case  where  the  goods  are  placed  on  the  ground  of  a 
third  party.  All  the  old  authorities  say,  that  where  a  party  places 
the  goods  upon  his  own  close,  he  gives  to  the  owner  of  them  an  im- 
plied license  to  enter  for  the  purpose  of  recaption.  There  are  many 
authorities  to  that  eff'ect  in  Viner's  Abridgement.  Thus,  in  title  ''Tres- 
pass," (l)a,  it  is  said,  "If  a  man  takes  my  goods  and  carries  them 
into  his  own  land,  I  may  justify  my  entry  into  the  said  land  to  take 
my  goods  again;  for  they  came  there  by  his  own  act."  The  rea- 
son of  the  judgment  of  the  Court  of  Common  Pleas  ^^  is,  that  it 
was  not  shewn  who  placed  the  goods  there ;  and  that  the  mere  fact 
of  the  defendant's  goods  being  on  the  plaintift''s  land  is  no  justifica- 
tion of  the  entry,  unless  it  be  shewn  that  they  came  there  by  the 
plaintiff's  act. 

Lord  Abinger,  C.  B.,  Bolland,  B.,  and  Alderson,  B.,  concurred. 

Judgment  for  the  defendant. 

as  he  lawfully  might  for  the  cause  aforesaid."  2  Chitty,  PI.  (2d  Ed.  1811)  608. 
609. 

By  the  common  law  procedure  act  of  1S52,  the  averment  was  reduced  to  this  : 
"That  he  did  what  is  complained  of  bv  the  plaintiff's  leave."  2  Chitty,  PI. 
(16th  Am.  Ed.)  p.  658.  See  Common  Law  Procedure  Act,  15  &  16  Vict.  c.  76, 
Sch.  B.,  44. 

76  The  statement  of  facts  is  abridged;   the  argument  is  omitted. 
7  7  The  allusion  is  to  Anthony  v.  Haneys   (1832)  8  Biug.  186,  34  R.  R.  670, 
given  ante,  page  130. 


134  TORTS  THROUGH   ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 

MOSES  V.  DUBOIS. 

(Court  of  Appeals  of  South  Carolina,  1838.    Dud.  209.) 
[This  case  is  reported  ante,  p.  84,  "False  Imprisonment."] 


ARROWSMITH  v.  LE  MESURIER. 

(Court  of  Common  Pleas,  1S06.    2  B.  &  P.  N.  R.  211,  127  Reprint,  605, 

9  R.  R.  G42.) 

Trespass  for  assault  and  false  imprisonment.  At  the  trial  it  appear- 
ed that  a  warrant  having  been  granted  by  a  magistrate,  for  appre- 
hending the  plaintiff  upon  a  charge  of  conspiracy  to  sue  out  a  fraud- 
ulent commission  of  bankrupt,  a  constable  went  with  the  warrant  to 
the  plaintiff's  house,  and  shewed  it  to  him ;  that  after  conversing 
some  time  with  the  constable,  the  plaintiff  desired  to  have  a  copy  of 
the  warrant,  which  the  constable  permitted  him  to  take ;  after  which 
the  plaintiff  attended  the  constable  to  the  magistrate,  and  after  being 
examined  upon  the  subject  of  the  charge,  was  dismissed,  about  six 
hours  after  the  time  when  the  warrant  was  first  shewn  to  him ;  that 
the  constable  never  touched  the  plaintiff",  and  that  due  notice  of  the 
action  had  been  given.     Verdict  for  the  defendant. 

A  rule  having  been  obtained,  calling  on  defendant  to  shew  cause 
why  this  verdict  should  not  be  set  aside,  and  a  new  trial  be  had,  Sellon, 
Serjt.,  in  support  of  the  rule,  contended,  that  it  was  not  necessary 
that  the  plaintiff"  should  be  touched  in  order  to  constitute  an  arrest; 
that  the  plaintiff"  having  gone  before  the  magistrate  in  obedience  to 
the  warrant,  must  be  considered  to  have  been  arrested,  and  conse- 
quently the  plaintiff  was  entitled  to  a  verdict. 

Sir  Jamks  Mansfield,  Ch.  J.  I  can  suppose  that  an  arrest  may 
take  place  without  an  actual  touch,  as  if  a  man  be  locked  in  a  room: 
but  here  the  plaintiff  went  voluntarily  before  a  magistrate.  The  war- 
rant was  made  no  other  use  of  than  as  a  summons.  The  constable 
brought  a  v/arrant,  but  did  not  arrest  the  plaintiff.  How  can  a  man's 
walking  freely  to  a  magistrate  prove  him  to  be  arrested?  I  think  that 
the  jury  have  done  justice. 

The  other  judges  concurring,  rule  discharged.''' 

7  8  Compare  Wood  v.  Lane  (1S34)  6  C.  &  P.  774,  at  Nisi  Prius  before  Tindal, 
C.  J.: 

The  action  was  against  Lane  and  Cleaton  for  false  imprisonment,  with  pleas 
of  not  guilty  and  leave  and  license.  It  appeared  that  the  plaintiff  was  at  the 
house  of  one  Saunders,  bargaining  with  him  for  the  sale  of  some  goods,  and 
had  just  made  out  an  invoice,  when  the  defendant  Cleaton  came  in  alone,  and 
asked  the  plaintiff  to  pay  him  the  amount  he  owed  him,  or  some  money  on  ac- 
count. The  plaintiff  said  ho  would  not;  upon  which  Cleaton  wont  just  outside 
the  door,  and  returned  immediately,  followed  by  the  defendant  Lane,  and  point- 
ing to  the  plaintiff,  said,  "This  is  the  gentleman."    The  plaintiff  tore  up  the 


Ch.  1)  TRESPASSES  l'»^ 

CADWELL  V.  FARRELL. 

(Supreme  Court  of  Illinois,  1SG2.    28  111.  438.) 

This  is  an  action  entitled,  "of  a  plea  of  trespass  on  the  case,"  where- 
in Julia  Farrell  is  plaintiff,  and  Frederick  A.  Cadwell  is  defendant, 
commenced  and  tried  in  the  Superior  Court  of  Chicago.  Plea,  gen- 
eral issue.  There  was  a  verdict  for  the  plaintiff  for  $10,000.  The 
defendant  moved  in  arrest  of  judgment,  assigning  a  misjoinder  of 
causes  of  action.  This  motion  was  denied,  and  the  court  rendered 
judgment  on  the  verdict.     The  defendant  went  up  on  error. '^^ 

Walker,  J.  It  is  insisted  that  there  is  a  misjoinder  of  counts  in 
this  declaration ;  that  the  sixth  count  is  in  trespass,  whilst  the  others 
are  in  case.  This  is  the  only  question  raised  upon  this  record.  If 
this  objection  is  well  taken,  the  court  below  erred  in  refusing  to  ar- 
rest the  judgment. 

The  sixth  count  avers  that  appellee  had  a  spot  on  her  left  eye,  which 
injured  her  personal  appearance,  and  that  appellant  falsely,  fraudu- 
lently and  deceitfully  represented  and  pretended  to  appellee,  that  by 

invoice  and  threw  it  on  tlie  fire  and  said.  "I  suppose  I  am  to  go  witti  you." 
The  answer  was,  "Yes."  The  plaintiff  and  the  two  defendants  went  away  to- 
gether, to  the  plaintiff's  house.  There  was  no  bailable  process  against  the 
plaintiff.  The  defendant  Lane  was  merely  a  clerk  to  Cleaton's  attorney,  but 
had  represented  himself  as  having  authority  to  arrest. 

Talfourd,  Serjt,  for  the  defendant.  No  arrest  has  been  proved.  Saunders, 
who  was  present,  says  nothing  of  the  laymg  hold  of  the  plaintiff. 

(Tindal,  C.  J.  The  question  is  whether  the  plaintiff  w^ent  voluntarily  from 
Mr.  Saunders'  to  his  own  house,  or  whether  he  went  in  consequence  of  the  act 
of  the  defendants.  If  you  put  your  hand  upon  a  man,  or  tell  him  he  must  go 
with  you,  and  he  goes,  supposing  you  to  have  the  power  to  enforce  him,  is  not 
that  an  arrest?    May  you  not  arrest  without  touching  a  man?) 

White  referred  to  the  case  of  Arrowsmith  v.  Le  Mesurier  (1806)  2  B.  &  P. 
N.  R.  211. 

(Tindal,  C.  J.  That  is  a  ease  which  has  often  been  spoken  of  as  going  to 
the  very  extreme  point ;  but  In  that  case  the  jury  found  that  the  plaintiff  went 
voluntarily  with  the  officer.  And  in  this  case,  if  you  can  persuade  the  jury 
that  the  plaintiff  went  voluntarily,  you  may  succeed.) 

Talfourd,  Serjt.,  then  addressed  the  jury  for  the  defendants.  There  was  no 
real  compulsion.  No  writ  was  produced.  It  was  only  an  endeavour  by  a 
manoeuver  to  make  the  plaintiff  do  what  he  ought,  but  would  not,  viz.,  pay  the 
money  which  he  owed.  It  was  a  sudden  thought  which  struck  the  attorney's 
clerk,  and  it  is  not  a  case  for  damages. 

Tindal,  C.  J.,  in  summing  up,  told  the  jury,  that,  if  the  plaintiff  acted  as  an 
unwilling  agent  at  the  time  and  against  his  own  will,  when  he  went  to  his 
house  from  that  of  Saunders,  it  was  just  as  much  an  arrest  as  if  the  defend- 
ants had  forced  him  along. 

The  jury  found  for  the  plaintiff.    Damage,  £10. 

Compare  Shinglcmeyer  v.  Wright  (IJiOO)  124  Mich.  230.  82  N.  W.  887,  .^0  L.  R. 
A.  129  (P.,  charged  with  stealing  D.'s  bicycle  and  checking  it  from  a  certain 
railway  station,  went  with  a  policeman  to  the  police  station  and  thence  with 
two  detectives  to  the  railway  station,  to  see  if  she  could  be  identified  as  tlie 
woman  who  checked  (he  wheel)  ;  Kirk  v.  Garrett  (ISOG)  81  Md.  :!s:!,  .'^,5  Atl.  1089 
(I'.,  a  prosecuting  witness,  consents  to  remain  in  custody  until  he  can  appear 
before  the  grand  jury). 

And  see  19  Cyc.  323,  and  cases  cited  in  note  37. 

7  0  The  arguments  and  a  part  of  the  opinion  are  omitted. 


136  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

means  of  his  skill  and  knowledge  as  an  oculist,  he  could  remove  the 
blemish  from  her  eye,  and  render  its  appearance  equal  to  that  of  her 
right  eye,  without  any  injury  to  the  right  eye;  and  that  he  would  not 
take  out  or  destroy  her  left  eye,  and  that  she  would  be  well  and  free 
from  the  effects  of  the  treatment  in  six  or  seven  days ;  that  appellee, 
confiding  in  the  truth  of  the  representations  thus  made  by  appellant, 
and  believing  them  to  be  true,  was  deceived,  and  thereby  induced,  at 
his  special  instance  and  request,  to  treat  her  left  eye,  to  make  it  look 
as  well  as  the  right  eye,  for  the  sum  of  thirty  dollars,  which  she  paid 
to  him.  But  that  appellant,  well  knowing  as  aforesaid,  falsely  and 
maliciously  pretended  to  operate  on  appellee's  left  eye,  for  the  pre- 
tended purpose  of  causing  it  to  look  as  well  as  her  right  eye,  and  to 
remove  the  spot  therefrom,  and  did  cut  and  lacerate  the  left  eye,  by 
means  of  which  cutting  and  lacerating  and  tearing  of  the  left  eye, 
she  suffered  great  pain ;  and  that  in  consequence  thereof,  her  right  eye 
became  greatly  inflamed,  and  she  suffered  great  pain,  and  was  obliged 
to  lay  out  and  expend  large  sums  of  money  for  medical  attendance  for 
her  cure,  and  was  unable  to  perform  labor  for  a  long  space  of  time. 

It  is  urged  that  this  count  charges  the  operation  to  have  been  per- 
formed with  malice,  and  that  a  direct  injury  to  the  person,  prompted 
by  malice,  constitutes  a  trespass,  for  which  case  cannot  be  sustained. 
Direct  and  immediate  force  employed  by  one  person  against  another, 
without  his  consent,  with  malice,  constitutes  trespass,  however  slight 
the  injury  produced;  but  it  is  otherwise  wdien  the  force  used  is  with 
the  consent  or  at  the  request  of  the  person  against  whom  employed. 
If  a  dentist  extract  a  tooth  for  a  person  at  his  request,  whether  neces- 
sary or  not,  it  is  no  wrong;  but  if  unskillfully  performed,  he  would  be- 
come liable  in  case  for  the  injury  resulting  from  a  want  of  proper 
skill.  If  the  same  act  were  performed  with  malice,  and  without  con- 
sent, it  would  be  an  aggravated  trespass,  if  not  a  crime.  In  this  case, 
the  operation  was  performed  at  the  request  of  appellee.  This  pre- 
vents her  from  recovering  in  trespass,  and  had  the  operation  been 
skillfully  performed,  she  could  have  no  right  of  recovery  in  any  form 
of  action ;  but  if  the  representatioiis  which  induced  the  retainer  were 
false  and  fraudulent,  or  if  the  proper  skill  was  not  employed,  then 
case  is  properly  the  remedy.     *     *     *  so 

8  0  The  court  saved  the  case  upon  the  theory  that  the  sixth  count  was  not  for 
the  direct  and  immediate  force,  but  for  falsely  pretending  to  perform  the  op- 
eration for  the  purpose  of  improving  the  appearance  of  the  eye. 


Ch.  1)  TRESPASSES  137 


MARKLEY  v.  WHITMAN. 

(Supreme  Court  of  Michigan,  1893.     95  Mich.  236,  54  N.  W.  763,  20  L.  R.  A. 

55,  35  Am.  St.  Rep.  558.) 

Action  for  assault  and  battery.  There  was  a  judgment  for  the 
plaintiff,  and  the  defendant  brings  error. 

Long,  J.  Plaintiff  and  defendant  were  both  students  at  the  Buchan- 
nan  high  school.  On  February  7,  1890,  wdiile  the  plaintiff"  was  on  his 
way  home  from  school,  the  defendant  and  others  of  the  scholars  were 
engaged  in  what  is  called  a  "rush"  or  "horse  game."  The  practice  of 
the  game  is  to  find  some  one  in  advance,  when  the  others  form  in  a 
line,  each  one  in  the  rear  pushing  the  one  in  advance  of  him,  and  so  on 
through  the  line  until  the  one  to  be  "rushed,"  who  knows  nothing  of 
what  is  coming,  is  rushed  upon  by  the  one  in  his  rear,  and  pushed  or 
rushed.  On  the  day  in  question  the  plaintiff',  while  going  towards 
home  on  the  sidewalk,  was  to  be  rushed.  The  defendant  was  in  his 
immediate  rear,  and  engaged  in  the  game.  When  pushed,  he  rushed 
upon  the  plaintiff,  striking  him  with  his  hands  between  the  shoulders 
with  such  violence  that  the  plaintiff  was  thrown  nearly  to  the  ground. 
Immediately  thereafter  he  lost  his  voice  above  a  whisper,  and  has  never 
recovered  its  use.  His  neck  was  nearly  fractured,  and  for  several 
months  he  was  compelled  to  take  medical  treatment  in  Chicago.  It 
is  claimed  that  he  suffered  great  pain,  and  has  not  fully  recovered. 
This  action  was  brought  to  recover  for  the  injuries  thus  occasioned. 
On  the  trial  in  the  court  below,  the  plaintiff  had  verdict  and  judgment 
for  $2,500.     Defendant  brings  error. 

The  errors  relied  upon  relate  principally  to  the  charge  of  the  court. 
It  was  claimed  on  the  trial  in  the  court  below  (1)  that  the  push 
against  the  plaintiff  was  not  an  assault,  and  therefore  not  actionable ; 
(2)  that  it  was  a  pure  accident ;  (3)  that  it  was  not  a  dangerous  game, 
and  the  results  which  followed  from  the  push  could  not  have  been 
anticipated;  (4)  that  the  defendant  only  put  himself  in  a  position 
ready  to  be  pushed  if  the  spirit  of  frolic  should  be  entered  into  by 
those  behind  him,  and  his  rush  upon  the  plaintiff  was  neither  invited 
nor  approved ;  (5)  that  there  was  no  unlawful  intent  to  injure  the 
plaintiff.  It  is  insisted  that  the  court  below,  in  its  charge,  entirely 
ignored  the  claim  of  the  defendant  made  on  the  trial;  and  also  that 
the  plaintiff  was  one  of  the  school  fellows,  and  stood  in  a  diff'erent 
position  to  the  defendant  than  would  a  stranger.  The  court  instruct- 
ed the  jury  substantially  that,  if  the  plaintiff  was  participating  in  the 
play,  or  in  any  way  contributed  to  the  injury,  he  could  not  recover; 
that,  to  entitle  the  plaintiff  to  recover,  he  must  show  by  a  preponder- 
ance of  evidence  that  the  game  was  a  dangerous  one,  and  that  the 
injury  was  occasioned  by  the  push  given  by  the  defendant;  and  that 
the  defendant  willfully  pushed  the  plaintiff,  or  was  voluntarily  en- 
gaged in  the  game,  which  must  be  found  to  be  dangerous,  and  one 


138  TORTS  THROUGH   ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 

reasonably  calculated  to  be  dangerous  to  innocent  persons  lawfully 

traveling  along   the   sidewalk   upon   which    the   play   was   conducted. 

The  court  below  further  instructed  the  jury  as  follows : 

''If  the  game  in  question  was  a  dangerous  one  to  indulge  in  on  tlie  street  and 
at  the  time  in  question,  and  if  the  defendant  was  voluntarily  engaged  in  such 
play  at  the  time  of  the  accident,  and  if  the  plaintiff  was  not  participating  in 
such  sport,  and  was  not  guilty  of  conduct  which  in  any  way  contriltuted  to  the 
injury,  but,  on  the  contrary,  was  lawfully  traveling  on  the  sidewalk,  and  in  the 
exercise  of  reasonable  care,  and  if  the  defendant,  while  so  playing,  pushed  the 
plaintiff  and  injured  him,  he  is  liable;  and  in  such  case  it  is  no  excuse  for  him 
to  say  that  he  himself  was  pushed  against  the  plaintiff  by  some  other  boy." 

This  charge  fully  protected  the  rights  of  the  defendant,  and  was 
as  favorable  to  him  as  the  facts  of  the  case  warranted.  In  fact,  on 
the  trial  it  was  little  in  dispute  that  the  injury  occurred  exactly  as  the 
plaintiff  claimed.  He  was  peaceably  walking  along  the  street,  and 
had  no  intimation  that  he  was  to  be  "rushed."  He  was  not  participat- 
ing in  the  game,  and,  if  his  testimony  is  true,  never  had  taken  part 
in  it,  and  on  that  occasion  was  not  anticipating  that  he  was  the  victim 
selected  to  be  rttshed.  It  was  an  assault  upon  him,  and  the  court 
correctly  stated  the  rules  of  law  applicable  to  the  case ;  at  least  the 
defendant  had  no  reason  to  complain.  It  is  evident  that  the  defend- 
ant was  one  of  those  engaged  in  the  game,  which,  upon  a  bare  state- 
ment of  the  manner  in  which  it  is  to  be  played,  must  be  regarded  as 
dangerous.  He  voltmtarily  engaged  in  it,  and  his  conduct  occasioned 
the  injury.  It  was  unlawful  to  "rush"  the  plaintiff  under  the  circum- 
stances shown,  and  the  defendant  must  be  held  responsible  for  the 
consequences  which  followed.  It  may  be,  and  probably  is,  true  that 
those  taking  part  in  it  did  not  anticipate  the  injurious  effects  upon 
the  plaintiff;  but  that  does  not  lessen  the  plaintiff's  pain  and  suffering, 
or  make  the  act  less  unlawful.  The  plaintiff,  while  passing  along  the 
street,  and  not  engaged  in  the  sport,  had  the  same  right  to  be  protected 
from  such  an  assault  as  a  stranger  would  have  had,  and  the  assault 
upon  him  was  as  unlawful  as  it  would  have  been  upon  a  stranger. 

We  find  no  error  in  the  case,  and  the  judgment  must  be  affirmed, 
with  costs. 


MOHR  v.  WILLIAMS. 

(Supreme  Court  of  Minnesota,  1905.    95  Minn.  2G1,  104  N.  W.  12,  1  I,.  R.  A. 
[N.  S.J  4.39,  111  Am.  St.  Rep.  402,  5  Ann.  Cas.  303.) 

Brown,  J.  W^e  come  then  to  a  consideration  of  the  questions  pre- 
sented by  defendant's  appeal  from  the  order  denying  his  motion  for 
judgment  notwithstanding  the  verdict. 

It  is  contended  that  final  judgment  should  be  ordered  in  his  favor 
for  the  following  reasons:  (a)  That  it  api^ears  from  the  evidence 
received  on  the  trial  that  plaintiff  consented  to  the  operation  on  her 
left  ear.     (b)  If  the  court  shall  find  that  no  such  consent  was  given, 


Ch.  1)  TRESPASSES  139 

that,  under  the  circumstances  disclosed  by  the  record,  no  consent  was 
necessary.     *     *     * 

We  shall  consider  first  the  question  whether,  under  the  circumstanc- 
es shown  in  the  record,  the  consent  of  plaintiff  to  the  operation  was 
necessary.  If,  under  the  particular  facts  of  this  case,  such  consent 
was  unnecessary,  no  recovery  can  be  had,  for  the  evidence  fairly 
shows  that  the  operation  complained  of  was  skillfully  performed  and 
of  a  generally  beneficial  nature.  But  if  the  consent  of  plaintiff  was 
necessary,  then  the  further  questions  presented  become  important. 
This  particular  question  is  new  in  this  state.  At  least,  no  case  has 
been  called  to  our  attention  wherein  it  has  been  discussed  or  decided, 
and  very  few  cases  are  cited  from  other  courts.  We  have  given  it  very 
deliberate  consideration,  and  are  unable  to  concur  with  counsel  for 
defendant  in  their  contention  that  the  consent  of  plaintiff  was  unneces- 
sary. 

The  evidence  tends  to  show  that,  upon  the  first  examination  of  plain- 
tiff, defendant  pronounced  the  left  ear  in  good  condition,  and  that, 
at  the  time  plaintiff  repaired  to  the  hospital  to  submit  to  the  operation 
on  her  right  ear,  she  was  under  the  impression  that  no  difficulty  ex- 
isted as  to  the  left.  In  fact,  she  testified  that  she  had  not  previously 
experienced  any  trouble  with  that  organ.  It  cannot  be  doubted  that 
ordinarily  the  patient  must  be  consulted,  and  his  consent  given,  be- 
fore a  physician  may  operate  upon  him.     *     *     * 

Kinkead  on  Torts,  vol.  1,  §  375,  states  the  general  rule  on  this  sub- 
ject as  follows: 

"The  patient  must  be  the  final  arbiter  as  to  whetlier  he  will  take  his  chances 
with  the  operation,  or  take  his  chances  of  living  without  it.  Such  is  the  natu- 
ral right  of  the  indivirlual,  which  the  law  recognizes  as  a  legal  one.  Consent, 
therefore,  of  an  individual,  must  be  either  expressly  or  impliedly  given  before 
a  surgeon  may  have  the  right  to  operate." 

There  is  logic  in  the  principle  thus  stated,  for,  in  all  other  trades, 
professions,  or  occupations,  contracts  are  entered  into  by  the  mutual 
agreement  of  the  interested  parties,  and  are  required  to  be  performed 
in  accordance  with  their  letter  and  spirit.  No  reason  occurs  to  us 
why  the  same  rule  should  not  apply  between  physician  and  patient. 
If  the  physician  advises  his  patient  to  submit  to  a  particular  operation, 
and  the  patient  weighs  the  dangers  and  risks  incident  to  its  perform- 
ance, and  finally  consents,  he  thereby,  in  effect,  enters  into  a  contract 
authorizing  his  physician  to  operate  to  the  extent  of  the  consent  given, 
but  no  further. 

It  is  not,  however,  contended  by  defendant  that  under  ordinary  cir- 
cumstances consent  is  unnecessary,  but  that,  under  the  particular  cir- 
cumstances of  this  case,  consent  was  implied  ;  that  it  was  an  emergency 
case,  such  as  to  authorize  the  operation  without  express  consent  or 
permission.  The  medical  profession  has  made  signal  progress  in  solv- 
ing the  problems  of  health  and  disease,  and  they  may  justly  point 
with  pride  to  the  advancements  made  in  supplementing  nature  and  cor- 


140  TORTS   THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

recting  deformities,  and  relieving  pain  and  suffering.  The  physician 
impliedly  contracts  that  he  possesses,  and  will  exercise  in  the  treatment 
of  patients,  skill  and  learning,  and  that  he  will  exercise  reasonable  care 
and  exert  his  best  judgment  to  bring  about  favorable  results..  The 
methods  of  treatment  are  committed  almost  exclusively  to  his  judg- 
ment, but  we  are  aware  of  no  rule  or  principle  of  law  which  would 
extend  to  him  free  license  respecting  surgical  operations.  Reasonable 
latitude  must,  however,  be  allowed  the  physician  in  a  particular  case ; 
and  we  would  not  lay  down  any  rule  which  would  unreasonably  inter- 
fere with  the  exercise  of  his  discretion,  or  prevent  him  from  taking 
such  measures  as  his  judgment  dictated  for  the  welfare  of  the  patient 
in  a  case  of  emergency.  If  a  person  should  be  injured  to  the  extent 
of  rendering  him  unconscious,  and  his  injuries  were  of  such  a  nature 
as  to  require  prompt  surgical  attention,  a  physician  called  to  attend 
him  w^ould  be  justified  in  applying  such  medical  or  surgical  treatment 
as  might  reasonably  be  necessary  for  the  preservation  of  his  life  or 
limb,  and  consent  on  the  part  of  the  injured  person  w^ould  be  implied. 
And  again,  if,  in  the  course  of  an  operation  to  which  the  patient  con- 
sented, the  physician  should  discover  conditions  not  anticipated  before 
the  operation  w^as  commenced,  and  which,  if  not  removed,  would 
endanger  the  life  or  health  of  the  patient,  he  would,  though  no  express 
consent  was  obtained  or  given,  be  justified  in  extending  the  opera- 
tion to  remove  and  overcome  them. 

But  such  is  not  the  case  at  bar.  The  diseased  condition  of  plaintiff's 
left  ear  was  not  discovered  in  the  course  of  an  operation  on  the  right, 
which  was  authorized,  but  upon  an  independent  examination  of  that 
organ,  made  after  the  authorized  operation  was  found  unnecessary. 
Nor  is  the  evidence  such  as  to  justify  the  court  in  holding,  as  a  matter 
of  law,  that  it  was  such  an  affection  as  would  result  immediately  in 
the  serious  injury  of  plaintiff",  or  such  an  emergency  as  to  justify  pro- 
ceeding w'ithout  her  consent.  She  had  experienced  no  particular 
difficulty  with  that  ear,  and  the  questions  as  to  when  its  diseased 
condition  would  become  alarming  or  fatal,  and  whether  there  was  an 
immediate  necessity  for  an  operation,  were,  under  the  evidence,  ques- 
tions of  fact  for  the  jury. 

The  contention  of  defendant  that  the  ope'ration  was  consented  to 
by  plaintiff  is  not  sustained  by  the  evidence.  At  least,  the  evidence 
was  such  as  to  take  the  question  to  the  jury.  This  contention  is  based 
upon  the  fact  that  she  was  represented  on  the  occasion  in  question 
by  her  family  physician ;  that  the  condition  of  her  left  ear  was  made 
known  to  him,  and  the  propriety  of  an  operation  thereon  suggested, 
to  which  he  made  no  objection.  It  is  urged  that  by  his  conduct  he 
assented  to  it,  and  that  plaintiff  was  bound  thereby.  It  is  not  claimed 
that  he  gave  his  express  consent.  It  is  not  disputed  but  that  the  fam- 
ily physician  of  plaintiff  was  present  on  the  occasion  of  the  operation, 
and  at  her  request.     But  the  purpose  of  his  presence  was  not  that  he 


Ch.  1)  TRESPASSES  141 

might  participate  in  the  operation,  nor  does  it  appear  that  he  was 
authorized  to  consent  to  any  change  in  the  one  originally  proposed  to 
be  made.  Plaintiff  was  naturally  nervous  and  fearful  of  the  conse- 
quences of  being  placed  under  the  influence  of  ancESthetics,  and  the 
presence  of  her  family  physician  was  requested  under  the  impression 
that  it  would  allay  and  calm  her  fears.  The  evidence  made  the  ques- 
tion one  of  fact  for  the  jury  to  determine.  *  *  * 
Order  affirmed. ^^ 

81  Part  of  the  opinion  is  omitted.    See  ante,  p.  78. 

Compare  Bennan  v.  Parsonuet  (1912)  S3  N.  J.  Law,  20.  8.3  Atl.  948:  P.  ap- 
plied to  I).,  a  surgeon,  to  operate  upon  a  rupture  in  P.'s  left  groin.  After  P. 
had  been  placed  under  the  anaesthetic,  D.  discovered  in  P.'s  right  groin  a  rup- 
ture of  more  serious  menace,  and  likely  to  cause  P.'s  death  if  strangulation  oc- 
curred. This  danger  was  not  to  be  apprehended  from  the  other  rupture,  which 
had  been  operated  upon  before,  although  without  entire  success.  D.  operated 
upon  the  more  serious  rupture  without  waiting  for  P.  to  regain  consciousness. 
In  an  action  by  P.  for  assault  and  battery,  the  jury,  under  the  charge  of  the 
court,  found  that  D.  had  performed  an  operation  upon  P.  without  his  consent, 
and  rendered  a  verdict  of  $1,000.  The  Supreme  Court  set  aside  the  verdict, 
upon  the  theory  of  an  implied  assent.  "The  conclusion  to  which  we  are  led," 
said  Garrison,  J.,  deliveriug  the  opinion,  "is  that  when  a  person  has  selected 
a  surgeon  to  operate  upon  him,  and  has  appointed  no  other  person  to  represent 
him  during  the  period  of  unconsciousness  that  constitutes  a  part  of  such  oper- 
ation, the  law  will  by  implication  constitute  such  surgeon  the  representative 
pro  hac  vice  of  his  patient,  and  will,  within  the  scope  to  which  such  implication 
applies,  cast  upon  him  the  responsibility  of  so  acting  in  the  interest  of  his 
patient  that  the  latter  shall  receive  the  full  benefit  of  that  professional  judg- 
ment and  skill  to  which  he  is  legally  entitled.  Such  implication  affords  no  li- 
cense to  the  surgeon  to  operate  upon  a  patient  against  his  will  or  by  subter- 
fuge, or  to  perform  upon  him  any  operation  of  a  sort  different  from  that  to 
which  he  had  consented  or  that  involved  risks  and  results  of  a  kind  not  con- 
templated. As  to  such  matters,  the  rule  in  question  submits  nothing  to  the 
judgment  of  the  surgeon,  who  as  the  implied  representative  of  his  patient  can 
under  such  implication  truly  represent  him  only  in  so  far  as  he  gives  to  him 
the  benefit  of  his  professional  wisdom  within  the  general  lines  of  the  curative 
treatment  agreed  upon  between  them,  unless,  of  course,  a  wider  discretion  has 
been  accorded  to  him.  Within  such  general  lines,  however,  much  is  necessarily 
left  to  the  good  judgment  of  the  operating  surgeon,  just  how  much  will  depend 
upon  the  circumstances  of  the  individual  case.  If  the  surgeon  transcends  his 
implied  authority  as  thus  defined,  the  question  of  his  skill  and  wisdom  is  ir- 
relevant, since  no  amount  of  professional  skill  can  justify  the  substitution  of 
the  will  of  the  surgeon  for  that  of  his  patient." 

Compare,  further,  Rishworth  v.  Moss  (1913,  Tex.  Civ.  App.)  l.o9  S.  W.  122 : 
A  child  11  years  of  age  was  taken  by  her  adult  sister  to  a  surgeon,  who,  with- 
out the  knowledge  of  the  child's  parents,  but  at  the  instance  and  request  of  the 
adult  sister,  placed  the  child  under  an  anaesthetic  with  a  view  to  an  operation 
for  the  removal  of  adenoids.  The  child  died  in  the  operation.  The  life  of  the 
child  was  not  dependent  upon  an  operation,  nor  was  there  any  emergency.  The 
parents  could  have  been  communicated  with  before  the  operation.  Held,  that 
the  child  had  no  authority  to  consent  to  the  operation,  and  that,  in  the  absence 
of  evidence  of  delegated  authority  in  the  sister,  the  surgeon  was  liable  although 
usiug  due  skill. 

See,  also,  I'ratt  v.  Davis  (1906)  224  111.  300,  79  N.  E.  502,  7  L.  R.  A.  (N.  S.) 
609,  8  Ann.  Cas.  197:  H.  placed  his  wife.  P.,  in  a  sanitarium  for  treatment. 
The  physician  in  charge,  D.,  told  H.  that  a  proposed  operation  would  be  a 
trifling  one,  but  said  al.so  that  two  operations  might  be  necessary.  Thereafter 
D.  performed  one  operation,  and  P.  returned  home.  There  being  no  improve- 
ment, n.  brought  P.  back  to  the  sanitarium,  and  D.  the  next  day  performed  a 
second  o])eration,  but  without  asking  the  consent  of  either  II.  or  P.  There 
was  no  lack  of  skill  in  performing  the  second  operation.     Held,  that  D.  wa-S 


142  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

STOUT  V.  WREN. 

(Supreme  Court  of  North  Carolina,  1821.    8  N.  C.  420,  9  Am.  Dec.  653.) 

Action  for  damages  for  a  battery.  The  facts  were  that  the  plain- 
tiff and  defendant  quarreled  and  agreed  to  fight,  and  that  after  they 
had  gone  out  for  that  purpose  the  defendant  asked  the  plaintiff  if 
he  would  "clear  him  of  the  law,"  and  the  latter  said,  "Yes,"  where- 
upon the  defendant  beat  him,  he  making  no  resistance.  There  was 
some  evidence,  contradicted  however  by  other  witnesses,  that  the 
plaintiff  was  so  drunk  as  not  to  know  what  he  was  doing.  The  court 
instructed  the  jury  that  if  the  plaintiff  was  so  intoxicated  as  not  to 
know  what  he  was  about,  he  should  have  a  verdict,  otherwise  not, 
for  his  assent  to  the  injury  barred  his  right  of  recovery.  There  was 
a  verdict  for  the  defendant  and  judgment  thereon,  a  new  trial  having 
been  refused,  and  the  plaintiff  appealed  to  this  court. 

Taylor,  C.  J.  It  is  equally  reasonable  and  correct,  that  a  man 
shall  not  recover  a  recompense  for  an  injury  received  by  his  own 
consent,  but  the  rule  must  necessarily  be  received  with  this  qualifica- 
tion, that  the  act  from  whence  the  injury  proceeded  be  lawful.  Hence 
in  those  manly  sports  and  exercises  which  are  thought  to  qualify  men 
for  the  use  of  arms,  and  to  give  them  strength  and  activity,  if  two 
played  by  consent  at  cudgels,  and  one  hurt  the  other,  no  action  would 
lie.  But  where  in  an  action  for  assault  and  battery,  the  defendant 
offered  to  give  in  evidence  that  the  plaintiff  and  he  boxed  by  consent, 
from  whence  the  injury  proceeded,  it  was  held  to  be  no  bar  to  the 
action,  for  as  the  act  of  boxing  is  unlawful,  the  consent  of  the  par- 
ties to  fight  could  not  excuse  the  injury :  Boulter  v.  Clark,  Bull.  N. 
P.  16.  The  consequence  of  this  distinction  is  apparent  also  in  the 
law  of  homicide;  for  if  death  ensue  from  innocent  and  allowable 
recreations,  the  case  will  fall  within  the  rule  of  excusable  homicide, 
but  if  the  sport  be  unlawful  and  endanger  the  peace,  and  death  ensue, 
the  party  killing  is  guilty  of  manslaughter:  Fost.  259.  It  is  laid  down 
in  Matthew  v.  Ollerton,  Comb.  218,*^-  that  if  one  license  another  to 
beat  him,  such  license  is  void,  because  it  is  against  the  peace,  and  the 
plaintiff  recovered  a  verdict  and  judgment. 

liable.  Scott,  C.  J.,  delivering  the  opinion,  reniarks :  "Where  the  narr.  sliows 
the  act  to  have  been  a  trespass  to  the  person,  or  avers  it  to  have  been  without 
the  consent  of  the  patient,  it  wonkl  seem  to  le  unnecessary  to  go  farther  and 
negative  the  fact  that  some  otlier  person  lawfully  authorized  to  act  for  the 
patient  consented.  The  question  of  the  consent  of  such  other  person,  if  in  the 
case,  might  well  be  left  to  be  presented  by  a  plea  in  bar." 

8  2  This  case,  Matthew  v.  Ollerton  (1693),  was  in  debt  upon  an  award;  the 
remark  quoted  was  a  dictum.  It  is  apparently,  however,  the  beginning  of  the 
doctrine  upon  this  point.  See  Bell  v.  llanslev  (is.").!)  4S  N.  C.  131;  Adams  v. 
Waggoner  (1870)  3:',  Ind.  531,  5  Am.  Kep.  230;  Shay  v.  Thompson  (1SS4)  59  Wis. 
540,  ISN.  W.  473,  48  Am.  Rep.  538;  Willey  v.  Carpenter  (1892)  04  Vt.  212,  23 
Atl.  030.  35  Jj.  R.  A.  S.T,:  Lund  v.  Tvler  (1901)  115  Iowa,  230,  88  N.  W.  333;. 
Morris  v.  Miller  (1909)  83  Nob.  218,  119  N.  W.  458,  20  L.  R.  A.  (N.  S.)  907,  131 
Am.  St.  liep.  030,  17  Ann.  Cas.  1047. 


Ch.  1)  TRESPASSES  143 

The  case  was  very  fairly  put  to  the  jury,  as  to  the  evidence  of  the 
plaintiff's  intoxication,  but  I  think  the  law  was  misconceived  in  stat- 
ing to  them,  that  if  the  plaintiff  was  sober  and  assented,  he  was  not 
entitled  to  recover.    There  must  be  a  new  trial. *^ 


EVANS  V.  WAITE. 

(Supreme  Court  of  Wisconsin,  1892.    83  Wis.  286,  53  N.  W.  445.) 

This  is  an  action  to  recover  damages  for  personal  injuries  alleged 

to  have  been  inflicted  by  defendant  upon  plaintiff.     It  is  charged  in 

the  complaint  that: 

"On  July  4,  1891,  while  the  plaintiff  was  lawfully  riding  on  horseback  on  the 
public  highway,  in  company  with  defendant,  the  defendant,  being  then  and 
there  armed  with  a  revolver  loaded  Avith  powder  and  leaden  ball,  negligently 
and  carelessly  discharged  the  said  revolver  so  that  the  ball  therefrom  struck 
the  plaintiff  in  the  hip,  and  passed  on  through  the  flesh  into  his  thigh,  where 
it  became  lodged  and  imbedded  so  that  it  was  impracticable  to  remove  the 
same;  and  that  the  said  ball  so  fired  from  the  revolver  in  the  hands  of  the 
defendant  caused  a  deep,  painful,  and  dangerous  wound.'" 

It  is  further  alleged  that  the  defendant  is  a  minor  of  about  the  age 
of  eighteen  years. 

The  defendant  answered  by  his  guardian :  (1)  A  general  denial ; 
and  (2)  that  the  plaintiff  was  guilty  of  contributory  negligence,  in  that 
he  enticed  the  defendant  to  go  with  him  for  the  purpose  of  shooting, 
and  that  while  the  parties  were  shooting  the  plaintiff  was  accidentally 
injured,  and  not  through  any  negligence  of  the  defendant. 

83  lu  Morris  v.  Miller  (1909)  83  Neb.  218,  119  N.  W.  460,  20  L.  E.  A.  (N.  S.) 
907,  131  Am.  St.  Rep.  636,  17  Ann.  Cas.  1047,  the  following  instruction  had  been 
given:  "You  are  instructed  that  if  you  believe  from  the  evidence  that  plain- 
tiff and  defendant  voluntarily  and  by  agreement  entered  into  a  fight,  still  I 
charge  you  that  such  agreement,  if  made,  was  unlawful,  for  the  reason  that 
.such  agreement,  if  made,  would  be  in  violation  of  the  laws  of  the  state  and 
void,  and  such  agreement,  if  made,  would  not  be  any  defense  to  this  action." 
Referring  to  it,  Reese,  C.  J.,  remarked :  "This  instruction  was  given  as  ap- 
I)licaljle  to  the  contention  that  the  fight  or  combat  was  entered  into  voluntarily 
and  by  mutual  agreement,  and  that  the  unsuccessful  party  to  the  strife  could 
not  transfer  his  cause  from  the  street  to  the  courts  and  recover  damages  for 
whatever  injury  he  might  sustain  by  reason  of  the  prowess  or  activity  of  his 
adversary.  At  the  time  of  the  argument  of  the  case  at  the  bar  of  this  coiut, 
the  writer  was  of  the  opinion  that  the  giving  of  the  instruction  might  have 
been  erroneous,  but  more  mature  reflection  and  an  examination  of  the  authori- 
ties have  led  to  a  different  conclusion.  It  is  true  that  an  instruction  of  this 
kind  would  be  condemned  by  some  reimtable  authorities,  among  which  are  Gal- 
braith  v.  Fleming  (18S6)  60  Mich.  403,  27  N.  W.  581,  and  Smith  v.  Simon  (1888) 
69  Mich.  481,  37  N.  W.  548;  but  it  is  quite  clear  that  the  great  weight  of  au- 
thority is  the  other  way,  and  that  the  recognized  rule  is  that  where  two  parties 
fight  voluntarily,  either  party  may  recover  from  the  other  the  actual  damages 
suffered,  and  the  consent  of  the  plaintiff  to  engage  in  the  combat  will  not  bar 
his  suit  to  recover.'' 

Compare  Barliolt  v.  Wright  (1887)  45  Ohio  St.  177.  12  N.  E.  185,  4  Am.  St. 
Rep.  535,  where,  under  a  general  denial,  the  agreement  to  fight  was  shown  in 
mitigation  of  damages,  but  was  no  bar  to  the  action. 


144  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

On  the  trial  it  was  proved  that  the  defendant  was  a  minor;  that 
on  the  occasion  mentioned  in  the  pleadings  he  was  armed  with  a  re- 
volver ;  and  that  the  plaintiff  was  wounded,  as  charged  in  the  com- 
plaint, by  a  bullet  discharged  from  the  revolver  by  accident,  when  in 
the  hands  of  the  defendant.  The  circuit  judge  held  that,  because  the 
defendant  was  a  minor  and  was  armed  with  a  revolver  in  violation 
of  chapter  329,  Laws  of  1883  (S.  &  B.  Ann.  St.  §  4397b),  he  was 
liable  to  the  plaintiff  for  the  injury,  without  regard  to  the  question 
of  negligence.  Thereupon  the  jury  were  instructed  to  find  for  the 
plaintiff  and  to  assess  damages  for  the  injury.  The  court  confined 
the  recovery  to  compensatory  damages.  The  jury  assessed  plaintiff's 
damages  at  $375,  nearly  $150  of  which  was  for  actual  necessary  ex- 
penses incurred  by  the  plaintiff,  and  for  loss  of  time  by  reason  of 
the  injury.  A  motion  for  a  new  trial  was  denied,  and  judgment  en- 
tered for  the  plaintiff  pursuant  to  the  verdict.  The  defendant  ap- 
peals from  the  judgment. 

Lyon,  C.  J.  In  Shay  v.  Thompson,  59  Wis.  540,  IS  N.  W.  473, 
48  Am.  Rep.  538,  it  was  held  that  if  two  persons,  by  mutual  consent, 
in  anger  fight  together,  each  is  liable  to  the  other  for  actual  damages. 
The  fighting  being  unlawful,  the  consent  of  either  party  is  no  bar  to 
the  action.  The  authorities  upon  which  the  decision  is  based  are 
cited  in  the  opinion.  The  rule  of  that  case  applies  here.  It  was  un- 
lawful for  the  defendant  to  be  armed  with  a  revolver  when  the  plain- 
tiff was  injured,  and  hence  he  is  liable  for  any  injur}^  inflicted  by  him 
with  such  weapon.  It  is  immaterial  that  the  plaintiff  was  consenting 
to  the  defendant  being  so  armed  and  to  his  use  of  the  revolver.  Such 
is  the  rule  of  Shay  v.  Thompson,  59  Wis.  540,  18  N.  W.  473,  48  Am. 
Rep.  538.  The  only  effect  of  such  consent  was  to  confine  the  re- 
covery to  compensatory  damages,  and  it  was  so  restricted. 

The  question  of  negligence  is  also  immaterial.  True,  the  complaint 
charges  that  the  defendant  was  negligent,  but  it  also  contains  a  suffi- 
cient statement  of  a  cause  of  action  based  upon  the  fact  that  the 
defendant  was  unlawfully  armed  with  the  revolver  with  which  he 
wounded  the  plaintiff.  Were  there  any  defect  in  the  complaint  in  that 
view  of  the  case,  it  was  amendable,  for  the  whole  transaction  was 
fully  proved  on  the  trial  without  objection.  This  brings  the  case 
within  the  rule  which  allows  the  pleading  to  be  amended  to  correspond 
with  the  proofs,  or  permits  a  variance  between  the  pleadings  and 
proofs  to  be  disregarded.  We  fail  to  find  any  error  disclosed  in  the 
record. 

By  the;  Court.     The  judgment  of  the  circuit  court  is  affirmed."** 

84  Accord:  Horton  v.  Wylie  (1902)  115  Wis.  505,  92  N.  W.  245,  95  Am.  St. 
Rep.  953:  P.  and  D.,  two  boys  about  13  years  of  age,  were  plajing  "cowboy" 
in  a  pasture.  D.  had  a  loaded  revolver.  Both  boys  had  been  alternately  point- 
ing it  at  each  other.  D.  pointed  it  at  P.,  at  close  range,  and  at  full  cock.  P. 
struck  up  the  revolver  with  his  hand,  and  it  went  off,  wounding  P.    The  pos- 


Ch.  1)  TRESPASSES  145 

WELSUND  V.   SCHUELLER 

(Supreme  Court  of  Minnesota,  1906.    98  Minn.  -175,  108  N.  W.  4S3.) 

This  was  an  action  to  recover  damages  for  seduction.  The  plain- 
tiff was  an  uneducated  and  inexperienced  girl  of  16,  without  relatives 
in  this  country.  She  could  not  speak  English,  and  was  dependent  upon 
her  own  labor  for  support.  While  employed  as  a  servant  in  the  fam- 
ily of  defendant's  father,  she  was  seduced  by  defendant,  who  ob- 
tained her  consent  by  assurances  of  love  and  caressing,  and  by  in- 
ducing her  to  believe  she  would  lose  her  place  of  employment  if  she 
did  not  submit.  The  relation  continued  about  two  months,  when  the 
defendant  absconded,  and  did  not  return  to  the  state  until  five  years 
after  her  child  was  born.  A  demurrer  was  sustained  by  the  trial 
court,  upon  the  ground  that  the  complaint  did  not  state  facts  sufficient 
to  constitute  a  cause  of  action. 

Lewis,  J.  (after  stating  the  facts).  No  right  of  action  existed  at 
common  law  in  favor  of  a  woman  against  her  seducer.  The  right  to 
recover  damages  for  seduction  is  at  common  law  limited  to  the  father 
or  any  one  standing  in  loco  parentis.  Although  damages  were  not 
-limited  to  the  loss  of  services,  yet  the  action  was  based  upon  the  re- 
lation of  master  and  servant.  Some  states,  including  our  own,  have 
modified  the  common  law  permitting  the  action  to  be  maintained  by 
the  parent  or  guardian,  even  though  the  daughter  or  ward  is  not  liv- 
ing with  or  in  the  service  of  the  plaintiff",  and  although  there  is  no 
loss  of  service.  And  in  a  few  states  the  right  of  action  is  conferred 
upon  the  female  seduced,  notably  Indiana,  Iowa,  and  Oregon.  Even 
in  those  states  the  courts  have  sharply  drawn  the  distinction  between 
real  seduction  and  acquiescence,  holding  that  no  cause  of  action  ex- 
isted if  it  was  shown  to  be  a  voluntary  act.  Consent  must  be  pro- 
cured by  some  trick  or  artifice  other  than  mere  solicitation.  Brown 
V.  Kingsley,  38  Iowa,  220.  The  statute  only  applies  where  the  defend- 
ant has  been  mainly  instrumental  in  occasioning  the  wrong.  Breon 
V.  Henkle,  14  Or.  494,  13  Pac.  289.  However,  in  the  absence  of  any 
modification  of  the  common  law,  the  action  will  lie  where  the  defend- 
ant fraudulently  acquired  possession  of  his  victim  by  taking  her  into 
his  family  as  a  ward.     Smith  v.  Richards,  29  Conn.  232. 

The  people  of  this  state  have  seen  fit  to  acquiesce  in  the  common 
law,  except  as  stated.  It  would  be  debatable  whether  the  facts  alleged 
in  the  complaint  now  before  us  are  sufficient,  even  with  thd  statutory 
modification  above  noted,  and  certainly  they  do  not  constitute  such  ex- 
session  of  a  revolver  by  a  minor  and  the  pointing  of  it  were  both  forbidden 
by  statute. 

Compare  Gilmore  v.  Fuller  (1902)  198  111.  130,  65  N.  E.  84,  60  L.  R.  A.  2S6 : 
P.,  a  member  of  a  charivari  party  serenading  a  bridal  couple  with  firearms, 
was  accidentally  shot  by  D.,  another  member  of  the  party.  Held,  that  there 
could  be  no  recovery. 

Hepb. Torts — 10 


liG  TORTS  THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

ceptional  circumstances  as  to  bring  tlie  case  within  Smith  v.  Richards. 
As  the  law  is,  no  cause  of  action  is  stated,  and  whether  it  is  wise  to 
change  it  calls  for  no  opinion  on  our  part.  That  is  a  question  con- 
cerning which  there  is  a  diversity  of  opinion  and  can  only  be  deter- 
mined by  the  legislative  power. 
Order  affirmed.*^ 


(b)   Assumption  of  Risk  in  Trespass  se   ^ 

MIDDLETON  v.  BRIDELYNGTON. 

(De  Banco  Roll,  Hilary  12  Rich.  II.     [13SS]  rot  124,  York.) 

William  the  son  of  Richard  of  Middleton,  of  Beverly,  draper,  was 
attached  to  reply  to  Gregory  of  Bridelyngton,  of  a  plea  that  with  force 
and  arms  he  assaulted  the  said  Gregory  at  Beverly,  and  beat,  and 
wounded  and  ill  treated  him,  to  the  great  damage  of  the  said  Gregory, 
and  contra  pacem.     And  further  that  the  said  Gregory  complains  by 

85  Accord,  on  the  common-law  rule :  Oberlin  v.  Upson  (1911)  84  Ohio  St.  Ill, 
95  X.  E.  511,  Ann.  Cas.  1912B,  1061  note;  Robinson  v.  Musser  (1SS3)  78  Mo. 
153  (In  a  civil  action  for  an  alleged  rape,  i;he  plaintiff's  testimony  showed  con- 
sent. A  judgment  for  plaintiff  was  reversed,  the  Supreme  Court  remarking, 
"We  feel  constrained  to  say,  'Volenti  non  fit  injuria' "). 

On  the  statutory  change,  permitting  the  woman  to  sue  her  seducer,  see  Brad- 
shaw  V.  Jones  (1899)  103  Tenn.  331.  52  S.  W.  1072,  with  an  elaborate  note  in  76 
Am.  St.  Rep.  655,  659;  Wilson  v.  Mangold  (1912)  154  Iowa,  352,  134  N.  W.  1072 
("If  without  being  deceived,  and  without  any  false  promises,  deceit,  or  artifice, 
the  plaintiff  voluntarily  submitted,  the  defendant  would  not  be  liable"). 

See,  also,  for  a  summary  of  the  varied  character  of  this  statutory  modifica- 
tion of  the  common-law  principle.  35  Cyc.  1291,  1295,  and  cases  cited  in  note  3; 
and  the  cases  under  Dec.  Dig.,  Key-Xo.,  "Seduction."  §  11. 

8  6  The  doctrine  of  assumption  of  risk  appears  more  often  in  negligence 
cases,  and  especially  in  cases  which  involve  the  relation  of  master  and  servant. 
It  is  sometimes  treated  as  resting  on  an  implied  contract.  See  Dowd  v.  Xew 
York,  etc.,  Ry.  (1902)  170  X.  Y.  459,  471,  63  X.  B.  541,  and  cases  there  cited. 
One  of  its  earliest  appearances  in  prominent  form  is  in  Ilott  v.  Wilkes  (1820) 
3  B.  &  Aid.  304,  22  R.  R.  400.  The  facts  here  were  as  follows:  The  defend- 
ant was  the  owner  of  Chrishall  Wood,  consisting  of  fifty  or  sixty  acres;  and 
by  his  order,  nine  or  ten  spring-guns  were  set  there.  Several  boards  were 
affixed,  containing  notice  to  the  public  that  such  instruments  were  so  placed. 
There  formerly  had  been  a  path  on  the  outside  of  the  wood,  but  it  had  not 
been  used  for  some  years.  The  plaintiff,  on  the  occasion  in  question,  ac- 
companied by  another  person,  went  out  in  the  day  time  for  the  purpose  of 
gathering  nuts,  and  proposed  to  his  companion  to  enter  Chrishall  Wood.  The 
latter,  however,  refused,  unless  the  plaintiff  would  go  first ;  and  he  then  told 
plaintiff'  that  spring-guns  were  set  there.  They  both,  however,  entered  the 
wood,  and  the  plaintiff"  received  the  injury  which  was  the  subject  of  the  ac- 
tion, in  consequence  of  treading  on  the  wire  communicating  with  the  spring- 
gun.  Upon  these  facts,  the  learned  judge  considering  that  this  involved  the 
same  question  which  was  under  the  consideration  of  the  Common  Pleas,  in 
Deane  v.  Clayton  (1816)  2  Marsh.  577,  directed  the  jury  to  find  a  verdict  for 
the  plaintiff,  and  reserved  to  the  defendant  liberty  to  move  to  enter  a  nonsuit 
The  jury  assessed  the  damages  at  £50. ;  and  found,  that  at  the  time  of  the 
injury,  there  was  not  iiny  footpath  near  the  place  in  question;    that  the  plain- 


Ch.  1)  TRESPASSES  147 

John  of  Wilton,  his  attorney,  that  the  said  W'ilHam,  on  the  Monday 
next  after  the  feast  of  the  Assumption  of  the  Virgin  ]\Iary,  8  Richard 
II.,  vi  et  armis,  to  wit,  with  swords,  bows  and  arrows,  assaulted, 
wounded  etc.  the  said  Gregory  at  Beverly,  contra  pacem  etc.,  and  he 
claimed  damages  of  twenty  pounds. 

The  defendant  by  Thomas  of  Lynton,  his  attorney,  defended  the 
force  and  arms  and  pleaded  not  guilty,  and  placed  himself  upon  the 
country,  upon  w'hich  issue  was  joined. 

And  as  to  the  beating  and  wounding  of  the  said  Gregory,  he  said 
that  he  and  the  said  Gregory,  being  between  the  ages  of  nine  and  ten 
years,  were  playing  together  at  Beverly  at  a  place  called  the  Feegang, 
and  there  of  their  common  accord  sported  and  played  together,  and 
the  harm  suffered  by  the  said  Gregory  was  done  in  play,  uninten- 
tionally and  without  malice  on  the  part  of  the  said  William. 

In  his  replication  Gregory  asserts  that  the  injury  w^as  done  intention- 
ally and  prays  that  this  may  be  inquired  of  by  the  country,  and  Wil- 
liam joins  issue. 

A  venire  facias  is  awarded,  and  the  defendant  finds  bail.* 

tiff  was  not  in  the  exercise  of  any  right  of  path,  but  was  gathering  nuts; 
and  that  he  had  Ivucwledge  and  notice  that  spring-guns  were  placed  in  the 
wood.  On  the  question  whether  a  nonsuit  should  be  entered,  all  the  judges 
concurred  that  the  action  could  not  be  maintained.  Said  Bayley,  J.:  "This  is 
a  case  in  which  the  plaintiff  had  notice  that  there  were  spring-guns  in  the 
wood.  The  declaration  states  that  the  plaintiff  had  no  notice  of  the  places  or 
of  the  direction  in  wliich  the  guns  themselves  were  placed,  or  where  the  wires 
communicating  with  the  guns  were  placed;  but  it  is  not  necessary  to  give 
notice  to  the  public  that  guns  are  placed  in  such  particular  spots  in  such 
particular  fields ;  for  that  would  deprive  the  property  of  the  intended  pro- 
tection. It  is  sufficient  for  a  party  generally  to  say,  'There  are  spring-guns 
in  this  wood' ;  and  if  another  then  takes  upon  himself  to  go  into  the  wood, 
knowing  that  he  is  in  the  hazard  of  meeting  with  the  injuiy  which  the  guns 
are  calculated  to  produce,  it  seems  to  me  that  he  does  it  at  his  own  peril,  and 
must  take  the  consequences  of  his  own  act.  The  maxim  of  law,  'Volenti  non 
tit  injuria,'  applies ;  for  he  voluntarily  exposes  himself  to  the  mischief  which 
has  happened.  He  is  told  that  if  he  goes  into  the  wood  he  will  run  a  par- 
ticular risk,  for  that  in  those  grounds  there  are  spring-guns.  Notwithstanding 
that  caution,  he  says,  'I  will  go  into  the  wood,  and  I  will  run  the  risk  of  all 
consequences.'  " 

Compare  the  remark  of  Blackburn,  J.,  delivering  the  judgment  of  the  Ex- 
chequer Chamber  in  Fletcher  v.  Rylauds  (1866)  L.  R.  1  Ex.  265,  286:  "Traf- 
fic on  the  highways,  whether  by  land  or  sea,  cannot  be  conducted  without  ex- 
posing those  whose  persons  or  property  are  near  it  to  some  inevitable  risli ; 
and  that  being  so,  those  who  go  on  the  highway,  or  have  their  property  ad- 
jacent to  it,  may  well  be  held  to  do  so  subject  to  their  taking  upon  themselves 
the  risk  of  injurj-  from  that  inevitable  danger ;  and  persons  who  by  the 
license  of  the  owner  pass  near  to  warehouses  where  goods  are  being  raised 
or  lowered,  certainly  do  so  subject  to  the  inevitable  risk  of  accident.  In 
neither  case,  therefore,  can  they  recover  without  proof  of  want  of  care  or 
.skill  occasioning  the  accident;  and  it  is  believed  that  all  the  cases  in  which 
inevitable  accident  has  been  held  an  excuse  for  what  prima  facie  was  a 
trespass,  can  be  explained  on  the  same  principle,  viz.,  that  the  circumstances 
were  such  as  to  show  that  the  plaintiff  had  taken  that  risk  upon  himself." 

*  Note  from  the  Record.  See  Deiser's  edition  of  Y.  B.  12  Rich.  II.,  for  the 
Ames  Foundation,  pp.  125,  126. 

Compare  Briese  v.  Maechtle  (1911)  146  Wis.  SO,  1.30  N.  W.  SO.*?,  .35  L,  R. 
A.   (X.  S.)  574,  Ann.  Cas.  1912C,  176.     P.,  a  boy  ten  years  old.  and  D.,  a  boy 


148  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

COLE  V.  TURNER. 

(At  Nisi  Prins,  1704.    Holt,  K.  B.  108,  90  Reprint,  958.) 

At  Nisi  Pruis,  upon  evidence  in  trespass  for  assault  and  battery, 
Holt.  C.  J.,  declared,  1.  That  the  least  touching  of  another  in  anger 
is  a  battery. ^^  2.  If  two  or  more  meet  in  a  narrow  passage,  and  with- 
out any  violence  or  design  of  harm,  the  one  touches  the  other  gently, 
it  is  no  battery.*^  3.  If  any  of  them  use  violence  against  the  other, 
to  force  his  way  in  a  rude  inordinate  manner,  it  is  a  battery ;  or  any 
struggle  about  the  passage,  to  that  degree  as  may  do  hurt,  is  a  battery. 
Vid.  Bro.  Tresp.  236.    7  E.  4,  26.    22  Ass.  60.    3  H.  4,  9. 

Note:  It  was  in  action  of  battery  by  husband  and  wife,  for  a  bat- 
tery upon  the  husband  and  wife,  ad  dampnum  ipsorum ;  and  though 
the  plaintiff  had  a  verdict,  yet  the  Chief  Justice  said  he  should  never 
have  judgment.  And  judgment  w^as  after  arrested  above  upon  that 
exception. 


RUTER  V.  FOY. 
(Supreme  Court  of  Iowa,  1S77.    46  Iowa,  1.32.) 

The  plaintiff  avers  in  her  petition  that  the  defendant  assaulted  and 
beat  her  with  a  pitchfork,  whereby  she  sustained  great  injuries.  Tri- 
al by  jury.    Verdict  for  plaintiff"  for  $200.     Defendant  appeals. 

Adams,  J.  *  *  *  I.  The  defendant  asked  an  instruction  which 
is  in  the  following  Vv'ords :  "If  you  find  from  the  evidence  that  plain- 
tiff was  injured,  or  contributed  to  her  injury,  by  her  own  act  or  neg- 
ligence, defendant  would  not  be  liable  for  assault  and  battery  upon 
her,  and  plaintiff'  cannot  recover."  The  court  refused  to  give  the  in- 
struction and  the  refusal  is  assigned  as  error. 

of  about  the  same  age,  attended  the  same  school  and  at  recess  were  both  play- 
ins  in  the  school  yard.  As  P.  was  kneeling  to  shoot  a  marble,  D.  cam(>  running 
around  the  school  house,  being  chased  by  another  boy,  and  accidentally  ran 
into  P.,  knocking  him  over  and  so  injuring  his  eye  that  P.'s  sight  was  de- 
stroyed.   A  judgment  for  the  defendant  was  affirmed. 

87  Accord:  Kerriford's  Case  (1G30)  Clayton  22,  pi.  .38:  "Kerifford,  an  at- 
torny,  was  plaintifte  in  battery,  and  the  case  was  thus:  He  was  walking  in 
the  market  (as  attornies  do  too  much),  and  the  defendant  and  he  had  some 
angry  words  there,  upon  which  the  defoncbuit  did  presse  to  go  by  him.  and 
in  going,  by  reason  of  the  throng  of  people  tliere,  he  justled  the  plaintiffe.  and 
for  this  he  brought  this  action,  in  which  if  an  assault  onely  be  proved,  it  is 
sufficient,  and  holden  it  was  no  assault,  for  the  touching  him  or  justle  was 
to  another  end,  namely,  to  get  by  him  in  the  throng  and  not  to  beat  him,  etc." 

88  Compare  Reynolds  v.  Pierson  (1902)  29  Ind.  App.  27.3.  64  N.  E.  484:  P., 
a  man  6S  years  old,  was  standing  in  a  public  place  talking  to  S.,  when  D.,  a 
man  of  .35  years,  weighhig  225  pounds,  came  walking  briskly  towards  S.  As 
he  passed,  I),  seized  and  jerked  the  arm  of  !S.  The  force  of  D.'s  act  was  such 
that  P.,  whose  arm  S.  was  then  holding,  was  thrown  to  the  ground.  D.'s 
act  was  friendly  and  a  customary  form  of  greeting  between  him  and  S.  D. 
passed  on,  without  knowledge  that  P.  was  thrown  down  or  hurt. 


Ch.  1)  TRESPASSES  149 

The  doctrine  of  contributory  negligence  has  no  appHcation  in  an 
action  for  assault  and  battery.  There  can  be  no  contributory  negli- 
gence except  where  the  defendant  has  been  guilty  of  negligence  to 
which  the  plaintiff's  negligence  could  contribute.  An  assault  and 
battery  is  not  negligence.  The  former  is  intentional ;  the  latter  is  un- 
intentional.^^ 


SCANLON  V.  WEDGER. 

(Supreme  Judicial  Court  of  Massacluisetts,  1892.    156  Mass.  462,  31  N.  E.  642, 

IG  L.  R.  A.  393.) 

Tort,  for  personal  injuries.  Verdict  for  the  defendant,  and  Ham- 
mond, J.,  reported  the  case  for  the  determination  of  this  court. 

Allen,  J.  The  several  plaintiffs  were  injured  by  the  explosion  of 
a  bomb  or  shell  during  a  display  of  fireworks  in  Broadway  Square, 
which  was  a  public  highway  in  Chelsea.  This  display  was  made  by 
the  defendant  Wedger,  who  acted  under  a  license  from  the  mayor 
and  aldermen  of  Chelsea  for  a  display  of  fireworks  in  Broadway 
Square  on  that  evening,  under  Pub.  St.  1882,  c.  102,  §  55.  A  verdict 
was  returned  for  the  defendant,  and  the  jury  made  a*  special  finding 
that  the  defendant  in  firing  the  bomb  exercised  reasonable  care.    The 

8  9  Only  so  much  of  the  case  is  given  as  relates  to  this  one  point. 

Accord:  Steinmetz  v.  Kelly  (ISSO)  72  Ind.  442.  445  (37  Am.  Rep.  170):  "The 
doctrine,  that  contributory  negligence  on  the  part  of  the  plaintiff  will  defeat 
his  action,  has  been  generally  applied  in  actions  based  on  the  negligence  of 
the  defendant ;  in  short,  in  cases  involving  mutual  negligence.  But  it  has 
also  been  applied  in  some  cases  where  the  matter  complained  of  was  not  negli- 
gence merely,  but  the  commission  of  some  act  in  itself  unlawful,  without  ref- 
orence  to  the  manner  of  committing  it,  as  the  willful  and  unauthorized  ob- 
struction of  a  highway,  whereby  a  person  is  injured.  Butterfield  v.  Forrester 
(1S09)  11  East,  60;  Dygert  v.  Schenck  (1840)  23  ^Yend.  (N.  Y.)  446,  35  Am. 
Dec.  575.  The  doctrine,  however,  can  have  no  application  to  the  case  of  an 
intentional  and  unlawful  assault  and  battery,  for  the  reason  that  the  person 
thus  assaulted  is  under  no  obligation  to  exercise  any  care  to  avoid  the  same 
by  retreating  or  otherwise,  and  for  the  further  reason  that  his  want  of  care 
can.  in  no  just  sense,  be  said  to  contribute  to  the  injury  inflicted  upon  him  by 
such  assault  and  battery.  An  intentional  and  unlawful  assault  and  battery, 
intlicted  upon  a  person,  is  an  invasion  of  his  right  of  personal  security,  for 
which  the  law  gives  him  redress,  and  of  this  redress  he  cannot  be  deprived 
on  the  ground  that  he  was  negligent  and  took  no  care  to  avoid  such  invasion 
of  his  right."     Per  Worden,  J. 

And  see  Kain  v.  Larkin  (1890)  56  Hun,  79,  9  N.  T.  Supp.  89:  Action  to  re- 
cover for  the  death  of  Kain,  caused  by  the  wrongful  act  of  the  defendant. 
"In  this  case  the  defendant,  who  was  acting  as  an  officer,  told  Kain,  the  de- 
ceased, to  go  about  his  business,  and  shoved  him  off  the  sidewalk.  Kain  came 
back,  and  defendant  again  told  him  to  go  home.  He  said  defendant  could 
not  make  him.  Then  defendant  shot  him."  In  his  charge  to  the  jury,  the 
trial  judge  applied  to  the  case  the  principle  of  contributory  negligence,  and 
instructed  that  there  could  be  no  recovery  if  the  decedent  in  any  degree  con- 
tributed to  the  injury.  On  this  there  was  a  verdict  with  judgment  for  the 
defendant.     The  plaintiff  appealed. 


150  TORTS  THROUGH   ACTS   OF  ABSOLUTE  LIABILITY  (Part  1 

case  comes  to  us  on  a  report  which  states  that  if,  on  the  facts  contain- 
ed therein,  and  on  said  finding,  the  plaintiffs  are  entitled  to  recover, 
the  case  is  to  be  remitted  to  the  Superior  Court  for  the  assessment 
of  damages;  otherwise,  judgments  are  to  be  entered  for  the  defend- 
ant. It  is  therefore  to  be  considered  whether  it  appears  affirmatively 
that  the  plaintiffs  were  entitled  to  recover. 

The  plaintiffs  apparently  were  present  at  the  display  of  fireworks 
as  voluntary  spectators,  and  were  of  ordinary  intelligence.  No  fact 
is  stated  in  the  report  to  show  the  contrary,  nor  has  any  suggestion 
to  that  effect  been  made  in  the  argument.  The  plaintiffs  have  not 
rested  their  claims  at  all  upon  the  ground  that  they  were  merely  travel- 
lers upon  the  highway,  or  that  they  were  unaware  of  the  nature  and 
risk  of  the  display.  The  report  says :  "A  considerable  number  of 
persons  were  attracted  to  said  square  by  said  meeting,  and  said  bombs 
and  other  fireworks  which  were  being  exploded  there.  A  portion  of 
the  center  of  said  square,  about  forty  by  sixty  feet,  was  roped  off  by 
the  police  of  said  Chelsea,  and  said  bombs  or  shells  were  fired  off 
within  the  space  so  enclosed  and  no  spectators  were  allowed  to  be 
within  said  enclosure.  *  *  *  The  plaintiff's  were  lawfully  in  said 
highway  at  the  time  of  the  explosion  of  said  mortar,  and  near  said 
ropes,  and  were  in  the  exercise  of  due  care." 

The  bombs  or  shells  are  described  in  the  report,  and  they  were  to 
be  thrown  from  mortars  into  the  air,  it  being  intended  that  they  should 
explode  in  the  air  and  display  colored  lights.  They  were  apparently  a 
common  form  of  fireworks,  such  as  has  long  been  in  use. 

The  ground  on  which  the  plaintiffs  place  their  several  cases  is,  that 
the  Pub.  St.  1882,  c.  102,  §  55,  did  not  authorize  the  mayor  and  alder- 
men of  Chelsea  to  license  the  firing  of  anything  but  rockets,  crackers, 
squibs,  or  serpents,  and  that  therefore  the  act  of  the  defendant  in 
firing  bombs  or  shells  was  unauthorized  and  unlawful.  It  is  not  con- 
tended that  it  was  at  the  time  supposed,  either  by  the  defendant  or  by 
anybody  else,  that  the  license  was  insufficient  to  warrant  the  display 
which  was  actually  made.  The  licensee  was  the  chairman  of  a  com- 
mittee which  had  a  political  meeting  in  charge,  and  the  defendant 
acted  at  the  request  of  the  committee,  and  was  directed  by  them  as 
to  when  and  where  to  fire  oft'  the  fireworks. 

Under  this  state  of  things  it  must  be  considered  that  the  ])laintiffs 
were  content  to  abide  the  chance  of  personal  injury  not  caused  by  neg- 
ligence, and  that  it  is  immaterial  whether  there  w^as  or  was  not  a  valid 
license  for  the  display.  If  an  ordinary  traveller  upon  the  highway 
had  been  injured,  different  reasons  would  be  applicable.  Vosburgh  v. 
Moak,  1  Cush.  453,  48  Am.  Dec.  613;  Jenne  v.  Sutton,  43  N.  J. 
Law,  257,  39  Am.  Rep.  578 ;  Conradt  v.  Clauve,  93  Ind.  476,  47  Am. 
Rep.  388.  But  a  voluntary  spectator,  who  is  present  merely  for  the 
purpose  of  witnessing  the  display,  must  be  held  to  consent  to  it,  and 
he  suffers  no  legal  wrong  if  accidentally  injured  without  negligence 


Ch.  1) 


TRESPASSES  151 


on  the  part  of  any  one,  although  the  show  was  unauthorized.    He  takes 
the  risk.     See  Pollock  on  Torts,  138-144.^° 

In  the  opinion  of  a  majority  of  the  court,  the  entry  must  be,  judg- 
ment for  the  defendant.®^ 


90. The  reference  is  to  the  first  edition  of  Pollock  on  Torts.  But  see  the 
remark  of  the  same  author,  in  his  seventh  edition,  page  oOZr.  "Liability  under 
the  rule  in  Indermaur  v.  Dames  may  be  avoided  not  only  by  showing  con- 
tributory negligence  in  the  plaintiff,  but  by  showing  that  the  risk  was  as  well 
known  to  him  as  to  the  defendant,  and  that  with  such  knowledge  he  volunta- 
rily exposed  himself  to  it;  but  this  will  not  excuse  the  breach  of  a  positive 
statutory  dutj'." 

91  Morton  and  Knowlton,  J  J.,  dissented.  In  his  dissenting  opinion  Morton, 
J.,  remarks:  "It  is  carrying  the  doctrine  of  assumption  of  the  risk  further 
than  I  think  it  has  ever  been  carried,  to  say  that  one  who,  being  lawfully  on 
the  highway  and  in  the  exercise  of  due  care,  observes  as  a  spectator  an  un- 
lawful and  dangerous  exhibition  in  it,  assumes  the  risk  of  injury  from  it. 
The  exhibitor  is  bound  at  his  peril  to  see  that  he  has  a  valid  license.  If 
he  selects  the  highway  for  an  unlawful  and  dangerous  display  designed  or 
calculated  to  attract  the  public,  he,  and  not  the  spectators,  assumes  the  risk 
of  injury.  *  *  *  Fiu'ther,  the  question  of  assumption  of  the  risk  is  ordi- 
narily one  of  fact  for  the  jury.  The  plaintiffs  are  not  bound  to  show  that 
they  did  not  assume  the  risk.  Unless  it  appears  that  they  did,  they  are  en- 
titled to  recover.  This  court  cannot  say,  as  matter  of  law,  upon  the  facts  stat- 
ed, that  the  plaintiffs  assumed  the  risk.  Nothing  is  disclosed  as  to  the  cir- 
cumstances under  whicli  the  plaintiffs  were  present.  For  aught  that  appears, 
they  might  have  been  travellers,  stopping  for  a  moment  on  their  way  through 
the  square,  or  detained  by  the  crowd." 

That  it  is  no  part  of  the  plaintiff's  case  to  show  that  he  did  not  assume  the 
risk,  see  Dowd  v.  New  York,  etc.,  Ry.  (1902)  170  N.  Y.  459,  472,  63  N.  E.  541. 

The  majority  opinion  in  Scanlon  v.  Wedger  was  followed  in  Frost  v.  Jos- 
selyn  (1902)  ISO  Mass.  392,  62  N.  E.  469.  Its  doctrine  was  approved  in  John- 
son V.  City  of  New  York  (1906)  186  N.  Y.  139,  149,  78  N.  E.  715,  116  Am.  St. 
Rep.  045,  9  Ann.  Cas.  824:  P.  sought  to  recover  for  personal  injuries  caused 
by  being  struck  by  a  speeding  automobile  in  an  unlawful  speed  test  on  a  pub- 
lic highway.  The  plaintiff  was  present  not  as  a  casual  spectator  traveling  on 
the  highway,  but  for  the  express  purpose  of  seeing  a  test  in  which  automoliiles 
would  be  driven  at  the  greatest  possible  speed.  So,  in  Bogart  v.  City  of  New 
York   (1911)  200  N.  Y.  379,  93  N.  E.  937,  21  Ann.  Cas.  466. 

But  see  Moore  v.  City  of  Bloomington  (1912)  51  Ind.  App.  145,  95  N.  E. 
374:  A  city,  without  authority  to  do  so,  granted  the  free  use  of  certain  streets 
for  a  fireworks  display.  P.,  a  child  of  tender  years,  standing  in  the  street 
near  the  platform  from  whicli  the  fireworks  were  being  discharged,  was  struck 
in  the  face  by  a  skyrocket.  Said  Lairy,  C.  J.,  delivering  the  opinion:  "It  ap- 
pears from  the  evidence  in  this  case  that  appellant  [P.]  was  not  using  the 
street  for  travel  at  the  time  of  her  injury,  but  that  she  had  come  to  the  place 
solely  for  the  I'urpose  of  watching  the  fireworks.  Under  such  circumstances 
it  is  insisted  that  she  assumed  the  risk  of  injury  and  cannot  recover  for  that 
reason.  *  *  *  It  appears  that  she  was  a  girl  of  tender  years,  and  she  may 
not  have  known  or  fully  appreciated  the  danger  she  was  encountering.  She 
may  have  had  no  knowledge  of  the  dangerous  character  of  the  fireworks  which 
were  being  used  or  of  the  inexperience  of  the  person  iii  charge."  A  judgment 
for  the  defendant  was  accordingly  reversed. 


152  TORTS  THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  I 

SULLIVAN  V.  DUNHAM. 

(Supreme  Court  of  New  York,  Appellate  Division,  1806.     10  App. 
Div.  4;J8,  41  X.  Y.   «upp.  108o.) 

Action  by  Mary  Sullivan,  as  administratrix  of  the  estate  of  Annie 
E.  Harten,  deceased,  to  recover  for  the  death  of  her  intestate.  From 
a  judgment  entered  on  a  verdict  in  favor  of  plaintiff,  and  from  an 
order  denying  a  motion  for  a  new  trial,  defendants  appeal. 

WiLLARD  BartlivTT,  J*  *  *  'fj-jg  complaint  charged  that  the 
defendants  "wrongfully  and  unlawfully,  and  in  reckless  disregard  of 
human  life,  did  carelessly,  negligently,  and  unskillfully  blast  and  blow 
out"  the  tree;  but  the  learned  judge  who  presided  at  the  trial  held 
that  the  action  was  based,  not  at  all  upon  negligence,  but  upon  a  wrong 
consisting  of  the  improper  use  of  real  estate.  The  jury  were  told, 
in  substance,  that  the  plaintiff  was  entitled  to  a  verdict  if  they  were 
satisfied  that  the  young  girl  was  struck  and  killed  in  the  highway  by 
a  portion  of  the  tree  blasted  out  on  Dr.  Dunham's  land  by  Messrs. 
Dinkel  &  Jewell,  employed  by  him  to  do  the  work  under  the  direction 
of  his  foreman.  Ward.  The  court  also  instructed  the  jury  that  the 
caution  which  the  young  lady  exercised  in  respect  to  taking  care  of 
herself  was  not  to  be  considered  having  previously,  in  the  course  of 
the  trial,  excluded  evidence  offered  by  the  defendant  for  the  purpose 
of  showing  that,  after  she  was  warned  of  the  danger,  she  voluntarily 
remained  in  the  vicinity. 

In  the  instruction  and  ruling  upon  the  degree  of  care  required  of 
the  injured  person  in  such  a  case,  it  is  clear  that  an  error  was  com- 
mitted. Even  where  the  cause  of  action  is  not  founded  upon  negli- 
gence, but  rests  upon  the  commission  of  a  trespass  by  the  defendant, 
the  party  suffering  injury  therefrom  is  not  wholly  relieved  of  the  ob- 
ligation to  exercise  some  degree  of  caution.  If  he  is  on  his  own 
land,  or  in  the  public  highway,  he  has  a  right  to  assume,  in  the  ab- 
sence of  knowledge  or  fair  warning  to  the  contrary,  that  others  will 
not  endanger  his  safety  by  trespass  or  other  wrong.  St.  Peter  v.  Den- 
ison,  58  N.  Y.  416,  17  Am.  Rep.  258;  Ochsenbein  v.  Shapley,  85  N. 
Y.  214.  But,  where  there  is  personal  notice  of  the  existence  of  dan- 
ger, or  fair  warning,  the  law  imposes  upon  the  person  whose  safety 
is  imperiled  the  duty  of  using  such  reasonable  means  as  are  at  hand 
to  protect  himself,  and  he  cannot  voluntarily  and  knowingly  remain 
in  a  place  of  risk  without  losing  his  right  of  action  for  the  injury 
which  it  was  thus  in  his  power  to  avoid.  While  I  am  far  from  saying 
that,  upon  the  proof  actually  before  the  court  in  the  case  before  us, 
the  young  woman  who  lost  her  life  neglected  any  precaution  which  the 
law  demanded,  I  think  there  was  error  in  the  exclusion  of  evidence 
which  was  offered  on  that  subject.     *     *     * 

1  think  the  judgment  should  be  reversed,  and  a  new  trial  granted."^ 

02  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point.  See  ante, 
p.  08. 

For  the  subsequent  history  of  this  case,  see  (1898)  35  App.  Div.  633,  54  N. 


Ch.  1)  TRESPASSES  153 

WELLS  V.  KNIGHT. 

(Supreme  Court  of  Rhode  Island.  1911.     32  R.  I.  432.  80  Atl.  16.) 

Action  by  the  widow  and  minor  children  of  Llewellyn  Wells,  for 
damages,  under  a  Rhode  Island  statute,  on  account  of  his  death  by 
the  alleged  wrongful  act  of  the  defendant.  There  was  a  verdict  for 
■defendant,  and  plaintiffs  bring  exceptions.^^ 

Parkhurst,  J.  *  *  *  In  the  writ  and  declaration  in  the  case 
at  bar  the  action  is  styled  "an  action  of  the  case."  The  amended  dec- 
laration says  that  it  was  the  duty  of  the  defendant  "to  exercise  due, 
proper,  and  reasonable  care  in  the  control,  management,  and  opera- 
tion" of  his  premises,  and  in  the  blasting  or  quarrying  of  rock  or  stone 
as  aforesaid,  and  to  give  to  travelers  due,  proper,  and  sufficient  notice 
of  such  blasting,  so  that  they  would  not  be  injured.  The  declaration 
alleges,  as  to  the  wrongful  act  complained  of : 

"And  said  plaintiffs  aver  that  said  Llewellyn  "Wells,  on,  to  wit,  said  21st  day 
ot  May,  A.  D.  1907,  at  said  Cranston,  was  in  the  exercise  of  due  care,  and  was 
driving  in,  to  wit,  a  southerly  direction,  a  horse  and  wagon  or  vehicle  over, 
across,  and  upon  said  Scituate  avenue,  in  said  town  of  Cranston,  and  while 
driving  or  traveling  as  aforesaid,  and  while  in  the  exercise  of  due  care,  said 
Llewellyn  Wells  was  struck  in  the  right  side,  chest,  arm,  and  body  with  a 
certain  stone  or  rock,  which  was  thrown  or  blown  by  blasting  or  quarrying 
as  aforesaid,  from  said  ledge  or  quarry  over,  across,  and  upon  said  highway, 
which  said  blasting  or  quarrying  was  done  by  said  defendant,  his  agents  and 
servants." 

This,  then,  is  the  statement  of  the  case  upon  which  the  plaintiffs 
must  recover.  The  declaration  states  just  how  the  accident  happened. 
It  does  not  state  whether  or  not  it  was  due  to  negligence. 

It  is  plainly  a  declaration  in  trespass,  alleging  a  direct  and  forcible 
trespass  to  the  person,  without  any  allegation  of  negligence  on  the 
part  of  the  defendant.  Such  a  declaration  in  trespass,  founded  on  a 
writ,  sounding  in  case,  is  permitted  by  statute  (section  246,  Court  and 
Practice  Act  1905),  as  construed  in  Adams  v.  Lorraine  Mfg.  Co.,  29 
R.  I.  333,  71  Atl.  180 ;  and  we  regard  the  action  in  form  as  an  action 
of  trespass,  and  not  as  an  action  of  trespass  on  the  case  for  negligence. 
It  follows,  therefore,  that  as  there  is  no  allegation  of  negligence,  and 
the  action  is  founded  on  a  direct  trespass  to  the  person,  the  evidence 
offered  in  regard  to  the  negligence  of  the  defendant  in  the  matter  of 
the  use  of  explosives  and  of  the  covering  of  the  blast  was,  under  strict 
rules,  inadmissible.  Furthermore,  this  court  has  recently  approved 
the  rule  set  forth  in  Hickey  v.-  McCabe  &  Bihler,  30  R.  I.  346,  348, 
75  Atl.  404,  405,  27  L.  R.  A.  (N.  S.)  425,  19  Ann.  Cas.  783,  that  "it 
is  well  settled  that  negligence  need  not  be  shown  in  order  to  recover 
for  damage  done  by  matter  thrown  by  blasting  upon  the  adjoining  land. 

y.  Supp.  962,  and   (1900)  161  N.  Y.  290,  5.5  N.  E.  923,  47  L.  R.  A.  715,  76  Am. 
St.  Rep.  274,  given  ante,  p.  68. 

9  3  The  statement  of  facts  is  abridged,  and  only  so  much  of  the  o])inion  is 
:given  as  relates  to  the  one  point. 


154  TORTS   THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

The  rule  is  stated  in  19  Cyc.  7,  as  follows :  'It  may  be  said  to  be  the 
rule  that  one  who,  in  blasting  upon  his  premises,  casts  rocks  or  other 
debris  upon  the  land  of  another,  is  liable  for  such  invasion,  regardless 
of  the  degree  of  care  or  skill  used  in  doing  the  work'  " — citing  numer- 
ous cases.  The  case  proceeds  to  discuss  the  application  of  the  same 
rule  to  cases  where  the  damage  was  caused  by  concussions  and  vibra- 
tions due  to  blasting,  noting  the  conflict  of  authority,  and  concludes 
that  the  same  rule  should  apply  in  both  classes  of  cases,  and  that  'proof 
of  negligence  on  the  part  of  the  defendant  is  not  necessary  in  cases 
where  the  damage  caused  by  blasting  results  from  concussions  and  vi- 
brations, any  more  than  in  cases  where  damage  results  from  rocks 
or  other  debris  cast  upon  the  land.     *     *     * 

And  the  rule  of  law  is  the  same  in  cases  of  injury  to  the  person  as 
in  case  of  damage  to  property.  Hoffman  v.  Walsh,  117  Mo.  App.  278, 
93  S.  W.  853;  St.  Peter  v.  Denison,  58  N.  Y.  416,  17  Am.  Rep.  258; 
Munro  v.  Dredging,  etc.,  Co.,  84  Cal.  515,  24  Pac.  303,  18  Am.  St. 
Rep.  248,  and  cases  infra.  So  the  same  rules  are  applied  in  case  of 
injury  or  death  caused  to  a  person  traveling  in  a  highway.  2  Shearm. 
&  Red.  on  Neg.  §  688a ;  Sullivan  v.  Dunham,  161  N.  Y.  290,  294.  295, 
299,  55  N.  E.  923,  47  L.  R.  A.  715,  76  Am.  St.  Rep.  274;  Wright  v. 
Compton,  53  Ind.  ZZ7,  341.     *     *     *  94 

We  come,  then,  to  the  question  of  contributory  negligence.  A  care- 
ful consideration  of  the  testimony  convinces  us  that  upon  this  ground 
the  jury  was  justified  in  finding  a  verdict  for  the  defendant.  It  is 
undisputed  that  the  defendant  sent  his  employe,  Mr.  Gardner,  express- 
ly for  the  purpose  of  warning  travelers  upon  the  highway  to  a  point 
sufficiently  far  from  the  blast  to  be  a  safe  place  to  wait  till  after  the 
blasting  was  over,  and  that  Gardner  did  warn  the  deceased  and  his 
companion,  Ryan,  at  that  point,  to  stop  because  of  the  danger.  And 
although  there  is  some  conflict  as  to  whether  Mr.  Gardner  told  the 
deceased  and  Ryan  that  there  was  to  be  more  than  one  blast,  there 
was  ample  evidence  to  corroborate  Mr.  Gardner's  statement  that  he 
expressly  said  to  them  that  three  blasts  were  to  be  fired,  and  there 
is  ample  evidence  that  there  were  warnings  given  by  the  men  on  the 
ledge  and  others  in  the  hearing  of  the  deceased  and  Ryan,  and  heard 
by  others  much  farther  away  than  the  deceased,  that  there  were  other 
blasts  to  follow  the  one  already  fired,  while  the  deceased  was  waiting 
in  his  buggy  at  the  place  where  he  was  first  stopped  by  Gardner.  A 
number  of  witnesses,  eight  or  more,  testify  in  various  ways  and  to 
various  facts  and  circumstances  regarding  the  warnings — some  di- 
rectly corroborating  Gardner's  statement  as  to  his  direct  warning  of 
three  blasts  to  be  fired,  others,  as  to  the  warnings  given  by  the  men  at 
the  ledge. 

94  On  the  quostion  of  an  assniilt  and  battery,  the  opinion  quotes  from  and 
follow.s  Sullivan  v.  Dunham  (1900)  161  N.  Y.  290,  55  N.  E.  923,  47  L.  R.  A. 
715,  76  Am.  St.  Rep.  274,  given  ante,  p.  68. 


Ch.  1)  TRESPASSES  155 

As  there  was  ample  evidence  to  warrant  the  jury  in  believing  that 
full  and  explicit  warning  of  the  danger  was  given  to  the  deceased, 
and  it  is  undisputed  that  he  was  in  a  safe  place  when  the  warning  was 
given,  and  voluntarily  disregarded  the  warning  and  moved  forward 
into  a  place  of  danger,  when  he  met  his  death,  and  as  the  judge  who 
has  tried  the  case  has  approved  the  verdict  of  the  jury,  we  find  no 
ground  for  setting  the  verdict  aside.  Wilcox  v.  R.  I.  Co.,  29  R.  I. 
292,  70  Atl.  913.  It  is  not  disputed,  in  this  case,  as  we  understand, 
that  contributory  negligence,  if  proved,  is  as  much  a  bar  to  recovery 
in  cases  of  this  character,  as  in  other  cases  of  personal  injury  or  death. 
Wright  V.  Compton,  53  Ind.  ZZ7 ;  Sullivan  v.  Dunham,  10  App.  Div. 
438,  41  N.  Y.  Supp.  1083;  19  Cyc.  p.  10;  Shearm.  &  Red.  vol.  2,  pp. 
1188-1190;  Am.  &  Eng.  Ency.  Law  (2d  Ed.)  vol.  12,  p.  510;  Smith 
V.  Day  (C.  C.)  86  Fed.  62 ;  Wadsworth  v.  Marshall,  88  Me.  263,  34 
Atl.  30,  32  L.  R.  A.  588 ;  Gary  Bros.  &  Hannon  v.  Morrison,  129  Fed. 
177,  62>  C.  C.  A.  267,  65  L.  R.  A.  659.     *     *     * 

The  case  is  remitted  to  the  superior  court,  with  direction  to  enter 
its  judgment  for  the  defendant  upon  the  verdict  as  rendered  by  the 
jury. 


(B)     Accident;    Mistake;    Necessity 
(a)   Accident 

There  is  a  case  put  in  the  Year  Book  21  Hen.  VII.,  28,  a  (1506), 
that  where  one  shot  an  arrow  at  a  mark,  which  glanced  from  it  and 
struck  another,  it  was  holden  to  be  trespass.''^ 

Grose,  J.,  in  Leame  v.  Bray  (1803)  3  East,  593,  596. 

95  So  it  was  argued,  forty  years  earlier,  iu  the  Thorn-Cutting  Case  (14G6) 
Y.  B.  6  Edw.  IV.,  f.  7,  pi.  18:  "Sir,  if  one  is  shooting  at  hutts,  and  his  bow 
shakes  iu  his  hands,  and  kills  a  man,  ipso  invito,  it  is  no  felony,  as  has  been 
said,  etc. ;  but  if  he  wounds  one  by  shooting,  he  shall  have  a  good  action  of 
trespass  against  him,  and  yet  the  shooting  was  lawful,  etc.,  and  the  wrong 
which  the  other  received  was  against  his  will." 

Keferring  to  the  case  in  the  Year  Book  of  1506,  Denman,  J.,  remarks,  in 
Stanley  v.  Powell  (1S91)  1  Q.  B.  86,  89:  "It  appears  that  the  passage  in  ques- 
tion was  a  mere  dictum  of  Rede,  who  (see  .5  Foss'  Lives  of  the  .Judges,  p. 
230)  was  at  the  time  (1506)  either  a  judge  of  the  King's  Bench  or  C.  J.  of  the 
Common  Pleas,  which  he  became  in  October  in  that  year,  in  a  case  of  a  very 
different  kind  from  that  in  question,  and  it  only  amounts  to  a  statement  that 
an  action  of  trespass  may  lie  even  where  the  act  done  by  the  defendant  is 
unintentional.  The  words  relied  on  are,  'Mes  ou  on  tire  a  les  buts  et  blesse 
un  home,  coment  que  est  incontre  sa  volonte,  il  sera  dit  un  trespassor  incontre 
son  entent.'  But  in  that  passage  Ifede  makes  observations  which  shew  that 
he  has  in  his  mind  cases  in  which  that  which  would  be  prima  facie  a  tres- 
pass may  be  excused." 

And  see  Pollock  on  Torts  (8th  Ed.)  137,  142:  "If  we  go  far  back  enough, 
indeed,  we  shall  find  a  time  and  an  order  of  ideas  in  which  the  thing  itself 
that  does  damage  is  primarily  liable,  so  to  speak,  and  through  the  thing  its 
owner  is  made  answerable.  That  order  of  ideas  was  preserved  in  the  noxal 
actions  of  Itonian  law,  and  in  our  own  ciiniiii.-il  law  by  the  forfeiture  of  the 


156  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

WEAVER  V.  WARD. 

(Court  of  King's  Bench,  1616.     Hobart,  134,  SO  Reprint.  2S4.) 

Weaver  brought  an  action  of  trespass  of  assault  and  battery  against 
Ward.  The  defendant  pleaded,  that  he  was  among  others  by  the  com- 
mandment of  the  Lords  of  the  Council  a  trained  soldier  in  London,  of 
the  band  of  one  Andrews,  captain,  and  so  was  the  plaintiff ;  and  that 
they  were  skirmishing  with  their  muskets  charged  with  powder  for 
their  exercise  in  re  militari,  against  another  captain  and  his  band ;  and 
as  they  were  so  skirmishing,  the  defendant  casualiter  et  per  infortunium 
et  contra  voluntatem  suam,  in  discharging  of  his  piece,  did  hurt  and 
wound  the  plaintiff,  which  is  the  same,  etc.,  absque  hoc,  that  he  was 
guilty  aliter  sive  alio  modo.  And  upon  demurrer  by  the  plaintiff',  judg- 
ment was  given  for  him;  for  though  it  were  agreed  that  if  men  tilt 
or  turney  in  the  presence  of  the  king,  or  if  two  masters  of  defence 
playing  their  prizes  kill  one  another,  that  this  shall  be  no  felony; 
or  if  a  lunatick  kill  a  man  or  the  like,  because  felony  must  be  done 
animo  f  elonico :  yet  in  trespass,  which  tends  only  to  give  damages 
according  to  hurt  or  loss,  it  is  not  so ;  and  therefore  if  a  lunatick  hurt 

offending  object  which  had  moved,  as  it  was  said,  to  a  man's  death,  under 
the  name  of  deodand.  But  this  is  a  matter  of  history,  not  of  modern  legal 
policy.  So  mucli  we  may  concede,  that  when  a  man's  act  is  the  apparent 
cause  of  mischief,  the  burden  of  proof  is  on  liim  to  show  that  the  consequence 
was  not  one  which  by  due  diligence  he  could  have  prevented.  But  so  does 
(and  must)  the  burden  of  proving  matter  of  justification  or  excuse  fall  in 
every  case  on  the  person  talcing  advantage  of  it.  If  he  were  not,  on  the  first 
impression  of  the  facts,  a  wrong-doer,  the  justification  or  excuse  would  not 
be  needed.  *  *  *  There  is  a  good  deal  of  appearance  of  authority  in  the 
older  books  for  the  contrary  proposition  that  a  man  must  answer  for  all  di- 
rect consequences  of  his  voluntary  acts  at  any  rate,  or  as  Justice  O.  W. 
Holmes  has  put  it  'acts  at  his  peril.'  Such  seems  to  have  been  the  early 
(Germanic  law,  and  such  was  the  current  opinion  of  English  lawyers  till  about 
the  end  of  the  eighteenth  century.  *  *  *  They  [the  English  authorities] 
have  certainly  been  supposed  to  show  that  inevitable  accident  is  no  excuse 
when  the  immediate  result  of  an  act  is  complained  of.  Erskine  said  more 
than  a  century  ago  in  his  argument  in  the  celebrated  Case  of  the  Dean  of  St. 
/  Asaph  (17S;j)  21  St.  Tr.  1022  (and  he  said  it  by  way  of  a  familiar  illustration 
of  the  difference  Itetween  criminal  and  civil  liability),  that  'if  a  man  rising  in 
his  sleep  walks  into  a  china  shop  and  breaks  everything  about  him,  his  being 
a.sleep  is  a  complete  answer  to  an  indictment  for  trespass,  but  he  must  answer 
in  an  action  for  everything  lie  has  broken.'  And  Bacon  had  said  earlier  to 
the  same  purpose,  that  'if  a  man  be  killed  by  misadventure,  as  by  an  arrow 
at  butts,  this  hath  a  pardon  of  course ;  but  if  a  man  be  hurt  or  maimed  only, 
an  action  of  trespass  lieth,  though  it  be  done  against  the  party's  mind  and 
will.'  Maxims  of  the  Law,  Reg.  7  [1596].  Stronger  examples  could  not  well 
be  propounded.  For  walking  in  one's  sleep  is  not  a  voluntary  act  at  all, 
though  possibly  an  act  that  might  have  been  prevented ;  and  the  practice  of 
archery  was,  when  Bacon  wrote,  a  positive  legal  duty  under  statutes  as  recent 
as  Henry  VIII. 's  time,  though  on  the  other  hand  shooting  is  an  extra  hazar- 
dous act." 

See,  also,  the  chapter  on  "Trespass  and  Negligence"  in  Holmes'  Common 
Law ;  Professor  Wigmore's  articles  in  7  Harv.  Law  Rev.  315,  383.  441,  re- 
printed in  3  Anglo-American  Legal  Essays,  474;  and  "Negligence  in  the  Field 
of  Trespa.ss,"  Street's  Foundations  of  Legal  Liability,  vol.  1,  pp.  73-85. 


Ch.  1)  TRESPASSES  157 

a  man.  he  shall  be  answerable  in  trespass :  and  therefore  no  man 
shall  be  excused  of  a  trespass  (for  this  is  the  nature  of  an  excuse, 
and  not  of  a  justification,  prout  ei  bene  licuit)  except  it  may  be  judged 
utterly  without  his  fault. ^^ 

As  if  a  man  by  force  take  my  hand  and  strike  you,  or  if  here  the 
defendant  had  said  that  the  plaintiff  ran  across  his  piece  when  it  was 
discharging,  or  had  set  forth  the  case  with  the  circumstances  so  as  it 
had  appeared  to  the  court  that  it  had  been  inevitable,  and  that  the 
defendant  had  committed  no  negligence  to  give  occasion  to  the  hurt 


97 


»6  "It  has  been  generally  supposed  that  until  the  present  century  (earlier 
in  this  country,  later  in  England)  the  old  notion  continued,  i.  e..  that  the  ra- 
tionalization never  proceeded  any  further  than  to  posit  a  voluntary  act  by  the 
defendant;  that  if  from  a  voluntary  act  a  trespass — that  is,  a  direct  and 
immediate  injury — followed,  nothing  could  save  the  defendant  from  civil 
responsibility.  And  no  doubt  this  came  to  be  at  least  the  preliminary  test, 
the  sine  (,"ua  non,  showing  itself  most  prominently  in  the  rule  of  pleading  that 
if  there  had  been  no  such  voluntary  act,  then  there  was  not  even  a  prima 
facie  trespass.  But  more  than  this  the  whole  course  of  precedents  and  of 
contemporary  legal  opinion  does  not  allow  us  to  believe.  The  evidence  seems 
plain  that  the  rationalization  towards  the  present  standards  began  at  a  much 
earlier  period  than  has  been  supposed.  In  other  words,  there  has  never  been 
a  time,  in  English  law,  since  (say)  the  early  1500's,  when  the  defendant  in  an 
action  for  trespass  was  not  allowed  to  appeal  to  some  test  or  standard  of  moral 
blame  or  fault  in  addition  to  and  beyond  the  mere  question  of  his  act  having 
been  voluntary ;  i.  e.,  conceding  a  voluntary  act,  he  might  still  exonerate 
himself  (apart  from  excuses  of  self-defence,  consent,  and  the  like).  At  first 
this  test,  naturally,  was  vague  enough.  'Inevitable  necessity,"  'unavoidable  ac- 
cident,' 'could  not  do  otherwise,'  served  indiscriminately  to  express,  in  judicial 
language,  the  reasons  of  fairness  on  which  they  equally  exempted  him  who 
had  intentionally  stnick  in  self-defense,  and  him  who  unintentionally  injured 
without  what  we  now  call  'negligence,'  and  him  who  intentionally  trespassed 
on  the  plaintiff's  land  to  avoid  a  highway  attack.  The  phrases,  'non  potuit  a]- 
iter  facere'  and  'inevitable  necessity,'  served  as  leading  catchwords  for  many 
centuries ;  and  even  up  to  the  1800'S  we  find  court  and  counsel  constantly  inter- 
changing 'inevitable  accident'  and  'absence  of  negligence  or  blame.'  The 
precedents  show  us,  then,  that  somewhere  about  1500  a  decided  sloughing-off 
of  the  last  stage  of  the  primitive  notion  took  place,  and  a  defendant  could 
exempt  himself  in  this  sort  of  an  action  if  his  act,  though  voluntary,  had  been 
without  blame ;  the  standard  being  more  indefinite,  and  perhaps  not  as  liberal, 
as  to-day,  but  not  different  in  kind.  But  it  would  seem  that  towards  the  lat- 
ter half  of  the  1800" s  the  opinion  at  the  bar  in  England  misconceived  the  lan- 
guage of  some  of  the  earlier  cases,  and  it  became  necessary  to  review  them 
in  two  cases  (Holmes  v.  Mather,  1875 ;  Stanley  v.  Powell,  1891),  in  which  the 
doctrine  was  finally  settled,  for  England,  that  the  defendant's  attention  to  the 
requirements  of  due  care  may  be  (not  necessarily  always  is)  a  defence,  even 
where  a  trespass  has  been  done.  The  same  doctrine  ('there  must  be  some 
blame  or  want  of  care  and  prudence  to  make  a  man  answerable  in  trespass") 
had  long  been  laid  down  in  this  country,  and  that,  too,  purely  as  a  matter  of 
tlie  right  reading  of  the  precedents."  John  H.  Wigmore,  "Responsibility  for 
Tortious  Acts,"  7  Harv.  Law  Eev.  315,  383,  442 ;  3  Legal  Essays,  474,  504,  cit- 
ing authorities. 

9T  Compare: 

Dickenson  v.  Watson  (1682)  T.  Jones,  205,  84  Reprint,  1218:  Trespass  for 
tissault  and  battery,  in  that  D.  had  wounded  P.  in  the  eye  By  discharging  a 
gun  loaded  with  "hail-shot."  D.  pleaded  that  he  was  an  otficer  appointed  to 
collect  hearth-money,  and  carried  firearms  for  the  more  sure  custody  of  the 
money  collected  and  to  be  collected,  and  that  having  one  of  his  pistols  in  his 
hands,  and  intending  to  discharge  it  ne  aliquod  damnum  eveniret.  he  dis- 
charged it  (nemine  in  opposito  vis.  existente),  and  while  he  discharged  it  the 


158  TORTS  THROUGH  ACTS  OP  ABSOLUTE   LIABILITY  (Part  1 


^ 


UNDERWOOD  v.  HEWSON. 
(At  Nisi  Prius.  Coram  Forteseue  et  Raymond,  Justices,  1724.    1  Strange,  596.9  8) 
[This  case  is  given  ante,  see  page  31.] 


JAMES  V.  CAMPBELL. 

(At  Nisi  Prius,  1832.     5  Car.  &  P.  372,  24  E.  C.  L.  611.) 

Assault  and  battery.  In  a  quarrel  between  the  defendant,  Campbell, 
and  a  Mr.  Paxton,  the  plaintiff,  James,  was  struck  by  the  defendant. 
It  was  claimed  that  the  blow  was  intended  for  Mr.  Paxton,  not  for 
the  plaintiff,  although  the  plaintiff  and  the  defendant  had  not  been 
on  good  terms. ^" 

Bodkin,  for  the  defendant,  in  his  address  to  the  jury,  contended, 
that  if  the  defendant  did  not  intentionally  strike  the  plaintiff,  they 
ought  to  find  their  verdict  for  him. 

plaintiff  casualiter  viam  illam  praeterivit,  et  si  aliquod  malum  ei  inde  accideret 
hoc  fuit  contra  voluntat.  of  the  defendant;  quae  est  eadem  trausgressio.  To 
this  plea  the  plaintiff  demurred. 

Bullock  V.  Babcock  (1829)  3  Wend.  (N.  T.)  391:  In  1816,  P.,  then  a  school- 
boy 10  years  of  age,  was  hit  in  the  eye  with  an  arrow  shot  by  D.,  a  schoolmate 
about  12  years  old.  P.  and  D.  had  been  shooting  at  a  mark,  when  D.  said 
to  P.,  "I  will  shoot  you."  P.  ran  into  the  schoolroom  and  hid  behind  a  fire 
board.  D.  followed  to  the  door  of  the  schoolroom  and  saying  "See  me  shoot 
that  basket,"  discharged  the  arrow.  At  that  moment  P.  raised  his  head  above 
the  Are  board,  and  the  arrow  struck  him.  In  1827,  P.  sued  D.  in  trespass  for 
the  assault  and  battery. 

Castle  V.  Duryea  (ISGO)  32  Barb.  480;  Id.,  2  Keyes  (*41  N.  T.)  169:  D., 
commanding  a  regiment  in  public  military  exercises,  ordered  his  men  to  fire. 
It  was  intended  that  only  blank  cartridges  should  be  used,  and  elaliorate  pre- 
cautions had  been  taken  to  secure  this.  In  the  belief  that  there  was  no  ball 
cartridge  in  any  of  the  guns,  the  regiment  fired  towards  the  specfc^tors.  P., 
one  of  the  spectators,  was  hit  by  a  ball  which  had  accidentally  been  left  in  a 
gun  used. 

98  Compare  Cole  v.  Fisher  (1814)  11  Mass.  137:  Trespass  vi  et  armis  for 
firing  a  gun,  by  which  the  plaintiff's  horse  was  frightened  and  ran  away  with 
his  chaise  and  broke  it.  Sewall,  C.  J.,  remarked:  "The  well-known  distinc- 
tion of  immediate  injury  and  consequential  injury  is  the  rule  upon  which  our 
doubts  have  arisen:  in  all  other  respects,  the  action  is  clearly  maintained 
for  the  plaintiff  upon  the  facts  agreed.  It  is  immaterial,  as  resi>ects  the  right 
of  action,  or  the  form,  whether  the  act  of  the  defendant  was  by  his  intention 
and  purpose  injurious  to  the  plaintiff,  or  the  mischief  which  ensued  was 
accidental,  and  besides  his  intention,  or  contrary  to  it.  The  decision  in  the 
case  of  Underwood  v.  Hewson  has  never  been  questioned.  There  the  de- 
fendant was  uncocking  his  gun,  when  it  went  off  and  accidentally  wounded  a 
bystander.  The  defendant  was  charged,  and  holden  liable  in  trespa.ss.  Other 
cases  before  and  since,  might  be  cited,  in  which  the  same  doctrine,  which  gov- 
erned in  that  decision,  has  been  recognized  as  the  law." 

And  see  1  Beven  on  Negligence  (3d  Ed.)  56.j:  "If,  then,  blame  is  at  the  root 
of  liability,  the  doer  of  an  unlawful  act  [i.  e.,  not  an  act  done  without  jus- 
tification I)nt  an  act  wbich,  apart  from  the  question  of  justification,  is  prima- 
rily against  law]  is  a  fortiori  liable  for  the  consequences  of  it."  Compare: 
38  Cyc.  424,  note  22. 

90  The  statement  of  facts  is  abridged. 


Ch.  1)  TRESPASSES  1^0 

Mr.  Justice  BosanouET  (to  the  jury) :  If  you  think,  as  I  appre- 
hend there  can  be  no  doubt,  that  the  defendant  struck  the  plaintiff,  the 
plaintiff  is  entitled  to  your  verdict,  whether  it  was  done  intentionally 
or  not.  But  the  intention  is  material  in  considering  the  amount  of 
damages.^"" 

Verdict  for  the  plaintiff.     Damages  £10. 


WELLS  V.  HOWELL.         '     ' 

(Supreme  Court  of  Judicature  of  New  York,  1822.    19  Johns.  385. i) 
[This  case  is  given  ante,  p.  108;   see  "Trespass  to  Real  Property."] 


NEWSOM  V.  ANDERSON. 

(Supreme  Court  of  North  Carolina,  1S41.    2  Ired.  [24  N.  C]  42,  37  Am. 

Dec.  406.) 

Trespass  quare  clausum  fregit.  The  defendant  was  cutting  trees 
on  his  own  land,  when  one  of  them  accidentally  fell  on  the  land  of 
the  plaintiff".  The  defendant  did  not  act  designedly  or  negligently, 
and  it  did  not  appear  that  there  was  any  actual  injury  to  the  land. 
The  plaintiff's  counsel  moved  the  court  to  instruct  tlie  jury  that  this 
constituted  a  trespass  on  the  part  of  the  defendant.  The  court  refused. 
The  instruction  given  sufficiently  appears  from  the  opinion.  Ver- 
dict and  judgment  for  defendant.     Plaintiff  appealed. 

Daniel,  J.  To  sustain  trespass,  the  injury  must  in  general  be 
immediate,  and  committed  with  force,  either  actual  or  implied.  If  the 
injurious  act  be  the  immediate  result  of  the  force  originally  applied 

100  Accord:  Davis  v.  Collins  (1904)  69  S.  C.  460,  48  S.  E.  469  (D.  learned 
that  S.,  with  whom  he  had  quarreled,  was  coming  to  town  on  a  certain  train. 
D.  accordingly  armed  himself  with  brass  knuckles  and  went  to  the  railway 
station,  intending  to  attack  S.  immediately  upon  his  arrival.  When  S.  got  off 
the  train,  he  stopped  to  speak  to  P..  a  young  lady.  D.,  attempting  to  strike  S., 
accidentally  hit  P.) ;  Peterson  v.  Haftner  (1877)  59  Ind.  mO.  26  Am.  Rep.  81. 
(The  plaintiff,  Fred  Haffner,  5  years  old,  and  his  brother  William,  7  years  old, 
were  sitting  on  a  sand  pile,  beside  a  box  of  mortar,  in  the  public  street  before 
their  home,  when  the  defendant,  14  years  old,  with  four  other  boys,  came  down 
the  street.  Some  of  the  boys  began  throwing  pebldes  and  mortar,  in  sport. 
The  defendant  picking  up  a  piece  of  mortar,  said  to  William  Ilaffner,  "Kun 
or  I  will  hit  you."  William  started  to  run,  and  the  plaintiff  with  him.  The 
defendant  threw  the  mortar  at  William  and  hit  him  on  tlio  back  of  tlie  head. 
At  that  instant  the  plaintiff  looked  back,  and  a  piece  of  the  mortar  which  had 
stnick  William  flew  oft"  and  hit  the  plaintiff  in  the  eye.  The  result  was  the 
loss  of  sight  in  this  eye). 

1  For  an  historical  explanation  of  the  absolute  liability  for  accident  in  such 
cases,  see  Salmoud,  Jurisprudence  (3d  Ed.  1910)  378;  Wigmore,  Responsi- 
bility for  Tortious  Acts,  7  Harv.  Law  Review  (1894)  450.  And  see  2  Cyc. 
376,  note  38. 


160  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

by  the  defendant,  and  the  plaintiff  be  injured  thereby,  it  is  the  subject 
of  an  action  of  trespass  vi  et  armis,  by  all  the  cases,  both  ancient  and 
modern,  and  it  is  immaterial  whether  the  injury  be  willful  or  not : 
Leame  v.  Bray,  3  East,  599;  2  Leigh's  N.  P.  1402.  We  think  that 
the  charge  of  the  judge  was  incorrect,  when  he  said,  "that  the  plain- 
tiff could  not  recover,  unless  the  tree  was  designedly  or  carelessly 
felled  by  the  defendant,  so  as  to  fall  on  the  plaintiff's  land,  or  that, 
by  falling  on  the  plaintiff's  land,  it  had  fallen  on  his  grass  or  vegetable 
growth  of  some  kind."  The  ground  of  the  action,  quare  clausum 
fregit,  is  the  injury  to  the  possession:  3  Bl.  Com.  210;  [Smith  v. 
Milles]  1  T.  R.  480;  and  that  whether  the  injury  extends  to  the 
plaintiff's  land  in  the  mineral  or  vegetable  kingdom.  Is  not  the  felling 
of  trees  on  a  person's  land,  and  incumbering  it  with  rubbish,  an  injury 
to  the  possession  ?  We  think  it  is.  *  *  *  ^ 
By  Court.     New  trial  awarded. 


HALL  v.  FEARNLEY. 

(Court  of  Queen's  Bench,  1842.    3  Q.  B.  919,  114  Reprint,  761.) 
[This  case  is  given  ante,  see  page  130.] 


BROWN  V.  KENDALL. 

(Supreme  Judicial  Court  of  Massachusetts,  1850.    G  Cush.  292.) 

This  was  an  action  of  trespass  for  assault  and  battery.  It  appeared 
in  the  evidence  that  two  dogs,  belonging  to  the  plaintiff  and  the 
defendant,  respectively,  were  fighting  in  the  presence  of  their  masters ; 
that  the  defendant  took  a  stick  about  four  feet  long,  and  commenced 
beating  the  dogs  in  order  to  separate  them ;  that  the  plaintiff  was 
looking  on,  at  a  distance  of  about  a  rod,  and  that  he  advanced  a  step 
or  two  towards  the  dogs.  In  their  strugole,  the  dogs  approached  the 
place  where  the  plaintiff  was  standing.  The  defendant  retreated  back- 
wards from  before  the  dogs,  striking  them  as  he  retreated;    and  as 

2  Part  of  the  opinion  is  omitted. 

Accord:  Gates  v.  Miles  (1819)  3  Conn.  G4:  The  plaintiffs  were  the  owners 
of  the  sloop  Mary ;  the  defendant  was  the  owner  of  the  sloop  Susan.  The 
defendant  was  proceeding  with  the  Susan,  under  his  personal  direction  and 
management,  through  Long  Island  Sound,  to  New  Haven.  One  of  the  plain- 
tiff.s  was  navigating  the  Mary,  in  the  opposite  direction,  to  New  York.  When 
the  two  sloops  were  distant  from  eacli  other  about  30  rods,  the  defendant 
commanded  the  person  at  the  helm  of  the  Susan  to  luff;  "in  obedience  to 
which,  the  helmsman  suddenly  luffed,  and  turned  said  sloop  Susan  to  wind- 
ward, and  in  pursuance  of  the  direction  thus  given,  she  directly  struck  the 
larboard  quarter  of  the  Mary,  with  great  violence." 


Ch.  1)  TRESPASSES  161 

he  approached  the  plaintiff,  with  his  back  towards  him,  in  raising  his 
stick  over  his  shoulder,  in  order  to  strike  the  dogs,  he  accidentally  hit 
the  plaintiff  in  the  eye,  inflicting  upon  him  a  severe  injury.  *  *  * 
The  judge  declined  to  give  certain  instructions  requested  by  the  de- 
fendant but  left  the  case  to  the  jury  under  the  following  instructions: 

"If  the  defendant,  in  beating  the  dogs,  was  doing  a  necessary  act,  or  one 
which  it  was  his  duty  under  the  circumstances  of  the  case  to  do,  and  was 
doing  it  in  a  proper  way ;  tlien  he  was  not  responsible  in  this  action,  pro- 
vided he  was  using  ordinary  care  at  the  time  of  the  blow.  If  it  was  not  a 
necessary  act ;  if  he  was  not  in  duty  bound  to  attempt  to  part  the  dogs,  but 
might  with  propriety  interfere  or  not  as  he  chose;  the  defendant  was  re- 
sponsible for  the  consequences  of  the  blow,  unless  it  appeared  that  he  was  in 
the  exercise  of  extraordinary  care,  so  that  the  accident  was  inevitable,  using 
the  word  inevitable  not  in  a  strict  but  a  popular  sense. 

"If.  however,  the  plaintiff,  when  he  met  with  the  injury,  was  not  in  the 
exercise  of  ordinary  care,  he  cannot  recover,  and  this  rule  applies,  whether 
the  interference  of  the  defendant  in  the  fight  of  the  dogs  was  necessary  or  not. 
If  the  jury  believe,  that  it  was  the  duty  of  the  defendant  to  interfere,  then  the 
burden  of  proving  negligence  on  the  part  of  the  defendant,  and  ordinary  care 
on  the  part  of  the  plaintiff,  is  on  the  plaintiff.  If  the  jury  believe,  that  the 
act  of  interference  in  the  fight  was  unnecessary,  then  the  burden  of  proving 
extraordinary  care  on  the  part  of  the  defendant,  or  want  of  ordinary  care  on 
the  part  of  tlie  plaintiff,  is  on  the  defendant." 

The  jury  under  these  instructions  returned  a  verdict  for  the  plain- 
tiff;  whereupon  the  defendant  alleged  exceptions. 

Shaw,  C.  J.  *  *  *  The  facts  set  forth  in  the  bill  of  exceptions 
preclude  the  supposition,  that  the  blow,  inflicted  by  the  hand  of  the 
defendant  upon  the  person  of  the  plaintiff,  was  intentional.  The 
whole  case  proceeds  on  the  assumption,  that  the  damage  sustained 
by  the  plaintiff',  from  the  stick  held  by  the  defendant,  was  inadvertent 
and  unintentional;  and  the  case  involves  the  question  how  far,  and 
under  what  qualifications,  the  party  by  whose'  unconscious  act  the 
damage  was  done  is  responsible  for  it.  We  use  the  term  "uninten- 
tional" rather  than  involuntary,  because  in  some  of  the  cases,  it  is 
stated,  that  the  act  of  holding  and  using  a  weapon  or  instrument,  the 
movement  of  which  is  the  immediate  cause  of  hurt  to  another,  is  a 
voluntary  act,  although  its  particular  effect  in  hitting  and  hurting 
another  is  not  within  the  purpose  or  intention  of  the  party  doing  the 
act. 

It  appears  to  us,  that  some  of  the  confusion  in  the  cases  on  this 
subject  has  grown  out  of  the  long-vexed  question,  under  the  rule  of 
the  common  law,  whether  a  party's  remedy,  where  he  has  one,  should 
be  sought  in  an  action  of  the  case,  or  of  trespass.  This  is  very  dis- 
tinguishable from  the  question,  whether  in  a  given  case,  any  action 
will  lie.  The  result  of  these  cases  is,  that  if  the  damage  complained 
of  is  the  immediate  effect  of  the  act  of  the  defendant,  trespass  vi  et 
armis  lies ;  if  consequential  only,  and  not  immediate,  case  is  the  proper 
remedy.  Leame  v.  Bray,  3  East,  593;  Hugget  v.  Alontgomery,  2  N. 
R.  446,  Day's  Ed.  and  notes. 
Hepb.Torts — 11 


162  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

In  these  discussions,  it  is  frequently  stated  by  judges,  that  when 
one  receives  injury  from  the  direct  act  of  another,  trespass  will  lie. 
But  we  think  this  is  said  in  reference  to  the  question,  whether  tres- 
pass and  not  case  will  lie,  assuming  that  the  facts  are  such,  that  some 
action  will  lie.  These  dicta  are  no  authority,  we  think,  for  holding, 
that  damage  received  by  a  direct  act  of  force  from  another  will  be 
sufficient  to  maintain  an  action  of  trespass,  whether  the  act  was  lawful 
or  unlawful,  and  neither  wilful,  intentional,  or  careless.     *     *     * 

We  think,  as  a  result  of  all  the  authorities,  the  rule  is  correctly 
stated  by  Mr.  Greenleaf,  that  the  plaintiff  must  come  prepared  with 
evidence  to  show  either  that  the  intention  was  unlawful,  or  that  the 
defendant  was  in  fault;  for  if  the  injury  was  unavoidable,  and  the 
conduct  of  the  defendant  was  free  from  blame,  he  will  not  be  liable. 
2  Greenl.  Ev.  §§  85  to  92;  Wakeman  v.  Robinson,  1  Bing.  213.  If, 
in  the  prosecution  of  a  lawful  act,  a  casualty  purely  accidental  arises, 
no  action  can  be  supported  for  an  injury  arising  therefrom.  Davis 
v.  Saunders,  2  Chit.  R.  639;  Com.  Dig.  Battery,  A.  (Day's  Ed.)  and 
notes ;  Vincent  v.  Stinehour,  7  Vt.  69,  29  Am.  Dec.  145, 

In  applying  these  rules  to  the  present  case,  w^e  can  perceive  no  rea- 
son why  the  instructions  asked  for  by  the  defendant  ought  not  to 
have  been  given;  to  this  effect,  that  if  both  plaintiff  and  defendant 
at  the  time  of  the  blov/  were  using  ordinary  care,  or  if  at  the  time 
the  defendant  was  using  ordinary  care,  and  the  plaintiff  was  not,  or 
if  at  that  time  both  plaintiff  and  defendant  were  not  using  ordinary 
care,  then  the  plaintiff  could  not  recover. 

In  using  this  term,  ordinary  care,  it  may  be  proper  to  state,  that 
what  constitutes  ordinary  care  will  vary  with  the  circumstances  of 
the  cases.  In  general,  it  means  that  kind  and  degree  of  care,  which 
prudent  and  cautious  men  would  use,  such  as  is  required  by  the  ex- 
igency of  the  case,  and  such  as  is  necessary  to  guard  against  probable 
danger.  A  man,  who  should  have  occasion  to  discharge  a  gun,  on  an 
open  and  extensive  marsh,  or  in  a  forest,  would  be  required  to  use  less 
circumspection  and  care,  than  if  he  w^ere  to  do  the  same  thing  in 
an  inhabited  town,  village,  or  city.  To  make  an  accident,  or  casualty, 
or  as  the  law  sometimes  states  it,  inevitable  accident,  it  must  be  such 
an  accident  as  the  defendant  could  not  have  avoided  by  the  use  of 
the  kind  and  degree  of  care  necessary  to  the  exigency,  and  in  the 
circumstances  in  which  he  was  placed. 

We  are  not  aware  of  any  circumstances  in  this  case,  requiring  a 
distinction  between  acts  which  it  was  lawful  and  proper  to  do,  and 
acts  of  legal  duty.  There  are  cases,  undoubtedly,  in  which  officers 
are  bound  to  act  under  process,  for  the  legality  of  which  they  are  not 
responsible,  and  perhaps  some  others  in  which  this  distinction  would 
be  important.  We  can  have  no  doubt  that  the  act  of  the  defendant 
in  attempting  to  part  the  fighting  dogs,  one  of  which  was  his  own, 
and  for  the  injurious  acts  of  which  he  might  be  responsible,  was  a 


Ch.  1)  TRESPASSES  1G3 

lawful  and  proper  act,  which  he  might  do  by  proper  and  safe  means. 
If,  then,  in  doing  this  act,  using  due  care  and  all  proper  precautions 
necessary  to  the  exigency  of  the  case,  to  avoid  hurt  to  others,  in  rais- 
ing his  stick  for  that  purpose,  he  accidentally  hit  the  plaintiff  in  his 
eye  and  wounded  him,  this  was  the  result  of  pure  accident,  or  was 
involuntary  and  unavoidable,  and  therefore  the  action  would  not 
lie.     *     *     * 

The  court  instructed  the  jury,  that  if  it  was  not  a  necessary  act, 
and  the  defendant  was  not  in  duty  bound  to  part  the  dogs,  but  might 
with  propriety  interfere  or  not  as  he  chose,  the  defendant  was  re- 
sponsible for  the  consequences  of  the  blow,  unless  it  appeared  that  he 
was  in  the  exercise  of  extraordinary  care,  so  that  the  accident  was 
inevitable,  using  the  word  not  in  a  strict  but  a  popular  sense.  This  is 
to  be  taken  in  connection  with  the  charge  afterwards  given,  that  if  the 
jury  believed,  that  the  act  of  interference  in  the  fight  was  unnecessary 
(that  is,  as  before  explained,  not  a  duty  incumbent  on  the  defendant), 
then  the  burden  of  proving  extraordinary  care  on  the  part  of  the  de- 
fendant, or  want  of  ordinary  care  on  the  part  of  the  plaintiff,  was  on 
the  defendant. 

The  court  are  of  opinion  that  these  directions  were  not  conformable 
to  law.  If  the  act  of  hitting  the  plaintiff  was  unintentional,  on  the 
part  of  the  defendant,  and  done  in  the  doing  of  a  lawful  act,  then 
the  defendant  was  not  liable,  unless  it  was  done  in  the  want  of  exer- 
cise of  due  care,  adapted  to  the  exigency  of  the  case,  and  therefore 
such  want  of  due  care  became  part  of  the  plaintift"'s  case,  and  the 
burden  of  proof  was  on  the  plaintiff  to  establish  it.  2  Greenl.  Ev.  § 
85;  Powers  v.  Russell,  13  Pick.  (Mass.)  69,  76;  Tourtellot  v.  Rose- 
brook,  11  :\Ietc.  (Mass.)  460. 

Perhaps  the  learned  judge,  by  the  use  of  the  term  "extraordinary 
care,"  in  the  above  charge,  explained  as  it  is  by  the  context,  may  have 
intended  nothing  more  than  that  increased  degree  of  care  and  diligence, 
which  the  exigency  of  particular  circumstances  might  require,  and 
which  men  of  ordinary  care  and  prudence  would  use  under  like  cir- 
cumstances, to  guard  against  danger.  If  such  was  the  meaning  of  this 
part  of  the  charge,  then  it  does  not  differ  from  our  views,  as  above 
explained.  But  we  are  of  opinion,  that  the  other  part  of  the  charge, 
that  the  burden  of  proof  was  on  the  defendant,  was  incorrect.  Those 
facts  which  are  essential  to  enable  the  plaintiff  to  recover,  he  takes 
the  burden  of  proving.  The  evidence  may  be  offered  by  the  plaintiff 
or  by  the  defendant ;  the  question  of  due  care,  or  want  of  care,  may 
be  essentially  connected  with  the  main  facts,  and  arise  from  the  same 
proof ;  but  the  eft'ect  of  the  rule,  as  to  the  burden  of  proof,  is  this, 
that  when  the  proof  is  all  in,  and  before  the  jury,  from  whatever  side 
it  comes,  and  whether  directly  proved  or  inferred  from  circumstances, 
if  it  appears  that  the  defendant  was  doing  a  lawful  act,  and  uninten- 
tionally hit  and  hurt  the  plaintiff,  then  unless  it  also  appears  to  the 


164  TORTS   THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

satisfaction  of  the  jury,  that  the  defendant  is  chargeable  with  some 
fault,  negligence,  carelessness,  or  want  of  prudence,  the  plaintiff  fails 
to  sustain  the  burden  of  proof  and  is  not  entitled  to  recover.^ 
New  trial  ordered. 

3  The  statement  of  facts  is  abbreviated  and  part  of  the  opinion  is  omitted. 

"If  the  accident  had  happened  while  chastising  the  dog,  would  the  injured 
person  be  precluded  from  recovery  because  the  act  out  of  which  the  injury 
arose  was  a  lawful  one?  If  he  could  recover,  the  test  of  whether  beating  a 
dog  in  the  street  is  a  lawful  act  or  not  is  not  the  correct  test.  If  he  could 
not,  the  maxim  of  law,  'Sic  uti  tuo  ut  alienum  non  Itedas,'  is  reversed  or  lim- 
ited, with  some  reference,  perhaps,  to  real  rights  alone.  The  quiet  citizen 
must  keep  out  of  the  way  of  tb.e  exuberantly  active  one.  The  duty  is  to 
avoid  being  injured,  not  to  avoid  injuring.  Test  the  matter  by  pleading.  A 
trespass  is  only  actionable  when  it  results  from  other  than  a  lawful  act ;  con- 
sequently, a  declaration  setting  out  the  facts  would  often  be  insufficient  as 
being  consistent  with  a  lawful  as  well  as  an  unlawful  act;  for  illegality  is 
never  to  be  presumed."    1  Beven  on  Negligence  (3d  Ed.)  565. 

Accord:  Stanley  v.  Powell  [1891]  1  Q.  B.  86:  The  defendant  and  several 
others  were  pheasant  shooting  in  a  party,  some  being  inside  and  some  outside 
of  a  wood  which  the  beaters  were  beating.  The  right  of  shooting  was  in  one 
Greenwood,  who  was  of  the  party.  The  plaintiff  was  employed  by  Greenwood 
to  carry  cartridges  and  the  game  which  might  be  shot.  Several  beaters  were 
driving  the  game  along  a  plantation  of  saplings  toward  an  open  drive.  The 
plaintiff  stood  just  outside  a  gate  which  led  into  a  field  outside  the  plantation, 
at  the  end  of  the  drive.  The  defendant  was  walking  along  in  that  field  a 
few  yards  from  the  hedge  which  bounded  the  plantation.  As  he  was  walking 
along  a  pheasant  rose  inside  the  plantation ;  the  defendant  fired  one  barrel  at 
this  bird,  and  struck  it  with  his  first  shot.  The  bird,  when  struck  by  the 
•  first  shot,  began  to  lower  and  turn  back  toward  the  beaters,  whereupon  the 
defendant  fired  his  second  barrel  and  killed  the  bird,  but  a  shot,  glancing 
from  the  bough  of  an  oak  which  was  in  or  close  to  the  hedge  and  striking  the 
plaintiff  in  the  eye,  caused  the  injury  complained  of.  The  oak  was  partly 
between  the  defendant  and  the  bird  when  the  second  barrel  was  fired,  but  it 
was  not  in  a  line  with  the  plaintiff',  but,  on  the  contrary,  so  much  out  of  that 
line,  that  the  shot  must  have  been  diverted  to  a  considerable  extent  from  the 
direction  in  which  the  gun  must  have  been  pointed  in  order  to  hit  the  plain- 
tiff". The  distance  between  the  plaintiff'  and  the  defendant,  in  a  direct  line, 
when  the  second  barrel  was  fired  was  about  thirty  yards.  The  plaintiff'  sued 
to  recover  his  damages  arising  from  the  loss  of  his  eye.  The  jury  found  that 
the  plaintiff's  hurt  had  been  caused  by  a  shot  from  the  defendant's  gun  but 
that  the  shot  had  been  fired  by  the  defendant  without  any  negligence.  It  was 
contended  for  the  plaintiff  that  there  could  be  a  recovery  on  the  ground  of 
trespass,  on  the  doctrine  that  even  in  the  absence  of  negligence,  an  action  of 
trespass  might  lie.  Held  that  "if  the  case  is  regarded  as  an  action  on  the 
case  for  an  injury  by  negligence  the  plaintiff  has  failed  to  establish  that 
which  is  the  very  gL'Jt  of  such  an  action,  if  on  the  other  hand  it  is  turned 
into  an  action  for  trespass,  and  the  defendant  is  (as  he  nnist  be)  supposed 
to  have  pleaded  a  plea  denying  negligence  and  establishing  that  the  injury 
was  accidental  in  the  sense  above  explained,  the  verdict  of  the  jury  is  equally 
fatal  to  the  action."    Judgment  was  accordingly  given  for  the  defendant. 

Compare  Osborne  v.  Van  Dyke  (IttOl)  113  Iowa,  557,  85  N.  W.  784,  54  L.  R. 
A.  367:  P.  was  holding  a  horse  while  D.  applied  medicine  to  its  neck.  The 
horse  jumped,  and  D.  began  beating  it  with  a  heavy  stick,  with  a  nail  in  the 
end.  While  he  was  thus  engaged,  D.'s  foot  slipped,  and  in  consequence  he 
unintentionally  hit  P.  in  the  face,  breaking  the  bones  of  his  nose.  The  trial 
judge  charged  the  jury  that  D.  would  not  be  liable  if  in  beating  the  horse  he 
exercised  reasonable  care  to  avoid  striking  P.,  and  the  blow  which  intlicted 
P.'s  injury  was  caused  by  an  accidental  slip,  for  which  D.  was  not  to  blame; 
and  tliat  this  was  the  law  even  if  D.  in  beating  the  horse  was  guilty  of  an 
unlawful  act.    Held,  erroneous. 

As  bearing  on  the  principle  of  Stanley  v.  Powell,  see  the  discussion  in  1 
Beven  on  Negligence  (1908)  565-570. 


Ch.  1)  TRESPASSES  165 


SULLIVAN  V.  DUNHAM,      ^r^-y^ubt 

(Court  of  Appeals  of  New  York,  1900.    161  N.  Y.  290,  55  N.  E.  923,  47  L.  R.  A. 

715,  76  Am.  St.  Rep.  274.) 

[This  case  is  given  ante,  p.  68;  see  "Battery."] 


BRADLEY  v.  LAKE  SHORE  &  M.  S.  RY.  CO. 

(Supreme  Court  of  Pennsylvania,  1913.     23S  Pa.  315,  86  Atl.  200,  44  L.  R.  A. 

[N.  S.]  1148.) 

Action  of  trespass  by  Bradley  against  the  railway  company  for  a 
personal  injury.  From  a  judgment  for  the  defendant,  on  a  directed 
verdict,  the  plaintitf  appeals. 

Potter,  J.  The  facts  in  this  case  are  substantially  as  follows :  On 
the  evening  of  August  11,  1909,  the  plaintiff  went  to  the  passenger 
station  of  the  defendant  company,  at  Polk,  Pa.,  at  about  7  o'clock. 
He  concluded  to  go  to  Franklin  upon  a  train  leaving  about  9  o'clock, 
and  with  that  purpose  in  view  remained  at  or  near  the  station.  Short- 
ly after  8  o'clock,  while  the  plaintiff  was  seated  upon  a  baggage  truck, 
which  stood  upon  the  station  platform,  a  freight  train  passed  rapidly 
upon  the  second  track  from  the  platform.  While  the  train  was  pass- 
ing, an  iron  brake  bar,  which  formed  part  of  the  brake  equipment, 
broke,  or  became  loosened  at  one  end,  fell  down,  and  was  dragged 
for  some  distance,  and  then  broke  away  entirely,  and  was  hurled  vio- 
lently from  the  train,  striking  the  station  platform,  and,  rebounding 
therefrom,  struck  and  crushed  plaintiff's  hand,  which  rested  upon 
the  truck  at  his  side.  The  plaintiff  brought  this  action  to  recover  dam- 
ages for  the  resulting  injury.  At  the  trial  a  verdict  for  the  defendant 
was  directed  upon  the  ground  that  the  evidence  did  not  warrant  a 
finding  by  the  jury  of  negligence  upon  the  part  of  the  defendant  com- 
pany. Afterwards,  in  an  opinion  refusing  a  new  trial,  the  learned 
judge  of  the  court  below  considered  the  legal  questions  raised  most 
elaborately,  and  concluded  that,  under  the  evidence,  the  plaintiff"  could 
not,  at  the  time  and  place  of  the  accident,  be  properly  regarded  as  hav- 
ing assumed  the  relation  of  passenger  to  the  defendant  company,  and 
further  that  the  defendant  company  had  in  no  way  failed  in  the  dis- 
charge of  any  duty  which  it  owed  to  the  plaintiff,  and  that  there  was 
no  proof  of  negligence,  on  the  part  of  the  defendant,  which  caused  the 
accident,  and  no  basis  upon  which  to  found  an  inference  of  it.  It 
seems  that  the  brake  bar  which  inflicted  the  injury  was  of  consider- 
able size  and  weight,  being  from  two  to  three  feet  in  length,  and, 
when  in  its  proper  position,  its  place  was  under  the  trucks  of  the  car, 
about  on  a  level  with  the  axle,  and  at  right  angles  thereto.  At  either 
end  of  the  bar  were  inserted  fulcrum  pins  fastening  it  to  brake  levers, 


^ 


1G6  TORTS  THROUGH   ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 

and  through  these  pins  ran  cotter  pins  to  hold  them  in  place.  If  the 
cotter  pins  came  out,  through  jolting  or  vibration,  the  fulcrum  pins 
in  turn  might  be  misplaced,  thus  permitting  the  larger  connecting  bar 
to  fall  to  the  ground,  which  is  just  what  seems  to  have  happened  in 
this  case. 

The  facts  bring  the  case  within  the  principle  of  the  decision  in 
Bauman  v.  Manufacturing  Co.,  234  Pa.  416,  83  Atl.  293,  where  in- 
jury was  caused  by  the  loss  of  a  cotter  pin.  This,  without  more,  was 
held  insufficient  proof  of  negligence  on  the  part  of  defendant.  To  the 
same  effect  were  the  decisions  in  Bradbury  v.  Kingston  Coal  Co.,  157 
Pa.  231,  27  Atl.  400,  and  East  End  Oil  Co.  v.  Torpedo  Co.,  190  Pa. 
350,  42  Atl.  707.  In  the  present  case  it  was  shown  that  the  cars  on 
the  train  in  question  were  inspected  on  the  afternoon  of  the  accident, 
and  prior  thereto,  and  were  found  to  be  in  order  with  the  exception 
that  a  brake  bar  was  missing  on  one  car,  but  that  was  not  regarded 
as  affecting  in  any  way  the  safe  operation  of  the  train.  The  evidence 
shows  that  the  matter  may  very  properly  be  regarded  as  an  accident 
pure  and  simple,  and  as  such  it  falls  within  the  rule  that  one  engaged 
in  a  lawful  act  is  not  responsible  for  damage  arising  from  a  pure  ac- 
cident in  the  doing  of  it.  It  was  not  shown  that  the  inspection  made 
shortly  before  the  accident  was  faulty  or  ineffective  in  any  way,  or 
that  it  was  made  by  incompetent  persons.  As  the  trial  judge  says,  it 
may  be  assumed  that  the  accident  was  due  to  the  cotter  pin  coming 
out  of  place,  and  that  it  would  not  have  occurred  had  the  pin  been  kept 
in  place.  Yet,  as  he  points  out,  this  affords  no  basis  for  inferring  any 
lack  of  ordinary  care  upon  the  part  of  the  defendant.  The  bolts  and 
pins  may  have  been  in  place  when  inspected,  and  yet  have  been  jarred 
out  of  place  or  broken  shortly  afterward.  There  is  no  evidence  upon 
this  point,  and  nothing  tending  to  show  that  the  dropping  of  the  brake 
bar  was  due  to  faulty  inspection  or  any  want  of  repair  by  the  defend- 
ant company.  That  the  bar  should  have  fallen  down,  broken  off,  and 
been  hurled  from  the  train  just  at  the  spot  where  the  plaintiff  was  sit- 
ting was  of  course  a  result  which  the  defendant  could  not  have  fore- 
seen. As  the  trial  judge  suggests,  even  if  there  had  been  any  compe- 
tent proof  (and  there  was  none)  that  the  brake  rod  had  become  loosen- 
ed, and,  through  oversight  on  the  part  of  the  employes,  it  was  permit- 
ted to  remain  on  the  car,  "only  an  extreme  visionary  would  have  im- 
agined the  consequences  which  followed,  or  that  injury  could  result 
to  person  or  property  therefrom."  We  agree  with  the  court  below 
in  the  final  conclusion  that  nothing  in  the  evidence  justified  an  infer- 
ence that  the  defendant  company  failed  in  the  discharge  of  any  duty 
owed  by  it  to  the  plaintiff".* 

The  assignments  of  error  are  overruled,  and  the  judgment  is  af- 
firmed. 

*  Compare  Kirk  v.  West  Virginia  Colliery  Co.  (1914)  215  Fed.  77:  The  coal 
from  D.'s  mine  was  run  by  D.  down  an  incline  from  the  pit's  mouth  to  a  tipple 
above  a  side  track,  and  thence  into  cars.    Tlie  center  of  the  side  track  was  18 


Ch.  1)  TRESPASSES  1G7 


THE  MERCHANT  <PRINCE. 

(Court  of  Appeal,  [1892]  P.  179.) 


OvlI^ 


Appeal  by  plaintiffs,  the  owners  of  the  Catalonia,  from  a  decision 
of  the  President,  dismissing,  with  costs,  their  action  of  damage  by 
collision  against  the  defendants,  the  owners  of  the  Merchant  Prince, 
on  the  ground  that  the  collision  was  the  result  of  inevitable  accident. 
In  substance  the  plaintiff's  case  was  as  follows :  The  Catalonia,  a 
screw  steamer,  was  lying  at  anchor  in  the  Mersey,  when  the  Mer- 
chant Prince,  a  screw  steamer,  coming  down  the  river  in  broad  day 
light  struck  the  Catalonia  a  heavy  blow  on  the  port  quarter,  doing 
very  considerable  damage.  The  defendants  pleaded  that  the  collision 
and  damage  were  caused  by  inevitable  accident,  and  the  evidence 
shewed  that  at  the  time  the  Merchant  Prince  was  proceeding  down 
the  Mersey,  there  was  a  moderate  gale  blowing  from  the  westward, 
and,  it  being  slack  water,  the  Catalonia  was  lying  wind-rode  partly 
athwart  the  river.  She  was  observed  to  be  about  half  a  point  on  the 
port  bow  at  about  a  mile  distant.  Owing  to  the  force  of  the  wind  the 
Merchant  Prince  griped  a  little  as  she  approached  the  Catalonia,  so 
that  her  head  came  over  somewhat  to  port.  The  pilot  thereupon  gave 
the  order  "port,"  and  then  "hard  a  port,"  but  the  third  officer,  who 
was  steering,  on  trying  to  get  the  wheel  over  to  port,  found  that  the 
steering  gear  would  not  act,  and  on  calling  out  that  the  wheel  was 
jammed,  the  engines  were  put  astern,  but  the  vessels  were  too  close 
for  the  collision  to  be  avoided.     *     *     * 

Fry,  L.  J.  *  *  *  It  is  a  case  in  which  a  ship  in  motion  has 
run  into  a  ship  at  anchor.  The  law  appertaining  to  that  class  of  case 
appears  to  be  clear.  In  the  case  of  The  Annot  Lyle,  11  P.  D.  114, 
it  was  laid  down  by  Lord  Herschell  that  in  such  a  case  the  cause  of  the 
collision  might  be  an  inevitable  accident,  but  unless  the  defendants 
proved  this  they  are  liable  for  damages.  The  burden  rests  on  the  de- 
fendants to  shew  inevitable  accident.  To  sustain  that  the  defendants 
must  do  one  or  other  of  two  things.  They  must  either  shew  what 
was  the  cause  of  the  accident,  and  shew  that  the  result  of  that  cause 
was  inevitable ;  or  they  must  shew  all  the  possible  causes,  one  or 
other  of  which  produced  the  effect,  and  must  further  shew  with  re- 
gard to  every  one  of  these  possible  causes  that  the  result  could  not 
have  been  avoided.  Unless  they  do  one  or  other  of  these  two  things, 
it  does  not  appear  to  me  that  they  have  shewn  inevitable  accident. 

feet  distant  from  the  center  of  the  main  track.  P.,  walliing  down  the  main 
track  to  take  a  train,  asked  D.'s  foreman  whether  it  was  safe  to  pass  the  tip- 
ple. He  said,  "There  is  no  danger,  go  on."  P.  accordingly  started  hy,  walk- 
ing on  the  outer  edge  of  the  main  track,  when  a  lump  of  coal  coming  through 
the  tijiple  bounded  over  from  the  car  then  being  loaded  by  D.  and  struck  P. 
The  court  was  of  opinion  that  "the  case  resolves  itself  into  one  of  pure  acci- 
dent for  which  the  coal  company  could  not,  upon  any  principle  of  law,  be  held 
liable." 


168  TORTS   THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

In  the  present  case  the  defendants  have  not  shewn  what  was  the  cause. 
They  have  left  that  entirely  undecided.  In  fact,  their  evidence  has 
been  largely  given  to  shew  that  the  event  never  did  happen ;  but,  un- 
fortunately for  them,  it  did  happen.     *     *     *  4 

Lopes,  L.  J.  In  this  case  the  moving  vessel  runs  into  and  comes 
into  collision  with  a  vessel  at  anchor.  As  I  understand  it,  the  law  is 
perfectly  clear  that  in  the  circumstances  such  as  I  have  described  the 
defendants  are  bound  to  shew  that  what  happened  was  inevitable. 
In  this  case  it  is  beyond  dispute  that  the  defendants  are  unable  to 
tell  what  the  cause  of  the  accident  was,  or  how  or  why  it  happened. 
It  occurs  to  me  that  that  being  so,  it  cannot  be  said  that  they  have  dis- 
charged the  burden  fastened  upon  them  by  shewing  that  what  happen- 
ed was  inevitable.  Can  they  say  that  they  could  not  avoid  a  thing 
when  they  did  not  know  what  the  thing  to  be  avoided  was?  I  think 
not.  In  this  case  the  steerage  gear  absolutely  failed.  How  is  that 
to  be  accounted  for?  It  appears  to  me  it  can  only  be  accounted  for 
in  two  ways.  It  must  have  arisen  from  a  defect  in  the  machinery,  or 
from  bad  management  of  the  machinery.  The  defendants  have  not 
satisfied  me  that  what  happened  did  not  proceed  from  the  kinking  of 
the  chain.  I  rather  think  it  did  proceed  from  that  cause.  If  that  is 
so,  how  does  the  matter  stand  with  regard  to  the  defendants?  They 
knew  they  had  a  new  chain,  and  they  ought  to  have  known  a  new 
chain  was  liable  to  stretch.  They  ought  to  have  known  that  a  chain 
that  stretched  was  liable  to  kink.  Knowing  these  matters,  they  ought 
to  have  provided  against  that  which  happened  by  being  prepared  to 
use  one  or  other  of  the  modes  of  steerage  with  which  they  were  sup- 
plied. In  these  circumstances,  I  am  unable  to  see  that  what  hap- 
pened was  inevitable;  I  am  unable  to  agree  with  the  learned  judge  be- 
low, and  I  think  the  appeal  ought  to  be  allowed  and  judgment  given 
m  favour  of  the  plaintiffs. 

Appeal  allowed,  judgment  reversed  and  entered  for  the  plaintiffs. 


(b)  Mistake 

If  I  drive  over  a  man  in  the  dark  because  I  do  not  know  that  he  is 
in  the  road,  I  injure  him  accidentally;  but  if  I  procure  his  arrest, 
because  I  mistake  him  for  some  one  who  is  liable  to  arrest,  I  injure 
him  not  accidentally  but  by  mistake.  In  the  former  case  I  did  not 
intend  the  harm  at  all,  while  in  the  latter  case  I  fully  intended  it,  but 
falsely  believed  in  the  existence  of  a  circumstance  which  would  have 
served  to  justify  it.     So  if  by  insufficient  care  I  allow  my  cattle  to 

*  The  statement  of  facts  is  abridged.  The  opinion  of  Lord  Esber,  M.  R.,  and 
liortion.s  of  the  concurring  opinions,  are  omitted. 


Ch.  1)  TRESPASSES  169 

escape  into  my  neighbor's  field,  their  presence  there  is  due  to  acci- 
dent, but  if  I  put  them  there  because  I  wrongly  believe  that  the  field 
is  mine,  their  presence  is  due  to  mistake.  In  neither  case  did  I  in- 
tend to  wrong  my  neighbor,  but  in  the  one  case  my  intention  failed 
as  to  the  consequence,  and  in  the  other  as  to  the  circumstance. 
Salmond,  Jurisprudence  (3d  Ed.)  Z77 . 


BASELY  V.  CLARKSON.      ifyrC^ 

(Court  of  Common  Pleas,  16S1.    3  Lev.  37,  83  Reprint.  565.) 

Trespass  for  breaking  his  closs  called  the  balk  and  the  hade,  and  cut- 
ting his  grass,  and  carrying  it  away.  The  defendant  disclaims  any 
title  in  the  lands  of  the  plaintiff,  but  says  that  he  hath  a  balk  and 
hade  adjoining  to  the  balk  and  hade  of  the  plaintiff,  and  in  mowing 
his  own  land  he  involuntarily  and  by  mistake  mowed  down  some  grass 
growing  upon  the  balk  and  hade  of  the  plaintiff',  intending  only  to 
mow  the  grass  upon  his  own  balk  and  hade,  and  carried  the  grass, 
etc.,  qu£e  est  eadem,  etc.  Et  quod  ante  emanationem  brevis  he  ten- 
dered to  the  plaintiff  2s.  in  satisfaction,  and  that  2s.  was  a  sufficient 
amends.  Upon  this  the  plaintiff'  demurred,  and  had  judgment;  for 
it  appears  the  fact  was  voluntary,  and  his  intention  and  knowledge  are 
not  traversable ;   they  cannot  be  known. ^ 

5  See  Holmes,  Common  Law  (ISSl)  99  et  seq.;    Whittier's  "Mistake  in  the 
Law  of    Torts"  (1902)  15  Harv.  Law  Rev.  335-352:    Salmond.  Law  of  Torts 
(1910)  15 :     "The  plea  of  inevitable  accident  is  that  the  consequences  com-  v 
plained  of  as  a  wrong  were  not  intended  by  the  defendant  and  could  not  have    ^ 
been  foreseen  and  avoided  by  the  exercise  of  reasonable  care.    The  plea  of  in-     • 
evitable  mistake,  on  the  other  hand,  is  that  although  the  act  and  its  conse-  ^   H6. 
quences  were  intended,  the  defendant  acted  under  an  erroneous  belief,  formed    ^ 
on  reasonable  grounds,  that  some  circumstance  existed  which  justified  him.    ( 
Such  a  mistaken  belief  in  justification,  however  reasonable,  is  not  itself  a  jus- 
titication.    This  is  probably  the  most  important  of  all  the  exceptions  recognized 
by  law  to  the  requirement  of  mens  rea  as  a  ground  of  civil  liability." 

"A  word  may  be  said  as  to  the  historical  origin  of  this  failure  of  English  law 
to  recognise  inevitable  mistake  as  a  ground  of  exemption  from  civil  liability.  ^ 
Ancient  modes  of  procedure  and  proof  were  not  adapted  for  inquiries  into  men- 
tal conditions.  By  the  practical  difficulties  of  proof  early  law  was  driven  to 
attach  exclusive  importance  to  overt  acts.  The  subjective  elements  of  wrong- 
doing were  largely  beyond  proof  or  knowledge,  and  were  therefore  disregarded 
as  far  as  possible.  It  was  a  rule  of  our  law  that  intent  and  knowledge  were 
not  matters  that  could  be  proved  or  put  in  issue.  'It  is  common  learning,'  said 
one  of  the  judges  of  King  Edward  IV.,  'that  the  intent  of  a  man  will  not  be 
tried,  for  the  devil  himself  knoweth  not  the  intent  of  a  man.'  Y.  B.  17  Edw. 
IV.  The  sole  question  which  the  courts  would  entertain  was  whether  the  de- 
fendant did  the  act  complained  of.  Whether  he  did  it  iguorantly  or  with 
guilty  knowledge  was  entirely  immaterial.  This  rule,  however,  was  restricted 
to  civil  liability.  It  was  early  recognised  that  criminal  responsibility  was  too 
serious  a  thing  to  be  imposed  upon  an  innocent  man  simply  for  the  sake  of 
avoiding  a  difficult  inquiry  into  his  knowledge  and  intention.  In  the  case  of 
civil  liability,  on  the  other  hand,  the  rule  was  general.  The  success  with  which 
it  has  maintained  itself  in  modern  hiw  is  due  in  part  to  its  undeniable  utility 
in  obviating  inconvenient  or  even  impracticable  inquiries,  and  in  part  to  the  in- 
fluence of  the  conception  of  redress  in  minimizing  the  importance  of  the  fornjal 
condition  of  penal  liability."     Salmond,  Jurisprudence  (3d  Ed.)  376. 


170  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 


^ 


STONEHOUSE  v.  ELLIOTT. 

(Court  of  King's  Bench,  1795.    6  T.  R.  315,  101  Reprint,  571.) 

This  action  of  trespass,  assault  and  false  imprisonment  was  tried 
before  Lord  Kenyon  at  the  sittings  at  Westminister  after  last  Hilary 
term,  when  these  facts  were  given  in  evidence.  The  defendant,  whose 
pocket  had  been  picked  at  the  play-house,  suspected  the  plaintiff,  and 
having  laid  hold  of  him  gave  him  in  charge  to  a  constable  who  was 
present,  and  to  whom  she  had  before  communicated  her  suspicions. 
The  plaintiff  was  taken  to  the  office  in  Bow  Street,  where  the  defend- 
ant still  persisted  in  her  charge  against  the  plaintiff,  but  after  some 
examination  it  appeared  that  the  defendaant  was  mistaken  in  her 
suspicions  of  the  plaintiff,  and  he  was  released.  It  was  objected  that 
the  plaintiff  had  misconceived  his  action,  that  he  should  have  brought 
an  action  on  the  case  for  making  the  malicious  charge,  and  that  tres- 
pass would  not  lie  in  such  a  case  as  the  present.  The  cause  however 
proceeded,  and  the  plaintiff  obtained  a  verdict  subject  to  the  opinion 
of  this  Court,  whether  the  action  in  its  present  form  could  be  main- 
tained.    Accordingly, 

Gibbs  moved  in  the  last  term  to  set  aside  the  verdict,  and  to  enter 
a  nonsuit. 

Lord  Kenyon,  C.  J.  The  doubt  whether  this  was  the  proper  form 
of  action  originated  with  me.  I  thought  at  the  trial  that  as  the  con- 
stable's power  to  arrest  flagrante  delicto,  for  the  purpose  of  putting  the 
supposed  offender  into  a  course  of  justice,  was  allowed  by  the  law, 
the  person  making  the  charge  could  only  be  liable  in  an  action  on  the 
case  for  making  such  a  charge  maliciously.  But  I  am  now  satisfied 
that  trespass  will  lie  in  this  case,  this  having  been  the  constant  course 
of  proceeding.** 

Per  Curiam.    Rule  discharged. 


HIGGINSON  et  al.  v.  YORK. 

(Supreme  Judicial  Court  of  Massachusetts,  1809.    5  Mass.  341.) 

Trespass  for  breaking  and  entering  the  close  of  the  plaintiffs,  called 
Burnt  Coat  island,  and  taking  and  carrying  away  three  hundred  cords 
of  the  plaintiffs'  wood.  Upon  the  general  issue,  pleaded  and  joined, 
the  action  was  tried  at  the  sittings  after  the  last  June  term  in  this 
county,  and  a  verdict  found  for  the  plaintiffs,  subject  to  the  opinion 
of  the  Court  upon  the  following  facts  contained  in  the  judge's  report. 

«  Compare  Samuel  v.  Payne  (1780)  1  Doucl.  350:  Thinkinpr.  on  reasonable 
grounds,  that  P.  had  stolen  laces  from  him,  D.  caused  an  ofliccr  to  take  P.  into 
custody.  The  ollicer  acted  without  a  warrant.  It  turned  out  that  D.  was  mis- 
taken. P.  sued  both  D.  and  the  officer  in  tresi.ass  for  false  inijirisonment. 
Held,  that  D.  was  liable,  but  that  the  charge  made  by  D.  to  the  officer  was  a 
sufiicient  justiticutiou  as  to  him. 


Ch.  1)  TRESPASSES  17^1 

In  the  year  1805,  the  defendant,  being  master  of  a  vessel  regularly 
employed  in  the  coasting  trade,  was  applied  to  by  one  Kenniston,  who 
was  then  a  trader  in  the  town  of  Sedgwick,  to  take  a  cargo  of  wood 
from  the  said  island  to  Boston.  He  accordingly  went  to  this  island 
with  Kenniston,  took  on  board  his  vessel  thirty  or  forty  cords  of 
wood  and  carried  the  same  to  Boston,  where  it  was  sold  and  the  pro- 
ceeds thereof  accounted  for  by  the  defendant  to  Kenniston. 

It  was  also  in  evidence  that  one  Phinney,  without  right  or  author- 
ity, had  cut  the  wood  in  question,  and  sold  it  to  Kenniston,  previously 
to  his  agreement  with  the  defendant  to  carry  it  to  Boston.  There  was 
no  evidence  that  the  defendant  had  any  knowledge  of  the  trespass  com- 
mitted by  Phinney,  or  that  he  was  in  any  manner  concerned,  or 
aiding  or  assisting  therein,  other  than  by  going  to  the  island,  and 
taking  the  wood  upon  freight  as  aforesaid.  The  title  of  the  plaintiffs 
to  the  island  was  not  questioned. 

The  cause  was  submitted  without  argument.  The  Court  did  not 
hesitate  in  giving  their  opinion  in  favor  of  the  action,  observing  that 
the  defendant  was  clearly  a  trespasser  in  going,  without  the  license 
of  the  owner,  upon  the  island  of  the  plaintiffs;  and  supposing  his 
taking  the  wood  there  to  be  a  mistake  as  to  the  rights  of  Kenniston, 
and  that  under  this  mistake  K.  had  been  paid  the  full  value  of  the 
wood  taken  by  York,  neither  the  mistake  nor  the  accommodation,  as 
being  between  joint  trespassers,  were  any  answer  to  the  lawful  owner, 
sustaining  the  injury  to  the  soil,  or  the  loss  of  his  chattels.  For  when 
taken,  the  wood,  being  cut  and  separated  from  the  soil,  was  the  per- 
sonal property  of  the  plaintiffs. 

The  doubt  in  this  case,  which  probably  occasioned  it  to  be  reserved, 
was  a  mistaken  apprehension  that  K.  &  Y.  were  to  be  constructively 
connected  with  Phinney  in  his  original  trespass  in  cutting  the  wood. 
But  the  causes  of  the  action  are  entirely  distinct.  P.  acquired  no 
property  in  the  wood  by  cutting  it,  as  against  the  owners  of  the  soil ; 
K.  could  acquire  none  from  him,  and  could  transfer  none  to  the 
present  defendant;  and  these  last  broke  the  close  of  the  plaintiffs  in 
going  upon  their  island,  and  were  trespassers,  and  as  such  are  charge- 
able in  damages,  at  least  to  the  value  of  the  wood  taken  and  carried 
away.    Judgment  according  to  the  verdict. 


HOBART  V.  HAGGET. 

(Stipreme  JiKlicial  Court  of  Maine,  1835.    12  Me.  67,  28  Am.  Dec.  159.) 

In  an  action  of  trespass,  in  which  the  general  issue  had  been  pleaded 
and  joined,  the  following  facts  appeared :  The  defendant  had  bought 
an  ox  of  the  plaintiff,  and  having  paid  plaintiff  the  agreed  price  was 
directed  by  him  to  go  and  take  the  ox.  The  defendant  went  to  the 
plaintiff's  enclosure  and  took  out  an  ox  which  he  supposed  was  the 


172  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

one  he  had  purchased ;  but  in  fact  it  was  not  the  ox  which  the  plain- 
tiff had  intended  to  sell.  The  jury  were  instructed  that  if  they  were 
satisfied  that  there  had  been  an  innocent  mistake  between  the  parties, 
and  that  the  defendant  had  supposed  that  he  had  purchased  the  ox  in 
question  when  in  fact  the  plaintiff  supposed  he  was  not  selling  that 
ox  but  another,  then  they  should  find  for  the  plaintiff'.  Under  these 
instructions  there  was  a  verdict  for  the  plaintiff.  The  defendant  ex- 
cepted/ 

Parris,  J.  *  *  *  ^]^Q  j^^j-y  Jiaving  found  for  the  plaintiff  have 
virtually  found  that  he  did  not  sell  the  ox  in  controversy,  and  the 
question  is  raised  whether  the  defendant  is  liable  in  trespass  for  hav- 
ing taken  it  by  mistake.  It  is  contended  that  where  the  act  complained 
of  is  involuntary  and  without  fault,  trespass  will  not  lie,  and  sundry 
authorities  have  been  referred  to  in  support  of  that  position.  But 
the  act  complained  of  in  this  case  was  not  involuntary.  The  taking 
of  the  plaintiff''s  ox  was  the  deliberate  and  voluntary  act  of  the  de- 
fendant. He  might  not  have  intended  to  commit  a  trespass  in  so  do- 
ing. Neither  does  the  officer,  when  on  a  precept  against  A.  he  takes 
by  mistake  the  property  of  B.,  intend  to  commit  a  trespass ;  nor  does 
he  intend  to  become  a  trespasser,  who,  believing  that  he  is  cutting  tim- 
ber on  his  own  land,  by  mistaking  the  line  of  division  cuts  on  his  neigh- 
bor's land;  and  yet,  in  both  cases,  the  law  would  hold  them  as  tres- 
passers.    *     *     *  ^ 

The  exceptions  are  overruled,  and  there  must  be  judgment  on  the 
verdict. 


/    PAXTON  v.  BOYER. 

(Supreme  Court  of  Illinois,  1873.     67  111.  132,  16  Am.  Rep.  615.) 

Action  of  trespass  by  Boyer  against  Paxton  for  an  assault  and  bat- 
tery. The  declaration  was  in  the  usual  form.  The  defendant  pleaded 
the  general  issue,  with  which  was  filed  a  stipulation  that  all  matters 
might  be  given  in  evidence  that  could  be  specially  pleaded.  A  trial 
was  had,  and  the  jury  returned  the  following  verdict: 

"We,  the  .iury,  find  the  defendant  guilty,  and  asse.ss  the  plaintiff's  damages 
at  $4.50.  We,  the  jury,  find  from  the  evidence,  that  the  blow  complained  of 
was  struck  by  the  defendant  without  nialite,  and  under  circumstances  which 
would  have  led  a  reasonable  man  to  believe  it  was  necessary  to  his  proper 
self-defense." 

7  This  statement  of  the  case  is  substituted  for  that  by  the  reporter.  A  part 
of  the  opinion  is  omitted. 

8  Accord:  Dexter  v.  Cole  (1858)  6  Wis.  320,  70  Am.  Dec.  465 :  D.,  a  butcher, 
was  driving  sheep,  which  he  had  purchased,  towards  his  slaughterhouse.  As 
they  were  passing  along  a  highway,  they  became  mixed  with  22  sheep  belonging 
to  P.,  which  were  running  at  large  upon  the  highway.  D.  undertook  to  sep- 
arate them  and  did  thro\r  out,  as  he  thought,  all  of  P.'s  sheep.  In  fact,  how- 
ever, four  of  P.'s  sheep  remained  in  the  flock,  and  were  driven  with  it  by  D.  to 
his  slaughterhouse.    P.  sues  in  trespass. 


Ch.  1)  TRESPASSES  173 

B  REESE,  J  *  *  *  fi^Q  testimony  sliows  the  trespass  was  com- 
mitted by  the  defendant  against  an  unoffending  party — against  one 
who  had  given  no  cause  or  provocation  of  any  kind.  The  defendant 
asked  this  instruction,  which  was  refused : 

"The  defendant  can  not  be  found  guilty,  in  an  action  of  this  kind,  unless,  in 
inflicting  the  injury  complained  of.  he  has  been  guilty  of  some  wrong,  evil  in- 
tent or  want  of  care;  and  if  you  find,  from  the  evidence,  he  struck  the  blow 
without  any  fault,  you  will  find  for  the  defendant." 

On  coming  in  of  the  verdict,  the  defendant  moved  for  judgment  on 
the  special  verdict,  which  the  court  denied.  This  is  the  first  point 
made  by  appellant.  He  insists  judgment  should  have  been  rendered 
for  the  defendant  upon  the  special  verdict,  as  that  ignores  malice  and 
unlawful  intent,  and  finds  that  the  act  was  done  under  circumstances 
which  would  have  led  a  reasonable  man  to  believe  it  was  necessary 
to  his  proper  self-defense.  Appellant's  theory  is,  that  he  mistook 
plaintiff  for  his  brother,  with  whom  he  was  in  conflict,  and  who 
had  felled  him  to  the  floor  by  violence. 

The  court,  for  the  plaintiff,  instructed  the  jury  that  it  was  no  de- 
fense, so  far  as  actual  damages  are  concerned,  that  the  defendant 
had  been  violently  assaulted  by  persons  other  than  the  plaintiff,  or 
was  then  being  assaulted  by  such  other  persons,  or  that  he  may  have 
honestly  believed  he  was  striking  Peter  Boyer  when  he  struck  the 
plaintiff',  or  that  he  may  have  honestly  believed  it  was  necessary  for 
his  self-defense  to  assault  the  plaintiff',  if  the  jury  find,  from  the  evi- 
dence, that  the  plaintiff'  was  not  a  party  to  such  assault  upon  the 
defendant;  such  evidence  of  mistake  of  facts,  or  good  intentions 
on  the  part  of  the  defendant,  can  only  be  considered  in  this  case  by 
the  jury  as  a  defense  against  the  infliction  by  the  jury  of  vindictive 
damages,  and  not  as  a  defense  against  such  actual  damages  as  the 
evidence  may  show  the  plaintiff  has  suff'ered  from  such  assault,  or  as 
naturally  resulted  from  such  assault.  These  instructions  involve  the 
merits  of  this  controversy. 

Appellant  relies,  in  support  of  his  theory,  upon  Morris  v.  Piatt,  32 
Conn.  75,  and  Brown  v.  Kendall,  6  Cush.  (Alass.)  292.  These  cases 
are  fully  discussed,  and  sustain  appellant.  The  facts  in  both  cases 
are  similar  to  those  in  this  case,  and  were  actions  of  assault  and  bat- 
tery. The  principle  is  announced  in  those  cases,  that  a  person  is  not 
liable  for  an  unintentional  injury  resulting  from  a  lawful  act,  where 
neither  negligence  nor  folly  is  imputable  to  him  who  does  the  act,  and 
that  the  burden  of  proving  the  negligence  or  folly,  where  the  act  is 
lawful,  is  upon  the  plaintiff'. 

This  cause  was  tried  on  the  general  issue,  with  leave  to  give  all 
matters  in  evidence  which  could  be  specially  pleaded.  That  the  plea 
of  self-defense  could  have  been  pleaded  is  not  questioned;  in  fact,  the 
plaintiff  in  his  second  instruction,  so  put  it  to  the  jury,  and  they,  by  their 
special  finding,  have  said  the  act  was  done  in  necessary  self-defense, 
or  under  circumstances  which  would  have  led  a  reasonable  man  to 


174  TORTS   THROUGH   ACTS   OP   ABSOLUTE   LIABILITY  (Part  1 

believe  it  was  necessary  to  his  proper  self-defense.  This  finding  was 
not  excepted  to  by  the  plaintiff,  nor  did  he  object  that  the  jury  should 
be  instructed  on  that  point.  It,  therefore,  stands  as  the  verdict  of 
the  jury,  that  there  was  no  malice  in  the  act,  and  that  it  was  done  in 
necessary  self-defense.  This  brings  the  case  within  those  relied  on 
by  appellant,  supra. 

Can  it  be  a  question  that,  for  an  act  done  under  such  circum- 
stances, the  party  doing  the  act  is  liable  either  civiliter  or  criminaliter? 
The  rule  is  well  established  that,  in  an  action  of  assault  and  battery, 
the  plaintiff  must  be  prepared  with  evidence  to  show,  either  that  the 
intention  was  unlawful,  or  that  the  defendant  was  in  fault.  2  Green- 
leaf  on  Ev.  §  85. 

The  jury,  by  their  special  finding,  have  ignored  the  unlawful  inten- 
tion, and  have  said  the  defendant  was  not  in  fault.  On  what  prin- 
ciple, then,  can  he  be  made  chargeable?  If  a  person,  doing  a  lawful 
act  in  a  lawful  manner,  with  all  due  care  and  circumspection,  happens 
to  kill  another,  without  any  intention  of  doing  so,  he  is  not  liable 
criminally.  How,  then,  can  it  be  said  he  shall  be  responsible  in  a 
civil  case,  when,  in  doing  a  lawful  act  with  due  care,  and  an  injury 
happens,  he  shall  be  deemed  in  fault,  and  mulcted  in  damages? 

It  is  said  by  appellee  the  rule  is  different  in  civil  cases ;  that  the 
motive  (quoting  from  Chitty),  intent  or  design  of  the  wrongdoer  to- 
wards the  plaintiff  is  not  the  criterion  as  to  the  form  of  the  remedy, 
for  when  the  act  occasioning  the  injury  is  unlawful,  the  intent  of  the 
wrongdoer  is  immaterial ;  but  appellant  here  is  no  wrongdoer,  as  the 
jury  have  said  by  the  special  verdict. 

We  do  not  deny  the  principle  contended  for  by  appellee,  that, 
where  a  tort  is  done,  intention  is  no  element  to  be  considered.  The 
special  verdict  out  of  the  way,  we  should  not  have  much  difficulty  in 
coming  to  the  conclusion  appellee's  counsel  have  reached,  but,  with 
that  at  the  threshold  of  the  case,  we  are  unable  to  see  the  force  of 
them. 

The  authority  cited  from  2  Greenleaf  Ev.  §  94,  by  appellee,  keep- 
ing the  special  verdict  all  tlie  time  in  view,  is  decisive  of  the  question. 
It  finds,  substantially,  appellant  "free  from  fault,"  and  therefore  not 
responsible. 

The  special  finding  must  override  the  general  verdict,  because  both 
can  not  stand,  there  being  such  an  irreconcilable  antagonism,  and  this 
is  the  provision  of  section  51,  supra.  It  may  be  answered  to  the 
argument  of  appellee,  that  he  was  assaulted  while  in  the  enjoyment 
of  a  legal  right  which  he  had  not  forfeited  by  any  act  of  his ;  that 
the  jury  have  found  the  act  done  by  appellant  was  done  in  the  exercise 
of  his  legal  right,  without  any  design  to  injure  appellee. 

We  have  thought  much  on  this  case,  and  are  constrained  to  hold,  on 
the  authority  of  Morris  v.  Piatt,  and  P>rown  v.  Kendall,  supra,  and 
on  principle,  that  judgment  should  have  been  pronounced  for  the  de- 


Ch.  1)  TRESPASSES  175 

fendanl  on  the  special  verdict,  for  that  justified  him.  This  renders  it 
unnecessary  to  consider  any  other  question  made  on  the  record. 

The  judgment  must  be  reversed,  and  the  cause  remanded,  with 
directions  to  enter  judgment  for  the  defendant  on  the  special  verdict. 

Judgment  reversed. 


SEIGEL  v.  LONG.  ot-^*^ 

(Supreme  Court  of  Alabama,  1910.    169  Ala.  79,  53  South.  753,  33  L.  R.  A. 

[N.  S.]  1070.) 

Seigel  sued  Long  for  assault  and  battery.  It  appeared  from  the 
defendant's  evidence  that  he  had  walked  from  his  wagon  down  to 
an  automobile  in  which  the  plaintiff  was  sitting,  and  had  placed  his 
hand  on  the  plaintiff's  forehead,  and  pushed  his  hat  back,  in  order 
to  see  his  face,  remarking  '"Some  scoundrel  came  along  here  yester- 
day and  scared  my  horses  and  caused  them  to  run  away  and  break 
my  rake,  and  I  am  looking  for  him."  The  plaintiff  asked  for  a  general 
affirmative  charge  for  nominal  damages.  This  was  refused.  There 
was  a  judgment  for  the  defendant,  and  plaintiff  appeals.® 

MAYFiiii^D,  J.  *  *  '■'  It  is  true  tha.t  defendant's  testimony  tend- 
ed to  show  that  defendant  made  a  mistake  as  to  the  identity  of  the 
party  Avhom  he  assaulted,  and  he  told  the  plaintiff  that,  if  he  was  not 
the  person  who  frightened  his  team,  he  owed  him  an  apology;  but 
this  did  not  prevent  what  he  did  from  being  an  assault  and  battery 
It  was  an  assault  and  battery,  with  or  without  mistaken  identity. 
Carter  v.  State,  87  Ala.  113,  6  South.  356.  It  was  likewise  no  defence 
that  defendant  offered  to  apologize  after  the  assault,  if  he  made  a 
mistake  as  to  the  identity  of  the  person  assaulted. ^^ 

Reversed  and  remanded. 

4-L 


(c)   Necessity 

MOUSE'S  CASE. 

(Court  of  King's  Bench,  1608.    12  Co.  Rep.  63,  77  Reprint,  1341.) 

In  an  action  of  trespass  brought  by  Mouse,  for  a  casket,  and  a 
hundred  and  thirteen  pounds,  taken  and  carried  away,  the  case  was, 
the  ferryman  of  Gravesend,  took  forty-seven  passengers  into  his  barge, 
to  pass  to  London,  and  Mouse  was  one  of  them,  and  the  barge  being 
upon  the  water,  a  great  tempest  happened,  and  a  strong  wind,  so  that 

9  This  statement  of  facts  is  substituted  for  the  statement  given  in  the  re- 
porter. 

10  Only  so  much  of  the  opinion  is  given  as  relates  to  the  one  point. 


176  TORTS   THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

the  barge  and  all  the  passengers  were  in  danger  to  be  drowned,  if  a 
hogshead  of  wine  and  other  ponderous  things  were  not  cast  out,  for 
the  safeguard  of  the  lives  of  the  men:  it  was  resolved  per  totam 
Curiam,  that  in  case  of  necessity  for  the  saving  of  the  lives  of  the 
passengers,  it  was  lawful  to  the  defendant,  being  a  passenger,  to  cast 
the  casket  of  the  plaintiff  out  of  the  barge,  with  the  other  things  in  it ; 
for  quod  quis  ob  tutelam  corporis  sui  fecerit,  jure  id  fecisse  videtur," 
to  which  the  defendant  pleads  all  this  special  matter,  and  the  plaintiff 
replies,  de  injuria  sua  propria  absque  tali  causa :  and  the  first  day 
of  this  term,  this  issue  was  tried,  and  it  was  proved  directly,  that  if 
the  things  had  not  been  cast  out  of  the  barge,  the  passengers  had  been 
drowned;  and  that  levandi  causa  they  were  ejected,  some  by  one  pas- 
senger, and  some  by  another ;  and  upon  this  the  plaintiff  was  nonsuit. 
It  was  also  resolved,  that  although  the  ferryman  surcharge  the 
barge,  yet  for  safety  of  the  lives  of  the  passengers  in  such  a  time  and 
accident  and  necessity,  it  is  lawful  for  any  passenger  to  cast  the  things 
out  of  the  barge :  and  the  owners  shall  have  their  remedy  upon  the  sur- 
charge against  the  ferryman,  for  the  fault  was  in  him  upon  the  sur- 
charge; but  if  no  surcharge  was,  but  the  danger  accrued  only  by  the 
act  of  God,  as  by  tempest,  no  default  being  in  the  ferryman,  everyone 
ought  to  bear  his  loss  for  the  safeguard  and  life  of  a  man:  for  in- 
terest reipublicse  quod  homines  conserventur,  8  Ed.  4.  23,  etc.  12 
H.  8.  15.  28  H.  8.  Dyer,  36.  plucking  clown  of  a  house,  in  time  of  fire, 
etc./^  and  this  pro  bono  publico;    et  conservatio  vitas  hominis   est 

11  "There  are,  I  conceive,  two  different  and  distinct  principles  upon  which 
private  property  may  be  justly  taken,  used  or  destroyed  for  the  benefit  of  oth- 
r  ers.  Both  of  these  are  commonly  comprehended  and  confounded  in  the  phrase 
of  'taking  or  destroying  private  property  for  public  benefit.'  One  of  these 
principles  is  applied  when  the  property  of  an  individual  is  taken  by  the  au- 
thority of  the  state  for  the  common  use  or  benefit  of  the  puldic.  *  *  *  But 
there  is  also  another  ground  upon  which  the  property  or  rights  of  individuals 
may  be  justly  sacrificed  to  the  necessities  of  others,  where  neither  the  state,  as 
a  whole,  nor  the  public,  in  the  general  seaise  of  that  term,  have  any  interest 
in  such  a  sacrifice.  This  may  be  seen  in  cases  of  innninent  peril,  where  'he 
right  of  self-defence,  or  the  protection  of  life  or  of  property,  authorizes  the 
sacrifice  of  other  and  less  valuable  propertj'.  The  throwing  overboard  of  goods 
in  a  storm,  the  pulling  down  of  a  house  to  prevent  the  spreading  of  a  con- 
flagration, are  connnon  examples  of  the  exercise  of  this  riglit.  This  is  a 
natural  right  arising  from  inevitable  and  pressing  necessity,  when  of  two  im- 
mediate evils,  one  miist  be  chosen,  and  tlie  less  is  Aoluntarily  inflicted  in  order 
to  avoid  the  greater.  Under  such  circumstances,  the  general  and  natural  law 
of  all  civilized  nations,  recognized  and  ratified  by  the  express  decisions  of  our 
own  common  law,  authorizes  the  destruction  of  property  by  any  citizen,  without 
liis  being  sul»ject  to  any  right  of  recovery  against  him  l)y  the  owner.  The  agent 
in  such  destruction,  whether  in  prot(>cti(Ui  of  bis  own  rights  or  the  rights  of 
others  which  may  be  accidentally  under  his  safeguard,  acts  from  good  motives 
and  for  a  justifiable  end :  so  that  against  him  the  sufferer  has  no  rightful 
claim.  But  the  loser  ma.v  liave  an  ecpntabie  right  of  compensation  against 
those  who  have  benefited  by  his  loss  in  the  preservation  of  their  projterty." 
Yerplanck.  Senator,  in  Stone  v.  Mayor  of  New  York  (1S40)  25  Wend.  157.  17.'3. 

1^  Compare:  Surocco  v.  Geary  (1S5;{)  3  Cal.  70,  58  Am.  Dec.  .■},S5:  Action 
to  recover  damages  for  blowing  up  and  destroying  the  plaintiff's  house.  An- 
swer that  the  defendant  had  destroyed  the  house  to  stop  the  progress  of  a 


Ch.  1)  TRESPASSES  l"*"? 

bonum  publicum.  So  if  a  tempest  arise  in  the  sea.  levandi  navis  causa, 
and  for  the  salvation  of  the  lives  of  men,  it  may  be  lawful  for  the 
passengers  to  cast  over  the  merchandizes,  etc. 

conflagration  then  raging.  Said  Murray.  C.  J.,  delivering  the  opinion :  "The 
only  question  for  our  consideration  is,  whether  the  person  who  tears  down  or 
destroys  the  house  of  another,  in  good  faith,  and  under  apparent  necessity, 
during^  the  time  of  a  conflagration,  for  the  purpose  of  saving  the  buildings  ad- 
jacent, and  stopping  its  progress,  can  be  held  personally  liable  in  an  action  by 
the  owner  of  the  property  destroyed.  *  *  *  The  right  to  destroy  property, 
to  prevent  the  spread  of  a  conflagration,  has  been  traced  to  the  highest  law  of 
necessity,  and  the  natural  rights  of  man,  independent  of  society  or  civil  gov- 
enuuent.  It  is  referred  by  moralists  and  jurists  to  the  same  great  principle 
which  justifies  the  exclusive  appropriation  of  a  plank  in  a  shipwreck,  though 
the  life  of  another  be  sacrificed;  with  the  throwing  overboard  of  goods  in  a 
tempest,  for  the  safety  of  a  vessel;  with  the  trespassing  upon  the  lands  of 
another,  to  escape  death  by  an  enemy.  It  rests  upon  the  maxim.  'Necessitas 
inducit  privilegium  quoad  jura  privata.'  The  common  law  adopts  the  principles 
of  the  natural  law,  and  places  the  justification  of  an  act  otherwise  tortious  pre- 
cisely on  the  same  ground  of  necessity.  (See  American  Print  Works  v.  Law- 
rence, 21  N.  J.  Law,  258,  264,  and  the  cases  there  cited.)  This  principle  has 
been  familiarly  recognized  by  the  books  from  the  time  of  the  Saltpetre  Case 
[12  Co.  Rep.  13  (1607)],  and  the  instances  of  tearing  down  a  house  to  prevent 
a  conflagration,  or  to  raise  bulwarks  for  the  defence  of  a  city,  are  made  use 
of  as  illustrations,  rather  than  as  abstract  cases,  in  which  its  exercise  is  per- 
mitted. At  such  times  the  individual  rights  of  property  give  way  to  the  higher 
laws  of  impending  necessity." 

The  Queen  v.  Dudley  and  Stephens  (1884)  14  Q.  B.  D.  273 :  Two  seamen 
and  a  17  year  old  boy,  Cast  away  in  a  storm  on  the  high  seas,  were  compelled 
to  put  into  an  open  boat.  After  eighteen  days  in  the  boat,  when  they  had 
been  seven  days  without  food  and  five  days  without  water,  and  the  boat  was 
drifting  more  than  1000  miles  from  land.  D.  and  S.  decided  that,  as  the  boy  was 
extremely  weak  and  likely  to  die,  they  would  kill  him,  in  order  that  their  lives 
might  be  saved.  On  the  twentieth  day  D.  with  the  assent  of  S.  killed  the  boy. 
The  two  lived  on  his  flesh  for  fc-ur  days,  when  they  were  picked  up  by  a  pass- 
ing vessel.  At  the  time  of  D.'s  act  there  was  no  sail  in  sight  nor  any  reason- 
able prospect  of  relief;  and  there  appeared  to  D.  and  S.  to  be  every  probability 
that  unless  they  fed  upon  the  boy  all  must  die  of  starvation.  When  found,  it 
appeared  that  if  D.  and  S.  had  not  fed  upon  the  body  of  the  boy,  they  would 
not  have  survived  to  be  rescued.    Lord  Coleridge,  C.  J.: 

"  *  *  *  It  is  said  that  it  follows  from  the  various  definitions  of  murder 
in  books  of  authority,  which  definitions  imply,  if  they  do  not  state,  the  doc- 
trine, that  in  order  to  save  your  own  life  you  may  lawfully  take  away  the  life 
of  another,  when  that  other  is  neither  attempting  nor  threatening  yours,  nor 
is  guilty  of  any  illegal  act  whatever  towards  you  or  any  one  else.  But  if  these 
definitions  be  looked  at  they  will  not  be  found  to  sustain  this  conten- 
tion.    *     *     * 

"The  only  real  authority  of  former  times  is  Lord  Bacon,  who,  in  his  com- 
mentary on  the  maxim,  'necessitas  inducit  privilegium  quoad  jura  privata,' 
lays  down  the  law  as  follows :  'Necessity  carrieth  a  privilege  in  itself.  Neces- 
sity is  of  three  sorts — necessity  of  conservation  of  life,  necessity  of  obedience, 
and  necessity  of  the  act  of  God  or  of  a  stranger.  First  of  the  conservation  of 
life;  if  a  man  steal  viands  to  satisfy  his  present  hungei",  this  is  no  felony 
or  larceny.  So  if  divers  be  in  danger  of  drowning  by  the  casting  away  of  some 
boat  or  barge,  and  one  of  them  get  to  some  plank,  or  on  the  boat's  side  to 
keep  himself  above  water,  and  another  to  save  his  life  thrust  him  from  it. 
whereby  he  is  drowned,  this  is  neither  se  defendeudo  nor  by  misadventure,  but 
justifiable.'  On  this  it  is  to  be  observed  that  Lord  Bacon's  proposition  that 
stealing  to  satisfy  hunger  is  no  larceny  is  hardly  supported  by  Staundforde. 
whom  i>e  cites  for  it,  and  is  expressly  contradicted  by  Lord  Hale  in  the  pass- 
age already  cited.  And  for  the  proposition  as  to  the  plank  or  boat,  it  is  said 
to  be  derived  from  the  canonists.    At  any  rate  he  cites  no  authority  for  it,  and 

Hepb.Tobts — 12 


178  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

GILBERT  V.  STONE. 

(Court  of  King's  Bench,  1648.     Style,  72.) 
[This  case  is  reported  ante,  page  29;    see  "Characteristics  of  a 
"  Cause  in  Trespass."] 

HENN'S  CASE. 

(At  a  Justice's  Seat  for  the  Forest  of  Windsor,  1G33.    Coram  the  Earl  of  Hol- 
land, Lord  Richardson,  O.  J.,  of  K.  B.,  and  Baron  Denham; 
Wm.  Jones,  296,  82  Reprint,  157.) 

The  Judges  agreed,  that  it  hath  been  adjudged,  that  if  a  man  do 
inclose,  where  he  may  by  law,  that  he  is  bound  to  leave  a  good  way, 
and  also  to  keep  it  in  continual  repair  at  his  own  charge,  and  the  coun- 
trey  out  not  to  be  contributory  thereto. 

:^Ir.  Attorney  said,  it  was  a  Norfolke  case,  that  in  an  action  of  tres- 
pass for  debrusing  his  close,  the  defendant  pleaded,  that  time  out 
of  mind,  there  was  a  common  footpath,  through  that  close,  etc.  The 
plaintiff  replyed,  that  the  defendant  went  into  other  places  out  of  the 

it  must  stand  upon  his  own.  Lord  Bacon  was  great  even  as  a  lawyer;  but  it 
is  permissible  to  much  smaller  men,  relying  upon  the  principle  and  on  the  au- 
thority of  others,  the  equals  and  even  the  superior  of  Lord  Bacon  as  lawyers, 
to  question  the  soundness  of  his  dictum.  There  are  many  conceivable  states 
of  things  in  which  it  might  possibly  be  true,  but  if  Lord  Bacon  meant  to  lay 
down  the  broad  proposition  that  a  man  may  save  his  life  by  killing,  if  neces- 
sary, an  innocent  and  uuofEending  neighbour,  it  certainly  is  not  law  at  the 
present  day.     *     *     * 

"Xow,  except  for  the  purpose  of  testing  how  far  the  conservation  of  a  man's 
own  life  is  in  all  cases  and  under  all  circumstances,  an  absolute,  unqualified, 
and  paramount  duty,  we  exclude  from  our  consideration  all  incidents  of  war. 
We  are  dealing  with  a  case  of  private  homicide,  not  one  imposed  upon  men  in 
the  service  of  their  Sovereign  and  in  the  defence  of  their  country.  Now  it  is 
admitted  that  the  deliberate  killing  of  this  unoffending  and  unresisting  boy 
was  clearly  murder,  unless  the  killing  can  be  justified  by  some  well-recognised 
excuse  adinitted  by  the  law.  It  is  further  admitted  that  there  was  in  this 
case  no  such  excuse,  unless  the  killing  was  justified  by  what  has  been  called 
'necessity.'  But  the  temptation  to  the  act  which  existed  here  was  not  what  the 
law  had  ever  called  a  necessity.  Nor  is  this  to  be  regretted.  Though  law  and 
morality  are  not  the  same,  and  many  things  may  be  immoral  which  are  not 
necessarily  illegal,  yet  the  absolute  divorce  of  law  from  morality  would  be  of 
fatal  consequence;  and  such  divorce  would  follow  if  the  temptation  to  murder 
in  this  case  were  to  lie  held  by  the  law  an  absolute  defence  of  it.  It  is  not  so. 
To  preserve  one's  life  is  generally  speaking  a  duty,  but  it  may  be  the  plainest 
and  highest  duty  to  sacrifice  it.  *  *  *  It  is  not  needful  to  point  out  the 
awful  danger  of  admitting  the  principle  which  has  been  contended  for.  Who 
is  to  be  the  judge  of  this  sort  of  necessity?  By  what  measure  is  the  comjiara- 
(ive  value  of  lives  to  be  measured?  Is  it  to  be  strength,  or  intellect,  or  what? 
It  is  plain  that  the  principle  leaves  to  him  who  is  to  profit  by  it  to  determine 
the  necessity  which  will  justify  him  in  deliberately  taldng  another's  life  to 
save  his  own.     ♦     •     * 

"It  is  therefore  our  duty  to  declare  that  the  prisoners'  act  in  this  case  was 
wilful  murder,  that  the  facts  as  stated  in  the  verdict  are  no  legal  justification 
of  the  homicide;  and  to  say  that  in  our  unaiiimuus  opinion  the  prisoners  are 
on  this  special  verdict  guilty  of  murder." 


Ch.  1)  TRESPASSES  179 

way  (which  was  a  kind  of  new  assignment) ;  the  defendant  rejoyned, 
that  the  footpath  was  adeo  lutosa  et  funderosa,  in  default  of  the 
plaintiff,  who  ought  to  amend  it,  that  he  could  not  pass  along  that, 
and  therefore  he  went  as  near  the  path  as  he  could,  in  good  and  passa- 
ble way,  and  this  was  resolved  a  good  plea  and  justification ;  out  of 
which  Mr.  Attorney  inferred,  that  in  case  where  a  man  incloseth,  and 
doth  not  make  a  good  way,  it  is  lawful  for  passengers  to  make  gaps 
in  his  hedges,  to  avoid  the  ill  way,  so  that  they  do  not  ride  further  in- 
to his  inclosed  grounds  then  is  needful  for  avoiding  the  bad  way/^ 

13  ""WTiere  a  highway  passes  through  open  and  uninclosed  land,  the  public 
have  a  right  to  deviate  onto  the  adjoining  land  (even  though  cultivated)  when 
the  usual  track  is  foundrous  and  impassable ;  but  it  is  uncertain  whether  this 
right  exists  as  a  matter  of  law  independently  of  evidence  of  user,  or  not.  It 
is,  however,  submitted  that  unless  some  evidence  of  the  exercise  of  a  prescrip- 
tive right  to  deviate  can  be  adduced,  the  existence  of  such  a  right  will  not 
now  be  assumed  as  a  matter  of  law.  There  is  authority  for  saying  that,  if  an 
owner  of  land  adjoining  a  highway  actively  obstructs  it,  or  being  under  obliga- 
tion to  repair  it,  fails  to  do  so,  the  public  may  then  deviate  onto  his  adjoining 
land,  even  through  his  fences."  Halsbury's  Laws  of  England,  vol.  16,  p.  50, 
citing  and  commenting  on  the  English  authorities. 

For  the  American  doctrine,  see  "iStreers  and  Highways,"  37  Cyc.  206,  and 
cases  cited  in  notes  90  and  91;  Cent.  Dig.,  "Highways,"  §  291;  and  Key  No., 
Dee.  Dig.,  "Highways,"  §  82. 

Compare  Campbell  v.  Race  (1851)  7  Cush.  (Mass.)  408,  54  Am.  Dec.  728 :  D. 
was  travelling  with  his  team  on  a  highway  running  east  and  west,  which  led 
to  a  highway  running  north  and  south.  The  latter  led  to  another  highway, 
on  which  the  defendant  had  occasion  to  go  and  which  could  be  reached,  by 
highway,  only  by  passing  over  the  two  highways  first  named.  At  the  time  of 
the  alleged  trespass,  they  were  both  impassable  with  snow-drifts.  Because  of 
this,  D.  turned  out  of  the  first  highway,  at  a  place  where  it  was  impassable, 
and  passed  over  the  adjoining  fields  of  the  plaintiff,  doing  no  unnecessary  dam- 
age, and  turned  into  the  second  highway,  as  soon  as  he  had  passed  the  obstruc- 
tions which  rendered  both  impassable.  And  he  contended,  that  the  highways 
being  thus  rendered  impassable,  he  had  a  way  of  necessity  over  the  plaintiff's 
adjoining  fields.  The  trial  judge  ruled,  that  these  facts  constituted  no  defense. 
But  said  Bigelow,  J.,  giving  the  opinion  of  the  reviewing  court :  "It  is  not 
controverted,  by  the  counsel  for  the  plaintiff,  that  the  rule  of  law  is  well  set- 
tled in  England,  that  where  a  highway  becomes  obstructed  and  impassable 
from  temporary  causes,  a  traveller  has  a  right  to  go  extra  viam  upon  adjoin- 
ing lands,  without  being  guilty  of  trespass.  The  rale  is  so  laid  down  in  the 
elementary  books,  and  it  is  fully  supported  by  the  adjudged  cases.  Such  being 
the  admitted  rule  of  law,  as  settled  by  English  authorities,  it  was  urged  in  be- 
half of  the  plaintiff,  that  it  had  never  been  recognised  or  sustained  by  American 
authors  or  cases.  But  we  do  not  find  such  to  be  the  fact.  *  *  *  The  rule 
itself  is  founded  on  the  established  principles  of  the  common  law,  and  is  i^ 
accordance  with  the  fixed  and  uniform  usage  of  the  community.  The  plaintiff's 
counsel  is  under  a  misapprehension  in  supposing  that  the  authoiities  in  sujiport 
of  the  rule  rest  upon  any  peculiar  or  exceptional  principle  of  law.  They  are 
based  upon  the  familiar  and  well  settled  doctrine,  that  to  justify  or  excuse  an 
alleged  trespass,  inevitable  necessity  or  accident  must  be  shown.  If  a  trav- 
eller in  a  highway,  by  unexpected  and  unforeseen  occurrences,  such  as  a  sud- 
den flood,  heavy  drifts  of  snow,  or  the  falling  of  a  tree,  is  shut  out  from  the 
travelled  paths,  so  that  he  cannot  reach  his  destination,  without  passing  upon 
adjacent  lands,  he  is  certainly  under  a  necessity  to  do  so.  It  is  essential  to 
the  act  to  be  done,  without  which  it  cannot  bo  accomplished.  ♦  *  *  to 
hold  a  party  guilty  of  a  wrongful  invasion  of  another's  rights,  for  passing  over 
land  adjacent  to  the  highway,  under  the  pressure  of  such  a  necessity,  would 
be  pushing  individual  rights  of  property  to  an  unreasonable  extent,  and  giving 
them  a  protection  beyond  that  which  finds  a  sanction  in  the  rules  of  law. 
Such  a  temporary  and  unavoidable  use  of  private  property,  must  be  regarded 


ISO  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

BULLARD  V.  HARRISON. 
(Court  of  King's  Bench,  1S15.    4  M.  &  S.  3S7,  105  Reprint,  877,  IG  R.  R.  403.) 

Trespass  for  breaking  and  entering  two  closes  of  the  plaintiff.  The 
defendant  in  two  special  pleas,  claimed  a  private  right  of  way,  and  al- 
leged that  this  way  had  become  impassable ;  that  the  defendant  there- 
upon gave  notice  to  the  plaintiff  to  repair  the  same,  which  he  refused 
to  do;  and  that  the  defendant  having  occasion  to  use  the  said  way, 
did  of  necessity  turn  out  of  it,  and  pass  over  the  adjoining  closes, 
keeping  as  near  as  he  possibly  could  to  the  private  way.  The  plain- 
tiff demurred. 

Lord  Ellenborough,  C.  J.  *  *  '■'  ^'*  The  question  intended  to 
be  agitated  upon  this  record  is,  whether  in  the  case  of  a  private  way 
the  grantee  may  break  out,  and  go  extra  viam,  if  it  be  impassable,  as 
in  the  case  of  a  public  way.  As  to  that,  I  consider  Taylor  v.  White- 
head, Doug.  749,  has  settled  the  distinction,  that  the  right  of  .going  on 
adjoining  lands  extends  not  to  private  as  well  as  public  ways.  And 
there  may  be  many  reasons  in  the  case  of  highways,  why  the  public 
should  have  an  outlet,  because  it  is  for  the  public  good  that  a  passage 
should  be  afforded  to  the  subjects  at  all  times.  But  the  same  neces- 
sity does  not  exist  in  the  case  of  a  private  right.  Whoever  will  look 
to  Serjt.  Williams's  note  to  the  case  of  Pomfret  v.  Rycroft,  1  Saund. 
323,  note  6,  will  find  both  the  law  upon  the  subject,  and  the  manner  of 
pleading  a  way  of  necessity,  very  accurately  detailed.  It  is  a  thing 
founded  in  grant,  and  the  granter  of  a  private  way  does  not  grant  a 
liberty  to  break  out  of  it  at  random  over  the  whole  surface  of  his 
close.  It  is  established  law,  that  the  grantee  of  a  private  way  can- 
not break  out  of  it,  and  I  hope  that  we  shall  not  be  carried  to  Nisi 
Prius  upon  such  an  unlimited  right  as  claimed  by  these  pleas.  It  seems 
to  me  that  both  pleas  are  ill.^^ 

Per  Curiam.    Judgment  for  the  plaintiff. 

as  one  of  those  incidental  burdens  to  which  all  property  in  a  civilized  com- 
nuinity  is  subject.  In  fact,  the  rule  is  sometimes  justiiied  upon  the  j^round  of 
public  convenience  and  necessity.  Highways  being  established  for  public  serv- 
ice, and  for  the  use  and  benefit  of  the  whole  coninuinity,  a  due  regard  for  the 
welfare  of  all  requires,  that  when  temporarily  obstructed,  the  right  of  travel 
should  not  be  interrupted." 

14  The  statement  of  facts  is  abridged,  and  a  part  of  the  opinion  is  omitted. 

15  Coini)!ire  Arnold  v.  Ilolbrook  (1873)  L.  R.  8  Q.  B.  9G :  P.  was  an  occupier 
of  an  arai)le  field  across  which  was  a  public  fo()ti)ath,  but  the  plaintiff  had  the 
right  to  plow  up  the  footpath  when  pUiughing  the  field.  After  a  ploughing,  the 
public  way  would  become  muddy,  and  those  using  it  would  walk  out  on  either 
side  of  it,  for  a  better  way.  To  prevent  this  P.  placed  hurdles  on  the  sides  of 
tlie  way.  D.  threw  down  three  of  these  hurdles.  P.  sued  for  a  trespass.  The 
trial  .iudge  gave  judgment  in  favor  of  the  dcfi-ndant,  on  the  ground  that  it  was 
the  duty  of  the  plaintiff,  after  he  had  ploughed  up  the  path,  to  set  out  again  a 
proper  path  for  the  use  of  the  public,  instead  of  leaving  them  to  tread  out  a 
path  the  best  way  they  could;  and  that  the  path  so  trodden  out  having  be- 
come in  a  muddy  and  foundtMous  state,  the  public  were  justified  in  deviating 
on  tlu?  i)laiiitirts  land  to  find  a  firmer  and  better  path.  Held,  that  this  judg- 
ment must  be  reversed  and  judgment  entered  for  the  plaintiff. 


Ch.  1)  TRESPASSES  181 


PROCTOR  V.  ADAMS. 

(Supreme  Judicial  Court  of  Massachusetts,  1873.    113  Mass.  376, 

18  Am.  Rep.  500.) 

Tort,  in  the  nature  of  a  trespass  quare  clausum,  for  entering  the 
plaintiff's  close  and  carrying  away  a  boat.  At  the  trial  it  appeared 
that  the  premises  described  in  the  declaration  were  a  sandy  beach  on 
the  sea  side  of  Plum  Island,  and  that  the  defendants  went  there,  be- 
tween high  and  low  water  mark,  January  19,  1873,  and  against  the  ob- 
jection and  remonstrances  of  the  plaintiff's  tenant,  carried  away  a 
boat  worth  $50,  which  they  found  lying  there.  The  defendants  of- 
fered evidence  that  upon  the  night  of  January  18,  1873,  there  was  a 
severe  storm ;  that  the  next  morning  they  went  upon  the  beach  to 
see  if  any  vessels  or  property  had  been  cast  ashore ;  that  they  found 
a  boat  lying  upon  the  beach  twenty-five  feet  below  high  water  mark, 
which  had  apparently  been  driven  ashore  in  the  storm ;  that  in  order 
to  save  it,  they  endeavored  to  haul  it  upon  the  beach,  and  succeeded 
in  putting  it  near  the  line  of  high  water  mark ;  that  not  thinking  it 
secure,  they,  the  next  day,  pushed  it  into  the  water,  and  carried  it 
around  into  Plum  Island  River,  on  the  inside  of  the  Island ;  that  they 
at  once  advertised  it  in  the  Ipswich  and  Newburyport  papers ;  that 
they  shortly  afterwards  delivered  it  to  one  Jackman,  who  claimed  it 
as  agent  for  the  underwriters  of  the  wrecked  steamer  Sir  Francis, 
and  who  paid  them  twelve  dollars  for  their  services  and  expenses. 

The  court  ruled  that  these  facts,  if  proved,  would  not  constitute  a 
defence,  and  proposed  to  instruct  the  jury  as  follows: 

"If  the  land  upon  which  the  boat  was  found  and  taken  possession  of  by  the 
defendants  was  in  possession  or  occupation  of  the  plaintiff,  the  defendants'  en- 
try u})on  it  without  permission  of  the  plaintiff  was  an  unlawful  entry. 

"If  the  defendants,  having  made  an  unlawful  entry  upon  the  plaintiff's  land, 
there  took  and  therefrom  can-ied  a  boat,  for  any  purpose  affecting  the  boat 
as  derelict  or  wrecked  property,  they  are  liable  to  the  plaintitf  for  their  unlaw- 
ful entry  upon  the  laud  in  nominal  damage,  and  also,  the  boat  not  being  their 
property,  but  a  wreck,  in  damages  for  the  unlawful  taking  and  carrying  away 
of  the  boat,  to  the  value  of  the  boat." 

The  defendants  requested  the  court  to  rule  that,  upon  the  case  pre- 
sented, the  law  would  imply  a  license,  but  the  court  declined  so  to 
rule.  The  defendants  then  declined  to  go  to  the  jury,  and  the  court 
instructed  the  jury  to  return  a  verdict  for  the  plaintiff  for  $51,  and 
reported  the  case  to  this  court. 

Gray,  C.  J.  The  boat,  having  been  cast  ashore  by  the  sea,  was  a 
wreck,  in  the  strictest  legal  sense.  3  Bl.  Com.  106.  Chase  v.  Corcor- 
an, 106  Mass.  286,  288.  Neither  the  finders  of  the  boat,  nor  the  own- 
er of  the  beach,  nor  the  Commonwealth,  had  any  title  to  the  boat  as 
against  its  former  owner.  Body  of  Liberties,  art.  90.  Anc.  Chart.  211. 
2  Mass.  Col.  Rec.  143.  St.  1814,  c.  170.  Rev.  Sts.  c.  57.  Gen.  Sts. 
c.  81.    3  Dane  Ab.  134,  136,  138,  144.    2  Kent  Com.  322,  359.    But  the 


182  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

owner  of  the  land  on  which  the  boat  was  cast  was  under  no  duty  to 
save  it  for  him.    Sutton  v.  Buck,  2  Taunt.  302,  312. 

If  the  boat,  being  upon  land  between  high  and  low  water  mark,  own- 
ed or  occupied  by  the  plaintiff,  was  taken  by  the  defendants,  claiming 
it  as  their  own,  when  it  was  not,  the  plaintiff'  had  a  sufficient  right  of 
possession  to  maintain  an  action  against  them.  Barker  v.  Bates,  13 
Pick.  255,  23  Am.  Dec.  678.  Dunwick  v.  Sterry,  1  B.  &  Ad.  831.  But  if, 
as  the  evidence  offered  by  them  tended  to  show,  the  boat  was  in  danger 
of  being  carried  off  by  the  sea,  and  they,  before  the  plaintiff  had  tak- 
en possession  of  it,  removed  it  for  the  purpose  of  saving  it  and  re- 
storing it  to  its  lawful  owner,  they  were  not  trespassers.  In  such  a 
case,  though  they  had  no  permission  from  the  plaintiff  or  any  other 
person,  they  had  an  implied  license  by  law  to  enter  on  the  beach  to 
save  the  property.  It  is  a  very  ancient  rule  of  common  law,  that  an 
entry  upon  land  to  save  goods  which  are  in  jeopardy  of  being  lost 
or  destroyed  by  water,  fire,  or  any  like  danger,  is  not  a  trespass.  21 
H.  VII.  27,  28,  pi.  5.  Bro.  Ab.' Trespass,  213.  Vin.  Ab.  Trespass 
(H.  a.  4),  pi.  24  ad  fin. ;  (K.  a.)  pi.  3.  In  Dunwick  v.  Sterry,  1  B.  & 
Ad.  831,  a  case  very  like  this,  Mr.  Justice  Parke  (afterwards  Baron 
Parke  and  Lord  Wensleydale)  left  it  to  the  jury  to  say  whether  the 
defendant  took  the  property  for  the  benefit  of  the  owners,  or  under 
a  claim  of  his  own  and  to  put  the  plaintiffs  to  proof  of  their  title.  In 
Barker  v.  Bates,  13  Pick.  255,  23  Am.  Dec.  678,  upon  which  the  plain- 
tiff mainly  relies,  the  only  right  claimed  by  the  defendants  was  as 
finders  of  the  property  and  for  their  own  benefit. 

The  defendants  are  therefore  entitled  to  a  new  trial.  As  the  answer 
was  not  objected  to,  and  the  declaration  may  be  amended  in  the  court 
below,  we  have  not  considered  the  form  of  the  pleadings. 

New  trial  ordered. 


NEWKIRK  V.  SABLER. 

(Supreme  Court  of  New  York,  1S50.    9  Barb.  652.) 

This  was  an  action  for  an  assault  and  battery.  It  appeared  that 
the  plaintiff"  had  sent  his  servant,  with  a  team  and  wagon,  across  the 
farm  of  the  defendant,  upon  which  he  entered  by  taking  down  the 
bars,  after  the  defendant  had  forbidden  the  plaintiff's  crossing  his 
lands.  On  the  return  of  the  team  to  the  place  where  it  had  entered, 
the  bars  were  found  fastened  by  boards  nailed  over  them.  The  serv- 
ant, after  an  ineffectual  attempt  to  get  through,  left  the  team  and 
wagon  on  the  defendant's  land,  and  went  and  informed  the  plaintiff', 
who  came  and  commenced  tearing  down  the  fence  for  the  purpose 
of  taking  away  his  property.  The  defendant  forbade  the  plaintift''s 
taking  down  the  fence,  but  the  latter  persisting  in  his  attempt,  the  de- 
fendant struck  the  plaintiff,  or  struck  at  him,  with  a  stick.     A  fight 


Ch.  1)  TRESPASSES  183 

ensued  between  the  parties,  in  which  the  plaintiff  received  the  in- 
juries complained  of;  and  both  parties  were  more  or  less  injured. 
The  result  was,  that  the  plaintiff  got  the  fence  down,  and  brought 
away  his  team. 

The  judge  charged  the  jury,  among  other  things,  that  although  the 
team  and  wagon  of  the  plaintiff'  were  wrongfully  on  the  land  of  the 
defendant,  it  was  the  duty  and  right  of  the  plaintiff  to  get  liiem  off, 
with  the  least  possible  injury  to  the  premises;  and  that  the  defend- 
ant was  not  justified  in  using  personal  violence  to  prevent  him  from 
removing  his  team  from  the  premises.  That  the  real  question  for 
them  to  determine  was,  whether  the  plaintiff  was,  at  the  time  of  the 
assault,  engaged  in  wanton  and  unnecessary  destruction  of  the  de- 
fendant's fences ;  or  whether  he  was  endeavoring  in  the  most  direct 
way,  to  remove  his  team  from  the  premises;  that  if  the  jury  should 
be  satisfied  from  the  evidence,  that  the  force  employed  by  the  defend- 
ant was  exerted  for  the  purpose  of  preventing  the  plaintiff  from  re- 
moving his  team  from  the  premises,  and  not  to  preserve  his  fence 
from  unnecessary  injury,  then  they  ought  to  find  for  the  plaintiff. 
But  on  the  contrary,  if  they  should  find  that  the  injury  the  plaintiff 
was  doing  to  the  fence  was  unnecessary,  and  that  the  defendant  com- 
mitted the  acts  complained  of  for  the  purpose  of  preventing  such  un- 
necessary injury  to  the  fenCe,  then  the  verdict  should  be  for  the  de- 
fendant. The  counsel  for  the  defendant  excepted  to  so  much  of  the 
charge,  as  charged  that  it  was  the  duty  of  the  plaintiff,  and  that  he 
had  a  right,  though  his  horses  and  wagons  were  upon  the  lands  of 
the  defendant,  to  remove  them  therefrom;  and  that  the  plaintiff  was 
justifiable  in  breaking  down  the  fence  to  remove  them,  if  it  was  neces- 
sary to  do  so  for  that  purpose;  and  that  the  defendant  would  not 
be  justifiable  in  committing  a  battery  to  prevent  him  from  so  doing; 
and  to  so  much  of  the  charge  as  submitted  to  the  jury  the  question 
which  in  the  opinion  of  the  judge,  was  the  real  question  for  them 
to  try. 

The  jury  found  a  verdict  for  $50  in  favor  of  the  plaintiff.  From 
the  judgment  entered  on  this  verdict  the  defendant  appealed. 

Parker,  J.  I  think  that  the  learned  justice  erred  in  holding  that 
the  plaintiff  had  a  right  to  enter  upon  the  lands  of  the  defendant  for 
the  purpose  of  regaining  possession  of  his  property. 

The  right  to  land  is  exclusive;  and  every  entry  thereon,  without 
the  owner's  leave,  or  the  licence  or  authority  of  law,  is  a  trespass. 
(3  Bl.  Com.  209.  Percival  v.  Hickey,  18  John.  285,  9  Am.  Dec.  210.) 
There  is  a  variety  of  cases  where  an  authority  to  enter  is  given  by 
law ;  as  to  execute  legal  process ;  to  distrain  for  rent ;  to  a  landlord 
or  reversioner,  to  see  that  his  tenant  does  no  w^aste,  and  keeps  the 
premises  in  repair  according  to  his  covenant  or  promise;  to  a  cred- 
itor, to  demand  money  payable  there ;  or  to  a  person  entering  an 
inn  for  the  purpose  of  getting  refreshment  there.     (3  Bl.  Com.  212. 


184  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

1  Cowen's  Tr.  411.)  In  some  cases,  a  license  will  be  implied;  as  if  a 
man  make  a  lease,  reserving'  the  trees,  he  has  a  right  to  enter  and 
show  them  to  a  purchaser.     *     *     * 

In  some  cases  entry  will  be  excused  by  necessity.  As  if  a  public 
highway  is  impassable,  a  traveler  may  go  over  the  adjoining  land. 
(Absor  V.  French,  2  Show.  28.     Asser  v.  Finch,  2  Lev.  234.     Young 

v. ,  1  Ld.  Raym.  725.)    But  this  would  not  extend  to  a  private 

way ;  for  it  is  the  owner's  fault  if  he  do  not  keep  it  in  repair.  (Taylor 
v.  Whitehead,  Doug.  747.  Promfret  v.  Ricroft,  1  Saund.  321.)  So 
if  a  man  who  is  assaulted,  and  in  danger  of  his  life,  run  through 
the  close  of  another,  trespass  will  not  lie,  because  it  is  necessary  for 
the  preservation  of  his  life.  (Year-Book,  Z7  H.  6,  Z7 ,  pi.  26.)  If  my 
tree  be  blown  down  and  fall  on  the  land  of  my  neighbor,  I  may  go 
on  and  take  it  away.  (Bro.  Tres.  pi.  213.)  And  the  same  rule  pre- 
vails where  fruit  falls  on  the  land  of  another.  (Aliller  v.  Fawdry, 
Latch,  120.)  But  if  the  owner  of  a  tree  cut  the  loppings  so  that  they 
fall  on  another's  land,  he  can  not  be  excused  for  entering  to  take 
them  away  on  the  ground  of  necessity,  because  he  might  have  pre- 
vented it.     (Bac.  Abr.  Trespass  F.) 

Some  times  the  right  of  action  depends  on  the  question  which  is 
the  first  wrongdoer.  If  J.  S.  have  driven  the  beast  of  J.  N.  into  the 
close  of  J.  S.,  or  if  it  have  been  driven  therein  by  a  stranger,  with 
the  consent  of  J.  S.,  and  J.  N.  go  therein  and  take  it  away,  trespass 
will  not  lie,  because  J.  S.  was  himself  the  first  wrongdoer.  (3  Roll. 
Abr.  566,  pi.  9.  Chapman  v.  Thumbethorp,  Cro.  Eliz.  329).  Tested 
by  that  rule,  the  plaintiff  in  this  suit  certainly  has  no  right  of  action; 
for  he  w^as  the  first  wrongdoer.  But  it  is  well  settled  that  where  there 
is  neither  an  express  nor  an  implied  license,  nor  any  such  legal  ex- 
cuse as  is  above  stated,  a  man  has  no  right  to  enter  upon  the  land  of 
another  for  the  purpose  of  taking  away  a  chattel  being  there,  which 
belongs  to  the  former.  The  mere  fact  that  the  plaintiff  owns  the  chat- 
tel, gives  him  no  authority  to  go  upon  the  land  of  another  to  get  it. 
In  Heermance  v.  Vernoy,  6  John.  5,  where  A.  had  entered  upon  the 
land  of  B.  without  his  permission  to  take  a  chattel  belonging  to  A. ; 
it  was  held  to  be  a  trespass.  So  in  Blake  v.  Jerome,  14  John.  406, 
a  mare  and  a  colt  were  taken  out  of  the  plaintiff's  field,  by  a  person 
who  acted  under  the  orders  and  direction  of  the  defendant,  after  they 
had  been  demanded  by  the  defendant  and  refused  to  be  delivered 
to  him ;  and  after  he  had  been  expressly  forbidden  to  take  them,  and 
the  defendant  was  held  to  be  guilty  of  a  trespass. 

In  this  case,  the  plaintiff's  horses  and  wagon  were  on  lands  of  the 
defendant,  where  they  had  been  left  by  the  servant  of  the  plaintiff. 
They  were  not  there  by  the  defendant's  permission.  On  the  contrary 
the  plaintiff  had  been  guilty  of  a  trespass  in  sending  his  team  across 
the  lands  of  the  defendant,  after  he  had  been  forbidden  to  do  so.  And 
I  think  the  defendant  had  the  right  to  detain  them  before  they  left 
the  premises,  and  to  distrain  them  damage  feasant.     2  Rev.  St.  pt.  3, 


Ch.  1)  •  TRESPASSES  185 

c.  8,  p.  427.  But  it  is  not  necessary  to  decide,  whether  the  defendant 
detained  the  property  rightfully  or  wrongfully. 

The  plaintiff  attempted  to  enter  upon  the  lands  of  the  defendant 
and  against  his  will,  for  the  purpose  of  taking  away  his  property. 
This  he  had  no  right  to  do,  even  though  his  property  were  unlawfully 
detained  there.  If  the  plaintiff  could  not  regain  the  possession  of 
his  property  peaceably,  he  should  have  resorted  to  his  legal  remedy, 
by  which  he  could,  after  demand  and  refusal,  have  recovered  either 
the  property  itself  or  its  value.  He  had  no  right  to  redress  himself 
by  force.  (1  Bl.  Com.  4.)  In  pursuing  his  object,  the  plaintiff  tore 
down  the  defendant's  fence  after  he  had  been  forbidden  to  enter, 
and  after  he  had  been  ordered  by  the  defendant  to  desist.  The  de- 
fendant had  a  right  to  protect  himself  in  the  enjoyment  of  his  posses- 
sion and  his  property,  by  defending  them  against  such  aggression. 
Weaver  v.  Bush,  8  T.  R.  78,  Gregory  v.  Hill,  Id.,  299 ;  Greene  v.  Jones, 
1  Saund.  296,  note  1.  Green  v.  Goddard,  1  Salk.  641.  Turner  v. 
Meymott,  1  Bing.  158.    3  Bl.  Com.  5. 

The  defendant  can  not  be  held  liable  for  the  injuries  inflicted  upon 
the  plaintiff,  on  the  occasion  in  question,  unless  he  used  more  force 
than  was  necessary  for  the  defense  of  his  possession;  and  it  seems 
that  he  did  not  use  enough  to  prevent  the  plaintiff's  effecting  his  for- 
cible entry  and  taking  away  the  property.  But  that  was  a  question 
proper  to  be  submitted  to  the  jury. 

The  judgment  of  the  circuit  court  must  be  reversed,  and  a  new  trial 
awarded;   costs  to  abide  the  event.^^ 


KIRK,  Executor,  v.  GREGORY  et  ux. 

(Exchequer  Division,  1876.     1  Ex,  Div.  55.) 

The  second  count  alleged  a  trespass  by  the  female  defendant  in  tak- 
ing away  certain  jewelry  claimed  by  the  plaintiff  as  executor.  Under 
a  plea  of  not  guilty  the  following  facts  were  proved :  The  plaintiff's 
testator  died  in  his  own  house,  while  in  a  state  of  delirium  tremens. 
His  attendants  and  others  were  feasting  and  drinking  in  the  house. 
The  female  defendant,  who  was  the  wife  of  the  testator's  brother, 
immediately  after  the  death,  took  out  of  an  unlocked  drawer  in  the 
room  where  the  testator  died  some  jewelry  belonging  to  the  testator, 
and  (as  she  said)  placed  it  with  a  watch  of  the  testator's  in  a  box,  and 
put  the  box  in  a  cupboard  in  another  room  for  safety.  The  box  and 
the  cupboard  were  unlocked.  The  plaintiff  on  being  informed  found 
the  watch,  but  the  jewelry  was  missing  and  had  never  been  found. 

The  judge  left  to  the  jury  the  question,  whether  the  female  defend- 
ant had  put  the  things  away  bona  fide  for  the  purpose  of  preserving 

10  Part  of  the  opinion  Is  omitted. 


ISO  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

them.  The  jury  answered  in  the  affirmative,  and  the  judge  thereupon 
directed  a  verdict  for  the  defendants,  giving  the  plaintiff  leave  to  move 
to  enter  the  verdict  for  him  for  Is.  damages  on  the  count  of  trespass; 
the  defendants  to  have  liberty  to  add  any  plea  of  justification  which 
the  facts  would  support.^' 

Anstie,  for  the  defendants.  To  constitute  a  trespass,  there  must  be 
a  wrongful  taking;    here  there  was  none  such. 

Cave,  Q.  C,  for  the  plaintiff.  Removing  the  goods  from  the  drawer 
was  an  asportation,  and  it  would  be  no  answer  to  say  that  the  things 
would  otherwise  have  been  lost,  even  if  the  defendants  had  saved 
them  instead  of  losing  them  as  they  did.  In  Bac.  Abr.  Trespass,  E. 
(7th  Ed.)  by  Gwillim  &  Dodd,  p.  671,  it  is  said:  "If  J.  S.  take  the 
goods  of  J.  N.  to  prevent  them  from  being  stolen  or  spoiled,  an  ac- 
tion of  trespass  lies ;  because  the  loss  to  J.  N.  would  not,  if  either  of 
these  things  had  happened,  have  been  irremediable.  But  if  the  goods 
of  J.  N.  are  in  danger  of  being  destroyed  by  fire,  and  J.  S.,  in  or- 
der to  prevent  this,  take  them,  this  action  does  not  lie ;  because  the 
loss  if  this  had  happened  would  have  been  irremediable."  Eor  this 
Bro.  Abr.  Tresp.  pi.  213,  is  cited.  See,  also,  Isaac  v.  Clark,  2  Bulst. 
306,  312,  1  Roll.  Rep.  1216,  130,  and  Reg.  v.  Thurborn,  1  Den.  Cr. 
C.  387. 

Bramwell,  B.  *  *  *  There  has  clearly  been  an  asportation 
which  the  defendants  have  to  justify.  Mr.  Anstie,  on  their  behalf, 
had  leave  to  add  any  plea  he  thought  fit,  provided  it  was  a  good  plea. 
Suppose  there  was  a  plea  to  the  effect  that  the  owner  of  the  goods 
was  recently  dead,  the  executor  was  unknown,  no  one  was  in  charge 
of  the  house,  that  the  defendants  were  near  relations  to  the  deceased 
who  had  visited  him,  and  that  the  trespass  in  question  was  a  necessary 
removal  of  the  goods  for  their  preservation  and  protection,  and  a 
reasonable  step.  I  am  inclined  to  think  this  would  be  a  good  pica.  The 
law  cannot  be  so  unreasonable  as  to  lay  down  that  a  person  cannot 
interfere  for  the  protection  of  such  things  as  rings  and  jewelry  in 
the  house  of  a  man  just  dead.  But  the  v/hole  of  the  supposed  plea 
was  not  proved.  The  jury  found  that  the  defendant  acted  bona  fide, 
that  is  to  say,  that  the  articles  were  removed  for  their  preservation ; 
but  it  was  not  proved  that  the  interference  was  reasonably  necessary, 
that  is  to  say,  that  the  things  were  in  a  position  to  require  the  inter- 
ference, and  that  the  interference  was  reasonably  carried  out.  Mr. 
Anstie  ingeniously  argued  that  the  responsibility  of  a  person  under 
circumstances  of  this  kind  is  really  a  question  of  negligence  and  not 
of  trespass.  I  do  not  think  it  is.  But  even  if  it  were,  it  was  not 
shewn  that  the  goods  were  in  jeopardy.  The  supposed  plea  has  not 
been  proved.    As  the  point  now  raised  by  the  plaintiff  never  went  to 

17  The  statement  is  abridged.  There  were  concurring  opinions  from  Cleasby 
and  .\)iiphlett.  RB.  Only  so  much  of  Bramwell,  B.'s,  opinion  is  given  as  relates 
to  tlie  one  point. 


Ch.  1)  TRESPASSES  187 

the  jury,  the  defendants  would  be  entitled  to  a  new  trial;  but  as 
they  do  not  ask  for  it,  the  verdict  must  be  entered  for  the  plaintiff  for 
Is.   damages.^* 


PLOOF  V.  PUTNAAI. 

(Supreme  Court  of  Vermont,  1908.    81  Vt.  471,  71  Atl.  188,  20  L.  R.  A.  [N.  S.] 
152,  130  Am.  St.  Rep.  1072,  15  Ann.  Cas.  1151.) 

The  case  was  heard  on  demurrer  to  the  declaration.  The  declara- 
tion was  held  sufficient  and  the  demurrer  was  overruled,  to  which  the 
defendant  excepted. 

MuNSON,  J.  It  is  alleged  as  the  ground  of  recovery  that  on  the 
13th  day  of  November,  1904,  the  defendant  was  the  owner  of  a  cer- 
tain island  in  Lake  Champlain,  and  of  a  certain  dock  attached  there- 
to, which  island  and  dock  were  then  in  charge  of  the  defendant's 
servant ;  that  the  plaintiff  was  then  possessed  of  and  sailing  upon  said 
lake  a  certain  loaded  sloop,  on  which  were  the  plaintiff  and  his  wife 
and  two  minor  children ;  that  there  then  arose  a  sudden  and  violent 
tempest,  whereby  the  sloop  and  the  property  and  persons  therein  were 
placed  in  great  danger  of  destruction;  that,  to  save  these  from  de- 
struction or  injury,  the  plaintiff  was  compelled  to,  and  did,  moor  the 
sloop  to  defendant's  dock;  that  the  defendant,  by  his  servant,  un- 
moored the  sloop,  whereupon  it  was  driven  upon  the  shore  by  the 
tempest,  without  the  plaintiff's  fault;  and  that  the  sloop  and  its  con- 
tents were  thereby  destroyed,  and  the  plaintiff  and  his  wife  and  chil- 
dren cast  into  the  lake  and  upon  the  shore,  receiving  injuries. 

This  claim  is  set  forth  in  two  counts — one  in  trespass,  charging 
that  the  defendant  by  his  servant  with  force  and  arms  willfully  and 
designedly  unmoored  the  sloop ;  the  other  in  case,  alleging  that  it 
was  the  duty  of  the  defendant  by  his  servant  to  permit  the  plaintiff 
to  moor  his  sloop  to  the  dock,  and  to  permit  it  to  remain  so  moored 
during  the  continuance  of  the  tempest,  but  that  the  defendant  by  his 

18  Compare  the  remarks  of  Bigelow,  J.,  in  Campbell  v.  Race  (1851)  7  Cusb. 
(Mass.)  408,  41.3  (54  Am.  Dec.  728),  the  facts  of  which  are  given  ante:  "The 
limitations  and  restrictions  of  the  right  to  go  upon  adjacent  lands  in  case  of 
ob.structious  in  the  highway  can  be  readily  inferred.  Having  its  origin  in 
necessity,  it  must  be  limited  by  that  necessity;  cessante  ratione,  cessat  ipssa 
lex.  Such  a  right  is  not  to  be  exercised  from  convenience  merely,  nor  when, 
by  the  exercise  of  due  care,  after  notice  of  obstructions,  other  ways  may  be 
selected  and  the  obstructions  avoided.  But  it  is  to  be  couhned  to  those  cases  of 
inevitable  necessity,  or  unavoidable  accident,  arising  from  sudden  and  recent 
causes  which  have  occasioned  temporary  and  impassable  obstructions  in  the 
highway.  What  shall  constitute  such  inevitable  necessity  or  unavoidable  ac- 
cident must  depend  upon  the  various  circumstances  attending  each  particular 
case.  The  nature  of  the  obstruction  in  the  road,  the  length  of  time  during 
which  it  has  existed,  the  vicinity  or  distance  of  other  public  ways,  the  exi- 
gencies of  the  traveller,  are  some  of  the  many  considerations  which  would  en- 
ter into  the  inquiry  and  upon  which  it  is  the  exclusive  province  of  the  jury  to 
pa.'-s,  in  order  to  deteniiine  whether  any  necessity  really  existed  which  would 
justify  or  excuse  the  traveller." 


1S8  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

servant,  in  disregard  of  this  duty,  negligently,  carelessly,  and  wrong- 
fully unmoored  the  sloop.    Both  counts  are  demurred  to  generally. 

There  are  many  cases  in  the  books  which  hold  that  necessity,  and 
an  inability  to  control  movements  inaugurated  in  the  proper  exercise 
of  a  strict  right,  will  justify  entries  upon  land  and  interferences  with 
personal  property  that  would  otherwise  have  been  trespasses.  A 
reference  to  a  few  of  these  will  be  sufficient  to  illustrate  the  doctrine. 
In  ]^Iiller  v.  Fandrye,  Poph.  161,  trespass  was  brought  for  chasing 
sheep,  and  the  defendant  pleaded  that  the  sheep  were  trespassing  up- 
on his  land,  and  that  he  with  a  little  dog  chased  them  out,  and  that, 
as  soon  as  the  sheep  were  off  his  land,  he  called  in  the  dog.  It  was 
argued  that,  although  the  defendant  might  lawfully  drive  the  sheep 
from  his  own  ground  with  a  dog,  he  had  no  right  to  pursue  them  into 
the  next  ground ;  but  the  court  considered  that  the  defendant  might 
drive  the  sheep  from  his  land  with  a  dog,  and  that  the  nature  of  a 
dog  is  such  that  he  cannot  be  withdrawn  in  an  instant,  and  that,  as 
the  defendant  had  done  his  best  to  recall  the  dog,  trespass  would  not 
lie.  In  trespass  of  cattle  taken  in  A.,  defendant  pleaded  that  he  was 
seised  of  C.  and  found  the  cattle  there  damage  feasant,  and  chased 
them  towards  the  pound,  and  they  escaped  from  him  and  went  in- 
to A.,  and  he  presently  retook  them;  and  this  was  held  a  good  plea. 
21  Edw.  IV,  64;  Vin.  Ab.  Trespass,  H.  a,  4,  pi.  19.  If  one  have  a 
way  over  the  land  of  another  for  his  beasts  to  pass,  and  the  beasts, 
being  properly  driven,  feed  the  grass  by  morsels  in  passing,  or  run 
out  of  the  way  and  are  promptly  pursued  and  brought  back,  trespass 
will  not  lie.  See  Vin.  Ab.  Trespass,  K.  a,  pi.  1.  A  traveler  on  a  high- 
way who  finds  it  obstructed  from  a  sudden  and  temporary  cause  may 
pass  upon  the  adjoining  land  without  becoming  a  trespasser  because 
of  the  necessity.  Henn's  Case,  W.  Jones,  296;  Campbell  v.  Race,  7 
Cush.  (Mass.)  408,  54  Am.  Dec.  728 ;  Hyde  v.  Jamaica,  27  Vt.  443 
(459);  Morey  v.  Fitzgerald,  56  Vt.  487,  48  Am.  Rep.  811.  An  entry 
upon  land  to  save  goods  which  are  in  danger  of  being  lost  or  destroy- 
ed by  water  or  fire  is  not  a  trespass.  21  Hen.  VII,  27;  Vin.  Ab. 
Trespass,  H.  a,  4,  pi.  24,  K.  a,  pi.  3.     *     *     * 

This  doctrine  of  necessity  applies  with  special  force  to  the  preserva- 
tion of  human  life.  One  assaulted  and  in  peril  of  his  life  may  run 
through  the  close  of  another  to  escape  from  his  assailant.  Z7  Hen. 
VII,  pi.  26.  One  may  sacrifice  the  personal  property  of  another  to 
save  his  life  or  the  lives  of  his  fellows.  In  Mouse's  Case,  12  Co.  63, 
the  defendant  was  sued  for  taking  and  carrying  away  the  plaintiff's 
casket  and  its  contents.  It  appeared  that  the  ferryman  of  Gravesend 
took  47  passengers  into  his  barge  to  pass  to  London,  among  whom 
were  the  plaintiff  and  defendant ;  and  the  barge  being  upon  the  water 
a  great  tempest  happened,  and  a  strong  wind,  so  that  the  barge  and 
all  the  passengers  were  in  danger  of  being  lost  if  certain  ponderous 
things  were  not  cast  out,  and  the  defendant  thereupon  cast  out  the 
plaintiff's  casket.     It  was  resolved  that  in  case  of  necessity,  to  save 


Ch.  1)  TRESPASSES  189 

the  lives  of  the  passengers,  it  was  lawful  for  the  defendant,  being  a 
passenger,  to  cast  the  plaintiff's  casket  out  of  the  barge;  that,  if  the 
ferryman  surcharge  the  barge,  the  owner  shall  have  his  remedy  upon 
the  surcharge  against  the  ferryman,  but  that  if  there  be  no  surcharge, 
and  the  danger  accrue  only  by  the  act  of  God,  as  by  tempest,  without 
fault  of  the  ferryman,  every  one  ought  to  bear  his  loss  to  safeguard 
the  life  of  a  man. 

It  is  clear  that  an  entry  upon  the  land  of  another  may  be  justified 
by  necessity,  and  that  the  declaration  before  us  discloses  a  necessity 
for  mooring  the  sloop.  But  the  defendant  questions  the  sufficiency 
of  the  counts  because  they  do  not  negative  the  existence  of  natural 
objects  to  which  the  plaintiff  could  have  moored  with  equal  safety. 
The  allegations  are,  in  substance,  that  the  stress  of  a  sudden  and  vio- 
lent tempest  compelled  the  plaintiff  to  moor  to  defendant's  dock  to 
save  his  sloop  and  the  people  in  it.  The  averment  of  necessity  is  com^ 
plete,  for  it  covers  not  only  the  necessity  of  mooring,  but  the  neces- 
sity of  mooring  to  the  dock;  and  the  details  of  the  situation  which 
created  this  necessity,  whatever  the  legal  requirements  regarding 
them,  are  matters  of  proof,  and  need  not  be  alleged.  It  is  certain  that 
the  rule  suggested  cannot  be  held  applicable  irrespective  of  circum- 
stance, and  the  question  must  be  left  for  adjudication  upon  proceed- 
ings had  with  reference  to  the  evidence  or  the  charge. 

The  defendant  insists  that  the  counts  are  defective,  in  that  they 
fail  to  show  that  the  servant  in  casting  off  the  rope  was  acting  within 
the  scope  of  his  employment.  It  is  said  that  the  allegation  that  the 
island  and  dock  were  in  charge  of  the  servant  does  not  imply  authority 
to  do  an  unlawful  act,  and  that  the  allegations  as  a  whole  fairly  indi- 
cate that  the  servant  unmoored  the  sloop  for  a  wrongful  purpose  of 
his  own,  and  not  by  virtue  of  any  general  authority  or  special  instruc- 
tion received  from  the  defendant.  But  we  think  the  counts  are  suf- 
ficient in  this  respect.  The  allegation  is  that  the  defendant  did  this 
by  his  servant.  The  words  "willfully,  and  designedly"  in  one  count, 
and  "negligently,  carelessly,  and  wrongfully"  in  the  other,  are  not 
applied  to  the  servant,  but  to  the  defendant  acting  through  the  serv- 
ant. The  necessary  implication  is  that  the  servant  was  acting  within 
the  scope  of  his  employment.  13  Ency.  P.  &  Pr.  922 ;  Voegeli  v.  Pick- 
el  Marble,  etc.,  Co.,  49  Mo.  App.  643;  Wabash  Ry.  Co.  v.  Savage,  110 
Ind.  156,  9  N.  E.  85.  See,  also,  Palmer  v.  St.  Albans,  60  Vt.  427,  13 
Atl.  569,  6  Am.  St.  Rep.  125. 

Judgment  affirmed  and  cause  remanded.' 

19  Part  of  the  opinion  is  omitted. 


190  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 


(C)  Defense  of  the  Person 

The  man  who  commits  homicide  by  misadventure  or  in  self-defence 
deserves  but  needs  a  pardon.  Bracton  cannot  conceal  this  from  us, 
and  it  is  plain  from  multitudinous  records  of  Henry  III.'s  reign.  If 
the  justices  have  before  them  a  man  who,  as  a  verdict  declares,  has 
done  a  deed  of  this  kind,  they  do  not  acquit  him,  nor  can  they  pardon 
him,  they  bid  him  hope  for  the  king's  mercy.  In  a  precedent  book 
of  Edward  I.'s  time  a  justice  is  supposed  to  address  the  following 
speech  to  one  whose  plea  of  self-defence  has  been  endorsed  by  the 
verdict  of  a  jury:  "Thomas,  these  good  folk  testify  upon  their  oath 
to  all  that  you  have  said.  Therefore  by  way  of  judgment  we  say 
that  what  you  did  was  done  in  self-defence;  but  we  cannot  deliver 
you  from  your  imprisonment  without  the  special  command  of  our 
lord  the  king;  therefore  we  will  report  your  condition  to  the  king's 
court  and  will  procure  for  you  his  special  grace." 

2  Pollock  and  Maitland,  Hist.  Eng.  Law  (2d  Ed.)  479.^° 


ANON. 
(Court  of  Common  Bench,  13SS.     Y.  B.  12  Rich.  II.     Michaelmas  Term,  10.) 

A  man  and  his  wife  brought  a  writ  of  trespass  against  a  man  for 
a  battery  done  to  his  wife  and  the  defendant  came  by  the  cape  in 
custody,  wherefore 

Rikhill  for  the  defendant  said  that  the  day  and  place  on  which  they 
suppose  the  battery  to  have  been  done  to  the  wife,  the  husband  and 
the  wife  made  an  assault  on  the  defendant,  so  that  the  injury  that 
the  wife  had  suffered  was  due  to  her  own  assault,  and  we  demand 
judgment  if  we  have  done  any  wrong. 

Bryncheley.  Of  his  own  wrong,  without  any  such  reason,  ready. 
And  issue  was  joined.^^ 

2.0  "The  statute  of  Gloucester  (127S)  provided  that  in  Crown  Cases,  the  slay- 
er in  self-defence  (tlioush  forfeiting  his  goods)  should  receive  a  pardon  by  the 
king's  favor  if  he  pleased.  *  *  ♦  In  civil  actions  of  trespass,  however,  the 
mitigation  was  longer  in  coming.  In  12i>4  and  in  1319  the  defendant  was 
ulilii?e(l  to  respond;  but  in  1400  and  ever  since  the  plea  is  accepted  as  a  com- 
plete defence."  John  II.  Wigraore,  "Tortious  Responsibility,"  7  Harv.  Law 
Rev.  315;  3  Anglo-American  Legal  Essays,  474,  508.  And  see  the  following 
note. 

21  The  translation  is  from  Mr.  George  F.  Deiser's  edition,  for  the  Ames 
Foundation,  p.  59. 

Compare : 

Y.  B.  12  Ed.  II.,  381  (1319) :  In  trespass  for  a  battery  the  defendant  pleaded 
not  guilty.  The  jury  found  that  the  plaintiff  was  beaten,  but  this  was  because 
of  his  own  assault,  since  the  defendant  could  not  otherwise  escape:  so  that 
he  brought  this  action  out  of  malice ;   and  the  defendant  prayed  the  discretion 


Ch.  1)  TRESPASSES  191 

JONES  V.  TRESILIAN. 

(Court  of  King's  Bench,  1670.    1  Mod.  36,  86  Reprint.  713.) 

An  action  of  trespass  of  assault  and  battery.  The  defendant  pleads, 
son  assault  demesne.  The  plaintiff  replies,  that  the  defendant  would 
have  forced  his  horse  from  him,  whereby  he  did  molliter  insultum 
facere  upon  the  defendant  in  defence  of  his  possession.  To  this  the 
defendant  demurred. 

MoRETON,   Justice.      Molliter  insultum    facere   is    a   contradiction.!^ 
Suppose  you  had  said,  that  molliter  you  struck  him  down. 

TwiSDEN,  Justice.  You  cannot  justify  the  beating  of  a  man  in  de- 
fence of  your  possession,  but  you  may  say  that  you  did  molliter  manus 
imponere,  etc. 

KeIvYNGK,  Chief  Justice.  You  ought  to  have  replied,  that  you  did 
molliter  manus  imponere,  quae  est  eadem  transgressio. 

The  Court.  Ouerens  nil  capiat  per  billam,  unless  better  cause  be 
shown  this  term.^^ 

of  the  justices.  It  was  nevertheless  adjudged  that  the  plaintiff  should  recover 
his  damages  according  to  the  verdict,  and  the  defendant  go  to  prison.  See 
Ames.  Cases  on  Torts  (3d  Ed.)  105. 

Chapleyn  of  Greye's  Inue  (1400)  Y.  B.  2  Hen.  IV.,  8:  In  an  action  for  a 
battery  the  defendants  justified  that  the  wrong  which  the  plaintiff  had  was 
from  his  own  assault.  Markham.  Although  a  man  make  an  assault  upon  an- 
other, if  he  upon  whom  the  assault  is  made  can  escape  with  his  life,  it  is  not 
lawful  for  him  to  beat  the  other,  who  made  the  assault,  quod  tota  curia  con- 
cessit. Cockayn,  C.  B.  But  I  am  not  bouud  to  wait  until  the  other  has  given 
a  blow,  for  perhaps  it  will  come  too  late  afterwards,  quod  conceditur.  Ames. 
Cases  on  Torts  (3d  Ed.)  106. 

22  On  the  seneral  principle,  see  the  remark  of  Pollock,  C.  B.,  in  Ibbotson  v. 
Peat  (1865)  3  H.  &  C.  644,  649,  140  R.  R.  655.  65S:  "'The  defendant,  by  his 
plea,  says,  'You  have  done  me  some  wrong  and  I  have  been  trying  to  redress 
that  wrong  by  doing  some  wrong  to  you.'  As  a  general  proposition  it  may  be 
laid  down,  that  cannot  be  done.  If  a  person  is  attacked  by  force  he  may  de- 
fend himself  by  force;  but  in  general  a  person  cannot,  because  a  wrong  has 
been  done  to  him,  commit  some  other  wrong  for  the  purpose  of  repairing  the 
injury;  but  he  must  endeavor  to  obtain  redress  in  a  lawful  manner.  As  my 
brother  Bramwell  suggests,  if  a  person  libels  another  the  latter  is  not  justi- 
fied in  horsewhipping  him;  and  if  a  person  horsewhips  another  the  latter  is 
not  justified  in  libeling  him.  On  these  grounds  it  appears  to  me  that  the  plea 
is  bad,  and  that  the  plaintiff  is  entitled  to  judgment." 

The  standard  form  of  the  common-law  plea  of  self-defence  (the  plea  of  son 
assault  demesne),  with  its  modifications  under  the  Rules  of  Hilary  Term  of 
1834,  was  as  follows:  "And  for  a  further  plea  [i.  e.,  after  a  general  issue]  in 
this  behalf,  the  defendant  says,  that  the  plaintiff,  just  before  the  said  time, 
when,  etc.,  to  wit,  on  the  day  and  year  aforesaid,  with  force  and  arms,  made 
an  assault  upon  him,  the  defendant,  and  would  then  have  beaten  and  ill-treat- 
ed him,  the  defendant,  if  he  had  not  immediately  defended  himself  against  the 
plaiutifl:,  wherefore  the  defendant  did  then  defend  himself  against  the  pl;ii)itifi\ 
as  he  lawfully  might,  for  the  cause  aforesaid ;  and  in  so  doing  did  necessarily 
and  unavoidably  a  little  beat,  wound,  and  ill-treat  the  plaintiff:  doing  no  un- 
necessary damage  to  the  plaintiff  on  the  occasion  aforesaid.  And  so  the  de- 
fendant saith,  that  if  any  hurt  or  damage  then  happened  to  the  plaintiff,  the 
same  was  occasioned  by  the  said  assault  so  made  by  the  plaintiff  on  him  the 
defendant,  and  in  the  necessary  def(>nce  of  himself  the  doTcMKlant  against  the 
plaintiff;   which  are  the  supposed  trespasses  in  the  introductory  part  of  this 


192  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

BARFOOT  V.  REYNOLDS  et  al. 

(Court  of  Kiug's  Beuch,  1729.    2  Strauge,  953,  93  Reprint,  9G3.) 

Trespass,  assault  and  battery  against  Reynolds  and  Westwood. 
Reynolds  pleaded  son  assault :  and  Westwood  pleaded  that  he  was 
a  servant  to  Reynolds  the  other  defendant,  and  that  the  plaintiff 
having  assaulted  his  master  in  his  presence,  he  in  defence  of  his  mas- 
ter struck  the  plaintiff.  And  on  demurrer  the  plea  was  held  ill,  for 
the  assault  on  the  master  might  be  over,  and  the  servant  cannot  strike 
by  way  of  revenge,  but  in  order  to  prevent  an  injury;  and  the  right 
way  of  pleading  is,  that  the  plaintiff  would  have  beat  the  master,  if 
the  servant  had  not  interposed,  prout  ei  bene  licuit.  The  plaintiff  had 
judgment. 


YASKA  V.  SWENDRZYNSKI. 
(Supreme  Court  of  Wisconsin,  1907.     133  Wis.  475,  113  N.  W.  959.23) 

[This  case  is  reported  ante,  page  131 ;   see  "Showing  the  Justifica- 
tion."] 


COCKCROFT  V.  SMITH. 

(Court  of  King's  Bench,  170.5.     2  Salk.  642,  91  Reprint,  541.) 

In  an  action  of  mayhem  brought  by  Cockcroft  Attorney  against 
Smith,  the  defendant  pleaded  son  assault  demesne  and  issue  being 
joined  thereupon,  Holt,  Chief  Justice,  directed  a  verdict  for  the  de- 
/  fendant,  the  first  assault  being  tilting  the  form  upon  which  the  de- 
fendant sat,  whereby  he  fell;  the  maim  was  that  the  defendant  bit 
off  the  plaintiff's  finger. 

But  the  question  was,  what  assault  was  sufficient  to  maintain  such 
a  plea  in  mayhem?     Holt,  C.  J.,  said  that  Wadham  Wyndham,  J,, 

plea  mentioned,  and  whereof  the  plaintiff  hath  above  complained.  And  this  the 
defendant  is  ready  to  verify."  See  Stephen  on  Pleading  (Williston's  Ed.)  190. 
The  historic  form,  down  to  the  Rules  of  Hilary  Term,  was  not  substantially 
different.  See  Stephen  on  Pleading  (Tyler's  Ed.)  180;  2  Chitty  on  Pleading 
(3d  Am.  Ed.)  429. 

Under  the  Common  Law  Procedure  Act  of  1852,  schedule  B,  45,  the  following 
short  allegation  was  permis.sible :  "That  the  plaintiff  first  assaulted  and  beat 
the  defendant,  who  thereupon  necessarily  committed  the  alleged  assault  [or 
trespass,  or  did  what  is  complained  of]  in  his  own  defence."  2  Chitty  on 
Pleading  (16th  Am.  Ed.)  697. 

-3  Accord:  Lutlopp  v.  Heckmann  (liXtl)  70  N.  J.  Law,  272,  57  Atl.  104(): 
Action  for  assault  and  battery.  I'lea  of  not  guilty.  Said  Hendrickson,  .L: 
"The  evidence  for  the  plaintiff  was  not  returned  with  the  writ,  but,  taking 
the  evidence  for  the  defendant,  it  plainly  appeared  prima  facie  that  the  a.s- 
sault  complained  of  was  established.  Upon  this  point  there  was  no  question 
for  the  jury.  The  oidy  defense  suggested  or  that  could  be  raised  in  avoidance 
of  liability  was  that  of  self-defense.  But  no  plea  setting  up  such  a  defense 
had  been  filed,  the  defendant  having  gone  to  trial   upon  the  general  issue. 


Ch.  1)  TRESPASSES  193 

would  not  allow  it  if  it  was  an  unequal  return ;  but  the  practice  had 
been  otherwise,  and  was  fit  to  be  settled :  That  for  every  assault  he 
did  not  think  it  reasonable  that  a  man  should  be  banged  with  a  cudgel ; 
that  the  meaning  of  the  plea  was  that  he  struck  in  his  own  defence : 
That  if  A.  strike  B.  and  B.  strikes  again,  and  they  close  immediately 
and  in  the  scuffle  B.  mayhems  A.  that  is  son  assault,  but  if  upon  a 
little  blow  given  by  A.  to  B.,  B.  gives  him  a  blow  that  mayhems  him, 
that  is  not  son  assault  demesne.  Powell,  J.,  agreed ;  for  the  reason 
why  son  assault  is  a  good  plea  in  mayhem,  is,  because  it  might  be 
such  an  assault  as  endangered  the  defendant's  life.^* 


IRELAND  V.  ELLIOT. 

(Supreme  Court  of  Iowa,  1857.     5  Iowa,  478,  68  Am.  Dec.  715.) 

This  action  was  brought  to  recover  damages  for  an  assault  and 
battery  upon  the  plaintiff  by  the  defendant.  The  jury  rendered  a 
verdict  in  favor  of  the  defendant,  from  which  the  plaintiff  appeals. 
The  questions  made  in  the  case  arise  upon  the  instructions  of  the 
court  below,  which  will  be  found  in  the  opinion  of  the  court. 

Woodward,  j.  *  *  *  The  plaintiff'  requested  the  court  to  in- 
struct the  jury  that:  "No  amount  of  words,  will  justify  an  assault, 
or  an  assault  and  battery,"  which  the  caurt  gave,  with  the  following 
qualification:  "This  is  so  in  criminal  cases,  but  if  the  jury  find  in  this 
action  that  Ireland,  by  abusive  words  and  threatening  conduct,  brought 
the  battery  on  himself,  it  is  a  defence."  The  plaintiff  further  re- 
quested the  court  to  instruct  the  jury,  that:  "Words  alone,  do  not 
constitute  such  wrongful  acts,  as  to  justify  an  assault  and  battery," 
which  the  court  gave,  but  with  this  modification :  "Unless  the  words 
were  such  as  to  (and  were  so  intended  and  designed),  cause  a  prudent 
man  to  lose  his  reason  for  the  time,  and  if  the  battery  was  not  more 
excessive  than  the  provocation.  In  such  case,  it  is  a  defence  in  a  civil 
action  for  damages,  provided  the  plaintiff  was  the  wrongdoer." 

The  time  permits  but  a  brief  attention  to  the  question  here  present- 
ed, and  in  truth,  it  requires  but  a  word.  Provoking  and  insulting 
language,  constitutes  a  defence  to  acts  of  violence,  in  a  civil  action,  no 
more  than  in  a  criminal  prosecution.  The  farthest  that  the  law  has 
gone,  and  the  farthest  it  can  go,  whilst  attempting  to  maintain  a  rule, 
is  to  permit  the  high  provocation  of  language,  to  be  shown  as  a 
palliation  for  the  acts  and  results  of  anger;    that  is,  in  legal  phrase, 

2  4  The  statement  of  facts  is  from  1  Ld.  Raym.  177.  The  same  case,  Cockeroft 
V.  Smith,  appears  in  (1704)  6  Mod.  2:J0,  87  Reprint,  981,  with  this  statement: 
"The  defendant  in  a  scuffle  bit  off  the  forefinger  of  an  attorney's  right  hand." 
The  case  appears  again  in  11  Mod.  43,  88  Reprint,  872  (170."))  Cockeroft  v. 
Smith,  with  this  statement  of  the  facts:  "Cockeroft  in  a  scuffle  ran  his  finger 
towards  Smith's  eyes,  who  bit  off  a  joint  from  the  plaintiff's  finger." 

Hepb.Torts — 13 


194  TORTS  THROUGH   ACTS  OP  ABSOLUTE   LIABILITY  (Part  1 

to  be  shown  in  mitigation  of  damages.  Thus  far  the  law  has  gone 
and  no  farther.  Language  which,  in  its  nature,  tends  generally  to 
excite  the  angry  passions  of  men,  is  admitted  in  evidence,  as  an  ex- 
tenuation, but  never  as  a  justification  or  defence,  either  in  a  crim- 
inal, or  civil  cause.  *  *  * 
Judgment  reversed,  and  cause  remanded.^"* 


TUBERVILLE  v.  SAVAGE. 

V  (Court  of  King's  Bench,  1669.     1  Mod.  3,  86  Reprint,  6S4.) 

[This  case  is  reported  ante,  page  49;  see  "Assault."] 


KEEP  v.  QUALLMAN. 

(Supreme  Court  of  Wisconsin,  1887.    68  Wis.  451,  .32  N.  W.  2.3.3.) 

This  action  was  brought  to  recover  damages  for  an  assault  and 
battery  alleged  to  have  been  committed  by  the  defendant  upon  the 
person  of  the  plaintiff. 

The  parties  are  neighbors,  but  not  friends.  On  a  certain  Sunday 
afternoon  they  met  in  a  public  highway.  Several  other  persons  were 
present.  The  testimony  tends  to  show  that  the  defendant  accosted 
the  plaintiff  by  asking  him,  "What  is  the  reason  you  are  slandering 
me  around  all  the  time?"  that  immediately  the  plaintiff  put  his  hand 
in  his  pocket,  and  was  about  taking  it  out  again  when  the  defendent 
struck  him  on  the  head  with  a  cane  twice,  knocking  him  down.  He 
got  up,  and,  as  the  defendant  testifies,  attacked  the  latter,  whereupon 
they  fought  with  their  fists  until  the  plaintiff  was  vanquished  and 
retreated.  The  defendant  also  testifies  that  he  had  just  then  heard 
that  the  plaintiff  had  told  their  neighbors  to  watch  him;  that  pre- 
viously he  had  been  told  that,  at  different  times,  the  plaintiff  had 
threatened  to  inflict  personal  violence  upon  him,  and  that  plaintiff 
was  in  the  habit  of  shooting  people,  and  was  a  dangerous  man ;  and 
when  he  put  his  hand  in  his  pocket,  the  movement  indicated  to  his 
(the  defendant's)  mind  an  intention  to  draw  a  revolver. 

The  court  excluded  other  testimony  offered  by  the  defendant  to 
show  that  the  plaintiff  was  of  a  quarrelsome  disposition  and  in  the 
habit  of  using  dangerous  weapons.  The  jury  were  instructed  that 
the  defendant  had  shown  no  legal  justification  for  the  assault,  and 
hence  the  defendant  was  liable  to  respond  in  damages  therefor,  and 
the  case  was  submitted  to  the  jury  only  for  an  assessment  of  dam- 
ages.   The  damages  were  assessed  at  $175.    A  motion  for  a  new  trial 

25  A  part  of  the  opinion,  on  other  points,  is  omitted. 


Ch.  1)  TRESPASSES  195 

was  denied,  and  judgment  was  entered  for  the  plaintiff  pursuant  to  the 
verdict.     The  defendant  appeals  from  the  judgment. 

Lyon,  J.  It  was  not  unlawful  for  the  defendant  to  address  the 
plaintiff  as  he  did  when  they  met  on  the  highway,  and  if  the  plaintiff 
by  his  former  threats  of  personal  violence  (if  he  made  any),  and  by 
putting  his  hand  in  his  pocket  as  testified  to  by  the  defendant  (if 
he  did  so),  gave  the  defendant  reason  to  believe  that  he  was  about 
to  draw  a  revolver  or  other  weapon  upon  him,  it  was  an  assault,  and 
the  defendant  had  the  right  to  act  upon  appearances  and  at  once 
repel  or  prevent  the  supposed  contemplated  attack.  See  1  Whart. 
Crim.  Law,  §§  603-606.  We  think  the  testimony  sufficient  to  send 
to  the  jury  the  question  whether  the  acts  of  the  plaintiff  were  suffi- 
cient to  give  the  defendant  reason  to  believe  that  he  was  in  imminent 
danger  of  being  attacked  by  the  plaintiff  when  he  knocked  the  latter 
down.  That  is  to  say,  we  think  the  testimony  tends  to  prove  a  state 
of  facts  from  which  the  jury  might  properly  find  the  defendant  was 
legally  justified  in  striking  the  blows  to  prevent  the  plaintiff  from 
attacking  him.  Hence  the  instruction  that  the  defendant  was  abso- 
lutely liable  in  the  action  was  erroneous.  The  instruction  should  have 
been  that,  if  the  defendant  had  no  reasonable  grounds  to  fear  an 
immediate  attack  by  the  plaintiff,  or,  having  such  grounds,  if  he  used 
more  force  than  was  necessary  to  prevent  such  attack,  the  plaintiff 
could  recover ;    otherw^ise  not. 

We  are  also  inclined  to  think  that  on  the  authority  of  State  v.  Nett, 
50  Wis.  524,  7  N.  W.  344,  proof  of  the  quarrelsome  and  violent  dis- 
position of  the  plaintiff  should  have  been  received,  as  elements  in 
the  correct  solution  of  the  questions  above  suggested. 

By  the  Court.  The  judgment  of  the  circuit  court  is  reversed, 
and  the  cause  will  be  remanded  for  a  new  trial. 


TICKELL  v.  READ. 

(At  Nisi  Prius,  1772.     Lofft  215,  98  Reprint.  G17.) 

Action  of  assault  and  battery,  defendant  pleads  the  general  issue, 
not  guilty;  and  also  a  special  plea  in  justification,  that  he  assisted 
his  servant,  whom  the  plaintiff  was  beating. 

Contended,  that  the  law  will  oiot  justify  a  master  interposing  on 
an  assault  against  his  servant,  by  assaulting  the  person  who  beats 
the  servant,  as  it  does  a  servant  in  like  case  interposing  for  his  master ; 
because  it  was  the  duty  of  the  servant,  who  was  hired  to  serve  and 
be  assistant  to  his  master's  person,  but  not  so  the  master  to  the  serv- 
ant. On  the  other  hand  it  was  contended  to  this  effect  nearly ;  the 
duty  of  master  and  servant  was  reciprocal,  and  if  the  servant  owed 
to  his  master  fidelity  and  obedience,  the  master  owed  to  the  servant 


196  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

protection  and  defence;    and  might,  therefore,  well  justify  by  this 
plea. 

Lord  Mansfield.  I  cannot  tell  them  a  master  interposing  when 
his  servant  is  assailed,  is  not  justifiable,  under  the  circumstances  of 
the  case,  as  well  as  a  servant  interposing  for  his  master:  it  rests  on 
the  relation. 


4^ 


(D)  Defense  of  Property 
(a)   Defense  of  Personal  Property;    Recaption 


If  a  man  will  take  my  horse  from  me,  or  anything  which  belongs 
to  me,  and  I  will  not  sufifer  him  to  do  it,  although  he  is  hurt,  in  this 
case  I  shall  be  excused  in  law.  And  suppose  that  a  man  is  about  to 
beat  my  servant,  and  I  aid  my  servant  in  his  defence,  although  the 
other  is  hurt  by  me,  all  this  matter  shall  be  adjudged  in  defence  of 
^  my  servant,  and  of  my  goods.  For,  since  he  was  about  to  injure  me, 
this  malfeasance  shall  be  said  to  be  an  assault  upon  me  begvm  by  him, 
and  all  this  shall  be  said  to  be  in  defence  of  the  goods  and  chattels  of 
the  defendant.^** 

Newton,  C.  J.,  Anon.  (1440)  Y.  B.  19  Hen.  VI,  fol.  31,  pi.  59. 


Recaption  or  reprisal  is  another  species  of  remedy  by  the  mere  act 
of  the  party  injured.  This  happens  when  any  one  hath  deprived  an- 
other of  his  property  in  goods  or  chattels  personal,  or  wrongfully 
detains  one's  wife,  child,  or  servant :  in  which  case  tlie  owner  of  the 
goods,  and  the  husband,  parent,  or  master,  may  lawfully  claim  and 
retake  them  wherever  he  happens  to  find  them,  so  it  be  not  in  a  riot- 
ous manner,  or  attended  with  a  breach  of  the  peace.  The  reason  for 
this  is  obvious;  since  it  may  frequently  happen  that  the  owner  may 
have  this  only  opportunity  of  doing  himself  justice:  his  goods  may  be 
afterwards  conveyed  away  or  destroyed ;  and  his  wife,  children,  or 
servants  concealed  or  carried  out  of  his  reach ;  if  he  had  no  speedier 
remedy  than  the  ordinary  process  of  law.  If  therefore  he  can  so 
contrive  it  as  to  gain  possession  of  his  property  again  without  force 
or  terror,  the  law  favors  and  will  justify  his  proceeding.  But  as  the 
public  peace  is  a  superior  consideration  to  any  one  man's  private  prop- 
erty ;  and  as,  if  individuals  were  once  allowed  to  use  private  force 
as  a  remedy  for  private  injuries,  all  social  justice  must  cease,  the 
strong  would  give  law  to  the  weak,  and  every  man  would  revert  to 
a  state  of  nature ;  for  these  reasons  it  is  provided  that  this  natural 
right  of  recaption  shall  never  be  exerted  where  such  exercise  must 

20  "And  so  was  the  opinion  of  Ayscoglie,  Fulthorpe,  JJ.,  and  all  the  Court" 
See  Ames.  Cases  on  Torts  (3d  Ed.)  121. 


Ch.  1)  TRESPASSES  197 

occasion  strife  and  bodily  contention,  or  endanger  the  peace  of  society. 
If,  for  instance,  my  horse  is  taken  away,  and  I  find  him  in  a  common, 
a  fair,  or  a  pubHc  inn,  I  may  lawfully  seize  him  to  my  own  use ;  but 
I  cannot  justify  breaking  open  a  private  stable,  or  entering  on  the 
grounds  of  a  third  person,  to  take  him,  except  he  be  feloniously  stolen ; 
but  must  have  recourse  to  an  action  at  law. 
Blackstone,  3  Com.  4.  (1765). 


JONES  V.  TRESILIAN. 

(Court  of  King's  Bench,  1670.     1  Mod.  36.) 
[This  case  is  given  ante,  page  191 ;   see  "Defense  of  the  Person."] 


WADHURST  V.  DA:\1ME. 
(Court  of  King's  Bench,  1004.    Cro.  Jac.  45,  79  Reprint,  37.) 

Trespass ;  for  that  he  killed  his  dog,  being  a  mastiff  dog.  The  de- 
fendant pleads,  that  Sir  Francis  Willoughby  was  seised  in  fee  of  a 
warren  in  D.  within  the  same  county,  whereof  he  is  and  then  was 
warrener,  and  that  his  dog  was  divers  times  killing  conies  there ;  and 
therefore  he  finding  him  there,  tempore  quo,  etc.,  running  at  conies, 
he  there  killed  him,  absque  hoc  that  he  is  guilty  at  Etonbridge  prout, 
etc.  And  it  was  thereupon  demurred  *  *  *  for  the  matter  of  the 
justification. 

But  all  the  court  held  that  the  matter  of  justification  is  good;  be- 
cause it  being  alleged  that  the  dog  used  to  be  there  killing  conies, 
it  is  good  cause  for  the  killing  him,  in  salvation  of  his  conies ;  for, 
having  used  to  haunt  the  warren,  he  cannot  otherwise  be  restrained. 

YelvERTon  doubted  thereof,  because  it  is  not  alleged  that  the  mas- 
ter was  sciens  of  that  quality,  or  had  warning  given  to  him  thereof. 

PoPHAM.  The  common  use  of  England  is,  to  kill  dogs  and  cats 
in  all  warrens  as  well  as  any  vermin ;  which  shews  that  the  law  hath 
been  always  taken  to  be,  that  they  may  well  kill  them:  so  the  justifi- 
cation is  good.^^  *  *  *  Wherefore  it  accordingly  was  adjudged 
for  the  defendant. 

27  A  question  as  to  the  venue  is  omitted. 

Accord:  Leonard  v.  Wilkins  (1812)  9  Johns.  (N.  T.)  2.33  (D.  had  shot  P.'s 
dog  when  it  was  in  D.'s  held.  "The  dog  was  running  witli  a  fowl  in  his  luouth, 
and  the  defendant  called  after  the  dog  before  he  fired,  but  he  had  the  fowl  in 
his  mouth  at  the  time  he  was  shot."  The  property  in  the  fowl  was  not  shown) ; 
Harrington  v.  Hall  (1906)  6  Pennewill  (Del.)  72,  63  Atl.  875,  where  the  court 
charged  the  jury  thus:  "The  defendant  justifies  the  killing  of  a  dog,  whose.so- 
ever  it  was,  on  the  day  in  question,  because,  as  he  claims,  the  dog  was,  at  the 
time  of  the  shooting,  in  the  act  of  killing  one  of  a  flock  of  his  turkeys  then 
upon  his  premises.  We  say  to  you  that  if  you  find  under  the  evidence  that  the 
defendant  himself,  or  his  son  under  the  father's  directions,  did  kill  the  plain- 


198  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

WRIGHT  V.  RAMSCOT. 

(Court  of  King's  Bench,  1667.     1  Wms.  Saund.  84,  85  Reprint,  93.) 

Trespass.  The  plaintiff  declared  that  the  defendant  did  beat,  strike, 
and  stab  a  mastiff  of  the  plaintiff,  so  that  the  mastiff  died.  The  de- 
fendant pleaded  in  bar,  that  the  plaintiff  suffered  his  mastiff  to  go  un- 
muzzled in  the  street,  by  reason  whereof  the  mastiff  run  violently 
upon  a  dog  of  one  EHen  Bagshaw,  and  did  then  and  there  bite  the 
said  dog  (which  dog  the  said  Ellen  kept  in  her  house  for  the  preserva- 
tion thereof) ;  wherefore  the  defendant,  being  the  servant  of  the  said 
Ellen,  then  and  there  killed  the  mastiff',  that  he  might  not  do  any  fur- 
ther mischief.    Upon  which  plea  the  plaintiff  demurred  in  law. 

And  Saunders  of  counsel  for  the  plaintiff  argued  that  *  *  * 
here  the  defendant  has  not  said  that  he  could  not  otherwise  part 
or  take  off  the  mastiff  from  worrying  the  other  dog;  and  if  he  had 
said  so,  it  would  have  altered  the  case :  and  he  might  have  justified 
the  beating  of  the  mastiff  to  preserve  his  dog,  but  not  the  killing  of 
him,  unless  it  could  not  otherwise  be  prevented.  But  in  this  case  he 
said  nothing  more  than  that  he  killed  the  mastiff  to  prevent  the  other 
dog  from  being  killed ;  whereas,  for  anything  that  appears  to  the 
contrary,  he  might  have  saved  the  other  dog  without  killing  the  mas- 
tiff :  and  so  he  has  killed  the  mastiff  without  any  necessity  or  cause, 
which  is  not  justifiable ;  and  he  has  not  in  any  way  excused  that  in- 
jury.   And  therefore  he  concluded  that  the  plea  was  bad. 

And  of  that  opinion  was  the  whole  Court;  and  judgment  was  given 
for  the  plaintiff.^^ 


JANSON  V.  BROWN. 
(At  Nisi  Prius,  Adjourned  Sittings  in  London,  1807.    1  Camp.  41.) 

Trespass  for  shooting  the  plaintiff's  dog.    Pleas,  1,  not  guilty;   and 

2,  a  justification,  that  the  dog  was  worrying  and  attempting  to  kill 

^  fowl  of  the  defendant's,  and  could  not  otherwise  be  prevented  from 

«^so  doing.     Replication  to  the  last  plea,  de  injuria  sua  propria  absque 

tali  causa. 

The  case  being  made  out  on  the  part  of  the  plaintiff,  Garrow  for 
the  defendant  said,  he  should  prove  that  just  before  the  dog  was  shot, 
being  accustomed  to  chase  the  defendant's  poultry,  he  was  worrying 
the  fowl  in  question,  and  that  he  had  not  dropped  it  from  his  mouth 
above  an  instant  when  the  piece  was  fired.     But, 

tiff's  dog  under  sucli  circumstances,  it  was  justifiable,  and  tlie  plaintiff  would 
not  be  entitled  to  recover.  For,  if  the  dog  was  upon  the  land  of  the  defendant 
in  the  act  of  destroying  his  turkeys,  the  defendant  was  justified  in  killing 
him." 

-"'The  statement  of  the  pleadings  is  abridged.  The  pleadings  are  set  out 
at  length  in  (1G05)  1  Wms.  Suund.  82,  85  Reprint,  92. 


Ch.  1)  TRESPASSES  199 

Lord  EllEnborough  said,  this  would  not  make  out  the  justifica- 
tion ;  to  which  it  was  necessary  that  when  the  dog  was  shot,  he  should 
have  been  in  the  very  act  of  killing  the  fowl,  and  could  not  be  prevent- 
ed from  effecting  his  purpose  by  any  other  means. -^ 

Verdict  for  plaintiff,  with  Is.  damages. 


LIVERMORE  v.  BATCHELDER. 
(Supreme  Judicial  Court  of  Massachusetts,  1SS6.    141  Mass.  179,  5  N.  E.  275.) 

Tort  for  killing  the  plaintiff's  dog.     Trial  without  a  jury;    the  trial 

judge  found  the  following  facts: 

The  plaintiff,  on  February  20,  1884,  was  the  owner  of  a  dog,  which  was 
dulv  licensed  by  the  town  of  Reading,  and  wore  a  collar,  duly  marked  as  re- 
quired by  the  Pub.  St.  18S2,  c.  102,  §  80.  On  said  February  20,  the  plaintifC's 
dog,  with  another  dog,  came  upon  the  defendant's  premises  and  there  killed 
and  maimed  hens  of  the  defendant,  which  were  in  his  hen-house  or  shed. 
The  dogs  were  driven  away,  and,  in  about  fifteen  minutes  afterwai'ds,  came 
again  upon  the  defendant's  premises,  and  were  running  toward  the  same  shed 
and  hen-house  of  the  defendant,  when  the  defendant,  having  reasonable  cause 
to  believe  that  the  dogs  were  proceeding  to  maim  and  kill  others  of  his  hens 
in  said  shed  and  hen-house,  shot  and  killed  the  plaintifC's  dog. 

Upon  these  facts,  the  judge  ruled  that  the  defendant's  killing  of 
the  plaintiff's  dog  under  the  circumstances  stated,  was  not  in  law 
justifiable;  and  thereupon  found  and  ordered  judgment  for  the  plain- 
tiff'.    The  defendant  alleged  exceptions. 

Holmes,  J.  The  ruling  of  the  court,  as  we  understand  it,  meant 
that  the  facts  found,  without  more,  did  not  disclose  a  justification  for 
killing  the  plaintiff's  dog.  It  was  found  that  the  defendant  had  rea- 
sonable cause  to  believe  that  the  dog  was  proceeding  to  maim  and 
kill  his  hens,  but  not  that  he  had  reasonable  cause  to  believe  that  it 
was  necessary  to  kill  the  dog  in  order  to  prevfent  him  from  killing 
the  hens.  The  justification,  therefore,  was  not  made  out.  Wright  v. 
Ramscot,  1  Saund.  84.  Janson  v.  Brown,  1  Camp.  41.  See  Common- 
wealth V.  Woodward,  102  Mass.  155,  161. 

It  is  unnecessary  to  consider  whether  the  common  law  remedy  is 
taken  away  by  the' Pub.  Sts.  c.  102,  §§  80-110. 

Exceptions  overruled. ^° 

2  9  Compare  Reed  v.  Goldneck  (1905)  112  Mo.  App.  310,  86  S.  W.  1104:  "Un- 
der the  rule  of  the  common  law  which  obtained  prior  to  the  statute  as  an- 
nounced in  the  cases  supra,  one  was  not  justified  in  killing  a  dog,  even  though 
it  was  on  his  premises,  unless  the  dog  was  actually  doing  or  attempting  to  do 
injury  to  his  domestic  animals;  and  in  the  latter  case  the  danger  from  the 
dog  must  have  been  so  apparent  as  to  threaten  imminent  peril,  *  *  *  [But 
under  the  statute  of  1899]  if  the  dog  be  found  either  killing  or  chasing  the 
animals,  or  under  such  circumstances  as  would  make  it  appear  satisfactorily 
to  the  jury  that  the  dog  had  been  engaged  either  in  killing  or  chasing  the 
animals,  then  the  killing  of  the  dog  is  justifiable." 

30  Compare  Aldrich  v.  Wright  (1873)  53  X.  H.  .mS.  16  Am.  Rep.  3.39:  Four 
minks  were  swimming  towards  D.'s  geese,  at  a  distance  of  from  one  to  three 
rods,  when  D.  came  out  with  a  gun.     The  minks  stopped  pursuing  the  geese 


200  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 


McCHESNEY  v.  WILSON. 

(Supreme  Court  of  Michigan,  1903.    132  Mich.  252,  93  N.  W.  627, 

1  Ann.  Cas.  191.) 

The  defendant  shot  and  killed  the  plaintiff's  dog  when  it  was  tres- 
passing upon  the  defendant's  premises.  The  dog  had  killed  three 
chickens  belonging  to  the  defendant  and  was  in  the  habit  of  urinating 
through  the  defendant's  screen  door  onto  his  carpet.  But  at  the  time 
when  he  was  shot  the  dog  was  not  in  the  act  of  killing  or  pursuing  a 
chicken.  In  the  circuit  court  the  plaintiff  had  a  verdict  and  judgment 
for  $20,  the  value  of  the  dog.     The  defendant  brings  error. 

Grant,  J.     The  court  instructed  the  jury  that  the  defendant  was 

and  ran  upon  a  little  island,  and  there  stopped.  D.  fired  at  the  minks  on  the 
island  and  killed  them  all  at  one  shot.  The  trial  court  ruled  that  D.  was  not 
justified  in  killing  the  minks  if  the  geese  were  not  in  imminent  danger,  and 
could  have  been  protected  either  by  driving  away  the  geese,  or  frightening 
or  driving  off  the  minks.  Verdict  for  plaintiff.  Said  Doe,  J.,  delivering  the 
opinion:  "The  plaintiff's  claim  that  the  defendant  is  liable  if  the  geese  were 
not  in  imminent  danger,  taken  in  the  sense  for  which  the  plaintiff  contends, 
and  the  sense  in  which  both  parties,  at  the  trial,  probably  understood  it,  can- 
not be  sustained.  *  *  *  It  is  probable  that  the  parties  understood  that  by 
the  doctrine  of  imminent  danger,  the  defendant  was  liable  unless  the  geese 
would,  in  a  few  moments,  have  been  killed  by  the  minks  but  for  the  defendant's 
shot.  The  doctrine,  asserted  in  that  form,  would  be  erroneous.  It  was  for 
the  jury  to  say,  considering  the  defendant's  valuable  property  in  the  geese, 
the  absence  of  absolute  property  in  the  minks,  their  character,  whether  harm- 
less or  dangerous,  the  probability  of  their  renewing  their  pursuit  if  he  had 
gone  about  his  usual  business  and  left  the  geese  to  their  fate,  the  sufficiency 
and  practicability  of  other  kinds  of  defense,  considering  all  the  material 
elements  of  the  question, — it  was  for  the  jury  to  say  whether  the  danger  was 
so  imminent  as  to  make  the  defendant's  shot  reasonably  necessary  in  point 
of  time.  If,  but  for  the  shot,  some  of  the  geese,  continuing  to  resort  as  usual 
to  the  pond,  apparently  would  have  been  killed  by  these  minks  within  a  period 
quite  indefinite,  and  if  other  precautionary  measures  of  a  reasonable  kind,  as 
measured  by  consequences,  would  have  been  ineffectual,  the  danger  was  im- 
minent enough  to  justify  the  destruction  of  the  minks  for  the  protection  of 
property.  Tlie  right  of  defense  is  the  right  to  do  whatever  apparently  is  rea- 
sonably necessary  to  be  done  in  defense  under  the  circumstances  of  the  case. 
*  *  *  The  claim  that  the  defendant  was  liable  if  the  geese  could  have  been 
protected  by  driving  them  away  from  the  minks,  cannot  be  sustained.  Re- 
quiring the  defendant  to  drive  away  the  minks  if  he  could,  is  an  admission 
that  he  had  a  right  to  drive  them  away,  and  that  they  had  no  right  to  remain 
on  his  premises  without  his  consent.  But,  requiring  him,  if  he  could  not 
drive  them  away  from  the  geese,  to  drive  the  geese  away  from  them,  is  a 
practical  denial  of  his  right  to  keep  geese  in  his  own  pond  or  on  his  own  land, 
if  he  could  only  keep  them  there  by  killing  minks.  It  amounts  to  this:  it 
being  impracticable  to  permanently  eject  the  assailants,  he  must  banish  the 
assailed ;  and  the  raising  of  geese  being  impossible,  the  raising  of  minks  is 
compulsory.  A  freeholder,  permitted  to  fire  blank  cartridges  only  to  cover 
the  endless  retreat  of  his  poultry  before  these  marauders,  and  obliged  to  suf- 
fer such  an  enemy  to  ravage  his  lands  and  waters  with  l)oldness  generated  by 
impunity,  is  a  result  of  turning  the  fact  of  the  reasonable  necessity  of  re- 
treating to  the  wall  before  a  human  assailant  into  a  universal  rule  of  law. 
This  rule  practically  compels  the  defendant  to  bring  his  poultry  to  the  block 
prematurely,  and  to  abandon  an  important  branch  of  agricultural  industry. 
His  right  of  protecting  liis  fowls  is  merely  his  right  of  exterminating  tliem." 
The  oi)inion  in  this  case  reviews  at  length  the  authorities  and  the  principles 
involved. 


Ch.  1)  TRESPASSES  201 

not  justified  in  killing  the  dog,  unless  he  was  in  the  act  of  chasing, 
killing,  or  annoying  his  sheep  or  other  domestic  animals.  The  fol- 
lowing facts  are  conclusively  established:  (1)  That  the  dog  was  a 
killer  of  domestic  fowls ;  (2)  that  he  was  a  frequent  trespasser  upon 
the  premises  of  the  defendant,  and  frequently  committed  the  disgust- 
ing nuisance  above  mentioned ;  (3)  that  plaintiff  was  notified  by  the 
defendant  and  others  of  the  disposition  of  his  dog ;  (4)  that  he  took 
no  steps  to  restrain  him.  Evidently  the  attention  of  the  learned  cir- 
cuit judge  had  not  been  called  to  the  cases  of  Hubbard  v.  Preston, 
90  Mich.  221,  51  N.  W.  209,  15  L.  R.  A.  249,  30  Am.  St.  Rep.  426, 
and  Throne  v.  Mead,  122  Mich.  273,  80  N.  W.  1080,  80  Am.  St.  Rep. 
568,  otherwise  I  think  he  would  have  directed  a  verdict  for  the  de- 
fendant. Under  the  principle  laid  down  in  these  decisions  the  de- 
fendant was  justified  in  killing  the  dog. 

That  there  is  property  in  dogs,  for  which  the  owner  may  recover 
in  a  proper  case,  is  conceded ;  but  this  does  not  authorize  a  party  to 
keep  a  dog  of  the  character  of  the  one  in  tliis  case,  who  almost  daily 
commits  a  nuisance  at  his  neighbor's  house,  and  kills  and  destroys 
his  neighbor's  domestic  fowls.  No  statute  is  needed  to  justify  the  in- 
jured party  in  killing  a  dog  of  this  character  when  he  appears  upon 
the  premises,  after  notifying  the  owner  of  his  depredations,  and  giv- 
ing him  ample  time  to  take  care  of  him.  Whether  the  statute  (Comp. 
Laws  1897,  §  5592)  is  broad  enough  to  include  domestic  fowls  is 
unnecessary  to  decide.  See  Marshall  v.  Blackshire,  44  Iowa,  475. 
This  is  not  a  case  where  a  dog  is  found  for  the  first  time  committing 
a  nuisance  in  trespassing,  or  in  killing  fowls  or  animals.  This  is  not 
the  case  of  Bowers  v.  Horen,  93  Mich.  420,  53  N.  W.  535,  17  L.  R. 
A.  ITh,  32  Am.  St.  Rep.  513,  where  the  offense  with  which  the  dog 
was  charged  was  in  walking  over  a  freshly  painted  porch,  and  once 
being  found  in  a  henhouse  without  doing  any  damage,  and  in  going 
around  the  defendant's  house  at  night,  chasing  cats  into  trees,  and 
barking.  In  that  case  stress  was  laid  upon  the  fact  that  the  defend- 
ant, knowing  who  the  owner  was,  failed  to  notify  him  that  the  dog 
gave  him  any  annoyance.  Had  the  defendant  in  that  case  done  so, 
a  dift'erent  result  might  have  been  reached,  under  the  decision  of  Hub- 
bard V.  Preston,  supra.     *     *     *  31 

Judgment  reversed. 

31  A  part  of  the  opinion  is  omitted.  Hooker,  C.  J.,  and  Montgomery  and 
Moore,  JJ.,  concurred  in  the  reversal. 

Compare  Brill  v.  Flagler  (1840)  23  Wend.  (N.  Y.)  .354:  D.  shot  P.'s  dog, 
although  it  ^Yas  not  threatening  either  D.  or  his  prtiperty.  A  demurrer  to  the 
plea  admitted  that  the  dog  was  in  the  constiint  haliit  of  coming  on  D.'s  prem- 
ises, and  about  his  dwelling,  day  and  night,  barking  and  howling,  to  the  great 
annoyance  of  the  family,  that  P.  knew  of  this  mischievous  propensity  of  his 
dog  and  would  not  confine  him,  and  that  D.  wos  unable  to  prevent  the  an- 
noyance otherwise  than  by  shooting.  Held  that  the  plea  was  a  good  bar.  See 
generally  under  "Jsuisance,"  infra. 


202  TORTS  TUROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 


BLADES  V.  HIGGS  et  al. 

(Court  of  Common  Pleas,  1861.    10  C.  B.  [N.  S.]  713,  142  Reprint,  634, 

128  R.  R.  890.) 

The  declaration  charged  that  the  defendants  assaulted  and  beat  and 
pushed  about  the  plaintifit,  and  took  from  him  his  goods,  that  is  to  say, 
dead  rabbits.    The  defendants  pleaded,  amongst  other  pleas, 

Tliirdly,  as  to  the  assaulting,  beating,  and  pushing  about  the  plaintiff,  that  the 
plaintiff,  at  the  said  time  when,  etc.,  luid  wrongfully  in  his  possession  certain 
dead  rabbits  of  and  belonging  to  the  Marquis  of  Exter;  that  the  said  rabbits 
were  then  in  the  possession  of  the  plaintiff  without  the  leave  and  license  and 
against  the  will  ol  the  said  Marquis ;  and  that  the  plaintiff"  was  about  wrong- 
fully and  unlawfully  to  take  and  carry  away  tlie  said  rabbits  and  convert  the 
same  to  his  own  use;  whereupon  the  defendants,  as  the  servants  of  the  Mar- 
quis, and  by  his  command,  requested  the  plaintiff  to  refrain  from  carrying 
away  and  converting  the  same  rabbits,  and  to  quit  the  possession  thereof  to  the 
defendants  as  such  servants,  which  the  plaintiff  refused  to  do;  and  that  there- 
upon the  defendants,  as  the  servants  of  the  said  Marquis,  and  by  his  command, 
gently  laid  their  hands  upon  the  plaintiff,  and  took  the  said  rabbits  from  him, 
using  no  more  force  than  necessary;  which  were  the  alleged  trespasses  in  the 
declaration  mentioned,  etc.    Demurrer  and  joinder. 

Beasley,  in  support  of  the  demurrer:  The  plea  is  clearly  bad.  In 
order  to  sustain  it,  it  must  be  made  out,  that,  wherever  A.'s  goods  are 
wrongfully  in  the  hands  of  B.,  A.  or  his  servants  may  forcibly  take 
them,  without  showing  that  a  felony  has  been  committed,  or  the  way 
in  which  the  goods  came  to  B.'s  possession,  or  that  the  defendant 
was  attempting  to  retake  them,  on  fresh  pursuit.  To  permit  this, 
would  be  manifestly  against  one  of  the  first  principles  of  law.  It  is 
not  alleged  that  the  defendant  had  wrongfully  taken  the  rabbits.  He 
might  have  been  an  innocent  bailee,  or  a  purchaser  in  market  overt.^- 

ErlE,  Ch.  J.  The  declaration  in  this  case  was  for  an  assault  and 
battery.  The  substance  of  the  justification  was,  that,  the  plaintiff 
having  wrongfully  in  his  possession  rabbits  belonging  to  the  defend- 
ants (we  consider  the  servants  here  the  same  as  the  master),  and  be- 
ing about  to  carry  them  away,  the  defendants  requested  him  to  re- 
frain, and,  on  his  refusal,  moUiter  manus  imposuerunt,  and  used  no 
more  force  than  was  necessary  to  take  the  rabbits  from  him.  To 
this  the  plaintiff  has  demurred,  and  thereby  admits  that  he  was  do- 
ii:g  the  wrong,  and  that  the  defendants  were  maintaining  the  right,  as 
alleged :  and  he  contends  that  the  defendants  are  not  justified  in  using 
necessary  force,  on  account  of  the  danger  to  the  public  peace :  but  he 
adduces  no  authority  to  support  his  contention.  The  defendants  like- 
wise have  failed  to  adduce  any  case  where  the  justification  was  sup- 
ported without  an  allegation  to  explain  how  the  plaintiff  took  the 
property  of  the  defendant  and  became  the  holder  thereof.  But  the 
princii)les  of  law  are  in  our  judgment  decisive  to  show  that  the  plea 
is  good,  although  that  allegation  is  not  made. 

32  A  large  part  of  the  argument  is  omitted. 


Ch. 1)  TRESPASSES  203 

If  the  defendants  had  actual  possession  of  the  chattels,  and  the 
plaintiff  took  them  from  them  against  their  will,  it  is  not  disputed  that 
the  defendants  might  justify  using  force  sufficient  to  defend  their 
right  and  retake  the  chattels ;  and  we  think  there  is  no  substantial 
distinction  between  that  case  and  the  present ;  for,  if  the  defendants 
were  the  owners  of  the  chattels,  and  entitled  to  the  possession  of  them, 
and  the  plaintiff  wrongfully  detained  them  from  them  after  request, 
the  defendants  in  law  would  have  the  possession,  and  the  plaintiff's 
wrongful  detention  against  the  request  of  the  defendants  would  be  the 
same  violation  of  the  right  of  property  as  the  taking  of  the  chattels 
out  of  the  actual  possession  of  the  owner. 

It  has  been  decided  that  the  owner  of  land  entitled  to  the  possession 
may  enter  thereon  and  use  force  sufficient  to  remove  a  wrong-doer 
therefrom.  In  respect  of  land,  as  well  as  chattels,  the  wrong-doers 
have  argued  that  they  ought  to  be  allowed  to  keep  what  they  are 
wrongfully  holding,  and  that  the  owner  cannot  use  force  to  defend 
his  property,  but  must  bring  his  action,  lest  the  peace  should  be  en- 
dangered if  force  was  justified :  see  Newton  v.  Harland,  1  Man.  & 
G.  644.  But  in  respect  of  land,  that  argument  has  been  overruled  in 
Han^ey  v.  Brydges,  14  M.  &  W.  442.  Parke,  B.,  says:  "Where  a 
breach  of  the  peace  is  committed  by  a  freeholder,  who,  in  order  to 
get  possession  of  his  land,  assaults  a  person  wrongfully  holding  pos- 
session of  it  against  his  will,  although  the  freeholder  may  be  responsi- 
ble to  the  public  in  the  shape  of  an  indictment  for  a  forcible  entry, 
he  is  not  liable  to  the  other  party.  I  cannot  see  how  it  is  possible  to 
doubt  that  it  is  a  perfectly  good  justification  to  say  that  the  plaintiff' 
was  in  possession  of  the  land  against  the  will  of  the  defendant,  who 
was  owner,  and  that  he  entered  upon  it  accordingly;  even  though 
in  so  doing  a  breach  of  the  peace  was  committed." 

In  our  opinion,  all  that  is  so  said  of  the  right  of  property  in  land, 
applies  in  principle  to  a  right  of  property  in  a  chattel,  and  supports 
the  present  justification.  If  the  owner  was  compellable  by  law  to 
seek  redress  by  action  for  a  violation  of  his  right  of  property,  the 
remedy  would  be  often  worse  than  the  mischief,  and  the  law  would 
aggravate  the  injury  instead  of  redressing  it. 

For  these  reasons,  our  judgment  is  for  the  defendants.^' 

33  For  the  subsequent  history  of  this  case,  see  (1862)  12  C.  B.  N.  S.  501 ; 
(1803)  13  C.  B.  N.  S.  (Exch.)  844;  and  (1805)  11  H.  L.  C.  621,  to  the  effect  that 
title  to  property  created  nierely  by  the  act  of  reducing  a  thing  into  possession, 
necessarily  implies  a  reduction  into  possession  effected  by  an  act  which  is  not 
in  any  way  of  a  wrongful  nature.  Such  an  act,  therefore,  effected  by  one  who 
is  at  the  moment  a  trespasser,  cannot  create  a  title  to  property. 

See  the  remark  in  I'ollock  on  Torts  (Tth  Ed.)  p.  380,  note  c:  "Tlie  reasons 
given  at  page  TL'O  [of  10  C.  B.  N.  S.,  i.  e.,  Erie's  opinion]  seem  wrong,  and  the 
decision  itself  is  contrary  to  the  common  law  as  understood  in  tlie  thirteenth 
century.  One  who  retook  liis  own  goods  by  force  (save,  perhaps,  on  fresh  pur- 
suit) was  a  trespasser  and  lost  the  goods." 

See,  also.  Sir  Frederick  I'ollock's  later  comment  on  tlie  case  in  128  Rev.  Rep. 
vi :    "There  seems  to  be  no  doubt  that  in  Blades  v.  Iliggs,  the  court  allowed  an 


204  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

MONSON  V.  LEWIS. 

(Supreme  Court  of  Wisconsin,  1905.    123  Wis.  5S3,  101  N.  W.  1004.) 

This  was  an  action  to  recover  damages  for  an  assault  and  battery 
by  which  the  plaintiff's  arm  was  broken.  The  defendant  pleaded  a 
justification.  The  evidence  showed  that  the  parties  were  working 
on  the  highway  (the  defendant  being  superintendent  of  highways, 
and  the  plaintiff  working  under  him),  and  that  the  plaintiff  was 
handling  an  ordinary  scraper,  the  horses  attached  to  the  scraper  being 
driven  by  a  third  person;  that  the  defendant  was  not  satisfied  with 
the  manner  in  which  the  plaintiff  handled  the  scraper,  and  an  alter- 
cation arose  between  them,  which  resulted  in  a  personal  encounter. 
The  plaintiff's  testimony  tended  to  show  that  he  retained  possession 
of  the  scraper,  and  the  defendant  attempted  to  take  the  scraper 
y^  away  from  him,  and  struck  his  arm  in  the  attempt,  by  which  the  arm 
was  broken.  The  defendant's  testimony  tended  to  show  that  during 
the  altercation  the  scraper  came  to  a  standstill,  and  that  he  then 
discharged  the  plaintiff  from  the  work,  and  the  plaintiff'  stood  up  and 
let  go  of  the  scraper;  that  thereupon  the  defendant  took  hold  of 
both  handles  of  the  scraper,  and  the  plaintiff  then  tried  to  take  it  away 
from  him,  and  he  (defendant)  struck  the  plaintiff's  arm  in  defending 
his  possession  of  the  scraper.  There  was  a  verdict  and  judgment  for 
the  defendant,  and  the  plaintiff  appeals. 

WiNSLOW,  J.  There  was  no  doubt,  under  the  evidence,  of  the  fact 
that  the  defendant  struck  the  plaintiff  and  fractured  his  arm;  but 
the  principal  disputed  question  seemed  to  be  whether  the  defendant 
struck  the  blow  while  trying  to  take  the  scraper  from  plaintiff's  pos- 
session, or  whether  the  plaintiff  had  entirely  let  go  of  the  scraper, 
and  the  defendant  had,  without  violence,  taken  it  and  struck  the 
blow  while  the  plaintiff  was  endeavoring  to  retake  it.  In  the  one 
case  the  act  of  defendant  was  an  attempt  to  take  the  property  by 
force  from  plaintiff's  possession,  and  in  the  other  case  it  was  an 
attempt  to  defend  his  own  possession.  In  this  situation  of  the  evi- 
dence, the  following  instruction  was  given: 

"If  the  defendant  in  this  case  ordered  and  directed  the  plaintiff  to  let  go  of 
the  scraper  and  quit  worlc,  and  discharged  him,  and  the  plaintiff  refused  to 
let  go  of  the  scraper  and  refused  to  <piit  work,  then,  after  such  order  and  re- 
fusal, the  dcferdant  had  a  right  to  use  proper  and  reasonable  force  to  enable 
him  to  control  the  scraper  in  question,  and  the  .lury  must  determine  from  all 
the  evidence  how  much  and  what  kind  of  force  the  defendant  did  in  fact  use." 

amount  of  self  help  which  their  predecessors  in  the  Middle  Ages  would  have 
disapproved  as  too  dangerous  to  the  public  peace.  Obviously  the  danger 
would  be  greater  when  most  men  went  armed,  and  men  of  high  rank  witli 
armed  retinues." 

But  compare  27  Halsbury's  Laws  of  England  (1913)  SC8:  '"If  the  goods  are 
wrongfully  remove<l  or  are  in  the  wrongful  possession  of  some  one  else,  tho 
owner  may  retake  them  and  may  use  force  if  necessary." 

For  American  cases,  see  3  Cyc.  lOTS.  note  15;  4  Cent.  Dig.,  "Assault,"  §§  IS- 
IS;  Dec.  Dig.,  Key.  No..  "Assault,"  §  15. 


Ch.  1)  TRESPASSES  205 

This  instruction  admits  at  least  of  the  construction  that,  if  the  de- 
fendant had  discharged  the  plaintiff,  the  defendant  was  entitled  to 
take  the  scraper  from  plaintiff's  possession  by  force,  if  the  force  used 
was  reasonable  and  proper  to  accomplish  the  purpose.  We  do  not 
understand  this  to  be  the  law.  It  was  held  in  Barnes  v.  Martin,  15 
Wis.  240,  82  Am.  Dec.  670,  that  the  owner  of  property  which  is  in 
the  peaceable  possession  of  another  has  no  right  to  retake  the  property 
by  force.  This  principle  is  based  upon  public  policy.  It  is  in  the  in- 
terest of  peace  and  public  order.  Any  other  rule  would  substitute 
the  strong  arm  for  the  court  of  justice,  and  promote  lawbreaking  and 
violence.  The  right  of  the  owner  to  recapture  personal  property  is 
to  be  exercised  only  when  he  may  peaceably  do  so,  with  the  possible 
exception  (not  necessary  to  be  discussed  here)  that,  when  the  property 
has  been  momentarily  taken  from  the  owner  by  force  or  fraud,  it  may 
be  lawfully  retaken,  if  only  reasonable  and  proper  force  be  used.  2 
Am.  &  Eng.  Enc.  of  Law  (2d  Ed.)  983 ;  3  Cyc.  1078.  In  the  present 
case,  plaintiff's  original  possession  of  the  scraper  was  lawful,  and, 
if  he  retained  the  possession  continuously,  the  defendant  was  not 
justified  in  using  force  to  take  it  away;  but  if  the  plaintiff  let  go  of 
it,  and  the  defendant  peaceably  took  possession,  he  might  defend 
such  possession  with  reasonable  and  proper  force. 

The  court  further  charged  the  jury  that  "in  this  case,  as  in  all  other 
civil  cases,  the  burden  is  upon  the  plaintiff  to  establish  the  facts  es- 
sential to  his  recovery  by  a  preponderance  of  the  evidence."  This 
might  well  be  understood  as  meaning  that  the  plaintiff,  after  proving 
the  blow,  was  obliged  to  prove  that  there  was  no  justification  for  it. 
This  is  not  the  law.  The  blow  and  consequent  damage  being  admitted 
by  the  defendant,  a  prima  facie  case  was  made,  and  the  burden  lay 
upon  him  to  prove  facts  constituting  a  justification  therefor.  Timm 
v.  Bear,  29  Wis.  254 ;  Blake  v.  Damon,  103  Mass.  199 ;  2  Greenleaf , 
Ev.  (15th  Ed.)  §§  95-98. 

Judgment  reversed,  and  action  remanded  for  a  new  trial. ^* 

3  4  Accord:  Bobb  v.  Bosworth  (1808)  Litt.  Sel.  Cas.  (Ky.)  81,  12  Am.  Dec.  273: 
In  an  action  by  Bosworth  for  an  assault  and  battery  by  Bobb,  it  appeared  that 
at  the  time  of  the  assault  and  battery,  Bosworth  was  in  possession  of  the  slave 
which  v»-as  the  subject  of  dispute  between  the  parties:  that  Bobb  came  to  re- 
take him  out  of  Bosworth's  possession  in  a  violent  and  forcible  manner,  which 
was  resisted  by  Bosworth:  and  that  in  the  scuffle  Bobb  broke  Bosworth's  arm. 
Said  the  Court,  per  Trimble,  J. :  "It  is  not  material,  whether  Bobb  or  Bos- 
worth had  the  better  right  to  the  negro.  Bosworth  was  in  actual  possession; 
Bobb  could  not  lawfully  use  violence  and  force  in  regaining  possession.  Hav- 
ing broken  the  peace,  and  used  force,  where  he  was  forbidden  by  law  to  do  so, 
he  nmst  be  answerable  for  the  consequences." 

Kirby  v.  Foster  (1891)  17  R.  I.  4^7,  22  Atl.  1111,  14  L.  R.  A.  317 :  P.  was  In 
the  employ  of  a  corporation  as  bookkeeper.  The  sum  of  .^.50  belonging  to  the 
corporation  had  been  lost.  P.  was  held  responsible  for  this  by  the  oliicers  of 
the  corporation,  and  the  amount  wa.s  deducted  from  his  pay.  On  a  subsequent 
pay  day,  D.,  an  ofhcer  of  the  corporation,  handed  P.  some  money  to  pay  the 
help.  P.,  acting  under  the  advice  of  counsel,  took  from  this  money  the  amount 
due  him  at  the  time,  including  what  had  been  deducted  from  his  pay,  put  It 
into  his  pocket,  and  returned  the  balance  to  D.,  saying  that  he  had  received 


206  TORTS   THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

his  pay  and  was  going  to  leave  and  that  he  did  this  under  advice  of  counsel. 
D.  thereupon  attempted  by  force  to  take  the  money  from  him.  In  the  struggle 
which  ensued,  P.  received  injuries,  for  which  he  brouglit  suit.  D.  claimed  a 
justification.  There  was  a  verdict  for  P.,  with  a  petition  by  1).  for  a  new  trial. 
Said  Stiness.  J.,  delivering  the  opinion:  ''Unquestionably  if  one  takes  another's 
property  from  his  possession  without  right  and  against  his  will,  the  owner  or 
person  in  charge  may  protect  his  possession,  or  retake  the  property,  by  the  use 
of  necessary  force.  He  is  not  bound  to  stand  by  and  submit  to  wrongful  dispos- 
session or  larceny  when  he  can  stop  it,  and  he  is  not  guilty  of  assault  in  thus 
defending  his  right,  by  using  force  to  prevent  his  property  from  being  carried 
away.  But  this  right  of  defence  and  recapture  involves  two  things;  first,  pos- 
session by  the  owner,  and,  second,  a  purely  wrongful  taking  or  conversion, 
without  a  claim  of  right.  If  one  has  intrusted  his  property  to  another,  who, 
afterwards,  honestly  though  erroneously,  claims  it  as  his  own,  the  owner  has 
no  right  to  retake  it  by  personal  force.  If  he  has,  the  actions  of  replevin  and 
trover  in  many  cases  are  of  little  use.  The  law  does  not  permit  parties  to  take 
the  settlement  of  conflicting  claims  into  their  own  hands.  It  gives  the  right 
of  defence,  but  not  of  redress.  The  circumstances  may  be  exasperating;  the 
remedy  at  law  may  seem  to  be  inadequate;  but  still  the  injured  party  cannot 
be  arbiter  of  his  own  claim.  Public  order  and  the  public  peace  are  of  greater 
consequence  than  a  private  right  or  an  occasional  hardship.  Inadequacy  of 
remedy  is  of  frequent  occurrence,  but  it  cannot  find  its  complement  in  person- 
al violence.  Upon  these  grounds  the  doctrine  contended  for  by  the  defendants 
is  limited  to  the  defence  of  one's  possession  and  the  right  of  recapture  as 
against  a  mere  wrong-doer.  It  is  therefore  to  be  noted  in  this  case  that  the 
money  was  in  the  actual  possession  of  the  plaintiff,  to  whom  it  had  been  in- 
trusted for  the  purpose  of  paying  help,  who  thereupon  claimed  the  right  to 
appropriate  it  to  his  own  payment,  supposing  he  might  lawfully  do  so.  Con- 
ceding that  the  advice  was  bad,  nevertheless,  upon  such  appropriation  the 
plaintiff  held  the  money  adversely,  as  his  own,  and  not  as  the  servant  or  agent 
of  the  company.  If  his  possession  was  the  company's  possession,  then  the 
companj'  was  not  deprived  of  its  property,  and  there  could  be  neither  occa- 
sion nor  justification  for  violence.  Possession  by  the  company  would  be  con- 
structive merely,  which  would  cease  when  the  plaintiff  exercised  dominion  and 
control  on  his  own  behalf  under  an  honest  claim  of  right.  It  is  only  in  this 
way,  in  many  cases,  that  conversion  is  established.  Having  thus  appropriated 
the  money  to  himself,  it  is  urged  that  the  act  amounted  to  embezzlement, 
which  justified  the  intervention  of  the  defendants  to  prevent  the  consumma- 
tion of  the  crime.  "We  do  not  think  this  is  so.  The  plaintiff  stated  what  he 
had  done,  and  the  grounds  upon  which  he  claimed  the  right  to  do  it.  handing 
back  the  balance  above  what  was  due  him.  A  controversy  followed;  he  start- 
ed to  go  out,  but  was  stopped  by  the  defendants,  and  then  the  assault  took 
place.  The  sincerity  of  the  plaintiff's  belief  that  he  had  a  right  to  retain  the 
money  is  unquestionable.  Hence,  as  stated  in  Cluff  v.  Mutual  Benefit  Life  In- 
surance Co.,  13  Allen  (Mass.)  308,  cited  by  the  defendants,  even  a  forcible  tak- 
ing of  property,  'if  done  under  an  honest  claim  of  right,  however  ill  founded, 
would  not  constitute  the  crime  of  robbery  or  larceny ;  because,  where  a  party 
sincerely,  though  erroneously,  believes  that  he  is  legally  justified  in  taking 
property,  he  is  not  guilty  of  the  felonious  intent  which  is  an  essential  ingre- 
dient of  these  crimes.'  *  *  *  The  defendants  object  to  the  charge  of  the 
court,  that  where  a  person  has  come  into  the  peaceable  possession  of  a  chattel 
from  another,  the  latter  has  no  right  to  retake  it  by  violence,  whether  the  pos- 
session is  lawful  or  unlawful,  upon  the  ground  that  this  rule  would  prevent  tl)e 
recapture  of  property  obtained  by  trickery  or  fraud.  The  instruction  must  be 
considered  not  as  an  abstract  proposition,  but  with  reference  to  the  case  before 
the  jury.  Nothing  appeared  to  show  that  the  money  had  been  procured  by  mis- 
representation, trickery,  or  fraud.  It  was  delivered  to  the  plaintiff  volun- 
tarily, in  the  usual  course  of  business.  True,  under  the  advice  of  a  lawyer 
whom  he  had  consulted,  the  i)laintiff  had  previously  determined  to  ai)ply  the 
money  to  his  own  payment  when  he  should  receive  it;  but  this  did  not  make 
the  delivery  itself  fraudulent,  nor  did  his  intent  to  assert  what  he  believed  to 
be  his  right  make  that  intent  criminjil.  We  think,  therefore,  with  reference  to 
the  case  as  it  stood,  there  was  no  error  in  the  charge  as  given,  nor  in  the  refus- 
als to  charge  as  requested." 

1^ 


Ch.  1)  TRESPASSES  20'i 


(b)  Defense  of  Real  Property;    Forcible  Re-extry 

The  first  and  principal  remedy  is  of  this  kind,  namely,  that  he 
who  has  been  disseised  may  reject  the  spoiler  of  his  own  strength  if 
he  can,  or  by  strength  which  he  has  called  in  or  recalled,  provided 
no  interval  has  elapsed,  the  disseisin  or  misdeed  being  flagrant. 

Bracton  (circa   1250)  162  b.^" 


And  also  the  King  defendeth,  That  none  from  henceforth  make 
any  entry  into  any  lands  and  tenements  but  in  case  w^here  entry  is 
given  by  the  law;  and  in  such  case  not  with  strong  hand,  nor  wath 
multitude  of  people,  but  only  in  peaceable  and  easy  manner.  And 
if  any  man  from  henceforth  do  to  the  contrary,  and  thereof  be 
duly  convict,  he  shall  be  punished  by  imprisonment  of  his  body,  and 
thereof  ransomed  at  the  King's  will. 


'fc> 


Statute,  5  Rich.  II.,  c.  7  (1381), 


36 


SKEVILL  v.  AVERY. 

(Court  of  King's  Bench,  1629.    Cro.  Car.  138,  79  Reprint,  722.) 

Trespass  of  assault,  battery,  and  wounding.  The  defendant  plead- 
ed to  the  wounding,  not  guilty.  To  the  assault  and  battery  he  pleaded, 
that  he  was  possessed  of  a  house  in  such  a  parish  for  years,  and  that 
the  plaintiff  entered  his  house,  and  would  have  thrust  him  out  of  pos- 
session thereof;  whereupon  he  molliter  manus  imposuit  to  put  him 
out,  and  the  harm,  if  any  done,  was  in  defence  of  his  own  possession. 
The  plaintiff  hereupon  demurred. 

35  As  quoted  by  Barker,  J.,  in  Page  v.  Dwight  (1S97)  170  Mass.  29,  48  N.  E. 
850,  39  L.  R.  A.  418,  and  by  Swayze,  J.,  in  Schwiuu  v.  Perkins  (1910)  79  N.  J. 
Law,  515,  78  Atl.  19,  32  L.  R.  A.  (N.  S.)  51,  21  Ann.  Cas.  1223. 

"Bracton's  expression  as  translated,  'provided  no  interval  has  elapsed." 
hardly  differs  from  Lord  Denmau's  expression  six  centuries  later  [in  Browne 
w  Dawson  (1S40)  12  Ad.  &  El.  G24,  629:  'A  mere  trespasser  cannot,  by  the  very 
act  of  trespass,  immediately  and  without  acquiescence  give  himself  what  the 
law  uudei'stands  by  possession  against  the  person  whom  he  ejects,  and  drive 
him  to  produce  his  title,  if  he  can,  without  delay,  reinstate  himself  in  his  for- 
mer possession'].  In  such  a  case,  as  Mr.  Justice  Barker  suggests  in  Page  v. 
Dwight,  the  forcible  entry  and  the  recapture  are  but  one  transaction  and  the 
recapture  is  not  a  forcible  entry  but  a  successful  and  proper  resistance  of  a 
forcible  entry;  all  that  has  been  done  is  to  resist  successfully  a  wrongful  act." 
Mr.  Justice  Swayze  in  Schwinn  v.  Perkins  (1910)  79  N.  J.  Law,  515,  78  Atl. 
19,  32  L.  R.  A.  (N.  S.)  51,  21  Ann.  Cas.  1223. 

36  A  confirming  statute  in  1429  (8  Hen.  VI.,  a  9)  provided  that  if  it  appeared 
that  one  had  been  forcibly  put  out  of  possession  contrary  to  the  statute,  the 
justices  "shall  put  the  party  so  put  out  in  full  possession  of  the  same  lands 
and  tenements  so  entered  or  holden  as  before." 


.^ 


208  TORTS  THROUGH  ACTS   OF  ABSOLUTE   LIABILITY  (Pai't  1 

Goldsmith,  for  the  plaintiff,  shewed  for  cause,  that  the  defendant 
had  pleaded  a  lease  for  years,  not  shewing  who  made  the  lease,  nor 
when  it  was  made,  nor  for  how  many  years ;  whereas  they  ought  to 
have  been  pleaded  specially,  and  shewn  particulatim,  for  if  it  be  trav- 
ersed, there  cannot  be  any  issue  thereupon :  and  he  relied  upon 
Crogat's  case,  8  Co.  66,  that  de  injuria  sua  propria  is  no  plea. 

But  all  the  Court  held,  that  the  defendant  had  well  pleaded;  for 
saying  that  he  was  possessed  for  years  is  but  an  inducement  and 
conveyance  to  his  justification  and  not  the  substance  thereof,  which  is, 
that  he  oft'ered  to  thrust  him  out  of  the  possession  of  his  house ;  and 
whatsoever  title  he  hath,  it  is  not  material,  for  if  he  were  in  posses- 
sion by  virtue  of  a  lease  at  will,  or  any  other  title,  "de  injuria  sua 
propria"  is  a  good  plea;  for  the  title  or  interest  not  coming  in  ques- 
tion (and  what  was  pleaded  or  alledged  being  but  an  inducement  to 
the  plea),  it  needs  not  be  so  certain  as  where  it  is  pleaded  by  way  of 
title  to  make  a  claim  in  the  defendant.  Whereupon  it  was  adjudged 
for  the  defendant. 


WEAVER  v.  BUSH. 

(Court  of  King's  Bench,  179S.    8  Term  R.  78,  101  Reprint,  1276.) 

To  trespass  for  assaulting  and  beating  the  plaintiff  with  a  stick, 

the  defendant  pleaded  (besides  the  general  issue  and  son  assault,  which 

were  found  for  the  plaintiff)  that : 

"As  to  tlie  assaulting  of  tbe  plaintiff  and  beating,  bruising,  and  ill-treating 
him,  and  with  the  said  stick,  giving  and  striking  him  the  said  blows,  etc.,  he 
(the  defendant)  at  the  time  when,  etc.,  was  lawfully  possessed  of  and  in  a  cer- 
tain close  called,  etc.,  at,  etc.;  and  being  so  possessed,  the  plaintiff  at  tbe  said 
time  when,  etc.,  with  force  and  arms  and  with  a  strong  baud  as  much  as  in 
him  lay  did  attempt  and  endeavour  forcibly  to  break  into  and  enter  the  said 
close  of  the  defendant,  and  would  have  broken  into  and  entered  the  said  close 
without  the  defendant's  licence  and  against  his  will,  whereupon  the  defendant 
being  then  in  his  said  close,  and  seeing  the  said  attempt  and  endeavour  of  the 
plaintiff,  did  then  and  there  resist  and  oppose  such  entrance  into  the  said  close; 
and  upon  that  occasion  did  then  and  there  defend  his  possession,  as  it  was 
lawful  for  him  to  do;  and  that  if  any  damage  or  injury  then  and  there  hap- 
pened to  the  plaintiff,  it  was  in  the  defence  of  the  possession  of  the  said  close." 

To  this  plea  the  plaintiff  replied  de  injuria  sua  propria  absque  tali 
causa;    the  issue  on  this  plea  was  found  for  the  defendant. 

Lens  having  moved  to  enter  up  judgment  for  the  plaintiff,  notwith- 
standing the  justification  in  the  third  plea,  which  was  found  for  the 
defendant,  on  the  ground  that  that  plea  could  not  be  supported  on  the 
authority  of  Jones  v.  Tresilian,  1  Mod.  36,  where  Twisden,  J.,  said 
"You  cannot  justify  the  beating  of  a  man  in  defence  of  your  posses- 
sion ;   but  you  may  say  that  you  did  molliter  manus  imponere,"  etc. 

Bond,  Gibbs,  and  Dampier,  now  shewed  cause  against  that  rule, 

Lawrence,  J.  The  general  form  of  pleading,  certainly  has  been 
as  the  plaintiff's  counsel  contends ;  and  on  this  ground,  that  the  de- 
fendant ought   not  in   the   first  instance   to   begin  with   striking  the 


Ch.  1)  TRESPASSES  209 

plaintiff;  but  the  law  allows  him,  either  in  defence  of  his  person  or 
possessions,  to  lay  his  hand  on  the  plaintiff,  and  then  he  may  say, 
if  any  further  mischief  ensued,  it  was  in  consequence  of  the  plaintiff's 
own  act ;  so  that  the  battery  follows  from  the  resistance.  But  it  does 
not  necessarily  follow  from  any  thing  stated  in  this  plea,  that  the 
defendant  did  more  than  gently  lay  his  hands  on  plaintiff  in  the  first 
instance ;  and  if  not,  this  plea  may  stand  consistently  with  all  the  au- 
thorities.     *      *      *  37 

Per  Curiam,    Rule  discharged. 


POLKIXHORX  V.  WRIGHT. 

(Court  of  Queen's  Bench,  184.5.     8  Q.  B.  197,  115  Reprint,  849.) 

Lord  Denman,  C.  J.  This  was  an  action  of  trespass  for  assault 
and  battery ;  and  the  plaintiff  in  his  declaration,  complained  that  the 
defendant,  on  the  1st  day  of  January  1844,  assaulted  the  plaintiff, 
and  then  seized  him,  and  dragged  him  about,  and  struck  him  many 
blows ;  by  means  whereof  the  plaintiff  was  greatly  hurt,  etc. 

To  this  the  defendant  pleaded  two  pleas  of  justification :  one  in 
defence  of  the  possession  of  a  close  and  a  gate,  which  the  plaintiff  en- 
deavoured forcibly  and  with  a  strong  hand  to  break  and  enter;  and 
the  other  stating  that  the  defendant  was  possessed  of  a  cow,  then 
being  in  a  certain  close,  and  that  the  plaintiff,  against  the  will  of  the 
defendant,  endeavoured  to  drive  the  cow  away  from  the  close  and 
to  dispossess  the  defendant  of  her,  and  would,  forcibly  and  in  breach 
of  the  peace,  have  driven  away  and  dispossessed  the  defendant  of  the 
COW' :  wherefore  the  defendant  resisted  the  attempt,  and  justifies  the 
trespasses.    The  plaintiff  replied  de  injuria.     *     *     * 

But  the  plaintiff'  contended  that  the  defendant's  pleas  were  bad 
for  not  alleging  a  request  to  desist  before  resisting  with  force.  We 
do  not  think  there  is  any  weight  in  this  objection.  There  is  a  mani- 
fest distinction  between  endeavouring  to  turn  a  man  out  of  a  house 
or  close,  into  which  he  has  previously  entered  quietly,  and  resisting 
a  forcible  attempt  to  enter.  In  the  first  case,  a  request  is  necessary; 
in  the  latter  not.  This  distinction  is  expressly  taken  in  Green  v.  God- 
dard  (2  Salk.  641),  and  Weaver  v.  Bush  (8  T.  R.  78).  In  the  present 
case  the  pleas  justify  the  trespasses  on  the  ground  of  resisting  a 
forcible  attempt,  in  the  one  case  to  enter  the  defendant's  close,  and  in 
the  other  to  dispossess  him  of  his  cow ;  in  neither  of  which  cases  was 
a  request  to  desist  necessary.^^ 

Judgment  for  defendant. 

3  7  The  arguments  of  counsel,  and  the  opinion  of  Lord  Kenyon,  C.  J.,  with 
whom  Lawrence,  J.,  concurred,  are  omitted. 

3s  The  stateuipiit  of  the  cjise.  the  arguments  of  counsel,  and  a  part  of  the 
opinion,  on  another  point,  are  omitted. 

Hepb.Tokts — 14 


210  TOKTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

HOLMES  V.  BAGGE  et  al. 
(Court  of  Queen's  Bench.  1853.    1  El.  &  Bl.  782,  118  Reprint,  629.) 

Trespass.  The  declaration  contained  counts  for  two  assaults. 
There  were  seven  pleas.  The  first  was  not  guilty,  with  issue  thereon. 
The  sixth  plea,  to  the  first  count,  was  that  the  defendant  Bagge  and 
ten  others  named,  being  eleven  members  of  a  cricket  club  called  the 
Lynn  Cricket  Club,  and  eleven  others  named,  being  eleven  members 
of  a  cricket  club  called  the  Lytcham  Cricket  Club,  "were  lawfully 
possessed  of  a  certain  close,"  and  were  lawfully  playing  a  certain  law- 
ful game  or  match  at  cricket  in  the  said  close ;  and  plaintiff  was  "un- 
lawfully in  and  upon  the  said  close,"  and  "vexatiously  and  unlawfully 
interrupted,  hindered  and  prevented"  Bagge  and  the  other  twenty 
one  persons  "in  and  from  any  longer  playing  the  said  lawful  game :" 
whereupon  Bagge,  in  his  own  right  and  by  the  authority  of  the  other 
twenty  one  persons,  and  Fletcher,  as  Bagge's  servant,  requested  plain- 
tiff "to  depart  from  and  out  of  the  said  close,  and  to  desist  from  in- 
terrupting" the  playing :  which  plaintiff  refused  to  do :  whereupon 
Bagge  and  Fletcher  gently  laid  their  hands  upon  plaintiff  "in  order 
to  remove  and  did  remove,  him  from  and  out  of  the  said  close  in  this 
plea  mentioned."  The  seventh  plea  was  similar  to  the  sixth,  but  di- 
rected to  the  second  count.  To  the  sixth  and  seventh  pleas,  the  plain- 
tiff replied  de  injuria. 

At  the  trial  before  Lord  Campbell,  C.  J.,  at  the  last  Norwich  as- 
sizes, it  appeared  that  the  plaintiff"  and  the  defendant  Bagge  were  both 
members  of  the  committee  of  the  Lynn  Cricket  Club.  The  owner  of 
the  close  mentioned  in  the  pleas  was  W.  S.  Rolin;  and  he  had  signed 
an  agreement  with  the  committee,  of  which  the  material  parts  were 
as  follows : 

"The  said  W.  S.  R.  agrees  to  let  unto  the  said  committee,  who  accordinglj- 
hereby  agree  to  hire,  all  that,"  etc.,  "now  in  the  occupation  of  the  said  W.  S. 
R.,  to  be  used  as  a  cricket  field  by  the  members  of  the  above  named  club,  and 
for  that  purpose  only,  at  the  annual  rent  of  £10."  "The  committee  to 
do  all  that  Uiay  be  necessary  for  keeping  the  ground  in  proper  playing  condi- 
tion, at  tJieir  own  expense.  The  tenancy  under  this  agreement  to  be  determin- 
able at  the  end  of  any  current  season,  on  notice  in  writing  to  that  effect  being 
given  by  either  party  on  or  before  the  29th  September." 

On  the  day  of  the  alleged  assault,  there  was  a  match  between  the 
eleven  of  the  Lynn  Cricket  Club,  of  which  eleven  defendant  Bagge 
was  one,  and  plaintiff  was  not  one,  and  the  eleven  of  the  Lytcham 
Cricket  Club.  The  match  was  played  on  the  close  in  question;  and 
the  spectators  left  a  clear  space  round  the  players,  which  was,  as  the 
jury  found,  "tabooed"  to  all  but  the  players.  During  the  innings  of 
the  Lytcham  Cricket  Club,  one  of  the  Lynn  eleven  retired  for  a  tem- 
porary purpose ;  and  the  plaintiff,  who  was  among  the  spectators,  was 
requested  to  take  his  place.  He  complied,  but  did  not  take  off  his 
coat.  Bagge,  who  was  captain  of  the  Lynn  eleven,  told  him  to  do  so: 
offence  was  taken  at  the  tone  in  which  the  command  w^as  given ;  and 
the  plaintiff  w^ould  neither  take  off  his  coat  nor  leave  the  "tabooed" 


Ch.  1)  TRESPASSES  211 

spot.  He  was  then,  by  the  direction  of  the  defendant,  forcibly  re- 
moved from  the  "tabooed"  ground;  and  the  assaults  were  committed 
in  so  removing  him. 

The  Lord  Chief  Justice,  on  proof  of  these  facts,  was  of  opinion  that, 
the  assaults  in  fact  being  clearly  made  out,  the  issue  upon  Not  guilty 
must  be  found  for  the  plaintiff,  and  that  none  of  the  other  pleas  were 
made  out.  He  took  the  opinion  of  the  jury  as  to  whether  the  twenty 
two  were  lawfully  playing  at  cricket,  and  whether  the  plaintiff  dis- 
turbed them.  The  jury  said  they  were  lawfully  playing,  and  plaintiff 
disturbed  them  by  remaining  on  the  tabooed  ground.  The  Lord  Chief 
Justice  thereupon  directed  a  verdict  for  the  plaintiff,  but  reserved 
leave  to  enter  a  verdict  on  the  6th  and  7th  issues  for  the  defendant,  if 
the  Court  should  be  of  opinion  that  the  part  of  those  pleas  proved  con- 
stituted a  defence. 

Byles  Serjeant  moved  for  a  rule  nisi  to  enter  the  verdict  on  the  6th 
and  7th  issues,  pursuant  to  the  leave  reserved. 

Lord  CampbelIv,  C.  J.  *  *  *  As  to  the  sixth  and  seventh 
pleas,  they  set  up  that  the  twenty  two  persons  named  were  lawfully 
possessed  of  a  close,  and  lawfully  playing  cricket  there,  that  plaintiff 
wrongfully  remained  on  the  close,  and  interrupted  the  playing,  and, 
though  requested  to  depart  from  the  close  and  to  desist  from  the  in- 
terruption, would  not  do  so ;  whereupon  the  defendants  gently  laid 
their  hands  on  him  "in  order  to  remove,  and  did  remove,  him  from  and 
out  of  said  close."  Now,  no  doubt  a  plea  might  have  been  framed  to 
meet  the  facts,  so  as  to  have  entitled  the  defendant  to  a  verdict ;  for 
according  to  the  evidence  the  two  elevens  were  lawfully  playing;  and, 
as  the  jury  found,  the  space  round  the  wickets  was  tabooed,  and  the 
plaintiff  came  into  that  tabooed  space,  and  persisted  in  remaining  there 
though  requested  to  go.  And  it  may  be  that  it  would  be  a  good  jus- 
tification that  they  removed  him  for  disturbing  persons  lawfully  play- 
ing at  a  lawful  game;  and,  if  such  had  been  the  justification  here  the 
plea  would  have  been  proved.  But  such  is  not  the  language  of  this 
plea,  it  avers  that  the  twenty  two  persons  named  were  possessed  of  the 
close,  and  that  the  plaintiff  was  removed  from  the  close,  because  he 
would  not  leave  it.  Therefore  the  plea  justifies  the  trespasses  on  the 
ground  that  the  twenty  two  were  possessed  of  the  close,  and  commit- 
ted the  trespasses  in  defence  of  their  possession.  Now,  in  fact,  the 
twenty  two  were  not  possessed.  It  was  the  cricket  field  of  the  Lynn 
Cricket  Club;  and  eleven  out  of  the  twenty  two  were  strangers,  in- 
vited by  the  Lynn  Cricket  Club  to  come  there  as  guests  to  play.  They 
were  in  no  sense  possessed  of  the  field.  Therefore  the  justification, 
as  pleaded,  fails;  and  those  issues  were  rightly  found  for  the  plain- 
tiff.3« 

Rule  refused. 

39  The  stateuient  is  abridged;  part  of  the  opinion,  on  another  point,  is 
omitted. 

Compare  Dean  v.  Hogg  (18.34)  10  Bing.  345,  38  R.  R.  443:  The  defendant 
Le\vi.s  hired  a  steamboat  for  a  party  of  pleasure  to  Richmond,  upon  the  terms 


212  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

BRUCH  V.  CARTER. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1S67.    32  N.  J.  Law,  554.) 

A  writ  of  error  brought  up  for  review  a  judgment  against  the  de- 
fendants below,  after  verdict  in  an  action  of  trespass.  The  declara- 
tion, framed  in  four  counts,  had  alleged,  in  the  second  count,  that  the 
defendants, 

"with  force  and  arms,  seized  and  broke  loose,  from  a  certain  post  of  the  said 
plaintiff,  wliere  he  stood  tied,  a  certain  other  horse  of  the  said  plaintiff  of 
great  value,  etc.,  and  removed  the  said  horse  a  great  distance,  to  wit,  a  dis- 
tance of  ten  yards,  and  fastened  the  said  other  horse  to  a  certain  other  post, 
by  means  whereof  the  said  horse  of  the  said  plaintiff  became  entangled  in  his 
halter,  was  thrown  with  great  violence  upon  the  ground,  and  was  instantly 
killed." 

The  court  having  overruled  an  objection  to  the  declaration,  the  de- 
fendants, after  the  plaintiff  had  rested  his  cause,  moved  that  he  be 
non-suited,  on  the  ground  that  he  had  not  established  his  right  to 
recover  in  the  action.  This  motion  was  refused,  and  the  defendants 
excepted. 

WooDHULL,  J.  *  *  *  ^°  No  extended  examination  of  the  tes- 
timony is  required  to  show  that  the  motion  to  non-suit  was  properly 
refused.  The  fact  that  Jacob  Cowell,  one  of  the  defendants,  un- 
tied the  plaintiff's  horse,  and  removed  him  from  the  hitching  post,  to 
which  his  owner  had  fastened  him,  is  so  clearly  established  by  the 
testimony  of  John  Carter,  the  plaintiff  below,  and  of  Jacob  Cowell 

disclosed  in  the  following  letter  from  the  owner :  "I  note  the  Adelaide  is  en- 
gaged to  you  for  Richmond  or  Twickenham  for  Tuesday  the  2Sth  of  May,  at 
the  hire  for  the  day  of  £5.  10  s.,  your  party  not  exceeding  fifty  pei-sons." 
The  vessel  was  navigated  by  a  captain  and  crew,  employed  and  paid  by 
the  owner.  Just  as  she  was  about  to  start  from  a  quay  in  London,  the 
plaintiff,  an  attorney,  a  stranger  to  the  defendant,  stepped  on  board,  not  being 
aware  that  the  vessel  had  been  hired  for  the  day  by  Lewis,  and  his  embarka- 
tion being  countenanced  by  the  captain.  The  plaintiff  was  not  long  in  dis- 
covering that  he  had  intruded  into  a  private  party,  and  expressed  to  some  one 
near  him  his  readiness  to  quit  the  vessel  when  an  opportunity  should  present 
itself;  but  the  person  so  addressed  rather  counselled  him  to  stay.  However, 
by  the  time  the  Adelaide  had  reached  Rattersea,  it  was  generally  bruited  about 
that  a  stranger  was  on  board.  The  ladies  became  alarmed;  and  Hogg,  as  the 
plaintiff  alleged,  in  an  imperious  tone,  oi-dered  him  to  quit  the  vessel.  The 
plaintiff,  irritated  by  what  appeared  to  him  a  harsh  manner  of  making  a  law- 
ful request,  refused  to  go ;  whereupon  the  defendants,  after  calling  on  the  cap- 
tain to  remove  the  plaintiff,  with  considerable  violence  shoved  him  into  a  boat 
alongside,  and,  in  so  doing,  tore  off  the  skirts  of  his  coat.  For  this  assauU  the 
plaintiff  sued  them  in  trespass;  and  having  obtained  a  verdict  for  £10.  dam- 
ages, the  question,  upon  a  motion  to  set  aside  the  verdict  and  enter  a  nonsuit 
instead,  was,  whether,  under  the  above  contract  with  the  owner,  Lewis  had 
such  possession  of  the  steam  vessel  as  to  support  the  defendant's  second  plea, 
which  alleged  that  Lewis  was  lawfully  possessed  of  the  steam  vessel  mentioned 
in  the  declaration;  that  the  plaintiff  was  unlawfully  in  the  steam  vessel,  from 
which  he  would  not  depart  when  requested;  and  then  justified  the  ronnuitting 
of  the  trespasses  by  the  defendants  in  defence  of  the  possession  of  Lewis,  and 
in  order  to  remove  the  plaintiff  from  the  vessel. 

■*o  A  considerable  j)ortion  of  the  opinion,  touching  on  other  points,  has  beon 
omitted.     The  statement  of  facts  has  been  abridged. 


Ch.  1)  TRESPASSES  213 

himself,  that  it  does  not  appear  to  have  been  at  all  controverted  in 
the  cause.  It  is  equally  clear  that  the  post  in  question  stood  in  the 
highway,  and  that  the  plaintiff's  right  to  use  it,  if  not  exclusive,  was, 
at  least,  as  good  as  that  of  either  of  the  defendants.  Here,  then,  we 
find,  without  looking  further,  acts  done  by  one  of  the  defendants, 
which  must  be  held  to  amount  to  at  least  a  technical  trespass,  for 
.which  the  plaintiff  below  would  be  entitled,  under  the  declaration  in 
the  cause,  to  recover  nominal  damages  against  this  defendant,  if  noth- 
ing more.  The  plaintiff  had,  therefore,  established  his  right  to  re- 
cover in  the  action,  and  there  was  no  error  in  overruling  the  motion 
for  a  non-suit.     *     *     * 

It  appears  by  one  of  the  bills  of  exception  that,  towards  the  close 
of  the  testimony  on  the  part  of  the  defendants,  the  counsel  for  Bruch, 
asked  the  witness,  Jacob  Cowell,  the  following  question:  "Who  put 
the  post  in  the  ground  there  from  which  you  removed  Carter's  horse 
that  day?"  Which  question  was  overruled  by  the  court  as  proving 
an  immaterial  fact.  The  counsel  then  oft'ered  to  prove,  by  the  same 
witness,  that  the  post  from  which  he  removed  the  horse,  was  his 
father's  post;  that  the  witness  helped  to  put  it  there;  and  that  he 
had  a  right  to  tie  to  it.  Which  offer  was  overruled  by  the  court.  The 
fourth  and  fifth  assignments  of  error  are  founded  upon  the  rejection 
by  the  court  of  tlie  evidence  thus  oft'ered  on  the  part  of  the  plaintiff" 
in  error.  This  evidence  appears  to  me  to  be  wholly  immaterial  to  the 
issue  in  the  cause,  and  to  have  been,  for  that  reason,  properly  over- 
ruled. Admitting  all  these  alleged  facts  to  be  true,  they  neither  estab- 
lish, nor  tend  to  establish,  in  the  defendants,  or  either  of  them,  any 
such  exclusive  right  to  use  the  post  in  question  as  would  enable  them 
to  justify  the  acts  complained  of  in  the  declaration.  It  may  well 
be  doubted  whether  even  J-acob  Cowell's  father,  upon  the  facts  as 
offered  to  be  proved,  could  have  legally  untied  and  removed  the  plain- 
tiff's horse,  as  the  defendants,  or  one  of  them,  did  in  this  case.  He 
may  have  owned  the  post,  and  may  have  placed  it  where  it  stood,  in 
the  highway  near  the  church,  for  his  own  convenience ;  he  may  have 
had  a  perfect  right  to  remove  it  at  his  pleasure,  but  while  it  remained 
there,  should  it  not  be  regarded  as  so  far  dedicated  to  the  use  of  per- 
sons having  occasion  to  attend  that  church,  that  anyone  finding  it  un- 
occupied, might  lawfully  tie  his  horse  to  it?  However  this  may  be, 
and  whatever  exclusive  right  Jacob  Cowell's  father  may  be  supposed 
to  have  had  to  use  the  post  in  question,  it  is  very  certain  that  Jacob 
Cowell  could  not  justify  under  that  right,  without  showing  that  he 
acted  by  the  direction,  or,  at  least,  the  permission  of  his  father.  This 
he  did  not  offer  to  do ;  but  merely  offered  to  prove  that  he  helped 
his  father  put  the  post  where  it  stood. 

But  the  evidence  in  question,  even  if  material,  could  not  have  been 
received  under  the  general  issue.     *     *     * 

Judgment  affirmed. 


214  TORTS   THROUGH  ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

OILMAN  V.  EMERY. 

(Supreme  Judicial  Court  of  Maine,  1867.     54  Me.  460.) 

Trespass  to  recover  damages  to  plaintiff's  horse  and  wagon.  It 
appeared  that  the  plaintiff  started  with  his  brother  to  drive  two 
heifers  from  his  stable,  in  Waterville,  to  another  town.  As  they 
were  passing  the  defendant's  premises,  leading  plaintiff's  horse  at- 
tached to  his  wagon,  and  driving  the  heifers,  one  of  the  latter  turned 
and  ran  back.  Thereupon  the  plaintiff  hitched  his  horse  to  a  shade 
tree,  twenty-two  inches  in  diameter,  standing  upon  the  defendant's 
premises  but  within  the  limits  of  the  highway,  and  went  back  for 
his  heifer.  The  defendant  seeing  plaintiff's  horse  so  hitched,  removed 
him  and  hitched  him  to  a  post  a  few  feet  from  the  tree.  When  the 
plaintiff  was  returning  for  his  horse,  some  twenty  minutes  afterwards, 
he  saw  his  horse  running  through  the  streets,  with  halter  dragging, 
and  the  wagon  liroken.  There  was  no  evidence  as  to  the  precise 
manner  in  which  the  defendant  hitched  the  horse,  or  as  to  how  he 
was  freed  from  the  post. 

Plaintiff  moved  to  amend  by  adding  a  count  alleging  a  wrongful 
taking  by  the  defendant,  a  negligent  use  and  control  of  said  horse 
and  wagon,  whereby  they  became  injured  and  unfit  for  use.  The 
presiding  Judge  overruled  the  motion,  and  ordered  a  nonsuit,  and 
the  plaintiff  alleged  exceptions. 

Walton,  J.  Travellers  have  no  right  to  hitch  horses  to  shade 
trees.  It  is  well  known  that  most  horses  have  a  propensity  to  gnaw 
whatever  they  are  hitched  to.  Hitching  posts  of  the  hardest  wood 
have  to  be  capped  with  iron  or  they  are  soon  so  badly  gnawed  as 
to  be  ruined.  Too  many  beautiful  shade  trees,  planted  at  great  ex- 
pense and  watched  for  years  with  anxious  care,  have  been  destroyed 
by  having  horses  hitched  to  them,  not  to  know  that  the  practice  is 
exceedingly  dangerous.  When,  therefore,  the  owner  of  a  shade 
tree  finds  a  horse  hitched  to  it,' he  may  immediately  remove  him  to  a 
place  of  safety,  and  such  removal  will  not  be  a  trespass. 

In  this  case,  the  defendant  found  a  horse  hitched  to  one  of  his 
shade  trees.  He  unhitched  him  and  led  him  a  few  feet  and  hitched 
him  to  a  post  set  in  the  ground  on  purpose  to  hitch  horses  to.  This 
was  not  an  act  of  trespass,  and  probably  the  plaintiff  would  not  have 
complained  of  it,  but  for  the  fact  tiiat  his  horse  afterwards  broke 
loose  from  the  post  and  ran  away  and  broke  his  wagon.  But  there 
is  no  evidence  that  the  defendant  did  not  use  ordinary  care  in  hitch- 
ing the  horse,  and  the  plaintiff's  writ  does  not  charge  him  with  negli- 
gence ;  it  simply  charges  him  with  trespass  vi  et  armis,  in  taking  and 
carrying  away  the  horse,  buggy,  etc. 

The  presiding  Judge,  being  of  opinion  that  the  action  could  not  be 
maintained,  ordered  a  nonsuit,  to  which  the  plaintiff  excepted.  Wc 
cannot  doubt  that  the  nonsuit  was  rightly  ordered. 


Ch.  1)  TRESPASSES  215 


BRENDLIN  v.  BEERS. 

(Supreme  Court  of  New  York,  Appellate  Division,  1911.    144  App.  Div.  403, 

129  N.  Y.  Supp.  222.) 

The  plaintiff,  who  was  engaged  in  the  retail  tea  and  coffee  business, 
employed  salesmen  to  take  orders  and  make  deliveries,  but  collected  the 
bills  personally.  For  the  purpose  of  collecting  a  bill  from  a  cus- 
tomer, the  plaintiff'  went  to  an  apartment  house  owned  by  the  de- 
fendant, entered  the  vestibule,  and  rang  the  customer's  bell.  There-  V 
upon  the  janitor  appeared  and  asked  what  he  wanted.  The  plaintiff 
informed  him  that  he  came  to  collect  a  bill  from  one  of  the  tenants, 
whom  he  named.  The  janitor  then  told  him  to  go  down  stairs  and 
make  the  collection  by  means  of  the  dumb-waiter,  at  the  same  time 
saying  that  this  was  in  accordance  with  the  orders  given  him  by 
the  owner  of  the  premises.  The  plaintiff  refused  to  do  this,  and 
attempted  to  forcibly  pass  the  janitor  for  the  purpose  of  going  to 
his  customer's  apartment.  The  janitor  thereupon  seized  him,  and 
they  both  fell  to  the  floor,  where  they  remained  until  separated.  The 
plaintiff  then  left  the  premises  and  instituted  this  action  in  the  City 
Court  of  the  City  of  New  York  against  the  owner  of  the  apartment 
house  to  recover  damages  for  alleged  assault  and  battery  by  the  jan- 
itor. The  complaint  was  dismissed  at  the  close  of  plaintiff's  case,  and 
the  plaintiff  appealed  to  the  Appellate  Term,  which  reversed  the  judg- 
ment and  ordered  a  new  trial,  and  from  such  determination  the  de- 
fendant appeals  to  this  court.  The  janitor  was  acting  within  the  scope 
of  his  authority.*^ 

McLaughlin,  J.  I  am  of  the  opinion  the  complaint  was  properly 
dismissed.  There  is  no  evidence  that  the  janitor  used  any  more 
force  than  was  necessary  to  prevent  the  ])laintift*  from  entering  the 
house  after  he  had  been  told  he  could  not  do  so.  The  alleged  cause 
of  action  is  predicated  upon  the  proposition  that  the  plaintiff  had 
a  legal  right  to  enter  the  apartment  house,  notwithstanding  the  fact 
that  the  owner  forbade  his  doing  so.  He  had  no  such  right,  and,  if 
he  had,  he  could  not  resort  to  force  to  accomplish  that  purpose.  When 
the  owner  of  a  house  rents  it  to  another,  he  thereby  confers  upon 
the  tenant  the  right  to  use  the  building  or  such  part  of  it  as  is  rented, 
and  this  includes  an  easement  of  ingress  and  egress  by  the  usual  way. 
This  easement,  however,  is  for  the  tenant  (Totten  v.  Phipps,  52  N. 
Y.  354;  Doyle  v.  Lord,  64  N.  Y.  432,  21  Am.  Rep.  629),  and  third 
parties,  except  upon  the  invitation,  either  express  or  implied,  of  the 

*i  The  statement  of  facts  has  been  abridged,  and  a  part  of  the  opinion,  on 
another  point,  is  omitted. 

For  the  oiirlier  history  of  the  case,  see  Brondlin  v.  Beers  (1910)  68  Misc. 
Rep.  .310,  123  N.  Y.  Supp.  10G2 :  "The  ( omplaint  alleges  that  the  plaintiff  en- 
tered the  premises  on  the  invitation  of  one  of  the  tenants  for  the  purpose  of 
collecting  a  bill  due  him."  See,  also,  (1910)  140  App.  Div.  914,  125  N.  Y.  Supp. 
1114. 


-^  ^  5KRVV/ 


>/ 


216  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

landlord  or  tenant,  have  no  more  right  to  enter  the  building  than  they 
would  if  it  were  vacant.  Here  the  record  is  absolutely  barren  of 
any  evidence  that  the  tenant  had,  either  expressly  or  impliedly,  in- 
vited the  plaintiff  to  enter  the  building,  contrary  to  the  rules  estab- 
lished by  the  landlord.  The  plaintiff',  before  the  alleged  assault  was 
committed,  had  been  informed,  that  he  could  not  deliver  goods  or 
collect  bills,  except  by  means  of  the  dumb-waiter,  which  was  located 
in  the  basement.  This  was  a  rule  which  had  been  established  by  the 
landlord,  and  so  far  as  appears  was  a  reasonable  one,  and  entirely 
satisfactory  to  the  tenant.  It  certainly  was  one  which,  so  far  as  this 
plaintiff  was  concerned,  the  defendant  had  a  right  to  make,  and 
when  he  was  so  informed,  and  told  he  could  not  enter  for  the  purpose 
of  collecting  the  bill,  he  should  have  left  the  building.  When  he 
thereafter  attempted  to  force  his  way  into  the  building,  defendant 
had  a  right  to  prevent  his  doing  so,  by  using  force  sufficient  for  that 
purpose.  Fove  v.  Sewell,  21  Abb.  N.  C.  15;  Breitenbach  v.  Trow- 
bridge, 64  M'ich.  293,  31  N.  W.  402,  8  Am.  St.  Rep.  829;  Parsons 
v.  Brown,  15  Barb.  590.     *     *     * 

Reversed  and  judgment  of  City  Court  affirmed. 


HANNABAll^SON  v.  SESSIONS. 

(Supreme  Court  of  Iowa,  1902.    116  Iowa,  457,  90  N.  W.  93, 
93  Am.  St.  Rep.  520.) 

Action  at  law  to  recover  damages  for  an  alleged  assault  and  battery. 
It  appeared  that  in  a  war  of  words  the  defendant  had  pushed  the 
plaintiff's  arm  back  from  the  defendant's  side  of  a  partition  fence. 
There  was  a  verdict  and  judgment  for  defendant,  and  plaintiff*  appeals. 

Weaver,  J.  *  *  *  It  is  also  said  that  the  court  erred  in  in- 
structing the  jury  that,  if  plaintiff  leaned  over  the  partition  fence  and 
attempted  to  interfere  with  the  ladder,  defendant  had  the  right  to 
use  such  force  upon  her  as  was  reasonably  necessary  to  cause  her  to 
desist,  and  to  expel  her  from  his  premises.  It  is  claimed  that  this 
instruction  is  wrong.  *  *  *  The  general  doctrine  announced  in 
the  instruction  is,  in  our  judgment,  correct.  The  mere  fact  that  the 
plaintiff'  did  not  step  across  the  boundary  line  does  not  make  her  any 
less  a  trespasser  if  she  reached  her  arm  across  the  line,  as  she  admits 
she  did.  It  is  one  of  the  oldest  rules  of  property  known  to  the  law 
that  the  title  of  the  owner  of  the  soil  extends,  not  only  downward  to 
the  center  of  the  earth,  but  upward  usque  ad  coelum,  although  it  is, 
perhaps,  doubtful  whether  owners  as  quarrelsome  as  the  parties  in 
this  case  will  ever  enjoy  the  usufruct  of  their  property  in  the  lat- 
ter direction.  The  maxim,  "Ubi  pars  est  ibi  est  totum," — that  where 
the  greater  part  is,  there  is  the  whole, — does  not  apply  to  tlie  per- 
son of  the  trespasser,  and  the  court  and  jury  could  therefore  not  be 


Ch.  1)  TRESPASSES  217 

expected  to  enter  into  any  inquiry  as  to  the  side  of  the  boundary 
line  upon  which  plaintiff  preponderated,  as  she  reached  over  the 
fence  top.  It  was  enough  that  she  thrust  her  hand  or  arm  across 
the  boundary  to  technically  authorize  the  defendant  to  demand  that 
she  cease  the  intrusion,  and  to  justify  him  in  using  reasonable  and 
necessary  force  required  for  the  expulsion  of  so  much  of  her  person 
as  he  found  upon  his  side  of  the  line,  being  careful  to  keep  within 
the  limits  of  the  rule,  "Molliter  manus  imposuit,"  so  far  as  was  con- 
sistent with  his  own  safety.  Under  the  instructions  of  the  court, 
the  jury  must  have  found  that  defendant  kept  within  the  scope  of 
his  legal  rights  in  this  respect,  and  that  the  alleged  assault  was  not 
established  by  the  evidence. 

The  judgment  of  the  district  court  is  affirmed.^* 


GREGORY  and  Honour,  his  Wife,  v.  HILL. 
(Court  of  King's  Bench,  1799.    8  Term  R.  299,  101  Reprint,  1400.) 

The  declaration  stated,  that  the  defendant,  on,  etc.,  at,  etc.,  with 
force  and  arms,  made  an  assault  on  the  plaintiff's  wife;  and  then  and 
there  beat,  bruised,  and  wounded  and  ill-treated  her;  and  then  and 
there  gave  and  struck  her  divers  and  repeated  blows  and  strokes  on 
divers  parts  of  her  body ;  and  then  and  there,  with  great  force  and 
violence,  several  and  repeated  times,  knocked  her  down  upon  the 
ground,  whereby,  etc. 

To  this  the  defendant  pleaded,  that  before  and  at  the  time  when, 
etc.,  he  was  possessed  of  a  certain  dwelling  house,  situate,  etc.,  which 
he  then  inhabited  with  his  family;  and  that  the  said  Honour,  before 
the  said  time  when,  etc.,  entered  into  the  said  house,  and  continued 
therein,  without  the  licence  and  against  the  will  of  him  the  defendant; 
and  then  and  there  made  a  great  noise  and  disturbance  therein,  and 
disturbed  the  defendant  and  his  family  in  the  said  house;  whereupon 
the  defendant  requested  she  would  cease  her  said  disturbance,  and 
quietly  depart  out  of  the  said  house,  which  she  refused  to  do ;  where- 
upon the  defendant  gently  laid  his  hands  upon  her,  to  turn  her  out  of 
the  said  house,  as  it  was  lawful  for  him  to  do,  which  is  the  same  as- 
saulting, beating,  bruising,  wounding,  ill-treating,  and  striking  the  said 
Honour  divers  and  repeated  blows  and  strokes,  and  knocking  her 
down  upon  the  ground,  whereof  the  plaintiffs  have  above  complained 
against  him ;  without  this,  that  the  defendant  is  guilty  of  the  premises 
aforesaid,  at  the  place  aforesaid,  or  elsewhere,  out  of  the  said  house 
at,  etc.,  and  this  he  is  ready  to  verify;    wherefore,  etc. 

To  this  plea  the  plaintiff  demurred ;  and  assigned  for  causes,  that 
it  alleges  no  sufficient  justification  or  excuse,  nor  any  denial  of  the 

4  2  Part  of  the  opinion  is  omitted.    The  statement  of  the  case  is  abridged. 


218  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

battery,  bruising,  wounding  and  ill-treating  of  the  said  Honour,  and 
striking  the  said  blows  and  strokes,  and  knocking  down  of  the  said 
Honour  upon  the  ground,  in  the  introductory  part  of  the  said  plea 
mentioned. 

Marryat  was  to  have  argued  in  support  of  the  demurrer,  and  Espi- 
nasse  against  it;   but 

The  Court  said  the  case  was  too  plain  for  argument :  that  though 
a  plea  of  molliter  manus  imposuit  would  justify  what  the  law  con- 
siders as  an  assault,  such  as  might  be  necessary  to  have  put  the  party 
out  of  the  house,  without  outrage  and  violence,  yet  it  never  was  con- 
sidered as  any  answer  to  a  charge,  such  as  is  contained  in  the  dec- 
laration, of  beating,  wounding  and  knocking  the  party  down ;  and 
they  adverted  to  the  case  of  Collins  v.  Renison,  Sayer,  138,  where,  to 
an  action  of  trespass,  alleging  that  the  defendant  overturned  a  ladder 
on  which  the  plaintiff  was  standing,  and  threw  him  from  it  on  the 
ground,  the  defendant  pleaded,  that  he  was  possessed  of  a  garden ; 
and  that  the  plaintiff,  against  his  will,  set  up  a  ladder  there,  and  went 
up  the  ladder,  in  order  to  nail  a  board  to  the  plaintiff's  house :  that 
the  defendant  forbade  him,  and  requested  him  to  come  down;  anrl 
that  the  plaintiff'  persisting  in  nailing  the  board,  the  defendant  gently 
shook  the  ladder,  and  gently  overturned  it  and  gently  threw  the  plain- 
tiff from  it  on  the  ground,  doing  him  as  little  damage  as  possible ; 
which  was  holden  bad_  on  demurrer. 

The  defendant  had  leave  to  amend. 


JOHNSON  V.  PATTERSON. 
(Supreirie  Court  of  Errors  of  Connecticut,  1840.    14  Conn.  1.  .S.o  Am.  Dec.  96.) 

The  original  action  was  trespass  for  killing  and  destroying  ten  hens 
and  chickens,  the  property  of  the  plaintiff.  There  was  also  a  special 
count  in  case,  for  the  same  injury. 

On  the  trial  before  the  county  court,  the  plaintiff  oft'ered  evidence 
to  prove,  and  claimed  to  have  proved,  the  allegations  in  his  declara- 
tion. The  defendant  claimed  to  have  proved,  by  proper  evidence  in- 
troduced for  that  purpose,  that  he  had  been,  for  a  long  time,  trespass- 
ed upon,  by  the  plaintiff's  fowls  coming  upon  his  land  and  destroying 
the  seeds  therein  planted,  and  the  vegetation  thereon  growing;  and 
that  to  prevent  a  repetition  and  continuation  of  these  trespasses,  he 
prepared  Indian  meal  mixed  with  arsenic,  and  scattered  it  upon  his 
land,  having  first  informed  the  plaintiff,  that  such  a  preparation  would 
be  placed  there,  and  that  the  plaintiff'  must  confine  his  fowls,  or  in 
some  other. way  prevent  them  from  trespassing  upon  his  land  again, 
otherwise  they  certainly  would  be  poisoned ;  that  after  such  notice, 
the  meal  so  prepared  was  immediately  scattered  on  the  defendant's 
land ;  and  the  plaintiff  still  neglecting  to  confine  his  fowls,  or  to  pre- 
vent  their   coming   upon    the   defendant's   premises,   they   trespassed 


Ch.  1)  TRESPASSES  219 

thereon,  and  while  so  trespassing  ate  the  Indian  meal  so  prepared, 
and  some  of  them  thereafter  died  in  consequence  of  it;  which,  the 
defendant  claimed,  was  the  same  injury  for  which  the  plaintiff  sought 
to  recover  damages.  And  the  defendant  claimed,  that  if  these  facts 
were  satisfactorily  proved,  he  was  justified;  and  that  the  court  should 
so  charge  the  jury.  The  defendant  further  claimed,  that  he  might 
lawfully  scatter  poisoned  meal  upon  his  own  premises,  without  any 
notice  to  the  plaintiff. 

The  court  charged  the  jury,  that  unless  the  defendant  had  given 
full  and  ample  notice  to  the  plaintiff',  after  the  poisoned  meal  had  been 
laid,  the  defendant  could  not  be  justified;  and  that  no  previous  notice 
of  his  intention  so  to  prepare  and  leave  the  poisoned  meal,  could  be 
sufficient;  and  refused  to  charge  the  jury,  that  the  defendant  had  a 
right  to  scatter  it,  without  notice. 

The  jury  returned  a  verdict  for  the  plaintiff".  The  defendant  filed 
a  bill  of  exceptions  to  the  charge,  and  thereupon  brought  a  writ  of 
error  in  the  superior  court ;  which  was  reserved  for  the  consideration 
and  advice  of  this  court. 

Sher:iiax,  J.  This  is  not  a  case  in  which  the  destruction  of  the 
plaintiff's  property  resulted  from  acts  done  by  the  defendant,  in  the 
ordinary  use  of  his  own,  without  any  intention  to  do  the  injury  com- 
plained; as  in  Blythe  v.  Topham,  Cro.  Jac.  158,  where  a  stray  horse 
fell  into  a  pit  made  by  the  defendant  in  the  common;  or  as  in  Bush 
V.  Brainard,  1  Cow.  (N.  Y.)  78,  13  Am.  Dec.  513,  where  the  cow  of 
the  plaintiff,  trespassing  on  the  defendant's  land,  was  killed,  by  drink- 
ing maple  syrup  in  the  defendant's  sugar  works.  In  this  case,  the 
defendant  scattered  the  poison  in  his  enclosure  with  intent  to  kill  the 
plaintiff's  fowls,  if  they  should  again  trespass  on  the  place.  Being 
of  opinion  that  the  notice  given  by  the  defendant  immediately  before 
the  poisonous  article  was  put  on  the  land,  was  sufficient,  the  only 
important  question  is,  whether  the  defendant,  having  given  such  no- 
tice, offered  in  evidence  a  sufficient  justification.  If  the  jury  have 
found  the  verdict,  which  they  ought  ultimately  to  give,  the  final  judg- 
ment must  be  affirmed,  although  the  court  erred  in  regard  to  the  suf- 
ficiency of  the  notice. 

By  the  settled  principles  of  the  English  law,  the  degree  of  force, 
which  may  be  employed  in  defending  one's  person  or  property,  when 
present,  is  well  defined,  and  admits  of  no  controversy.  It  is  entire- 
ly and  exclusively  defensive.  If  a  man  makes  an  assault  on  the  per- 
son of  another ;  or  enters  his  house  and  refuses  to  go  out,  when  or- 
dered ;  or  enters  on  his  land ;  or  in  any  way  attempts  a  mere  trespass 
on  his  property  real  or  personal,  by  force;  so  much  force  as  is  neces- 
sary to  repel  or  prevent  injury,  or  remove  the  trespasser,  may  be 
employed.  There  is  no  doubt,  that  if  A.  is  trespassing  on  the  land  of 
B.,  the  latter,  when  present,  by  himself  or  his  servants,  may,  after 
notice  to  depart,  use  such  reasonable  force  as  is  necessary  for  his  re- 
moval.   He  may  use  like  force  to  expel  another's  beast  from  his  land, 


220  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

or  he  may  seize  and  impound  it.  But  he  has  no  right,  by  the  English 
law  or  our  own,  when  present,  in  such  a  case,  to  destroy  life,  or  in- 
flict permanent  injury,  or  use  greater  force  than  is  necessary  for  re- 
moval or  prevention.  This  is  admitted.  The  right  to  kill  a  bull  or 
other  furious  beast  from  which  one's  person  is  in  present  danger;  or 
a  dog  chasing  sheep  or  other  animals  of  property,  so  that  they  are 
exposed  to  harm ;  or  a  dog  seen  at  large,  which  is  accustomed  to  bite 
mankind ;   is  an  exception  to  this  rule.     *     *     * 

We  cannot  justify  the  defendant  in  committing  the  comparatively 
small  trespass  for  which  the  plaintiff  complains,  upon  any  principles 
which  have  been  admitted  in  this  state,  or  which  we  can  reconcile  with 
those  just  provisions  of  the  English  common  law,  which  we  have  al- 
ready incorporated  into  our  own,  in  regard  to  the  means  which  may 
be  used  to  prevent  a  simple  trespass.  The  case  does  not  involve  the 
inquiry,  what  may  lawfully  be  done  to  prevent  a  burglary  or  other 
felony.  Cases  of  that  character  are  governed  by  other  and  well  set- 
tled rules. 

We  advise  that  the  judgment  of  the  county  court  be  affirmed.*^ 


McCHESNEY  v.  WILSON. 

(Supreme  Court  of  Michigan,  1903.    132  Mich.  252,  93  N.  W.  627,  1  Ann. 

Gas.  191.) 

[This  case  is  given,  ante,  page  200.] 


SKINNER  v.  WILDER. 

(Supreme  Court  of  Vermont,  1S65.     38  Vt.  115,  83  Am.  Dec.  G45.) 

Trespass  quare  clausum  fregit,  with  a  count  in  trover.     Plea,  the 

general  issue.     Upon  the  plaintiff's  offer  to  prove  the  facts  set  forth 

in  the  opinion  the  court  held  pro  forma  that  if  these  facts  were  proved 

^  the  plaintiff  would  not  be  entitled  to  recover,  and  directed  a  verdict 

for  the  defendant,  to  which  the  plaintiff  excepted. 

Pdck,  J.  In  this  case,  it  appears,  that  the  plaintiff  planted  or  set 
apple  trees  on  his  own  land  six  feet  from  the  division  line  between 
his  land  and  the  defendant's  land;  the  trees  grew  until  the  roots  ex- 
tended into  and  the  branches  overhung  the  defendant's  land.     The 

•*8  Part  of  the  opinion  is  omitted. 

Accord:  James  v.  Tindall  (1913,  Del.  Super.)  88  Atl.  1003:  D.  shot  and 
killed  sixteen  turkeys  belonging  to  P.,  which  at  the  time  were  in  D.'s  field.  D. 
claimed  that  the  killing  of  the  turkeys  was  justified,  because  they  were  on 
V  his  property  destroying  grain.  But,  said  Kioe,  J.,  delivering  the  opinion :  "We 
think  it  was  neither  necessary  nor  justifiable  to  kill  the  turkeys  in  the  pro- 
tection of  grain.  The  defendant  might  have  impounded  the  turkeys  or  brought 
an  action  for  damages  to  his  property,  if  any,  caused  by  the  fowls." 


Ch.  1)  TRESPASSES  221 

question  is,  whether  the  defendant  is  liable  either  in  trespass  on  the 
freehold  or  in  trover  for  picking,  carrying  away,  and  converting  to 
his  own  use  the  apples  growing  on  the  branches  overhanging  his  own 
land.  Each  party  claims  to  be  the  sole  owner  of  the  fruit  in  ques- 
tion ;  the  plaintiff  upon  the  ground  that  he  is  the  owner  of  the  tree ; 
the  defendant  upon  the  ground  that  the  branches  and  the  fruit  there- 
on overhung  his  land,  and  that  in  virtue  of  his  ownership  of  his  land 
he  owns  everything  above  it. 

It  is  true  that  whoever  owns  land  owns  above  it  to  an  indefinite 
height, — that  is,  he  owns  the  space  above,  or  rather  has  the  right  to 
appropriate  it  to  his  use,  so  that  no  one  can  lawfully  obstruct  it  to 
his  prejudice.  But  it  is  not  true  in  all  cases  that  the  owner  of  land 
owns  everything  upon  or  above  it,  though  placed  there  wrongfully 
by  another.  Certainly,  in  case  one's  personal  property  is  wrongfully 
placed  upon  the  land  of  another,  the  property  in  the  thing  is  not  there- 
by changed.  The  owner  of  the  soil  has  his  remedy  by  action  for 
damages,  and  he  may  remove  it ;  but  he  does  not  become  the  owner. 
If  a  man  build  a  house  on  his  own  land,  with  the  eaves  and  windows 
above  the  surface  of  the  ground  projecting  over  the  land  of  the  ad- 
joining proprietor,  he  is  liable  to  an  action  for  damages,  and  generally, 
at  least  under  some  circumstances,  the  adjoining  proprietor  may  re- 
move the  obstruction  as  a  nuisance ;  but  the  material  removed  does 
not  become  his  property.  In  order  to  justify  the  act  of  removal  in 
such  a  case,  he  must  allege  that  the  obstruction  was  wrongfully  en- 
cumbering his  premises,  and  that  he  therefore  removed  it,  doing  no 
unnecessary  damage.  If  it  appear  that  he  unnecessarily  destroyed  it, 
or  appropriated  it  to  his  own  use,  the  justification  fails.  This  shows 
that  the  right  of  removal  does  not  depend  on  ownership,  but  on  his 
right  to  protect  his  own  premises  from  invasion.  The  defendant  there- 
fore cannot  be  regarded  as  the  owner  of  the  apples  merely  because 
the  branches  on  which  they  grew  were  wrongfully  encumbering  his 
ground.     *     *     * 

Judgment  reversed,  and  new  trial  granted.** 


TURNER  V.  MEYMOTT. 

(Court  of  Common  Pleas,  1823.    1  Bing.  158,  130  Reprint  64,  25  R.  R.  612.) 

Trespass  for  breaking  and  entering  plaintiff's  house.  At  the  trial 
before  the  Lord  Chief  Baron,  it  appeared  that  the  plaintiff  had  been 
tenant  of  the  house  to  the  defendant,  from  week  to  week ;  that  he 
had  received  a  regular  notice  to  quit,  but  omitted  to  deliver  up  pos- 

4  4  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point. 

Compare  Dul)ois  v.  Beaver  (1802)  25  N.  Y.  123.  82  Am.  Dec.  .'526  (action  in 
trespass  for  cutting  down  a  tree  which  stood  in  the  line  of  the  division  fence 
between  the  plaintiff's  and  the  defendant's  land). 


222  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

session,  whereupon  the  defendant,  at  a  time  when  nobody  was  in 
the  house,  broke  open  the  door  with  a  crow-bar,  and  other  forcible 
apphcations,  and  resumed  possession.  Some  httle  furniture  was  still 
in  the  house.  The  Chief  Baron  having  said  that  the  law  would  not 
allow  the  defendant  thus  forcibly  to  reinstate  himself,  the  jury  found 
a  verdict  for  the  plaintiff,   whereupon, 

Taddy,  Serjt.,  obtained  a  rule  nisi  for  a  new  trial,  and 
Pell,  Serjt.,  now  shewed  cause  against  the  rule:  The  question  is, 
whether  when  a  tenant  refuses  to  deliver  possession  after  a  regular 
notice  to  quit,  the  landlord  may  make  a  forcible  re-entry :  but  it  can- 
not be  permitted  he  should  take  the  law  into  his  own  hands,  and  do 
that  by  violence  which  is  usually  accomplished  by  an  action  of  eject- 
ment. It  is  contrary  to  the  first  principles  of  law,  that  he  should  be- 
come judge  in  his  own  cause,  and  substitute  his  own  strength  for  the 
ordinary  civil  process.  If  there  had  been  resistance,  and  death  had 
ensued,  the  crime  of  murder  would  have  been  committed;  and  it 
makes  no  difference  that  nobody  was  in  the  house,  for  the  defendant 
could  not  ascertain  that  till  he  entered,  and  the  plaintiff  might  have 
come  up  while  the  violence  was  in  progress.  Some  furniture  being 
in  the  house,  this  was  not  a  case  of  vacant  possession.  The  statute 
of  11  Geo.  II.,  which  gives  the  landlord  double  value  where  the  ten- 
ant holds  over,  shews  what  is  the  appropriate  remedy  in  such  cases ; 
but  that  statute  would  be  useless  if  the  landlord  might  thus  take  the 
law  into  his  own  hands.  It  might  be  urged  that  if  the  landlord  had 
proceeded  irregularly  he  would  be  liable  in  an  indictm.ejit  for  a  forci- 
ble entry,  but  his  subsequent  liability  would  not  justify  the  previous 
wrong.  In  Taunton  v.  Costar  ^^  the  entry  made  by  the  landlord's  put- 
ting his  cattle  on  the  ground  was  entirely  peaceable,  and  to  that  there 
could  be  no  objection;  so  that  Lord  Kenyon's  observation,  "that  if  he 
dispossessed  the  tenant  with  a  strong  hand,  he  would  be  hable  for  a 
forcible  entry,  but  there  could  be  no  doubt  of  his  right  to  enter  on 
the  land  at  the  expiration  of  the  term,"  was  uncalled  for  by  the  case 
before  him,  and  leads  to  the  absurdity  that,  in  certain  cases,  a  land- 
lord may  enter,  and  yet  he  shall  be  punished  for  the  entry. 

Dallas,  Ch.  J.  The  high  respect  which  I  entertain  for  my  Lord 
Chief  Baron  has  alone  made  me  hesitate  a  single  moment,  and  even 
now,  perhaps,  as  the  cause  is  to  go  down  to  be  tried  again,  I  ought 
not  to  express  an  opinion.  The  question  is,  whether  a  landlord  has 
a  right  to  enter  in  the  manner  the  defendant  did  under  the  circum- 
stances of  this  case,  in  which  the  tenant  held  over  after  his  right  to 
possession  had  ceased,  and  the  landlord's  right  to  enter  had  accrued. 
It  must  be  admitted  he  had  a  right  to  take  possession  in  some  way; 
the  case  of  Taunton  v.  Costar*"  is  in  point  to  shew  that  he  might 

*6in  Taunton  v.  Costar  (1797)  7  T.  R.  431,  4  R.  R.  481,  it  appeared  that  a 
tenant  from  year  to  year,  wlio  was  holding  over  after  proi>er  notice  to  quit, 
bad  distrained  as  damage  feasant  cortiiin  cattle  which  his  landlord,  after  the 
expiration  of  the  term,  had  peaceably  put  upon  the  premises. 


Ch.  1)  TRESPASSES  223 

enter  peaceably,  and  that  no  ejectment  was  necessary.  If  he  has  used 
force,  that  is  an  offence  of  itself ;  but  an  offence  against  the  public 
for  which,  if  he  has  done  wrong,  he  may  be  indicted.*" 

BuRROUGH,  J.  I  was  once  concerned  at  the  Cockpit  in  a  case  sim- 
ilar to  the  present,  where  I  used  the  same  arguments  as  have  now 
been  urged  by  my  brother  Pell,  but  Lord  Kenyon  and  Lord  Alvanley, 
who  were  there,  entertained  no  doubt,  and  said  the  landlord  might 
enter.    The  rule  for  a  new  trial  in  this  case  must  be  made  absolute.*^ 

46  The  allusion  is  to  the  statute  of  5  Rich.  II,  c.  7  (1381),  the  terms  of  which 
are  given  ante. 

4-  In  Beddall  v.  Maitland  (ISSl)  17  Ch.  Div.  174,  ISS.  Fry.  J.,  remarks  as 
follows  of  this  act  of  13S1  (5  Rich.  II.,  c.  7),  and  its  effect  in  England:  "This 
statute  creates  one  of  the  great  differences  which  exist  in  our  law  between 
the  being  in  possession  and  the  being  out  of  possession  of  land,  and  which  gave 
rise  to  the  old  saying  that  posses^^ion  is  nine  points  of  the  law.  The  effect 
of  the  statute  is  this,  that  when  a  man  is  in  possession  he  may  use  force  to 
keep  out  a  trespasser;  hut,  if  a  trespasser  has  gained  possession,  the  right- 
ful owner  cannot  use  force  to  put  him  out,  but  must  appeal  to  the  law  for 
assistance.  And  the  result  of  the  cases  appears  to  me  to  be  this,  that,  inas- 
much as  the  possession  of  the  defendant  was  unlawful,  he  can  recover  no 
damages  for  the  forcible  entry  of  the  plaintiff.  He  can  recover  no  damages 
for  the  entry,  because  the  possession  was  not  legally  his,  and  he  can  recover 
none  for  force  used  in  the  entry  because,  though  the  statute  of  Rich.  II. 
creates  a  crime,  it  gives  no  civil  remedy.  But.  in  respect  of  independent  wrong- 
ful acts  which  are  done  in  the  course  of  or  after  the  forcible  entry,  a  right 
of  action  does  arise,  because  the  person  doing  them  cannot  allege  that  the  acts 
were  lawful,  unless  justified  by  a  lawful  entry ;  and  he  cannot  plead  that  he 
has  a  lawful  possession.  This,  as  it  appears  to  me,  is  the  result  of  the  cases. 
The  leading  authority  on  the  subject  is  Newton  v.  Harland  (1840)  1  Scott, 
X.  R.  474,  a  case  in  which  a  great  difference  of  opinion  was  evinced  between 
the  learned  Judges  before  whom  it  came.  It  was  tried  three  times,  first 
lief  ore  Baron  Parke,  secondly  before  Baron  Alderson,  and  thirdly  before  Mr. 
Justice  Coltman,  and  came  three  times  before  the  Court  of  Common  Pleas  in 
Banc,  and  it  must,  in  my  judgment,  be  taken  as  having  settled  the  law  on  the 
subject.  The  action  was  brought  to  recover  damages  for  an  assault  committed 
on  the  plaintiffs  wife  in  the  course  of  a  forcible  entry  by  the  defendant  into 
some  apartments  which  had  been  occupied  by  the  plaintiff  as  tenant  to  the 
defendant.  The  plaintiff  remained  in  the  apartments  after  the  expiration  of 
his  term,  and  the  defendant  entered  by  force  and  turned  out  the  plaintift"s 
wife  and  family,  and  in  so  doing  assaulted  the  wife.  The  defendant  pleaded 
that  the  acts  were  done  in  defence  of  his  iX)Ssession  of  the  house,  and  the 
Court  of  Common  Pleas  held,  contrary  to<  the  opinions  of  Baron  Parke  and 
Baron  Alderson,  that  the  defence  failed,  because  the  defendant's  entry  was 
unlawful.  On  the  other  hand,  when  the  cause  of  action  alleged  is  simply  the 
eviction,  no  damages  can  be  recovered.  That  is  the  result  of  Pollen  v.  I3rewer 
(1859)  7  C.  B.  (N.  S.)  371,  and  it  is  also  clear  from  other  cases.  No  doubt,  in 
Harvey  v.  Brydges  (1845)  14  M.  &  W.  437,  Baron  Parke  and  Baron  Alderson 
expressed  their  disapproval  of  Newton  v.  Harland  (1840)  1  Scott.  N.  R.  474, 
but  they  were  the  Judges  who  had  tried  that  case,  and  whose  opinions  had 
been  overruled  by  the  Court  in  Banc.  *  *  *  i  think  that  none  of  those 
cases  in  any  way  countervail  Newton  v.  Harland  (1840)  1  Scott,  N.  R.  474, 
which  I  take  to  have  established  this,  that  there  is  a  good  cause  of  action 
whenever  in  the  course  of  a  forcible  entry  there  has  been  committed  by  the 
Ijerson  who  has  entered  forcibly  an  independent  wrong,  some  act  which  can 
be  justified  only  if  he  was  in  lawful  possession.  I  come,  therefore,  to  the 
conclusion  that,  in  respect  of  his  claim  for  damages  for  the  forcible  entry 
and  eviction,  the  defendant  cannot  succeed,  but  that,  in  respect  of  his  claim 
for  damages  for  the  injury  done  to  his  furniture,  which  the  plaintiff  could 
only  justify  by  a  lawful  possession,  the  defendant  is  entitled  to  succeed."' 

The  facts  in  Beddall  v.  Maitland  which  are  matei'ial  to  the  question  may  be 


224  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 


ALLEN  V.  KEILY. 

(Supreme  Court  of  Rhode  Island,  1892.     17  R.  I.  731,  24  Atl.  776,  33  Am. 

St.  Rep.  905,  16  L.  R.  A.  798.) 

Defendant's  petition  for  a  new  trial. 

TiLLiNGHAST.  J.  The  only  question  raised  by  the  exceptions  taken 
to  the  rulings  of  the  court  in  this  case  is,  whether  a  landlord  can  forci- 
bly eject  a  tenant  from  his  premises,  after  the  expiration  of  the 
tenancy,  if  the  tenant  holds  possession,  in  good  faith,  under  a  color 
and  reasonable  claim  of  right.  The  defendant  requested  the  court 
to  charge  the  jury  as  follows,  viz. : 

First.  "If  the  landlord  enter  and  expel  the  occupant  who  wrongly  holds  a 
tenement,  but  uses  no  more  force  than  is  reasonably  necessary  to  accomplish 
this,  he  will  not  be  liable  to  an  action  of  assault  and  battery,  although,  in 
order  to  effect  such  expulsion  and  removal,  it  becomes  necessary  to  use  so 
much  force  and  violence  as  to  subject  him  to  an  indictment  at  common  law 
for  a  breach  of  the  peace,  or  under  the  statute  for  making  forcible  entry." 

Second.  "If  the  plaintitf  was  in  possession,  but  the  rent  was  due  more  than 
fifteen  days  after  demand,  the  plaintiff  was  a  mere  trespasser  and  could  be 
expelled  by  the  defendant." 

These  requests  were  refused  by  the  court,  and  the  following  was 
charged  in  lieu  thereof,  viz. :  "One  in  possession  under  a  reasonable 
claim  and  color  of  right,  honestly  believing  it,  has  a  right  to  main- 
tain his  possession,  and  no  personal  violence  can  be  used  to  expel  him. 
*  *  *  If  Mrs.  Baldwin  was  in  possession  under  a  claim  of  right, 
the  defendant  had  no  right  to  use  any  degree  of  personal  force  to 
expel  plaintiff." 

In  explanation  of  its  charge,  and  refusal  to  charge  as  requested,  the 
court  stated  the  law  applicable  to  the  case  on  trial  to  be  as  follows, 
viz. :  "That  an  owner  has  the  right  to  put  an  undoubted  trespasser  oft" 
his  premises.     But  if  one  is  out  of  possession  of  property  held  by 

summarized  thus:  P.'s  lease  of  D.'s  house  had  expired.  D.  had  demanded 
possession,  but  P.  still  continued  to  occupy  the  house.  In  this  state  of  things, 
D.,  accompanied  by  several  men,  came  to  the  house  to  douuind  immediate 
possession.  He  was  admitted  without  resistance  at  the  front  door  and  told 
P.  what  he  had  come  for.  After  some  conversation  they  went  out  of  the  house 
together  to  loolv  at  the  stock  in  the  nursery.  Wlien  they  were  outside,  P. 
suddenly  ran  back  into  the  house,  and  locked  the  door,  and  refused  to  allow 
D.  to  re-enter.  D.,  with  the  assistance  of  his  men,  forcibly  broke  down  the 
back  door.  No  further  resistance  was  offered.  D.  and  his  men  turned  P.  and 
his  family  out,  and  also  put  his  furniture  out  of  the  house.  P.  claimed  a 
right  to  recover  damages  for  the  forcible  entry  and  eviction  and  also  a  right 
to  recover  for  the  damage  done  to  the  furniture. 

See  also,  as  to  the  Englisli  doctrine,  18  llaisbury's  Laws  of  England,  557- 
558  (1911):  "Where  the  tenant  fails  to  deliver  up  possession,  the  landh)rd 
is  entitled  to  re-enter  and  take  possession,  subject  only  to  certain  statutory 
restrictions.  Thus  he  can  re-enter  where  the  tenant  has  abandoned  possession, 
or  where  he  can  ellect  the  entry  peaceably;  and  even  if  he  enters  forcibly, 
and  is  thus  liable  to  criminal  proceedings  under  the  statutes,  yet  the  tenant  has 
no  civil  remedy  against  him  in  respect  of  the  entry,  though  the  tenant  can 
recover  damages  for  injury  to  himself,  or  his  family,  or  his  property  in  the 
<'ourse  of  the  entry.  If,  however,  the  entry  is  peaceable,  the  landlord  is  not 
liable  for  damage  to  goods  which  are  unlawfully  ou  the  premises." 


Ch.  1)  TRESPASSES  225 

another  under  a  color  and  reasonable  claim  of  right,  he  has  no  right 
to  use  personal  violence  to  regain  possession.  Hence,  if  Mrs.  Bald- 
win was  in  possession  under  a  fair  claim  of  right  to  remain  a  tenant, 
or  under  her  husband's  tenancy,  on  the  ground  that  the  defendant 
had  money  belonging  to  one  of  them  in  his  possession,  more  than  the 
amount  of  rent  due,  on  account  of  which  her  occupation  had  been 
recognized,  he  had  no  right  to  use  personal  violence  to  eject  her." 

We  think  this  was  error.  The  question  at  issue,  in  so  far  as  the 
tenancy  in  question  was  concerned,  was,  whether  or  not  it  had  been 
terminated.  If  it  had,  the  plaintiff  was  a  mere  trespasser,  and  the 
defendant  had  the  right  to  use  so  much  force  as  was  reasonably  neces- 
sary to  expel  her.  If  the  tenancy  had  not  been  terminated,  she  was 
not  a  trespasser,  and  the  defendant  had  no  right  to  interfere  with 
her.  But  the  question  as  to  whether  Mrs.  Baldwin  was  entitled  to  pos- 
session  was  a  mere  question  of  right,  depending  upon  the  fact  as  to 
whether  the  tenancy  had  been  legally  terminated,  and  not  upon  the 
belief  of  the  tenant  as  to  her  right  to  remain.  That  is  to  say,  the  mere 
fact  that  a  person  honestly  believes  that  he  is  lawfully  in  possession 
of  a  tenement  or  messuage  does  not  prevent  him  from  being  a  tres- 
passer, and  liable  to  be  dealt  with  as  such.  Possession  of  real  estate 
is  either  rightful  or  wrongful.  And  the  right  to  the  possession  there- 
of, like  the  right  of  ownership,  is  to  be  determined  solely  by  the  evi- 
dence submitted,  and  the  law  applicable  thereto,  and  is  not  dependent 
upon,  or  in  any  degree  affected  by,  the  belief  of  the  claimant  as  to 
such  right.  If  this  were  not  so,  it  would  be  in  the  power  of  any  one 
in  the  wrongful  possession  of  real  estate,  who  believes  his  possession 
to  be  rightful,  to  compel  the  person  who  is  legally  entitled  to  the  pos- 
session thereof  to  resort  to  an  action  at  law  to  recover  the  same,  thus 
practically  nullifying  the  right  which  the  law  confers  upon  the  owner 
to  take  forcible  possession  by  expelling  the  trespasser. 

Nor  do  we  see  that  the  distinction  made  by  the  court,  between 
"an  undoubted  trespasser"  and  one  who  holds  possession  "under  a 
color  and  reasonable  claim  of  right,"  changes  the  legal  aspect  of  the 
case.  Mrs.  Baldwin  was  either  a  trespasser  or  she  was  not.  If  she 
was,  neither  her  belief  that  she  was  not,  nor  the  fact  that  she  held 
"under  a  color  and  reasonable  claim  of  right,"  was  of  any  importance. 
The  only  question  of  importance  concerning  this  branch  of  the  case 
was,  whether  she  was  in  fact  a  trespasser.  And  this  was  a  question 
to  be  determined  by  the  jury  upon  all  the  proof  bearing  upon  that 
point. 

The  doctrine  laid  down  by  this  court  in  Souter  v.  Codman,  14  R. 
I.  119,  51  Am.  Rep.  364,  and  subsequently  followed  in  Freeman  v. 
Wilson,  16  R.  I.  524,  17  Atl.  921,  is  in  harmony  with  the  current  of 
both  the  American  and  English  decisions  as  to  the  right  of  a  land- 
lord to  use  physical  force  in  expelling  a  tenant  whose  term  has  ex- 
Hepb.Torts — 15 


226  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

pired;  and  we  see  no  reason  to  overrule  or  modify  the  opinions  there- 
in expressed.  See,  also,  2  Taylor's  Landlord  and  Tenant  (8th  Ed.) 
§§  531,  532,  and  cases  cited. 

We  are  therefore  of  the  opinion  that  the  court  erred  in  refusing  the 
defendant's  requests  to  charge,  and  in  charging  to  the  contrary,  as 
above  set  forth. 

Petition  granted. 

BLISS  V.  BANGE. 
(Supreme  Court  of  Errors  of  Connecticut,  1S26.     6  Conn.  78.) 

This  was  an  action  of  trespass  quare  clausum  fregit,  brought  on 
the  statute  directing  proceedings  against  forcible  entry  and  detainer, 
demanding  treble  damages. 

The  declaration  stated,  that  on  the  9th  of  December,  1823,  the  plain- 
tiff was  in  the  actual  and  peaceable  possession  of  the  locus  in  quo, 
when  the  defendant,  with  force  and  strong  hand,  entered  upon  the 
same,  and  broke  open  divers  doors  of  the  plaintiff's  barn  thereon 
standing,  and  broke  to  pieces  divers  locks,  staples  and  hinges  of  said 
doors,  and  ejected  the  plaintiff,  and  kept  him  from  the  possession,  use 
and  occupation  of  the  premises,  with  other  enormities ;  and  that  the 
plaintiff,  on  the  same  day,  pursuant  to  the  statute,  prayed  out  a  writ 
of  forcible  entry  and  detainer  against  the  defendant,  to  recover  pos- 
session of  the  premises ;  and  that  such  writ  being  legally  served  and 
returned,  a  jury,  legally  empannelled,  found,  by  their  verdict,  that 
the  defendant  did,  by  force  and  strong  hand,  enter  upon  the  premises, 
and  detain  the  same,  which  verdict  was  accepted  by  the  court,  who 
thereupon  rendered  judgment  of  restitution  of  the  premises.  The 
defendant  in  his  plea,  admitting  that  he  had  entered  upon  the  premises, 
and  done  the  acts  complained  of,  attempted  to  justify  such  entry  and 
the  commission  of  such  acts,  by  command,  and  as  the  servant  of  Alice 
Lawrence,  in  whom  the  freehold  of  the  premises  then  was.  This 
plea  was  traversed  by  the  plaintiff;  and  the  jury  found  the  facts  al- 
leged in  it  to  be  true.  The  plaintiff  then  filed  his  motion,  that  judg- 
ment might  be  rendered  in  his  favor  veredicto  non  obstante ;  and  the 
question  arising  on  such  motion,  was  reserved  for  the  advice  of  this 
court. 

Daggett,  J.  There  can  be  no  doubt  but  that  this  motion  ought  to 
prevail,  if  an  action  of  trespass  can  be  maintained,  under  the  statute, 
where  the  plaintiff,  being  in  possession,  has  been  forcibly  ejected  from 
lands  or  tenements,  by  the  true  owner :  because  enough  is  admitted, 
on  that  supposition  by  this  plea,  to  shew  a  clear  cause  of  action. 
Does,  then,  the  statute  "directing  proceedings  against  forcible  entry 
and  detainer,"  by  the  fifth  section,  give  the  plaintiff'  an  action  of  tres- 
pass? 

It  is  urged,  by  the  counsel  for  the  defendant,  that  the  English  stat- 
ute, and  that  of  the  state  of  New  York,  are  similar  to  that  of  Con- 


Ch.  1)  TRESPASSES  227 

necticut;  and  that  their  courts  and  commentators  have  established 
the  contrary  doctrine,  declaring,  that  when  it  appears  on  trial,  that 
the  plaintiff  had  no  title,  an  action  of  trespass  cannot  be  sustained. 
I  decline  an  examination  of  these  positions,  because  in  my  judgment, 
our  statute  is  perfectly  unequivocal.  It  gives  the  action  of  trespass, 
in  so  many  words,  to  the  party  aggrieved ;  and  the  party  aggrieved  is, 
by  irresistible  implication,  the  person  forcibly  ejected.  The  statute 
designedly  excludes  the  examination  and  decision  of  the  question  of 
title,  and,  on  principles  of  public  policy,  prohibits  forcible  entries  and 
detainers,  authorizes  the  process  of  restitution,  and  the  action  of  tres- 
pass. 

I  am  not  at  liberty  to  disobey  a  plain  legislative  enactment  of  an- 
cient date,  and  carefully  revised,  as  late  as  1821,  to  which  there  is  no 
constitutional  objection.  I  would,  therefore,  advise  the  superior  court, 
that  judgment  be  entered  up  for  the  plaintiff;  and  that  damages  be 
assessed  by  that  court. 

The  other  Judges  vrere  of  the  same  opinion. 

Judgment  for  the  plaintiff.*^ 

48  Tlie  arguments  of  counsel  are  omitted.  On  the  owner's  invarfon  of  a 
possession  without  right,  see  19  Cyc.  1132. 

See,  also,  24  Cyc.  1394  et  seq.,  and  Dec.  Dig.  Key-No.  "Landlord  and  Tenant," 
§  277(3).  Compare  Domhoff  v.  Paul  Stier,  Inc.  (1913)  157  App.  Div.  204,  141 
N.  Y.  Supp.  82.5:  "Trespass  is  an  injury  to  possession,  and  action  therefor 
may  be  maintained  by  any  one  in  actual  possession  of  land  (Holmes  v.  Seelv 
flSGS]  19  Wend.  [X.  Y.]  509 ;  Van  Brunt  v.  Schenck  [1814]  11  Johns.  [N.  Y.'] 
377).  and  title  is  unnecessary  (.38  Cyc.  10O4;  Oglesbv  v.  Stodghill  [1857]  23 
Ga.  590;  Price  v.  Brown  [18S6]  101  N.  Y.  669,  670,  5  X.  E.  434).  ^Tiether 
plaintiff  was  a  tenant  or  a  subtenant,  whether  he  was  liable  to  be  dispossessed 
for  holding  over  after  expiration  of  his  term,  or  for  failure  to  pay  rent,  he 
was  in  actual  possession  of  at  least  a  portion  of  the  farm,  and  defendant  had 
no  i-ight  to  regain  possession  of  such  premises  by  force  and  violence.  Bristor 
V.  Burr  (1890)  120  X.  Y.  427,  24  X.  E.  937,  8  L.  R.  A.  710;  Michaels  v. 
Fishel  (1902)  169  X.  Y.  381.  389,  62  X.  E.  42S;  Xorton  v.  Arveruam  Co.  (lS97t 
14  App.  Div.  581,  43  N.  Y.  Supp.  1099."    Per  Burr,  J. 

And  see  Judy  v.  Citizen  (1884)  101  Ind.  IS,  20:  "The  statute  providing  a 
remedy  for  a  forcible  entry  was  designed  to  protect  persons  in  the  actual 
peaceable  possession  of  premises,  under  a  claim  of  right,  from  forcible  evic- 
tion or  unlawful  invasion,  whether  such  claim  might  in  the  end  turn  out 
to  be  well  founded  or  not.  Cooley,  Torts,  323.  Where  a  person  is  thus  in 
actual  peaceable  possession,  and  such  possession  is  forcilily  and  violently  in- 
vaded, even  though  it  be  by  the  owner,  who  in  the  end  has  the  right  of  pos- 
session, such  person  is  entitled  to  the  remedy  provided  by  this  statute.  In 
such  case,  proof  of  actual,  exclusive,  peaceable  possession  under  a  claim  of 
right  will  support  the  'right  to  possession,'  and  entitle  the  person  evicted  to  res- 
titution. 'Presumptively,  a  peaceable  possession  is  always  rightful.'  Cooley, 
Torts,  326.  If  this  is  not  the  proper  construction  of  the  statute,  then  every 
tenant  holding  over,  and  every  other  person  in  actual  possession,  whose  claim 
turns  out  not  to  be  well  founded,  would  be  at  the  mercy  of  the  landlord  or 
other  person  having  the  better  legal  right,  and  might  be  expelled  with  what- 
ever violence  the  owner  might  reasonably  think  fit  to  employ,  thus  substitut- 
ing force  and  violence  in  the  place  of  the  orderly  methods  of  the  law.  To 
prevent  this  was,  as  we  have  seen,  the  very  purpose  for  which  the  forcible 
entry  and  detainer  act  was  first  enacted.  Under  this  statute,  the  possession 
cannot  be  changed  against  the  person  who  actually  has  it,  under  claim  of 
right,  without  the  intervention  of  legal  procedure."    Per  Mitchell,  J. 


228  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

GREELEY  v.  SPRATT. 

(Supreme  Court  of  Florida,  1883.    19  Fla.  645.) 

This  was  a  proceeding  by  Spratt,  under  the  statute  relating  to  for- 
cible entry  and  unlawful  detainer.  The  plaintiff,  praying  for  restitu- 
tion and  damages,  alleged  "that  Jonathan  C.  Greeley  hath  forcibly 
turned  him  out  of  and  unlawfully  and  against  his  consent  withholds 
from  him  the  possession  of  a  certain  room,  to  wit,  the  room  in  the 
three-story  brick  building  situate  in  the  city  of  Jacksonville  in  the 
said  county  in  the  southwest  corner  of  Pine  and  Forsyth  streets  im- 
mediately to  the  right  of  the  staircase  leading  to  the  third  story  of 
said  building." 

Spratt  testified  that  he  took  possession  of  the  room  in  question  about 
the  first  day  of  July,  1880,  as  his  own  property,  to  be  used  as  a  law 
office,  and  put  in  his  office  furniture,  and  was  there  several  weeks ; 
that  he  left  one  evening,  having  locked  the  door ;  that  he  returned, 
the  next  morning,  as  usual,  and  found  his  office  furniture  out,  and  a 
colored  man  there,  and  a  white  man,  Warriner,  taking  the  lock  from 
the  door ;  that  witness  was  denied  permission  to  enter ;  that  when 
he  offered  to  open  the  door  something  was  said  by  persons  inside; 
that  witness  then  said,  "What  does  this  mean?"  and  that  from  the 
words  in  reply,  he  understood  that  he  could  not  come  in  without  using 
force.  The  rental  value  of  the  room  was  about  $15  a  month.  On 
cross-examination  defendant's  coimsel,  to  show  that  Spratt  was  sim- 
ply an  intruder  or  trespasser,  asked  him,  "By  what  means  did  you 
originally  get  possession  of  this  room?"  The  question  was  objected 
to  as  immaterial,  and  the  objection  was  sustained,  to  which  ruling  the 
defendant  excepted.     The  judge  charged  the  jury  thus: 

"The  peaceable  possession  and  the  forcible  entry  are  the  questions  at  issue. 
The  law  forbids  forcible  entry,  whether  the  party  has  title  or  not,  and  there 
can  be  no  inquiry  into  the  title  of  the  property.  If  the  party  entering  has 
right  to  the  possession  he  must  resort  to  the  authority  of  law  to  obtain  such 
possession.  *  *  *  jf  ^^j^g  jury  find  from  the  evidence  that  the  plaintiff, 
on  or  about  the  first  day  of  July,  1880,  was  in  the  possession  of  the  room  de- 
scribed in  the  complaint,  using  the  same  for  his  office,  and  that  while  so  pos- 
sessed the  defendant  Greeley,  by  himself  or  his  agent,  instructed  for  that 
purpose,  and  whether  said  Greeley  was  present  or  not,  by  the  use  of  a  skeleton 
key  opened  the  door  and  entered  said  room  in  the  night  time,  and  in  the  ab- 
sence of  the  plaintiff,  and  turned  out  of  said  room  the  office  furniture  of  said 
room  so  belonging  to  tlie  plaintiff,  and  resisted  the  said  plaintiff"  the  next 
morning  by  closing  the  door  upon  him,  and  kept  possession  of  said  room  until 
and  at  the  exhibition  of  this  complaint,  then  the  jury  must  find  for  the  plain- 
tiff." 

Both  these  charges  were  excepted  to  by  the  defendant.  There  was 
a  verdict  for  plaintiff  in  statutory  form  and  damages  assessed  at  $224. 
From  a  judgment  upon  this  verdict  the  defendant  appeals. 

Randall,  Ch.  J.*®  *  *  *  'pj^g  third  ground  of  error  is  the  rul- 
ing of  the  court  in  excluding  the  question  by  what  means  the  plain- 

*o  The  statement  of  facts  is  abridged.    A  part  of  the  opinion  ip  omitted. 


Ch.  1)  TRESPASSES  229 

tiff  obtained  possession  of  the  room,  which  question  was  asked  for 
the  purpose  of  showing  that  the  plaintiff  was  an  intruder  or  trespasser. 
The  statute  provides  that  no  person  shall  enter  into  lands  or  tene- 
ments but  in  case  where  entry  is  given  by  law,  nor  shall  any  person, 
where  entry  is  given  by  law,  enter  with  a  strong  hand,  but  only  in  a 
peaceable,  easy  and  open  manner.  If  any  person  shall  enter  in  case 
where  entry  is  not  given  by  law,  or  shall  enter  any  lands  or  tenements 
with  strong  hand,  even  in  case  where  entry  is  given  by  law,  the  per- 
son turned  out  or  deprived  of  possession  by  such  unlawful  or  forci- 
ble entry,  by  whatever  right  or  estate  he  held  or  claimed  such  posses- 
sion, shall  at  any  time  within  three  years  be  entitled  to  the  summary 
remedy  provided.  Chap.  1630,  Act  of  1868.  The  complaint  was  made 
under  the  provisions  of  this  act. 

It  is  not  pretended  that  the  plaintiff  was  a  loafer  or  a  vagabond, 
intruding  upon  the  house  or  premises  of  another  in  an  unseemly  or 
offensive  manner,  for  the  testimony  shows  that  the  plaintiff  was  peace- 
ably occupying  the  room  in  question  as  a  law  office  with  his  books 
and  furniture  when  he  was  dispossessed  by  putting  his  property  out 
in  the  night  and  forbidden  to  enter,  and  by  force  prevented  from  en- 
tering. The  statute  contemplates  that  a  party  so  having  peaceable 
possession  shall  not  be  thus  forcibly  ejected  even  w^here  entry  is  given 
by  law ;  that  is,  where  the  right  to  enter  and  possess  has  been  deter- 
mined by  law,  but  only  in  a  ''peaceable  and  open  manner."  The  right 
to  enter,  based  upon  a  paramount  title  or  interest,  cannot  be  tried  in 
this  proceeding.     *     *     *  ^"^ 

50  Compare  Schwinn  v.  Perkins  (1910)  79  N.  J.  Law,  515,  78  Atl.  19,  32  L. 
R.  A.  (N.  S.)  51,  21  Ann.  Cas.  1223  ("There  may  be  possession  without  occu- 
pancy, as  where  a  man's  servant  is  in  the  actual  occupancy  of  the  property, 
holding  possession  for  him,  or  where  a  man  has  temporarily  gone  out  of  his 
house,  leaving  no  one  in  charge,  but  still  having  legal  possession ;  and  there 
may  be  a  case  of  occupancy  without  possession,  as  where,  in  a  man's  absence, 
a  mere  stranger,  visitor,  or  trespasser  goes  into  his  house  without  claim  of 
right."  Per  Swayze,  J.) ;  Hodgldns  v.  Price  (1SS2)  1.32  Mass.  196.  19S  ("The 
process  is  for  the  purpose  of  restoring  one  to  a  possession  which  lias  been 
kept  from  him  by  force.  It  is  not  a  process  against  a  party  who  resists  the 
right  of  possession  by  force,  but  it  is  for  an  interference  with  an  actual  pos- 
session. The  claim  that  this  plaintiff  was  ever  in  possession  of  this  estate  is 
simply  preposterous.  He  had  no  more  possession  of  it  than  he  would  have 
had  of  one  of  the  rooms  of  the  building  if  he  had  gone  into  such  room  and 
said  to  the  occupant  of  it:  'I  have  come  to  take  possession  of  this  room.  Here 
I  am,  in  possession ;  you  will  please  to  go  out.  I  propose  to  hold  this  by  force, 
and  if  you  attempt  to  remove  me  by  force,  then  the  weaker  of  us  on  lieing 
ejected  will  bring  an  action  of  forcible  entry  and  detainer  against  the  other.' 
But  to  make  this  illustration  precisely  analogous,  we  will  say  that  this  party, 
instead  of  calling  in  at  the  place  of  business  when  the  tenant  was  there,  took 
the  opportunity  while  he  had  gone  to  diimer  to  clamber  through  the  transom- 
window  over  his  door,  and  in  the  mode  before  suggested  salute  him  upon  his 
return.  It  would  be  a  disgrace  to  the  law,  and  to  all  concerned  in  the  ad- 
ministration of  it,  to  say  that  a  possession  thus  forcibly  obtained,  before  the 
business  hours  of  the  daj',  from  one  who  is  in  the  actual,  peaceable  occupa- 
tion of  the  premises,  is  to  be  protected  and  restored  by  the  law  when  the 
actual  occupant  shall  resume  his  occupation."     I'er  Lord,  J.). 

Compare,  also.  Page  v.  Dwight  (1897)  170  Mass.  29,  48  N.  E.  850,  39  L.  R. 
A.  418:     D.  was  entitled  to  possession  of  premises  occupied  by  P.  under  pos- 


230  TORTS  THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

That  portion  of  the  charge  excepted  to,  viz. :  "If  the  party  enter- 
ing has  the  right  to  the  possession  he  must  resort  to  the  authority  of 
law  to  obtain  such  possession,"  is  alleged  to  be  erroneous  and  mislead- 
ing, because  it  would  call  upon  the  jury  to  find  for  the  plaintiff  al- 
though defendant  did  not  enter  by  force.  But  the  judge  in  the  same 
paragraph  charged  the  jury  that  "the  peaceable  possession  and  the 
forcible  entry  are  the  questions  at  issue."  The  proposition  of  the 
charge  was  that  if  the  plaintiff  was  in  peaceable  possession  the  de- 
fendant could  not  resort  to  force  to  oust  him  except  by  process  of  law ; 
that  force  without  process  tended  to  a  breach  of  the  peace.  The  stat- 
ute itself  says  that  no  person  shall  invade  the  possession  of  another 
except  where  entry  is  given  by  law,  and  that  in  a  peaceable,  easy  and 
open  manner  and  without  a  strong  hand. 

We  find  no  substantial  objection  to  the  charge  of  the  court.  It 
submitted  the  whole  issue  of  fact  to  the  jury  upon  the  testimony  and 
assumed  nothing  as  to  the  facts. 

There  was  testimony  given  by  defendant  which,  by  itself,  would 
go  to  show  that  he  had  not  directed  Warriner  to  remove  plaintiff  or 
his  goods  from  the  premises.  Yet  Warriner  was  in  defendant's  serv- 
ice at  the  time,  and  he  swears  that  every  thing  he  did  was  by  defend- 
ant's direction.  The  jury  have  decided  as  to  the  facts  and  the  lia- 
bility of  the  defendant  for  the  acts  of  Warriner. 

session  lawfully  obtained  but  unlawfully  withbeld ;  D.  puts  P.  out  by  force. 
Held,  tbat  under  tbe  Massachusetts  statute  (Pub.  St.  c.  175)  P.  cannot  re- 
cover possession.  "Upon  the  whole,"  said  Barker,  J.,  "we  think  that  the  bet- 
ter view  is  that  the  legislature,  after  making  a  fresh  trial  of  the  ancient  sys- 
tem under  which  a  possession  ended  by  force  might  be  restored  without  regard 
to  title  or  right  of  possession,  thought  it  better  to  provide  that  those  only  who 
had  a  right  of  possession  should  be  put  in  by  the  courts,  and  to  leave  to  the 
criminal  law  the  acts  of  one  who,  being  entitled  to  possession,  takes  it  by  pro- 
hibited force." 

The  statute  of  1381  (5  Rich.  II.,  c.  7)  and  its  supplementary  acts  have  had 
a  substantial  sui'^'ival  in  many  states  of  the  Union,  either  as  part  of  their 
inheritance  from  the  mother  country  or  by  statutory  adoption.  See  19  Cyc. 
1114,  and  notes  26-30.  On  the  effect  of  the  enactment,  however,  the  states 
are  not  at  one.  See  24  Cyc.  1394-1395,  and  notes  90-99,  and  the  notes  to 
Wilson  V.  Campbell  (1907)  in  8  L.  R.  A.  (N.  S.)  426,  and  to  Schwinn  v.  Per- 
kins (1910)  32  L.  R.  A.  (N.  S.)  51.  "In  this  country,"  says  Professor  Burdick, 
"neither  the  statutes  nor  the  decisions  are  uniform  upon  these  points.  Some 
.states  punish  forcible  entry  and  detainer  as  crimes,  but  do  not  give  a  civil 
action  against  one  guilty  of  these  offenses,  if  he  was  entitled  to  possession, 
either  for  trespass  quare  clausum  fregit,  or  for  damages  to  the  wrongful  oc- 
cupant. But,  in  most  jurisdictions,  even  the  owner  of  land  who  is  entitled 
to  immediate  possession  is  not  allowed  to  take  the  law  into  liis  own  hands,  and 
gain  possession  by  the  exercise  of  force  which  amounts  to  a  breach  of  the 
peace.  If  he  acquires  possession  in  that  way,  he  may  be  compelled  to  re- 
store it  and  pay  damages  for  trespass  upon  the  property,  as  well  as  for  in- 
juries intlicted  upon  the  persons  of  the  wrongful  occupants  who  resist  the 
wrongful  entry.  If,  however,  he  can  gain  possession  peaceably,  he  may  resort 
to  force  to  retain  it,  without  being  chargeable  with  wrongful  detainer,  and 
he  may  resort  to  force  to  eject  a  mere  trespasser."  Burdick  on  Torts,  222 
(3d  Ed.,  1913). 


Ch.  1)  TRESPASSES  231 

(E)     Lawful  Arrest 
(a)   Under  Judicial  Process 

And  a  difference  was  taken  when  a  Court  has  jurisdiction  of  the 
cause,  and  proceeds  inverse  ordine  or  erroneously,  there  the  party  who 
sues,  or  the  officer  or  minister  of  the  Court  who  executes  the  precept 
or  process  of  the  Court,  no  action  lies  against  them.  But  when  the 
Court  has  not  jurisdiction  of  the  cause,  there  the  whole  proceeding  is 
coram  non  judice,  and  actions  will  lie  against  them  without  any  re- 
gard of  the  precept  or  process,  and  therefore  the  said  rule  cited  by 
the  other  side,  sc.  "Qui  jussu  judicii  aliquod  fecerit  (but  when  he 
has  no  jurisdiction,  non  est  judex)  non  videtur  dolo  malo  fecisse,  quia  »/ 
parere  necesse  est,"  was  well  allowed,  but  it  is  not  of  necessity  to  obey 
him  who  is  not  Judge  of  the  cause,  no  more  than  it  is  a  mere  stranger, 
for  the  rule  is,  "judicium  a  non  suo  judice  datum  nullius  est  momenti." 
And  that  fully  appears  in  our  books;  and  therefore  in  the  case  be- 
twixt Bowser  and  Collins  in  22  E.  4,  33,  b.  there  Pigot  says,  if  the 
Court  has  not  power  and  authority,  then  their  proceeding  is  coram 
non  judice:  as  if  the  Court  of  Common  Pleas  holds  plea  in  an  appeal 
of  death,  robbery,  or  any  other  appeal,  and  the  defendant  is  attainted, 
it  is  coram  non  judice  quod  omnes  concesserunt.  But  if  the  Court 
of  Common  Pleas  in  a  plea  of  debt  awards  a  capias  against  a  duke, 
earl,  etc.,  which  by  the  law  doth  not  lie  against  them,  and  that  appears 
in  the  writ  itself ;  and  if  the  sheriff  arrests  them  by  force  of  the 
capias,  although  the  writ  be  against  law,  notwithstanding,  inasmuch 
as  the  Court  has  jurisdiction  of  the  cause,  the  sheriff  is  excused :  and 
therewith  agrees  38  H.  8,  Dy.  60,  b. 

The  Case  of  the  Alarshalsea  (1613)  10  Co.  Rep.  68b,  76b. 


O'SHAUGNESSY  v.  BAXTER. 
(Supreme  Judicial  Court  of  Massachusetts,  1ST6.     121  Mass.  ol.j.) 

Gray,  C.  J.  This  is  an  action  of  tort  against  a  constable  of  Boston 
for  an  assault  and  false  imprisonment.  The  material  facts  of  the  case, 
as  they  appear  from  the  statements  in  the  report  and  the  findings  of 
the  jury,  are  as  follows:  This  plaintiff,  whose  real  name  is  John 
O'Shaugnessy,  was  sued  by  the  name  of  John  Shaugnessy,  a  name 
by  which  he  was  commonly  known,  upon  a  promissory  note  signed  by 
another  person  of  that  name,  and  not  by  himself.  The  person  who 
made  the  writ  knew  that  the  plaintiff  was  not  the  person  who  signed 
the  note,  but  intended  to  have  the  writ  served  upon  him,  and  it  was 
served  upon  him  by  another  constable,  and  entered  in  the  court  hav- 


232  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

ing  jurisdiction  thereof,  which  rendered  judgment,  upon  his  default, 
for  the  plaintiff  in  that  action,  and  issued  execution  accordingly,  in 
due  form  of  law.  The  execution,  with  the  proper  certificates,  was  de- 
livered to  this  defendant,  with  instructions  to  take  this  plaintiff  and 
commit  him  to  jail.  The  defendant  did  so,  in  obedience  to  such  in- 
structions, and  in  good  faith,  after  ascertaining  that  the  original  writ 
had  been  served  upon  the  plaintiff,  but  knowing  that  he  was  not  the 
person  who  signed  the  note  upon  which  the  action  was  brought. 

On  this  state  of  facts,  the  plaintiff,  being  the  party  against  whom 
the  writ  was  intended  to  be  made,  and  on  whom  it  was  actually  serv- 
ed, was  the  party  defendant  therein,  and  the  person  against  whom  the 
judgment  was  rendered  and  the  execution  issued.  Whatever  remedies 
he  might  have  to  relieve  him  from  the  judgment  and  execution  as  ob- 
tained by  fraud,  or  to  recover  damages  against  the  person  who  fraud- 
ulently abused  the  process  of  the  court,  the  officer,  acting  in  good  faith, 
had  the  right  to  rely  for  his  protection  upon  the  process  put  into  his 
hands,  and  was  not  bound  to  go  behind  that  process,  and  to  assume 
the  risk  of  determining  the  question  whether  the  plaintiff  really  signed 
the  note  upon  which  the  action  was  brought,  or  the  truth  of  any  ex- 
trinsic fact  which  would  exempt  him  from  being  arrested  or  impris- 
oned upon  the  execution.  Laroche  v.  Wasbrough,  2  T.  R.  737,  739; 
JMagnay  v.  Burt.  5  O.  B.  381 ;  s.  c.  Dav.  &  Aleriv.  652 ;  Wilmarth  v. 
Burt,  7  Mete.  257;  Twitchell  v.  Shaw.  10  Cush.  46,  57  Am.  Dec.  80; 
Underwood  v.  Robinson.  106  Alass.  296,  and  other  cases  there  cited. 
In  the  words  of  Chief  Justice  Parker,  "The  difficulty  in  such  cases 
is,  to  ascertain  whether  the  judgment  was  or  was  not,  in  fact,  render- 
ed against  the  person  who  is  taken  in  execution ;  for  if  it  was,  al- 
though the  person  was  mistaken,  yet  the  officer  would  be  justified." 
Hallowell  &  Augusta  Bank  v.  Howard,  14  Mass.  181,  183. 

The  fact  that  this  plaintiff  was  commonly  known  by  the  name  by 
which  he  was  sued  and  arrested,  distinguishes  the  case  from  those  in 
which  one  man  has  been  arrested  upon  a  writ  against  another  of  a  dif- 
ferent name.  See  Cole  v.  Hindson,  6  T.  R.  234;  Finch  v.  Cocken,  5 
Tyrwh.  774,  785;  s.  c.  3  Dowl.  678,  686;  Griswold  v.  Sedgwick,  1 
Wend.  (N.  Y.)  126,  132 ;   Langmaid  v.  Puffer,  7  Gray,  378. 

Judgment  on  the  verdict  for  the  defendant.^ ^ 

61  Compare  Whitten  v.  Bennett  (1S96  C.  C.)  77  Fed.  271  (B.,  while  state's 
attorney,  drew  an  indictment  cliarsiug  P.,  tojiether  with  S..  with  murder  in 
the  second  degree.  By  mistake  and  clerical  error,  the  indictment  against  P. 
was  marked  by  the  grand  jury  as  "a  true  bill,"  although  the  grand  jury  knew 
rhat  there  was  no  case  against  P.  and  did  not  intend  to  indict  him.  B.  knew 
of  all  this,  and  that  there  was  no  evidence  against  P.,  but  nevertheless  used 
the  indictment  to  ol)tain  a  requisition  against  P.,  who  was  in  another  state, 
and  sent  D.  to  arrest  him  under  the  requisition.  D.  was  instructed  to  bring 
P.  with  all  .speed,  so  as  to  prevent  his  obtaining  a  habeas  corpus.  Tlie  process 
under  which  D.  acted  in  arresting  P.  was  regular  in  form,  and  the  record 
showed  a  proper  indictment). 


Ch.  1)  TRESPASSES  233 


PIPER  V.  PEARSON. 

(Supreme  Judicial  Court  of  Massachusetts,  1854.    2  Gray,  120, 

61  Am.  Dec.  438). 

Action  of  tort  against  a  justice  of  the  peace,  residing  in  Dracut, 
for  assault,  battery  and  false  imprisonment.  Answer,  that  the  plain- 
tiff was  imprisoned  in  the  county  jail,  in  due  process  of  law,  for 
a  contempt  of  court. 

At  the  trial,  the  plaintiff  gave  in  evidence  copies,  certified  by  the 
defendant,  of  the  following  papers :  A  complaint  made  to  the  de-  / 
fendant,  charging  John  Russ  with  an  unlawful  sale  of  intoxicating*^ 
liquors  in  Lowell,  and  a  warrant  issued  thereon  for  the  arrest  of 
Russ;  a  mittimus  issued  by  the  defendant  for  the  commitment  of 
the  plaintiff  to  prison  for  refusing  to  testify  on  the  trial  of  said 
complaint  before  the  defendant  at  Lowell,  concerning  sales  of  in- 
toxicating liquors,  made  by  Russ,  and  known  to  the  witness;  and  a 
subsequent  judgment  of  acquittal  of  Russ  by  the  defendant.  By  St. 
1848,  c.  331,  §  4,  the  exclusive  jurisdiction  of  all  crimes  and  offences 
committed  within  the  district  of  Lowell  is  vested  in  the  police  court 
of  Lowell. 

The  defendant  relied,  for  his  justification,  on  the  record  of  the 
judgment;  and  contended  that  no  sufficient  proof  had  been  adduced 
to  show  that  his  acts  were  without  jurisdiction  and  void.  But  ]\Iet- 
calf,  J.,  ruled  that  the  record  and  mittimus  constituted  no  defence. 
And  to  this  ruling  the  defendant,  being  found  guilty,  alleged  excep- 
tions. 

BiGELOW,  J.  The  decision  of  this  case  depends  on  the  familiar 
and  well  settled  rule  concerning  the  liability  of  courts  and  magistrates 
exercising  an  inferior  and  limited  jurisdiction,  for  acts  done  by 
them,  or  by  their  authority,  under  color  of  legal  proceedings. 

One  of  the  leading  purposes  of  every  wise  system  of  law  is  to  se- 
cure a  fearless  and  impartial  administration  of  justice,  and  at  the 
same  time  to  guard  individuals  against  a  wanton  and  oppressive  abuse 
of  legal  authority.  To  attain  this  end,  the  common  law  affords  to 
all  inferior  tribunals  and  magistrates  complete  protection  in  the  dis- 
charge of  their  official  functions,  so  long  as  they  act  within  the  scope 
of  their  jurisdiction,  however  false  and  erroneous  may  be  the  con- 
clusions and  judgments  at  which  they  arrive.  But  on  the  other  hand, 
if  they  act  without  any  jurisdiction  over  the  subject  matter;  or  if, 
having  cognizance  of  a  cause,  they  are  guilty  of  an  excess  of  juris- 
diction; they  are  liable  in  damages  to  the  party  injured  by  such  un- 
authorized acts.  In  all  cases  therefore  where  the  cause  of  action 
against  a  judicial  officer,  exercising  only  a  special  and  limited  author- 
ity, is  founded  on  his  acts  done  colore  officii,  the  single  inquiry  is 
whether  he  has  acted  without  any  jurisdiction  over  the  subject  matter. 


234  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

or  has  been  guilty  of  an  excess  of  jurisdiction.  By  this  simple  test, 
his  legal  liability  will  at  once  be  determined.  1  Chit.  PI.  (6th  Am. 
Ed.)  90,  209-213;  Beaurain  v.  Scott,  3  Campb.  388;  Ackerley  v. 
Parkinson,  3  M.  &  S.  425,  428;  Borden  v.  Fitch,  15  Johns.  (N.  Y.) 
121,  8  Am.  Dec.  225;  Bigelow  v.  Stearns,  19  Johns.  (N.  Y.)  39,  10 
Am.  Dec.  189;  Allen  v.  Gray,  11  Conn,  95.  If  a  magistrate  acts 
beyond  the  limits  of  his  jurisdiction,  his  proceedings  are  deemed  to 
be  coram  non  judice  and  void;  and  if  he  attempts  to  enforce  any 
process  founded  on  any  judgment,  sentence  or  conviction  in  such 
case,  he  thereby  becomes  a  trespasser.  1  Chit.  PI.  210;  Bigelow  v. 
,  Stearns,  19  Johns.  (N.  Y.)  39,  10  Am.  Dec.  189.  (See  Clarke  v.  May, 
2  Gray,  410,  61  Am.  Dec.  470.) 

These  well  settled  principles  leave  no  room  for  question  as  to  the 
liability  of  the  defendant  in  this  action.  As  a  justice  of  the  peace 
for  the  county  of  Middlesex,  he  had  no  jurisdiction  whatever  to  try 
the  complaint  against  Russ.  It  was  for  an  offence  committed  "with- 
in the  district  of  Lowell,"  of  which  the  police  court  of  the  city  of 
Lowell  had  exclusive  jurisdiction  by  St.  1848,  c.  331,  §  4,  and  which 
the  justice  of  said  court  was  legally  competent  to  try  and  determine. 
Commonwealth  v.  Emery,  11  Cush.  406,  412.  The  defendant  there- 
fore acted  wholly  without  legal  authority,  and  can  show  no  legal 
justification  under  any  judicial  record. 

It  was  urged  on  the  part  of  the  defendant,  that  he  had  authority 
to  punish  the  plaintiff  for  contempt,  although  he  had  no  jurisdiction 
to  try  the  principal  case  before  him.  But  the  answer  to  this  sugges- 
tion is  obvious.  The  power  to  punish  for  contempt  is  only  incidental 
to  the  more  general  and  comprehensive  authority  conferred  on  a 
magistrate,  by  which  he  is  empowered  to  exercise  important  judicial 
functions.  It  is  to  enable  him  to  try  and  determine  causes  without 
molestation,  and  protect  himself  from  indignity  and  insult,  that  the 
law  gives  him  authority  to  punish  such  disorderly  conduct  as  may 
interrupt  judicial  proceedings  before  him  or  be  a  contempt  of  his 
authority  or  person.  Rev.  St.  1836,  c.  85,  §  33.  But  it  is  only  when 
lie  is  in  the  proj^er  exercise  of  his  judicial  functions,  that  this  power 
can  be  exercised.  If  he  has  no  jurisdiction  of  a  cause,  he  cannot  sit 
as  a  magistrate  to  try  it,  and  is  entitled  to  no  protection  while  acting 
beyond  the  sphere  of  his  judicial  power.  His  action  is  then  extra- 
judicial and  void.  His  power  and  authority  are  commensurate  only 
v/ith  his  jurisdiction.  If  he  cannot  try  the  case,  he  cannot  exercise 
a  power  which  is  only  auxiliary  and  incidental.  There  can  be  no 
contempt,  technically  speaking,  where  there  is  no  authority.  In  the 
case  at  bar,  the  defendant  had  no  more  power  to  entertain  jurisdic- 
tion of  the  complaint  against  Russ  than  any  other  individual  in  the 
community.  Although  he  acted  through  mistake,  it  was  nevertheless 
a  usurpation.  The  plaintiff  therefore  could  not  have  been  guilty  of 
contempt  toward  the  defendant  in  his  capacity  as  a  magistrate,  while 


Ch.  1)  TRESPASSES  235 

trying  a  cause  of  which  he  had  no  jurisdiction;  and  the  commitment 
therefor  was  unauthorized  and  void. 

It  was  suggested  by  the  counsel  for  the  defendant,  that  there  was 
nothing  in  the  case  from  which  it  could  be  properly  inferred  that  the 
offence  with  which  Russ  was  charged  was  actually  committed  in  the 
city  of  Lowell ;  and  that  as  the  defendant,  by  virtue  of  his  author- 
ity as  a  justice  of  the  peace,  had  cognizance  of  offences  committed 
elsewhere  in  the  county  of  IMiddlesex,  which  he  might  well  hear  and 
determine  in  the  city  of  Lowell,  the  presumption  was  that  he  was 
acting  rightfully,  till  the  contrary  was  shown.  But  there  are  two 
decisive  answers  to  this  argument.  In  the  first  place,  the  record 
on  its  face  sets  out  an  offence  committed  in  the  city  of  Lowell.  That 
being  a  district  set  apart  by  statute,  in  which  the  police  court  has 
exclusive  jurisdiction  of  criminal  offences  usually  cognizable  by  mag- 
istrates, and  the  offence  being  charged  as  having  been  committed  in 
Lowell,  the  record  legally  imports  that  it  was  committed  there.  1 
Stark.  Crim.  PI.  (2d  Ed.)  62 ;   Bac.  Ab.  Indictment,  G,  4. 

But  in  the  next  place,  it  was  for  the  defendant  to  show  a  complete 
justification  for  the  alleged  trespass;  if  the  record  left  it  doubtful 
whether  he  had  jurisdiction  of  the  oft'ence,  it  would  not  avail  as  a 
defence  to  the  action.  There  is  a  marked  distinction  in  this  respect 
between  courts  of  general  jurisdiction  and  inferior  tribunals  having 
only  a  special  or  limited  jurisdiction.  In  the  former  case,  the  pre- 
sumption of  law  is  that  they  had  jurisdiction,  until  the  contrary  is 
shown ;  but  with  regard  to  inferior  courts  and  magistrates,  it  is  for 
them,  when  claiming  any  right  or  exemption  under  their  proceedings, 
to  show  affirmatively  that  they  acted  within  the  limits  of  their  jurisdic- 
tion. Peacock  v.  Bell,  1  Saund.  74,  and  notes ;  Mills  v.  IMartin,  19 
Johns.  (N.  Y.)  33,  34.  The  record  in  the  present  case  prima  facie 
shows  a  want  of  jurisdiction  in  the  defendant. 

Exceptions  overruled. 


SUMNER  v.  BEELER. 

(Supreme  Court  of  Indiana,  1S75.     50  lud.  o41,  19  Am.  Rep.  718.) 

Action  to  recover  damages  for  an  illegal  arrest,  on  charge  of  being 
found  drunk,  under  the  ninth  section  of  the  Baxter  bill  of  1873.  The 
defendants  answered  in  justification  under  the  ninth  section  of  this 
law.  A  demurrer  for  want  of  facts  was  sustained,  and  this  ruling  is 
assigned  for  error. 

Pettit,  C.  J.  This  section  has  been  held  to  be  unconstitutional,  or, 
in  other  words,  that  it  is  not  law.  State  v.  Young,  47  Ind.  150.  No 
question  in  law  is  better  settled,  and  this  is  admitted  by  the  counsel 
for  the  appellants  in  their  brief,  than  that  ministerial  ofiicers  and  other 
persons  are  liable  for  acts  done  under  an  act  of  the  legislature  which 
is  unconstitutional  and  void.     All  persons  are  presumed  to  know  the 


236  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

law,  and  if  they  act  under  an  unconstitutional  enactment  of  the  legis- 
lature, they  do  so  at  their  peril,  and  must  take  the  consequences. 

There  was  no  error  in  sustaining  the  demurrer  to  this  paragraph  of 
the  answer.  ^^ 


GIFFORD  V.  WIGGINS. 

(Supreme  Court  of  Minnesota,  1892.    50  Minn.  401,  52  N.  W.  904, 

18  L.  R.  A.  356.) 

Action  for  false  imprisonment.  Judgment  for  defendant.  Plain- 
tiff appeals. 

Mitche;lIv,  J.     The  material  allegations  of  the  complaint  may  be 

summarized  as  follows : 

The  defendant  made  a  complaint  under  oath  to  a  justice  of  the  peace  in 
tlie  village  of  Wilmar  that  plaintiff  had  violated  the  provisions  of  an  ordinance 
of  that  village  prohiluting  peddling  any  goods,  wares,  merchandise,  or  other 
articles  not  manufactured  or  grown  within  the  county  of  Kandiyohi  without 
first  having  obtained  a  license  therefor,  and  praying  that  the  plaintiff  might 
be  arr-^sted  and  dealt  with  according  to  law ;  that  upon  this  complaint  the 
justice  issued  a  warrant,  upon  which  the  plaintiff  was  arrested  and  tried,  and, 
upon  the  testimony  of  the  defendant,  adjudged  guilty  of  a  violation  of  the 
ordinance ;  that  plaintiff  was  thereupon  committed  to  jail,  and  there  im- 
prisoned until  discharged  on  a  writ  of  habeas  corpus,  on  the  ground  that 
the  ordinance  in  question  was  unconstitutional  and  void.  There  is  no  allega- 
tion that  the  complaint  was  made  maliciously  and  without  probable  cause ; 
hence  the  facts  stated  do  not  constitute  a  cause  of  action  for  malicious  prose- 
cution. 

If  the  complaint  states  a  cause  of  action  at  all,  it  must  be  for  false 
imprisonment.  It  is  not  alleged  that  defendant  participated  or  took 
part  in  plaintiff's  arrest,  or  officiously  interfered  therewith  by  giving 
orders  or  directions  to  the  officers  or  otherwise.  It  is  true  that  in  the 
complaint  to  the  justice  he  prayed  that  the  plaintiff  might  be  arrested 
and  dealt  with  according  to  law,  but  this  is  what  is  done,  impliedly 
at  least,  in  every  case  where  a  complaint  is  made  to  a  magistrate  or 
court  charging  any  person  with  a  violation  of  public  law.  The  allega- 
tion that  the  plaintiff  was  convicted  on  the  testimony  of  the  defendant 
adds  nothing  to  the  complaint.  By  testifying  as  witness,  certainly 
defendant  did  nothing  that  rendered  him  liable  unless  he  testified  f alse- 

62  Accord:  Barling  v.  West  (1871)  29  Wis.  307,  9  Am.  Rep.  576;  Campbell  v. 
Sherman  (1874)  35  Wis.  103,  110:  "How  can  it  be  expected,  it  is  asked,  that 
a  mere  ministerial  officer  could  decide  such  a  question,  and  then  find  out  that 
his  process  was  void  for  want  of  jurisdiction  in  the  court  which  issued  itV 
The  maxim  ignorantia  juris  non  excusat — ignorance  of  the  law,  which  every 
man  is  presumed  to  know,  does  not  afford  excuse — in  its  application  to  human 
affairs  frequently  operates  harshly ;  and  yet  it  is  manifest  that  if  ignorance 
of  the  law  were  a  ground  of  exemption,  the  administration  of  justice  would 
be  arrested,  and  society  could  not  exist."    Per  Cole,  J. 

For  modifications  and  limitations  of  this  principle,  see  Brooks  v.  Mangan 
(1891)  86  Mich.  576,  49  N.  W.  O:;::,  24  Am.  St.  Rep.  137  ;  Tranimell  v.  Kussell- 
ville  (1879)  M  Ark.  105,  36  Am.  Kep.  1 ;  Tilliiian  v.  Beard  (1S99)  121  Mich. 
475,  80  N.  W.  248,  46  L.  R.  A.  215;  Bohri  v.  r.arnett  (1900)  144  Fed.  389,  75 
C.  C.  A.  327. 


Ch.  1)  TRESPASSES  237 

ly,  which  is  not  charged.  It  is  alleged  that  the  confinement  of  plain- 
tilt  was  "on  account  and  by  reason  of  the  procurement  and  direction 
of  the  defendant,"  but,  in  the  absence  of  any  allegations  of  specific 
facts,  this  must  be  construed  as  having  reference  to  the  act  of  making 
the  complaint  upon  which  the  warrant  was  issued.  It  is  also  alleged 
that  this  confinement  was  wrongfully,  maliciously,  and  unlawfully 
procured  by  defendant,  and  that  said  confinement  was  without  prob- 
able cause ;  but  this  has  reference  to  and  is  qualified  by  what  im- 
mediately follows,  to  wit:  "In  this,  that  said  ordinance  was  and  is 
wholly  void  and  unconstitutional."  Hence,  after  stripping  the  com- 
plaint of  all  mere  verbiage,  we  have  a  case  where  all  that  it  is  alleged 
that  defendant  did  was  to  lay  before  the  justice  the  complaint  upon 
which  the  justice  issued  the  warrant  on  which  the  plaintiff  was  arrest- 
ed ;  and  the  sole  ground  upon  which  defendant  is  claimed  to  be  lia- 
ble is  that  the  ordinance  under  which  the  proceedings  were  instituted 
was  void.  There  is  no  doubt  of  the  invalidity  of  the  ordinance  as 
"class  legislation,"  for  we  have  not  yet  arrived  at  the  point  where  it 
is  permissible  to  protect  "home  industries"  under  the  guise  of  an  ex- 
ercise of  the  police  power.  It  is  to  be  observed  that  the  object  of  this 
prosecution  was  not  the  enforcement  of  any  private  right  of  the  de- 
fendant. He  did  not  make  the  complaint  on  his  own  account,  or  for 
his  own  private  benefit.  The  complaint  was  for  an  alleged  violation 
of  public  law,  in  which  he  represented,  not  himself,  but  the  public, — 
an  important  distinction,  which  courts  have  sometimes  overlooked,  and 
which  counsel  for  plaintiflf  seems  to  have  failed  to  notice  in  the  cita- 
tion of  cases.  It  seems  to  be  settled  by  an  almost  unbroken  line  of 
authorities  that  if  a  person  merely  lays  a  criminal  complaint  before  a 
magistrate  in  a  matter  over  which  the  magistrate  has  a  general  ju- 
risdiction, and  the  magistrate  issues  a  warrant  upon  which  the  person 
charged  is  arrested,  the  party  laying  the  complaint  is  not  liable  for  an 
assault  and  false  imprisonment,  although  the  particular  case  may  be 
one  in  which  the  magistrate  had  no  jurisdiction.  The  law  on  this  sub- 
ject was  as  well  stated  as  anywhere  by  Lord  Abinger  in  West  v.  Small- 
wood,  3  I\Iees.  &  W.  417,  as  follows:  "Where  a  magistrate  has  a 
general  jurisdiction  over  the  subject-matter,  and  a  party  comes  before 
him  and  prefers  a  complaint,  upon  which  the  magistrate  makes  a  mis- 
take in  thinking  it  a  case  within  his  authority,  and  grants  a  warrant 
which  is  not  justifiable  in  point  of  law,  the  party  complaining  is  not 
liable  as  a  trespasser,  but  the  only  remedy  against  him  is  by  an  ac- 
tion upon  the  case  if  he  has  acted  maliciously."  See,  also,  Leigh  v. 
Webb.  3  Esp.  165;  Carratt  v.  Morley,  1  O.  B.  18;  Murphy  v.  Wal- 
ters, 34  ^lich.  180;  Von  Latham  v.  Libby,  38  Barb.  (X.  Y.)  339; 
Barker  v.  Stetson,  7  Grav  (Mass.)  53,  66  Am.  Dec.  457 ;  Langford  v. 
Railway  Co.,  144  Mass.  431,  11  N.  E.  697;  Teal  v.  Kissel  (C.  C.)  28 
Fed.  351.  This  rule  has  been  frequently  applied  where  the  facts 
stated  in  the  complaint  did  not  constitute  a  public  offense,  and  it  can 
make  no  difference  in  principle  whether  this  is  because  the  facts  stated 


238  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

do  not  bring  the  case  within  a  vaHd  statute,  or  because  the  statute 
under  which  the  proceedings  were  instituted  is  invahd.  In  either  case, 
the'  acts  charged  constitute  no  offense,  because  there  is  no  law  mak- 
ing them  such.  Barker  v.  Stetson,  supra,  was  a  case  of  the  latter  class. 
The  present  case  comes  fully  within  the  rule.  The  justice  had  a 
general  jurisdiction  over  the  subject-matter,  to  wit,  prosecutions  for 
the  violations  of  village  ordinances.  The  defendant  merely  stated  the 
case  to  the  magistrate  in  a  complaint,  without,  so  far  as  appears,  bad 
faith  or  malice.  The  magistrate  erred  in  thinking  that  the  ordinance 
was  valid,  and  that  it  was  therefore  a  case  within  his  authority,  and 
issued  a  warrant  which  was  not  justifiable  in  point  of  law,  and  the 
plaintiff  was  arrested.  Under  such  a  state  of  facts  the  complainant  is 
not  liable.  Under  any  other  doctrine  a  person  would  never  feel  safe 
in  making  complaint  of  the  commission  of  a  public  offense  until  the 
validity  of  the  statute  creating  the  offense  had  been  passed  upon  by 
the  court  of  last  resort.     Order  affirmed. 


PEOPLE  v.  McLEAN. 

(Supreme  Court  of  Michigan,  1SS8.    68  Mich.  480,  36  N.  W.  231.) 

McLean  was  convicted  in  the  circuit  court  of  the  county  of  Macki- 
nac of  resisting  an  officer,  and  sentenced  to  state  prison  for  two  years. 
He  prosecuted  error. 

Champlin,  J.  *  *  *  It  appears  from  the  testimony  returned 
in  the  bill  of  exceptions  that  on  the  night  of  the  twenty-third  of  Au- 
gust, 1887,  L.  J.  ]\Ionteith  was  sheriff  of  Mackinac  county,  and  Peter 
A.  Paquin  was  under-sheriff ;  that  about  10  o'clock  in  the  evening  of 
that  day.  Justice  Rutherford  handed  the  sheriff  a  warrant  for  assault 
and  battery  against  McLean  in  front  of  Rutherford's  office ;  that  Pe- 
/  ter  A.  Paquin  was  then  present,  and  the  sheriff  told  him  to  get  into 
a  hack,  and  go  up  to  what  was  known  as  "Red  Annie's,"  a  house  of 
ill  fame,  by  the  road,  and  arrest  McLean  if  he  found  him  there ;  that 
he  would  take  another  direction  by  the  railroad  track,  and  go  to  an- 
other house  of  ill  fame,  and  search  for  McLean  there;  that  the  sher- 
iff had  the  warrant  with  him,  and  that  Paquin  had  no  warrant;  that 
these  houses  of  ill  fame  were  about  80  rods  apart;  that  he  and  the 
under-sheriff  separated,  the  sheriff  going  up  the  railroad  track,  and 
the  under-sheriff  going  in  a  hack  in  another  direction. 

Paquin  arrived  at  "Red  Annie's,"  found  the  door  open,  and  a  num- 
ber of  persons  in  the  room.  He  saw  ^McLean  in  there  and  went  in, 
and  laid  his  hand  on  ^McLean's  shoulder  and  said:  "McLean,  I  want 
you.  I  have  got  a  warrant  for  you ;  you  are  my  prisoner."  McLean 
then  pulled  a  revolver  from  his  right-hand  coat  pocket,  and  pointed 

it  at  Paquin's  head,  and  said:    "Get  out,  you , 

or  I  will  blow  your  brains  out." 


Ch.  1)  TRESPASSES  239 

Paquin  did  not  know  whether  the  revolver  was  cocked  or  loaded, 
but  he  backed  out  of  the  door,  McLean  following  him  with  the  re- 
volver, pointed  at  him,  saying:  "Get  out;  get  out;  get  out  of  the 
house,  or  I  will  kill  you." 

About  five  minutes  after  he  got  out  he  heard  the  report  of  a  re- 
volver, but  who  fired  it  he  did  not  know.  He  started  to  find  the  sher- 
iff, and  met  him  coming  a  short  distance  from  the  house.  He  did  not 
tell  jMcLean  that  he  was  an  officer,  and  had  no  uniform  or  badge  of 
office  on.  He  had  no  personal  acquaintance  with  McLean,  and  had 
never  talked  with  him  before  that  night.  He  did  not  know  at  the 
time  he  attempted  to  make  the  arrest  where  the  sheriff  was,  only  the 
sheriff  had  told  him  vv'here  he  was  going.     *     *     * 

The  question  whether  an  arrest  can  be  made  without  warrant  has 
been  decided  from  time  to  time  according  to  the  various  circumstances 
of  each  particular  case,  many  of  which  may  be  found  in  2  Hale,  P. 
C.  72-105.     The  principles  recognized  in  the  cases  are: 

L  Any  person  may  arrest  another  who  is  actually  committing,  or 
has  actually  committed,  a  felony. 

2.  He  may  arrest  any  person  whom  he  suspects  on  reasonable 
grounds  to  have  committed  a  felony,  if  one  has  actually  been  commit- 
ted. 

3.  Any  constable  or  sheriff  may  arrest  any  person  whom  he  sus- 
pects, on  reasonable  grounds,  of  having  committed  a  felony,  whether 
in  fact  a  felony  has  been  actually  committed  or  not. 

The  common  law  never  allowed  the  arrest  of  persons,  who  were 
either  guilty  of  or  suspected  of  having  committed  misdemeanors,  with- 
out a  warrant  issued  by  lawful  authority,  except  in  cases  of  actual 
breach  of  the  peace  committed  in  the  presence  of  the  officer,  while  the 
person  was  taken  in  the  act,  or  immediately  after  its  commission. 
This  exception  was  made,  not  to  bring  the  offender  to  justice,  but  in 
order  to  preserve  the  peace,  which  by  the  common  law  v/as  regarded 
as  of  utmost  consequence. 

McLean  was  charged  simply  with  a  misdemeanor,  and  he  could  not 
be  arrested  for  the  crime  after  the  commission  of  the  act,  without  a 
proper  warrant.  The  warrant  was  issued  and  delivered  to  the  sher- 
iff. The  sheriff  is  authorized  to  take  such  assistance  with  him  in  mak- 
ing an  arrest  as  he  may  deem  necessary,  and  the  warrant  in  his  pos- 
session while  present  and  pursuing  his  object  will  be  a  justification 
to  his  assistants  in  making  the  arrest.  But  he  has  no  authority  to  send 
an  under-sheriff  or  deputy  to  one  place  to  make  an  arrest  without  a 
warrant,  while  he  goes  to  another  for  the  same  purpose  with  the 
warrant.  He  cannot  send  his  deputy  into  one  town  or  county  while 
he  gives  pursuit  in  another.  Under  the  ancient  practice  of  hue  and 
cry,  before  warrants  were  issued,  this  might  be  done  in  the  pursuit  of 
felons,  but  no  hue  and  cry  could  be  raised  for  a  misdemeanor. 

We  think  it  clear  that  in  cases  of  misdemeanors  the  sheriff  must  be 
present  either  in  sight  or  hearing,  directing  the  arrest,  to  justify  a 


2-40  TORTS  THROUGH  ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 

person  not  armed  with  the  warrant  to  make  the  arrest.  Such  was 
not  the  case  here.  The  under-sheriff  had  no  warrant  in  his  posses- 
sion when  he  attempted  to  arrest  McLean,  and  although  acting  under 
the  orders  of  the  sheriff,  given  before  they  separated,  to  search  dif- 
ferent places,  the  sheriff  was  not  in  such  proximity  nor  did  he  have 
such  immediate  control  of  the  action  of  the  under-sheriff,  as  justified 
the  court  or  jury  in  saying  that  the  warrant  was  in  the  possession  or 
control  of  the  under-sheriff,  or  that  it  conferred  upon  him  any  author- 
ity to  make  the  arrest.  A  warrant  for  a  misdemeanor  cannot  lawful- 
ly be  held  by  two  officers  at  once,  when  they  are  not  together.  The 
case  is  fully  covered  in  the  opinion  of  Mr.  Justice  Campbell  in  Dren- 
nan  v.  People,  10  Mich.  184  et  seq.  Upon  this  point  there  was  no 
disagreement  between  the  members  of  the  court,  although  they  were 
divided  upon  the  question  whether  the  offense  charged  was  felony, 
and  therefore  authorized  an  arrest  without  warrant. 

We  think  the  judgment  should  be  reversed,  and  prisoner  discharg- 
ed.«3 


HOLROYD  V.  DONCASTER. 
(Court  of  Common  Pleas,  1S26.    3  Bing.  492,  130  Reprint,  603,  28  R.  R.  672.) 

This  was  an  action  of  trespass  for  false  imprisonment,  tried  before 
Bayley,  J.,  last  York  Assizes.  The  declaration  was  in  the  usual  form. 
A  constable,  who  had  made  the  arrest  of  which  the  plaintiff  com- 
plained, stated  that  he  had  arrested  the  plaintiff  under  a  warrant  which 
he  had  received  from  another  person,  and  that  when  about  to  execute 
it,  the  defendant  desired  him  to  make  haste.  It  was  also  proved,  that 
the  defendant  had  admitted  in  conversation  that  he  had  sent  the  plain- 
tiff to  prison.  But  no  warrant  was  produced  in  evidence.  The  plain- 
tiff's counsel,  however,  having  opened  the  case  as  an  arrest  upon  an 
illegal  warrant,  it  was  objected  on  the  part  of  the  defendant  that  the 
plaintiff  ought  to  produce  the  warrant.  A  verdict  was  taken  for  the 
plaintiff,  with  liberty  for  the  defendant  to  move  to  enter  a  nonsuit, 
if  the  Court  should  be  of  opinion  that  the  plaintiff  ought  to  have  pro- 
duced the  warrant. 

Wilde,  Serjt.,  accordingly  moved  for  a  rule  to  this  effect,  on  the 
ground  that  the  plaintiff  ought  to  have  produced  the  warrant  which 
was  the  cause  of  his  action ;  also,  that  it  sufficiently  appeared  from  the 
defendant's  admission,  that  the  plaintiff  had  been  apprehended  un- 
der a  warrant,  and  that,  therefore,  the  action  ought  to  have  been  con- 
ceived in  case  and  not  in  trespass.  Morgan  v.  Hughes,  2  T.  R.  225 ; 
Stonehouse  v.  Elliot,  6  T.  R.  315,  3  R.  R.  183. 

A  rule  nisi  was  granted  and  Wilde  was  this  day  heard  in  support 
of  it.     But 

5  3  Part  of  the  opinion  is  omitted. 


Ch.  1)  TRESPASSES  241 

The  Court  were  clearly  of  opinion  that  the  warrant  not  having 
been  produced,  there  was  no  legitimate  evidence  on  which  it  could  be 
presumed  that  it  had  ever  issued,  or  that  the  action  ought,  in  conse- 
quence, to  have  been  case;  and  that,  with  respect  to  the  production 
of  the  warrant,  it  was  equally  clear  that  a  party  who  took  upon  him- 
self to  imprison  another  was  prima  facie  guilty  of  a  trespass,  the  onus 
of  justifying  which  rested  entirely  with  himself. 

Rule  discharged. 


WILLI A:\IS  v.  JONES  et  al. 
(Court  of  King's  Bench,  1736.     Cas.  t.  Hard.  298,  95  Reprint,  193.) 

Trespass  for  an  assault,  battery  and  imprisonment  of  the  plaintiff. 
The  defendants  justify  for  that  the  defendant  Jones  sued  out  a 
capias  ad  respondendum  against  the  plaintiff,  out  of  the  Court  of 
Common  Pleas,  directed  to  and  delivered  to  the  Sheriffs  of  London; 
whereupon  the  sheriff  issued  a  warrant  to  the  defendant  Chamberlain, 
one  of  the  Serjeants  of  mace,  who  by  virtue  thereof  arrested  the  plain- 
tiff, and  detained  him  in  custody  for  six  hours,  at  the  request  of  de- 
fendant Jones,  who  was  plaintiff  in  the  said  writ,  which  is  the  same 
trespass  and  assault,  etc.  to  which  plea  the  plaintiff  demurred  gen- 
erally.    *     *     * 

Lord  HardwickS,  C.  J.  The  question  is,  whether  a  battery  of  the 
plaintiff  can  be  justified  by  shewing  an  arrest  by  lawful  process ;  and 
upon  consideration  of  the  cases,  we  are  of  opinion  that  a  battery  can- 
not be  justified  by  shewing  an  arrest  barely;  but  that  in  order  to  make 
it  good,  something  further  should  be  shewn :  as,  that  defendant  gently 
laid  his  hands  in  order  to  arrest;  and  did  arrest  him;  as  in  the  case 
of  Patrick  and  Johnson,  3  Lev.  403 ;  though  that  way  of  pleading  has 
been  doubted  of:  or  else  that  the  plaintiff  made  resistance,  and  was 
going  to  rescue  himself,  and  by  reason  of  that  he  beat  him  to  take 
him.  There  is  no  case  in  all  the  books,  that  says,  that  a  battery  may 
be  justified,  barely  by  shewing  an  arrest.     *     *     * 

As  to  what  has  been  said,  that  every  arrest  admits  a  battery,  be- 
cause it  cannot  be  without  laying  on  of  hands,  and  every  laying  on  of 
hands  is  so;  that  is  a  mistake  in  the  case  of  Genner  and  Sparkes, 
which  was  cited  to  warrant  that  distinction,  which  it  does  not  do; 
for  the  question  there  was,  whether  there  had  been  a  rescue,  and  the 
Court  held  that  there  had  not,  because  there  had  been  no  arrest,  for 
the  officer  had  not  touched  the  defendant ;  and  to  be  sure  in  that  case 
there  was  no  arrest,  for  the  party  was  neither  touched  nor  confined. 
But  it  does  not  follow  that  an  arrest  cannot  be  made  without  touch- 
ing the  person ;  for  if  a  bailiff'  comes  into  a  room  and  tells  the  de- 
fendant he  arrests  him,  and  locks  the  door,  that  is  an  arrest,  for  he 
is  in  custody  of  the  officer.  But,  supposing  there  was  a  laying  on  of 
Hepb.Toets — 16 


242  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

hands  in  the  present  case,  every  laying  on  of  hands  is  not  a  battery ; 
for  the  party's  intention  must  be  considered :  for  people  will  some- 
times by  way  of  joke,  or  in  friendship,  clap  a  man  on  the  back;  and 
it  would  be  ridiculous  to  say,  that  in  every  such  case,  a  man  must 
justify,  and  may  not  plead  not  guilty.  The  case  of  Wilson  and  Dodd, 
2  Roll.  Abr.  543,  is  directly  in  point,  that  a  molliter  manus  is  not  a 
battery.  That  case  indeed  favours  Lutwyche's  opinion,  that  a  molliter 
manus  is  not  a  justification,  because  it  does  not  admit  a  battery: 
therefore  as  the  arrest  is  not  a  battery,  this  is  not  a  sufficient  justifica- 
tion. 

Per  Curiam.    Judgment  for  plaintiff.^* 


(b)  Arkest  without  Warrant 
HENNESSY  v.  CONNOLLY.      - 

(Supreme  Court  of  New  York,  1878.     13  Hun,  173.) 

Talcott,  J.  This  is  an  appeal  from  a  judgment  for  the  defend- 
ant, rendered  on  a  verdict  at  the  Oswego  Circuit,  and  from  an  order 
of  the  Special  Term  denying  a  new  trial.  The  action  was  for  assault 
and  battery  and  false  imprisonment.  The  defendant  was  a  policeman 
of  the  city  of  Oswego,  and  arrested  the  plaintiff  on  view  and  with- 
out warrant,  on  the  charge  of  violating  an  ordinance  of  the  city,  which 
is  as  follows,  viz.: 

"Section  8.  The  bridge  across  the  Oswego  river  in  this  city,  on  the  line  of 
Bridge  street,  shall  be  kept  and  reserved  free  from  all  obstructions,  and  all 
groups  and  assemblages  of  persons  thereon  at  any  time  are  strictly  prohibited. 
No  person  or  persons  shall  sit  or  stand  on  said  bridge  or  any  railing  thereof 
or  occupy  the  same  so  as  in  any  manner  to  obstruct  the  free  passage  thereof, 
or  to  hinder,  molest  or  annoy  any  person  in  passing  along  the  same;  and  no 
person  shall  peddle  any  fruits,  nuts  or  other  articles  or  things  thereon. 
Whoever  shall  violate  any  provision  of  this  section  shall  forfeit  a  penalty  of 
five  dollars  for  each  and  every  offense." 

By  the  charter  of  the  city  of  Oswego,  title  3,  section  8  (Sess.  Laws 
of  1860,  ch.  463),  the  penalty  for  a  violation  of  such  an  ordinance  is 
to  be  collected  before  a  justice  of  the  peace,  or  other  court,  and  the 
first  process  may  be  by  civil  warrant  or  summons.  The  justice  at 
the  circuit  instructed  the  jury  that  the  plaintiff  was  violating  a  city 
ordinance  in  regard  to  the  bridge,  and  if  he  did  not  desist  at  the  com- 
mand of  the  officer  then  the  officer  had  a  right  to  arrest  him  without 
any  process. 

We  find  nothing,  and  are  referred  to  no  section  in  the  charter  of 
the  city  of  Oswego,  providing  that  a  policeman  may  arrest  without 
warrant  and  simply  on  view,  for  the  violation  of  a  city  ordinance. 
It  is  not  like  the  charter  of  Syracuse,  which  was  examined  by  thi.s 

S4  Part  of  the  opinion  Is  omitted 


Ch.  1)  TRESPASSES  243 

court  in  this  respect  in  Biitolph  v.  Blust,  5  Lans.  84;  and  it  was 
found  in  that  charter  the  power  was  expressly  conferred  on  a  poHce- 
man  of  the  city  to  arrest,  detain  and  take  before  the  pohce  justice, 
any  person  whom  he  shall  find  committing  a  violation  of  any  ordinance 
of  the  city. 

Admitting  the  obstruction  of  the  bridge  to  have  been  a  misdemeanor, 
the  policeman  had  no  authority  to  arrest  the  defendant  unless  such 
misdemeanor  was  accompanied  by  a  breach  of  the  peace  at  common 
law.  Butolph  V.  Blust,  supra.  There  was  some  evidence  tending  to 
show  a  breach  of  the  peace  by  the  plaintiff,  preliminary  to  the  arrest, 
and  that  the  conduct  of  the  plaintiff  was  reprehensible  in  the  extreme, 
but  the  difficulty  with  the  charge  excepted  to  is,  that  it  was  not  in  any 
manner  qualified;  and  the  jury  was  instructed  generally  that  if  the 
plaintiff  was  violating  a  city  ordinance  and  did  not  desist  on  demand, 
the  policeman  had  a  right  to  arrest  him  without  warrant. 

It  may  be  that  a  policeman  should  have  authority  to  arrest  without 
warrant,  and  on  view,  any  person  engaged  in  the  violation  of  a  city 
ordinance,  and  we  presume  this  authority  is  conferred  by  most  city 
charters,  but  it  is  a  matter  which  rests  with  the  legislature,  and  until 
the  power  is  conferred,  an  arrest  by  a  constable  without  v/arrant,  in 
case  of  a  misdemeanor,  can  only  take  place  where  it  is  accompanied 
by  a  breach  of  the  peace.  1  Chitty's  Crim.  Law,  13;  Carpenter  v. 
Mills,  29  How.  Prac.  473. 

For  the  reason  that  the  jury,  under  the  instruction  given  them,  can- 
not be  deemed  to  have  found  a  breach  of  the  peace,  the  judgment  and 
order  denying  a  new  trial  must  be  reversed. 


STATE  V.  HUNTER. 

(Supreme  Court  of  North  Carolina,  1890.    106  N.  C.  796,  11  S.  E.  3G6, 

8  L.  R.  A.  529.) 

This  was  an  indictment  for  false  imprisonment.  The  defendant,  a 
policeman  of  the  city  of  Asheville,  had  arrested  one  Bennett  for  al- 
leged violation  of  a  city  ordinance  in  the  following  words : 

"Whenever  three  or  more  persons  obstruct  the  sidewalk,  it  shall  be  the 
duty  of  the  officer  to  courteously  request  them  to  move  on,  and.  it'  such  i>er- 
sous  unreasonably  persist  in  remaining,  so  as  to  incommode  others  passing, 
he  shall  take  them  to  the  station  house." 

The  defendant  testified  that  Bennett  and  four  or  five  others  were 
standing  on  the  sidewalk  when  other  people  were  passing,  that  the 
latter  had  to  step  on  the  curbing  to  get  around  them,  that  when  defend- 
ant requested  Bennett  and  his  companions  to  move  on,  all  left  except 
Bennett,  who  refused,  a  third  time,  to  go,  and  that  the  defendant  then 
arrested  Bennett,  and  took  him  to  the  station  house.  From  a  ver- 
dict of  guilty,  the  defendant  appealed. 


244  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

AvKRY,  J.  In  the  case  of  State  v.  Freeman,  86  N.  C.  683,  the  court 
distinctly  recognized  the  right  of  a  poHce  officer  to  arrest  without 
warrant,  not  only  for  felonies,  riots,  and  breaches  of  the  peace,  but 
for  violation  of  a  city  or  town  by-law  prohibiting  nuisances,  and 
which  the  municipality  has  the  power  to  make,  when  the  offense  is 
committed  in  his  presence.  The  Code  (section  3820)  makes  it  a  mis- 
demeanor to  violate  any  valid  city  or  town  ordinance.     *     *     * 

The  second  ordinance  relied  upon  for  the  protection  of  the  officer, 
rule  15,  is  clearly  in  violation  of  the  Constitution  (article  1,  §§  12, 
13,  17),  in  providing  that  a  person  may  be  arrested  because  he  re- 
fuses to  "move  on,"  and,  in  the  opinion  of  the  officer,  who  is  left  to 
judge  of  his  conduct,  "unreasonably  persists  in  remaining,  so  as  to 
incommode  others  passing,"  and  can  be  taken,  without  warrant  or 
hearing,  to  the  station  house.  Under  this  law,  he  may  be  deprived  of 
his  liberty,  and  sent  to  a  dungeon,  not  only  without  trial,  but  without 
even  a  preliminary  examination,  or  an  opportunity  to  give  bail  for  his 
appearance  at  an  investigation  to  be  had  in  future,  because,  in  the 
opinion  of  a  policeman,  he  consumes  an  unreasonable  time  in  ex- 
changing greetings  with  two  friends  whom  he  meets  upon  the  side- 
walk of  the  city.     *     *     * 

The  charter  of  the  city  (chapter  111,  §§  25,  27,  59  Priv.  Laws  1883) 
gave  the  city  marshal  the  powers,  as  a  peace  officer,  of  the  sheriff 
or  constables  of  the  county  of  Buncombe,  and  to  both  the  marshal  and 
a  policeman  the  authority  to  make  arrests  "(1)  whenever  he  shall 
have  in  his  hands  a  warrant  duly  issued  by  the  mayor  of  the  city 
of  Asheville  or  a  justice  of  the  peace  of  the  county  of  Buncombe ; 
*  *  *  (3)  whenever  a  misdemeanor  or  violation  of  any  ordinance 
has  been  committed,  and  he  has  reasonable  cause  to  believe  that  the 
suspected  party  may  make  his  escape  before  a  warrant  can  be  ob- 
tained." The  power  to  arrest  without  warrant  is,  in  express  terms, 
confined  to  two  classes  of  cases, — where  he  sees  an  offense  commit- 
ted; or  where  he  knows  it  has  been  committed  and  has  reasonable 
ground  to  apprehend  an  escape.  The  latter  provision  enlarges  his  au- 
thority beyond  that  of  a  sheriff  or  constable,  but  upon  condition  that 
the  ordinance  has  certainly  been  violated.  Judge  Dillon,  in  his  work 
on  Municipal  Corporations  (volume  1,  §  211),  says:  "Charters  au- 
thorizing municipal  officers  to  make  arrests  upon  view,  and  without 
process,  are  to  be  viewed  in  connection  with  the  general  statutes  of 
the  state,  and,  being  in  derogation  of  liberty,  are  strictly  construed." 
Pesterfield  v.  Vickers,  3  Cold.  (Tenn.)  205;  White  v.  Kent,  11  Ohio 
St.  550.  In  the  exercise  of  the  extraordinary  power  given  him  by  the 
charter,  it  was  the  duty  of  the  defendant,  before  he  touched  the  per- 
son of  the  prosecutor  and  demanded  a  surrender  of  his  liberty,  to 
know  that  the  misdemeanor  had  been  committed,  either  from  seeing, 
or  from  such  information  as  made  him  willing  to  incur  the  risk  of 


Ch,  1)  TRESPASSES  245 

indictment,  or  of  being  mulcted  in  damages,  if  no  ordinance  had  been 
violated.  The  question  of  good  faith  on  the  part  of  the  policeman 
comes  to  his  aid  when  he  is  resisted  in  making  an  arrest  that  he  has 
an  undoubted  right  to  make,  if  there  be  resistance,  and  the  question 
arise  whether  excessive  force  was  used  to  overcome  it ;  but  policemen 
of  Asheville  must  determine  at  their  peril,  preliminary  to  proceeding 
without  warrant,  whether  a  valid  ordinance  has  been  violated  within 
or  out  of  their  view.  The  principle  recognized  in  the  cases  of  State 
V.  McNinch,  90  N.  C.  695,  and  State  v.  Pugh,  101  N.  C.  117,  7  S.  E. 
7^7 ,  9  Am.  St.  Rep.  44,  was  never  intended  to  apply  in  any  case  ex- 
cept where  an  officer  is  making  a  lawful  arrest.     *     *     * 

We  conclude  that,  according  to  the  defendant's  own  evidence,  he  was 
guilty;  and,  therefore,  though  the  judge  may  have  failed  to  state  the 
law  correctly  in  submitting  to  the  jury  the  whole  case,  still  the  defend- 
ant is  not  entitled  to  a  new  trial  if  he  was  guilty  in  the  aspect  of  the 
testimony  most  favorable  to  himself,  and  founded  upon  the  conception 
that  his  own  statement  was  true.     The  judgment  must  be  affirmed.^^ 

Davis,  J.,  dissenting. 


COOK  v.  HASTINGS. 

(Supreme  Court  of  Michigau,  1907.    150  Mich.  2S9,  114  N.  W.  71,  14  L.  R.  A. 

[N.  S.]  1123,  13  Ann.  Cas.  194.) 

The  action  was  by  Cook  against  Hastings  and  two  others.  The 
judgment  below  was  in  favor  of  the  defendants;  the  plaintiff  brings 
error. 

Carpenter,  J.  The  three  defendants  are  each  members  of  the  po- 
lice force  of  the  city  of  Detroit.  December  6,  1904,  between  8  and 
9  p.  m.,  defendant  Hastings  arrested  plaintiff  on  Columbia  street,  in 
said  city  of  Detroit.  Hastings  was  looking  for  a  man  who  had  been 
exposing  his  person  to  women  and  children,  and — stating  the  facts 
most  favorably  to  defendants — he  believed  and  had  reason  to  believe 
plaintiff  to  be  that  man.  The  arrest  was  made  because  of  that  belief, 
and  because  plaintiff'  refused  to  state  his  name  or  his  business,  and 
gave  a  false  explanation  (perhaps  it  was  a  false  explanation)  for 
waiting  on  the  street  behind  a  tree  where  Hastings  discovered  him. 
After  the  arrest,  Hastings  placed  plaintiff'  in  a  patrol  wagon  of  which 
defendants  Stock  and  McDermott  were  in  charge,  and  carried  him  to 
the  Central  Police  Station,  and  the  undisputed  evidence  compels  the 
inference  that  while  in  the  wagon  plaintiff  was  in  the  joint  custody 
of  the  three  defendants.  Soon  after  the  patrol  wagon  reached  the 
Central  Station,  plaintiff  was  given  his  liberty.     He  brought  this  suit 

05  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


/ 


#^ 


246  TORTS  THROUGH   ACTS  OP  ABSOLUTE   LIABILITY  (Part  1 

to  recover  damages  for  false  imprisonment.  It  was  tried  in  the 
circuit  court  before  a  jury.  The  trial  judge  directed  a  verdict  in 
favor  of  defendants  Stock  and  McDermott,  and  submitted  to  them 
the  question  of  defendant  Hastings'  liability,  and  they  returned  a 
verdict  in  his  favor. 

The  law  governing  this  case  is  elementary.  Except  for  a  breach  of 
the  peace  committed  in  his  presence,  or  when  he  has  a  reasonable 
ground  to  believe  that  the  person  arrested  is  a  felon  or  is  about  to 
commit  a  felony,  a  police  officer  has  no  authority  to  arrest  without 
a  warrant.  In  this  case  there  was  not  only  no  reasonable  ground  to 
believe,  but  there  was  not  even  a  suspicion,  that  plaintiff  was  a  felon 
or  was  about  to  commit  a  felony.  (For  the  offense  of  which  he  was 
suspected  was  not  a  felony.)  It  is  equally  clear  that  refusal  to  make 
any  explanation  to  the  police  officer  was  not  a  breach  of  the  peace. 
Klein  V.  Pollard,  149  Mich  200,  112  N.  W.  717,  10  L.  R.  A.  (N.  S.) 
1008,  119  Am.  St.  Rep.  670.  The  arrest  was  therefore  illegal,  and 
the  trial  court  should  have  directed  a  verdict  against  defendant 
Hastings.  The  liability  of  the  other  defendants,  legally  speaking,  is 
equally  clear.  During  his  conveyance  in  the  patrol  wagon,  plaintiff 
was  just  as  much  in  their  custody  as  he  was  in  Hastings'.  It  is  then 
quite  correct  to  say  that  they  assisted  defendant  Hastings  in  depriv- 
ing plaintiff  of  his  liberty.  It  is  true  they  rendered  this  assistance, 
not  by  actually  laying  their  hands  on  plaintiff,  but  by  a  voluntary 
display  of  force  which  was  intended  to  and  did  deprive  him  of  his 
liberty.  The  law  governing  this  question  is  correctly  stated  in  a 
note,  12  A.  &  E.  Enc.  Law  (2d  Ed.)  p.  777  (citing  Griffin  v.  Coleman, 
4  H.  &  N.  265),  as  follows :  "If  an  arrest  by  a  constable  is  in  its  in- 
ception wrongful,  all  other  constables  who  act  and  assist  in  the  con- 
tinuance of  the  wrongful  imprisonment  are  responsible  for  the  entire 
damage  thereby  caused  to  the  plaintiff,  although  they  had  no  knowl- 
edge of  the  unlawfulness  of  the  imprisonment  and  intended  to  act  in 
the  strict  discharge  of  their  official  duties."  The  trial  court  should 
have  directed  a  verdict  for  plaintiff  against  all  the  defendants. 

Defendants'  counsel  urge  that  under  the  law  declared  in  this  opinion 
police  officers  will  sometimes  be  compelled  either  to  neglect  their  duty 
of  preserving  order — a  duty  they  owe  to  the  public — or  to  make  un- 
lawful arrests,  and  it  is  also  urged  that  that  alternative  was  presented 
in  this  case.  If  so,  they  must  either  neglect  that  duty  or  accept  the 
risk  of  being  held  liable  for  the  consequences,  for  if  they  are  sued, 
the  court  will  pass  judgment  on  their  conduct  in  accordance,  not  with 
the  judge's  notion  of  justice,  but  in  accordance  with  a  law  which 
condemns.  It  is  not  for  the  judge  presiding  over  the  court  to  de- 
termine whether  or  not  he  will  apply  that  law.  He  has  no  choice. 
He  did  not  make  the  law,  and  he  cannot  change  it.  That  law  is  as 
obligatory  on  him  as  it  is  on  the  humblest  suitor  who  ever  appeared 
in  his  court.     He  is  bound  to  apply  it  in  determining  controversies. 


Ch.  1)  TRESPASSES  247 

The  argument  under  consideration  is  in  reality  an  appeal  for  a  change 
of  the  law.     It  should  have  been  addressed,  not  to  a  court,  but  to 
some  other  tribunal — a  tribunal  having  authority  to  change  the  law.^® 
Judgment  reversed,  and  a  new  trial  ordered. 


TIMOTHY  V.  SIMPSON. 

(Court  of  Exchequer,  1835.    1  Cr.,  M.  &  R.  757,  40  R.  R.  722.) 

Parke,  B.  This  was  an  action  of  trespass  and  false  imprisonment, 
tried  before  me  at  the  sittings  after  Trinity  Term  last,  at  Guildhall. 
The  declaration  was  for  an  assault  and  false  imprisonment;  to  which 
there  was  a  plea  of  not  guilty,  and  a  special  plea  of  justification,  on 
the  ground  that  the  plaintiff  was  guilty  of  a  breach  of  the  peace  in 
the  defendant's  dwelling-house,  and  that  he  thereupon  gave  him  in 
charge  to  a  policeman,  who  was  not  averred  to  have  had  view  of  the 
breach  of  the  peace.  To  this  special  plea  there  was  a  replication  of 
de  injuria  sua  propria  absque  tali  causa.  On  the  trial,  the  jury  found 
a  verdict  for  the  plaintiff  on  the  general  issue,  and  for  the  defendant 
on  the  special  plea,  as  I  was  of  opinion  that  the  material  parts  of  it 
were  proved;  but,  as  it  appeared  to  me  that  the  plea  was  bad  in 
law,  I  directed  the  jury  to  assess  the  damages  on  the  general  issue, 
and  I  also  gave  the  plaintiff  permission  to  move  to  enter  a  verdict  for 
him  on  the  special  plea,  if  the  Court  should  be  of  opinion  that  it 
was  not  substantially  proved.  A  rule  nisi  having  been  obtained  to 
enter  a  verdict  for  the  plaintiff,  or  judgment  non  obstante  veredicto, 
the  case  was  fully  argued  before  my  Brothers  Bolland,  Alderson, 
Gurney,  and  myself,  last  Term.  We  have  since  considered  the  case, 
and  are  of  opinion  that  the  rule  ought  not  to  be  made  absolute,  but 
that  there  should  be  a  new  trial,  unless  the  parties  will  consent  to 
enter  a  stet  processus. 

The  facts  of  the  case,  as  to  which  there  was  little  or  rather  no  con- 
tradictory evidence,  may  be  very  shortly  stated.  The  defendant  was 
a  linen-draper;    the  plaintiff  was  passing  his   shop,  and,  seeing  an 

5c  Accord:  Hardy  v.  Murphy  (1795)  1  Esp.  294  (P.  and  S.  were  talking 
loudly  in  the  street,  and  refused  to  be  quiet  when  so  ordered  by  D.,  a  watch- 
man, who  thereupon  took  them  to  the  station  house) ;  Booth  v.  Hanley  (1826) 
2  C.  &  P.  2S8  (D.,  a  policeman,  arrests  P.,  who,  in  a  public  street,  was  "turn- 
ing to  the  wall  for  a  particular  purpose*')  ;  Wooding  v.  Oxley  (1839)  9  C.  «& 
P.  1  (P.  arrested  for  disturldng  a  public  meeting) ;  Palmer  v.  Maine  Cent. 
R.  Co.  (1899)  92  Me.  125,  42  Atl.  800,  44  L.  R.  A.  673,  69  Am.  St.  Rep.  513  (the 
conductor  of  the  defendant  railway  company  caused  the  plaintiff  to  be  ar- 
rested by  a  constable  without  a  warrant,  on  the  ground  that  plaintiff  had 
fraudulently  evaded  the  payment  of  his  fare)  ;  Kurtz  v.  Moffitt  (1885),  115 
U.  S.  487,  6  Sup.  Ct.  148,  29  L.  Ed.  458  (a  deserter  from  the  Federal  army  was 
arrested  by  a  state  police  otiiccr  without  a  warrant). 

And  see  "Arrest,"  3  Cyc.  880,  note  65.  For  statutory  modifications  of  the 
common-law  rule,  see  3  Cyc.  880-881,  notes  67-70. 


248  TORTS  THROUGH  ACTS   OF  ABSOLUTE   LIABILITY  (Part  T 

article  in  the  window,  with  a  ticket  apparently  attached  to  it,  de- 
noting a  low  price,  sent  his  companion  in  to  buy  it;  the  shopman  re- 
fused, and  demanded  a  larger  price;  the  plaintiff  went  in  himself  and 
required  the  article  at  the  lower  rate.  The  shopman  still  insisted 
on  a  greater  price;  the  plaintiff  called  it  "an  imposition."  Some  of 
the  shopmen  desired  him  to  go  out  of  the  shop  in  a  somewhat  offen- 
sive manner ;  he  refused  to  go  without  the  article  at  the  price  he  bid 
for  it;  the  shopmen  pushed  him  out.  Before  they  did  so,  he  declared 
he  would  strike  any  one  who  laid  hands  on  him.  One  of  the  shop- 
men, really  supposing,  or  pretending  to  suppose,  this  to  be  a  chal- 
lenge to  fight,  stepped  out  and  struck  the  plaintiff  in  the  face,  near 
the  shop  door;  the  plaintiff  went  back  into  the  shop  and  returned 
the  blow,  and  a  contest  commenced,  in  which  the  other  shopmen 
took  a  part,  and  fell  on  the  plaintiff.  There  was  a  great  noise  in  the 
shop,  so  that  the  business  could  not  go  on — many  persons  were  there, 
and  others  about  the  street  door.  The  noise  brought  down  the  de- 
fendant, who  was  sitting  in  the  room  above.  When  he  came  down 
he  found  the  shop  in  disorder,  and  the  plaintiff  on  the  ground  strug- 
gling and  scuffling  with  the  shopmen;  and  this  scuffle  continued  in 
the  defendant's  presence  for  two  or  three  minutes.  The  defendant 
sent  for  a  policeman,  who  soon  afterwards  came ;  in  the  meantime 
the  plaintiff  was  taken  hold  of  by  two  of  the  shopmen,  who,  how- 
ever, relinquished  their  hold  before  the  policeman  came ;  and,  on 
his  arrival,  the  plaintiff  was  requested  by  the  defendant  to  go  from 
the  shop  quietly;  but  he  refused,  unless  he  first  obtained  his  hat, 
which  he  had  lost  in  the  scuffle.  He  was  standing  still  in  the  shop 
insisting  on  his  right  to  remain  there,  and  a  mob  gathering  round 
the  door;  when  the  defendant  gave  him  in  charge  to  the  policeman, 
who  took  him  to  the  police  station.  The  defendant  followed;  but, 
on  the  recommendation  of  the  constable  at  the  station,  the  charge 
was  dropped. 

Upon  these  facts  the  plaintiff  appears  to  have  been,  in  the  first  in- 
stance, a  trespasser,  by  refusing  to  quit  the  shop  when  requested, 
and  so  to  have  been  the  cause  of  the  affray  which  subsequently  took 
place;  but  the  first  act  of  unlawful  violence  and  breach  of  the 
peace  was  committed  by  the  shopman ;  that  led  to  a  conflict,  in  which 
there  were  mutual  acts  of  violence  clearly  amounting  to  an  affray, 
the  latter  part  of  which  took  place  in  the  defendant's  presence;  and 
the  plaintiff  was  on  the  spot  on  which  the  breach  of  the  peace  oc- 
curred, persisting  in  remaining  there  under  such  circumstances  as 
to  make  it  probable  that  the  breach  of  the  peace  would  be  renewed, 
when  he  was  delivered  by  the  defendant  to  the  police  officer  in  the 
very  place  where  the  affray  had  happened. 

The  first  question  which  arises  upon  these  facts  is,  whether  the 
defendant  had  a  right  to  arrest  and  deliver  the  plaintiff  to  a  con- 
stable, the  police  officer  having,  by  the  stat.  10  Geo.  IV.  c.  44,  §  4,  the 


Ch.  1)  TRESPASSES  249 

same  powers  as  a  constable  has  at  common  law.  It  is  not  necessary 
for  us  to  decide  in  the  present  case  whether  a  private  individual,  who 
has  seen  an  affray  committed,  may  give  in  charge  to  a  constable  who 
has  not,  and  such  constable  may  thereupon  take  into  his  custody  the 
affrayers,  or  either  of  them,  in  order  to  be  carried  before  a  justice, 
after  the  aft'ray  has  entirely  ceased,  after  the  oft'enders  have  quitted 
the  place  where  it  was  committed,  and  there  is  no  danger  of  its 
renewal.  *  *  *  Here  the  defendant,  who  had  immediately  before 
witnessed  an  affray,  gave  one  of  the  aft'rayers  in  charge  to  the  con- 
stable on  the  very  spot  where  it  was  committed,  and  whilst  there  was 
a  reasonable  apprehension  of  its  continuance;  and  we  are  of  opinion 
thac  he  was  justified  in  so  doing,  though  the  constable  had  seen  no 
part  of  the  affray.  It  is  unquestionable  that  any  bystander  may  and 
ought  to  interfere  to  part  those  who  make  an  affray,  and  to  stay 
those  who  are  going  to  join  in  it  till  the  affray  be  ended.  It  is  also 
clearly  laid  down  that  he  may  arrest  the  affrayers,  and  detain  them 
until  the  heat  be  over,  and  then  deliver  them  to  a  constable.  Lam- 
bard,  in  his  Eirenarcha,  chap.  3,  p.  130,  says:  "Any  man  also  may 
stay  the  aff"ra3'ers  until  the  storm  of  their  heat  be  calmed,  and  then 
may  he  deliver  them  over  to  a  constable  to  imprison  them  till  they 
find  surety  for  the  peace ;  but  he  himself  may  not  commit  them  to 
prison,  unless  the  one  of  them  be  in  peril  of  death  by  some  hurt,  for 
then  may  any  man  carry  the  other  to  the  goal  till  it  be  known, 
whether  he,  so  hurt,  will  live  or  die,  as  appeareth  by  the  stat.  3 
Hen.  VII.  c.  1."  In  Hawk.  P.  C.  book  1,  c.  63,  §  11,  it  is  said,  that 
it  seems  agreed  that  any  one  who  sees  others  fighting  may  lawfully 
part  them,  and  also  stay  them  until  the  heat  be  over,  and  then  de- 
liver them  to  the  constable,  who  may  carry  them  before  a  justice  of 
the  peace,  in  order  to  their  finding  sureties  for  the  peace;  and  pleas 
founded  upon  this  rule,  and  signed  by  Mr.  Justice  Buller,  are  to  be 
found  in  9  Went.  Plead.  344,  345 ;  and  De  Grey,  Ch.  J.,  on  the  trial, 
held  the  justification  to  be  good.  It  is  clear,  therefore,  that  any  per- 
son present  may  arrest  the  affrayer  at  the  moment  of  the  affray,  and 
detain  him  till  his  passion  has  cooled,  and  his  desire  to  break  the 
peace  has  ceased,  and  then  deliver  him  to  a  peace  olffcer.  And,  if 
that  be  so,  what  reason  can  there  be  why  he  may  not  arrest  an  affrayer 
after  the  actual  violence  is  over,  bu^  whilst  he  shews  a  disposition  to 
renew  it,  by  persisting  in  remaining  on  the  spot  where  he  has  com- 
mitted it?  Both  cases  fall  within  the  same  principle,  which  is  that, 
for  the  sake  of  the  preservation  of  the  peace,  any  individual  who 
sees  it  broken  may  restrain  the  liberty  of  him  whom  he  sees  breaking 
it,  so  long  as  his  conduct  shews  that  the  public  peace  is  likely  to  be 
endangered  by  his  acts.  *  *  *  por  these  reasons  we  are  of  opin- 
ion that  the  defendant  was,  upon  the  facts  in  evidence,  justified  in 
delivering  the  plaintiff  to  the  police  officer. 

This  brings  me  to  the  second  question,  whether  the  plea  upon  the 
record  was  substantially  proved.     I   thought  upon  the  trial   that  it 


250  TORTS  THROUGH   ACTS  OP   ABSOLUTE   LIABILITY  (Part  1 

was,  but,  upon  further  consideration,  I  concur  with  the  rest  of  the 
Court  in  thinking  that  it  was  not.    The  plea  was  as  follows : 

"And  the  defendant  says,  that  before  and  at  the  said  time  when,  etc.,  the 
said  defendant  was  lawfully  possessed  of  a  certain  dwelling-house  in  the  city 
of  London,  and  tlie  said  defendant  being  so  possessed  thereof,  the  said  plain- 
tiff just  before  the  said  time  when  &e.  entered  and  came  into  the  said  dwelling- 
house,  and  then  and  there,  with  force  and  arms,  made  a  great  noise,  dis- 
turbance, and  affray  therein,  and  then  and  there  insulted,  abused,  and  ill- 
treated  the  defendant  and  his  servants  in  the  said  dwelling-house,  and  greatly 
disturbed  and  disquieted  them  in  the  peaceable  and  quiet  possession  of  the 
said  dwelling-house,  in  breach  of  the  peace  of  our  said  lord  the  King ;  where- 
upon the  defendant  then  and  there  requested  the  plaintiff  to  cease  his  noise 
and  disturbance,  and  to  depart  from  and  out  of  the  said  house,  which  the 
plaintiff'  then  and  there  wholly  refused  to  do,  and  continued  in  the  said  house, 
making  the  said  noise,  disturbance,  and  affray  therein;  whereupon  the  de- 
fendant, in  order  to  preserve  the  peace  and  restore  good  order  and  tran- 
quillity in  the  said  house,  then  and  there  gave  charge  of  the  plaintiff  to  a 
certain  policeman  of  the  city  of  London,  and  then  and  there  requested  the 
said  policeman  to  take  the  plaintiff  into  his  custody,  to  be  dealt  with  ac- 
cording to  law;  and  the  said  policeman,  so  being  such  policeman  as  aforesaid, 
at  such  request  of  the  defendant,  then  and  there  gently  laid  his  hands  on  the 
plaintiff  for  the  cause  aforesaid,  and  did  then  and  there  take  the  plaintiff"  into 
his  custody." 

The  replication  puts  in  issue  all  the  allegations  constituting  the 
ground  of  the  arrest,  and  of  these  it  is  not  necessary  to  prove  all. 
It  is  enough  to  establish  so  many  of  them  as  would  justify  the  ar- 
rest. It  is  not  enough  to  prove  facts  which  justify  the  imprison- 
ment, it  is  necessary  to  prove  such  of  the  facts  alleged  as  would  do  so. 
The  allegations  which  were  proved  were  the  entry  into  the  defend- 
ant's house,  the  assault  on  his  servants,  the  disturbance  of  the  de- 
fendant in  his  possession  of  the  house,  by  an  affray  in  it,  in  which  the 
plaintiff  bore  a  part,  just  before  the  time  of  the  arrest,  and  that  the 
defendant  gave  the  plaintiff  in  charge  in  order  to  preserve  the  pub- 
lic peace;  but  the  fact  of  an  assault  on  the  plaintiff  himself  was  not 
proved,  and  that  is  the  only  breach  of  the  peace  which  in  the  plea 
appears  by  necessary  implication  to  have  been  committed  in  the  de- 
fendant's presence;  for  in  none  of  the  other  alleged  facts  is  the 
defendant's  presence  inserted  or  necessarily  implied  before  the  mo- 
ment of  actual  interference.  The  disturbance  of  the  defendant  in 
the  possession  of  his  dwelling-house  might  have  occurred  by  an  entry 
in  his  absence,  and  therefore  that  averment  does  not  by  necessary 
implication  affect  the  defendant's  presence.  If  so,  the  substance  of 
this  plea,  that  is,  so  many  of  the  allegations  in  it  as  constituted  a 
defence,  was  not  proved,  as  the  assault  on  the  defendant  himself  was 
not  proved.  For  this  reason  we  think  that  the  proof  failed :  but,  as 
this  is  a  case  in  which  an  amendment  would  have  been  allowed  by 
virtue  of  the  late  statute,  as  it  is  clear  upon  the  facts  that  there 
was  a  defence,  on  the  ground  of  the  defendant's  right  to  arrest  for 
a  breach  of  the  peace  in  his  presence,  and  as  the  declaration  of  my 
opinion,  that  the  plea  was  substantially  proved,  at  the  time,  probably 
prevented  an  application  to  amend,  we  think  that  there  should  be 


Ch.  1)  TRESPASSES  251 

a  new  trial,  when,  or  before  which,  the  plea  may  be  amended.    And 
as  ultimately  there  will  be  a  verdict  for  the  defendant,  if  the  same 
evidence  is  adduced,  the  best  course  will  be  for  the  parties  to  agree  to 
enter  a  sfet  processus.^'' 
Rule  accordingly. 


DERECOURT  v.  CORBISHLEY. 

(Court  of  Queen's  Bencli,  1855.    5  El.  &  Bl.  188,  119  Reprint,  451.) 

Declaration   for  assaulting  and  beating  defendant,  and  giving  him 

into  custody  to  a  policeman,  and  causing  him  to  be  imprisoned  at  a 

police  station.     There  was  a  plea  that 

Before  the  committing,  etc.,  one  Jolin  Watkins  was  lawfully  possessed  of  a 
messuage,  situate  within  tlie  city  of  Loudon  police  district:  and,  being  so 
possessed,  the  plaintiff,  with  force  and  arms,  and  with  a  strong  hand,  into 
the  said  messuage  unlawfully,  violently  and  forcibly  did  enter  and,  from  the 
possession  of  the  said  messuage,  with  a  strong  hand,  unlawfully,  violently  and 
forcibly  did  expel  and  amove  the  said  J.  W.,  against  the  peace,  etc. ;  and  the 
plaintiff  committed  the  said  breach  of  the  peace  in  the  presence  of  one  of  the 
officers  of  the  city  of  London  police,  and  a  peace  officer  and  constable  of  our 
lady  the  queen,  and  who  then  and  there  had  view  of  the  said  breach  of  the 
peace  which  was  committed  within  the  city  of  London  police  district.  And 
thereupon  defendant  gave  plaintiif  in  charge  of  the  said  police  officer  for  the 
said  offence,  and  directed  him  to  take  him  into  custody  and  convey  him  before 
one  of  the  city  of  London  police  magistrates  to  answer  for  the  said  offence ; 
and  the  said  police  officer,  accordingly,  in  pursuance  of  the  said  charge,  gently 
laid  his  hands  on  the  plaintiff,  and  took  him  into  custody ;  and,  for  the  pur- 
pose of  conveying  him  before  a  city  of  London  police  magistrate,  conveyed  him 
in  custody  to,  and  imprisoned  him  for  a  short  and  reasonable  time  at,  the 
said  police  station,  doing  no  more  than  in  duty  he  was  bound  to  do;  and 
which  are  the  trespasses  and  acts  complained  of. 

To  the  plea  there  was  a  demurrer. 

Erle,  J.  I  also  think  that  the  plea  is  good.  The  action  is  for  tres- 
pass and  false  imprisonment :  I  think  there  is  a  good  confession  and 
avoidance.  The  defendant  says  he  did  call  upon  the  constable  to  ar- 
rest the  plaintiff;  so  there  is  a  good  confession.  Then  the  avoidance 
is,  that  the  plaintiff  committed  a  breach  of  the  peace  in  the  sight  of 
the  constable,  and  thereupon  the  defendant  directed  the  constable  to 
arrest  him;  that,  I  think,  is  a  good  avoidance.  The  argument  for 
the  plaintiff  is,  that  the  breach  of  the  peace  might  have  been  over  be- 
fore the  arrest  took  place ;  but  the  plea  uses  the  word  "thereupon,'' 
which  I  understand  to  mean  the  same  as  "then  and  there."  Then 
was  the  defendant  wrong  in  directing  the  constable  to  do  his  duty 
against  the  plaintiff  ?  I  think  it  very  important  to  hold  that  he  was  right. 
On  the  plea,  as  we  must  understand  it,  the  plaintiff  has  been  shewn 
to  be  dealt  with  according  to  law.  Xo  right,  therefore,  has  been  vio- 
lated. It  has  been  pressed  upon  us  that,  although  the  constable  might 
have  a  right  to  arrest,  the  defendant  had  no  right  to  direct  him  to  do 

BT  Part  of  the  opinion  Is  omitted. 


252  TORTS  THROUGH  ACTS   OF  ABSOLUTE   LIABILITY  (Part  I 

SO.  It  may  very  often  happen  that  bystanders  may  see  a  constable 
passing  by  a  breach  of  the  peace  with  perfect  indifference,  and  may 
think  it  right  to  take  up  the  matter  and  direct  the  constable  to  do  his 
duty.  I  should  be  very  unwilling  to  hold,  and  I  never  heard  that  it 
has  been  holden,  that  in  such  a  case  a  bystander  may  not  set  the  con- 
stable in  motion. 
Judgment  for  defendant.^' 


BAYNES  V.  BREWSTER. 

(Court  of  Queen's  Bench,  1841.    2  Q.  B.  375,  114  Reprint,  149,  57  R.  R.  707.) 

Trespass  for  assault  and  false  imprisonment.  The  defendant  plead- 
ed first,  not  guilty,  and  secondly,  that  the  plaintiff  on  a  certain  night, 
notwithstanding  the  defendant's  request  that  he  cease  and  depart, 
knocked  and  rapped  on  the  back  door  of  defendant's  dwelling  house 
and  was  threatening  the  defendant  to  continue  making  the  said  noise 
and  disturbance  until  defendant  should  deliver  to  plaintiff  a  certain 
book,  then  in  the  possession  of  the  defendant ;  that  the  plaintiff'  hav- 
ing continued  to  make  said  noise  and  disturbance  for  two  hours,  the 
defendant  then  sent  to  one  James  Chatters,  then  being  the  constable 
of  the  parish, 

for  the  purpose  of  arresting  and  taking  plaintiff  into  custody,  and  thereby 
preventing  him  further  disturbing  and  annoying  defendant  and  liis  family  as 
aforesaid ;  and  plaintiff,  having  ascertained  that  he  was  about  to  he  given 
into  custody  by  defendant,  ceased  the  said  knocking  and  rapping  at  the  back 
door  of  the  said  dwelling  house,  but  which  he  had  violently,  wrongfully,  and 
illegally  continued  up  to  that  period,  and  then  and  there  ran  and  escaped  off 
and  from  the  said  premises  of  the  defendant;  when  defendant,  accompanied 
by  certain  persons  who  had  been  called  to  the  aid  and  assistance  of  the  said 
James  Chatters,  so  being  such  constable  as  aforesaid,  immediately  followed 
and  pursued  plaintiff,  and  overtook  him  in  a  certain  close  near  to  the  said 
dwelling  house  of  the  defendant;  whereupon  defendant,  in  order  to  preserve 
the  peace  and  to  prevent  the  said  plaintiff  f  i-om  continuing  to  disturb  the  good 
order  and  tranquillity  of  the  said  dwelling  house  of  the  defendant,  and  to 
hinder  and  prevent  plaintiff  from  continuing  to  make  said  noise  and  disturb- 
ance at  the  said  dwelling  house  of  defendant  during  the  whole  night,  then 
gave  charge  of  plaintitf  to  said  James  Chatters,  then  and  there  being  such 
constable  as  aforesaid,  and  then  requested  the  said  James  Chatters,  so  being 
such,  etc.,  to  take  plaintiff  into  his  custody,  and  carry  him  before  some  justice 
or  justices  of  our  said  lady  the  queen,  assigned,  etc.,  to  answer  the  premises, 
and  to  be  dealt  with  according  to  law. 

Issue  was  taken  on  this  second  plea,  and  at  the  trial  a  verdict  was 
found  for  the  plaintiff*  on  the  general  issue  and  for  the  defendant  on 
the  second  plea.  Afterwards  a  rule  nisi  was  obtained  for  judgment 
non  obstante  veredicto.^  ^ 

58  The  concurring  opinions  of  Lord  Campbell,  C.  J.,  and  Coleridge,  J.,  are 
omitted. 

fio  The  statement  of  facts  has  been  abridged.  Part  of  the  opinion  of 
Colei-idge,  J.,  and  the  concurring  opinions  of  Lord  Denman,  C.  J.,  and  Wil- 
liams, J.,  are  omitted. 


Ch.  1)  TRESPASSES  253 

Coleridge,  J.  *  *  *  The  plaintiff  quitted  the  premises  when 
he  ascertained  that  the  constable  was  coming.  The  plea  does  indeed 
allege  that  the  defendant  gave  the  plaintiff  into  custody  in  order  to 
prevent  a  continuance  of  the  breach  of  the  peace :  but  it  is  not  aver- 
red that  the  plaintiff',  after  quitting  the  premises,  either  threatened  or 
intended  to  continue  the  breach  of  the  peace.  The  plea,  therefore, 
contains  nothing  equivalent  to  an  allegation  that  another  breach  of  the 
peace  was  about  to  be  committed.  The  question  is  simply  whether, 
after  a  breach  of  the  peace  is  over,  a  constable  who  has  not  seen  it 
may  take  up  the  party  without  warrant.  Then  it  is  contended  that 
after  verdict  we  must  infer  all  the  facts  necessary  to  support  the  ver- 
dict. But  the  plea  here  contains  nothing  of  which  proof  might  not 
have  been  given  without  evidence  of  circumstances  necessary  to  com- 
plete a  good  defence. 

WiGHTMAN,  J.  The  plaintiff  is  entitled  to  our  judgment  on  the 
question,  whether  or  not  the  defendant,  when  he  caused  the  imprison- 
ment, was  justified  in  so  doing.  The  point  is  perfectly  clear.  The 
authorities  are  collected  in  Timothy  v.  Simpson  [1835]  1  Cr.,  M.  &. 
R.  757.     *     *     *  60 

The  defendant  here  fails  to  bring  his  case  within  that  principle. 
On  the  contrary  the  plaintiff"  only  threatened  at  first  to  continue  the 
disturbance ;  but,  when  he  heard  the  officer  was  coming,  ran  away. 
There  is  nothing  to  show  that,  after  he  ran  away,  he  either  insisted  on 
remaining,  or  intended  to  do  so.  It  would  be  going  a  very  great 
length  indeed  to  hold  that  the  subsequent  apprehension  upon  a  pur- 
suit under  such  circumstances,  without  warrant,  was  justifiable. 

Rule  absolute. 


BALTBIORE  &  O.  R.  CO.  v.  CAIN. 

(Court  of  Appeals  of  Maryland,  1895.    SI  Md.  87,  31  Atl.  801,  28  L.  R.  A.  6S8.) 

Action  by  Cain  against  the  railway  company  for  false  imprisonment 
in  having  plaintiff  arrested  on  a  charge  of  disorderly  conduct,  on  one 
of  defendant's  trains.  From  a  verdict  and  judgment  for  the  plaintiff, 
the  defendant  appealed. 

It  appeared  in  the  evidence  that  on  a  Sunday  morning  the  plain- 
tiff' and  three  companions  drove  to  a  camp  meeting  at  Washington 
Grove  and  shortly  thereafter  took  passage  on  the  defendant's  train 
for  Washington  City,  entering  the  ladies'  car.  There  was  evidence 
also,  that,  after  these  men  entered  the  ladies'  car,  they  cursed  and 
swore  and  drank  liquor  openly,  and  that  one  of  them  was  smoking; 
that  the  conductor  expostulated  with  them,  and  urged  them  to  be  quiet 
or  to  go  into  the  smoking  car,  where  they  could  drink  and  smoke  as 
much  as  they  pleased ;  that  they  said  they  had  paid  their  fares,  and 
would  ride  where  it  suited  them. 

6  0  Wightman,  J.,  here  quoted  at  length  from  Timothy  v.  Simpson. 


254  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

McSniiRRY,  J.  *  *  *  f  he  conductor  again  appealed  to  them  to 
be  orderly,  or  he  would  be  obliged  to  put  them  off  the  car ;  whereupon 
the  plaintiff  replied :  "If  you  put  him  off  (meaning  Watkins,  who 
was  smoking),  you  will  have  to  go  too."  It  was  further  proved  that 
numerous  complaints  were  made  by  ladies  and  gentlemen  about  the 
conduct  of  these  four  men,  and  that  one  lady  left  the  car,  and  went 
into  the  forward  car.  Afterwards  other  ladies  who  got  on  the  train 
at  other  stations  were  put  in  the  forward  car,  because  it  was  not  fit 
for  them  to  enter  the  one  where  the  men  were.  The  conductor  did 
not  undertake  to  put  them  off,  because  he  did  not  believe  himself  able 
to  cope  with  these  four  intoxicated  and  lawless  men.  Just  before  the 
train  arrived  in  Washington,  the  plaintiff  was  still  behaving  in  a  dis- 
orderly manner,  and  using  profane  language,  in  the  hearing  of  the 
passengers  on  the  same  car.  There  were  between  50  and  60  passen- 
gers on  the  train,  most  of  whom  were  on  their  way  to  church  in  Wash- 
ington. Finding  himself  unable  to  control  these  men  or  to  suppress 
their  disorder,  and  feeling  powerless  to  eject  them  because  of  their 
threatened  resistance,  the  conductor  telegraphed  from  Forest  Grove 
to  Washington  for  an  officer  to  arrest  them,  and,  when  the  train  drew 
up  in  the  depot  in  that  city,  the  policeman  was  there,  and  the  conductor 
pointed  out  to  him  the  plaintiff;  and  the  officer  then  and  there  arrest- 
ed the  plaintiff,  and  took  him  to  the  station  house. 

With  these  facts  before  the  jury,  there  were  two  prayers  presented 
by  the  plaintiff,  both  of  which  were  granted ;  and  there  were  nine 
presented  by  the  defendant,  all  of  which,  except  the  sixth,  were  re- 
jected. The  view  we  take  of  the  case  dispenses  with  a  separate  consid- 
eration of  each  of  these  prayers,  inasmuch  as  the  defendant's  fifth 
prayer  raises  the  crucial  inquiry  contained  in  the  record;  and  what 
we  shall  say  in  discussing  that  prayer  will,  with  a  few  brief  addition- 
al observations,  dispose  of  most,  if  not  all,  of  the  others.  The  fifth 
prayer  maintains  that,  if  the  plaintiff  was  riotous  and  disorderly,  the 
conductor  had  the  right  to  eject  him;  that,  if  the  conductor  was  un- 
able to  do  this  by  reason  of  the  threat  of  resistance,  then  the  conductor 
was  justified  in  requesting  the  first  police  officer  whom  he  could  find 
to  arrest  the  plaintiff  and  it  proceeds : 

"If  the  jury  further  find  that  the  police  officer  at  the  Washington  depot  was 
the  first  police  oflicer  the  conductor  saw,  and  that  the  conductor  used  due 
diligence  in  procuring  a  police  officer,  and  that  the  conductor  directed  the 
police  officer  to  arrest  the  plaintifl;  for  said  disordei'ly  conduct,  that  the  de- 
fendant is  not  liable  for  this  arrest,  and  the  verdict  of  the  jury  must  be  for 
the  defendant." 

From  this  prayer,  considered  in  connection  with  the  evidence  to 
which  allusion  has  been  made,  it  is  obvious  at  a  glance  that  the  pre- 
dominant and  controlling  question  before  us  involves  the  legality  of 
the  conceded  arrest  made  in  the  city  of  Washington.  Under  the  un- 
disputed proof,  that  arrest  was  made  without  a  warrant  having  been 
first  procured.  It  was  not  made  for  an  alleged  felony,  nor  for  a  mis- 
dem-eanor  or  breach  of  the  peace,  committed  within  view  of  the  offi- 


Ch.  1)  TRESPASSES  255 

cer  who  took  the  plaintiff  into  custody,  but,  if  the  evidence  of  the 
defendant's  witnesses  be  credited,  it  was  made  for  a  flagrant  breach 
of  the  peace,  which  began  at  Washington  Grove,  and  continued  into 
Washington  City,  on  the  morning  train  of  the  defendant,  and  was 
made  at  the  instance  of  the  conductor,  the  very  moment  he  reached 
a  place  where  he  could  deliver  these  intoxicated  offenders  into  the 
custody  of  a  police  officer.    Was  the  arrest  so  made  illegal? 

It  is  settled  that  an  officer  has  the  right  to  arrest  without  a  war- 
rant for  any  crime  committed  within  his  view.  It  was  his  duty  to  do 
so  at  the  common  law,  and  this  is  still  the  law  (Roddy  v.  Finnegan, 
43  Md.  504;  Phillips  v.  Trull,  11  Johns.  [N.  Y.]  486;  Derecourt  v. 
Corbishley,  5  El.  &  Bl.  188) ;  and  in  cases  of  felony  he  may  arrest 
upon  information,  without  warrant,  where  he  has  reasonable  cause 
(Rex  V.  Birnie,  1  Moody  &  R.  160;  Rohan  v.  Sawin,  5  Cush.  [Mass.] 
281).  And  so  any  person,  although  not  an  officer,  in  whose  view  a 
felony  is  committed,  may  arrest  the  off'ender.  Ruloff  v.  People,  45 
N.  Y.  213.  But  the  right  of  a  person  not  an  officer  to  make  an  arrest 
is  not  confined  to  cases  of  felony  for  he  may  take  into  custody,  with- 
out a  warrant,  one  who  in  his  presence  is  guilty  of  an  affray  or  a 
breach  of  the  peace.  Knot  v.  Gay,  1  Root  (Conn.)  66.  "It  seems 
agreed  that  any  one  who  sees  others  fighting  may  lawfully  part  them, 
and  also  stay  them  till  the  heat  be  over,  and  then  deliver  them  to  the 
constable,  who  may  carry  them  before  a  justice  of  the  peace,  in  order 
to  their  finding  sureties  for  the  peace."  1  Russ.  Crimes,  272 ;  1 
Archb.  Cr.  Prac.  &  PI.  82;  1  Hawk.  P.  C.  c.  63,  §§  11,  17;  2  Hale, 
P.  C.  90;  East,  P.  C.  306;  Timothy  v.  Simpson,  1  Cromp.,  M.  &  R. 
757.     *     *     * 

Now,  if  it  be  true  that  the  plaintiff  was  guilty  of  the  reprehensible 
and  disorderly  conduct  attributed  to  him  by  the  witnesses,  he  was  in- 
contestably  engaged  in  a  flagrant  and  an  outrageous  breach  of  the 
peace,  as  pronounced  as  if  there  had  been  an  actual  affray  during  the 
whole  time  he  was  in  the  defendant's  car ;  and  it  was  clearly  lawful, 
under  these  conditions,  for  the  conductor  to  expel  him  and  his  drunk- 
en companions  from  the  train  if  he  had  a  sufficient  force  to  overcome 
their  threatened  resistance,  or  else  to  arrest  them  all  without  warrant, 
and  then  deliver  them  to  the  first  peace  officer  he  could  procure  within 
a  reasonable  time.  If  this  were  not  so,  then,  as  said  by  Lord  Chief 
Justice  Denman  in  Webster  v.  Watts  [11  O.  B.  311],  "the  peace  of 
all  the  world  would  be  in  jeopardy."  And  it  would  be  in  jeopardy, 
because  if,  in  such  and  similar  instances,  no  arrest  could  be  lawfully 
made  without  a  warrant,  the  culprit,  "if  transient  and  unknown,  would 
escape  altogether,"  before  a  warrant  could  be  obtained  (Mitchell  v. 
Lemon,  34  Md.  181),  and  there  would  soon  cease  to  be  any  order  or 
any  security  or  protection  afforded  the  public  on  swiftly-moving  rail- 
road trains,  or  even  elsewhere,  unless  a  peace  officer  were  constantly 
present.  The  delay  necessarily  incident  to  obtaining  a  warrant  would 
be  in  many,  if  not  in  most,  cases  of  this  and  a  kindred  character  ecjuiv- 


25G  TORTS  THROUGH  ACTS   OP  ABSOLUTE   LIABILITY  (Part  1 

alent  to  an  absolute  immunity  from  arrest  and  punishment;  and, 
should  the  name  of  the  offender  be  unknown,  he,  most  probably, 
would  never  be  apprehended  if  once  suffered  to  depart.  The  law  is 
not  so  impotent  and  ineffective  as  that. 

Being  physically  unable  to  expel  these  alleged  riotous  persons  from 
the  train,  the  conductor  telegraphed  for  a  peace  officer,  and  without 
delay,  and  while  the  plaintiff  was  still  drunk,  caused  his  arrest  the 
instant  the  officer  thus  summoned  came  in  view  of  the  plaintiff.  If,  then, 
any  bystander  could,  in  the  language  of  Baron  Parke,  "for  the  sake 
of  the  preservation  of  the  peace,  *  *  *  restrain  the  liberty  of 
him  whom  he  sees  breaking"  the  peace,  the  act  of  the  conductor  in 
telegraphing  for  the  policeman,  and  within  a  short  space  of  time  there- 
after handing  the  plaintiff  over  to  the  officer,  was  in  no  respect  dif- 
ferent from  a  formal  arrest  of  the  plaintiff  by  the  conductor,  in  the 
midst  of  the  riot  and  disorder,  and  the  prompt  delivery  of  him  after- 
wards to  the  officer.  If  the  plaintiff  was  not  in  fact  arrested  by  the 
conductor  because  of  the  presence  of  superior  resisting  force,  that 
fact  cannot  make  the  subsequent  act  of  the  conductor  in  pointing  out 
the  plaintiff  to  the  officer  wrongful  or  illegal.  The  charge,  according 
to  the  plaintiff's  own  testimony,  was  sustained.  A  fine  was  imposed, 
and  he  paid  it.  The  accusation  was  therefore  well  founded,  and  what 
was  done  by  the  conductor,  if  the  facts  testified  to  by  the  defendant's 
witnesses  be  credited,  was  undeniably  lawful,  under  all  the  circum- 
stances. If  this  be  so,  then  there  is  obviously  no  cause  of  action 
against  the  defendant,  because  no  wrong  has  been  done  to  the  plain- 
tiff. This  is  the  theory  of  the  defendant's  fifth  prayer.  That  prayer, 
being  correct  in  principle  and  proper  in  form,  ought  to  have  been 
granted.  For  the  same  reasons,  the  second,  third,  fourth,  and  seventh 
prayers  should  have  been  granted. 

The  eighth  was  properly  rejected.  It  makes  the  right  to  arrest  de- 
pend on  the  fact  that,  while  on  the  train,  the  plaintiff  was  charged 
by  the  conductor  with  being  disorderly,  whereas  the  right  to  arrest 
depended  on  the  fact  that  the  plaintiff  was  in  reality  disorderly.  His 
having  been  charged  by  the  conductor  with  being  disorderly  is  quite 
a  different  thing  from  his  having  been  in  fact  disorderly.  The  ninth 
prayer  was  properly  rejected.  It  failed  to  submit  to  the  jury  that  the 
arrest  was  made  for  the  alleged  breach  of  the  peace.  Though  the  ar- 
rest had  been  made  without  an  assigned  cause,  the  prayer  exonerated 
the  defendant. 

The  plaintiff's  first  prayer  ought  to  have  been  rejected.  Its  fallacy 
lies  in  the  postulate  that  an  arrest  for  a  breach  of  the  peace,  committed 
out  of  the  view  of  a  peace  officer,  necessarily  could  not  be  legally 
made  without  a  warrant.     *     *     * 

Judgment  reversed  and  new  trial  awarded.®^ 

01  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Ch.  1)  TRESPASSES  257 

HANDCOCK  V.  BAKER  et  al. 

(Court  of  Common  Pleas,  1800.    2  Bos.  &  P.  260,  126  Reprint,  1270,  5  R.  R.  587.) 

Trespass  for  breaking  the  plaintiff's  dwelling-house  and  assaulting 
him  therein,  and  dragging  him  out  of  bed,  and  forcing  him  without 
clothes  out  of  his  house  along  the  public  street,  and  beating  and  im- 
prisoning him  without  cause.  Two  of  the  defendants  suffered  judg- 
ment by  default;  and  the  other  two  pleaded,  1st,  not  guilty;  2ndly, 
as  follows : 

That  the  plaintiff,  in  the  said  dwelling-house,  broke  the  peace  and  assaulted 
his  wife,  and  purposed  to  have  feloniously  killed  and  slain  her,  and  was  on  the 
point  of  so  doing;  and  that  her  life  being  in  great  danger  she  cried  murder 
and  called  for  assistance ;  whereupon  the  defendants,  for  the  preservation  of 
the  peace,  and  to  prevent  the  plaintiff  from  so  killing  and  slaying  his  wife,  and 
committing  the  said  felony,  endeavoured  to  enter  by  the  door,  and  knocked 
thereat;  and  because  the  same  was  fastened,  and  there  was  reason  to  pre- 
sume that  the  wife's  life  could  not  have  been  otherwise  preserved  than  by 
immediately  breaking  open  the  door  and  entering  the  said  dwelling-li.use.  and 
they  could  not  otherwise  obtain  possession,  they  did  for  that  purpose  break 
and  enter  the  said  dwelling-house,  and  somewhat  break,  etc.,  doing  as  little 
damage  as  possible,  and  gently  laid  hands  on  the  plaintiff,  and  prevented  him 
from  further  assaulting  and  feloniously  killing  and  slaying  his  said  wife; 
and  for  the  same  purpose  and  also  for  that  of  taking  and  delivering  the 
plaintiff  to  a  constable,  to  be  by  him  taken  before  a  justice,  and  dealt  with 
according  to  law,  kept  and  detained  him  a  short  and  reasonable  time  in  that 
behalf,  and  because  he  had  not  then  proper  and  reasonable  clothes  on  him, 
took  their  hands  oft'  from  him,  and  permitted  him  to  enter  a  bed-chamber, 
and  to  remain  there  a  reasonable  time,  that  he  might  put  on  such  clothes, 
which  he  might  have  done ;  and  because  he  did  not  nor  would  so  do,  but 
wholly  refused  and  went  into  bed  there,  and  remained  there  at  the  end  of 
such  reasonable  time,  and  would  not  quit  the  same,  although  thereto  requested, 
the  defendants  for  the  same  purposes  as  they  so  kept  and  detained  the  plaintiff 
as  above  mentioned,  there  being  then  no  reasonable  ground  for  presuming  that 
he  had  changed  his  purpose  of  further  assaulting  and  feloniously  slaying  his 
said  wife,  entered  the  bed-chamber  in  order  for  these  purposes  to  take  him 
therefrom,  whereupon  the  plaintiff  assaulted  and  would  have  beat  the  said 
defendants  if  they  had  not  defended  themselves,  which  they  did,  and  if  any 
damage  happened  to  the  plaintiff"  it  was  occasioned  by  his  own  assault,  and 
the  defendants  for  the  purpose  in  that  behalf  aforesaid,  gently  laid  hands  upon 
the  plaintiff  and  took  him  from  the  bed  and  out  of  the  dwelling  house  along 
the  public  streets  for  a  reasonable  time,  and  kept  and  detained  him  for  a  short 
and  reasonable  time  for  those  purposes,  till  they  could  find  a  constable,  and 
as  soon  as  they  could  find  a  constable  delivered  him  to  the  constable  for  the 
purpose  in  that  behalf  aforesaid. 

On  the  trial  there  was  a  verdict  for  the  plaintiff  on  the  general  is- 
sue, and  for  the  defendants  on  the  special  justification.  At  the  fol- 
lowing term  a  rule  nisi  was  obtained  calling  on  the  defendants  to  show 
cause  why  judgment  in  their  favor  on  the  special  justification  should 
not  be  arrested  and  a  verdict  entered  for  the  plaintiff  on  the  gen- 
eral issue,  with  Is.  damages. 

Lord  Eldon,  Ch.  J.  *  *  *  In  this  case  the  plaintiff  being 
about  to  commit  a  felony  by  killing  and  slaying  his  wife,  the  defend- 
ants interfered  by  breaking  and  entering  the  house  in  order  to  pre- 
Hepb.Tobts — 17 


258  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

vent  the  execution  of  that  intent;  and  "for  the  same  purposes,"  that 
is,  with  a  view  to  prevent  the  plaintiff  from  kiUing  and  slaying  his 
wife,  they  afterwards  committed  the  injury  complained  of  in  the  bed- 
room, into  which  they  had  permitted  him  to  enter  in  order  to  put 
on  necessary  clothes.  It  is  stated  that  there  was  no  reasonable  ground 
for  presuming  that  the  plaintiff  had  changed  his  purpose ;  and  it  is 
argued  that  it  ought  to  have  been  averred  that  his  purpose  actually 
continued :  but  if  the  preceding  allegation  be  true,  that  the  defend- 
ants entered  the  bed-room  for  the  same  purpose  for  which  they  had 
previously  entered  the  house,  the  latter  allegation  was  unnecessary; 
since  the  averment  that  it  was  for  the  same  purposes  sufficiently 
brought  the  question  before  the  jury,  Whether  or  not  the  defendants 
(entered)  into  the  bed-chamber  and  detained  the  plaintiff  for  the  pur- 
pose of  preventing  him  from  killing  and  slaying  his  wife?  It  is  not 
difficult  to  conceive  that  under  some  circumstances  it  might  be  more 
especially  the  defendants'  duty  to  interfere  in  that  manner.  Suppose 
A.  endeavour  to  lay  hold  of  B.  who  is  in  pursuit  of  C.  with  an  intent 
to  kill  him,  and  B.  thereupon  ceases  to  pursue  with  a  view  of  eft"ect- 
ing  his  purpose  with  more  cunning,  the  act  of  ceasing  to  run,  so  far 
from  being  evidence  of  an  intention  to  desist  from  his  purpose,  might 
afford  strong  evidence  of  an  intention  to  prosecute  it  with  more  ef- 
fect; in  which  case  the  detention  of  B.  would  be  justified.  In  this 
case  the  jury  were  competent  to  consider  whether  under  all  the  cir- 
cumstances of  the  case,  including  the  presence  or  absence  of  the  wife, 
the  plaintiff  got  into  bed  with  a  view  of  more  effectually  executing  his 
intent  to  kill  his  wife.  In  fact  the  jury  have  found  that  the  defend- 
ants kept  and  detained  the  plaintiff  after  he  had  gone  into  the  bed- 
room for  the  same  purpose  for  which  they  kept  and  detained  him  be- 
fore. With  respect  to  the  averment  which  has  been  supposed  to  be 
necessary,  it  is  sufficient  to  answer,  that  after  verdict  it  must  be  pre- 
sumed that  every  thing  is  proved  which  is  necessary  to  support  the 
verdict;  and  the  jury  have  found  that  it  was  necessary  for  the  pres- 
ervation of  the  woman's  life  that  the  defendants  should  do  what  they 
did. 

Heath,  J.  I  am  of  the  same  opinion.  It  is  a  matter  of  the  last 
consequence  that  it  should  be  known  upon  what  occasions  by-standers 
may  interfere  to  prevent  felony.  In  the  riots  which  took  place  in  the 
year  1780,  this  matter  was  much  misunderstood,  and  a  general  per- 
suasion prevailed  that  no  indifferent  person  could  interpose  without 
the  authority  of  the  magistrate;  in  consequence  of  which  much  mis- 
chief was  done,  which  might  otherwise  have  been  prevented.  In  this 
case  the  defendants  broke  and  entered  the  plaintiff's  house  in  order 
to  prevent  the  commission  of  murder,  and  that  seems  to  have  been 
admitted  to  be  a  good  justification.  The  only  dispute  therefore  turns 
on  the  propriety  of  their  conduct  towards  the  plaintiff'  after  they  had 
suffered  him  to  go  into  the  bed-room.  Now  I  think  that  enough  is 
stated  in  the  justification  to  support  the  verdict,  since  the  jury  have 


Ch.  1)  TRESPASSES  259 

thought  that  the  conduct  of  the  defendants  was  right.  After  verdict 
we  may  suppose  anything.  We  may  suppose  that  the  plaintiff's  pas- 
sion continued,  and  that  he  again  declared  that  he  would  kill  his 
wife. 

Rule  discharged.^* 


BECKWITH  V.  PHILBY  et  al. 

(Court  of  King's  Bench,  1827.    6  Barn.  &  C.  635,  108  Reprint,  585,  30  R.  R.  484.) 

This  was  an  action  for  assaulting,  beating,  handcuffing,  and  im- 
prisoning the  plaintiff,  and  keeping  and  detaining  him  handcuffed 
and  imprisoned,  without  any  reasonable  or  probable  cause  for  forty- 
eight  hours,  on  a  false  and  pretended  charge  of  felony.  At  the  trial 
the  following  appeared  to  be  the  facts  of  the  case : 

The  plaintiff  was  a  blaclvsmith  residing  at  Waltham  Cross,  in  the  county 
of  Hertford.  The  defendant  Philby  was  high  constable  of  Ongar  in  Essex, 
and  resided  at  Loughton,  in  that  county.  The  defendants  Wilks  and  Spicer 
were  constables  of  that  parish.  The  plaintiff,  on  the  31st  of  January,  1826, 
with  a  bridle  and  saddle  on  his  back,  was  returning  from  Romford  market, 
where  he  had  sold  a  pony  for  £7.  10  s.,  and  about  half  past  six  in  the  eve- 
ning sat  down  to  rest  himself  near  Loughton  Bridge.  While  he  was  sitting 
there,  one  Gould,  a  farmer  resident  in  the  neighborhood,  passed  him.  Gould 
told  Philby  the  circumstance,  and  said  he  thought  he  ought  to  look  after  the 
man.  Philby  went  out  and  asked  the  plaintiff  several  questions,  to  which  he 
gave  such  answers  as  induced  Philby  to  think  he  had  been  stealing  a  horse,  or 
was  about  to  do  so.  The  plaintiff  was  searched,  and  was  again  asked  by 
Philby  where  he  came  from ;  the  plaintiff  then  said  that  he  had  come  from 
Cheshunt,  and  had  been  to  Romford  to  sell  a  horse,  that  his  name  was  Beck- 
with,  and  he  had  got  the  horse  of  one  Bartlett.  He  then  referred  Philby  to 
one  Noble,  who  lived  in  the  neighbourhood.  No  inquiry  was  made  by  Philby 
of  Noble  that  night.  Philby  then  sent  for  the  defendant  Wilks,  to  take  the 
plaintiff  to  the  watch-house,  and  on  Wilks'  arrival  desired  him  to  handcuff 
the  plaintiff,  which  was  done.  Wilks  took  him,  at  his  own  request,  to  a  pub- 
lic-house at  Loughton,  and  he  remained  there  handcuffed  during  the  night. 
On  the  following  morning  Wilks  delivered  the  plaintiff  to  the  custody  of 
Spicer,  who  took  him  to  a  magistrate,  who  examined  him,  and  said  he  thought 
it  his  duty  to  detain  him,  but  that  if  there  was  anybody  near  who  would  be 
bound  for  his  appearance,  he  might  go  home  to  his  family.  Noble  became 
bound  for  the  plaintiff's  appearance,  and  he  was  then  discharged.  Philby  was 
present  at  this  examination.  On  inquiry  at  Cheshunt  it  appeared  that  the 
plaintiff  had  bought  a  horse  of  Bartlett,  as  he  had  stated,  and  nothing  sub- 
sequently appeared  against  his  character.     No  horse  had  been  stolen  in  or 

62  A  part  of  the  opinion  of  Lord  Eldon  and  the  concurring  opinions  of 
Chamln-e  and  Rooke.  JJ.,  are  omitted. 

Shepherd  and  Williams,  Serjts.,  arguing  against  the  rule,  cited  9  Edw.  IV., 
26  b,  Bro.  Ab.  tit.  Trespass,  pi.  184,  where  to  trespass  for  assault  and  impris- 
onment the  defendant  pleaded  that  the  plaintiff  was  lying  in  wait  in  the  high- 
way to  rob  the  king's  subjects,  that  one  Alice  was  riding  on  the  same  highway, 
against  whom  the  plaintiff  drew  his  sword  and  commanded  her  to  deliver 
her  purse,  whereupon  .she  levied  hue  and  cry,  that  the  defendant  was  riding 
there  and  heard  the  cry,  and  returned  and  took  the  plaintiff,  and  because 
there  were  no  stocks  in  the  vill  he  carried  him  to  S.  and  there  delivered  him 
to  the  constable ;  and  the  plea  was  held  good  by  the  whole  Court,  and  Moile 
said,  If  one  say  to  me,  "See  this  man,  I  will  certainly  kill  him,"  in  this  case  I 
may  hold  him  so  that  he  do  not  kill  the  man,  and  this  holding  is  no  imprison- 
ment. 


2G0  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

near  Loughton  on  the  day,  or  for  some  days  before  the  plaintiff  was  appre- 
hended, but  within  the  preceding  month  many  had  been  stolen. 

For  the  plaintiff  it  was  contended,  that  as  there  was  no  charge  of 
felony  made,  nor  any  felony  committed,  the  defendant  Philby  was  not 
justified  in  making  the  arrest  in  tlie  first  instance,  and  still  less  were 
he  and  the  other  defendants  justified  in  detaining  the  plaintiff'  during 
the  night.  The  learned  Judge  was  of  opinion  that  the  arrest  and  de- 
tention were  lawful,  provided  the  defendants  had  reasonable  cause  to 
suspect  that  the  plaintiff  had  committed  a  felony,  and  he  directed  the 
jury  to  find  a  verdict  for  the  defendants,  if  they  thought  upon  the  whole 
evidence  that  the  defendants  had  reasonable  cause  for  suspecting  the 
plaintiff'  of  felony.  A  verdict  was  found  for  the  defendants,  but  lib- 
erty was  reserved  to  the  plaintiff  to  move  to  enter  a  verdict  for  nom- 
inal damages,  if  the  Court  should  be  of  opinion  that  the  arrest  and  de- 
tention were  unlawful, 

Gurney  now  moved  to  enter  a  verdict  for  the  plaintiff  for  nominal 
damages,  on  the  ground  that  a  constable  had  no  authority  without  a 
warrant  to  apprehend  a  person  unless  there  was  a  charge  of  felony 
made  by  a  third  person,  or  unless  a  felony  had  been  committed.  A 
constable  acting  on  his  own  suspicion,  places  himself  in  the  situation 
■of  a  private  person.  The  latter  cannot  lawfully  arrest  another  unless 
a  felony  has  actually  been  committed,  and  then  it  must  be  on  his 
own  suspicion,  and  not  on  report  or  suspicion  of  another.  When  a 
I'elony  has  been  committed  by  some  one,  a  constable  may,  upon  the 
information  of  others,  lawfully  apprehend  a  supposed  offender,  with- 
out any  knowledge  of  the  circumstances  on  which  a  suspicion  is 
founded.  But  if  he  act  without  having  information  from  others,  and 
on  his  own  suspicion,  then  he,  in  the  same  manner  as  a  private  in- 
dividual, must  be  liable  to  an  action  if  it  afterwards  appear  that  no 
felony  has  been  committed. 

Lord  TenterdEN,  C.  J.  I  am  of  opinion  that  there  is  no  ground 
for  disturbing  the  verdict.  Whether  there  was  any  reasonable  cause 
for  suspecting  that  the  plaintiff  had  committed  a  felony,  or  was  about 
to  commit  one,  or  whether  he  had  been  detained  in  custody  an  un- 
reasonable time,  were  questions  of  fact  for  the  jury,  which  they  have 
decided  against  the  plaintiff,  and  in  my  judgment  most  correctly.  The 
only  question  of  law  in  the  case  is,  whether  a  constable  having  rea- 
sonable cause  to  suspect  that  a  person  has  committed  a  felony,  may  de- 
tain such  person  until  he  can  be  brought  before  a  justice  of  the  peace 
to  have  his  conduct  investigated.  There  is  this  distinction  between  a 
private  individual  and  a  constable;  in  order  to  justify  the  former  in 
causing  the  imprisonment  of  a  person,  he  must  not  only  make  out  a 
reasonable  ground  of  suspicion,  but  he  must  prove  that  a  felony  has 
actually  been  committed ;  whereas  a  constable  having  reasonable 
ground  to  suspect  that  a  felony  has  been  committed,  is  authorized  to 
detain  the  party  suspected  until  inquiry  can  be  made  by  the  proper 
authorities.    Now  in  this  case  it  is  quite  clear  upon  the  evidence,  and 


Ch.  1)  TRESPASSES  261 

the  jury  have  so  found,  that  the  conduct  of  the  plaintiff  had  given  the 
defendants  just  cause  for  suspecting  that  he  either  had  committed,  or 
was  about  to  commit  a  felony,  and  the  jury  having  so  found,  I  am 
of  opinion  that  the  action  was  not  maintainable. 
Rule  refused.®^ 


WALTERS  V.  W.  H.  S^IITH  &  SON. 
(Court  of  King's  Bench,  [1914]  1  K.  B.  595.) 

Action  by  Walters  to  recover  damages  for  false  imprisonment  and 
malicious  prosecution. 

The  following  statement  of  the  facts  is  taken  from  the  judgment 
of  Sir  Rufus  Isaacs,  C.  J. : 

"Tbe  plaintiff  brouglit  this  action  to  recover  damages  for  false  imprison- 
ment and  malicious  prosecution.  It  was  tried  by  me  with  a  special  jury  to 
whom  I  submitted  certain  questions  to  which  they  gave  the  following  an- 
swers: (1)  Did  the  defendants  take  reasonable  care  to  inform  themselves  of 
the  true  facts  of  the  case? — Yes.  (2A)  Did  the  defendants  honestly  believe 
that  the  plaintiff  had  stolen  the  bookV — Yes.  (2B)  Did  the  defendants  rea- 
sonably believe  that  the  plaintiff  had  stolen  moneys  and  stock  (other  than  the 
book  'TrafBc")  from  the  bookstall? — Yes.  (8)  Were  the  defendants  in  institut- 
ing the  criminal  proceedings  actuated  by  malice? — No.  (4)  What  damages  for 
false  imprisonment? — £75. 

"I  ruled  that  there  was  not  an  absence  of  reasonable  and  probable  cause  for 
the  prosecution.  Thus  the  plaintiff  failed  and  the  defendant  succeeded  upon 
the  claim  for  malicious  prosecution,  and  the  claim  for  false  imprisonment 
remained  to  be  dealt  with. 

"During  the  trial  it  was  contended  by  the  plaintiff  that,  inasmuch  as  the 
defendants  admitted  that  no  felony  had  in  fact  been  committed  in  respect  of 
the  book  'Traffic'  there  was  no  defence  to  the  claim  based  upon  false  imprison- 
ment. The  defendants  contended  that  all  that  they  need  establish  as  legal 
justification  for  the  imprisonment  was  (1)  that  an  actual  felony  or  felonies 
had  been  committed,  and  (2)  that  they  had  reasonable  and  probable  cause 
for  suspecting  the  plaintiff  of  having  committed  an  actual  felony  or  actual 
felonies;  in  other  words,  it  was  argued  for  the  defendants  that  it  was  not 
essential  to  their  defence  to  prove  that  the  felony  for  vrhich  the  plaintiff  was 
arrested  had  in  fact  been  committed.  In  order  to  give  the  defendants  the 
opportunity  of  raising  this  point  of  law  I  left  question  (2B)  to  the  jury,  which 
was  answered  in  favour  of  the  defendants.  Both  parties  claimed  judgment 
upon  the  verdict  of  the  jury.  The  matter  was  then  argued  before  me,  and 
I  received  great  assistance  from  counsel  on  both  sides,  who  argued  the  case 
with  great  ability.  It  was  agi-eed  by  counsel  for  the  parties  that  I  should  be 
at  liberty  to  find  any  further  facts  which  might  become  necessary.  So  far  as 
they  are  material  to  the  questions  now  raised  the  facts  are  that  the  plaintiff 
was,  and  had  been  for  some  nine  years,  in  the  employment  of  the  defendants 
as  assistant  manager  at  a  bookstall  at  the  King's  Cross  Railway  Station  of 
the  Great  Northern  Railway  where  some  five  other  persons  were  also  employed 
under  a  manager.  Early  in  1912  it  was  discovered  at  the  usual  half-yearly 
stocktaking  that  there  was  a  deficiency  of  £126.  which  pointed  to  dishonesty 
and  thefts  by  one  or  more  of  the  defendants'  servants.  Stock  was  again 
taken  in  February,  when  the  deficiency  was  £154.,  and  again  in  April,  1912, 
when  it  was  £148.  Such  a  deficiency  was  inexplicable  except  upon  the  basis 
that  money  or  stock,  or  both,  had  been  stolen;  probably  only  money  was 
taken,  but  it  might  well  be  that  stock  also  had  been  stolen.     It  is  clear,  and 

0  3  The  statement  of  facts  is  abridged. 


262  TORTS  THROUGH   ACTS  OP  ABSOLUTE   LIABILITY  (Part  1 

indeed  it  was  not,  and  could  not  be,  disputed  by  the  plaintiff  at  the  trial, 
that  a  felony,  or  more  probably  a  series  of  felonies,  had  been  committed  which 
caused  the  deficiency,  and  it  was  unlikely  that  they  could  have  been  committed 
otherwise  than  by  a  person  employed  by  the  defendants  at  this  bookstall. 
The  defendants  in  order  to  detect  the  culprit,  and  acting  upon  advice,  there- 
upon set  what  was  called  'a  trap.'  Copies  of  a  book  called  'Traffic'  were 
marked  and  delivered  to  the  bookstall  at  King's  Cross.  An  agent  of  the 
defendants  went  to  a  shop  at  Staines  kept  by  the  plaintiff  and  his  wife,  where 
magazines  and  newspapers  were  sold,  to  purchase  a  copy  of  'Traffic'  On  a 
later  day  he  called,  and  one  of  the  marked  copies  was  sold  to  him  in  exchange 
for  the  price  which  he  then  paid.  The  book  had  been  taken  on  June  1.5,  1912, 
by  the  plaintiff  from  the  bookstall  without  payment  having  been  made,  and 
without  the  knowledge  of  the  manager  or  other  assistants  at  the  bookstall. 
These  facts  when  ascertained  were  duly  reported,  on  June  19,  to  Mr.  Kimpton, 
a  manager  of  one  of  the  defendants'  departments,  to  whom  the  elucidation  of 
the  mystery  had  been  entrusted.  In  addition,  and  as  the  result  of  inquiries,  it 
was  discovered  that  the  plaintiff  had  acted  in  various  respects  in  contraven- 
tion of  the  practice  regulating  his  employment  by  the  defendants,  which  he 
knew  he  was  bound  to  observe,  and  that  in  particular  he,  with  his  wife's 
assistance,  had  commenced,  and  was  carrying  on,  a  business  where  newspapers 
and  magazines,  and  occasionally  books,  were  sold.  All  these  facts  were 
thereupon  reported  to  Mr.  Hornby,  one  of  the  members  of  the  defendant  firm. 
The  plaintiff  was  asked  into  a  room,  and  in  answer  to  questions  put  to  him 
made  statements  which  were  of  a  very  unsatisfactory  character,  and  wholly 
failed  to  give  an  explanation  of  his  possession  of  the  book  'Traffic'  Mr. 
Hornby  honestly  believed  that  the  plaintiff  had  stolen  the  book  'Traffic'  and 
that  the  plaintiff  had  committed  the  thefts  of  money  or  books  from  the  hook- 
stall  which  had  caused  the  deficiency,  and  at  the  end  of  the  interview  Mr. 
Hornby  gave  the  plaintiff  into  the  custody  of  Sergeant  Budge,  who  had  been 
employed  in  the  matter  as  a  detective  officer.  The  plaintiff  was  taken  to 
the  police  court  and  charged  with  stealing  the  book  'Traffic"  He  was  com- 
mitted for  trial  and  was  eventually  tried  at  the  County  of  London  Sessions 
held  at  Newingtou  and  acquitted ;  the  defence  was  that  in  taking  the  book 
he  had  no  felonious  intent,  which  the  jury  accepted.  At  the  hearing  before 
me  it  was  admitted  by  the  defendants  that  the  plaintiff  had  not  stolen  the 
book,  but  had  taken  it  away  with  the  intention  of  subsequently  accounting  or 
paying  for  it,  and  no  imputation  now  rests  upon  him  iu  connection  with  this 
transaction,  and  no  suggestion  is  made  against  him  of  being  party  to  the  acts 
of  theft  or  dishonesty  which  caused  the  deficiency. 

"Having  regard  to  the  facts  proved  I  have  no  doubt  that  the  defendants  had 
reasonable  and  probable  cause  for  suspecting  the  plaintiff  of  having  stolen 
the  money  or  books  other  than  the  book  'Traffic'  when  they  gave  the  plaintiff 
into  custody.  I  further  find  as  a  fact  that  the  plaintiff"  was  given  into  custody 
for  stealing  the  book  'Trafl^c,'  and  that  although  the  defendants  when  they 
caused  his  arrest  were  convinced  that  the  man  who  stole  'Traffic'  was  also 
guilty  of  the  other  thefts,  tliey  did  not  cause  his  arrest  for  those  other  thefts, 
but  only  for  that  theft  of  which  they  thought  they  had  clear  evidence.  Doubt- 
less they  were  infiuenced  in  taking  this  course  by  the  suspicion,  and  indeed 
conviction,  in  their  minds  that  the  plaintiff  had  committed  the  other  thefts. 
It  induced  them  to  give  him  into  custody  for  stealing  the  book,  whereas  other- 
wise they  might  merely  have  summoned  him  or  indeed  might  not  have  prose- 
cuted him  at  all." 

Sir  Rufus  Isaacs,  C.  J.,  after  stating  the  facts  above  set  out,  con- 
tinued: If  as  a  matter  of  law  the  defendants  must  prove  that  the 
particular  felony  for  which  the  plaintifif  was  imprisoned  had  in  fact 
been  committed  they  have  failed  in  their  defence,  inasmuch  as  no 
felony  with  regard  to  "Traffic"  had  in  fact  been  committed.  If  as  a 
matter  of  law  the  defendants  may  justify  the  imprisonment  by  proof 
that  at  the  time  of  the  arrest  of  the  plaintifif  felonies  had  been  com- 
mitted other  than  that  for  which  he  had  been  arrested,  and  that  they 


Ch.  1)  TRESPASSES  263 

had  reasonable  and  probable  cause  for  suspecting  the  plaintiff  of  hav- 
ing committed  them,  they  would  be  entitled  to  succeed. 

That  is,  in  my  view,  the  precise  question  for  decision  in  this  case, 
and  one  which,  so  far  as  I  am  aware,  has  never  been  expressly  de- 
cided, and  for  that  reason  I  have  gone  carefully  into  the  facts  and 
set  them  out  in  detail  in  order  that,  should  it  be  desired  to  argue  the 
case  further,  all  the  findings  of  fact  will  be  found  in  my  judgment. 

It  was  strenuously  argued  before  me  by  counsel  for  the  defend- 
ants that  in  ordering  the  arrest  of  the  plaintiff  they  had  only  caused 
such  an  interference  with  his  liberty  as  was  necessary  to  put  matters 
in  train  for  judicial  inquiry,  and  that  the  charge  subsequently  formu- 
lated against  the  plaintiff  in  the  legal  proceedings  should  not  be  re- 
garded in  the  claim  for  false  imprisonment.  I  cannot  accept  that  view 
inasmuch  as  it  became  quite  clear  during  the  course  of  the  case,  as 
I  have  found,  that  the  plaintiff  was  arrested  for  stealing  the  book ; 
and  I  must  deal  with  the  case  upon  that  basis.  Interference  with  the 
liberty  of  the  subject,  and  especially  interference  by  a  private  person, 
has  ever  been  most  jealously  guarded  by  the  common  law  of  the  land. 
At  common  law  a  police  constable  may  arrest  a  person  if  he  has  rea- 
sonable cause  to  suspect  that  a  felony  has  been  committed,  although 
it  afterwards  appears  that  no  felony  has  been  committed,  but  that 
is  not  so  when  a  private  person  makes  or  causes  the  arrest,  for  to 
justify  his  action  he  must  prove,  among  other  things,  that  a  felony 
has  actually  been  committed.  See  per  Lord  Tenterden,  C.  J.,  in  Beck- 
with  V.  Philby,  6  B.  &  C.  635.  I  have  come  to  the  conclusion  that 
it  is  necessary  for  a  private  person  to  prove  that  the  same  felony  had 
been  committed  for  which  the  plaintiff  had  been  given  into  custody. 
In  Hawkins'  Pleas  of  the  Crown  (7th  Ed.,  1795)  bk.  ii.,  ch.  xii.,  p. 
163,  the  law  is  thus  stated:  "As  to  the  fourth  particular,  namely,  in 
what  manner  an  arrest  for  such  suspicion  is  to  be  justified  in  plead- 
ing. Sect.  18.  It  seems  to  be  certain,  that  *  *  *  regularly  he 
ought  expressly  to  show  that  the  very  same  crime  for  which  he  made 
the  arrest,  was   actually  committed."     *     *     * 

The  case  which  is  nearest  to  the  one  which  we  are  at  present  con- 
sidering IS  Anon.,  Y.  B.  27  Hen.  \TII,  p.  23,  where  the  plea  was 
that  divers  cattle  were  stolen,  and  the  defendant  suspected  the  plain- 
tiff of  stealing  six  cattle.  That  plea  was  held  bad  on  the  ground  that 
the  defendant  must  prove  that  the  thing  which  he  suspected  the  plain- 
tiff of  stealing  was  in  fact  stolen.  It  is  not  the  precise  point,  but  it 
is  at  any  rate  the  nearest  to  it  that  I  have  been  able  to  find.     *     *     * 

i\Iy  attention  was  also  directed  to  a  more  modern  authority,  namely, 
Bullen  and  Leake's  Precedents  of  Pleading  (3d  Ed.,  1868)  at  page 
797.  This  authority  was  produced  by  the  defendants  for  another  pur- 
pose to  which  I  will  refer  in  a  moment,  but  in  the  note  at  page  795 
I  find  the  law  thus  stated:  "A  private  individual  is  justified  in  him- 
self arresting  a  person  or  ordering  him  to  be  arrested  where  a  felonv 


264  TORTS  THROUGH  ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 

has  been  committed  and  he  has  reasonable  ground  of  suspicion  that 
the  person  accused  is  guilty  of  it" — that  means  the  felony  for  which 
he  has  been  arrested.  I  doubt  whether  the  two  cases  cited  are  in 
themselves  a  sufficient  authority  for  the  proposition  there  laid  down, 
but  I  am  satisfied  that,  as  indeed  one  would  expect  to  find  in  this 
very  learned  work,  it  is  an  accurate  statement  of  the  common  law. 
I  cannot  find  that  any  doubt  has  ever  been  expressed  as  to  the  accuracy 
of  this  proposition.  On  behalf  of  the  defendants  Mr.  Clavell  Salter 
attached  some  importance  to  Chitty  on  Pleadings,  vol.  iii.,  pp.  333  and 
334,  which  contains  a  plea  in  bar  in  an  action  for  trespass,  and  no 
doubt  there  the  plea  was  in  terms  that  the  arrested  person  was  given 
into  custody  (I  am  not  using  the  exact  language)  for  the  purpose  of 
setting  on  foot  a  judicial  inquiry  or  legal  proceeding,  and  that  was 
very  persistently  and  very  ably  relied  upon  before  me.  For  the  rea- 
son I  have  already  given  I  do  not  think  that  in  this  case  it  assists  the 
defendants,  as  I  am  quite  convinced  that  the  dominant  intention  in  the 
minds  of  the  defendants,  as  was  shewn  by  the  fact  of  the  arrest,  was 
to  give  the  plaintiff  into  custody  for  having  stolen  the  book  and  not 
merely  for  the  purpose  of  setting  on  foot  a  judicial  inquiry  or  formu- 
lating subsequently  the  charges  upon  which  he  was  arrested.  I  think 
on  examination  of  that  plea  it  will  be  found  that  it  does  not  support, 
or  at  least  does  not  assist  in,  this  case,  because  as  a  matter  of  law  I 
think  it  is  perfectly  right  to  say  (and  it  will  be  found  in  the  pleas 
in  all  the  old  books  on  pleading)  that  there  is  a  statement  such  as  Mr. 
Salter  argued  must  be  pleaded,  that  it  must  be  pleaded  in  substance 
that  the  plaintiff  had  been  given  into  custody  for  the  purpose  of  set- 
ting on  foot  a  judicial  inquiry,  because  were  it  otherwise  there  could 
be  no  justification  for  the  arrest,  and  no  private  person  would  be  jus- 
tified in  detaining  a  person  in  his  own  room  or  in  his  own  house  merely 
for  the  purpose  of  detention  or  punishment.  Plis  only  justification, 
given  the  other  circumstances  which  I  have  indicated,  must  be  that  he 
did  it  for  the  purpose  of  setting  on  foot  a  judicial  inquiry.  It  is  only 
by  means  of  judicial  process  that  the  arrest  can  otherwise  be  justi- 
fied. The  mere  fact  of  arrest  for  the  purpose  of  detaining  a  person 
and  not  setting  on  foot  a  judicial  inquiry  could  not  be  justified.  It 
is  in  that  connection  that  reference  was  made  to  the  pleas  in  Bullen 
and  Leake's  Precedents  of  Pleading  in  the  edition  which  I  have 
quoted. 

I  have  considered  the  authorities  cited  by  Mr.  St,  John  Hutchinson, 
but  I  do  not  think  that  they  really  assist.  It  is  admitted  on  both  sides 
that  there  is  no  authority  precisely  in  point;  one  gets  close  to  it,  no 
doubt,  in  a  number  of  cases,  but  I  do  not  think  that  any  real  assistance 
is  derived  from  the  consideration  of  authorities  which  are  not  upon 
the  precise  point  to  be  determined.  It  is  by  reference  to  the  earlier 
works  on  the  common  law,  which  has  never  been  altered,  that  one 
must  ascertain  what  is  the  law  of  the  land.     I  cannot  find  that  any 


Ch.  1)  TRESPASSES  265 

doubt  has  ever  been  expressed  upon  the  accuracy  of  the  proposition 
of  law  which  I  have  stated  in  the  simplest  language  from  the  note 
in  Bullen  and  Leake's  Precedents  of  Pleading.  I  am  bound  to  follow 
the  law  thus  laid  down,  and,  moreover,  I  am  convinced  on  considera- 
tion that  it  is  based  on  sound  principle.  I  should  be  bound  to  follow 
it  whether  I  was  of  that  opinion  or  not,  although  it  may  well  be  that 
in  some  cases — as  in  this  particular  case — the  law  seems  to  operate 
somewhat  harshly  upon  the  defendants.  But  I  have  to  bear  in  mind 
that  the  principle  of  law  applicable  to  the  facts  in  this  case  must  be 
one  of  general  application  and  cannot  be  modified,  unless  the  law  al- 
lows it,  in  order  to  meet  the  difficulties  of  a  particular  set  of  circum- 
stances. The  principle  urged  by  the  defendants'  counsel  would,  in 
my  judgment,  be  an  encroachment  upon  the  Hberty  of  the  subject  as 
hitherto  understood.  It  is  true  that  very  often  there  is  a  duty  cast 
upon  a  person  to  put  the  law  in  motion  in  order  to  bring  offenders  to 
justice,  and  it  is  no  doubt  for  reasons  of  public  policy  that  some 
excuse,  limited  in  character,  is  permissible  in  an  action  for  damages 
at  civil  law  for  false  imprisonment  when  a  private  person  has  wrongly 
caused  the  arrest  of  another.  But  be  it  observed  that  this  concession 
is  limited  to  felonies,  and  although  a  misdemeanour,  which  may  be 
a  more  serious  crime  than  some  felonies,  may  have  been  committed, 
yet  if  a  person  causes  a  wrongful  arrest,  however  serious  the  mis- 
demeanour may  be,  it  cannot  be  made  the  basis  of  any  legal  excuse 
if  the  party  has  been  wrongfully  arrested. 

When  a  person,  instead  of  having  recourse  to  legal  proceeding  by 
applying  for  a  judicial  warrant  for  arrest  or  laying  an  information 
or  issuing  other  process  well  known  to  the  law,  gives  another  into 
custody,  he  takes  a  risk  upon  himself  by  which  he  must  abide,  and 
if  in  the  result  it  turns  out  that  the  person  arrested  was  innocent,  and 
that  therefore  the  arrest  was  wrongful,  he  cannot  plead  any  lawful 
excuse  unless  he  can  bring  himself  within  the  proposition  of  law 
which  I  have  enunciated  in  this  judgment. 

In  this  case,  although  the  defendants  thought,  and  indeed  it  ap- 
peared that  they  were  justified  in  thinking,  that  the  plaintiff  was  the 
person  who  had  committed  the  theft,  it  turned  out  in  fact  that  they 
were  wrong.  The  felony  for  which  they  gave  the  plaintiff  into  cus- 
tody had  not  in  fact  been  committed,  and,  therefore,  the  very  basis 
upon  which  they  must  rest  any  defence  of  lawful  excuse  for  the  wrong- 
ful arrest  of  another  fails  them  in  this  case.  Although  I  am  quite  sat- 
isfied not  only  that  they  acted  with  perfect  bona  fides  in  the  matter 
but  were  genuinely  convinced  after  reasonable  inquiry  that  they  had 
in  fact  discovered  the  perpetrator  of  the  crime,  it  now  turns  out  that 
they  were  mistaken,  and  it  cannot  be  established  that  the  crime  had 
been  committed  for  which  they  gave  the  plaintiff  into  custody ;  they 
have  failed  to  justify  in  law  the  arrest,  and  there  must,  therefore, 
be  judgment  for  the  plaintiff  for  the  £75.  damages  which  have  been 
awarded,  with  the  consequent  results. 


266  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

It  follows  from  what  I  have  said  that,  although  there  is  judgment 
for  the  plaintiff  for  this  amount,  the  defendants  have  succeeded  on 
the  issue  as  to  malicious  prosecution,  and  having  succeeded,  in  my 
judgment  they  are  entitled  to  all  such  costs  as  the  Master  thinks  were 
properly  attributable  to  that  issue  as  distinguished  from  the  general 
costs  of  the  action,  and  I  think  the  costs  should  follow  the  event ;  the 
Master  will  have  to  rule  upon  it,  but  so  far  as  it  may  be  necessary  I 
make  that  order. 

There  will  therefore  be  judgment  for  the  plaintiff  for  £75.  and 
costs."* 


(F)  Discipline 

A  master  may  justify  the  beating  his  apprentice,  servant,  scholar, 
etc.,  if  the  beating  is  in  nature  of  correction  only,  and  with  a  proper 
instrument,  otherwise  immoderate  castigavit  is  a  good  reply ;  and  so 
it  was  adjudged  in  Keits's  Case,  per  Holt,  Chief  Justice. 

Assault  and  battery;  the  defendant  justified,  for  that  the  plaintiff 
was  his  apprentice,  and  that  he  tempore  quo,  etc.,  gave  him  gentle 
^correction,  and  traversed  that  he  was  guilty  at  any  time  before  or 
after  he  was  his  apprentice;  and  upon  a  demurrer  to  this  plea  it  was 
adjudged  ill,  because  the  defendant  ought  to  shew  some  cause  specially, 
or  the  fault  for  which  he  beat  his  apprentice,  and  then  conclude  absque 
hoc,  that  he  beat  him  before  or  after  that  time. 

3  Salk.  47  (1695).«^ 


LORD  LEIGHS  CASE. 

(Court  of  King's  Bench,  1675.    3  Keble,  433,  84  Reprint,  807.) 

On  difference  between  him  and  his  lady  about  settlement  of  £200. 
per  annum,  pin  money  in  case  of  separation,  she  upon  affidavit  of 
hard  usage,  and  that  she  went  in  fear  of  her  life,  prayed  security  of 
the  peace  against  him,  which  was  granted.  And  by  Hale;,  Chief  Jus- 
tice, the  salva  moderata  castigatione  in  the  register  is  not  meant  of 

ti*  I'arts  of  the  opiuion  are  uiultU'd.     (  uuipuie  Dec.  Dig.,  "Arrest,"  §  U4. 

6  5  "There  are  also  several  kinds  of  authority  in  the  way  of  summary  force 
or  restraint  which  the  necessities  of  society  require  to  be  exercised  l)y  private 
persons.  And  such  persons  are  protected  in  exercise  thereof,  if  they  act  with 
good  faith  and  in  a  reasonable  and  moderate  manner.  Parental  authority  is 
the  most  obvious  and  universal  instance.  *  *  *  The  master  of  a  merchant 
sliip  has  by  reason  of  necessity  the  right  of  using  force  to  preserve  order  and 
discipline  for  the  safety  of  the  vessel  and  the  persons  and  property  on  board. 
*  *  *  There  are  conceivable  circumstances  in  which  the  leader  of  a  party 
on  land,  such  as  an  Alpine  expedition,  might  be  justified  on  the  same  principle 
in  exercising  compulsion  to  a.'jsure  the  common  safety  of  the  party."  Pollock 
on  Torts  (,Sth  Ed.)  11^7,  12S,  V2\). 


Ch.  1)  TRESPASSES  2G7 

beating,  but  only  of  admonition  and  confinement  to  the  house,  in 
case  of  her  extravagance ;  which  the  Court  agreed,  she  being  not  as 
an  apprentice,  etc.,  but  after  the  parties  were  reconciled,  and  all  dis- 
charged.*^^ 


SHEEHAN  V.  STURGES. 

(Supreme  Court  of  Errors  of  Connecticut,  1885.     53  Conn.  481,  2  Atl.  841.) 

Action  for  assault  and  battery,  tried  to  the  court.  Finding  of  facts, 
with  judgment  for  the  defendant.     The  plaintiff  appeals. 

Grange^r,  J.  This  is  a  complaint  for  an  assault  and  battery.  The 
defense  is  that  the  plaintiff  was  at  the  time  a  pupil  in  a  school  kept 
by  the  defendant,  that  he  willfully  violated  the  reasonable  rules  of  the 
school  and  disobeyed  the  reasonable  commands  of  the  defendant  as 
his  teacher,  and  that  for  this  misconduct  the  defendant  as  such  teach- 
er whipped  him  in  a  reasonable  manner.  The  sole  controversy  up-  '^ 
on  the  trial  was  as  to  the  reasonableness  of  the  punishment  inflicted. 
The  court  found  that  "such  whipping  was  not  unreasonable  or  exces- 
sive and  was  fully  justified  by  the  plaintiff's  misconduct  at  that  time." 

The  extent  and  reasonableness  of  the  punishment  administered  by 
a  teacher  to  his  pupil  is  purely  a  question  of  fact.  This  is  too  well 
settled  to  make  the  citation  of  authorities  necessary.  The  finding  of 
the  court  therefore  settles  the  question  as  to  this,  unless  the  court 
acted  upon  improper  evidence. 

The  plaintiff  testified  as  a  witness  in  his  own  behalf,  and  on  his  cross- 
examination  the  defendant,  against  the  objection  of  the  plaintiff's 
counsel,  was  allowed  to  ask  him  whether  on  two  former  occasions, 

66  "The  husband  also,  by  the  old  law,  might  give  his  wife  moderate  correc- 
tion. For,  as  he  is  to  answer  for  her  misbehavior,  the  law  thought  it  rea- 
sonable to  intrust  him  with  this  power  of  restraining  her,  by  domestic  chastise- 
ment, in  the  same  moderation  that  a  man  is  allowed  to  correct  his  apprentices 
or  children ;  for  whom  the  master  or  parent  is  also  liable  in  some  cases  to 
answer.  *  *  *  But  with  us  in  the  politer  reign  of  Charles  the  Second  this 
power  of  correction  began  to  be  doubted  and  a  wife  may  now  have  security 
of  the  peace  against  her  husband ;  or,  in  return,  a  husband  against  his  wife. 
Yet  the  lower  rank  of  people,  who  were  always  fond  of  the  old  common  law, 
still  claim  and  exert  their  ancient  privilege ;  and  the  courts  of  law  will  still 
permit  a  husband  to  restrain  a  wife  of  her  liberty,  in  case  of  any  gross  mis- 
behavior."   1  Bl.  Com.  444  (1765). 

Compare  State  v.  Rhodes  (1868),  61  N.  C.  453,  98  Am.  Dec.  78:  A  husband 
struck  his  wife  three  blows  "with  a  switch  about  the  size  of  one  of  his  fingers." 
Said  the  court:  "The  violence  complained  of  would,  without  question,  have 
constituted  a  battery,  if  the  subject  of  it  had  not  been  the  defendant's  wife." 
Held,  that  the  husband  should  not  be  convicted. 

But  see  State  v.  Oliver  (1874)  70  N.  C.  60,  Fulgbam  v.  State  (1871)  46  Ala. 
143,  Kales,  Cas.  on  Persons,  009,  and  Lawson  v.  .State  (1902)  115  Ga.  578, 
41  S.  E.  993:  While  a  husband  may  use  such  foi'ce  as  is  necessary  to 
repel  a  felonious  assault  by  his  wife  upon  him,  he  is  not  justified  under  any 
circumstances  in  striking  his  wife,  either  by  way  of  chastisement  or  in  resent- 
ment of  a  past  injury. 

Compare  The  Queen  v.  Jackson,  [1S91]  1  Q.  B.  671,  Kales,  Cases  on  I'er- 
sons,  612. 


268  TORTS   THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

both  cf  them  more  than  a  week  before  the  whipping  in  question,  he 
had  not  assaulted  the  teacher  while  he  was  chastising  him.  And  the 
defendant  afterwards,  in  his  testimony  in  his  own  behalf,  was  allowed, 
against  the  objection  of  the  plaintiff,  to  state  that  the  plaintift"'s  con- 
duct in  school  was  habitually  bad,  and  that  on  two  former  occasions, 
one  of  them  about  two  weeks  and  the  other  seven  or  eight  days  before 
the  whipping  in  question,  the  plaintiff  had  assaulted  him  while  he  was 
chastising  him.  The  defendant  was  also  allowed,  on  the  plaintiff's 
cross-examination,  against  objection,  to  inquire  of  him  whether  he 
had  not,  seven  or  eight  days  before  the  whipping  in  question,  put 
stones  in  his  pocket  and  declared  that  he  was  going  to  attack  the 
teacher  with  them.  The  plaintiff,  in  answer  to  the  inquiry,  denied 
that  he  had  done  so,  and  the  defendant,  against  the  plaintiff's  objec- 
tion, was  allowed  to  show  by  a  witness  that  the  plaintiff  had  so  done. 
The  defendant  did  not  inform  the  plaintiff  at  the  time  of  the  whip- 
ping that  he  was  punishing  him  for  his  past  and  habitual  misconduct. 

We  think  the  court  committed  no  error  in  admitting  the  inquiries 
and  evidence.  The  right  of  the  schoolmaster  to  require  obedience  to 
reasonable  rules  and  a  proper  submission  to  his  authority,  and  to  in- 
flict corporal  punishment  for  disobedience,  is  well  settled.     *     *     * 

No  precise  rule  can  be  laid  down  as  to  what  shall  be  considered  ex- 
cessive or  unreasonable  punishment.  Reeve's  Dom.  Rel.  288.  Each 
case  must  depend  upon  its  own  circumstances.  In  Commonwealth  v. 
Randall,  4  Gray  (Mass.)  36,  it  is  held  that,  "in  inflicting  corporal  pun- 
ishment, a  teacher  must  exercise  reasonable  judgment  and  discretion, 
and  be  governed  as  to  the  mode  and  severity  of  the  punishment  by 
the  nature  of  the  offense,  and  the  age,  size,  and  apparent  powers  of 
endurance  of  the  pupil."  And  we  think  it  equally  clear  that  he  should 
also  take  into  consideration  the  mental  and  moral  qualities  of  the  pu- 
pil, and,  as  indicative  of  these,  his  general  behavior  in  school  and  his 
attitude  towards  his  teacher  become  proper  subjects  of  consideration. 

We  think  therefore  that  the  court  acted  properly  in  admitting  evi- 
dence of  the  prior  and  habitual  misconduct  of  the  plaintiff,  and  that 
it  was  perfectly  proper  for  the  defendant,  in  chastising  him,  to  con- 
sider not  merely  the  immediate  offense  which  had  called  for  the  pun- 
ishment, but  the  past  offenses  that  aggravated  the  present  one,  and 
showed  the  plaintiff  to  have  been  habitually  refractory  and  disobedi- 
ent. Nor  was  it  necessary  that  the  teacher  should,  at  the  time  of  in- 
flicting the  punishment,  remind  the  pupil  of  his  past  and  accumulat- 
ing offenses.  The  pupil  knew  them  well  enough,  without  having  them 
brought  freshly  to  his  notice. 

There  is  no  error.    In  this  opinion  the  other  judges  concurred.*'^ 

68  Part  of  the  opinion  is  omitted. 


Ch.  1)  TRESPASSES  261) 


STATE  V.  VANDERBILT. 

(Supneme  Court  of  Indiana,  1888.    116  Ind.  11,  18  N.  E.  266,  9  Am.  St 

Rep.  820.) 

The  teaclier  of  a  public  school,  having  made  a  rule  that  pupils  must 
pay  for  the  wanton  and  careless  destruction  of  school  property,  en- 
forced it  by  chastising  a  pupil.  A  charge  of  assault  and  battery  was 
thereupon  brought  against  the  teacher,  who  was  acquitted  in  the  trial 
court.    The  State  appealed  the  case. 

ZoLLARS,  J.  *  *  *  Looking  to  the  record  before  us  as  a  whole,  we 
think  that  it  sufficiently  presents  the  question  as  to  whether  or  not  a 
teacher  of  a  public  school  may  establish,  and  enforce  by  chastisement,  a 
rule  requiring  pupils  to  "pay  for  the  wanton  and  careless  destruction 
of  school  property." 

The  bill  of  exceptions  shows  that  the  State,  by  the  prosecuting  at- 
torney, asked  the  court  to  charge  the  jury  "that  a  teacher  in  a  public 
district  school  has  no  right  to  inflict  a  money  penalty  upon  a  pupil 
for  the  accidental  destruction  or  breakage  of  school  property,  and 
enforce  the  same."  That  instruction  the  court  refused,  and  over  the 
exception  of  the  State  gave  the  following  instruction : 

"A  rule  of  the  teacher,  requiriug  that  the  pupil  shall  pay  for  the  wanton  and 
careless  destruction  of  school  property,  is  a  reasonable  rule,  and  one  that  the 
teacher  has  the  right  to  enforce." 

It  is  not  necessary  that  the  evidence  should  be  in  the  record  to  en- 
able us  to  pass  upon  these  instructions,  if  in  any  case  on  appeal  by 
the  State  the  evidence  can  be  examined,  a  question  which  we  leave 
where  it  is  left  by  our  cases.  Without  speaking  of  the  instruction 
refused,  which  is  the  opposite  of  that  given,  the  latter,  if  erroneous, 
would  be  erroneous  under  any  supposable  state  of  the  evidence. 

Under  our  cases,  a  school  teacher  has  the  right  to  exact  from  pu- 
pils obedience  to  his  lawful  and  reasonable  demands  and  rules,  and  to 
punish  for  disobedience,  "with  kindness,  prudence  and  propriety." 
And  where,  in  such  case,  the  punishment  is  not  administered  with  un- 
reasonable severity,  a  proceeding  for  an  assault  and  battery  can  not 
be  maintained  against  the  teacher.  Danenhoffer  v.  State,  69  Ind.  295, 
35  Am.  Rep.  216.  The  rule  or  rules  to  which  the  teacher  may  thus 
enforce  obedience  must,  however,  be  reasonable,  and  whether  or  not 
such  rules  are  reasonable  is  ultimately  a  question  for  the  courts.  Fer- 
tich  v.  Michener,  111  Ind.  472,  11  N.  E.  605,  14  N.  E.  68,  60  Am.  Rep. 

;o9. 

We  think  that  a  rule  requiring  pupils  to  pay  for  school  property 
which  they  may  wantonly  and  carelessly  break  or  destroy,  is  not  a 
reasonable  rule,  and,  therefore,  that  teachers  have  no  right  to  make 
and  enforce  such  a  rule  by  chastisement  of  the  pupils.  The  "wanton 
and  careless  destruction,"  etc.,  amounts  to  nothing  more  than  care- 
lessness.   Lafayette,  etc.,  R.  R.  Co.  v.  Huffman,  28  Ind.  287,  92  Am. 


270  TORTS   THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

Dec.  318;  Terre  Haute,  etc.,  R.  R.  Co.  v.  Graham,  95  Ind.  286,  296, 
48  Am.  Rep.  719.  Carelessness  on  the  part  of  children  is  one  of  the 
most  common,  and  yet  one  of  the  least  blameworthy,  of  their  faults. 
In  simple  carelessness  there  is  no  purpose  to  do  wrong.  To  punish 
a  child  for  carelessness  in  any  case  is  to  punish  it  where  it  has  no 
purpose  or  intent  to  do  wrong  or  violate  rules. 

But  beyond  this,  no  rule  is  reasonable  which  requires  of  the  pu- 
pils what  they  can  not  do.  The  vast  majority  of  pupils,  whether  small 
or  large,  have  no  money  at  their  command  with  which  to  pay  for 
school  property  which  they  injure  or  destroy  by  carelessness  or  other- 
wise. If  required  to  pay  for  such  property,  they  would  have  to  look 
to  their  parents  or  guardians  for  the  money.  If  the  parent  or  guardi- 
an should  not  have  the  money,  or  if  they  should  refuse  to  give  it  to 
the  child,  the  child  would  be  left  subject  to  punishment  for  not  having 
done  what  it  had  no  power  to  do. 

Without  giving  other  reasons  for  our  conclusion  that  the  rule  in 
question  was  an  unreasonable  rule,  our  judgment  is  that  the  court 
below  erred  in  giving  the  instruction  above  set  out,  and  that  this  ap- 
peal must  be  sustained,  and  the  appellee  taxed  with  the  costs  on  ap- 
peal.«» 


KING  V.  FRANKLIN. 

(At  Nisi  Prius,  1858.     1  Fost.  &  F.  360,  115  R.  R.  924.) 

Action  for  false  imprisonment  and  placing  the  plaintiff  in  irons. 
The  defendant  was  captain  of,  and  the  plaintiff  a  passenger  in,  the 
Undaunted.  The  placing  in  irons  having  been  proved,  the  defence  set 
up  was,  that  a  mutiny  was  imminent,  and  a  justification  of  the  im- 
prisonment for  the  prevention  of  the  mutiny.  It  appeared  that  a 
quarrel  had  arisen  between  the  captain  and  some  of  the  passengers 
respecting  the  playing  of  cards  in  a  particular  part  of  the  vessel,  and 
some  confusion  arose  therefrom.  In  the  course  of  the  dispute  the 
^  plaintiff  had  said  that  the  ship  was  a  floating  hotel  and  the  captain 
only  the  landlord  of  her.  The  captain  thereupon  ordered  the  plain- 
tiff to  be  slightly  ironed,  stating,  in  his  evidence,  that  there  was  no 
cabin  in  which  to  confine  him. 

Watson,  B.  (in  summing  up).  The  captain  has  the  absolute  con- 
trol over  the  passengers  and  crew.  The  contract  with  the  passenger 
is  to  carry,  board  and  lodge  him,  and  the  passenger  is  to  obey  all  the 
captain's  reasonable  orders,  in  an  emergency  even  to  work  the  ship 
when  necessary.  If  a  passenger  misconduct  himself  at  table,  the  cap- 
tain may  remove  him,  or  may  even  imprison  him  for  a  short  period, 
if  imprisonment  be  necessary  for  the  enforcement  of  his  lawful  com- 
mands. The  rule  of  law  is  simple;  the  power  of  the  captain  is  lim- 
es Part  of  the  opinion  is  omitted. 


Ch.  1)  TRESPASSES  271 

ited  to  the  necessity  of  the  case.  In  the  present  case  the  defendant 
justifies,  for  "that  he  had  reasonable  and  probable  cause  to  believe, 
and  did  believe,  that  a  mutiny  was  imminent."  To  succeed  in  his 
defence  he  must  prove  the  whole  of  this  allegation.  It  would  not 
be  sufficient  that  he  did  believe  unless  he  had  also  reasonable  cause 
for  apprehending  a  mutiny.  The  defendant  appears  to  have  taken 
great  ofifence  at  the  term  "landlord  of  hotel"  being  applied  to  him ; 
but  the  term  is  not  altogether  incorrect,  except  that  in  case  of  mis- 
conduct the  landlord  may  remove  the  guest  from  the  house,  but  as 
the  captain  cannot  remove  the  passenger  from  the  ship,  he  may,  if 
necessary,  and  in  moderation,  imprison  him.  He  certainly  would  not 
be  justified  in  imprisoning  a  person  for  having  called  him  "the  land- 
lord of  an  hotel." 

Verdict  for  the  plaintifif. 


BROWN,  HUSSEY  &  ERITH  v.  HOWARD. 

(Supreme  Court  of  Judicature  of  New  York,  1817.    14  Johns.  119.) 

Howard  sued  Brown,  Hussey  and  Erith,  for  assault  and  battery 
and  false  imprisonment  on  the  high  seas,  on  board  the  ship  Teaplant. 
Brown,  the  master  of  the  ship,  pleaded  not  guilty,  and  son  assault 
demesne ;  the  other  defendants,  who  were  mates  on  the  ship,  plead- 
ed not  guilty,  and  justified  that  they  acted  by  the  orders  of  Brown, 
the  master.  There  was  testimony  that  Hussey  and  Erith  interfered 
in  no  other  way  than  by  tying  Howard,  at  the  master's  order.  The 
counsel  for  the  defendants  then  moved  that  the  two  mates  should 
be  acquitted,  and  struck  out  of  the  record,  which  the  court  refused; 
and  judgment  was  given  for  the  plaintiff  for  $125. 

Thompson,  C.  J.  *  *  *  The  return  states  that  all  the  facts  rel- 
ative to  the  transaction  took  place  in  presence  of  the  two  defend- 
ants who  were  offered  as  witnesses,  and  of  course,  fully  known  to 
them  at  the  time  they  obeyed  the  order  of  the  captain  in  binding  the 
plaintiff's  hands  and  feet  with  ropes.  If  this  was  an  illegal  act  in 
the  captain,  the  mates  were  not  bound  to  obey  him,  and  cannot  ex- 
cuse themselves  under  such  order.  A  master  has  no  right  to  com- 
mand his  servant  to  commit  a  trespass,  or  do  a  wrongful  or  unlawful 
act.  From  the  facts  stated  in  the  return,  it  appears  to  me  that  the 
conduct  of  the  captain,  to  say  the  least  of  it,  was  harsh  and  rigorous 
and  altogether  unjustifiable;  and  unless  we  are  warranted  in  presum- 
ing the  statement  to  be,  in  some  degree,  colored  by  the  witnesses  who 
were  fellow  seamen  with  the  plaintiff  below,  the  conduct  of  the  cap- 
tain merits  severe  animadversion. 

Although  a  captain  may  have  a  right  to  inflict  corporal  punishment 
upon  a  seaman  under  his  command,  yet  it  is  not  an  arbitrary  and  un- 
controlled right;    he  is  amenable  to  the  law  for  the  due  exercise  of 


^ 


272  TORTS   THROUGH   ACTS   OP   ABSOLUTE   LIABILITY  (Part  1 

it.  He  ought  to  be  able  to  show,  not  only  that  there  was  a  sufficient 
cause  for  chastisement,  but  that  the  chastisement  itself  was  reasonable 
and  moderate.  2  Bos.  &  P.  224;  Michaelson  v.  Denison,  3  Day 
(Conn.)  294,  Fed.  Cas.  No.  9,523.  The  rule  on  this  subject  is  well 
laid  down  by  Abbott.  Abb.  on  Shipping,  125.  By  the  common  law, 
says  he,  the  master  has  authority  over  all  the  mariners  on  board  the 
ship,  and  it  is  their  duty  to  obey  his  commands  in  all  lawful  matters 
relative  to  the  navigation  of  the  ship,  and  the  preservation  of  good 
order ;  and  in  case  of  disobedience  or  disorderly  conduct,  he  may 
lawfully  correct  them  in  a  reasonable  manner;  his  authority,  in  this 
respect,  being  analogous  to  that  of  a  parent  over  a  child,  or  a  master 
over  his  apprentice  or  scholar.  Such  an  authority  is  absolutely  neces- 
sary to  the  safety  of  the  ship  and  of  the  lives  of  the  persons  on 
board ;  but  it  behooves  the  master  to  be  very  careful  in  the  exercise 
of  it,  and  not  to  make  his  parental  power  a  pretext  for  cruelty  and 
oppression. 

Not  being  able  to  discovei",  from  the  return,  the  least  justification 
for  the  captain's  treatment  of  the  plaintiff  below,  and  the  mates  hav- 
ing been  acquainted  with  the  whole  transaction,  I  can  perceive  no 
ground  upon  which  they  can  be  exonerated  as  parties,  nor,  of  course, 
admissible  as  witnesses.  The  judgment  below  must,  accordingly,  be 
affirmed.'^*' 


HANNEN  V.  EDES. 

(Supreme  Judicial  Court  of  Massachusetts,  1819.    15  Mass.  347.) 

This  was  an  action  of  trespass  for  an  assault  and  battery.  The  de- 
fendant pleads,  in  bar,  that  at  the  time  when,  etc.,  he  was  master  of 
the  ship  Cicero,  then  in  a  distant  port;  that  the  plaintiff  was  a  sea- 
man, or  mariner,  on  board  the  same  ship ;  that  he,  the  defendant,  is- 
sued a  reasonable  and  proper  order  to  the  plaintiff,  relative  to  his 
duty  on  board  the  vessel,  which  the  plaintiff  wilfully  disobeyed ;  and 
that  he,  the  defendant,  moderately  chastised  him  for  such  disobedi- 
ence— which  is  averred  to  be  the  same  beating  complained  of  in  the 
declaration.  The  plaintiff  replied  de  injuria  sua  propria  absque  tali 
causa,  etc.,  on  which  issue  was  joined. 

On  the  trial  the  defendant  having  proved  his  justification,  so  far 
as  respected  his  authority,  the  duty  of  the  plaintiff,  and  his  disobedi- 
ence of  a  reasonable  and  proper  command,  the  plaintiff  was  permitted 
to  show,  in  evidence,  (the  defendant  objecting),  and  to  insist  to  the 
jury,  that  the  beating  complained  of  was  excessive,  and  out  of  all  pro- 
portion to  the  offence  committed ;    and  having  proved  this,  a  verdict 

7  0  The  statement  of  the  case  is  abridged,  and  a  portion  of  the  opinion  is 
omitted.  The  question  before  the  reviewiuR  court,  in  error  on  certiorari  from 
a  justice's  court,  was  whetlier  llussey  and  EriUi  could  be  talien  out  of  the  case 
as  parties  and  thus  be  admitted  as  witnesses. 


Ch.  1)  TRESPASSES  273 

was  returned  in  his  favor.  The  defendant  moved  for  a  new  trial,  on 
the  ground  that  this  evidence  was  improperly  admitted;  contending 
that,  if  the  plaintiff  relied  upon  any  excess  or  unreasonableness  in 
the  beating,  he  ought  to  have  set  it  forth  specially  in  his  replication, 
in  the  nature  of  a  new  assignment. 

Parker,  C.  J.  *  *  *  The  general  doctrine  upon  which  the  whole 
matter  rests  is  that,  whenever  the  defendant's  plea,  in  an  action  of 
trespass,  confesses  and  avoids,  by  justifying  the  whole  trespass  set 
forth  in  the  declaration,  and  the  plaintiff  would  set  up  some  new  mat- 
ter as  the  foundation  of  his  action,  he  shall  show  that  new  matter 
specially,  as  in  the  case  of  Scot  v.  Dixon,  2  Wils.  3,  cited  in  the  argu- 
ment. Where,  in  trespass,  the  defendant  justifies  under  a  license,  for 
putting  his  cattle  into  the  plaintiff's  close,  the  plaintiff  may  reply  that 
he  put  them  in  at  another  time  without  leave,  and  he  shall  not  shew 
this  in  evidence  under  the  general  traverse;  for,  not  having  specified 
the  time  in  his  declaration,  and  there  being  but  one  trespass  complained 
of,  the  justification  shall  be  held  to  apply  to  that,  unless  the  plaintiff' 
shows  another  and  distinct  trespass,  in  such  manner  as  to  give  the 
defendant  an  opportunity  to  deny  or  justify  it. 

So,  in  the  case  of  Dye  v.  Leatherdale,  3  Wils.  20,  also  referred  to 
in  the  argument  for  the  defendant,  which  was  trespass  for  taking 
and  carrying  away  a  hog,  and  converting  him,  etc.,  the  justification 
was  that  the  hog  was  taken  damage  feasant;  to  which  the  plaintiff  re- 
plied specially,  acknowledging  the  justification,  and  averring  that  the 
defendant  afterwards  converted  the  hog  to  his  own  use.  This  was 
held  to  be  good  pleading ;  because  it  alleged  a  new  fact,  different  from 
that  which  was  justified  in  the  bar.  And  in  the  case  of  Oystead  v. 
Shed,  12  Mass.  506,  the  doctrine  relied  upon  by  the  counsel  for  the 
defendant  rests  upon  the  same  principle,  viz.,  that  the  breaking  of  the 
outer  door  was  a  new  fact,  not  relied  upon  in  the  declaration,  except 
by  way  of  aggravation ;  and  therefore,  as  the  trespass,  as  alleged  in 
the  declaration,  was  justified,  the  plaintiff,  in  order  to  take  advantage 
of  this,  ought  to  have  replied  it  specially.  And  to  this  effect  are  all 
the  other  authorities  cited  for  the  defendant. 

Now  if  the  case  before  us  cannot  be  distinguished  from  those  which 
have  been  cited,  the  pleading  in  this  case  was  wrong  for  the  plaintiff's 
purpose,  and  the  whole  practice  of  the  state  has  been  wrong.  But 
we  think  it  is  clearly  distinguishable.  In  the  plea  of  moderate  casti- 
gavit,  the  defendant  must  not  only  make  out  his  authority,  and  the 
cause  of  the  beating,  but  must  also  show  that  the  beating  was,  in  fact, 
moderate;  so  that  if,  by  his  own  evidence,  it  should  appear  that  he 
had  abused  his  authority,  and  inflicted  blows  unnecessary  for  the  pur- 
pose, or  cruel  in  the  degree,  the  issue  would  fail  him  entirely ;  and  it 
would  be  of  his  own  wrong,  and  without  the  cause  set  forth  in  his 
plea ;  and  this  not  upon  the  ground  of  his  being  a  trespasser  ab 
initio,  so  much  as  because  he  shows  no  right  at  all  to  inflict  any  beat- 
Hepb.Toets — 18 


274  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

ing,  in  the  manner  and  to  the  degree  which  the  evidence  would  prove; 
and  he  therefore  falsifies  his  own  plea. 

If  the  plaintiff  intended  to  rely  upon  another  beating,  different  in 
point  of  time  from  that  which  was  justified  in  the  plea,  he  should  have 
replied  specially,  and  set  forth  such  different  beating;  but  if  there 
were  but  one,  as  in  the  present  case,  and  the  answer  to  the  justification 
was  intended  to  be,  that  the  very  beating  was  immoderate,  and  there- 
fore not  justified,  the  general  traverse  is  right.  And  so  are  the  au- 
thorities, as  will  be  found  in  Franks  v.  Morris,  10  East,  81,  note  (a), 
and  more  at  large  in  1  Saund.  299,  note  (6),  by  Sergeant  Williams, 
which  were  referred  to  in  the  argument  of  the  counsel  for  the  plain- 
tiff. 

The  truth  is,  the  plaintiff  had  no  new  cause  to  assign.  The  beating 
which  he  complained  of  was  the  same  with  that  attempted  to  be 
justified;  and  by  his  replication  de  injuria  sua,  etc.,  he  denies  the 
justification.  He  does  not  show  that  afterwards,  viz.,  after  the  mod- 
erate chastisement  averred  in  the  plea,  there  was  a  further  excessive 
beating,  but  that  the  beating  itself,  alleged  to  be  moderate,  was  ex- 
cessive, and  so  defeated  the  justification;  and  thus,  we  think,  the 
uninterrupted  practice  is  reconcilable  with  the  authorities. 

There  is  an  old  case  reported  in  Siderfin,  246,  and  Keble,  884,  which 
was  an  action  for  an  assault  and  battery ;  and  wounding  and  may- 
hem, by  breaking  the  arm,  were  alleged.  Upon  a  plea  of  son  assault 
demesne  the  plaintiff  demurred,  stating,  as  the  ground  of  his  demur- 
rer, that  as  a  heinous  battery  and  a  mayhem  were  alleged,  the  plea 
ought  to  have  shown  an  assault  sufficient  to  justify  such  a  battery. 
But  it  was  holden  that  the  plea  was  good ;  because  the  degree  and 
proportion  of  the  beating  to  the  assault  was  matter  of  evidence.  If 
it  was  not  proportionable,  the  issue  would  be  for  the  plaintiff,  not- 
withstanding he  made  the  first  assault ;  otherwise,  for  the  defendant. 
The  same  principle  is  applicable  to  the  case  before  us.  The  degree 
and  proportion  between  the  offence  and  the  punishment  was  matter 
of  evidence ;  and  being  found  disproportioned,  the  issue  was  rightly 
found  for  the  plaintiff',  notwithstanding  the  matter  set  forth  in  the 
plea. 

Judgment  on  the  verdict.''^ 

Ti  The  argument  of  Stearns,  and  part  of  the  opinion  of  Parker,  C.  J.,  are 
omitted. 

Compare  tlie  remark  in  2  Phillips  on  Evidence.  204  (7th  London  Ed.):  "It 
seems  to  be  the  better  opinion  that,  when  the  trespass  is  alleged  in  the  declar- 
ation in  general  terms,  and  it  is  justified  in  the  like  terms,  if  the  defendant  has 
inflicted  a  greater  injury  on  the  plaintiff  than  he  ought  to  have  done,  the 
excess  is  properly  the  subject  of  a  special  i-eplication."  2  Phill.  204,  7th  Lond. 
Ed.;  Dale  v.  Wood  (1822)  7  Moore,  Xi,  Bowen  v.  Parry  (1824)  1  Car.  &  Payne, 
394,  Franks  v.  Morris  (1808)  10  East,  81,  note.  Skinner,  387.  See  Phillips  v. 
llowgate  (1821)  5  B.  &  A.  220,  Cockroft  v.  Smith  (1704)  2  Salk.  642.  BnV.  N. 
P.  15;    1  Chitty,  PI.  625. 

I^ut  SCO  .'".  Cyc.  1086,  notes  7  and  8,  and  Abney  v.  Mize  (1908)  155  Ala.  391, 
46  South.  230. 


Ch.  1)  TRESPASSES  275 


(G)     Safety   of  Plaintiff 

A  private  person  may,  without  an  express  warrant,  confine  a  per- 
son disordered  in  his  mind,  who  seems  disposed  to  do  mischief  to  him- 
self, or  to  any  other  person. 

Bacon's  Abridg.  Trespass,  (D). 


LOOK  V.  DEAN. 

(Supreme  Judicial  Court  of  Massachusetts,  1871.    108  Mass.  116, 

11  Am.  Rep.  323.) 

Tort    for   unlawfully   arresting   and   imprisoning  the   plaintiff.     In 

justification  of  an  admitted  restraint,  the  defendant  pleaded : 

That  the  plaintiff  at  the  time  and  place  aforesaid  was  insane,  and  incapable 
of  taking  care  of  himself,  and  was  conducting  himself  in  a  wild  and  irrational 
manner,  and  the  defendant  prevailed  upon  him  to  cease  from  such  disorderly 
conduct  and  to  retire  to  a  place  of  quiet ;  and  if  in  so  doing  he  in  any  manner 
restrained  the  plaintiff  of  his  liberty,  he  did  so  without  malice  towards  the 
plaintiff',  and  because  the  plaintiff',  by  reason  of  his  insanity,  was  incapable  of 
taking  care  of  himself;  and  the  defendant  did  only  what  was,  as  he  believed, 
for  the  welfare  and  safety  of  the  plaintiff'. 

On  the  trial  there  was  a  verdict  for  the  plaintiff.  The  defendant 
brings  exceptions. 

Chapman,  C.  J.  The  question  which  this  case  presents  arises  upon 
the  defendant's  request  for  instructions,  and  the  instructions  that  were 
actually  given.  The  defendant  asked  the  court  to  rule  that  if  the 
plaintiff  was  insane,  and  the  defendant,  honestly  believing  that  the 
welfare  of  the  plaintiff  demanded  that  he  should  go  from  the  crowd, 
to  which  he  was  talking,  to  a  place  of  quiet  near  by,  took  him  forcibly 
to  such  place,  using  no  more  force  than  was  necessary  for  the.  purpose, 
and  acting  from  no  other  motive  than  a  desire  to  assist  and  protect 
the  plaintiff,  such  act  would  not  be  an  assault  nor  an  unlawful  arrest 
or  imprisonment.  The  court  declined  to  give  this  instruction,  but  in- 
structed the  jury  that,  if  the  plaintiff  was  insane,  the  officer  had  a  right 
to  arrest  him,  but  it  would  in  such  case  be  his  duty  immediately  to 
take  proper  steps  to  have  him  committed  to  a  lunatic  hospital,  and  if 
he  failed  to  do  so  he  would  be  liable  from  the  beginning  for  the  ar- 
rest. 

Both  the  request  and  the  instructions  assume  that  he  was  neither 
dangerously  insane,  nor  disturbing  the  peace,  but  was  merely  insane. 
The  defendant  was  a  deputy  of  the  state  constable,  but  his  office  gave 
him  no  authority  over  the  plaintiff".  He  had  only  such  authority  as 
any  private  person  would  have.  The  right  which  every  citizen  has  to 
enjoy  personal  liberty  is  necessarily  subject  to  some  exceptions.  ]\Iost 
of  these  exceptions  are  enumerated  in  Colby  v.  Jackson,  12  N.  H.  526. 
and  the  authorities  there  cited.    Among  them,  are  the  right  to  restrain 


%^ 


276  TORTS   THROUGH    ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

a  person  who  is  fighting,  or  doing  mischief,  or  disturbing  a  congrega- 
tion, or  has  fallen  in  a  fit,  or  is  so  sick  as  to  be  helpless,  or  is  uncon- 
sciously going  into  great  danger,  or  is  drunk,  or  has  delirium  tremens, 
or  is  so  insane  as  to  be  dangerous  to  himself  or  others.  In  such  cas- 
es, the  right  to  restrain  persons  has  its  foundation  in  a  reasonable 
necessity,  and  ceases  with  the  necessity.  As  to  insane  persons  who 
are  not  dangerous,  they  are  not  liable  to  be  thus  arrested  or  restrain- 
ed by  strangers.  Bac.  Ab.  Trespass,  D;  Anderdon  v.  Burrows,  4 
C.  &  P.  210;  Scott  V.  Wakem,  3  Fost.  &  Finl.  328;  Fletcher  v.  Fletch- 
er, 28  L.  J.  N.  S.  (Q.  B.)  134;  In  re  Oakes,  8  Law  Reporter,  122. 
There  is  no  reason  why  they  should  be  thus  liable ;  for  it  is  well  known 
that  many  persons  who  are  insane,  and  especially  monomaniacs,  are 
as  harmless  as  any  other  persons,  and  are  not  deemed  proper  sub- 
jects for  treatment  in  a  hospital.  The  request  for  instructions  was 
properly  refused. 

We  need  not  in  this  case  discuss  the  question  whether  the  defendant 
would  have  had  the  right,  as  stated  in  the  instructions  given,  to  take 
up  the  plaintifif,  he  not  being  a  dangerous  person,  provided  he  had 
taken  the  proper  steps  to  have  him  committed  to  a  lunatic  hospital ; 
for  he  took  no  such  steps.  There  was  no  legal  justification  for  the 
acts  of  the  defendant. 

It  is  elementary  law  that  one  who  would  justify  himself  under  a 
statute  must  pursue  the  statute.  The  question  put  to  the  defendant  as 
a  witness,  by  his  counsel,  whether  he  was  acting  under  the  direction 
of  any  superior  officer,  was  properly  ruled  to  be  inadmissible,  because 
he  did  not  proceed  under  the  statutes,  but  merely  held  the  plaintiff 
for  a  while,  and  then  released  him.  A  superior  officer  could  not  au- 
thorize this  course. 

The  question  whether  in  his  opinion  the  mind  of  the  plaintifif,  at 
the  time  of  the  arrest,  was  in  a  normal  or  abnormal  condition,  and 
whether  the  plaintiff  was  sane  or  insane,  was  also  inadmissible,  be- 
cause the  fact  itself  was  immaterial,  it  not  being  pretended  that  the 
defendant  was  acting  under  the  statutes. 

The  subsequent  commitment  of  the  plaintiff  to  the  hospital  by  an- 
other constable  was  a  separate  matter,  and  could  not  have  justified 
the  defendant,  even  if  it  had  been  legal. 

Exceptions  overruled.''^ 

72  The  statement  of  tlie  case  is  abridwd. 

"In  Fletcher  v.  Fletcher  (1S59)  1  E.  &  E.  420,  [28  L.  J.  Q.  B.  134],  the  Court 
nsed  general  language  which  might  seem  to  convey  the  notion  that  the  mere 
fact  of  lunacy  justified  the  confinement  of  the  sufferer.  The  judges  did  not,  it 
is  conceived,  mean  this.  The  distinction  between  liarmless  and  dangerous  lun- 
atics was  not  material  for  them  to  consider."  Clerk  &  Lindsell  on  Torts,  211, 
note  c.  Accord:  Keleher  v.  Putnam  (1880)  €0  N.  H.  .30,  49  Am.  Rep.  304:  "The 
plaintiff  was  mildly  insane,  and  the  defendant  without  process  arrested  and 
detained  her." 

On  the  limits  of  the  excuse,  see  Colby  v.  Jackson  (1842)  12  N.  H.  526  (no  one 
has  a  right  to  confine  an  insane  person  for  an  indefinite'  time,  until  he  shall 
bo  restored  to  reason,  but  upon  compliance  with  the  formalities  of  the  law) ; 
I'aetz  V.  Dain  (1872)  Wils.  (Ind.)  148. 


Ch.  1)  TRESPASSES  277 

HOFFMAN  V.  EPPERS. 
(Supreme  Court  of  Wisconsin,  1876.    41  Wis.  251.) 

The  action  was  to  recover  damages  for  an  assault  and  battery  al- 
leged to  have  been  committed  by  the  defendant  upon  the  plaintiff. 
The  evidence,  admitted  under  a  general  denial,  tended  to  show  that 
the  parties  came  from  a  neighboring  town  to  the  city  of  Kenosha 
to  attend  a  lawsuit  as  witnesses ;  that  they  were  together  there,  and 
drank  with  each  other  several  times,  and  both  became  intoxicated; 
that  the  friends  of  the  plaintiff  took  him  to  a  hotel  and  put  him  to 
bed ;  that  when  the  time  for  the  suit  to  be  called  had  nearly  arrived, 
the  defendant  went  to  the  room  where  the  plaintiff  was,  aroused  him, 
took  him  down  stairs  and  into  the  street,  and  started  with  him  in  the 
direction  of  the  court.  After  the  defendant  got  the  plaintiff  into  the 
street,  the  latter  was  arrested  and  locked  up  in  jail  until  the  next  morn- 
ing, when  he  was  taken  before  a  magistrate  and  fined  for  being  drunk 
and  disorderly  in  the  streets  of  the  city. 

The  jury  found  for  the  defendant;  a  new  trial  was  denied;  and 
from  a  judgment  entered  pursuant  to  the  verdict,  the  plaintiff  ap- 
pealed. 

Wiesmann  and  Ouarles,  for  the  appellant ;  *  *  *  The  statute 
does  not  punish  the  act  of  intoxication,  but  the  act  of  being  found 
in  a  public  place  in  such  a  state  of  intoxication  as  to  disturb  others. 
To  speak  of  the  plaintiff,  therefore,  as  having  been  arrested  for  be- 
ing intoxicated,  was  to  misstate  the  law  and  mislead  the  jury.  The 
arrest,  imprisonment  and  fine  of  the  plaintiff"  were  the  direct  and  im- 
mediate result  of  the  defendant's  unlawful  acts.  Plaintiff  was  sleep- 
ing soundly  when  defendant  intruded  upon  him,  and  would  not  of  his 
own  accord  have  violated  the  law.  He  was  punished  for  being  where 
the  defendant  carried  him  against  his  will.     *     *     * 

Lyon,  J.  *  *  *  It  was  certainly  lawful  for  the  defendant  to 
arouse  the  plaintiff  from  his  drunken  stupor,  and  to  endeavor  to  as- 
sist him  to  the  court  where  he  was  required  as  a  witness ;  and  if  the 
defendant  did  this  as  a  friendly  act,  in  a  gentle  and  friendly  manner, 
with  an  honest  purpose  to  do  the  plaintiff  no  injury,  but  only  to  aid 
him  to  feach  the  court,  he  is  not  liable  to  respond  in  damages  for 
such  acts.  As  we  understand  the  charge  of  the  learned  circuit  judge, 
he  substantially  so  stated  the  law  to  the  jury;  and  there  is  sufficient 
testimony  tending  to  show  that  such  was  the  motive  and  purpose  of 
the  defendant's  conduct,  to  render  the  instructions  applicable  to  the 
case.     *     *     * 

Judgment  affirmed. '^^ 

~3  The  statement  of  the  case  is  abridged,  and  only  so  much  of  the  opinion 
is  given  as  relates  to  the  one  point. 

On  the  principle  involved,  compare  Richmond  v.  Fisk  (lSt).'>)  100  Mass.  l^A. 
35  X.  E.  10.3,  given  ante,  p.  77;  and  see  in  general,  ante,  Section  2 — Elements 
of  a  Prima  Facie  Cause  in  Trespass. 


278  TORTS  THROUGH   ACTS   OF  ABSOLUTE  LIABILITY  (Part  1 


LUKA  V.  LOWRIE. 

(Supreme  Court  of  Michigan,  1912.    171  Mich.  122,  136  N.  W.  1106,  41  L.  R.  A. 

[N.  S.]  290.) 

Action  by  Charles  Luka,  by  next  friend,  against  Lowrie  and  others. 
Judgment  for  defendants.     Plaintiff  brings  error. 

The  plaintiff',  a  boy  15  years  of  age,  while  crossing  the  Michigan 
Central  Railroad  track,  was  knocked  down  by  an  engine  and  in  some 
manner,  not  clearly  shown,  was  thrown  under  the  wheels  of  a  car. 
His  left  foot  was  mangled  and  crushed.  Shortly  after  his  injury, 
plaintiff  was  removed  to  Harper  Hospital  in  an  ambulance.  He  was 
partially  conscious  upon  his  arrival  and  was  able  to  communicate  his 
name  and  the  name  of  the  street  upon  which  he  lived  to  the  attending 
surgeons.  Within  10  or  15  minutes  after  his  arrival,  he  lapsed  into  a 
comatose  condition,  and  later  into  complete  unconsciousness.  Efforts 
to  revive  him  by  injections  of  strychnine  and  infusion  of  a  saline  solu- 
tion were  made,  but  he  remained  unconscious  until  after  the  opera- 
tion. Soon  after  his  arrival  at  the  hospital,  at  10:15  a.  m.,  plaintiff's 
foot  was  examined  by  four  house  physicians  connected  with  the  hospi- 
tal. They  concluded  that  prompt  surgical  treatment  was  necessary  and 
telephoned  to  defendant,  who  is  assistant  surgeon  of  the  Michigan 
Central  Railroad.  Defendant  arrived  at  the  hospital  at  10:45  a.  m. 
Upon  examining  the  plaintiff,  he  found  him  unconscious,  with  a  weak 
pulse  and  dilated  pupils.  The  foot  was  found  to  be  cold  and  dead,  the 
circulation  having  been  interrupted.  Defendant  testified  that  he 
learned  from  the  house  surgeon  the  boy's  name  and  residence  street. 
With  reference  to  the  residence,  he  knew  the  distance  from  Harper 
Hospital  and  the  time  it  would  take  to  get  from  there  to  the  hospital ; 
that  he  inquired  of  the  house  surgeon  if  any  one,  any  relatives,  were 
present,  and  was  informed  that  no  person  was  present  whatever.  After 
a  consultation  with  the  four  house  physicians,  it  was  agreed  by  all 
that  an  immediate  amputation  was  necessary  to  save  the  plaintiff's 
life.  The  foot  was  amputated,  and  the  plaintiff  recovered.  It  is  the 
plaintiff's  claim  that  his  foot  should  not  have  been  amputated  at  all. 
and  particularly  that  it  should  not  have  been  amputated  without  first 
obtaining  his  consent  or  the  consent  of  his  parents,  who  went  to  the 
hospital  as  soon  as  possible  after  learning  of  the  accident.  A  verdict 
having  been  directed  in  favor  of  defendant,  the  case  is  brought  here 
for  review  upon  writ  of  error. 

Brooke,  j.  *  *  *  There  is  nothing  in  this  record  to  indicate 
that,  had  the  parents  of  plaintiff  been  present  at  the  operating  table, 
they  would  have  refused  their  consent  to  the  operation.  Indeed,  it  is 
inconceivable  that  such  consent  would  have  been  withheld  in  the  face 
of  the  determination  of  five  duly  qualified  physicians  and  surgeons 
that  it  was  necessary  to  save  the  plaintiff's  life.  But  defendant  tes- 
tifies, and   in   this  he  is  not  contradicted,  that  he  made  inquiry    for 


Ch.  1)  TRESPASSES  279 

relatives  of  the  plaintiff  and  was  told  that  none  were  in  the  hospital. 
Suppose  that  his  informant  was  in  error  (which  is  not  certain),  the 
defendant  had  a  right  to  rely  upon  the  information  and  to  act  in  the 
emergency  upon  the  theory  that  to  obtain  consent  was  impracticable. 
In  Pratt  v.  Davis,  224  111.  309,  79  N.  E.  565,  7  L.  R.  A.  (N.  S.)  609, 
8  Ann.  Cas.  197,  it  was  said :  "In  such  event  a  surgeon  may  lawfully, 
and  it  is  his  duty  to,  perform  such  operation  as  good  surgery  demands 
without  such  consent."  UiXDn  the  question  involved  in  this  case  a 
valuable  collection  of  authorities  will  be  found  in  Gillette  v.  Tucker, 
93  Am.  St.  Rep.  657,  note.     See,  also,  6  Cyc.  675 ;   30  Cyc.  1587. 

The  fact  that  surgeons  are  called  upon  daily,  in  all  our  large  cities, 
to  operate  instantly  in  emergency  cases  in  order  that  life  may  be 
preserved,  should  be  considered.  Many  small  children  are  injured 
upon  the  streets  in  large  cities.  To  hold  that  a  surgeon  must  wait  un- 
til perhaps  he  may  be  able  to  secure  the  consent  of  the  parents  be- 
fore giving  to  the  injured  one  the  benefit  of  his  skill  and  learning,  to 
the  end  that  life  may  be  preserved,  would,  we  believe,  result  in  the 
loss  of  many  lives  which  might  otherwise  be  saved.  It  is  not  to  be  pre- 
sumed that  competent  surgeons  will  wantonly  operate,  nor  that  they 
will  fail  to  obtain  the  consent  of  parents  to  operations  where  such 
consent  may  be  reasonably  obtained  in  view  of  the  exigency.  Their 
work,  however,  is  highly  humane  and  very  largely  charitable  in  char 
acter,  and  no  rule  should  be  announced  which  would  tend  in  the  slight- 
est degree  to  deprive  sufferers  of  the  benefit  of  their  services. 

The  judgment  is  affirmed. ''* 

7  4  Compare  Rolater  v.  Strain  (191.3)  39  OM.  572.  1.37  Pac.  96,  50  L.  R.  A. 
(N.  S.)  8S0:  P.  stepped  on  a  nail  which  penetrated  the  great  toe  of  her  right 
foot.  The  wound  did  not  heal,  and  D.,  a  surgeon,  was  consulted.  He  advised 
an  operation,  to  drain  the  wound.  P.  consented,  but  on  condition  that  no 
bone  should  be  removed.  P.  was  placed  under  an  anaisthetic,  but  in  performing 
the  operation  D.  removed  a  sesamoid  bone.  Contending  that  she  did  not  con- 
sent to  the  removal  of  this  bone,  P.  sued  for  assault  and  battery.  It  was  not 
claimed  that  the  operation  was  unskillfully  performed.  D.  contended  that 
even  if  the  contract  was  made,  still  the  removal  of  the  bone,  under  the  circum- 
stances, was  not  a  violation  of  it,  since  the  facts  show  this  to  be  an  emergency 
case,  as  this  bone  was  found  in  an  unusual  place,  and  was  unexpected,  and 
when  it  was  discovered,  tlie  patient  being  under  the  inlluence  of  the  anaesthetic, 
it  was  unsafe  to  stop  the  operation  at  the  time  and  allow  her  come  out  from 
under  the  influence  of  the  ana?sthetic  so  as  to  have  obtained  her  consent  to  its 
removal,  and  that  he  was  justified  under  the  circumstances  in  removing  the 
bone.    Held.  P.  may  recover. 

For  the  principle,  see  ante,  Mohr  v.  "Williams  (190.5)  95  Miim.  261,  104  N. 
W.  12,  1  L.  R.  A.  (N.  S.)  439,  111  Am.  St.  Rep.  462,  5  Ann.  Cas.  .303. 


/ 


280  TORTS  THROUGH  ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 


SECTION  4.— TRESPASS  AB   INITIO 
THE  SIX  CARPENTERS'  CASE. 

(Court  of  King's  Bench,  1610,    8  Co.  Rep.  146  a,  77  Reprint,  695.) 

In  trespass  brought  by  John  Vaux  against  Thomas  Newman,  car- 
penter, and  five  other  carpenters,  for  breaking  his  house,  and  for  an 
assault  and  battery,  1  Sept.  7  Jac.  in  London,  in  the  parish  of  St. 
Giles  extra  Cripplegate,  in  the  ward  of  Cripplegate,  etc.,  and  upon 
the  new  assignment,  the  plaintiff  assigned  the  trespass  in  a  house  call- 
ed the  Queen's  Head.  The  defendants  to  all  the  trespass  prccter  f rac- 
tionem  domus  pleaded  not  guilty;  and  as  to  the  breaking  of  the  house 
said,  that  the  house  prjed'  tempore  quo,  etc.,  et  diu  antea  et  postea, 
was  a  common  wine  tavern,  of  the  said  John  Vaux,  with  a  common 
sign  at  the  door  of  the  said  house  fixed,  etc.,  by  force  whereof  the 
defendants,  praid'  tempore  quo,  etc.,  viz.  hora  quarta  post  meridiem 
into  the  said  house,  the  door  thereof  being  open,  did  enter,  and  did 
there  buy  and  drink  a  quart  of  wine,  and  there  paid  for  the  same,  etc. 
The  plaintiff,  by  way  of  replication,  did  confess,  that  the  said  house 
was  a  common  tavern,  and  that  they  entered  into  it,  and  bought  and 
drank  a  quart  of  wine,  and  paid  for  it:  but  further  said,  that  one 
John  Ridding,  servant  of  the  said  John  Vaux,  at  the  request  of  the 
said  defendants,  did  there  then  deliver  them  another  quart  of  wine, 
and  a  pennyworth  of  bread,  amounting  to  8d.  and  then  they  there  did 
drink  the  said  wine,  and  eat  the  bread,  and  upon  request  did  refuse 
to  pay  for  the  same :  upon  which  the  defendants  did  demur  in  law : 
and  the  only  point  in  this  case  was,  if  the  denying  to  pay  for  the 
wine,  or  the  nonpayment,  which  is  all  one  (for  every  nonpayment  up- 
on request,  is  a  denying  in  law)  makes  the  entry  into  the  tavern  tor- 
tious. 

And  first  it  was  resolved  when  an  entry,  authority,  or  license,  is  giv- 
en to  any  one  by  the  law,  and  he  doth  abuse  it,  he  shall  be  a  trespasser 
ab  initio :  ^^    but  where  an  entry,  authority,  or  license  is  given  by 

7  5  On  tiiis  distinction  between  nonfeasance  and  misfeasance  in  the  law  of 
trespass  ab  initio,  see  the  remarks  of  Coke,  C.  J.,  in  Isaack  v.  Clark  (1615)  2 
Bulstrode,  306,  312:  "If  a  man  hndes  goods,  an  action  upon  the  case  lieth.  for 
his  ill  and  negligent  keeping  of  them,  but  no  trover  and  conversion,  because  it 
is  but  a  non  feasans,  and  so  in  the  Six  Caipenters  Case,  he  shall  not  be  pun- 
ished in  trespass,  for  not  paying  for  his  wine,  being  but  non  feasans ;  but  if  a 
distress  taken  be  abused,  he  sliall  then  be  piuiishcd  in  tx'espass,  and  so  the 
difference  is,  that  mis-fesans  but  not  non-fosans,  shall  make  one  a  trespasser." 

See,  also,  the  remark  of  Mr.  Justice  Holmes  in  Commonwealth  v.  Rubin 
(18!)G)  165  Mass.  453,  43  N.  E.  200:  "The  lule  that  if  a  man  abuse  an  authority 
given  him  by  the  law,  he  becomes  a  trespasscM*  ab  initio,  although  now  it  looks 
like  a  rule  of  substantive  law  and  is  limited  to  a  certain  class  of  cases,  in  its 
origin  was  only  a  rule  of  evidence  by  wbicli.  when  sucli  rules  wore  low  and 
rude,  the  original  intent  was  presumed  coudusivolv  from  the  subsequent  con- 
duct." 

Compare  the  remarks  of  Professor  Amos  on  "the  origin  of  the  familiar  dis- 
tinction in  the  law  of  trespass  ab  initio  between  the  abuse  of  an  authority  given 


Ch.  1)  TRESPASSES  281 

the  party,  and  he  abuses  it,  there  he  must  be  punished  for  his  abuse, 
but.  shall  not  be  a  trespasser  ab  initio.  And  the  reason  of  this  dift'er- 
ence  is,  that  in  the  case  of  a  general  authority  or  license  of  law,  the 
law  adjudges  by  the  subsequent  act,  quo  animo,  or  to  what  intent,  he 
entered;  for  acta  exteriora  indicant  interiora  secreta.  Vide  11  H.  4, 
75  b.  But  when  the  party  gives  an  authority  or  license  himself  to  do 
anything,  he  cannot,  for  any  subsequent  cause,  punish  that  which  is 
done  by  his  own  authority  or  license,  and  therefore  the  law  gives  au- 
thority to  enter  into  a  common  inn,  or  tavern,  so  to  the  lord  to  dis- 
train ;  to  the  owner  of  the  ground  to  distrain  damage-f easant ;  to 
him  in  reversion  to  see  if  waste  be  done;  to  the  commoner  to  enter 
upon  the  land  to  see  his  cattle,  and  such  like.  Vide  12  E.  4,  8  b.  21 
E.  4,  19  b.  5  H.  7,  11  a.  9  H.  6,  29  b.  11  H.  4,  75  b.  3  H.  7,  15  b. 
28  H.  6,  5  b.  But  if  he  who  enters  into  the  inn  or  tavern  doth  a  tres- 
pass, as  if  he  carries  away  any  thing ;  or  if  the  lord  who  distrains  for 
rent,  or  the  owner  for  damage-f  easant,  works  or  kills  the  distress ; 
or  if  he  who  enters  to  see  waste  breaks  the  house,  or  stays  there  all 
night;  or  if  the  commoner  cuts  down  a  tree,  in  these  and  the  like 
cases,  the  law  adjudges  that  he  entered  for  that  purpose;  and  because 
the  act  which  demonstrates  it  is  a  trespass,  he  shall  be  trespasser  ab 
initio  as  it  appears  in  the  said  books.  So  if  a  purveyor  takes  my  cattle 
by  force  of  a  commission,  for  the  King's  house,  it  is  lawful ;  but  if 
he  sells  them  in  the  market,  now  the  first  taking  is  wrongful;  and 
therewith  agrees  18  H.  6,  19  b.     Et  sic  de  similibus. 

It  was  resolved  per  totam  Curiam,  that  not  doing  cannot  make  the 
party  who  has  authority  or  license  by  the  law  a  trespasser  ab  initio, 
because  not  doing  is  no  trespass,  and,  therefore,  if  the  lessor  distrains 
for  his  rent,  and  thereupon  the  lessee  tenders  him  the  rent  and  ar- 
rears, etc.,  and  requires  his  beasts  again,  and  he  will  not  deliver  them, 
this  not  ^oing  cannot  make  him  a  trespasser  ab  initio;  and  therewith 
agrees  33  H.  6,  47  a..  So  if  a  man  takes  cattle  damage-f  easant,  and 
the  other  offers  sufficient  amends  and  he  refuses  to  redeliver  them, 
now  if  he  sues  a  replevin,  he  shall  recover  damages  only  for  the  de- 
taining of  them,  and  not  for  the  taking,  for  that  was  lawful;  and 
therewith  agrees  F.  N.  B.  69,  g.  temp.  E.  1.  Replevin  27.  27  E.  3. 
88.  45  E.  3,  9.  So  in  the  case  at  Bar,  for  not  paying  for  the  wine, 
the  defendants  shall  not  be  trespassers,  for  the  denying  to  pay  for 
it  is  no  trespass,  and  therefore  they  cannot  he  trespassers  ab  initio; 
and  therewith  agrees  directly  in  the  point  12  Edw.  4,  9  b.  For  there 
Pigot,  Serjeant,  puts  this  very  case,  if  one  comes  into  a  tavern  to 
drink,  and  when  he  has  drunk  he  goes  away,  and  will  not  pay  the 
taverner,  the  taverner  shall  have  an  action  of  trespass  against  him 

by  the  law  and  the  abuse  of  an  authority  given  by  the  party,  the  abuse  malting 
one  a  trespasser  ab  initio  in  the  one  case,  but  not  in  the  otlier."  11  llarv.  Law 
Review  276,  287-2b9 ;  3  Legal  Essays  418,  428-430;  Lectures  on  Legal  His- 
tory, 61. 

See,  further,  Professor  Beale's  article  on  "Trespass"  in  38  Cyc.  1000,  notes, 
and  cases  there  given,  and  Key  No.,  Dec.  Dig,,  "Trespass,"  §  13. 


282  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

for  his  entry.  To  which  Brian,  Chief  Justice,  said,  the  said  case 
which  Pigot  has  put,  is  not  law,  for  it  is  no  trespass,  but  the  taverner 
shall  have  an  action  of  debt.     *     *     *  to 


GARGRAVE  v.  SMITH. 

(Court  of  Common  Pleas,  1691.     Salk.  221.  91  Reprint,  196.) 

Trespass  for  breaking  his  house,  and  taking  and  carrying  away  his 
goods;  the  defendant  justified  the  taking  and  carrying  away  nomine 
districtionis  for  damage-feasant;  plaintiff  replied  quod  post  distne- 
tionem  prsed.  viz.  eodem  die,  etc.,  he  converted  them  to  his  own  use. 
On  demurrer  it  was  urged,  that  the  replication  was  a  departure,  for 
it  does  not  make  good  the  plaintiff's  declaration  in  trespass,  but  shews 
rather  that  the  plaintiff's  should  have  brought  trover  and  conversion : 
Sed  non  allocatur;  he  that  abuses  a  distress,  is  a  trespasser  ab  initio, 
and  therefore  if  in  trespass  the  defendant  justifies  nomine  districtionis, 
the  plaintiff"  may  shew  an  abuse,  and  it  is  no  departure,  but  makes 
good  his  declaration ;  and  so  it  does  in  this  case,  for  the  converting 
is  a  trespass  or  trover  at  election,  and  the  matter  disclosed  in  the 
replication  makes  good  his  election,  for  it  proves  it  a  trespass  as  well 
as  a  trover. 


ALLEN  V.  CROFOOT. 

(Supreme  Court  of  Judicature  of  New  York,  1830.     5  Wend.  506.) 

Crofoot  sued  Allen  in  a  justice's  court,  and  declared  against  him 
in  trespass  for  entering  his  house  in  his  absence  and  obtaining  copies 
of  papers  for  the  purpose  of  commencing  a  suit  against  him.  The 
defendant  pleaded  the  general  issue  and  license  to  enter  the  house. 
The  cause  was  tried  by  a  jury,  who  found  a  verdict  for  the  plaintiff 
for  $50,  for  which  sum  the  justice  gave  judgment.  The  defendant  ap- 
pealed to  the  Cortland  Common  Pleas,  where  the  court  charged  the 
yjury  that  if  they  should  be  of  the  opinion  that  the  defendant  had 
acted  unfairly  or  improperly  in  obtaining  copies  of  the  papers,  and 
had  gone  to  the  plaintift"'s  house  with  the  intention  of  fraudulently 
obtaining  such  copies,  though  he  had  leave  to  enter  the  house,  they 
should  find  for  the  plaintiff' ;  but  if  he  acted  correctly  and  openly,  and 
had  leave  to  enter  the  house,  they  should  find  for  the  defendant.  The 
defendant  excepted  to  this  charge,  and  the  jury  found  a  verdict  for 

■?c  A  portion  of  tlie  opinion,  dealing'  with  analogous  cases,  is  omitted.  After 
reviewing  many  autliorities.  Lord  Coke  is  clear  that  in  the  doctrines  of  the 
Six  Carpenters"  Case  "all  the  books  which  i)rima  facie  seem  to  disagree  are 
upon  full  and  pregnant  reason  well  reconciled  and  agreed." 


Ch.  1)  TRESPASSES  283 

the  plaintiff,  with  $75  damages.  The  defendant  sued  out  a  writ  of 
error."^ 

Savage;,  C.  J.  *  *  *  It  is  also  urged  by  the  plaintiff  in  error 
that  the  court  below  erred  in  charging  the  jury  that  the  action  was 
sustainable,  if  they  should  find  the  defendant  entered  the  plaintiff's 
house  fraudulently,  to  obtain  improperly  copies  of  papers  in  the  ab- 
sence of  the  plaintiff.  It  was  decided  in  the  Six  Carpenters'  Case 
that  where  an  authority  to  enter  upon  the  premises  of  another  is  given 
by  law,  and  it  is  subsequently  abused,  the  party  becomes  a  trespasser 
ab  initio;  but  where  such  authority  or  license  is  given  by  the  party, 
and  it  is  subsequently  abused,  the  party  guilty  of  the  abuse  may  be  pun- 
ished, but  he  is  not  a  trespasser ;  ^^  and  the  reason  of  the  difference 
is  said  to  be  that  in  case  of  a  license  by  law  the  subsequent  tortious 
act  shows  quo  animo  he  entered;  and  having  entered  with  an  intent 
to  abuse  the  authority  given  by  law,  the  entry  is  unlawful ;  but  where 
the  authority  or  license  is  given  by  the  party,  he  cannot  punish  for 
that  which  was  done  by  his  own  authority. 

Whether  this  is  not  a  distinction  without  a  difference  of  principle, 
is  not  necessary  to  inquire.  A  better  reason  is  given  for  it  in  Bac. 
Abr.  tit.  "Trespass,"  B.  Where  the  law  has  given  an  authority,  it 
is  reasonable  that  it  should  make  void  everything  done  by  the  abuse  of 
that  authority,  and  leave  the  abuser  as  if  he  had  done  everything 
without  authority.  But  where  a  man  who  was  under  no  necessity  to 
give  an  authority  does  so,  and  the  person  receiving  the  authority 
abuses  it,  there  is  no  reason  why  the  law  should  interpose  to  make 
void  everything  done  by  such  abuse,  because  it  was  the  man's  folly 
to  trust  another  with  an  authority  who  was  not  fit  to  be  trusted  there- 
with. It  is  contended  that  the  license,  being  obtained  by  fraud,  was 
void.  The  defendant  knocked  on  the  door  and  was  told  to  walk  in;  ^' 
he  was  found  copying  certain  papers ;  but  how  he  obtained  them,  on 
what  representation,  or  from  whom,  the  evidence  does  not  disclose. 
One  witness  does  indeed  testify  that  he  said  he  would  not  have  got 

7  7  The  statement  is  abridged.  A  part  of  ttie  opinion  on  another  point  is 
omitted. 

7  8  On  the  oricrin  of  this  distinction  in  the  law  of  trespass  ab  initio,  see  Pro- 
fessor Ames'  Article  on  "The  History  of  Trover,"  11  Harv.  Law  Rev.  276, 
287-2S9 ;   3  Legal  Essays,  418,  428-4:^0. 

79  Compare:  Moore  v.  Dnke  (191])  84  Vt.  401,  80  Atl.  194:  Dnke,  a  con- 
stable with  a  writ  of  replevin  for  a  chattel  in  the  possession  of  Moore,  entered 
Moore's  lot  and  knocked  at  the  door  of  his  dwelling.  Moore  opened  the  door 
and  invited  Duke  to  enter.  "This,"  said  Powers,  J.,  delivering  the  opinion,  "is 
said  to  have  amounted  to  a  license  in  fact.  But  the  breaking  of  the  close 
described  in  the  second  count  preceded  this.  It  was  complete  when  the  officer 
stepped  across  the  imaginaiy  line  which  divided  the  lot  from  the  street. 
*  *  "■  As  evidence  that  r»uke  did  not  come  upon  the  premises  under  a 
license  from  the  plaintiff,  either  express  or  implied,  it  was  permissible  to 
show  that  he  came  there  for  the  sole  purpose  of  serving  this  writ."  In  this 
case,  Moore's  declaration  against  Duke  was  framed  in  two  counts,  one  ch.'irg- 
Ing  a  trespass  to  the  plaintiffs  dwelling  house,  the  other  a  trespass  to  the  lot 
on  which  the  dwelling  stood. 


284  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

the  copies,  if  he  had  not  practiced  a  deception  on  the  wife  and  broth- 
er-in-law of  the  plaintiff.  If  this  declaration  should  be  considered 
evidence  of  his  having  made  improper  representations  to  obtain  the 
papers,  then  the  question  arises :  Does  he  thereby  become  a  trespass- 
er ab  initio? 

It  has  been  decided  that  to  enter  a  dwelling-house  without  license  is 
in  law  a  trespass,  Adams  v.  Freeman,  12  Johns.  408,  7  Am.  Dec.  327, 
and  that  possession  of  property  obtained  fraudulently  confers  no 
title.  Under  such  circumstances  no  change  of  property  takes  place, 
Woodworth  v.  Kissani,  15  Johns.  186;  and  it  is  argued  that,  as  fraud 
vitiates  everything  into  which  it  enters,  a  license  to  enter  the  house 
fraudulently  obtained  is  void,  and  is  no  license.  The  principle  of 
relation  has  never  been  applied  to  such  a  case,  nor  is  it  necessary  for 
the  purposes  of  justice  to  extend  it  further  than  to  cases  where  the 
person  enters  under  a  license  given  him  by  law.  In  such  cases,  as 
the  party  injured  had  not  the  power  to  prevent  the  injury,  it  seems 
reasonable  that  he  should  be  restored  to  all  his  remedies. 

The  judgment  must  be  reversed  without  costs,  and  a  venire  de  novo 
awarded  by  Cortland,  C.  P. 


ADAMS  V.  RIVERS. 
(Supreme  Court  of  New  York,  1851.    11  Barb.  390.) 

This  action  was  brought  in  a  justice's  court.  The  plaintiff  de- 
clared, for  that  he  was  in  possession  of  premises  bounded  by  streets 
on  two  sides,  and  also  in  constructive  possession  to  the  center  of  each 
street,  subject  only  to  a  public  easement;  that  the  defendant  wrong- 
fully came  upon  the  sidewalk  of  the  plaintiff,  and  there  remained,  us- 
ing offensive,  vulgar  and  vile  language  towards  the  plaintiff  and  re- 
fusing to  depart.  The  answer  pleaded  a  license  to  be  upon  the  side- 
walk. There  was  a  verdict  for  the  plaintiff  for  $20  damages,  and 
judgment  thereon.  The  defendant  appealed  to  the  county  court,  which 
^/  reversed  the  judgment,  upon  the  ground  that  evidence  was  admitted 
of  the  language  of  the  defendant  while  on  the  sidewalk  of  a  public 
street,  and  that  no  action  for  such  a  cause  could  be  maintained.  The 
plaintiff  appealed  to  the  Supreme  Court.^° 

WiLLARD,  P,  J.  *  *  *  This  brings  us  to  the  main  question  in 
the  case,  whether  the  defendant,  by  using  abusive  and  insulting  lan- 
guage to  the  plaintiff,  became  a  trespasser  from  the  beginning.  The 
testimony  authorized  the  jury  to  find  that  the  defendant  came  on  to 
the  premises  of  the  plaintiff,  covered  by  the  street,  not  in  the  legitimate 
use  of  the  highway  as  a  place  of  travel,  but  for  the  express  purpose 
of  abusing  him.  The  opprobrious  language  used  by  the  defendant  was 
not  actionable  as  slanderous.  It  was  highly  provoking  and  tended 
directly  to  a  breach  of  the  peace.     It  was  received  in  evidence  merely 

80  The  statement  of  the  case  has  been  abridf^ed.  Only  so  much  of  the  opinion 
is  given  as  relates  to  the  one  point. 


Ch.  1)  .   TRESPASSES  285 

to  show  that  the  defendant  was  a  trespasser,  having  forfeited  his 
privilege  by  a  gross  abuse  of  it;  and  not  indirectly  to  recover  dam- 
ages before  the  justice,  for  actionable  words.  It  is  conceded  that  the 
justice  had  no  jurisdiction  of  an  action  of  slander. 

The  general  doctrine  as  laid  down  in  the  Six  Carpenters'  Case,  8 
Co.  146,  a,  is  that  when  an  entry,  authority  or  license  is  given  to  any 
one  by  the  law,  and  he  doth  abuse  it,  he  shall  be  a  trespasser  ab  initio ; 
but  when  an  entry,  authority  or  license  is  given  by  the  party,  and  he 
abuses  it,  then  he  must  be  punished  for  the  abuse,  but  shall  not  be  a 
trespasser  ab  initio.  *  *  *  j^  all  the  cases  put  by  Coke,  the  acts 
complained  of  as  abuses  of  the  power  were  distinct  acts  of  trespass. 
And  it  seems  to  be  the  better  opinion  that  a  man  cannot  become  a 
trespasser  ab  initio,  by  any  act  of  omission,  which  would  not  itself, 
if  not  protected  by  a  license,  be  the  subject  of  trespass.  *  *  *  No 
case  has  been  cited  showing  that  a  man  will  forfeit  a  license  granted 
by  law,  by  the  use  of  vituperative  language ;  and  none  such  has  fallen 
under  my  notice.  In  all  the  cases,  except  Adams  v.  Adams,  and  Bond 
v.  Wilder,^^  some  positive  act,  such  as  if  done  without  authority  would 
be  a  trespass,  has  been  held  essential  to  make  the  party  a  trespasser 
ab  initio.  These  cases  may  have  been  decided  upon  local  statutes.  It 
is  quite  clear  that  uttering  abusive  language  was  not  an  act  for  which 
the  plaintiff  could  maintain  trespass  against  the  defendant.     *     *     * 

"A  highway,"  says  Swift,  Justice,  in  Peck  v.  Smith,  1  Conn.  132, 
6  Am.  Dec.  216,  "is  nothing  but  an  easement,  comprehending  merely 
the  right  of  all  the  individuals  in  the  community  to  pass  and  repass, 
with  the  incidental  right  in  the  public  to  do  all  the  acts  necessary  to 
keep  it  in  repair.  This  easement  does  not  comprehend  any  interest 
in  the  soil,  nor  give  the  public  the  legal  possession  of  it."  In  this  state, 
since  the  adoption  of  the  Revised  Statutes,  the  public  under  certain 
circumstances,  may  have  a  qualified  right  of  pasturage,  by  certain  ani- 
mals at  certain  seasons.  Griffin  v.  Martin,  7  Barb.  297.  The  use  of 
the  highway,  by  any  person  for  any  purpose  other  than  to  pass  and 
repass,  is  a  trespass  upon  the  person  who  owns  the  fee  of  the  road.  V 
Makepeace  v.  Worden,  1  N.  H.  16;  Babcock  v.  Lamb,  1  Cow.  238; 
Jackson  v.  Hathaway,  15  Johns.  447,  8  Am.  Dec.  263.  But  no  act 
will  amount  to  a  trespass  unless  the  same  act  would  be  a  trespass  if 
committed  on  any  other  land  of  the  plaintiff.  Language,  however  li- 
centious and  abusive,  is  not  a  trespass,  within  the  appropriate  mean- 
ing of  that  term.  Nor  can  a  party  be  made  a  trespasser  upon  the  free- 
hold of  the  adjoining  owners  of  the  soil,  by  the  uttering  of  abusive 
language  as  he  passes  along  the  road.     A  person  who  disturbs  the 

81  Adams  v.  Adams  (1832)  13  Pick.  (Mass.)  384,  was  to  the  effect  that  the 
omission  of  a  distrainor  to  afford  proper  food  and  water  to  distrained  cattle 
made  the  distrainor  a  trespasser  from  the  beginning.  In  Bond  v.  Wilder 
(1844),  16  Vt.  394,  it  was  held  that  if  an  officer  levy  upon  property  by  virtue 
of  an  execution,  and  advertise  the  same  for  sale,  and  neglect  to  sell  it  upon 
execution,  he  becomes  a  trespasser  ab  initio. 


286  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

public  peace  as  he  passes  along  the  road,  by  singing  obscene  songs 
and  using  boisterous  and  obscene  language,  may  be  liable  to  be  pun- 
ished at  the  suit  of  the  public,  for  a  breach  of  the  peace,  but  he  is 
not  liable  in  trespass  at  the  suit  of  the  adjoining  owners.  These  acts, 
however  censurable,  are  not  acts  of  trespass. 

The  foregoing  remarks  show  that  if  the  action  was  sought  to  be 
maintained  on  the  ground  that  the  defendant  became,  while  passing 
on  the  road,  a  trespasser  from  the  beginning,  by  reason  of  his  abusive 
language  to  the  plaintiff,  the  action  cannot  be  maintained.  The  county 
judge  must  have  taken  this  view  of  the  case;  for  one  of  the  reasons 
for  the  reversal  is  that  evidence  was  received  by  the  justice,  under 
objections,  of  the  language  and  conversation  of  the  defendant  on  the 
sidewalks  of  the  public  streets,  and  in  his  judgment  no  action  could 
be  maintained  for  that  cause.  It  is  presumed  that  the  county  judge 
supposed  that  the  abusive  language  was  proved,  not  as  a  substantive 
cause  of  action,  but  as  showdng  that  the  defendant  had  forfeited  his 
right  to  be  in  the  highway  on  the  plaintiff's  premises ;  in  short  that 
he  was  a  trespasser  ab  initio,  by  reason  of  his  abusive  conduct. 

But  there  was  another  view  of  the  case  which  seems  to  have  been 
overlooked.  *  *  *  The  defendant  committed  a  trespass  while 
standing  on  the  sidewalk  by  the  plaintiff's  lot  where  he  lived,  and  us- 
ing towards  him  abusive  language.  While  so  engaged  he  was  not  us- 
ing the  highway  for  the  purpose  for  which  it  was  designed,®-  but  was 
a  trespasser.  He  stood  there  but  about  five  minutes.  It  was  not 
shewn  that  he  stopped  on  the  side  walk  for  a  justifiable  cause;  on 
the  contrary  it  was  rendered  probable  that  it  was  for  a  base  and  wicked 
purpose.  It  was,  therefore,  a  trespass.  Suppose  a  strolling  musician 
stops  in  front  of  a  gentleman's  house,  and  plays  a  tune  or  sings  an 
obscene  song  under  his  window,  can  there  be  a  doubt  that  he  is  lia- 
ble in  trespass?  The  tendency  of  the  act  is  to  disturb  the  peace,  to 
draw  together  a  crowd,  and  to  obstruct  the  street.  It  would  be  no 
justification  that  the  act  was  done  in  a  public  street.  The  public  have 
no  need  of  the  highway  but  to  pass  and  repass.  If  it  is  used  for  any 
other  purpose  not  justified  by  law,  the  owners  of  the  adjoining  land 
are  remitted  to  the  same  rights  they  possessed  before  the  highway  was 
made.  They  can  protect  themselves  against  such  annoyances,  by  treat- 
ing the  intruders  as  trespassers.** 

82  Compare  Moore  v.  Duke  (1911)  84  Vt.  401,  80  Atl.  194:  D.  had  entered 
P.'s  dwelling  to  serve  a  writ  of  replevin.  The  question  was  whether  D.  had 
entered  on  P.'s  implied  invitation.  It  appeared  that  the  dwelling  was  used  in 
part  as  a  village  clerk's  office.  "But,"  said  tlie  court,  "a  public  office  like  this 
is  not  public  for  all  purposes  or  to  all  persons.  It  is  only  open  to  such  as  have 
legitimate  business  iliero.  and  this  includes  only  such  i)cvsons  as  have  busi- 
ness to  transact  there  of  the  kind  for  which  the  office  is  maintained  and  other 
matters  reasonably  incident  thereto  and  in  some  cireumstances  per.sons  whose 
business  is  merely  social." 

«3  Accord: 

Harrison  v.  Duke  of  Rutland  (189.3)  1  Q.  R.  142:  D.  owned  a  grouse  moor 
crossed  by  a  public  highway.     While  D.  was  shooting  on  this  moor,  P.  went 


Ch.  !)■  TRESPASSES  287 

The  action  therefore  was  strictly  supported  by  the  evidence.  The 
jury  were  not  limited  to  mere  compensatory  damages,  and  the  court 
could  not  have  interfered,  had  the  recovery  been  five  times  as  much 
as  it  was.  Merest  v.  Harvey,  5  Taunt.  442;  Cook  v.  Ellis,  6  Hill, 
466,  41  Am.  Dec.  757;   Whitney  v.  Hitchcock,  4  Denio,  461. 

The  judgment  of  the  county  court  must  be  reversed,  and  that  of 
the  justice  affirmed. 


COLE  V.  DREW  et  v.x. 

(Supreme  Court  of  Vermont,  1871.     44  Vt.  49,  8  Am.  Rep.  36.3.) 

Trespass,  q.  c.  f.  The  defendant's  wife,  under  the  direction  of  the 
highway  surveyor,  cut  the  grass  growing  in  the  highway  over  the 
land  of  the  plaintiff,  that  her  children  might  go  and  come  from  school, 
without  getting  their  clothes  wet.  She  cut  about  fifteen  or  twenty 
pounds  and  carried  it  away  and  fed  it  to  her  husband's  horse.  The 
court  ruled,  at  the  trial,  that  the  defendant  was  justified  in  cutting  the 
grass  in  the  highway,  but  that  in  carrying  it  away  and  feeding  it  to 
the  horse,  she  became  a  trespasser  ab  initio;  and  that  the  rule  "de 
minimis  non  curat  lex"  did  not  apply.  Verdict  for  plaintiff  for  one 
cent  damages.     Defendants  excepted. 

Ross,  J*  *  *  Xhe  owner  of  the  soil  over  which  a  highway 
is  located  is  entitled  to  the  emblements  growing  thereon,  and  to  the 
entire  use  of  the  land,  except  the  right  which  the  public  have  to  use 
the  land  and  the  materials  thereon  for  the  purpose  of  building  and 
maintaining  a  highway,  suitable  for  the  safe  passage  of  travelers. 
This  doctrine  has  been  long  established  by  numerous  authorities. 
Goodtitle  v.  Alker,  1  Burr.  133;  Holden  v.  Shattuck,  34  Vt.  336,  80 
Am.  Dec.  684;  Perley  v.  Chandler,  6  Mass.  454,  4  Am.  Dec.  159; 
Stackpole  v.  Healey,  16  Mass.  33,  8  Am.  Dec.  121 ;  Jackson  v.  Hath- 
away, 15  Johns.  (N.  Y.)  447,  8  Am.  Dec.  263.  These  authorities  fully 
establish  that  he  may  maintain  trespass,  or  ejectment,  for  injuries  to 
his  rights  as  such  owner  of  the  soil.  The  public  acquire  only  an  ease- 
ment in  the  land  taken,  consisting  of  the  right  to  use  the  materials, 
in  and  upon  the  land  taken,  for  building  and  maintaining  a  suitable 
way,  and  of  using  the  way,  when  constructed,  for  passing  and  repass- 

upon  the  highway  solely  for  the  purpose  of  interfering  with  D.'s  shooting,  and 
(lid  there  so, interfere,  by  waving  his  handkerchief  and  opening  and  shutting 
his  umbrella,  and  thus  preventing  grouse  from  flying  toward  D.  On  P.'s  refusal 
to  desist,  D.'s  servants  held  him  down,  using  no  more  force  than  was  necessary, 
until  the  shooting  was  over.  P.  sued  for  battery.  D.  pleaded  that  r.  was  a 
trespasser  on  his  land. 

Hickman  v.  INInisey  (1900)  1  Q.  B.  752:  P.  owned  land  crossed  by  a  highway. 
S.,  a  trainer  of  race  horses,  obtained  from  P.  the  right  to  use  some  of  his  land 
for  the  training  and  trial  of  race  horses.  D.,  the  prttprietor  of  a  publication 
which  gave  accounts  of  the  doings  of  race  horses  in  training,  si)ent  an  hour 
and  a  half  walking  backwards  and  forwards  over  a  portion  of  the  highway  on 
l'."s  land,  observing  with  glasses  and  tiiking  notes  of  the  trials  of  the  race 
horses.    P.  sued  for  a  trespass  on  his  laud. 


288  TORTS   THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

ing.  The  public  and  the  highway  surveyor,  who  is  the  agent  of  the 
public  for  certain  purposes,  have  no  right  to  appropriate  any  of  the 
materials  or  emblements  of  the  land  taken  to  any  other  purpose.  The 
defendant  wife  could  exercise,  under  the  authority  of  the  highway 
surveyor,  no  greater  right  than  those  which  the  law  has  conferred  on 
the  surveyor. 

The  grass,  though  properly  cut  by  Mrs.  Drew,  under  the  direction 
of  the  highway  surveyor,  because  it  interfered  with  the  use  of  the 
land  for  the  purposes  of  a  highway,  was,  when  cut,  the  property  of 
the  plaintiff.  Mrs.  Drew  had  no  right  to  use  it  for  feeding  her  hus- 
band's horse.  By  so  doing  she  overstepped  the  license  and  authority 
which  the  law  conferred  upon  the  highway  surveyor,  and  through  him 
upon  her,  and  made  herself  a  trespasser  ab  initio.  If  a  man  abuse 
an  authority  or  license  given  by  the  law  he  renders  himself  a  tres- 
passer ab  initio,  as  it  was  resolved  in  the  Six  Carpenters'  Case,  8  Coke, 
146.  She,  under  the  authority  and  license  given  by  the  law  to  cut  the 
grass,  by  feeding  the  grass  to  the  horse  clearly  invaded  a  right  still 
belonging  to  the  plaintiff  as  owner  of  the  soil.  Such  cutting  and  ap- 
propriation of  the  grass,  under  the  claim  of  a  right  by  the  defendant 
for  fifteen  consecutive  years,  would  furnish  very  strong,  if  not  con- 
clusive, evidence  of  the  acquisition  of  the  ownership  of  the  soil,  by 
the  defendant,  by  adverse  use.  The  right  to  take  the  herbage,  or  em- 
blements, is  about  all  that  is  left  to  the  owner  of  soil  burdened  with 
the  easement  of  a  public  highway.  When  one  takes  this  right  from 
him  he  appropriates  generally  the  only  remaining  right  of  the  owner 
of  the  soil.  Such  an  invasion  of  a  right,  we  think,  always  imports 
some  damage,  though  no  pecuniary  loss  results  therefrom.  We  think 
Fullam  V.  Stearns,  30  Vt.  443,  fully  establishes  that  the  maxim,  "de 
minimis  non  curat  lex,"  is  never  properly  applied  to  an  injury  for  the 
invasion  of  a  right,  and  it  does  not  apply  to  this  case.  The  defend- 
ants insist  that,  under  the  pleadings,  if  the  plaintiff  would  recover  for 
the  appropriation  of  the  grass  he  should  have  new  assigned.  No  such 
question  appears  to  have  been  raised  in  the  court  below. 

Judgment  of  the  county  court  is  affirmed.*^* 


BOSTON  &  M.  R.  CO.  v.  SMALL. 

(Supreme  Judicial  Court  of  Maine,  ISa*?.     85  Me.  462,  27  Atl.  349,  35  Am.  St 

Rep.  379.) 

The  Boston  &  Maine  Railroad  Company  brought  an  action  of  tres- 
pass against  James  W.  Small,  deputy  sheriff,  for  breaking  and  en- 
tering one  of  the  plaintift''s  freight  cars. 

Emery,  J.  The  plaintiff  corporation,  as  a  common  carrier,  had  in 
its  possession,  on  one  of  its  side  tracks,  in  Biddeford,  a  box  freight 

8*  The  statement  of  facts  is  abridged  and  part  of  ttie  opinion  is  omitted. 


Ch.  1)  TRESPASSES  289 

car  laden  with  merchandise  for  various  parties,  and  locked  and  sealed. 
While  the  car  was  in  this  situation  and  condition,  the  defendant, 
a  deputy  sheriff  for  York  county,  armed  with  a  search  warrant  from 
the  Biddeford  municipal  court  under  Rev.  St.  c.  27,  §  40,  broke  the 
lock  and  door,  and  entered  the  car,  in  the  nighttime — soon  after  mid- 
night. His  warrant  commanded  him  to  "therein  search  for  intoxi- 
cating liquors,  and  if  there  found,  to  seize  and  safely  keep  the  same, 
with  the  vessels  in  which  they  are  contained,  until  final  action  and 
decision  be  had  thereon."  He  did  find  in  the  car  one  barrel  of  intox- 
icating liquor,  viz.  a  barrel  of  alcohol,  but  did  not  seize  it,  being  of 
the  opinion  that  it  was  not  intended  for  unlawful  sale.  He,  however, 
made  upon  the  warrant  the  erroneous  return  that  he  searched  the 
car,  and  found  no  intoxicating  liquor.  The  plaintiff  thereupon  brought 
this  action  of  trespass  for  the  breaking  into  its  car  through  the  lock 
and  door.  The  defendant  has  pleaded  a  justification  under  the  war- 
rant above  described. 

Assuming  the  complaint  and  warrant,  and  the  search  under  them, 
to  have  been  in  other  respects  legal  and  regular,  the  question  arises 
whether  the  intentional  omission  "to  seize  and  safely  keep,"  etc.,  the 
intoxicating  liquors  found  in  the  car  by  the  officer,  invalidates  his 
authority  under  the  warrant,  and  leaves  him  a  trespasser. 

Though  often  obscured  in  earlier  and  ruder  times,  it  is  a  distinctive 
feature  of  our  common-law  system  of  jurisprudence  that  it  so  jealous- 
ly guards  the  liberty  and  property  of  the  citizen  against  the  capri- 
cious, arbitrary,  or  extra-legal  acts  of  government  officers,  and  at  the 
same  time  insists  upon  the  full  performance  of  their  legal  duty.  Eng- 
lish history  abounds  with  instances  of  the  assertion  of  this  principle. 
Two  conspicuous  instances  are  the  beheading  of  one  king  for  over- 
stepping the  law,  and  the  expulsion  some  50  years  later  of  another 
king,  partly  for  refusing  to  execute  certain  laws.  The  principle  is 
now  imbedded  in  the  fundamental  law  of  our  republic. 

Imbued  with  this  spirit,  our  law  requires  of  every  ministerial  offi- 
cer, assuming  to  execute  a  statute  or  legal  process  against  the  per- 
son or  property  of  the  citizen,  a  strict  observance  of  every  provision 
of  the  statute,  and  of  every  lawful  command  in  the  process.  The  law 
permits  to  such  an  officer  no  discretion  in  this  respect.  If  he  once  be- 
gin, he  must  execute  the  process,  the  whole  process,  and  nothing  but 
the  process.  Alany  extracts  from  judicial  opinions  could  be  quoted, 
stating  this  rule  as  strongly  and  comprehensively.  One  distinguished 
jurist  has  used  judicially  the  following  language:  "A  man  who  seizes 
the  property  or  arrests  the  person  of  another,  by  legal  process,  or 
other  equivalent  authority  conferred  upon  him  by  law,  can  only  jus- 
tify himself  by  a  strict  compliance  with  the  requirements  of  such 
process  or  authority.  If  he  fails  to  execute  or  return  the  process  as 
thereby  required,  he  may  not,  perhaps,  in  the  strictest  sense,  be  said 
to  become  a  trespasser  ab  initio ;  but  he  is  often  called  such,  for  his 
Hepb.Tobts — 19 


290  TOUTS  THROUGH  ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

whole  justification  fails,  and  he  stands  as  if  he  never  had  any  author- 
ity to  take  the  property,  and  therefore  appears  to  have  been  a  trespass- 
er from  the  beginning."  Gray,  J.,  in  Brock  v.  Stimson,  108  Mass.  521, 
11  Am.  Rep.  390.  By  substituting  the  w^ord  "injure"  for  the  word 
"seize"  in  the  above  quotation,  the  language  of  Justice  Gray  would  be 
literally  applicable  to  this  case. 

There  would  seem  to  be  no  difference  in  principle  between  civil  and 
criminal  processes  in  this  respect,  and  hence  illustrations  may  properly 
be  taken  from  either  class  of  cases.     In  Blanchard  v.  Dow,  Z2  Me. 
557,  a  tax  collector  regularly  sold  cattle  of  the  plaintiff  upon  a  tax 
warrant.     He  omitted  afterwards  to  render  "an  account   in  writing 
of  the  sale  and  charges,"  as  required  by  the  statute  and  his  warrant. 
It  was  held  that  this  omission  deprived  him  of  the  protection  of  his 
warrant.     In  Carter  v.  Allen,  59  Me.  296,  8  Am.  Rep.  420,  a  tax  col- 
lector, under  the  same  circumstances,  did  render  the  account  in  writ- 
ing, and  tender  the  surplus,  but  the  statement  of  account  proved  to 
be  incorrect.    It  was  held  that  this  error  vitiated  the  officer's  immunity. 
In  Ross  v.  Philbrick,  39  Me.  29 ;    Brackett  v.  Vining,  49  Me.  356 ; 
and  Smith  v.  Gates,  21  Pick.  (Mass.)  55 — it  was  held  that  an  omission 
by  an  officer  to  execute  a  command  in  the  precept,  at  the  precise  time 
named  therein,  invalidated  his  authority,  and  made  him  liable  as  a 
trespasser  to  those  with  whose  property  he  had  interfered  under  his 
precept.     In  the  last-named  case  (Smith  v.  Gates)  there  was  a  varia- 
tion of  only  20  minutes.    In  Tubbs  v.  Tukey,  3  Gush.  (Mass.)  438,  50 
Am.  Dec.  744,  an  officer  arrested  the  plaintiff  on  a  criminal  process 
on   Sunday,  and  committed  him  to  jail.     On  the  following  Monday 
morning,  instead  of  taking  the  plaintiff  before  the  police  court,  as  re- 
quired by  law  to  do,  the  officer  assumed  to  discharge  the  plaintiff  from 
arrest.     It  was  held  that  the  omission  to  take  the  plaintiff  before  the 
court  took  away  from  the  officer  all  justification  for  the  arrest.     In 
Russell  V.  Hanscomb,  15  Gray  (Mass.)  166,  a  fish  warden,  as  author- 
ized by  statute,   took  a  seine  which  was   illegally  set.     He  did  not, 
however,  as  required  by  statute,  begin  a  legal  proceeding  for  the  for- 
feiture.   In  the  words  of  Shaw,  C.  J.,  the  court  held  that  the  warden's 
"failure  to  prosecute  was   a  departure   from  his   authority,   and,  in 
legal  effect,  deprived  him  of  his  justification."     In  Brock  v.  Stmison, 
108  Mass.  520,  11  Am.  Rep.  390,  a  police  officer,  by  authority  of  a 
statute,  arrested  the  plaintiff  for  being  drunk  and  disorderly  in  a  pub- 
lic place;   but  instead  of  taking  him  before  the  court  for  trial,  as  fur- 
ther required  by  statute,  he  released  the  plaintiff  from  arrest  as  soon 
as  he  recovered  from  his  intoxication.     It  was  held  that  this  disobedi- 
ence of  the  statute  took  away  all  protection  under  the  statute.     In 
Phillips  V.  Fadden,  125  Mass.  198,  upon  a  similar  state  of  facts,  the 
proposition  was  again  asserted  that,  if  an  officer  fails  to  do  all  that 
the  law  requires  him  to  do.  his  whole  justification  fails.     It  has  also 
been  held,  and  is  a  familiar  principle,  that  the  omission  by  the  officer 
to  obey  the  final  and  formal  command  to  make  return  of  the  precept 


Ch.  1)  TRESPASSES  291 

under  which  he  assumes  to  act  invalidates  his  authority  under  the 
precept,  and  renders  him  Hable  to  an  action  for  anything  done  under 
it.  WilHams  v.  Babbitt,  14  Gray  (Mass.)  141,  74  Am.  Dec.  670;  Wil- 
liams V.  Ives,  25  Conn.  568;  Dehm  v.  Hinman,  56  Conn.  320,  15  Atl. 
741,  1  L.  R.  A.  374. 

In  the  Six  Carpenters'  Case,  8  Coke,  146,  in  which  the  doctrine  of 
trespass  ab  initio  seems  to  have  been  first  formally  expounded,  it  was 
said  that  the  reason  for  holding  a  person  acting  under  authority  of 
law  to  be  a  trespasser  ab  initio  by  any  subsequent  abuse  of  such  au- 
thority, was  that  his  subsequent  illegality  showed  that  he  began  with 
an  unlawful  intent.  This  dictum  has  been  often  repeated  in  various 
forms.  It  seems,  however,  to  be  artificial,  and  even  fictitious.  An 
officer  may  often,  in  fact,  begin  with  the  best  and  most  lawful  intent, 
and  yet  forfeit  his  protection  by  subsequent  misconduct.  The  more 
solid  and  sure  foundation  for  such  a  rule  would  seem  to  be  public 
policy.  It  is  inconsistent  with  both  private  security  and  public  or- 
der that  ministerial  officers  should  assume  to  determine  for  themselves 
how  far,  and  in  what  manner,  they  will  enforce  a  statute,  or  execute 
a  process.  If  the  safety  of  the  citizen  requires  that  such  officers  shall 
do  no  act  not  authorized,  the  safety  of  the  people  equally  requires 
that  such  officers  shall  omit  no  act  that  is  commanded. 

It  was  further  resolved  in  the  Six  Carpenters'  Case  that  "not  doing 
cannot  make  the  party  who  has  authority  or  license  by  law  a  tres- 
passer ab  initio,  because  not  doing  is  no  trespass."  This  dictum,  also, 
has  been  often  repeated,  and  has  at  times  influenced  judicial  decisions. 
The  reasoning  may  seem  plausible,  but  in  reality  it  is  a  bit  of  sterile, 
verbal  syllogization.     It  has  borne  no  good  fruit. 

It  is  difficult  to  see  any  difference  in  principle  between  misfeasance 
and  nonfeasance  in  a  ministerial  officer.  In  either  case,  he  is  for- 
sworn ;  has  disobeyed  the  statute  or  process  he  has  sworn  to  execute 
faithfully.  It  is  the  disobedience,  not  the  act,  that  deprives  him  of 
his  authority.  The  disobedience  is  the  fatal  poison  which  paralyzes 
the  protecting  arm  of  the  law,  and  this  disobedience  can  come  as  well 
from  acts  of  omission  as  commission. 

The  learned  editor  of  the  American  Decisions,  in  the  notes  to  Bar- 
rett V.  White,  3  N.  H.  210,  14  Am.  Dec.  365,  criticises  this  dictum  of 
the  Six  Carpenters'  Case.  He  says  the  distinction  seems  to  be  mere- 
ly artificial,  and  should  not  be  allowed  to  protect  a  disobedient  officer. 
He  cites  many  cases  in  which,  he  says,  the  distinction  has  been  prac- 
tically disregarded.  Reference  is  made  to  those  notes  and  citations, 
without  further  quotations  from  them  here. 

The  courts  of  Maine  and  Massachusetts,  while  sometimes  alluding 
to  or  quoting  this  dictum,  have  practically  ignored  it  when  dealing 
with  cases  like  this  one  before  us.  Every  case  above  cited  from  the 
decisions  of  those  courts  were  cases  of  nonfeasance  or  omission.  The 
tax  collector  simply  omitted  to  do  some  particular  thing,  either  en- 
tirely or  at  the  specified  time.     The  police  officers  simply  omitted  to 


292  TORTS  THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

do  some  act  required.  The  failure  to  make  return  of  the  process  is 
a  simple  omission.  The  New  Hampshire  court  seems  to  uphold  the 
distinction  drawn  in  the  Six  Carpenters'  Case,  for  in  Ordway  v.  Fer- 
rin,  3  N.  H.  69,  it  held  precisely  the  contrary  of  our  decision  in 
Brackett  v.  Vining,  49  Me.  356.  Our  stricter  rule  is  firmly  established 
in  our  law,  and  we  think,  upon  grounds  of  public  policy,  it  is  the 
better  and  more  reasonable  rule.  While,  of  course,  in  a  given  case, 
an  officer  may  have  a  sufficient,  lawful  excuse  for  his  omission,  the 
general,  plain,  reasonable,  and  necessary  proposition  is  that  a  minis- 
terial officer  must  faithfully  obey  every  lawful  command  in  the  stat- 
ute or  process,  or  he  will  be  left  without  its  protection  in  any  suit 
against  him  for  any  acts  done  by  him  under  color  of  such  statute  or 
process.  The  case  of  Hinks  v.  Hinks,  46  Me.  423,  in  no  way  con- 
flicts with  this  proposition,  for  there  the  defendant  was  not  an  officer, 
and  was  only  exercising  a  private  right. 

Referring  now  to  the  case  before  us,  it  is  evident  that  the  principal 
purpose  of  the  statute  (Rev.  St.  1883,  c.  27,  §  40),  and  of  the  process 
issued  under  it  was  the  seizure  of  whatever  intoxicating  liquors  were 
found,  and  the  bringing  them  before  the  court  for  determination 
whether  they  were  intended  for  unlawful  sale.  The  authority  to  en- 
ter the  car,  and  there  search,  was  given  for  that  express  purpose.  The 
defendant  officer  exercised  the  authority  to  search,  but  he  willfully 
and  deliberately  refused  to  seize  the  intoxicating  liquors  he  found, 
and  made  a  false  return  that  he  found  none.  He  assumed  to  nullify 
the  main  command  of  the  statute  and  of  his  process.  He  willfully 
defeated  the  very  purpose  of  the  search  he  assumed  to  make.  Such 
a  flagrant  disobedience  should,  and  we  think  does,  destroy  the  pro- 
tection he  might  otherwise  have  justly  enjoyed. 

The  good  faith  of  the  defendant — his  strong  belief  that  the  intoxi- 
cating liquor  he  found  was  not  intended  for  unlawful  sale — is  no  ex- 
cuse, and  does  not  mitigate  the  penalty.  As  said  in  Guptill  v.  Richard- 
son, 62  Me.  262,  the  fact  "that  it  [the  liquor]  was  not  liable  to  for- 
feiture would  not  excuse  the  officer  for  disobedience  to  his  precept." 
The  command  to  seize  the  liquors  was  plain.  His  duty  was  plain. 
He  was  given  no  discretion,  no  power  to  determine  what  intoxicating 
liquors  he  would  or  would  not  seize.  He  should  not  have  arrogated 
to  himself  any  such  power. 

It  is  urged  that  it  may  at  times  work  a  great  hardship  upon  an  in- 
nocent owner,  if  an  officer  must  in  every  case  seize  whatever  intoxicat- 
hig  liquors  he  finds  under  a  search  warrant,  however  evident  it  is 
they  are  not  intended  for  unlawful  sale.  The  policy  of  the  law  is  that 
every  owner  or  keeper  of  intoxicating  liquors  shall  be  prepared  to 
defend  them  before  the  courts,  and  not  before  the  officer,  against  the 
accusation  that  they  are  intended  for  unlawful  sale.  The  convenience 
of  such  owner  or  keeper  must  give  way  to  the  good  of  the  people, 
and  to  their  undoubted  right  to  protect  themselves  in  this  way  against 


Ch.  1)  TRESPASSES  293 

the  consequences  of  the  traffic  in  such  articles.  At  any  rate,  the  officer 
must  obey  the  law  and  his  lawful  process. 

It  is  urged  that  the  omission  to  seize  the  liquors  in  this  case  caused 
this  plaintiff  no  special  injury,  however  much  the  public  may  have  been 
harmed.  The  search,  however,  did  the  plaintiff  an  injury.  The  lock 
and  door  of  its  car  were  broken  by  the  defendant.  He  might  have 
made  that  breaking  official  and  lawful  by  doing  his  whole  official  duty. 
He  saw  fit,  however,  to  disregard  his  precept  and  abandon  his  duty. 
This  abandonment  of  duty  was  also  an  abandonment  of  his  authority, 
and  left  him  amenable  for  all  the  damage  done  by  him  to  the  plaintiff 
corporation. 

Defendant  defaulted.    Damages  assessed  at  $10.*' 

8  5  Compare  Moore  v.  Duke  fl911)  84  Vt  401,  80  Atl.  194:  The  plaintiff  was 
clerlv  of  the  incorporated  ^illase  of  Plainfield.  and  as  such  had  the  custody 
of  its  books  of  record,  including  one  which  contained,  among  other  things,  the 
record  of  building  permits  granted  by  the  village.  These  records  were  kept 
by  the  plaintiff  at  his  dwelling  in  a  certain  room  which  he  used  for  an  office. 
The  defendant  Duke  was  constable  of  the  town  of  Plainfield.  The  other  de- 
fendants, Evan  and  Bruffee,  were,  respectively,  bailiff  and  trustee  of  the 
village.  Ryan  was  also  street  commissioner.  Some  controversy  having  arisen 
over  the  building  operations  of  one  Fortney,  and  it  being  claimed  by  the  offi- 
cials that  he  had  violated  the  terms  of  his  permit,  it  became  necessary,  for 
Ryan  and  Bruffee  to  have  the  record  of  this  permit  or  a  copy  of  the  same. 
On  the  morning  of  March  8,  1910,  Bruffee  called  at  the  clerk's  office,  and  asked 
the  clerk  to  loan  him  the  book  containing  this  record.  This  the  clerk  refused 
to  do.  A  little  later,  Bruffee  and  Ryan  called  at  the  office,  and  asked  for  and 
examined  the  book,  but  the  clerk  declined  to  allow  them  to  take  it  away  from 
the  office.  Thereupon,  after  some  spirited  discussion  regarding  the  matter, 
Ryan  went  to  Montpelier  and  arranged  with  an  attorney  to  have  the  book 
replevied.  Before  leaving  Plainfield,  he  notified  the  constable  of  his  inten- 
tions, and  asked  him  to  be  ready  to  serve  the  writ,  which  was  to  be  sent  him 
by  mail.  The  writ  came  in  due  time,  a  bond  was  executed  and  taken,  and 
the  constable  went  to  the  plaintiff's  house  to  serve  the  wi-it.  He  did  .serve  the 
writ,  took  the  book  thereunder,  and  delivered  it  to  the  plaintiffs  therein — Ryan 
and  Bruft'ee.  He  indorsed  his  return  on  the  back  of  the  writ,  and  sent  it  by 
mail  to  the  attorney  who  made  it,  but  it  was  never  entered  in  court.  Said  Pow- 
ers, J.,  delivering  the  opinion:  "Duke's  entry,  when  made,  was  for  a  justifiable 
purpose,  for  his  process  was  fair  and  his  entry  without  actual  force ;  nor  did 
anything  occur  while  he  was  upon  the  premises  to  change  his  situation.  He 
proceeded  according  to  the  commands  of  the  process  in  all  respects  but  one. 
The  one  thing  which  remained  for  him  to  do — and  which  was  absolutely  essen- 
tial to  make  all  his  previous  acts  regular  and  valid — he  omitted." 


-V 


294  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

CHAPTER  II 
ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES 


SECTION  1.— BEFORE  THE  STATUTE  OF  WESTAHNSTER 

THE  SECOND^ 

I.  Historical 


Meanwhile  ^  the  actions  which  came  to  be  known  as  personal  make 
their  appearance.  The  oldest  seems  to  be  "Debt-Detinue,"  which  ap- 
pears already  in  Glanvill.  I  say  "Debt-Detinue" — originally  men  see 
little  distinction  between  the  demand  for  a  specific  chattel  and  the  de- 
mand for  a  certain  sum  of  money.  Gradually  this  action  divides  it- 
self into  two,  Detinue  for  a  specific  chattel,  Debt  for  a  sum  of  money 
— this  differentiation  takes  place  early  in  the  thirteenth  century.  As 
in  Detinue  the  judgment  given  for  the  plaintiff  awards  him  either  the 
chattel  itself,  or  its  value;  and,  as  the  defendant  thus  has  the  option 
of  giving  back  the  chattel  or  paying  its  value,  Bracton  is  led  to  make 
the  important  remark,  that  .there  is  no  real  action  for  chattels — an 
important  remark,  for  it  is  the  foundation  of  all  our  talk  about  real 
and  personal  property.  To  Debt  and  Detinue  we  must  now  add  Re- 
plevin, the  action  for  goods  unlawfully  taken  in  distress.  This  action 
we  are  told  was  invented  in  John's  reign — another  tradition  ascribed 
its  invention  to  Glanvill.  Covenant  also  has  appeared,  though  during 
the  first  half  of  the  thirteenth  century  it  is  seldom  used  except  in  cases 
of  what  we  should  call  leases  of  land  for  terms  of  years.  Gradually 
the  judges  came  to  the  opinion  that  the  only  acceptable  evidence  of  a 
covenant  is  a  sealed  writing,  and  one  of  the  foundations  of  our  law 
of  contract  is  thus  laid.  Account  appears  in  Henry  Ill's  reign ;  but 
it  is  very  rare  and  seems  only  used  against  bailiffs  of  manors. 

But  the  most  important  phenomenon  is  the  appearance  of  Trespass 
— that  fertile  mother  of  actions.  Instances  of  what  we  can  not  but 
call  actions  of  trespass  are  found  even  in  John's  reign,  but  I  think  it 
clear  that  the  writ  of  trespass  did  not  become  a  writ  of  course  until 

1 13  Edw.  I,  ch.  24  (1285).    Its  translation,  In  part,  Is  given  infra. 

2  The  reference  is  to  the  development  of  English  law  after  the  death  of 
Henry  the  Second,  in  1189,  uud  before  the  accession  of  Edward  the  First, 
in  1272. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  295 

very  late  in  Henry  Ill's  reign.  Xow  trespass  is  to  start  with  a  semi- 
criminal  action.  It  has  its  roots  in  criminal  law,  and  criminal  proce- 
dure. 

F.  W.  J\Iaitland,  Equity  and  Forms  of  Actions,  342  (1909). 


In  the  reign  of  Edward  the  First  the  scope  of  the  law  of  tort  as 
administered  in  the  royal  courts  was  narrow.  *  *  *  There  were 
remedies  against  personal  violence,  there  were  remedies  against  forci- 
ble seizure  of  property,  there  were  remedies  against  various  frauds  and 
other  offences  which  might  come  under  the  notice  of  a  court  which 
was  trying  a  case.  It  is  not  till  these  frauds  and  other  offences  have 
become  generally  actionable  wherever  committed  that  we  shall  see 
clearly  the  outlines  of  our  modern  law  of  tort. 

Of  other  personal  actions  brought  in  the  royal  courts  the  most  com- 
mon were  detinue,  debt,  covenant,  and  account.  The  writ  of  detinue 
lay  for  the  wrongful  detention  of  a  chattel  which  belonged  to  the  plain-  v/ 
tiff".  It  was  generally  brought  against  a  bailee.  Possibly  at  this  period 
it  could  not  be  brought  against  any  other  person.  A  person  who  had 
parted  with  his  goods  involuntarily  (i.  e.  otherwise  than  by  a  bail- 
ment) must  sue  either  by  the  appeal  of  larceny  or,  omitting  the  words 
of  felony,  by  an  action  for  a  res  adirata.  It  is  probably  not  till  later 
that  the  action  of  detinue  was  gradually  extended  to  such  a  case.  The 
writ  of  debt  was  originally  almost  one  with  the  writ  of  detinue.  To 
the  end  their  wording  was  almost  identical.  The  plaintiff'  seeks  the 
restoration  of  money.  "It  was  in  fact  a  general  form  in  which  any 
money  claim  was  collected,  except  unliquidated  claims  for  damages  by  >^ 

force,  for  which  there  was  established  the  equally  general  remedy  of 
trespass." 

Holdsworth's  Hist.  Eng.  Law  (1909)  vol.  2,  p.  309/ 


II.  Detinue — Replevin 

(A)  Nature  of  the  Cause  in  General 

The  appeal,  trespass,  and  replevin  were  actions  ex  delicto.  Detinue, 
on  the  other  hand,  in  its  original  form,  was  an  action  ex  contractu,  in 
the  same  sense  that  debt  was  a  contractual  action.  It  was  founded  on 
a  bailment;    that  is,  upon  a  delivery  of  a  chattel  to  be  redelivered. 

3  "Adirata"'  means  gone  from  his  hand  again.st  hi^^  will — adextratus.  r.  & 
M.  ii,  1«;0,  n.  2;  cp.  Bracton's  Note  Book,  case  284;  Y.  li.  21,  22  Edw.  I  (R.  S.» 
4t;.s ;    Holmes,  Common  Law,  108,  161) ;    vol.  iii,  Api).  I,  B  (2». 

4  The  cases  which  follow  under  Detinue  and  Replevin  develop  its  doctrine 
only  so  far  as  its  differentiation  from  Trespass  and  Conversion  appears  to  be 
important. 


296  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

The  bailment  might  be  at  will  or  for  a  fixed  term,  or  upon  condition, 
as  in  the  case  of  a  pledge.  The  contractual  nature  of  the  action  is 
shown  in  several  ways.     *     *     * 

In  all  the  cases  of  detinue  thus  far  considered  the  action  was  brought 
by  a  bailor,  either  against  the  bailee  or  some  subsequent  possessor. 
We  have  now  to  consider  the  extension  of  detinue  to  cases  where 
there  was  no  bailment.  Legal  proceedings  for  the  recovery  of  chattels 
lost  were  taken,  in  the  earliest  reported  cases,  in  the  popular  courts. 
The  common  case  was  doubtless  that  of  an  animal  taken  as  an  estray 
by  the  lord  of  a  franchise.  If  the  lord  made  due  proclamation  of  the 
estray,  and  no  one  claimed  it  for  a  year  and  a  day,  the  lord  was  enti- 
tled to  it.  But  within  the  year  and  day  the  loser  might  claim  it,  and 
if  he  produced  a  sufficient  secta,  or  body  of  witnesses,  to  swear  to  his 
ownership  or  loss  of  the  animal,  it  was  customary  for  the  lord  to  give 
it  up,  upon  the  owner's  paying  him  for  its  keep,  and  giving  pledges 
to  restore  it  in  case  of  any  claim  for  the  same  animal  being  made  with- 
in the  year  and  day.  There  is  an  interesting  case  of  the  year  1234, 
'  in  which  after  the  estray  had  been  delivered  to  the  claimant  upon  his 
making  proof  and  giving  pledges,  another  claimant  appeared.  It  is  to 
be  inferred  from  the  report  that  the  second  claimant  finally  won,  as  he 
produced  the  better  secta.  If  the  lord,  or  other  person  in  whose  hands 
the  estray  or  other  lost  chattel  was  found,  refused  to  give  it  up  to  the 
claimant,  the  latter  might  count  against  the  possessor  for  his  res  adi- 
rata,  or  chose  adirree,  that  is,  his  chattel  gone  from  his  hand  without 
his  consent ;   or  he  might  bring  an  appeal  of  larceny. 

James  Barr  Ames,  "The  History  of  Trover."  '^ 


We  must  not  be  wise  above  what  is  written  or  more  precise  than  the 
lawyers  of  the  age.  Here  is  an  elementary  question  that  was  debated 
in  the  year  1292 :  I  bail  a  charter  for  safe  custody  to  a  married  wo- 
man ;  her  husband  dies ;  can  I  bring  an  action  of  detinue  against  her, 
it  being  clear  law  that  a  married  woman  can  not  bind  herself  by  con- 
tract ?    This  is  the  way  in  which  that  question  is  discussed : 

Huntingdon.  Sir,  our  plaint  is  of  a  tortious  detinue  of  a  charter 
which  this  lady  is  now  detaining  from  us.  We  crave  judgment  that 
she  ought  to  answer  for  her  tort. 

Lowther.  The  cause  of  your  action  is  the  bailment ;  and  at  that 
time  she  could  not  bind  herself.  We  crave  judgment  if  she  must  now 
answer  for  a  thing  about  which  she  could  not  bind  herself. 

Spigurnel.  If  you  had  bailed  to  the  lady  thirty  marks  for  safe  cus- 
tody while  she  was  coverte  for  return  to  you  when  you  should  demand 
them,  would  she  be  now  bound  to  answer?  I  trow  not.  And  so  in 
this  case. 

B  First  imltlished  in  11  ITarv.  Law  Rev.  375,  379  (189S) ;  reprinted  in  3 
Anglo-Aiuericau  Legal  Essays,  4o2,  437. 


Ch.2) 


ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  297 


Howard.  The  cases  are  not  similar ;  for  in  a  writ  of  debt  you  shall 
say  debet,  while  here  you  shall  say  iniuste  detinet.  And  again,  in  this 
case  an  action  arises  from  a  tortious  detainer  and  not  from  the  bail- 
ment.    We  crave  judgment. 

Pollock  and  ]\Iaitland,  Hist,  of  Eng.  Law,  vol.  2,  p.  180.® 

6  "The  nature  of  the  action  of  Detinue  has  often  been  the  subject  of  discus- 
sion by  tlie  courts.  And  even  Parliament  has  at  different  times  talien  differ- 
ent views  on  the  subject.  But  the  truth  appears  to  be  that  Detinue  was  a 
variety  of  the  ancient  action  of  Debt,  which  was  itself  originally  in  the  nature 
of  a  real  action,  to  recover  specific  chattels,  but,  owing  partly  to  historical, 
partly  to  economic,  causes,  came  early  to  be  treated  as  a  personal  action,  gen- 
erally founded  on  contract.  As  a  natural  consequence  of  this  origin,  various 
anomalies  attached  to  it ;  one  being  that,  until  1833,  a  claim  in  Detinue  could 
generally  be  met  by  the  primitive  defence  known  as  'wager  of  law,'  a  defence 
not  available  against  the  action  of  Trespass,  or  the  more  modem  actions 
founded  on  the  Statute  of  Westminster  the  Second  ('Case')-  Hence  Detinue 
tended  at  one  time  to  be  superseded  by  Trover  (ante,  title  II),  which,  in  many 
cases,  is  equally  applicable  to  the  facts.  But  after  the  defence  of  'wager  of 
law'  had  been  abolished  by  section  13  of  the  Civil  Procedure  Act,  1833,  there 
was  a  revival  of  Detinue,  and,  naturally,  with  some  misunderstanding  as  to 
its  nature.  The  action  is,  in  fact,  useful  in  cases  in  which  the  defendant  sets 
up  no  claim  of  ownership,  and  has  not  been  guilty  of  trespass ;  for,  on  the 
latter  point  especially,  it  is  clear  that  it  was  never  necessary  in  Detinue  to 
allege  that  the  defendant's  original  acquisition  was  unlawful.  The  typical 
case  was  that  in  which  a  bailor  sued  his  bailee  to  recover  the  goods  bailed 
(detinue  sur  bailment),  there  being  then  no  action  founded  on  simple  con- 
tract ;  and  this  long  remained  the  formal  assumption  in  every  action  of  Det- 
inue; though  at  an  early  date  the  allegation  of  bailment  became  a  mere  mat- 
ter of  form,  which  could  not  be  denied  or  'traversed.'  (See  Gledstane  v.  Hew- 
itt, ubi  sup.)  But  allegations  of  finding,  and  even  of  trespass,  were  also  ad- 
mitted (detinue  sur  trover,  etc.) ;  and  thus,  as  was  natural,  the  plea  of  'not 
guilty'  was  recognized,  in  addition  to  the  more  correct  plea  of  'non  detinet.' 
*  *  *  The  action  of  Detinue  is  now^  apparently  treated  as  an  action  of  Tort. 
Trotter  v.  Windham  &  Co.  (1907)  23  T.  L.  R.  676."  J.  C.  Miles,  in  Jenks'  Digest 
of  Eng.  Civ.  Law%  §  882. 

See  also  3  Holdsworth's  Hist,  of  Eng.  Law,  274: 

"The  action  of  Detinue,  it  is  thought,  lay  originally  only  against  a  bailee, 
i.  e.  it  was  available  only  to  an  owner  who  had  voluntarily  parted  with  the 
possession  of  his  goods  to  another.  Some  words  of  Littleton  in  1455,  describ- 
ing a  count  in  trover  as  a  'new  found  haliday,'  are  taken  to  mean  that  the  ac- 
tion of  detinue  was  practically  confined  before  that  date  to  actions  against 
bailees. 

"It  is,  however,  difficult  to  believe  that  the  rights  of  owners  of  goods  were 
so  curtailed  during  the  fourteenth  century.  No  doubt  the  action  of  detinue 
was  an  action  which  was  used  chiefly  against  bailees ;  and  some  dicta  per- 
haps would  seem  to  imply  that  the  action  lay  only  against  a  bailee.  But  such 
dicta,  if  spoken  in  course  of  an  action  of  detinue  sur  bailment,  would  not  nega- 
tive a  possibility  of  bringing  such  an  action  against  some  one  other  than  a 
bailee.  We  want  a  precise  statement  to  the  effect  that  the  action  lies  against 
a  bailee  and  no  one  else.  To  borrow  the  precise  language  of  the  pleaders,  we 
must  have,  not  only  an  averment  that  an  action  of  detinue  lies  only  against  a 
bailee,  but  also  an  averment  that  it  lies  only  against  a  bailee  'sans  ceo  que' 
it  lies  against  any  one  else.  It  is  just  this  averment  which  it  would  i)robably 
be  diflicult  to  find." 

And  see  especially  Professor  Ames'  article  on  the  History  of  Trover,  11 
Han%  Law  Rev.  375-383 ;  3  Anglo-American  Legal  Essays,  432-442.  As  late 
as  1861  detinue  was  classed  as  an  action  of  contract.  See  Danby  v.  Lamb,  11 
C.  B.  N.  S.  423,  and  the  opinion  of  Byles,  J.,  p.  427:  "According  to  all  the  au- 
thorities from  Brooke's  Abridgment,  Joinder  in  Accion,  pi.  97,  down  to  the 
case  of  Walker  v.  Xeedham,  4  Scott,  N.  R.  222,  1  Dowl.  N.  S.  220  (1841),  det- 
inue has  always  been  considered  to  an  action  ex  contractu."    But  in  1878,  and 


298  TORTS  THROUGH   ACTS  OP  ABSOLUTE  LIABILITY  (Part  1 

KETTLE  V.  BROAISALL. 

(Common  Pleas,  173S.    Willes,  118,  125  Reprint,  10S7.) 

WiLLEs,  Lord  Chief  Justice,  gave  the  opinion  of  the  Court  as  fol- 
lows : 

Detinue.  The  plaintiff  declares  in  the  first  count  that  he  was  pos- 
sessed of  a  handle  of  a  knife  with  an  old  English  inscription  purport- 
ing it  to  be  a  deed  of  gift  to  the  monastery  of  St.  Albans,  a  ring  with 
an  antique  stone  with  one  of  the  Caesars'  heads  upon  it  in  basso  re- 
lievo, and  of  several  other  things  of  the  like  nature,  particularly  speci- 
fied in  the  declaration,  and  laid  together  to  be  of  the  value  of  i500.  as 
of  his  own  proper  goods ;  and  that  being  so  possessed  he  casually  lost 
the  same,  and  that  afterwards  by  finding  they  came  unto  the  hands  and 
possession  of  the  defendant,  by  reason  whereof  an  action  accrued  to 
the  plaintiff  to  demand  the  same  of  the  defendant. 

In  the  second  count  he  declares  that  he  delivered  to  the  defendant 
the  same  things,  specifying  them  again,  of  the  value  together  of  £500. 
to  be  safely  kept  and  to  be  delivered  to  the  plaintiff  when  required ; 
that  nevertheless  the  defendant,  though  often  requested,  has  not  deliv- 
ered the  same  or  any  part  thereof  to  the  plaintiff',  but  refused  and 
still  doth  refuse  to  deliver  the  same  and  unjustly  detains  them;  to  the 
plaintiff's  damage  of  £1000.     *     *     *  7 

Serjt.  Comyns  for  the  defendant  took  three  objections,  two  to  the 
declaration  and  one  to  the  replication.  *  *  *  [The  second  was:] 
That  the  first  count  is  in  trover,  and  the  second  in  detinue ;  and  that 
trover  and  detinue  cannot  be  joined.  That  if  the  first  be  taken  to  be 
in  trover,  there  is  no  conversion ;  and  if  in  detinue,  there  is  no  de- 
mand ;  and  consequently  that  it  cannot  be  good  in  either.  To  shew 
that  trover  and  detinue  cannot  be  joined  he  cited  8  Co.  87b,  Buck- 
mere's  case ;    because  they  require  dift'erent  pleas. ^ 

But  we  are  all  of  opinion  that  this  objection  will  not  hold ;  for  that 
both  counts  are  in  detinue.  Detinue  will  lie  for  things  lost  and  found 
as  well  as  for  things  delivered;    so  it  is  expressly  laid  down  in  Fitz. 

apiiareutly  since  then,  in  England,  detinue  is  recognized  as  a  cau.«!e  in  tort. 
See  Bryant  v.  Herbert  (1S7S)  3  C.  P.  D.  389,  C.  A. ;  Du  Pasqnier  v.  Cadhurv 
Jone.s  &  Co.  (1903)  1  K.  B.  104,  C.  A.;  Keates  v.  Woodward  (1902)  1  K.  B. 
;332,  330. 

For  tlie  American  doctrine  see  14  Cyc.  241,  and  note  4 ;  16  Cent  Dig.  "Det- 
inue," §  1 ;   Key-No.  "Detinue,"  §  1. 

'  The  pleadings  terminated  in  a  demurrer  to  the  replication,  and  joinder 
therein.  Only  so  much  of  the  case  is  given  as  relates  to  the  objection  to  the 
declaration. 

8  "Not  only  the  pleas,  but  the  judgments  also,  are  different ;  in  trover  only 
damages  can  be  reoovei-ed.  but  in  detinue  the  things  themselves,  or  their  Aalue, 
may  be  recovered.  And  two  counts  cannot  be  joined  in  the  same  declaration 
unless  the  same  judgment  may  be  given  on  both.  P.rown  v.  Di.xon,  D.  »&  E.  27G. 
See  also  (Jilb.  Hist.  C.  B.  ti,  7." 

In  the  princii)al  case,  the  court  takes  it  as  established  law  that  trover  and 
detinue  cannot  be  joined. — l±Jd. 


Ch.  2)  ABSOLUTE    TORTS   OTHER   THAN   TRESPASSES  299 

X.  B.  tit.  "Detinue"  (E),  a  book  of  the  greatest  authority.  *  *  * 
And  it  would  be  very  absurd  if  it  were  otherwise ;  for  if  so,  a  person 
might  be  greatly  injured,  and  have  no  adequate  remedy.  For  in  tro- 
ver only  damages  can  be  recovered ;  but  the  things  lost  may  be  of  that 
sort,  as  medals,  pictures,  or  other  pieces  of  antiquity,  (and  this  seems 
to  be  the  present  case,)  that  no  damages  can  be  an  adequate  satisfac- 
tion, but  the  party  may  desire  to  recover  the  things  themselves,  which 
can  only  be  done  in  detinue.     *     *     *  9 

As  therefore  we  are  of  opinion  that  the  objections  would  not  hold 
either  to  the  declaration  or  the  replication,  judgment  was  given  for 
the  plaintiff.  1° 

9  "  'Detinue,'  this  is  a  very  old  action.  The  defendant  is  charged  with  an 
unjust  detainer  (not,  be  it  noted,  an  unjust  taking) — injuste  detinet.  This  ac- 
tion looks  very  like  a  real  action.  The  writ  originating  it  bears  a  close  sim- 
ilarity with  the  writ  of  right  (praecipe  in  capite),  but  in  the  first  place  the 
mesne  process  is  not  in  rem,  and  in  the  second  (and  this  is  very  important) 
the  defendant  when  worsted  is  always  allowed  the  option  of  surrendering  the 
goods  or  paying  assessed  damages.  The  reason  of  this  may  perhaps  be  found 
partly  in  the  perishable  character  of  medieval  movables,  and  the  consequent 
feeling  that  the  court  could  not  accept  the  task  of  restoring  them  to  their 
owners,  and  partly  in  the  idea  that  all  things  had  a  'legal  price'  which,  if  the 
plaintiff  gets,  is  enough  for  him."  F.  W.  Maitland,  "Equity  and  Forms  of 
Action,"  355. 

See  also  Phillips  v.  Jones  (1S50)  15  Q.  B.  859,  867,  and  Somerset  v.  Cookson 
(1735)  3  P.  Wms.  390:  (P.  brought  an  injunction  to  compel  the  delivery  of  an 
old  altar-piece  made  of  silver  and  remarkable  for  a  Greek  inscription  and  dedi- 
cation to  Hercules.  The  altar  piece  had  been  sold  without  right  by  S.  to  D.,  a 
goldsmith,  who  had  notice  of  D.'s  claim  to  it.  D.  insisted  that  P.  could  have 
adequate  relief  without  detinue.  P.  insisted  that  "nothing  can  be  more  rea- 
sonable than  that  the  man,  who  by  wrong  detains  my  property,  shall  be  com- 
pelled to  restore  it  to  me  again  in  specie :  and  the  law  being  defective  in  this 
particular  such  defect  is  properly  supplied  in  equity."  Held,  that  an  injunc- 
tion might  be  granted.) 

10  "Detinue  by  a  loser  against  a  finder  would  probably  have  come  into  use 
much  earlier  but  for  the  fact  *  *  *  ^jj^t  the  loser  might  bring  trespass 
against  a  finder  who  refused  to  restore  the  chattel  on  request.  Indeed,  in 
1455,  where  a  bailiff  alleged  simply  his  possession,  and  that  the  charters  came 
to  the  defendant  by  finding,  Prisot,  C.  J.,  while  admitting  that  a  bailor  might 
have  detinue  against  any  possessor-  of  goods  lost  by  the  bailee,  expressed  the 
opinion  that  where  there  was  no  bailment  the  loser  should  not  bring  detinue, 
but  trespass,  if,  on  demand,  the  finder  refused  to  give  up  the  goods.  Littleton 
insisted  that  detinue  would  lie,  and  his  view  afterwards  prevailed.  It  was  in 
this  case  that  Littletim,  in  an  aside,  said:  'This  declaration  per  inveutionem 
is  a  new-found  Halliday ;  for  the  ancient  declaration  and  entry  has  always 
been  that  the  charters  ad  manus  et  possessionem  deveuerunt  generally  with- 
out .showing  how.'  Littleton  was  quite  right  on  this  point.  But  the  new 
fashion  persisted,  and  detinue  sur  trover  came  to  be  the  common  mode  of  de- 
claring wherever  the  plaintiff'  did  not  found  the  action  upon  a  baihnent  to  the 
defendant."  Ames,  History  of  Trover,  11  Harv.  Law  Rev.  375,  3S1 ;  3  Anglo- 
Am.  Legal  Essays,  439. 

And  see  the  note,  3  Anglo-Am.  Leg.  Essays,  p.  440:  "Littleton's  remark 
seems  to  have  been  misapprehended  in  2  Pollock  &  Maitland,  174.  The  in- 
novation was  not  in  allowing  detinue  where  there  was  no  bailment,  but  in  de- 
scribing the  defendant  as  a  finder." 


300  TORTS  THROUGH   ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 

MILLS  V.  GRAHAM. 
(Common  Pleas,  1804.    1  Bos.  &  Pul.  [N.  R.]  141,  127  Reprint,  413,  S  R.  R.  7G7.) 

The  declaration  was  as  follows: 

The  defendant  was  summoned  to  answer  unto  a  plea,  that  he,  the  said  de- 
fendant, render  unto  the  said  plaintiff  certain  goods  and  chattels,  to  the  value 
of  £300  of  lawful  money  of  Great  Britain,  which  the  defendant  unjustly  de- 
tains from  the  plaintiff ;  and  thereupon  the  plaintiff,  by  R.  11.  his  attorney, 
complains  for  that  whereas  the  plaintiff,  heretofore,  to  wit,  on,  etc.,  at,  etc., 
delivered  to  the  defendant  the  goods  and  chattels  following,  that  is  to  say, 
75  dozen  of  skins  of  the  said  plaintiff  of  a  large  value,  to  wit,  of  the  value  of 
£300,  of  lawful  money  of  Oreat  Britain,  to  he  redelivered  by  the  said  defend- 
ant to  the  said  plaintiff  when  he  should  be  thereto  requested ;  and  neverthe- 
less the  said  defendant,  although  thereto  often  requested,  hath  not  yet  deliver- 
ed the  said  goods  and  chattels,  or  any  of  them,  or  any  part  thereof,  to  the 
said  plaintiff,  but  hath  hitherto  refused  and  still  doth  refuse  to  deliver  the 
same  to  tlie  said  plaintiff,  to  wit,  at,  etc.  And  whereas  the  said  plaintiff" 
heretofore,  to  wit,  on,  etc.,  at,  etc.,  was  lawfully  possessed  of  divers  other 
goods  and  chattels,  to  wit,  75  dozen  of  other  skins  of  a  large  value,  to  wit,  of 
the  value  of  £300  of  like  la^^'ful  money,  and  being  so  thereof  possessed,  the 
said  plaintiff"  afterwards,  to  wit,  on,  etc.,  at,  etc.,  casually  lost  the  said  last- 
mentioned  goods  and  chattels  out  of  his  hands  and  possession,  and  the  same 
then  and  there  came  to  the  hands  and  possession  of  tlie  said  defendant,  who 
found  the  same:  nevertheless  the  said  defendant,  well  kno\\ing  the  said 
last-mentioned  goods  and  chattels  to  be  the  goods  and  chattels  of  the  said 
plaintiff",  and  to  him  of  right  to  belong  and  appertain,  had  not  as  yet  de- 
livered the  said  last-mentioned  goods  and  chattels,  or  any  of  them,  or  any 
part  thereof,  to  the  said  plaintiff,  although  often  requested  so  to  do,  but 
hath  hitherto  refused,  and  still  doth  refuse  to  deliver  the  same  to  the  said 
plaintiff,  and  now  unjustly  detains  the  same  from  the  said  plaintiff',  to  wit, 
at,  etc.,  whereupon  the  said  plaintiff  saith  he  is  injured,  and  hath  sustained 
damage  to  the  amount  of  £300  and  therefore  he  brings  his  suit,  etc. 

On  the  trial,  before  Sir  James  Mansfield,  C.  J.,  after  a  plea  of  non 
detinet,  it  appeared  that  the  defendant,  being  desirous  of  purchasing 
some  skins,  applied  to  the  plaintiff  to  sell  him  some,  which  the  latter 
declined,  but  agreed  to  let  him  have  skins  to  the  amount  of  £275.  to 
finish,  for  the  finishing  of  which  the  plaintiff  was  to  pay ;  that  the 
skins  having  been  delivered  accordingly,  the  plaintiff  afterwards  ap- 
plied to  the  defendant  to  return  them,  offering  to  pay  anything  that 
might  be  due;  that  the  defendant  refused  to  return  them,  and  again 
wished  to  purchase  them,  oft'ering  to  pay  the  price  by  instalments  of 
£5.  a  month ;  that  the  plaintiff  still  refusing  to  sell  them,  the  defend- 
ant declared  that  he  would  contest  the  matter  at  law,  as  he  was  under 
age,  which  was  the  case. 

His  Lordship  was  of  opinion  that  the  first  count  of  the  declaration, 
which  stated  a  bailment  of  goods  to  be  redelivered  upon  request,  was 
not  supported  by  evidence  of  a  bailment  for  a  special  purpose,  but 
held,  that  notwithstanding  this  infancy  of  the  defendant,  and  an  ob- 
jection to  the  allegation  on  the  second  count,  that  the  goods  came  to 
his  hands  by  finding,  the  plaintiff  was  entitled  to  recover  upon  that 
count.  Accordingly  a  verdict  was  found  for  the  plaintiff,  subject  to 
the  opinion  of  the  Court.  Afterwards  a  rule  nisi  for  a  nonsuit  was 
obtained.     *     *     * 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  301 

Chambri;,  J.  The  action  of  detinue  is  as  old  as  any  action  known 
to  the  law,  and  yet  it  is  rather  extraordinary  that  the  subject  of  objec- 
tion in  the  present  case  has  never  been  brought  into  question.  Many 
cases  might  be  put  to  which  an  action  of  detinue  could  not  apply,  un- 
less this  general  mode  of  declaring  were  allowed.  Only  three  modes 
of  stating  the  inducement  appear  by  the  entries  to  have  been  used. 
One  is  on  a  bailment,  another  on  finding,  and  a  third  on  purchase. 
But  the  precedents  do  not  comprehend  half  the  cases  which  might 
arise.  Suppose  a  bailment  were  made  to  A.,  and  that  the  goods,  after 
passing  through  several  hands,  come  into  the  hands  of  B.  Could  it 
be  necessary  to  trace  the  progress  of  the  goods  through  all  the  hands 
into  which  they  had  passed?  In  this  case,  I  believe  that  the  practice 
has  been  to  declare  upon  a  finding,  as  has  been  done  in  the  present 
case.  I  am  not  certain  that  the  finding  has  not  been  literally  proved 
in  this  case;  for  it  is  not  clear  that  the  word  "finding"  is  to  be  con- 
fined to  the  sense  of  picking  up  a  thing  which  has  been  casually  lost. 
The  form  of  proceeding  in  trover  is  very  material  on  this  point,  and 
seems  to  warrant  us  in  considering  the  finding  merely  as  inducement. 
To  the  present  day,  no  case  has  ever  arisen  in  which  it  has  been 
thought  necessary,  upon  the  plea  of  non  detinet,  to  prove  precisely  the 
finding  alleged.  *  *  *  ^^  I  entirely  concur  in  thinking  that  suffi- 
cient proof  has  been  given  to  entitle  the  plaintiff  to  recover. 

Rule  discharged. 


REEVE  V.  PALMER. 

(Court  of  Common  Pleas,  1858.     5  O.  B.  [N.  S.]  84,  141  Reprint,  33,  116  R. 

R.  578.     Exchequer  Chamber,  1859.    5  C.  B.  [N.  S.]  91,  141 

Reprint,  36,  116  R.  R.  577.) 

Detinue  for  title-deeds,  with  a  count  for  money  received.  To  the 
first  count  the  defendant  pleaded,  amongst  other  pleas,  non  detinet, 
and  that  the  deeds  were  not  the  plaintiff's ;  and  to  the  second,  never 
indebted  and  a  set  off.  The  facts  appearing  on  the  trial  were  as  fol- 
lows : 

The  defendant  was  an  attorney  at  Cambridge.  The  deeds  in  respect  of 
which  the  action  was  brought  had  been  left  in  the  defendant's  custody  as 
attorney  for  the  plaintiff.     At  the  trial,  there  was  only  one  deed  in  contest 

11  The  argument  of  counsel,  part  of  the  opinion  of  Chambre,  J.,  and  the 
concurring  opinions  of  Sir  James  Mansfield,  C.  J.,  and  Heath  and  Rooke,  JJ., 
are  omitted.     The  statement  is  slightly  abridged. 

Compare  Walker  v.  Jones  (1834)  2  Cr.  &  M.  672:  In  an  action  of  detinue 
"the  defendant  pleaded  a  plea  traversing  the  delivery ;  to  wbich  there  was 
a  demurrer."  On  tlie  argument  Comyn,  for  the  defendant,  stated  tliat  the 
plea  had  been  drawn  from  a  precedent  in  Chitty  (3  Chitty  Pi.  [4th  Ed.]  1028), 
but  that,  after  the  case  of  Gledstone  v.  Hewitt  (1831)  1  C.  &  J.  565,  from 
which  it  appeared  that  the  bailment  in  detinue  was  immaterial,  he  could  not 
support  the  plea. 

See  also  Junes  v.  Littlefield  (1S32)  3  Yerg.  (Tenn.)  133 ;  Rucker  v.  Hamilton 
(1835)  3  Daua  (Ky.)  36. 


302  TORTS   THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

between  the  parties,  the  rest  having  been  delivered  up  to  the  plaintiff  after 
the  coiumencenient  of  the  action.  There  was  no  evidence  as  to  what  had 
become  of  the  missing  deed,  or  how  it  was  lost,  except  that  the  defendant 
stated  that  he  had  not  seen  it  since  the  date  of  its  execution  in  1853.  When 
the  demand  was  made  in  1857,  the  defendant  claimed  a  certain  sum  for  costs, 
which  the  plaintiff  paid  under  protest. 

The  jury  returned  a  verdict  for  the  plaintiff  on  the  second  count,  with 
£85.  damages,  and  for  the  defendant  upon  the  first  count,  the  jury 
leaving  it  in  doubt  whether  the  loss  of  the  deed  occurred  before  or 
after  the  demand. 

David  Keane,  for  the  plaintiff,  obtained  a  rule  calling  upon  the  de- 
fendant to  show  cause  why  a  verdict  should  not  be  entered  for  the 
plaintiff'  on  the  issues  on  the  first  count,  for  £15.  damages,  pursuant 
to  leave  reserved  to  him  at  the  trial,  on  the  grounds, — first,  that  the 
defendant,  as  the  immediate  bailee  of  the  deed,  was  answerable  in  det- 
inue though  he  had  lost  the  deed. 

Williams,  j,  *  *  *  All  the  authorities,  from  the  most  ancient 
time,  show  that  it  is  no  answer  to  an  action  of  detinue,  when  a  demand 
is  made  for  the  re-delivery  of  the  chattel,  to  say  that  the  defendant  is 
unable  to  comply  with  the  demand  by  reason  of  his  own  breach  of 
duty.^-  In  the  present  case,  the  deed  which  is  the  subject  of  the  de- 
mand in  the  first  count  was  delivered  to  the  defendant  und^r  cir- 
cumstances which  made  it  his  duty  to  use  ordinary  care  that  it  should 
be  forthcoming  when  wanted.  By  the  defendant's  omission  to  per- 
form that  duty,  the  deed  was  not  forthcoming  when  demanded.  It 
clearly  is  no  answer  for  the  defendant  to  say  he  has  lost  it.  The  rule 
must  be  made  absolute  to  enter  the  verdict  for  the  plaintiff. 

The  defendant  appealed  against  this  decision,  and  the  case  came  on 
for  argument  in  the  Exchequer  Chamber,  before  Pollock,  C.  B., 
Crompton,  J.,  Martin,  B.,  Bramwell,  B.,  Watson,  B.,  and  Hill,  J.^^ 

12  "Inability  to  redeliver  was  indeed  urged  in  one  case  as  an  objection  to 
the  action,  although  the  inability  was  due  to  the  active  misconduct  of  the 
defendant :  'Brown.  If  you  bail  to  me  a  thing  which  is  wastable,  as  a  tun 
of  wine,  and  I  perchance  drink  it  up  with  other  good  fellows,  you  cannot  have 
detinue,  inasmuch  as  the  wine  is  no  longer  in  rerum  natura,  but  you  may 
have  account  before  auditors,  and  the  value  shall  be  found.'  This,  Newton, 
C.  J.,  denied,  saying  detinue  was  tbe  proper  remedy.  It  may  be  urged  that 
tlie  detinue  in  this  case  was  founded  upon  a  tort.  But  in  truth  the  gist  of  the 
action  was  the  refusal  to  deliver  on  request."  Ames,  History  of  Trover,  11 
Harv.  Law  liev.  375;   3  Anglo- Am.  Legal  Essays,  433. 

13  The  arguments  of  counsel  and  the  opinion  of  Cockburn,  C.  J.,  with  whom 
Williams  and  Willis,  JJ.,  in  the  Common  Pleas  concurred,  are  omitted.  In 
the  Exchequer  Chamber,  the  opinions  of  Pollock,  C.  B.,  Crompton,  J.,  and 
Watson,  B..  are  omitted. 

Compare  Williams  v.  Gesse  (1837)  3  Bing.  N.  C.  849,  43  R.  R.  822,  given  infra. 

And  see  Wilkinson  v.  Verity  (1871)  L.  R.  G  C.  I'.  20<! :  P.  delivered  to  D. 
certain  goods  for  safe-keeping.  D.  wrongfully  sold  them.  More  than  six 
years  after  the  date  of  the  sale,  P.,  being  still  in  ignorance  of  this  sale,  de- 
manded the  goods  of  D.,  who  refused  to  return  them.  Held,  in  an  action  of 
detinue  fi»r  the  goods,  that  tJte  statute  of  limitations  ran  frt>ni  the  date  (^f  the 
deniMiid  and  refusal,  and  not  from  the  date  of  the  sale.  For  the  historical 
explanation  of  this,  see  Ames'  History  of  Trover,  11  Ilarv.  Law  Rev.  370 ; 
3  Anglo-Am.  Leg.  Essays,  433. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  303 

BramwELL,  B.  If  there  had  been  anything  more  important  in  dis- 
pute here  than  a  mere  question  of  costs,  I  should  have  hked  to  look 
into  it  a  little  more  before  deciding  it.  If  the  defendant  has  by  his 
own  default  become  dispossessed  of  or  lost  the  deed,  it  may  be  that 
he  may  be  considered  as  having  wrongfully  detained  it.  I  am  not  pre- 
pared to  say  tliat  there  was  sufhcient  evidence  of  negligence  on  the 
part  of  the  defendant.  All  that  appears,  is,  that  the  deed  was  depos- 
ited with  him  by  his  client,  and  that  it  is  lost.  I  must  confess  I  have 
not  information  enough  about  the  matter  to  say  whether  the  judgment 
of  the  Court  below  was  right  or  not. 

Hill,  J.  It  is  conceded  that  detinue  will  lie  against  one  who  has 
parted  with  a  deed  which  has  been  intrusted  to  him  for  safe  custody. 
I  am  utterly  at  a  loss  to  discover  any  difference  between  the  case  of 
an  attorney  who  has  lost  a  deed  intrusted  to  him  for  safe  custody, 
without  any  explanation  as  to  the  circumstances  under  which  it  was 
lost,  and  an  attorney  who  has  voluntarily  parted  with  the  deed  to  a 
third  person.  In  Comyns's  Digest,  Pleader  (2  X,  12),  speaking  of  this 
form  of  action,  where  the  deed  has  been  lost,  the  Chief  Baron  says : 
"If  detinue  be  for  charters,  the  verdict  must  find  some  damages  if  the 

charters  be  lost,"   citing  Fisher  v.  ,   Saville,  29.     I  think  the 

judgment  of  the  Court  below  should  be  affirmed. 

Judgment  affirmed. 


NYBERG  v.  HAXDELAAR. 

(In  the  Court  of  Appeal  [1S92]  2  Q.  B.  202.) 

The  action  was  brought  to  recover  the  value  of  a  half-share  in  a 
gold  enamel  box  jointly  owmed  by  the  plaintiff  and  one  Frankenheim, 
or  a  return  of  the  box  and  damages  for  its  detention.  The  plaintiff" 
in  the  year  1889  purchased  the  box,  and  afterwards  sold  a  half-share 
in  it  to  Frankenheim,  and  it  was  agreed  between  them  that  the  plaintiff' 
should  retain  possession  of  the  box  until  it  should  be  sold.  At  a  later 
period  the  box  was  entrusted  by  the  plaintiff  to  Frankenheim  for  the 
purpose  of  being  taken  to  Christie's  Auction  Rooms,  where  it  was  to 
be  sold.  Frankenheim  owed  the  defendant  money,  and  delivered  the 
box  to  the  defendant  by  way  of  security  for  the  debt.  On  the  trial, 
the  jury  found  that  Frankenheim  pledged  his  half -share  in  the  box 
with  the  defendant  for  value,  and  the  learned  judge  on  further  con- 
sideration gave  judgment  for  the  defendant,  on  the  ground  that  the 
plaintiff  was  not  entitled  to  succeed  in  trover  or  detinue,  and  that  the 
special  agreement  that  the  plaintiff"  and  not  Frankenheim  was  to  have 
possession  of  the  box  did  not  do  away  with  the  right  of  property 
which  the  latter  passed  to  the  defendant.    The  plaintiff"  appealed. 

Lopes,  L.  J.  The  law  of  detinue,  in  my  opinion,  is  that  a  person  en- 
titled to  possession  of  a  personal  chattel  can  maintain  the  action  when 
he  has  a  right  to  immediate  possession  arising  out  of  an  absolute  or 


304  TORTS   THROUGH   ACTS   OP   ABSOLUTE   LIABILITY  (Part  1 

special  property  in  the  chattel.  I  have  great  difficulty  in  seeing  how  a 
person  can  have  a  right  to  the  immedfate  possession  of  a  chattel  with- 
out having  some  special  property  in  it.  A  joint  owner  of  goods  can- 
not maintain  an  action  for  the  conversion  of  the  goods  against  his 
co-owner  in  respect  of  any  act  of  the  latter  consistent  with  his  owner- 
ship. It  follows  that  the  plaintiff  could  not,  in  the  absence  of  any 
agreement  as  to  possession  of  the  box,  have  recovered  it  from  the  de- 
fendant. But  there  w^as  an  agreement  that  he  should  be  entitled  to 
the  possession  of  the  box  until  such  time  as  it  might  be  sold.  What 
happened  was  that  the  plaintiff"  entrusted  Frankenheim  with  the  box 
to  take  it  to  Christie's,  where  it  was  to  have  been  sold.  This  Frank- 
enheim did  not  do,  but  handed  the  box  to  the  defendant  as  security 
for  a  debt  of  his  own.  This  transaction  amounted  to  a  bailment  to 
Frankenheim  for  a  special  purpose,  which  he  did  not  carry  out,  and 
on  failure  of  the  trust  the  plaintiff's  right  to  immediate  possession  ac- 
crued at  once.  I  dissent,  therefore,  from  the  judgment  of  the  Court 
below,  and  think  the  appeal  should  be  allowed. 
Appeal  allowed.^* 


ANDERSON  v.  GOULDBERG. 

(Supreme  Court  of  Minnesota,  1S02.    51  Minn.  294,  53  N.  W.  636.) 

Replevin  to  recover  certain  logs.  Verdict  for  plaintiff.  The  de- 
fendants appeal  from  an  order  denying  a  new  trial. 

Mitchell,  J.  It  is  settled  by  the  verdict  of  the  jury  that  the  logs 
in  controversy  were  not  cut  upon  the  land  of  the  defendants,  and  con- 
sequently that  they  were  entire  strangers  to  the  property.  For  the 
purposes  of  this  appeal,  we  must  also  assume  the  fact  to  be  (as  there 
was  evidence  from  which  the  jury  might  have  so  found)  that  the  plain- 
tiffs obtained  possession  of  the  logs  in  the  first  instance  by  trespassing 
upon  the  land  of  some  third  party.  Therefore  the  only  question  is 
whether  bare  possession  of  property,  though  wrongfully  obtained,  is 
sufficient  title  to  enable  the  party  enjoying  it  to  maintain  replevin 
against  a  mere  stranger,  who  takes  it  from  him.  We  had  supposed 
that  this  was  settled  in  the  affirmative  as  long  ago,  at  least,  as  the  early 
case  of  Armory  v.  Delamirie,^^  so  often  cited  on  that  point.  When 
it  is  said  that  to  maintain  replevin  the  plaintiff's  possession  must  have 
been  lawful,  it  means  merely  that  it  must  have  been  lawful  as  against 
the  person  who  deprived  him  of  it ;  and  possession  is  good  title  against 
all  the  world  except  those  having  a  better  title.  Counsel  says  that  pos- 
session only  raises  a  presumption  of  title,  which,  however,  may  be  re- 
butted.   Rightly  understood,  this  is  correct ;   but  counsel  misapplies  it. 

14  The  arsunients  of  counsel  are  omitted.  The  concurring  opinion  of  Fry, 
L.  J.,  is  omitted. 

V6  1  Strange,  504  (1722).  As  to  the  facts  in  this  case,  see  infra,  under 
Trover  and  Conversion, 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  305 

One  who  takes  property  from  the  possession  of  another  can  only  rebut 
this  presumption  by  showing  a  superior  title  in  himself,  or  in  some  way 
connecting  himself  with  one  who  has.  One  who  has  acquired  the  pos- 
session of  property,  whether  by  finding,  bailment,  or  by  mere  tort, 
has  a  right  to  retain  that  possession  as  against  a  mere  wrongdoer  who 
is  a  stranger  to  the  property.  Any  other  rule  would  lead  to  an  endless 
series  of  unlawful  seizures  and  reprisals  in  every  case  where  property 
had  once  passed  out  of  the  possession  of  the  rightful  owner. 
Order  affirmed. 


(B)  Limits  of  Detinue  and  Replevin 
COUPLEDIKE  V.  COUPLEDIKE. 

(King's  Bench,  1604.     Cro.  Jae.  39,  79  Reprint,  SI.) 

Error  of  a  judgment  in  detinue  in  the  Common  Pleas.     *     *     * 
A  second  error  assigned  was,   for  that  the  writ  supposeth  deteiner 

de  una  domo  vocat.  a  bee-house,  which  cannot  be,  that  detinue  should 

lie  of  a  house. 

Wherefore  it  was  reversed.^" 


NIBLET  V.  SMITH. 

(Court  of  King's  Bench,  1792,  4  T.  R.  504,  100  Reprint,  1144.) 

This  was  a  replevin  for  taking  the  goods  and  chattels,  to  wit,  one 
lime-kiln,  etc.,  of  the  plaintiff;  to  which  there  was  an  avowry  for  rent 
in  arrear.  The  plaintiff,  in  his  plea  in  bar,  said,  that  the  lime-kiln 
before  and  at  the  said  time  when,  etc.,  was  affixed  to  the  freehold  of 
the  piece  or  parcel  of  ground  on  which,  etc.,  and  as  such  was  by  law 
exempt  from  any  distress  for  the  arrears  of  rent  in  the  avowry  men- 
tioned, and  ought  not  to  have  been  distrained  for  the  same,  etc.  To 
this  plea  the  defendant  demurred  generally. 

Holroyd  in  support  of  the  demurrer.  The  lime-kiln  being  affixed 
to  the  freehold,  no  replevin  will  lie  for  it ;  for  if  the  defendant  should 
succeed,  it  could  not  be  delivered  to  him  under  the  writ  of  retorno  ha- 
bendo.  In  Co.  Lit.  145b,  it  is  said,  that  a  replevin  lies  for  goods  and 
chattels  only;  and  a  lime-kiln  is  as  much  affixed  to  the  freehold  as 
doors,  windows,  or  a  furnace  which  are  always  considered  as  belonging 
to  the  freehold.    Bro.  Abr.  "Chattels,"  pi.  7. 

Thd  Court  were  of  opinion  that  the  plea  in  bar  could  not  be  sup- 
ported, because  it  was  a  departure  from  the  declaration.  That  tlie  dec- 
laration, treating  the  lime-kiln  as  a  chattel,  might  possibly  have  been 
true,  because  lime  may  be  burnt  in  a  portable  oven,  and  the  kiln  need 

1 6  The  first  error  was  not  sustained.  On  the  second  objection,  see  Co. 
Lit  286. 

Hepb. Torts — 20 


306  TORTS  THROUGH  ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

not  therefore  necessarily  be  affixed  to  the  freehold :  but  that,  as  the 
plea  in  bar  stated  it  to  be  affixed  to  the  freehold,  it  was  inconsistent 
with  the  declaration. 

Judgment  for  the  defendant.^' 


MENNIE  V.  BLAKE. 

(Court  of  Queen's  Bench,  1856.    6  El.  &  Bl.  S42,  119  Reprint,  1078, 

lOG  R.  R.  822.) 

Replevin.    Plea:   non  cepit.     Issue  thereon. 

The  cause  came  on  to  be  tried  before  Crowder,  J.,  at  the  last  Spring 
Assizes  for  Devon.  The  following  account  of  the  facts  which  then 
appeared  in  evidence  is  taken  from  the  judgment  of  this  Court. 

"One  Facey  was  indebted  to  the  plaintiff.  He  brought  him  £15.  towards 
I  payment  of  the  debt,  but  requested  and  obtained  i^rmission  to  lay  the 
money  out  in  the  purchase  of  a  horso  and  cart,  which  were  to  lie  the  prop- 
erty of  the  plaintiff,  but  of  which  Facey  was  to  have  the  possession  and  the 
use,  subject  to  such  occasional  use  as  plaintiff  jnight  require  to  have  of  tliem, 
and  to  their  being  given  up  to  plaintiff  when  he  should  demand  them.  Ac- 
cordingly Facey  made  the  purchase:  the  possession  and  the  use  were  sub- 
stantially with  him;  he  fed,  stabled  and  took  care  of  the  horse;  there  was 
some  evidence  that  his  name  was  on  the  front  of  the  cart;  certainly  plain- 
tiff's was  on  the  side ;  under  what  circumstances  placed  there  the  evidence 
was  contradictory,  the  plaintiff  alleging  it  to  have  been  placed  in  the  ordinary 
way  as  an  evidence  of  property,  the  defendant  insinuating  that  it  was  so 
placed  in  order  to  protect  it  from  Facey's  other  creditors.  It  is  not  however 
material,  because  on  the  one  hand  the  plaintiff's  property  we  take  to  be 
indisputable,  and  on  the  other  we  do  not  think  there  is  evidence  enough  to 
charge  the  defendant  with  fraud  or  collusion  in  the  circumstances  under 
which  he  obtained  possession,  and  which  we  now  proceed  to  state. 

"Facey  determined  to  emigrate ;  and  the  defendant  knew  of  his  intention ; 
but  the  plaintiff  did  not.  The  horse  and  cart  were  used  in  transporting 
Facey's  effects  to  the  pier  at  which  he  was  to  embark ;  and  the  defendant, 
to  whom  he  owed  money  for  fodder  supplied  to  tlie  horse  went  with  him  to 
procure  payment  if  he  could;  at  parting  Facey  delivered  the  horse  and 
cart  to  him,  telling  him  to  take  them  for  the  debt,  but  adding  that  he  owed 
the  plaintiff'  money  also,  and  that,  if  he  would  discharge  the  debt  due  to  tlie 
defendant,  which  was  much  less  than  their  value,  he  was  to  give  tliem  up  to 
him.  In  this  manner  the  defendant  acquired  his  possession.  The  plaintiff"  for 
some  time  remained  in  ignorance  of  what  had  passed ;  and  afterwards,  com- 
ing to  the  knowledge  of  it,  demanded  them;  but  the  defendant  refused  to 
deliver  them  unless  his  debt  ^^■ere  paid ;  whereupon  the  plaintiff  proceeded  to 
replevy  the  goods,  and  brought  the  present  action," 

Upon  these  facts  the  learned  Judge  directed  a  verdict  for  the  plain- 
tiff, with  leave  to  move  to  enter  a  verdict  for  the  defendant  or  a  non- 
suit, if  under  such  circumstances  replevin  did  not  lie. 

17  Accord:  Ricketts  v.  Dorrel  (1876)  55  Ind.  470:  (Replevin  to  recover 
fence  rails  which  D.  has  unlawfully  taken  from  the  possession  of  P.  and 
used  in  the  construction  of  a  fence  on  U.'s  land.) 

Compare  Silsbury  v.  McCoon  (1850)  3  N.  Y.  379,  53  Am.  Dec.  307:  (A  quan- 
tity of  (Drn  was  taken  from  the  owner  by  a  willful  trespasser  and  by  him 
converted  into  whisky,) 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  307 

Montague  Smith,  in  the  ensuing  term,  obtained  a  rule  nisi  accord- 
ingly. 

Coleridge:,  j.  *  *  *  The  question  raised  is,  whether  there 
was  any  taking  of  the  horse  and  cart  from  the  plaintiff  by  the  defend- 
ant? And  we  are  of  opinion,  looking  to  the  nature  and  purpose  of 
the  action  of  replevin,  that  there  was  no  taking  in  the  sense  in  which 
that  word  must  be  understood  in  this  issue.  The  whole  proceeding 
of  replevin,  at  common  law,  is  distinguished  from  that  in  trespass  in 
this,  among  other  things :  tliat,  while  the  latter  is  intended  to  procure 
a  compensation  in  damages  for  goods  wrongfully  taken  out  of  the  ac- 
tual or  constructive  possession  of  the  plaintiff,  the  object  of  the  for- 
mer is  to  procure  the  restitution  of  the  goods  themselves ;  and  this  it 
eft'ects  by  preliminary  ex  parte  interference  by  the  officer  of  the  law 
with  the  possession.  This  being  done,  the  action  of  replevin,  apart 
from  the  replevin  itself,  is  again  distinguished  from  trespass  by  this, 
that,  at  the  time  of  declaring,  the  supposed  wrongful  possession  has 
been  put  an  end  to,  and  the  litigation  proceeds  for  the  purpose  of  de- 
ciding whether  he,  who  by  the  supposition  was  originally  possessed, 
and  out  of  whose  possession  the  goods  were  taken,  and  to  whom  they 
have  been  restored,  ought  to  retain  that  possession,  or  whether  it  ought 
to  be  restored  to  the  defendant.  Blackstone  (3  Comm.  146),  after  ob- 
serving that  the  Mirror  ascribes  the  invention  of  this  proceeding  to 
Glanvil,  says  that  it  "obtains  only  in  one  instance  of  an  unlawful  tak- 
ing, that  of  a  wrongful  distress."  If  by  this  expression  he  only  meant 
that  in  practice  it  was  not  usual  to  have  recourse  to  replevin  except  in 
the  case  of  a  distress  alleged  to  be  wrongful,  he  was  probably  justi- 
fied by  the  fact.  But  there  are  not  wanting  authorities  to  shew  that 
the  remedy  by  replevin  was  not  so  confined ;  and  in  the  case  of  Shan- 
non V.  Shannon,  1  Sch.  &  Lef.  324,  327,  Lord  Redesdale  finds  fault 
with  this  passage,  saying  that  the  definition  is  "too  narrow,"  and  that 
"many  old  authorities  will  be  found  in  the  books  of  replevin  being 
brought  where  there  was  no  distress."     *     *     * 

From  a  review  of  these  and  other  authorities  which  might  be  added, 
it  may  appear  not  settled  whether  originally  a  replevy  lay  in  case  of 
other  takings  than  by  distress.  Nor  is  it  necessary  to  decide  that  ques- 
tion now;  for,  at  all  events,  it  seems  clear  that  replevin  is  not  main- 
tainable unless  in  a  case  in  which  there  has  been  first  a  taking  out  of 
the  possession  of  the  owner.  This  stands  upon  authority  and  the  rea- 
son of  the  thing.  We  have  referred  already  to  a  dictum  of  Lord 
Redesdale.  Three  cases  are  to  be  found — Ex  parte  Chamberlain,  1 
Sch.  &  Lef.  320,  In  re  Wilson's,  1  Sch.  &  Lef.  320,  note  fa),  and  Shan- 
non V.  Shannon,  1  Sch.  &  Lef.  32-1 — in  which  the  law  is  so  laid  down 
by  Lord  Redesdale.  And  these  are  cases  of  great  authority ;  for  that 
very  learned  Judge  found  the  practice  in  Ireland  the  other  way.  He 
felt  the  inconvenience  and  injustice  of  it:  he  consulted  with  the  I^ord 
Chief  Justice  and  obtained  the  opinion  of  the  other  Judges,  and  then 


308  TORTS  THROUGH  ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

pronounced  the  true  rule,  which,  in  one  of  these  cases.  In  re  Wilson's, 
1  Sch.  &  Lef.  320,  note  (a),  he  thus  states :  The  writ  of  replevin  "is 
merely  meant  to  apply  to  this  case,  viz.  where  A.  takes  goods  wrong- 
fully from  B.  and  B.  applies  to  have  them  redelivered  to  him  upon 
giving  security  until  it  shall  appear  whether  A.  has  taken  them  right- 
fully. But  if  A.  be  in  possession  of  goods,  in  which  B.  claims  a  prop- 
erty, this  is  not  the  writ  to  try  that  right."  In  the  course  of  these 
cases  his  Lordship  points  out  how  replevin  proceeds  against  the  gen- 
eral presumption  of  law  in  favour  of  possession ;  how  it  casts  upon 
him  who  was  in  possession  the  burthen  of  first  proving  his  right ;  and 
he  puts  (Ex  parte  Chamberlain,  1  Sch.  &  Lef.  322),  as  a  reductio  ad 
absurdum,  a  case  not  unlike  the  present.  "Suppose,"  says  he,  "the 
case  of  a  person  having  a  lien  on  goods  in  his  possession,  and  who  in- 
sists on  being  paid  before  he  delivers  them  up :  I  do  not  see  on  the 
principles  insisted  on,  why  a  writ  of  replevin  may  not  issue  in  that 
case."  The  reason  of  the  thing  is  equally  decisive :  as  a  general  rule 
it  is  just  that  a  party  in  the  peaceable  possession  of  land  or  goods 
should  remain  undisturbed,  either  by  the  party  claiming  adversely  or 
by  the  officers  of  the  law,  until  the  right  be  determined  and  the  pos- 
session shewn  to  be  unlawful.  But,  where,  either  by  distress  or  mere- 
ly by  a  strong  hand,  the  peaceable  possession  has  been  disturbed,  an 
exceptional  case  arises ;  and  it  may  be  just  that,  even  before  any  deter- 
mination of  the  right,  the  law  should  interpose  to  replace  the  parties 
in  the  condition  in  which  they  were  before  the  act  done,  security  being 
taken  that  the  right  shall  be  tried,  and  the  goods  be  forthcoming  to 
abide  the  decision.  Whatever  may  be  thought  of  Lord  Coke's  etymol- 
ogy, what  he  says  of  replegiare,  while  it  shews  his  understanding  of 
the  law,  gives  a  true  account  of  what  replevin  is,  a  redelivery  to  the 
former  possessor  on  pledges  found.  But  this  is  applicable  clearly  to 
exceptional  cases  only.  If,  wherever  a  party  asserts  a  right  to  goods 
in  the  peaceable  possession  of  another,  he  has  an  election  to  take  them 
from  him  by  a  replevin,  it  is  obvious  that  the  most  crying  injustice 
might  not  infrequently  result.  Now,  in  the  present  case,  Facey  was 
not  the  servant  of  the  plaintiff;  nor  was  his  possession  merely  the  pos- 
session of  the  plaintiff;  he  was  the  bailee  of  the  plaintiff,  and  had  a 
lawful  possession  from  the  delivery  of  the  owner,  which  conferred  on 
him  a  special  property.  This  did  not  authorize  him  to  transfer  his  pos- 
session to  the  defendant ;  nor  could  he  give  him  a  lien  for  his  debt 
against  the  paramount  right  of  the  true  owner  the  bailor :  after  a  de- 
mand and  refusal,  upon  the  admitted  facts  in  this  case,  the  plaintiff 
could  clearly  have  maintained  trover  against  the  defendant ;  but  yet 
there  was  nothing  wrongful  in  his  accepting  the  possession  from  Fa- 
cey ;  he  acquired  that  possession  neither  by  fraud  nor  violence ;  at 
least  none  is  found,  and  we  cannot  presume  either;  and  he  retained 
the  possession  on  a  ground  which  might  justify  the  retainer  until  the 
alleged  ownership  was  proved.    This  therefore,  in  our  opinion,  was  a 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  309 

case  in  which  the  plaintiff  could  not  proceed  by  replevin,  but  should 
have  proved  his  prior  right  in  trover  or  detinue.     *     *     * 

The  rule  should  be  absolute,  not  to  enter  a  verdict,  but  a  nonsuit.^^ 


]\IAXHA^I  v.  DAY. 

(Supreme  Judicial  Court  of  Massachusetts,  1860.    16  Gray,  213, 

77  Am.  Dec.  409.) 

Action  of  tort  against  a  deputy  sheriff  for  refusing  to  serve  a  writ 
of  replevin,  sued  out  by  the  plaintiff'  against  George  Spring,  to  recover 
possession  of  a  diamond  pin  with  gold  settings. 

At  the  trial  in  the  superior  court,  it  appeared  that,  when  the  officer 
was  asked  to  serve  the  writ  of  replevin.  Spring  was  wearing  the  pin 
as  a  personal  ornament  in  the  bosom  of  his  shirt,  with  his  coat  but- 
toned over  it  so  as  to  conceal  it  from  sight,  and  threatened  resistance 
if  the  officer  should  attempt  to  take  it  from  him.  Lord,  J.,  ruled  that 
these  facts  did  not  excuse  the  officer,  and  he  alleged  exceptions. 

BiGELOW,  C.  J.  Replevin  at  common  law  is  founded  on  the  wrong- 
ful taking  of  personal  property ;  and  is  a  remedy,  by  w^hich  the  per- 
son, from  whom  goods  or  chattels  are  taken,  may  be  restored  to  the 
possession  of  them  until  the  question  of  title  can  be  judicially  tried 
and  determined.     *     *     * 

In  our  practice  it  is  often  resorted  to,  instead  of  an  action  of  tres- 
pass or  trover,  as  a  simple  and  convenient  method  of  trying  the  title 
to  goods  and  chattels.  It  is  a  purely  personal  action,  which  any  party 
may  commence,  as  of  right,  by  suing  out  a  writ,  without  preliminary 
oath  or  other  formality,  in  like  manner  as  other  civil  suits  are  brought. 
Its  peculiar  and  distinguishing  characteristic  is,  that  it  takes  the  prop- 
erty in  controversy  from  him  who  by  his  possession  of  it  is  prima 
facie  its  owner,  and  places  it  in  the  hands  of  the  plaintiff',  substituting 
in  its  stead  a  personal  security  in  the  form  of  a  bond  to  the  defendant 
for  its  return  if  such  shall  be  the  final  judgment  of  the  court. 

But  although  replevin  is  at  common  law  a  general  remedy  to  recover 
property  wrongfully  taken,  it  does  not  follov/  that  it  is  of  universal  ap- 
plication, so  that  it  can  be  eff'ectively  used  in  all  cases,  whatever  may 
be  the  condition  or  situation  of  the  property.  Remedies  are  always  to 
be  used  and  applied  in  subordination  to  the  great  principles  of  right, 
which  it  is  the  object  of  the  law  primarily  to  secure  and  protect.    Re- 

18  Part  of  the  opinion  is  omitted.  See  Ames,  The  History  of  Trover,  11 
Harv.  Law  Rev.  374 ;  3  Anglo-Am.  Legal  Ivssays,  431.  See  also  34  Cyc.  1352- 
13.54,  1359,  notes  14  and  16.  to  the  general  effect  that  in  many  states  of  the 
Union,  either  with  or  without  the  aid  of  a  statute,  replevin  has  become 
concurrent    with   detinue. 

That  replevin  now  lies  where  trespass  or  trover  can  be  maintained,  see 
34  Cyc.  i::;o5.  And,  in  general,  42  Cent.  Dig.  §  1,  and  17  Dec.  Dig.  §  1; 
Key-No.    "Replevin,"  §  1. 


310  TOKTS   THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

dress  is  not  to  be  obtained  by  doing  a  wrong.  A  person  cannot  use 
the  process  of  law  in  vindication  of  his  own  rights  in  such  way  as  to 
invade  those  of  another.  To  illustrate :  A  creditor  can  in  certain  cas- 
es arrest  the  body  of  his  debtor;  this  is  a  clear  legal  right;  but  it  can- 
not be  exercised  by  a  forcible  entry  of  the  debtor's  dwelling,  because 
such  an  act  would  infringe  on  another  right  equally  clear,  by  which 
a  man's  house  is  made  a  place  of  shelter  and  repose,  which  no  one 
armed  only  with  civil  process  can  break  into  or  disturb.  So  a  criminal 
is  liable  to  arrest  and  to  have  his  person  and  premises  searched ;  the 
good  order  and  safety  of  the  community  require  that  this  right  should 
be  enforced ;  but  it  cannot  be  done  without  warrant  under  oath,  spe- 
cially designating  the  person  and  object  of  search  and  arrest,  because 
that  would  be  contrary  to  the  right  of  every  person  to  be  secure  against 
unreasonable  searches  and  seizures.  The  truth  is,  that  in  determining 
whether  a  particular  remedy  is  applicable  or  appropriate  in  any  case, 
it  is  not  sufficient  to  consider  whether  it  will  be  effectual  to  redress  the 
grievance  or  vindicate  the  right  of  one  party.  An  equally  essential  and 
necessary  inquiry  is  to  ascertain  whether  it  can  be  employed  without 
an  infringement  of  the  rights  and  privileges  of  the  other  party.  If  it  can- 
not be,  then  it  follows  that  the  law  will  not  sanction  it.  There  are 
cases,  no  doubt,  in  which  legal  process,  lawfully  used,  may  cause  in- 
convenience and  hardship,  and  even  operate  oppressively  on  those 
against  whom  it  is  directed ;  but  we  know  of  no  case  in  which  it  can 
be  legitimately  made  the  instrument  of  wrong,  or  the  means  by  which 
private  rights  can  be  invaded  or  taken  away. 

It  seems  to  us,  on  careful  consideration,  that  this  action  cannot  be 
maintained  without  coming  in  conflict  with  this  plain  and  elementary 
principle.  The  proposition  on  which  the  plaintiff"  must  rest  his  case 
amounts,  when  examined,  to  this :  that  on  a  process  in  its  nature  pure- 
ly civil  an  officer  is  bound  to  seize  and  search  the  person  of  the  de- 
fendant. The  statement  of  such  a  proposition  carries  with  it  a  suffi- 
cient refutation.  Its  practical  recognition  would  lead  to  a  palpable  in- 
fraction of  the  cardinal  principle  by  which,  under  our  constitution  and 
laws,  the  sanctity  of  the  person  is  guarded  from  unfounded  and 
groundless  searches  and  arrests.  There  is  nothing  in  the  nature  of  a 
writ  of  replevin,  which  gives  to  it  any  efficiency  or  power  over  the 
person,  superior  to  other  civil  process.  It  may  be  sued  out  at  the  will 
of  any  person  who  sees  fit  to  assert  a  title  to  property  in  the  possession 
of  another ;  no  oath  or  other  sanction  is  required  to  prevent  its  mis- 
use or  abuse ;  even  the  right  of  property,  which  it  seeks  to  establish, 
may  on  investigation  prove  to  be  wholly  without  foundation.  How 
then  can  it  be  contended  that  it  confers  on  an  officer  an  authority, 
which  cannot  be  exercised  even  under  a  criminal  process,  except  when 
it  is  verified  by  oath  and  issued  with  the  formalities  required  by  the 
constitution  and  laws  ? 

Certainly  no  precedent  or  authority  has  been  cited,  and  none,  we 
believe,  can  be  found,  that  sustains  the  doctrine  which  the  plaintiff 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  311 

must  establish  in  order  to  maintain  this  action.  In  England,  as  we 
have  already  said,  the  process  of  replevin  is  used  only  in  cases  where 
property  has  been  distrained,  for  the  purpose  of  trying  the  legality  of 
the  seizure,  and  is  confined  chiefly,  if  not  entirely,  to  beasts  of  the 
field  and  of  the  plough,  implements  of  husbandry,  household  goods, 
and  other  chattels,  not  found  or  used  on  the  person ;  and  in  Ireland, 
where  the  writ  of  replevin  at  common  law  is  still  a  common  remedy 
to  try  the  title  of  goods  and  chattels  in  any  way  wrongfully  taken,  no 
case  is  found  in  which  it  has  been  used  for  the  purpose  of  taking  ar- 
ticles of  clothing,  or  of  personal  use  or  adornment,  from  the  person 
of  the  defendant.  In  a  matter  of  this  sort,  relating,  as  it  does,  to  the 
extent  of  the  power  conferred  on  an  officer  in  the  service  of  a  process 
known  to  the  common  law  from  the  earliest  period,  we  regard  the  en- 
tire absence  of  authority  in  support  of  the  right  claimed  by  the  plain- 
tiff to  be  a  strong  argument  against  its  existence.     =i=     *     * 

The  exercise  of  such  a  power  is  not  only  contrary  to  right  and  un- 
supported by  authority,  but  it  is  also  inconsistent  with  sound  policy. 
Practical  jurisprudence  looks,  in  the  application  of  remedies,  to  the 
peace,  good  order  and  decorum  of  society.  The  evils  which  would  flow 
from  the  unrestricted  use  of  a  civil  process  to  search  the  person  and  to 
seize  from  it  articles  of  dress  or  use  or  ornament  are  obvious  and  mani- 
fold. It  would  bring  the  officer  of  law  in  direct  contact  with  the  citi- 
zen, under  circumstances  well  calculated  to  excite  irritation  and  anger, 
and  lead  directly  to  breaches  of  the  peace.  It  would  place  in  the  hands 
of  wicked  and  evil  disposed  persons  the  means  of  annoyance  and  in- 
jury, and  the  power  to  interfere  wantonly  and  without  just  cause  with 
the  most  sacred  rights  of  the  person.  If  the  right  exists  at  all,  it  can- 
not be  limited  to  particular  articles  of  use  or  adornment,  but  must  ex- 
tend to  every  article  of  apparel  worn  by  persons  of  either  sex,  and 
might  be  lawfully  exercised  at  the  sacrifice  of  decency  and  the  propri- 
eties of  life.  The  reasons  on  which  the  restraint  upon  the  power  of 
taking  articles  from  the  person  by  distress  or  by  attachment  and  exe- 
cution is  founded  apply  with  equal  force  to  the  right  to  take  them  by 
replevin.  Sunbolf  v.  Alford,  3  M.  &  W.  248 ;  Mack  v.  Parks,  8  Gray, 
517,69  Am.  Dec.  267. 

Nor  is  there  any  necessity  for  giving  such  a  remedy  to  recover  prop- 
erty of  this  nature.  A  bill  in  equity  under  Rev.  Sts.  c.  81,  §  8  (Gen. 
Sts.  c.  113,  §  2),  to  compel  the  redelivery  of  goods  or  chattels  taken  or 
detained  from  the  owner  and  withheld  so  that  the  same  cannot  be  re- 
plevied, would  afford  ample  redress  in  all  cases  where  the  property  is 
so  situated  that  it  cannot  be  taken  without  an  interference  with  the 
person. 

Exceptions  sustained. 

At  a  second  trial  in  the  sui5erior  court,  the  plaintiff  conceded  that, 
when  the  defenflant  was  askerl  to  serve  the  rei)levin  writ,  the  pin  was 
affixed  to  the  bosom  of  Spring's  shirt,  in  the  manner  in  which  breast- 


312  TORTS  THROUGH  ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

pins  are  usually  worn;  but  offered  to  prove  that  Spring  had  placed 
it  there,  not  as  an  article  of  wearing  apparel  or  personal  ornament,  but 
for  the  sole  purpose  of  keeping  it  out  of  the  reach  of  legal  process, 
knowing  that  he  had  no  valid  title  to  it;  and  that  the  defendant  might 
have  seized  it.  But  IMorton,  J.,  excluded  the  evidence,  and  ruled  that, 
under  the  circumstances  conceded  and  offered  to  be  proved,  the  de- 
fendant was  excused  from  serving  the  writ  of  replevin.  The  plaintiff 
submitted  to  a  verdict  for  the  defendant,  and  alleged  exceptions,  which 
were  argued  at  October  term,  1861. 

Hoar,  for  the  plaintiff'.  The  plaintiff  refers  to  the  authorities  and 
suggestions  at  the  first  argument.  The  question  now  presented  is 
whether  any  article  small  enough  to  be  kept  by  a  defendant  on  his  per- 
son is  irrepleviable.  Can  a  landlord  distrain  his  tenant's  watch  for 
rent,  and  by  keeping  it  on  his  person  prevent  the  legality  of  the  distress 
from  being  tested?  If  a  child,  too  young  to  be  punished  for  larceny, 
seizes  in  a  jeweller's  shop  a  valuable  diamond,  is  there  no  legal  process 
by  which  the  possession  can  be  restored  to  the  proper  owner? 

BiGELOW,  C.  J.  The  facts  now  offered  to  be  proved  in  support  of 
this  action  do  not  change  the  result  at  which  we  arrived  in  considering 
the  case  as  presented  at  the  former  hearing.  It  was  then  determined 
that  replevin  did  not  lie  at  common  law  for  articles  of  dress  or  per- 
sonal adornment,  alleged  to  have  been  unlawfully  taken,  and  which 
were  actually  worn  on  the  person  at  the  time  when  the  service  of  the 
writ  of  replevin  was  attempted.  The  necessity  of  securing  immunity 
to  the  person  from  unreasonable  searches  and  seizures,  and  the  impol- 
icy of  allowing  an  unlimited  power  to  an  officer  to  take  on  civil  pro- 
cess articles  worn  on  the  person,  forbid  the  extension  of  the  remedy  by 
replevin  to  property  so  used  and  situated.  A  bill  in  equity  for  prop- 
erty unlawfully  withheld  affords  an  ample  remedy  to  recover  posses- 
sion of  property  of  such  a  nature.^^ 

Exceptions  overruled. 


SAGER  V.  BLAIN. 

(Court  of  Appeals  of  New  York,  1S71.     44  N.  Y.  445.) 

Appeal  from  an  order  of  the  General  Term  of  the  Supreme  Court, 
in  the  second  district,  granting  a  new  trial  and  reversing  an  order  of 
the  City  Court  of  Brooklyn,  denying  a  new  trial. 

The  action  was  replevin,  to  recover  possession  of  certain  United 
States  treasury  notes,  particularly  described  in  the  complaint,  "and 
also  the  sum  of  $9,112.19,  delivered  by  Charles  Meigs  &  Son  to  the 
defendant,  with  damages  for  the  withholding  thereof." 

The   testimony   being  closed,  the   court  charged  the  jury  that  the 

IP  Part  of  the  opinion  is  omittod.  Compare  SibecU  v.  McTieruan  (1010)  94 
Arlc.  1,  125  S.  W.  136 ;   and  see  34  Cyc.  1302,  notes  74,  75. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  313 

plaintiff  was  not  entitled  to  recover  in  this  action  the  $9,112.19  claimed 
in  the  complaint,  and  directed  the  jury  to  find  a  verdict  for  the  dt- 
fendant,  Rhoda  E.  Blain,  for  that  amount;  to  which  charge  and  di- 
rection the  plaintiff's  counsel  excepted. -° 

Hunt,  C.  The  embarrassments  of  this  case  have  arisen,  chiefly, 
from  the  selection  of  an  improper  form  of  action.  The  plaintiff, 
claiming  to  have  purchased  from  the  defendant,  Isaac  W.  Blain,  sev- 
eral government  bonds,  and  a  balance  of  money  theretofore  paid  by 
Messrs.  Meigs  &  Co.  to  his  wife,  upon  his  order,  commences  an  action 
of  replevin,  to  obtain  this  property  from  Mrs.  Blain.  The  government 
bonds  are  specific  articles,  distinguishable  from  all  others  of  a  like 
character  by  dates  and  numbers.  As  to  these,  an  action  of  replevin 
for  their  recovery  was  well  enough.  The  plaintiff  desired  to  avail 
himself  of  the  advantages  which  the  law  gives  when  the  defendant 
improperly  withholds  property  belonging  to  the  plaintiff".  One  of  these 
was  the  right  of  seizing  the  property  in  advance,  and  retaining  it  until 
the  defendant  shall  give  security  for  its  return.  The  other  is  the  right 
of  imprisonment,  in  the  event  of  not  paying  the  judgment  recovered. 
For  the  purpose  of  recovering  the  money,  the  remedy  proposed  and 
the  advantages  sought  were  entirely  inapplicable.  On  the  order  of 
her  husband,  Meigs  &  Co.  had  given  to  Airs.  Blain  their  check  for 
$9,000,  on  which  she  had  drawn  the  money  from  the  bank.  Whether 
she  obtained  the  bills  of  the  bank,  the  notes  of  the  government,  or 
specie,  does  not  appear.  Whatever  she  obtained,  she  kept  herself,  and 
it  was  never  under  the  control  or  in  the  possession  of  the  plaintiff  or 
his  assignor,  ]\Ir.  Blain. 

The  claim  against  Mrs.  B.,  under  such  circumstances,  was  simply 
for  money  had  and  received.  It  was  to  be  pursued  in  the  ordinary 
manner  for  the  collection  of  a  debt.  The  extraordinary  remedies  giv- 
en in  prosecuting  for  a  tort  could  not  be  invoked.  If  by  attempting 
to  use  them  the  plaintiff  has  involved  himself  in  difficulty,  he  must 
suffer  the  consequences. 

When  the  proper  action  is  brought,  the  rights  of  the  parties  will  be 
determined  without  difficulty.  If  this  money  was  given  to  Mrs.  Blain 
by  her  husband,  he  being  free  from  debt,  I  see  no  reason  why  she 
cannot  hold  it.  If  it  was  in  her  hands  as  the  mere  depositary  of  her 
husband,  it  was  subject  to  his  order  and  passed  by  the  transfer  to  the 
plaintiff.  This  question  has  not  been,  and  could  not  be,  decided  in  this 
action.  The  action  of  replevin  or  trover  is  based  upon  an  improper 
detention  or  conversion  of  the  plaintiff's  property.  Proof  of  owner- 
ship will  not  of  itself  authorize  a  recovery.  The  plaintiff  may  prove 
undoubted  ownership ;  but,  unless  he  proves  a  conversion  also,  or 
a  refusal  to  deliver,  he  cannot  recover.  There  are  many  cases  to  this 
effect  in  the  books.     Packard  v.  Getman,  4  Wend.  613,  21  Am.  Dec. 

20  The  statement  of  facts  is  abridged.  The  concurring  opinion  of  Leonard, 
CJ.,  is  omitted. 


314  TORTS  THROUGH  ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 

166;  Hallenbake  v.  Fish,  8  Wend.  547,  24  Am.  Dec.  88.  His  action 
for  the  recovery  of  a  specific  $9,000,  alleged  to  be  detained  from  him, 
is  no  bar  to  an  action  for  $9,000  of  debt  generally  due  to  him  from  the 
defendant.  As  a  debt  merely  it  cannot  be  recovered  in  the  present  ac- 
tion. The  record  cannot,  therefore,  be  a  bar  to  an  action  for  the  re- 
covery of  the  debts  simply.  Spalding  v.  Spalding,  3  How.  Prac.  297 ; 
Seymour  v.  \'an  Curen,   18  How.   Prac.  94. 

The  record  does  not  show  whether,  in  the  present  case,  the  plaintiff 
exercised  the  right  of  preliminary  seizure,  which  the  law  authorizes  in 
an  action  of  replevin.  It  will  illustrate  the  case  if  we  assume  that  he 
did.  Let  us  assume  that  Mrs.  Blain  drew  this  $9,000,  upon  the  check 
of  Meigs  &  Co.,  in  legal  tender  notes.  Assume,  further,  that  she  re- 
tained the  notes  in  her  possession,  and  that,  by  the  aid  of  a  friend 
within  the  garrison,  the  sheriff  was  able  to  take  the  notes  into  his  pos- 
session upon  the  replevin  papers  in  the  suit.-  The  defendant,  Mrs. 
Blain,  not  being  able  to  give  security  for  their  return,  they  remain  in 
the  plaintiff's  possession  at  the  time  of  the  trial.  Upon  the  trial  it  is 
held  that,  as  to  this  money,  an  action  of  replevin  will  not  lie ;  that,  as 
to  that  portion  of  the  demand,  judgment  must  go  against  him.  He 
has  quite  mistaken  his  remedy.  Both  parties  must  be  restored  to  the 
statu  quo  ante  helium.  The  plaintiff  must  give  back  the  money.  Mrs. 
Blain  is  entitled  to  receive  it.  This  is  precisely  what  was  done  at  the 
trial.  In  my  judgment,  the  direction  was  right  in  form  as  well  as  in 
substance.  It  stated  the  rights  of  the  parties  in  this  suit  and  nothing 
more.  If  an  ordinary  action  for  money  assigned  to  him  shall  here- 
after be  brought  by  the  plaintiff  against  Mrs.  Blain,  there  will  be  found 
nothing  in  this  record  to  prevent  its  decision  upon  the  merits.  Should 
there  be  any  doubt  about  the  effect  of  this  verdict,  which  I  do  not  my- 
self anticipate,  the  record  is  still  open  to  amendment.  No  judgment 
has  been  entered  upon  the  verdict,  and  it  would  be  within  the  author- 
ity of  the  Special  Term  to  direct  the  insertion  of  a  statement  of  the 
ground  of  the  judgment,  viz.,  the  improper  form  of  action,  or  that  the 
judgment  be  simply  that  the  plaintiff'  cannot  recover  the  $9,000. 

Several  questions  of  evidence  were  presented,  but  I  see  no  error 
that  requires  our  consideration. 

The  order  of  the  General  Term  should  be  reversed,  and  judgment 
entered  upon  the  verdict  of  the  City  Court.^^ 

21  Compare  Graves  v.  Dudley  (ISnn)  20  N.  Y.  76,  79:  "This  action  is  bronuht 
to  refover  the  possession  of  the  liills,  and  it  is  insisted  that  such  an  action  will 
not  lie  where  the  subject-nintter  is  money.  The  authorities  relied  upon  by  the 
counsel,  arose  in  the  action  of  detinue,  when  that  was  the  remedy  provided  by 
law  for  the  recovery  of  personal  property  unlawfully  detained.  The  cases  are 
analogous  to  the  action  given  by  the  Code  to  recover  the  possession  of  like 
property  similarly  detained,  and  the  same  principle  should  be  applied  to  the 
latter  action.  Coke  upon  FJltleton  (I'SC.b),  speaking  of  the  writ  of  detinue, 
says:  'In  this  writ  the  plainlirt  shall  recover  the  thing  detained,  iuid  there- 
fore it  must  be  so  certain  as  it  may  be  known,  and  for  that  cause  it  lyeth  not 
for  money  out  of  a  bag  or  chest ;  and  so  of  corn  out  of  a  sack,  and  the  like ; 
these  cannot  be  known  from  other.'     This  shows  that  money  could  be  recov- 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  315 

WARTEN  V.  STRANE. 

(Supreme  Court  of  Alabama,  1SS6.    82  Ala.  311,  8  South.  2.31.) 

Detinue  for  '"one  lot  of  corn  in  the  shuck,  to  wit,  76  bushels  in  de- 
fendant's crib  nearest  his  dwelling,  lately  bought  by  plaintifit'  from  de- 
fendant." On  the  trial  the  plaintiff  testified  that,  the  defendant  being 
indebted  to  him,  a  settlement  was  made  by  his  clerk,  George  Gray, 
by  which  the  account  "was  paid  by  a  credit  for  a  gin,  two  mules,  one 
horse,  and  100  bushels  of  corn  in  the  shuck  at  defendant's  crib,  at  the 
rate  of  60  cents  per  bushel,  leaving  a  balance  of  $25  due  the  defend- 
ant, which  he  afterwards  took  out  in  plaintifif's  store.  *  *  *  The 
corn  at  the  crib  was  to  be  his  property.  He  had  never  seen  the  corn. 
The  trade  was  made  by  his  clerk,  who  died  last  fall,  but  he  and  the 
defendant,  in  January,  1885,  talked  over  the  trade  thus  made  with  said 
Gray."  The  evidence  as  to  the  trade  being  made  by  said  Gray  was 
excluded.  The  plaintiff  was  then  asked  "whether  the  corn  he  bought 
of  the  defendant  was  100  bushels  to  itself,  or  part  of  a  large  quantity." 
He  replied  that  he  did  not  personally  know  whether  the  corn  was  in 
a  lot  by  itself ;  that  the  defendant  told  him,  in  January,  1885,  that  the 
corn  was  in  his  west  crib,  separated  from  his  other  corn,  and  that  said 
Gray  told  him  when  he  returned  from  making  the  trade  that  he 
bought  the  lot  of  corn  in  the  west  crib,  and  showed  him  the  dimensions 
thereof.  The  court  excluded  what  Gray  said  to  the  plaintiff.  *  *  * 
There  was  a  verdict  for  the  defendant  and  the  plaintiff  appealed. 

SoMERViLLE,  J.  1.  The  principle  is  familiar  that  where  there  is  a 
contract  of  sale  of  personal  property,  and  anything  remains  to  be  done 
to  individualize  and  identify  the  particular  property  intended  to  be 
sold,  such  as  counting,  weighing,  measuring,  or  separating  from  a  lar- 
ger mass  or  bulk,  no  title  passes  to  the  purchaser,  such  as  will  main- 
tain in  his  favor  an  action  of  detinue  or  trover.  This  is  for  the  simple 
reason  that  the  particular  part  of  the  property  or  chattels  contracted 
to  be  sold  and  delivered  cannot  be  ascertained  by  precise  identification. 
Bank  v.  Fry,  69  Ala.  348,  s.  c,  75  Ala.  473 ;  Shealy  v.  Edwards,  73 
Ala.  175,  180,  49  Am.  Rep.  43.  The  charge  of  the  court,  in  reference 
to  this  phase  of  the  case,  was  in  harmony  with  this  well-settled  rule 
governing    sales    of    personal   property,    and    was    free    from    error. 

ered  In  the  action  of  detinue,  the  same  as  corn ;  that  is  where  it  could  be 
identified.  The  same  rule  applies  to  all  personal  property,  and  to  maintain  an 
action  for  its  recovery  it  must  be  identified  so  tliat  delivery  of  the  specific 
goods  to  which  the  party  is  entitled  may  be  made."    Per  Grover,  J. 

22  Only  so  nnich  of  the  case  is  sivcn  as  relates  to  the  one  point.     The  case 
was  reversed  on  another  point,  and  remanded. 


316  TORTS  THROUGH  ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 


SECTION  2.— AFTER  THE  STATUTE  OF  WESTMINSTER 

THE  SECOND 

I.  Historical 


Apparently,  the  inventiveness  of  the  Chancellor  and  judges  in  the 
matter  of  making  new  writs  had  come  to  an  end  in  the  latter  half  of 
the  thirteenth  century.  At  any  rate,  there  were  complaints  in  Parlia- 
ment of  suitors  being  turned  away  empty-handed  because  there  was  no 
writ  to  suit  their  cases.  Accordingly,  the  great  Statute  of  Westmin- 
ster the  Second  sought  to  provide  a  remedy  by  enacting  that  "when- 
soever from  henceforth  it  shall  fortune  in  the  Chancery,  that  in  one 
case  a  writ  is  found,  and  in  like  case  falling  under  like  law,  and  re- 
quiring like  remedy,  is  found  none,  the  Clerks  of  the  Chancery  shall 
/  agree  in  making  a  writ"  (and,  if  they  do  not  there  is  to  be  an  appeal 
^  to  Parliament).-^ 

This  enactment,  though  it  appears  only  at  the  end  of  a  chapter  on 
special  cases,  seems  to  have  been  taken  as  a  general  authority  for  the 
expansion  of  legal  remedies ;  and  under  it  were  formed  many  new 
writs  on  the  analogy  of  the  older  writs  found  in  the  Register.  These 
new  writs  were  all  grouped  together  under  the  name  of  "Case" ;  ap- 
parently from  the  words  used  in  the  Statute  of  Westminster  the  Sec- 

23  The  Statute  of  Westmiuster  the  Second,  made  Anno  13  Edw.  I,  Stat.  1, 
and  Anno.  Dom.  12S5. 

"Whereas  of  late  our  Lord  the  King,  in  the  Quiuzim  of  Saint  John  Baptist, 
the  Sixth  Year  of  his  Reign,  calling  together  the  Prelates,  Earls,  Barons,  and 
his  Council  at  Gloucester,  and  considering  that  divers  of  this  Realm  were  dis- 
herited, by  Reason  that  in  many  Cases,  where  Remedy  should  have  been  had, 
there  was  none  provided  by  him  nor  his  Predecessors,  ordained  certain  Stat- 
utes right  necessary  and  profitable  for  his  Realm,  whereby  the  People  of  Eng- 
land and  Ireland,  being  Subjects  unto  his  Power,  have  obtained  more  speedy 
Justice  in  their  Oppressions,  than  they  had  before ;  and  certain  Cases,  wherein 
the  Law  failed,  did  remain  undetermined,  and  some  remained  to  be  enacted, 
that  were  for  the  Reformation  of  the  Oppressions  of  the  People:  Our  liord  the 
King  in  his  Parliament,  after  the  Feast  of  Easter,  holden  the  Thirteenth  Year 
of  his  Reign  at  Westminster,  caused  many  Oppressions  of  the  People,  and 
Defaults  of  the  Laws,  for  the  accomplishment  of  the  said  Statutes  of  Glouces- 
ter, to  be  rehearsed,  and  thereupon  did  provide  certain  Acts,  as  shall  appear 
here  following:     *     *     * 

"Chap.  xxiv.  *  *  *  2.  And  whensoever  from  henceforth  it  shall  happen 
in  the  Chancery  that  in  one  case  a  writ  is  foinid  and  in  a  like  case  [in  con- 
simili  casu]  falling  under  the  .same  right  and  requiring  a  similar  remedy 
[siuuli  romedio]  a  writ  is  lacking,  the  clerks  of  the  Chancery  shall  agree  in 
making  a  writ,  or  adjourn  the  complainants  to  the  next  parliament,  and  they 
.shall  write  out  the  ca.ses  in  which  they  cannot  agree  and  refer  them  to  the 
next  parliament,  and  let  a  writ  be  made  with  the  consent  of  the  learned  in 
the  law,  lest  it  happen  thereafter  that  the  King's  Court  [Curia]  be  long  de- 
ficient in  doing  justice  to  the  comi)lainants." 

Stats,  at  Large  (Pickering's  Ed.)  17(>2,  vol.  1,  pp.  1G3,  197,  with  a  few  varia- 
tions from  the  translation  in  Pickering. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  317 

end — "in  consimili  casu."  Another  feature  common  to  them  all  was 
that  each  was  framed  on  the  model  of  a  specific  older  writ ;  enlarging 
its  scope  by  omitting  one  or  more  of  the  technical  requirements  of  the 
older  document.-^ 

Jenks,  Short  Hist.  Eng.  Law,  136. 

2  4  The  Statute  of  Westminster  the  Second  contains,  in  its  twenty-fourth 
chapter,  a  clause  of  which  lawyers  have  long  recognized  the  importance,  but 
which  lay  historians  are  too  apt  to  regard  as  mere  technical  jargon.  Carefully 
concealed  under  the  guise  of  an  administrative  regulation,  the  Statute  lays  it 
down,  that  the  chancery  officials,  through  whose  hands  must  pass  every  royal 
writ,  which  was  then,  and  still  is,  the  normal  beginning  of  every  action  in  the 
royal  courts,  need  no  longer  be  guided  by  a  strict  adherence  to  precedent  in 
the  issue  of  these  documents.  It  is  sufficient  if  the  remedy  sought  and  the 
circumstances  of  the  case  are  like  those  for  which  writs  have  previously  been 
issued.  In  other  words,  principle,  not  precedent,  is  henceforth  to  guide  the 
Chancellor  and  his  officials  in  the  issue  of  writs. 

To  a  layman,  impatient  of  the  intricacies  of  legal  history,  such  a  direction 
may  seem  the  most  obvious  piece  of  official  platitude.  In  truth,  it  covered  a 
daring  attempt  at  completing,  by  a  master  stroke,  a  revolution  which  had  been 
gradually  proceeding  during  the  twelfth  and  thirteenth  centuries.  Once  more 
it  is  necessary  to  remind  the  reader,  that  the  conception  of  the  Crown,  as  the 
sole  fountain  of  justice,  is  a  very  modern  conception  in  legal  history.  The 
Crown  in  the  later  Middle  Ages  was  but  one  of  many  competitors  for  the  prof- 
itable business  of  judicature.  The  Church,  the  feudal  nobles,  the  chartered 
boi'oughs,  the  merchant  guilds,  the  shire  and  hundred  moots,  were  all  rivals, 
more  or  less  formidable.  And  any  premature  attempt  on  the  part  of  the  Crown 
to  claim  universal  and  exclusive  jurisdiction  would  assuredly  have  led  to  the 
fiercest  opposition,  even  if  it  had  not  resulted  in  the  dissolution  of  the  State. 
Time  was  on  the  side  of  the  Crown ;  but  the  King  had  to  walk  warily,  and 
to  be  content  for  a  long  time  with  small  things.  Bit  by  bit,  as  chances  offered, 
the  royal  officials  filched  the  business  of  their  rivals ;  and,  as  each  claim  was 
established,  it  was  carefully  enshrined  as  a  precedent  in  that  Register  of  Writs, 
which  was  one  of  the  most  precious  possessions  of  the  royal  chancery.  If  an 
intending  litigant  could  bring  his  case  within  the  terms  of  a  registered  writ, 
well  and  good.  If  not,  the  King's  courts  could  do  nothing  for  him.  He  might 
have  the  best  case  in  the  world  from  a  moral,  or  even  from  a  legal  point  of 
view.  But  his  remedy,  if  any,  lay  elsewhere.  With  sorrowful  hearts,  for  they 
disliked  "turning  away  business,"  the  chancery  officials  regretted  that  they 
could  not  supply  the  desired  article.  The  officials  knew  that  their  path  was 
beset  with  dangers.  The  bold  assertion  of  Henry  II,  that  no  lawsuit  touching 
the  title  to  freehold  could  be  commenced  without  a  royal  writ,  had  played  no 
mean  part  in  stirring  the  baronial  rising  under  John ;  and  the  claim  had  been 
solemnly  renounced  in  the  Great  Charter.  Now,  perhaps,  we  are  in  a  position 
to  understand  something  of  the  audacity  of  the  consimilis  casus  clause  of  the 
Statute  of  Westminster  the  Second,  which,  if  acted  upon  to  its  full  extent, 
would  have  left  it  open  to  ingenious  chancery  officials  to  discover  analogies  of 
existing  precedents  in  the  case  of  every  intending  litigant.  But  its  compara- 
tive failure  is  another  signal  proof  that  sound  legislation  is  little  more  than 
the  official  consecration  of  enlightened  public  opinion,  and  that  "fancy"  or  pre- 
mature reforms  are  mere  waste  of  words.  The  opposition  to  the  full  use  of 
the  clause  came,  not  merely  from  feudal  and  clerical  tribunals,  but  from  the 
King's  own  judges,  who  refused  to  recognise  as  valid  writs  which,  in  their 
view,  departed  too  widely  from  precedent,  no  less  than  from  the  Parliaments 
of  the  fourteenth  century,  profoundly  jealous  of  a  power  which,  under  the 
form  of  mere  official  documents,  was  really  a  power  to  declare  the  law  of  the 
land.  The  final  victory  of  the  royal  jurisdiction  was  won.  by  the  skilful  use 
of  fictions,  by  the  rise  of  the  Court  of  Chancery,  and,  finally,  by  the  Reforma- 
tion, which  crushed  the  independence  of  the  Church  courts.  It  could  not  be 
achieved  by  a  .single  clause  in  the  Statute  of  Westminster  the  Second. 

Jenks,  "Edward  I:  The  English  Justinian,"  1  Anglo-Am.  Legal  Essays, 
151-152. 


318  TORTS   THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

As  is  well  known,  the  Action  on  the  Case  was  stretched  to  cover  a 
large  number  of  oft'ences.  It  thus,  in  common  speech,  became  the  par- 
ent of  many  special  actions ;  though  these  differed  from  the  older  ac- 
tions in  this  important  point,  that,  as  they  were  all  commenced  by  the 
same  writ,  the  plaintiff'  could  not,  even  before  the  abolition  of  forms 
of  action,  be  non-suited  for  confusing  one  with  the  other.  Thus  we 
get  the  so-called  "actions"  of  Trover,  Nuisance,  Assumpsit,  Malicious 
Prosecution,  Seduction,  Defamation,  and  Deceit ;  some  of  which  (e.  g. 
Nuisance,  ]\Ialicious  Prosecution,  and  Deceit)  have  to  be  rather  care- 
fully distinguished  from  older  remedies  for  similar  off'ences,  which 
had,  for  one  reason  or  another,  become  obsolete  or  inconven- 
ient.    *     *     * 

But  elasticity  was  of  the  essence  of  the  Action  on  the  Case ;  and,  all 
through  its  history,  that  action  has  been  made  to  serve,  very  usefully, 
as  a  general  formula  under  which  any  grievance  for  which  no  special 
definition  existed,  but  which  it  was  deemed  desirable  by  the  Courts  to 
recognize,  could  be  smuggled  in. 

Jenks,  Negligence  and  Deceit  in  the  Law  of  Torts.- ^ 


^^^ 
^ 


II.  Nuisance  20 
(A)  Nature  of  the  Tort 
L'^.'P''  (^)  The  Different  Kinds  of  Nuisance 

FINEUX  V.  HOA^NDEN. 

(Court  of  Queen's  Bench,  1599.     Cro.  Eliz.  664,  7S  Reprint.  902.) 

Action  on  the  case.  Whereas  there  had  been  a  way  within  the  City 
of  Canterbury  leading  from  St.  Peter's  street  unto  a  street  called  Rush- 
market;  and  that  all  the  inhabitants  of  the  city  had  used,  time  where- 
of, &c.  to  pass  that  way;    and  that  the  plaintiff  was  an  inhabitant 

25  Piil)iished  in  26  Law  Quarterly  Review  (1910)  162,  164, 

26  "The  explanation  of  this  threefold  meaninsr  and  application  of  the 
term  nuisance  [that  is,  nuisance  as  a  species  of  criiuinnl  offense,  nuisance  as 
a  disturbance  of  servitudes,  and  nuisance  as  the  act  of  causins:  or  allowing 
the  escape  of  deleterious  things  into  another's  land]  is  that  in  its  origin  the 
term  was  merely  a  generic  expression  meaning  wrongful  harm,  and  that 
although  it  has  now  lost  this  wide  signification  it  has  failed  to  attain  instead 
any  single  specific  application.  The  term  is  derived,  through  the  French, 
from  the  late  Latin  'uocentia.'  See  TertuU.  Apol.  cap.  40:  "Deus  inuocentiae 
magister  nocentire  judex.'  Chaucer  used  it  in  this  generic  sense:  'IleliJe  me 
for  to  weye  ageyne  the  feende.  ♦  *  *  Keepe  us  from  his  nusance.' 
(Mother  of  God,  I,  21.)  Nuisance  appears  in  the  old  Latin  pleadings  as 
"uocumentum,'  i.  e.,  harm.  The  terms  trespass  and  tort,  though  similarly 
generic  in  their  original  use,  have  been  more  successful  in  the  process  of 
specification."     Salmond,  Law  of  Torts  (2d  Ed.)  184. 

On  the  comuiun-law  remedies  for  laiisance  before  the  statute  of  Westmiusiter 
11,  see  3  Bl.  Com.  221,  and  Jeuks'  Short  Hist.  Eng.  Law,  144  (1912). 


Ch.  2)  ABSOLUTE    TORTS   OTHER   THAN   TRESPASSES  319 

there;  that  the  defendant  had  made  a  ditch  and  erected  a  pale  cross 
that  way,  whereby  he  had  lost  his  passage,  &c.  The  defendant  pleaded 
not  guilty;  and  *  *  *  [i  was  found  for  the  plaintiff;  and  now 
moved,  in  arrest  of  judgment, ^'^  by  Coke,  Attorney  General,  that  this 
action  lies  not  for  a  private  person ;  because  it  is  a  common  nuisance, 
and  is  punishable  in  a  court  leet  only,  unless  he  can  shew  some  special 
prejudice,  as  27  Hen.  8,  pi.  27,  is;  and  so  it  was  adjudged  in  this 
Court,  in  Serjeani  Bendlows  v.  Kemp,  that  he  might  maintain  an  ac- 
tion upon  some  special  prejudice.  And  at  St.  Alban's  Term,  in  Wil- 
liam V.  Johns,  it  was  adjudged,  that  where  a  chapel  was  within  a 
manor,  and  the  parson  of  the  adjoining  church  used  to  read  divine 
service  every  Sunday,  for  the  lord  and  his  tenants  in  the  said  chapel ; 
and  for  that  the  parson  had  failed  therein,  the  lord  brought  an  action 
upon  the  case;  and  adjudged  that  it  lay  not;  for  so  every  one  of  the 
tenants  might  bring  the  like  action,  which  would  be  inconvenient,  that 
he  should  be  hable  to  all  their  actions ;  but  he  ought  to  be  punished  by 
the  Ordinary  in  this  case.  But,  peradventure,  where  there  is  not  any 
other  remedy  to  be  had  than  by  action,  there  every  one  may  have  his 
action  who  is  grieved.  And  therefore,  in  Westbury  v.  Powel,  where 
the  inhabitants  of  Southwark  had  a  common  watering  place,  and  the 
defendant  had  stopped  it,  and  the  plaintiff',  being  an  inhabitant  there, 
brought  his  action  upon  the  case,  it  was  adjudged  maintainable.  But 
it  is  here  punishable  in  the  leet.  Wherefore,  &c. — And  of  that  opinion 
were  Popham,  Gawdy.  and  Fenner,  that  without  a  special  grief 
shewn  by  the  plaintiff,  the  action  lies  not. — But  Clench  e  contra ;  for 
the  stopping  of  itself  is  a  special  prejudice  to  the  plaintiff,  that  he  can- 
not go  that  way.  Wherefore  it  is  reason  he  should  maintain  the  ac- 
tion.-^    Sed  adjournatur. 

27  A  part  of  the  ease,  on  a  question  of  venue,  is  omitted.  Tlie  statement 
is  sliglitly  abridged. 

2  8  On  the  reason  for  the  rule,  see  Coke,  First  Institute,  56a:  "For  if  the 
way  be  a  common  way,  if  any  man  be  disturbed  to  goe  that  way,  or  if  a 
ditch  be  made  overthwart  the  way  so  as  he  cannot  goe,  yet  shall  he  not  have 
an  action  upon  liis  case;  and  this  the  law  provided  for  avoyding  of  mul- 
tiplicity of  suites,  for  if  any  one  man  might  have  an  action,  all  men  might 
have  the  like.  But  the  law  for  this  common  nuisance  hath  provided  an  apt 
remedy,  and  that  is  by  presentment  in  the  leete  or  in  the  torne,  unlesse 
any  man  hath  a  particular  damage." 

See  also  Professor  Jeremiah  Smith's  remark  in  15  Columbia  r>aw  Review. 
2  (1915) :  "It  is  now  generally  admitted  that  no  private  action  can  be  main- 
tained at  common  law,  unless  the  plaintiff  has  sustained  actual  damage; 
meaning  damage  which  involves  appreciable  pecuniary  loss  to  him  individu- 
ally. The  controversy  is  whether  tJiis  goes  far  enough ;  or  whether  the  law 
ought  to  further  insist  upon  certain  particular  kinds  of  actual  damage  (upon 
certain  exceptional  classes  of  actual  damage).  Those  who  advocate  the  more 
stringent  rule  contend  that,  in  the  absence  of  these  requirements,  there  is  great 
danger  of  such  a  multiplicity  of  suits  as  would  constitute  an  intolerable  evil. 
The  apprehension  of  such  a  result  has  exerted  much  influence  u])on  courts: 
sometimes  inducing  a  denial  of  recovery  to  a  plaintiff  who  has  suffered  very 
substantial  damage,  but  whose  damage  does  not  fall  within  certain  excep- 
tional classes." 


320  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

FOWLER  V.  SANDERS. 

(Court  of  King's  Bench,  1617.    Cro.  Jac.  446,  79  Reprint,  3S2.) 

Action  upon  the  case,  for  laying  in  the  highway  in  Coggeshall,  lead- 
ing from  Coggeshall  to  Braintree,  divers  loads  of  logs,  whereby  they 
much  straitened  the  highway;  so  as  the  plaintiff,  upon  the  evening 
of  such  a  day,  riding  on  the  said  way ;  his  horse  stumbled  upon  those 
blocks,  and  much  hurt  him ;    for  which,  &c. 

The  defendant  confesses  it  to  be  a  highway;  but  he  saith,  that  the 
town  of  Coggeshall  is  an  ancient  vill,  wherein  all  the  inhabitants  there, 
having  ancient  houses,  used  time  whereof,  &c.,  to  lay  logs  in  waste 
places  of  the  said  way  before  their  doors  for  their  fuel,  leaving  suffi- 
cient passage  for  chariots,  horsemen,  and  footmen;  and  that  he  was 
seised  in  fee  of  an  ancient  house,  and  laid  logs  for  his  fuel  in  the  waste 
places  of  the  highway,  leaving  sufficient  for  passage  of  chariots,  horse- 
men, and  footmen,  &c.,  and  the  plaintiff  riding  by  the  highway  impro- 
vide  turned  his  horse  upon  the  blocks  and  fell,  &c. 

Whereupon  the  plaintiff  demurred :  and  without  much  argument  it 
was  adjudged — • 

First,  that  the  action  well  lay  for  the  plaintiff;  because  he  having 
special  damage  had  cause  to  bring  that  action,  although  the  nuisance 
be  a  public  nuisance.  27  Hen.  8,  pi.  27.  5  Co.  "JZ,  a.  Williams' 
case.^^ 

Secondly,  that  the  prescription  to  make  a  nuisance  is  not  good ;  for 
it  is  against  law  to  prescribe  in  such  manner. 

Thirdly,  this  prescription  for  the  inhabitants  is  not  good.  Where- 
fore it  was  adjudged  accordingly. 

2  9  Y.  B.  27  Hen.  viii,  27,  pi.  10.  Action  on  the  case  for  stopping  a  highway 
whereby  the  plaintiff  was  unable  to  reach  his  close.  Fitz  Herbert:  "I  fully 
agree  that  every  nuisance  clone  in  the  King's  highway  is  punishable  in  the 
Leet,  and  not  by  action  unless  it  be  where  a  man  has  a  greater  hurt,  or 
annoyance,  than  anyone  has,  and  there  he  who  has  greater  inconvenience 
or  hurt,  can  have  an  action  to  recover  his  damages  which  he  has  by  reason 
of  his  special  hurt.  For  example,  if  one  digs  a  ditch  across  the  highway 
and  I  come  riding  along  the  way  in  the  night  and  I  and  my  horse  are  thrown 
into  the  ditch  so  that  I  am  greatly  damaged  and  inconvenienced  therein,  I 
shall  have  an  action  in  this  case  against  him  who  made  this  ditch  across 
the  way  because  I  am  more  damaged  thereby  than  anyone  else." 

The  light  to  a  private  action  when  the  plaintiff,  without  fault  on  his 
part,  has  suffered  damage  through  i^hysical  contact  with  the  unlawful  ob- 
.structiou,  appears  to  have  been  umiuestioned  since  the  days  of  the  Year 
Book.s,  "altliough,  if  such  questions  wore  to  arise  now  for  the  first  time, 
they  might  perhaps,  be  disputed  by  some  courts."  See  Professor  Jeremiah 
Smith's  article  on  "Private  Action  for  Obstruction  to  Public  Eight  of  Pas- 
sage," 15  Columbia  Law  Rev.  147  (1915). 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  321 

HART  V.  BASSET. 

(Court  of  King's  Bench,  16S2.    T.  Jones,  156,  84  Reprint,  1194.) 

The  plaintiff  declared  that  whereas  he  had  the  tithes  of  the  parish 
of  B.  for  such  a  year,  and  was  possessed  of  a  barn  into  which  intende- 
bat  portare  &  ponere  the  tithes,  and  that  the  alta  via  Regia  in  B.  was 
the  direct  way  for  the  carrying  of  the  tithes  to  tlie  barn.  The  defend- 
ant had  obstructed  and  stopped  up  the  said  way  by  a  ditch  and  gate 
erected  ex  transverso  vise,  whereby  he  could  not  carry  his  tithes  by 
the  said  way,  but  was  forced  to  carry  them  by  a  longer  and  more  dif- 
ficult way.  Upon  non  cul'  verdict  was  given  for  the  plaintiff',  and 
£5.  damages.  In  arrest  of  judgment  it  was  moved,  that  this  way  be- 
ing a  high  way  (as  was  alledged  by  the  plaintiff  himself)  the  obstruc- 
tion was  a  common  nusance.  And  this  damage  is  not  such  for  which 
an  action  will  lie,  for  then  every  one  who  had  occasion  to  go  this  way 
might  have  his  action,  which  the  law  will  not  suft'er  for  the  multiplic- 
ity. And  \\'illiams's  case,  1  Inst.  59,  was  cited  for  it.  But  resolved 
by  the  whole  Court  that  the  action  lay.  And  it  was  said  that  the  com- 
mon rule,  that  no  one  shall  have  an  action  for  that  which  every  one 
suffers,  ought  not  to  be  taken  too  largely.^**  But  in  this  case  the 
plaintiff'  had  particular  damage,  for  the  labour  and  pains  he  was  forced 
to  take  with  his  cattle  and  servants,  by  reason  of  this  obstruction,  may 
well  be  of  more  value  than  the  loss  of  a  horse,  or  such  damage  as  is 
allowed  to  maintain  an  action  in  such  a  case.  Judgment  was  given  for 
the  plaintiff.^ ^ 

30  In  support  of  the  plaintiff's  right  to  recover  see  also  Maynell  v.  Salt- 
marsh  (166.5)  1  Keb.  847;  Jeveson  v.  Moor  (1697)  12  :\Iod.  262;  Chicester 
V.  Lethbridge  (1738)  Willes,  71 ;  Rose  v.  Miles  (1815)  4  M.  &  S.  101 ;  Greaslj^ 
V.  Codling  (1824)  2  Ring.  263. 

31  Compare  Burrows  v.  Pixley  (1792)  1  Root  (Conn.)  362,  1  Am.  Dec.  56: 
(P.  declared  that  D.  had  erected  a  dam  across  a  navigable  river  below  P.'s 
house,  by  which  the  navigation  of  the  river  was  effectually  obstructed,  "and 
showed  "that  the  river  had  been  in  use  for  a  long  time  by  him  and  others 
for  the  transportation  of  produce,  and  that  the  obstniction  was  particularly 
detrimental  to  him,  because  he  had  for  many  years  owned  a  shipj-ard,  where 
he  carried  on  the  business  of  shipbuilding,  which  was  made  profitable  to 
him  because  of  the  navigableness  of  said  river.'") 

Hughes  V.  Heiser  (1808)  1  Bin.  (Pa.)  463,  2  Am.  Dec.  459:  (P.  declared  that 
he  had  procured  a  large  quantity  of  boards  and  timber  and  made  them  into 
rafts  to  bring  down  the  Big  Schujikill  river,  which  was  a  public  highway 
for  the  passage  of  rafts,  that  he  seized  the  opportunity  of  a  flood  and  came 
down  as  far  as  a  dam  unlawfully  erected  by  D.,  and  was  there  stopped  by 
this  obstruction.) 

And  see  29  Cyc.  1213,  notes  65  and  66 ;  37  Cent.  Dig.  "Nuisance,"  §§  164- 
169;  15  Dec.  Dig.  "Nuisance,"  §  72;  and  Judge  Smith's  article  on  "Private 
Action  for  Obstruction  of  Public  Right  of  Passage,"  15  Columbia  Law  Rev. 
1-23,  142-165  (1915). 

Hepb.Tobts — 21 


322  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

WILLARD  V.  CITY  OF  CAMBRIDGE. 
(Supreme  Judicial   Court  of  Massachusetts,   1862.     3  Allen,   574.) 

Tort.  The  declaration  alleged,  in  substance,  that  the  city  of  Cam- 
bridge raised  the  draw  and  took  up  the  planks  of  a  drawbridge,  which 
formed  a  part  of  a  public  highway  which  they  were  bound  to  keep  in 
repair,  and  obstructed  the  travel  over  the  same  for  sixteen  days, 
whereby  the  plaintiff,  who  was  a  dealer  in  lumber,  wood  and  coal  at 
a  wharf  adjacent  to  the  bridge,  was  injured  in  his  business,  and  his 
customers  were  unable  to  come  to  his  wharf,  and  he  lost  the  sale  of 
lumber,  wood  and  coal,  and  was  subjected  to  increased  trouble  and 
expense  in  delivering  what  he  had  already  sold  and  promised  to  de- 
liver, and  in  getting  in  his  crops,  and  his  houses  occupied  by  tenants 
were  rendered  less  desirable,  and  he  was  obliged  to  abate  from  his 
rents  in  order  to  keep  his  tenants.  The  defendants  filed  a  demurrer, 
assigning  for  cause  that  no  legal  cause  of  action  was  set  forth ;  and 
the  case  was  reserved,  by  Dewey,  J.,  for  the  determination  of  the 
whole  court. 

BiGELOw,  C.  J.  We  cannot  distinguish  this  case  from  those  in 
which  it  has  been  determined  by  this  court  that  no  action  at  law  can  be 
maintained  to  recover  damages  for  the  obstruction  of  a  highway,  un- 
less a  party  can  prove  that  he  has  sustained  some  special  and  peculiar 
damage  thereby,  different  in  kind,  and  not  merely  in  degree,  from  that 
which  is  occasioned  to  other  persons  by  the  alleged  nuisance. ^^ 

No  doubt  the  annoyance  and  injury  to  the  plaintiff  by  the  acts  al- 
leged in  the  declaration  were  much  greater  in  amount  than  those  which 
were  caused  to  any  other  person  having  occasion  to  use  the  same  high- 
way. But  it  was  a  similar  sort  or  species  of  damage.  His  near  prox- 
imity to  the  bridge  and  the  nature  of  the  business  in  which  he  was  en- 
gaged did  not  change  the  kind  of  damage  to  which  he  was  subjected, 

32  The  Chief  Justice  here  referred  to  Quincy  Canal  v.  Newcomb  (1843)  7 
Mete.  (Mass.)  276,  39  Am.  Dec.  778;  Brainard  v.  Coiuiecticut  River  R.  (1851) 
7  Cush.  (Mass.)  511;  Blood  v.  Nashua  &  Lowell  R.  (1854)  2  Gray  (Mass.) 
140,  61  Am.  Dec.  444;  Brightman  v.  Fairhaven  (18.16)  7  Gray  (Mass.)  271; 
Harvard  Collose  v.  Stearns  (1860)  15  Gray  (Mass.)  1;  Hartshorn  v.  Inhab- 
itants of  South  Reading  (1862)  3  Allen  (Mass.)  504. 

See  also,  as  bearing  on  the  same  doctrine,  Smith  v.  Boston  (18.51)  7  Cush. 
(Mass.)  254;  Blackwell  v.  Old  Colony  R.  (1877)  122  Mass.  1;  Stanwood  v. 
Maiden  (1892)  157  Mass.  17,  31  N.  E.  702,  16  L.  R.  A.  591 ;  Nichols  v.  Rich- 
mond (1894)  162  Mass.  170,  38  N.  E.  501;  Robinson  v.  Brown  (1902)  182 
Mass.  266,  65  N.  E.  377;  Crook  v.  Pitcher  (1884)  61  Md.  510;  Painter  v. 
Gunderson  (1913)  123  Minn.  .323,  143  N.  W.  910. 

Compare  the  remark  of  Brown,  D.  J.,  in  Piscataqua  Nav.  Co.  v.  New  York, 
etc.,  R.  Co.  (D.  C.  1S9S)  89  Fed.  362,  363:  "In  each  of  these  cases,  there 
was  only  detention,  and  not  physical  injury,  to  person  or  goods.  In  each  of 
these  cases,  as  in  the  present  case,  the  plaintiffs  were  in  the  actual  use  of 
the  way,  and  were  subjected  to  actual  obstruction,  and  to  actual  loss  addi- 
tional to  that  which,  by  presumption  of  law,  attaches  to  each  moinl)or  of  the 
public.  This  actual  loss,  proved  as  a  matter  of  fact,  is  the  gist  of  the 
private  action." 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  323 

but  only  increased  the  extent  of  the  injury.^^  Every  traveller  having 
occasion  to  pass  the  bridge  or  to  transport  goods  or  merchandise  across 
it  incurred  in  some  degree  additional  trouble  and  expense,  as  well  as 
loss  of  time,  by  being  compelled  to  seek  another  and  more  circuitous 
route.  These  elements  of  damage  are  the  same  as  those  claimed  by  the 
plaintiff,  and  are  not  special  or  peculiar  to  him  so  as  to  furnish  a  good 
cause  of  action.  The  same  is  true  of  the  alleged  loss  of  rents.  Every 
person  owning  property  on  the  highway  leading  to  the  bridge,  near  to 
or  remote  from  the  place  of  the  alleged  obstruction,  sustained  a  similar 
injury.  Smith  v.  Boston,  7  Cush.  257.  The  case  of  Stetson  v.  Faxon, 
19  Pick.  147,  31  Am.  Dec.  123,  is  distinguishable  from  the  case  at  bar 
by  the  leading  fact  that  there  the  nuisance  causing  the  obstruction  to 
the  plaintiff's  premises  was  erected  directly  against  and  abutting  on  the 
estate  of  the  plaintiff,  and  diverted  travel  therefrom,  and  it  did  not 
appear  that  any  other  person  sustained  a  similar  injury.^* 
Demurrer  sustained. 

33  Compare  Chancellor  Walworth's  dictum  in  Lansing  v.  Smith  (1S29)  4 
Wend.  (N.  Y.)  25,  21  Am.  Dec.  S9:  "If  the  defendants  had  erected  these  tem- 
porary bridges,  and  were  not  authorized  to  do  so,  they  might  be  indicted  for 
a  common  nuisance.  But  the  bridges  might  also  be  more  injurious  to  some 
persons  than  to  others.  In  such  a  case,  if  a  person  has  sustained  actual  dam- 
age by  the  erection  of  the  nuisance,  whether  direct  or  consequential,  I  am 
not  prepared  to  say  he  cannot  maintain  an  action  against  the  wrongdoer. 
If  he  sustains  no  damage  but  that  which  the  law  presumes  every  citizen  to 
sustain,  because  it  is  a  common  nuisance,  no  action  will  lie.  But  the  opinion 
I  have  formed  on  this  point  is  that  every  individual  who  receives  actual 
damage  from  a  nuisance  may  maintain  a  private  suit  for  his  own  injury,  al- 
though there  may  be  many  others  in  the  same  situation.  The  punishment 
of  the  wrong-doer  by  a  criminal  prosecution  will  not  compensate  for  the 
individual  injury ;  and  a  party  who  has  done  a  criminal  act  cannot  defend 
himself  against  a  private  suit  by  alleging  that  he  has  injured  many  others 
in  the  same  way,  and  that  he  will  be  ruined  if  he  is  compelled  to  make 
compensation  to  all." 

34  Stetson  V.  Faxon  (1837)  19  Pick.  (Mass.)  147,  31  Am.  Dec.  123:  A  ware- 
house erected  by  D.  projected  several  feet  into  a  public  street,  and  beyond 
P.'s  warehouse,  standing  on  the  street  line ;  because  of  this  P.'s  warehouse 
was  obscured  from  the  view  of  passers-by,  and  travel  was  diverted  so  that 
P.'s  warehouse  became  less  eligible  as  a  place  of  business,  his  tenants  left, 
and  he  was  obliged  to  reduce  his  rents.  Walker  v.  Shepardson  (1853)  2  Wis. 
384,  60  Am.  Dec.  423:  D.  drives  piles  into  the  bed  of  a  navigable  river  in 
front  of  P.'s  property  on  the  river.  Brayton  v.  City  of  Fall  River  (1S73)  113 
Mass.  218,  18  Am.  Rep.  470:  A  city  constructed  a  system  of  sewers  which 
carried  the  dirt  of  unpaved  streets  into  a  tidal  creek,  and  obstructed  its 
navigation.  "If  the  effect  of  the  defendant's  acts  had  been  merely  to  create 
a  bar  across  the  mouth  of  the  creek,  so  as  to  destroy  or  injure  its  navigabil- 
ity, the  plaintiff  could  not  maintain  an  action  because  it  was  thereby  ren- 
dered more  difficult  and  expensive  to  reach  his  wharf,  or  because  his  wharf 
was  rendered  less  valuable.  Those  would  be  injuries  of  the  same  kind 
sustained  by  all  other  persons  who  have  occasion  to  use  the  creek,  or  who 
owned  land  bordering  upon  it.  But  in  this  case  the  evidence  tended  to  show 
that  the  effect  of  the  sewers  had  l)e(m  to  fill  up  the  creek  directly  in  fr<Mit  of 
and  adjoining  the  plaintiff's  wharf,  so  that  his  vessels  which  he  was  accus- 
tomed to  employ  to  bring  grain  to  his  wharf  and  elevator  could  not  lie  at 
the  wharf   on  account  of  the  diminished  depth  of  water."     Per  INIorton,  J. 

Compare  the  remarks  of  Winslow,  J.,  in  Tilly  v.  Mitchell  &  Lewis  Co. 
(1901)  121  Wis.  1,  98  N.  W.  969,  105  Am.  St.  Rep.  1007:  "A  person  whose  lot 
abuts  upon  the  particular  piece  of  street  which  is  unlawfully  closed  or  ob- 


324  TORTS  THROUGH  ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

WILKES  V.  HUNGERFORD  IMARKET  CO. 

(Court  of  Common  Pleas,  1835.     2  Bing.  N.  C.  281,  132  Reprint,  110.) 

Action  on  the  case  for  the  obstruction  of  a  right  of  way.  The  decla- 
ration alleged  that  at  the  time  of  the  committing  the  grievance  by  the 
defendants  there  was  a  thoroughfare  leading  from  the  Adelphi  along 
divers  streets  and  courts  into  Craven  Court,  and  thence  along  other 
streets  and  courts  into  Whitehall,  and  thence  back  again,  for  all  per- 
sons at  all  times ;  that  the  plaintiff  was  possessed  of  a  messuage  ad- 
joining the  said  thoroughfare,  in  which  he  carried  on  the  business  of 
a  bookseller,  and  made  great  gains  by  the  sale  of  books  to  persons 
passing  along  the  thoroughfare ;  that  the  defendants  wrongfully  kept 
the  thoroughfare  closed  an  unreasonable  length  of  time,  and  during 
that  time  thereby  prevented  the  plaintiff  from  carrying  on  his  business 
in  as  beneficial  a  manner  as  he  otherwise  wovtld  have  done,  whereby 
the  plaintiff'  was  deprived  of  divers  gains  which  would  otherwise  have 
accrued  to  him.  The  jury  have  found  that  the  defendants  did  con- 
tinue the  obstruction  to  the  plaintiff's  right  of  way  an  unnecessary 
length  of  time.^^ 

TiNDAL,  C.  J.  *  *  *  The  next  question  is,  whether  this  is  such 
a  peculiar  and  private  damage  to  the  plaintiff  beyond  that  suffered  by 
the  rest  of  his  Alajesty's  subjects,  as  to  enable  him  to  sustain  an  action 
against  the  defendants.  And  I  think,  in  conformity  with  the  greater 
number  of  decisions,  that  it  was.  The  injury  to  the  subjects  in  gen- 
eral, is,  that  they  cannot  walk  in  the  same  track  as  before ;  and  for 
that  cause  alone  an  action  on  the  case  would  not  lie:  but  the  injury 
to  the  plaintiff  is,  the  loss  of  a  trade,  which  but  for  this  obstruction 
to  the  general  right  of  way  he  would  have  enjoyed;   and  the  law  has 

structed  is  universally  held  to  be  specially  and  peculiarly  injured,  thougti 
he  may  have  other  access  to  his  lot ;  but  many  of  the  cases  draw  an  arbi- 
trary line  at  this  point,  and  maintain  that  when  the  plaintiff's  lot  fronts 
upon  another  part  of  the  street  no  such  injury  is  shown.  Certainly  the 
distinction  is  illogical.  The  man  whose  lot  fronts  upon  the  next  block  may 
be  fully  as  deeply  injured  in  the  decreased  value,  rentability,  and  desirabil- 
ity of  his  lot  as  the  man  whose  lot  fronts  on  the  block  which  is  closed. 
One  may  suffer  as  great  damage  in  his  estate  as  the  other.  True,  there  may 
be  many  such  individual  owners,  but  that  cannot  affect  individual  rights. 
Tliere  may  be  20  or  there  may  be  50  of  them,  but,  if  each  has  suffered  great 
damage  to  his  estate  by  the  unlawful  closing  of  a  street,  why  shall  not  each 
have  his  action?  Neither  20  men  nor  HO  men  constitute  the  general  ])ublic. 
The  general  public  is  composed  of  the  groat  mass  of  individuals  who  own  no 
property  in  the  vicinity,  and  who  may  wish  to  pass  over  the  street  or  not, 
and  who,  if  they  do,  simply  suffer  the  trifling  inconvenience  of  being  obliged 
to  make  a  circuitous  trip.  The  man  who  owns  a  lot  in  the  next  block,  and 
whose  lot  has  lost  a  great  part  of  its  value  by  reason  of  the  closing  of  the 
street,  manifestly  suffers  some  injury  different  in  its  nature  from  the  mere 
inconvenience  suffered  by  the  general  public." 

See  also  15  Columbia  Law  Review,  1.54-157  (1915). 

35  This  statement,  slightly  abridged  from  Chief  Justice  Tindal's  opinion,  is 
substituted  for  the  reporter's  stateinout.  The  arguments,  a  portion  of  the 
opinion  by  Tindal,  C.  J.,  and  the  opinions  of  Park,  Gaselee,  and  Posanquet, 
J  J.,  are  omitted. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  325 

said,  from  the  Year  Books  downwards,  that  if  a  party  has  sustained 
any  peculiar  injury,  beyond  that  which  affects  the  pubUc  at  large,  an 
action  will  lie  for  redress.  Is  the  injury  in  the  present  case  of  that 
character  or  not?  The  plaintiff,  in  addition  to  a  right  of  way  which 
he  enjoyed  in  common  with  others,  had  a  shop  on  the  roadside,  the 
business  of  which  was  supported  by  those  who  passed :  all  who  passed 
had  the  right  of  way;  but  all  had  not  shops;  that  is  the  observation 
made  in  Baker  v.  ^loore,  cited  in  Ivison  v.  jMoore,  1  Ld.  Raymd.  486, 
which  was  an  action  for  stopping  a  w^ay  and  preventing  the  carriage  of 
coals.  In  Baker  v.  Moore  the  refusal  of  the  plaintiff's  tenants  to  re- 
main on  the  premises  was  considered  a  damage  sufficiently  peculiar 
and  private  to  entitle  the  plaintiff  to  sue  the  defendant  for  having 
erected  a  wall  across  a  common  way  used  by  the  tenants.  Indeed,  for 
the  most  part  the  only  question  is,  whether  the  injury  to  the  individual 
is  such  as  to  be  the  direct,  necessary,  natural,  and  immediate  conse- 
quence of  the  wrongful  act.  Hubert  v.  Groves,  1  Esp.  148,  has  been 
relied  on  on  the  part  of  the  defendants :  but  the  gravamen  there  was 
one  which  applied  equally  to  all  his  Majesty's  subjects,  namely,  that 
they  were  obliged  to  go  in  a  more  circuitous  track,  and  not  one  which 
affected  the  plaintiff  above  others :  unless  that  be  a  sufficient  distinc- 
tion between  Hubert  v.  Groves  and  the  present  case,^*'  I  must  yield  to 
the  greater  authority  of  the  other  decisions. 
Discharged  as  to  entering  a  nonsuit. 

36  The  case  of  Wilkes  v.  Hungerford  Market  Co.  "is  commonly  considered 
as  having  been  overruled  by  the  House  of  Lords  in  Ricket  v.  Metropolitan 
Rly.  Co.  ri867)  2  H.  L.  175.  It  is  to  be  remarked,  however,  that  there  is 
nothing  in  the  decision  of  the  House  of  Lords  in  this  case  which  is  incon- 
sistent with  the  Hungerford  ^larket  Case,  and  that  the  observntions  made 
upon  the  latter  case  are  dicta  unnecessary  to  the  matter  in  hand.  Rickefs 
Case  decides  merely  that  on  the  true  interpretation  of  the  Lands  Clauses 
Act  and  the  Railways  Clauses  Act  claims  to  compensation  under  these  acts 
are  limited  to  damage  done  to  the  property  affected  and  do  not  extend  to 
damage  done  to  the  goodwill  of  a  business.  It  is  submitted,  therefore, 
that  the  question  still  remains  open,  and  that  it  is  worthy  of  serious  con- 
sideration whether  damage  done  to  the  plaintiff  in  his  trade  by  the  illegal 
obstruction  of  a  highway  is  not  an  actionable  wrong."  Salmond,  Torts  (2d 
Ld.)  2S0  (1910).  And  see  Judge  Smith's  remarks  on  these  cases  in  15 
Columbia  Law  Rev.  163,  KM  (1915). 

Compare  Duy  v.  Alabama  Western  R.  Co.  (1911)  175  Ala.  162,  57  South. 
724,  Ann.  Cas.  1914C,  1119,  and  note:  (P.  claims  damages  because  D.'s 
freight  depot,  obstructing  a  public  street  in  a  block  different  from  the  block 
in  which  P.'s  property  was  situated,  has  rendered  P.'s  property  "less  acces- 
sible to  customers  and  intending  customers,  and  the  trade  of  the  general 
public  has  been  deflected  or  diminished.") 


326  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

SOLTAU  V.  DE  HELD. 

(High  Court  of  Chancery,  1851.     2  Sim.  [N.  S.]  133,  61  Reprint,  291.) 

The  plaintiff  sought  an  injunction  to  restrain  the  ringing  of  the  bells 
of  a  church  near  the  plaintiff's  house. 

The  bill  alleged,  among  other  things,  that  when  a  peal  of  the  church 
bells  was  rung,  the  noise  was  so  great  that  it  was  impossible  for  the 
plaintiff,  or  the  members  of  his  family,  to  read,  write  or  converse  in 
his  house ;  that  the  ringing  of  the  chapel  bell  and  church  bells  was 
an  intolerable  nuisance  to  the  plaintiff,  and,  if  the  said  bell  or  bells  was 
or  were  permitted  to  be  rung  in  the  manner  in  which  the  same  were 
so  rung  as  aforesaid,  it  would  be  impossible  for  the  plaintiff  to  reside 
any  longer  in  his  house ;  that,  in  consequence  of  the  before-mentioned 
grievance,  the  plaintiff"  applied  to  the  defendant  to  desist  from  the 
ringing  the  said  bells  or  any  of  them,  so  as  to  occasion  any  annoyance 
to  the  plaintiff,  and,  the  defendant  having  refused  to  comply  with  that 
application,  the  plaintiff,  in  June  1851,  commenced  an  action  against 
the  defendant  to  recover  damages  for  the  nuisance  committed  to  him 
by  means  or  in  consequence  of  the  before-mentioned  ringing  of  the 
said  bell  or  bells;  that  the  action  was  tried  on  the  13th  of  August, 
1851,  when  a  verdict  was  found  for  the  plaintiff',  with  forty  shillings 
damages  and  costs;  that,  on  the  lOfh  November,  1851,  judgment  in 
the  action  was  signed,  and  it  remained  unreversed. 

The  defendants  put  in  a  general  demurrer  to  the  bill. 

The  Vice-Chancellor  (Sir  R.  T.  Kindersley).  *  *  *  37 
The  demurrer  is  a  general  demurrer  for  want  of  equity ;  and,  of 
course,  by  that  demurrer,  the  defendant  undertakes  to  shew  that,  upon 
the  statements  contained  in  the  bill,  the  plaintiff  would  not  be  entitled 
to  any  relief  at  the  hearing  of  the  cause. 

The  first  ground  of  demurrer  to  this  bill  is  that  the  nuisance  com- 
plained of  is  a  public  nuisance;  and,  therefore,  the  suit  should  have 
been  instituted  by  the  Attorney-General ;  and  that  it  is  not  competent 
to  the  plaintiff  to  file  a  bill  respecting  jt.     *     *     *  ss 

37  The  statement  of  the  case  is  abridged  ;  only  so  much  of  the  opinion  is 
given  as  relates  to  the  one  point. 

8  8  In  an  omitted  portion  of  his  opinion,  the  Vice  Chancellor  suggested 
this  as  the  test  of  a  public  nuisance:  "I  conceive  that,  to  constitute  a  pub- 
lic nuisance,  the  thing  must  be  such  as,  in  its  nature  or  its  consequences,  is 
a  nuisance — an  injury  or  a  damage,  to  all  persons  who  come  within  the 
sphere  of  its  operation,  though  it  may  be  so  in  a  greater  degree  to  some  than 
it  is  to  others.  For  example,  take  the  case  of  the  operations  of  a  manu- 
factory, in  the  course  of  which  operations  volumes  of  noxious  smol^e,  or  of 
poisonous  effluvia,  are  emitted.  To  all  persons  who  are  at  all  within  the 
roach  of  those  operations  it  is  more  or  less  objectionable,  more  or  Irss  a 
nui.sauce  in  the  popular  sense  of  the  term.  It  is  true  that  to  those  who  are 
nearer  to  it  it  may  be  a  greater  nuisance,  a  greater  inconvenience  tJian  it 
is  to  those  who  are  more  remote  from  it;  but,  still,  to  all  who  are  at  all 
witliin  the  reach  of  it,  it  is  more  or  less  a  nuisance  or  an  inconvenience. 
Take  another  ordinary   case,  perhaps  the  most  ordinary   case  of  a   public 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  327 

In  my  further  observations  on  this  ground  of  -demurrer,  I  will  pro- 
ceed on  the  assumption  that  it  is  a  public  nuisance;  that  is  to  say, 
that  the  defendant  is  right  in  his  contention  that  it  is  a  public  nui- 
sance, and  let  us  see  what  the  consequence  will  be  if  it  be  so.  Now, 
in  the  case  of  a  public  nuisance,  the  remedy  at  law  is  indictment ;  the 
remedy  in  equity  is  information  at  the  suit  of  the  Attorney-General. 
In  the  case  of  private  nuisance  the  remedy  at  law  is  action ;  the  rem- 
edy in  equity  is  bill.  And  this  is  the  distinction  which  is  pointed  out 
in  those  passages  cited  by  Mr.  Campbell  from  the  third  volume  of 
Blackstone's  Commentaries  and  from  Alitford's  Treatise  on  Pleading. 
But  it  is  clear  that  that  which  is  a  public  nuisance  may  be  also  a  pri- 
vate nuisance  to  a  particular  individual,  by  inflicting  on  him  some  spe- 
cial or  particular  damage;  and,  if  it  be  both,  that  is,  if  it  be  in  its 
nature  a  public  nuisance,  and,  at  the  same  time,  does  inflict  on  a  par- 
ticular individual  a  special  and  particular  damage,  may  not  that  indi- 
vidual have  his  private  remedy  at  law  by  action,  or  in  equity  by  bill? 
That  is  the  question  which  is  to  be  determined  with  respect  to  this 
ground  of  demurrer.  The  defendant's  counsel  insist  that  he  cannot; 
and  several  cases  were  cited  in  support  of  that  proposition.  But,  on 
referring  to  those  cases,  it  appears  to  me  that  they  do  not  support 
that  proposition.     *     *     * 

Several  cases  have  been  referred  to  on  the  part  of  the  plaintiflf ; 
such  as  Spencer  v.  The  London  and  Birmingham  Railway  Company, 
8  Sim.  193,  Sampson  v.  Smith.  8  Sim.  272,  Haines  v.  Taylor,  2  Beav. 
75,  and  Walter  v.  Selfe,  15  Jurist,  416,  in  all  of  which  it  was  held  that, 

nuisance,  the  stopping  of  the  king's  highwas';  that  is  a  nuisance  to  all  who 
may  have  occasion  to  travel  that  highway.  It  may  be  a  much  greater  nui- 
sance to  a  person  who  has  to  travel  it  every  day  of  his  life  than  it  is  to  a 
person  who  has  to  travel  it  only  once  a  year,  or  once  in  five  years ;  but 
it  is  more  or  less  a  nuisance  to  everyone  who  has  occasion  to  use  it.  If, 
however,  the  thing  complained  of  is  such  that  it  is  a  great  nuisance  to  those 
who  are  more  immediately  within  the  sphere  of  its  operations,  but  is  no 
nuisance  or  inconvenience  whatever,  or  is  even  advantageous  or  pleasurable 
to  those  who  are  more  removed  from  it,  there,  I  conceive,  it  does  not  come 
within  the  meaning  of  the  term  public  nuisance.  The  case  before  me  is  a 
case  in  point.  A  peal  of  bells  may  be,  and  no  doubt  is,  an  extreme  nuisance, 
and,  perhaps,  an  intolerable  nuisance  to  a  person  who  lives  within  a  very  few 
feet  or  yards  of  them ;  but,  to  a  person  who  lives  at  a  distance  from  them, 
although  he  is  within  the  reach  of  their  sound,  so  far  from  its  being  a 
nuisance  or  an  inconvenience,  it  may  be  a  positive  pleasure ;  for  I  cannot 
assent  to  the  proposition  of  the  plaintiff's  counsel  that,  in  all  circumstances 
and  under  all  conditions,  the  sound  of  bells  must  be  a  nuisance.  And  it 
is  rather  curious  that  one  of  the  witnesses  who  was  examined  on  the  trial 
on  the  part  of  the  plaintiff,  and  who  deposed  strongly  to  the  bells  being  an 
intolerable  nuisance  when  he  was  in  Mr.  Soltau's  house,  says:  "But  where 
I  live  at  Clapham,  which  is  about  a  furlong  from  the  bells  and  with  the  in- 
tervention of  trees,  so  far  from  their  being  a  nuisance  to  me,  they  are  a 
positive  gratification ;  and  I  confess  I  should  be  extremely  sorry  if  they 
were  done  away  with."  I  mention  that  only  by  way  of  illustrating  that,  in 
this  case,  to  some  persons  who  live  within  the  sound  of  these  bells  they  may 
be  no  nuisance  at  all;  and,  no  doubt,  are  none;  and,  therefore,  I  very 
ranch  doubt,  indeed,  my  opiinon  is,  that  the  nuisaiu-e  complained  of  in  this 
case  could  not  be  indicted  as  a  public  nuisance."    2  8im.  (N.  S.)  142-144. 


.328  TORTS  TnUOUGH  ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 

if  an  individual  sustains  a  special  and  particular  damage  from  an  act, 
he  may  have  the  interference  of  the  Court  on  a  bill,  although  the  act 
complained  of  be,  in  its  nature,  a  public  nuisance.  Two  other  cases 
were  cited :  The  Attorney-General  v.  Forbes,  2  Myl.  &  C.  123,  and 
the  Attorney-General  v.  Johnson,  2  Wills.  C.  C.  S7.  Those  cases  shew 
only  that  there  may  be  both  an  information  and  bill ;  that  is,  that  the 
Attorney-General  may  file  an  information  to  restrain  the  act  com- 
plained of  as  a  public  nuisance,  and  that  an  individual  who  sustains 
a  particular  injury  may  join  as  plaintiff  as  well  as  relator,  and  have 
the  remedy  for  himself  also  in  the  same  suit.  I  am  of  opinion,  there- 
fore, that  the  first  ground  of  demurrer  is  not  tenable.     *     *     * 


WESSON  V.  WASHBURN  IRON  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1866.     13  Allen,  95, 

90  Am.  Dec.  181.) 

Tort.  The  first  count  of  the  declaration  alleged  that  the  plaintiff 
was  owner  of  a  freehold  estate  in  a  messuage  and  dwelling-house  in 
Worcester,  contiguous  to  the  land  and  buildings  of  the  defendants, 
and  occupied  as  a  dwelling-house  for  the  plaintiff's  tenants ;  and  the 
defendants  wrongfully  kept  and  continued  certain  buildings,  called 
and  used  for  a  rolling  mill  and  foundry,  next  easterly  from  the  land 
of  the  plaintiff",  and  occupied  by  the  defendants  for  the  manufacture 
of  railroad  iron,  and  other  articles  made  from  iron  and  steel,  and  kept 
and  used  large  stationary  steam  engines,  trip-hammers,  rolling  mills, 
and  other  machinery  and  furnaces  for  the  melting  of  iron,  etc.,  by 
night  as  well  as  by  day,  and  made  large  quantities  of  railroad  iron, 
and  other  articles  made  from  iron  and  steel,  and  thereby,  and  by  the 
action  and  motion  of  the  said  engines,  mills  and  machinery,  the  ground 
and  dwelling-house  of  the  plaintiff  were  greatly  shaken  and  jarred,  so 
that  the  house  was  greatly  shaken  to  pieces  and  rendered  uncomforta- 
ble and  unfit  for  habitation  and  of  no  value. 

The  second  count  contained  similar  allegations  in  regard  to  another 
messuage  and  dwelling-house,  known  as  the  Wesson  Tavern  House, 
with  additional  averments  that  the  defendants  consumed  large  quan- 
tities of  coal,  by  means  of  which  large  quantities  of  coal-dust,  smoke 
and  ashes,  noisome  and  offensive,  rose  and  issued  from  the  defend- 
ants' buildings  and  entered  into  and  diff'used  themselves  over  and 
through  the  plaintiff's'  premises,  rendering  the  same  uncomfortable 
and  unfit  for  habitation,  and  depriving  her  of  the  gains  which  she 
otherwise  would  have  made. 

The  answer  denied  all  wrongful  acts  on  the  part  of  the  defendants, 
and  all  injury  to  the  plaintiff. 

At  the  trial  *  *  ^h  ^i^g  plaintiff  requested  the  court  to  instruct 
the  jury  that  if  her  dwelling-house  was  injured  by  jarring  and  shak- 


Ch.  2)  ABSOLUTE    TOiiTS   OTIIEK   THAN   TRESPASSES  329 

ing,  and  rendered  unfit  for  habitation  by  smoke,  cinders,  dust  and  gas 
from  the  defendants"  works,  it  was  no  defence  to  the  action  that  many 
other  houses  in  the  neighborhood  were  affected  in  a  similar  way. 
But  the  judge  decHned  so  to  rule,  and  instructed  the  jury,  in  accord- 
ance with  the  request  of  the  defendants,  that  the  plaintiff  could  not 
maintain  this  action  if  it  appeared  that  the  damage  which  the  plaintiff" 
had  sustained  in  her  estate  was  common  to  all  others  in  the  vicinity ; 
but  it  must  appear  that  she  had  sustained  some  special  damage,  differ- 
ing in  kind  and  degree  from  that  common  to  all  others  in  the  neigh- 
borhood. 

The  jury  returned  a  verdict  for  the  defendants,  and  the  plaintiff 
alleged  exceptions. 

BiGELOw,  C.  J.  *  *  *  There  can  be  no  doubt  of  the  truth  of 
the  general  principle  stated  by  the  court,  that  a  nuisance  may  exist 
which  occasions  an  injury  to  an  individual,  for  which  an  action  can- 
not be  maintained  in  his  favor,  unless  he  can  show  some  special  damage 
in  his  person  or  property,  dift'ering  in  kind  and  degree  from  that  which 
is  sustained  by  other  persons  who  are  subjected  to  inconvenience  and 
injury  from  the  same  cause.  The  difficulty  lies  in  the  application  of 
this  principle.  The  true  limit,  as  we  understand  it,  within  which  its 
operation  is  allowed,  is  to  be  found  in  the  nature  of  the  nuisance 
which  is  the  subject  of  complaint.  If  the  right  invaded  or  impaired  is 
a  common  and  public  one,  which  every  subject  of  the  state  inay  exer- 
cise and  enjoy,  such  as  the  use  of  a  highway,  or  canal,  or  public  land- 
ing place,  or  a  common  watering  place  on  a  stream  or  pond  of  water, 
in  all  such  cases  a  mere  deprivation  or  obstruction  of  the  use  which 
excludes  or  hinders  all  persons  alike  from  the  enjoyment  of  the  com- 
mon right,  and  which  does  not  cause  any  special  or  peculiar  damage 
to  any  one,  furnishes  no  valid  cause  of  action  in  favor  of  an  individ- 
ual, although  he  may  suft"er  inconvenience  or  delay  greater  in  degree 
than  others  from  the  alleged  obstruction  or  hinderance.  The  private 
injury,  in  this  class  of  cases,  is  said  to  be  merged  in  the  common  nui- 
sance and  injury  to  all  citizens,  and  the  right  is  to  be  vindicated  and 
the  wrong  punished  by  a  public  prosecution,  and  not  by  a  multiplicity 
of  separate  actions  in  favor  of  private  individuals.  Several  instances 
of  the  application  of  this  rule  are  to  be  found  in  our  own  reports. 
Stetson  v.  Faxon,  19  Pick.  147,  31  Am.  Dec.  123;  Thayer  v.  Boston, 
19  Pick.  511,  514,  31  Am.  Dec.  157;  Ouincy  Canal  v.  Newcomb,  7 
Mete.  276,  283,  39  Am.  Dec.  778;  HoTman  v.  Townsend,  13  Mete. 
297,  299 ;  Smith  v.  Boston,  7  Cush.  254 ;  Brainard  v.  Connecticut 
River  Railroad,  7  Cush.  506;  Blood  v.  Nashua  &  L.  R.  Corp.,  2  Gray, 
140,  61  Am.  Dec.  444;  Brightman  v.  Fairhaven,  7  Gray,  271; 
Harvard  College  v.  Stearns,  15  Gray,  1 ;  W'illard  v.  Cambridge,  3 
Allen,  574;  Hartshorn  v.  South  Reading,  Id.  501;  Fall  River  Iron 
Works  Co.  V.  Old  Colony  &  Fall  River  Railroad,  5  Allen,  224. 

But  it  will  be  found  that,  in  all  these  cases,  and  in  others  in  which 
the  same  principle  has  been  laid  down,  it  has  been  applied  to  that  class 


3.30  TORTS   THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

of  nuisances  which  have  caused  a  hindrance  or  obstruction  in  the  ex- 
ercise of  a  right  which  is  common  to  every  person  in  the  community, 
and  that  it  has  never  been  extended  to  cases  where  the  alleged  wrong 
is  done  to  private  property,  or  the  health  of  individuals  is  injured,  or 
their  peace  and  comfort  in  their  dwellings  is  impaired  by  the  carrying 
on  of  offensive  trades  and  occupations  which  create  noisome  smells 
or  disturbing  noises,  or  cause  other  annoyances  and  injuries  to  persons 
and  property  in  the  vicinity,  however  numerous  or  extensive  may  be 
the  instances  of  discomfort,  inconvenience  and  injury  to  persons  and 
property  thereby  occasioned.  Where  a  public  right  or  privilege  com- 
mon to  every  person  in  the  community  is  interrupted  or  interfered 
with,  a  nuisance  is  created  by  the  very  act  of  interruption  or  interfer- 
ence, which  subjects  the  party  thi^ough  whose  agency  it  is  done  to  a 
public  prosecution,  although  no  actual  injury  or  damage  may  be  there- 
by caused  to  any  one.  If,  for  example,  a  public  way  is  obstructed, 
the  existence  of  the  obstruction  is  a  nuisance,  and  punishable  as  such, 
even  if  no  inconvenience  or  delay  to  public  travel  actually  takes  place. 
It  would  not  be  necessary,  in  a  prosecution  for  such  a  nuisance,  to 
show  that  any  one  had  been  delayed  or  turned  aside.  The  offence 
would  be  complete,  although  during  the  continuance  of  the  obstruction 
no  one  had  had  occasion  to  pass  over  the  way.  The  wrong  consists 
in  doing  an  act  inconsistent  with  and  in  derogation  of  the  public  or 
common  right.  It  is  in  cases  of  this  character  that  the  law  does  not 
permit  private  actions  to  be  maintained  on  proof  merely  of  a  disturb- 
ance in  the  enjoyment  of  the  common  right,  unless  special  damage  is 
also  shown,  distinct  not  only  in  degree  but  in  kind  from  that  which 
is  done  to  the  whole  public  by  the  nuisance. 

But  there  is  another  class  of  cases  in  which  the  essence  of  the  wrong 
consists  in  an  invasion  of  private  right,  and  in  which  the  public  of- 
fence is  committed,  not  merely  by  doing  an  act  which  causes  injury, 
annoyance  and  discomfort  to  one  or  several  persons  who  may  come 
within  the  sphere  of  its  operation  or  influence,  but  by  doing  it  in  such 
place  and  in  such  manner  that  the  aggregation  of  private  injuries  be- 
comes so  great  and  extensive  as  to  constitute  a  public  annoyance  and 
inconvenience,  and  a  wrong  against  the  community,  which  may  be 
properly  the  subject  of  a  public  prosecution.  But  it  has  never  been  held, 
so  far  as  we  know,  that  in  cases  of  this  character  the  injury  to  private 
property,  or  to  the  health  and  comfort  of  individuals,  becomes  merged 
in  the  public  wrong,  so  as  to  take  away  from  the  persons  injured  the 
right  which  they  would  otherwise  have  to  maintain  actions  to  recover 
damages  which  each  may  have  sustained  in  his  person  or  estate  from 
the  wrongful  act. 

Nor  would  such  a  doctrine  be  consistent  with  sound  principle.  Car- 
ried out  practically,  it  would  deprive  persons  of  all  redress  for  injury 
to  property  or  health,  or  for  personal  annoyance  and  discomfort,  in 
all  cases  where  the  nuisance  was  so  general  and  extensive  as  to  be  a 
legitimate  subject  of  a  public  prosecution;    so  that  in  effect  a  wrong- 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  331 

doer  would  escape  all  liability  to  make  indemnity  for  private  injuries 
by  carrying  on  an  otlensive  trade  or  occupation  in  such  place  and  man- 
ner as  to  cause  injury  and  annoyance  to  a  sufficient  number  of  persons 
to  create  a  common  nuisance. 

The  real  distinction  would  seem  to  be  this :  that  when  the  wrongful 
act  is  of  itself  a  disturbance  or  obstruction  only  to  the  exercise  of  a 
common  and  public  right,  the  sole  remedy  is  by  public  prosecution, 
unless  special  damage  is  caused  to  individuals.  In  such  case  the  act 
of  itself  does  no  wrong  to  individuals  distinct  from  that  done  to  the 
whole  community.  But  when  the  alleged  nuisance  would  constitute 
a  private  wrong  by  injuring  property  or  health,  or  creating  personal 
inconvenience  and  annoyance,  for  which  an  action  might  be  main- 
tained in  favor  of  a  person  injured,  it  is  none  the  less  actionable  be- 
cause the  wrong  is  committed  in  a  manner  and  under  circumstances 
which  would  render  the  guilty  party  liable  to  indictment  for  a  common 
nuisance.  This  we  think  is  substantially  the  conclusion  to  be  derived 
from  a  careful  examination  of  the  adjudged  cases.  The  apparent  con- 
flict between  them  can  be  reconciled  on  the  ground  that  an  injury  to 
private  property,  or  to  the  health  and  comfort  of  an  individual,  is  in  its 
nature  special  and  peculiar,  and  does  not  cause  a  damage  which  can 
properly  be  said  to  be  common  or  public,  however  numerous  may  be 
the  cases  of  similar  damage  arising  from  the  same  cause.  Certainly 
multiplicity  of  actions  affords  no  good  reason  for  denying  a  person 
all  remedy  for  actual  loss  and  injury  which  he  may  sustain  in  his  per- 
son or  property  by  the  unlawful  acts  of  another,  although  it  may  be 
a  valid  ground  for  refusing  redress  to  individuals  for  a  mere  invasion 
of  a  common  and  public  right. 

The  rule  of  law  is  well  settled  and  familiar,  that  every  man  is  bound 
to  use  his  own  property  in  such  manner  as  not  to  injure  the  property 
of  another,  or  the  reasonable  and  proper  enjoyment  of  it;  and  that 
the  carrying  on  of  an  offensive  trade  or  business,  which  creates  noi- 
some smells  and  noxious  vapors,  or  causes  great  and  disturbing  noises, 
or  which  otherwise  renders  the  occupation  of  property  in  the  vicinity 
inconvenient  and  uncomfortable,  is  a  nuisance  for  which  any  person 
whose  property  is  damaged  or  whose  health  is  injured  or  whose  rea- 
sonable enjoyment  of  his  estate  as  a  place  of  residence  is  impaired  or 
destroyed  thereby  may  well  maintain  an  action  to  recover  compensa- 
tion for  the  injury.  The  limitations  proper  to  be  made  in  the  applica- 
tion of  this  rule  are  accurately  stated  in  Bamford  v.  Turnley,  3  Best 
&  Smith,  66,  and  in  Tipping  v.  St.  Helen's  Smelting  Co.,  6  Best  & 
Smith,  608-616,  s.  c.  11  H.  L.  Cas.  642,  and  cases  there  cited.  See, 
also,  in  addition  to  cases  cited  by  the  counsel  for  the  plaintiff,  Spencer 
V.  London  &  Birmingham  Railway,  8  Sim.  193 ;  Soltau  v.  De  Held, 
9  Sim.  (N.  S.)  133. 

The  instructions  given  to  the  jury  were  stated  in  such  form  as  to 
lead  them  to  infer  that  this  action  could  not  be  maintained,  if  it  ap- 


332  TORTS  THROUGH   ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 

peared  tliat  other  owners  of  property  in  the  neighborhood  suffered  in- 
jury and  damage  similar  to  that  which  was  sustained  by  the  plaintiff 
in  her  estate  by  the  acts  of  the  defendants.  This,  as  applied  to  the 
facts  in  proof,  was  an  error,  and  renders  it  necessary  that  the  case 
should  be  tried  anew. 
Exceptions  sustained.^® 

39  A  portion  of  the  statement  of  facts,  and  of  the  opinion,  on  a  point  of 
evidence,  is  omitted. 

See  King  v.  Morris  &  Essex  Railroad  (1867)  18  N.  J.  Eq.  397.  The  defend- 
ant had  placed  upon  its  road  sixteen  new  coal-burning  engines,  which  threw 
out  burning  coals.  The  increase  of  fires  along  the  line  had  been  so  great, 
since  the  use  of  the  coal-burning  locomotives,  that  some  insurance  companies 
had  refused  to  take  risks  along  the  road  at  the  usual  rates,  and  some  had 
refused  altogether.  The  complainant,  a  manufacturer,  sought  to  enjoin  the 
use  of  such  locomotives.  Said  the  Chancellor:  "The  case  is  a  proper  one 
for  the  interference  of  this  court  by  injunction.  The  defendants  must  be 
restrained  from  running  any  coal  engines  on  their  road,  if  the  consequences  are 
necessarily  such  as  are  shown  by  the  proof  in  this  case.  *  *  *  Nor  is  it 
necessary  that  the  injunction  or  relief  in  this  case  should  be  applied  for  in 
the  name  of  the  state,  or  the  Attorney  General.  This  is  not  a  public  nui- 
sance, although  it  may  injure  a  great  many  pei'sons.  The  injury  is  to  the 
individual  property  of  each.  The  nuisance  is  public  when  it  affects  the 
rights  enjoyed  by  citizens  as  part  of  the  public ;  as  the  right  of  navigating 
a  river,  or  traveling  on  a  public  highway ;  rights  to  which  every  citizen  is 
entitled." 

See  also  the  remarks  of  Brett,  J.,  in  Benjamin  v.  Storr  (1874)  L.  R.  9 
C.  P.  400,  40<5:  "Thei'e  are  three  things  which  the  plaintiff  must  substantiate, 
beyond  the  existence  of  the  mere  public  nuisance,  before  he  can  be  entitled 
to  recover.  In  the  first  place,  he  must  shew  a  particular  injury  to  himself 
beyond  that  which  is  suffered  by  the  rest  of  the  public.  It;  is  not  enough 
for  him  to  shew  that  he  suffers  the  same  inconvenience  in  the  use  of  the 
highway  as  other  people  do,  if  the  alleged  nuisance  be  the  obstruction  of  a 
highway.  The  case  of  Hubert  v.  Groves,  1  Esp.  148,  seems  to  me  to  prove 
that  proposition.  There  the  plaintiff's  business  was  injured  by  the  obstruc- 
tion of  a  highway,  but  no  greater  injury  resulted  to  him  therefrom  than  to 
any  one  else,  and  therefore  it  was  held  that  the  action  would  not  lie.  Win- 
terbottom  v.  Lord  Derby,  Law  Rep.  2  Ex.  310,  was  decided  upon  the  same 
ground ;  the  plaintiff  failed  because  he  was  unable  to  shew  that  he  had 
sustained  any  injury  other  and  different  from  that  which  was  common  to  all 
the  rest  of  the  public.  Other  cases  shew  that  the  injury  to  the  individual 
must  be  direct,  and  not  a  mere  consequential  injury,  as,  where  one  is  ob- 
structed, but  another  (though  possibly  a  less  convenient  one)  is  left  open ; 
in  such  a  case  the  private  and  particular  injury  has  been  held  not  to  be 
sufficiently  direct  to  give  a  cause  of  action.  Further,  the  injury  nmst  be 
shewn  to  be  of  a  substantial  character,  not  fleeting  or  evanescent.  If  these 
propositions  be  correct,  in  order  to  entitle  a  person  to  maintain  an  action  for 
<laniage  caused  by  that  which  is  a  public  nuisance,  the  damage  must  be  partic- 
ular, direct,  and  substantial.  The  question  then  is,  whether  the  plaintiff  here 
has  brought  himself  within  the  rule  so  laid  down.  The  evidence  on  the  part  of 
the  plaintiff'  shewed  that  from  the  too  long  standing  of  horses  and  wagons 
of  the  defendants  in  the  higlnvay  opposite  his  house,  the  free  passage  of  light 
and  air  to  his  prennses  was  obstructed,  and  the  plaintiff  was  in  consequence 
oi)liged  to  burn  gas  nearly  all  day,  and  so  to  incur  expense.  I  think  that 
brings  the  case  within  all  the  requirements  I  have  pointed  out;  it  was  a 
particular,  a  direct,  and  a  substantial  damage.  As  to  the  bad  smell,  that 
also  was  a  particular  injury  to  the  plaintiff,  and  a  direct  and  sulistantial  one. 
So,  if  by  reason  of  the  access  to  his  ])remiscs  being  obstructeil  for  an  un- 
rea.sonable  time  and  in  an  unreasonal)le  manner,  the  plaintiff's  customers 
were  prevented  from  coming  to  his  coffee-shop,  and  he  suffered  a  material 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  333 

COOK  V.  MAYOR  AND  CORPORATION  OF  BATH. 

(Equity  Cases  before  the  Yice-Cliancellors,  1S6S.     L.  R.  6  Eq.  177.) 

This  was  a  motion  for  an  injunction  to  restrain  the  defendants  from 
building  in  such  a  way  as  to  obstruct  a  lane  called  Cross  Back  Lane, 
and  later,  White  Hart  Lane,  in  the  city  of  Bath. 

The  plaintiff  was  the  owner  in  fee  of  a  messuage,  No.  14,  Bath 
Street,  which  was  bounded  at  the  back  by  Cross  Back  Lane,  leading 
into  Stall  Street,  and  it  appeared  that  from  1793,  when  this  house  was 
erected,  there  had  been  a  back-door  leading  into  Cross  Back  Lane, 
through  which  the  plaintiff  had  access  through  Cross  Back  Lane  to 
Stall  Street.  About  forty  years  ago  the  then  occupier  of  the  house 
closed  and  bricked  up  this  back-door,  leaving  the  jambs  in  the  wall, 
and  keeping  the  old  door  in  his  cellar,  but  in  the  spring  of  1864  the 
present  plaintiff  re-opened  the  door,  and  restored  it  as  much  as  possible 
to  its  former  position. 

In  1867  the  defendants,  having  purchased  the  house  at  the  corner  of 
the  lane  and  Stall  Street,  were  proceeding  to  erect  buildings  in  such  a 
way  as,  it  was  admitted,  would  permanently  block  up  all  access  from 
White  Hart  Lane  into  Stall  Street,  and  thereupon  the  plaintiff  filed  his 
bill  for  an  injunction  to  restrain  them  from  so  doing.     *     *     * 

Sir  R.  Malins,  V.  C.  *  *  ^=  Thus  far  I  have  dealt  with  the 
case  on  the  assumption  of  the  lane  being  subject  to  a  private  right  of 
way ;  but,  in  truth,  the  evidence  goes  far  to  shew  that  White  Hart 
Lane  was  a  public  way.  On  this  view  the  defendants  have  contended 
that  the  Attorney-General  must  sue.  But  the  cases  cited  are  conclu- 
sive as  to  the  plaintiff's  remedy.  In  Spencer  v.  London  and  Birming- 
ham Railway  Company,  8  Sim.  193,  s.  c.  1  Railw.  Cas.  159,  a  very 
similar  case  to  the  present,  Vice-Chancellor  Shadwell  laid  down  the 
rule  to  be,  that  where  there  was  a  public  nuisance  by  obstructing  a 
highway  which  caused  a  particular  private  injury,  a  bill  would  lie  for 

dimicution  of  trade,  that  might  be  a  particular,  a  direct,  and  a  substantial 
damage." 

Compare  Baltzeger  v.  Carolina  Midland  Ry.  Co.  (1S99)  54  S.  C.  242,  32  S. 
E.  3oS,  71  Am.  St.  Rep.  7S9:  A  railway  company  had  created  a  public  nui- 
sance by  obstructing  the  flow  of  surface  water  and  causing  its  accuuuilation. 
This  nuisance  rendered  the  plaintiff's  dwelling  unhealthy  and  dangerous  to 
live  in,  and  caused  sickness  and  suffering  in  his  family.  A  demurrer  to  the 
complaint  showing  these  facts  was  sustained  by  the  trial  court.  "The  in- 
jury," said  the  Supreme  Court,  "must  be  particular — as  some  of  the  cases 
express  it,  special  or  peculiar ;  must  result  directly  from  the  obstruction, 
and  not  as  a  .secondary  consequence  thereof ;  and  must  differ  in  kind,  and 
not  merely  in  extent  or  degree,  from  that  which  the  general  public  sustains. 
The  plaintiff  relies  upon  the  allegations  contained  in  the  fourth  paragraph 
of  his  complaint  to  show  that  his  injury  was  special  or  peculiar.  One  of  the 
requirements  of  the  rule  is  that  the  damages  must  differ  in  kind  as  well 
as  degree  from  those  which,  it  may  reasonably  be  expected,  will  be  sus- 
tained by  the  public  generally.  The  allegations  of  the  complaint  show  that 
the  causes  which  led  to  the  plaintiff's  injury  might  reasonably  be  expected 
to  affect  others  in  the  neighborhood,  and  therefore  bis  injury  was  not  special." 


334  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

the  private  injury,  and  granted  an  injunction;  and  on  the  appeal  Lord 
Cottenham  did  not  dissent  from  this  view. 

In  this  case  I  am  of  opinion  that  there  has  been  a  wholly  unjustifi- 
able stopping-  up  of  a  public  or  private  way,  it  matters  not  which ;  if 
it  is  a  public  way  the  Attorney-General  might  have  sued  in  respect  of 
the  public  nuisance,  and  the  plaintiff  may  also  sue  in  respect  of  his 
individual  injury;  and  therefore,  on  any  view  of  the  evidence,  the 
laintiff  is  entitled  to  an  injunction.     *     *     *  40 


^ 


(b)  Nuisance  Distinguished  from  Other  Torts 

WESHBOURN  AND  MORDANT'S  CASE. 
(Court  of  King's  Bench,  1589.    2  Leon.  103,  74  Reprint,  394.) 

In  an  action  upon  the  case,  the  plaintiff  declared,  that  whereas  he 
was  possessed  of  a  parcel  of  land  called  the  Parsonage,  lying  adjoyn- 
ing  to  a  certain  river,  from  the  29  of  May,  29  Eliz.  untill  the  day  of 
the  bringing  of  this  writ,  the  defendant  had  the  said  twentieth  day 
of  May  stopt  the  said  river  with  certain  loads  of  earth,  and  so  it  con- 
tinued untill  the  fourteenth  day  of  February,  by  which  his  land  was 
drowned,  and  so  he  had  lost  the  profit  of  it  by  that  time. 

And  it  was  moved  in  arrest  of  judgment,  that  upon  the  declaration 
there  doth  not  appear  any  cause  of  action,  for  the  plaintiff  hath  made 
title  to  the  land  drowned  from  the  twentieth  of  May,  so  as  that  day 
is  excluded,  and  the  nusance  is  said  to  be  made  the  twentieth  day,  and 
so  it  appeareth  the  nusance  was  before  the  possession  of  the  plaintiff ; 
and  if  it  were  so,  then  cannot  he  complain  of  any  wrong  done  before 
his  time :  to  which  it  was  answered,  that  although  the  stopping  was 
made  before  his  possession,  yet  the  continuance  of  the  same  is  after, 
and  a  new  wrong,  for  which  an  action  lieth :  as  5  H.  7,  4.  It  was  pre- 
sented, that  an  abbat  had  not  cleansed  his  ditch,  &c.  by  reason  of 
which  the  highway  is  stopt :  the  successor  shall  be  put  to  answer  the 
said  indictment,  by  reason  of  the  continuance  of  it :  and  see,  that  con- 
tinuation of  a  nusance  is  as  it  were  a  new  nusance,  14  and  15  Eliz. 
320.  And  it  may  be  that  the  plaintiff  was  not  damnified  untill  long 
time  after  the  twentieth  day  of  May  (scil.)  after  the  stopping:  and 
the  words  of  the  writ  here  are  satisfied  and  true:  and  afterwards 
judgment  was  given  for  the  plaintiff.'*^ 

■to  Part  of  tlie  statement  of  facts  and  part  of  tlie  opinion  are  omitted. 

41  Compare  tlie  Case  of  ttie  Farmers  of  Hamp.stead-Water  (1701)  12  Mod. 
519:  Trespass  for  digging  a  tiole  in  tlie  plaintiff's  soil,  whereby  his  land 
was  overflown,  continnaudo  transgressionem  for  nine  months:  "And  it  was 
insisted,  that  they  might  give  evidence  of  a  consequential  damage  after  the 
nine  months,  as  well  as  in  a  nusance  which  continues  for  nine  months." 
Hut  Holt,  C.  J.,  said  "he  was  not  satisfied  that  the  parity  would  hold,  for 
tlie  git  of  the  action  in  a  nusance  is  the  damage;  an<l  therefore  .is  long 
as  there  are  damages  there  is  ground  for  an  action;  but  trespass  is  one 
entire  act,  and  the  verj-  tort  is  the  git  of  the  action." 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  335 

CODjMAN  V.  EVANS. 
(Supreme  Judicial  Court  of  Massachusetts,  1S63.     7  Allen,  431.) 

Tort.  The  declaration  was  as  follows : 

"And  the  plaintiffs  say  that  whereas  they  before  and  at  the  time  of  the 
committing  of  the  grievance  hereinafter  mentioned,  were  and  from  thence 
hitherto  have  been  and  still  are  lawfully  possessed  of  a  certain  close,  abut- 
ting on  Tremout  Street,  so  called,  in  said  Boston,  situate  between  the  mes- 
suages now  numbered  175  and  176  on  said  street,  and  bounded  westerly  by 
said  street ;  northerly  by  land  of  the  defendant,  to  him  conveyed  by  one 
Rice ;  easterly  by  a  passage  way  running  northerly,  and  leading  to  Mason 
Street,  so  called ;  and  southerly  by  the  northerly  wall  of  the  said  mes- 
suage now  numbered  176,  on  said  Tremont  Street,  yet  the  said  defendant,  well 
knowing  the  premises,  wrongfully  and  injuriously  kept  and  continued,  from 
and  upon  the  southerly  wall  of  his  messuage  numljered  175  as  aforesaid, 
a  certain  building  projecting  and  overhanging  the  plaintiff's  said  close,  and 
before  then  wrongfully  erected  and  built,  projecting  as  aforesaid,  for  a 
long  space  of  time,  to  wit,  from  the  first  of  May  last  past  hitherto." 

After  it  had  been  determined  that  the  plaintiffs  should  prevail  in 
this  action,  5  Allen,  308,  81  Am.  Dec.  748,  they  moved  in  the  superior 
court  for  judgment  that  the  building  mentioned  in  the  declaration  be 
abated  and  removed,  in  so  far  as  it  overhangs  their  land  described 
therein,  and  that  a  w^arrant  be  issued  to  the  proper  officer  requiring 
him  to  abate  and  remove  the  same  at  the  expense  of  the  defendant,  in 
like  manner  as  public  and  common  nuisances  are  removed ;  and  it 
was  thereupon  considered  and  adjudged  by  the  court  that  the  building 
or  bay-windows,  overhanging  the  plaintiff's  close,  be  abated  and  re- 
moved.*^   The  defendant  appealed. 

Bigelow,  C.  J.  The  only  question  open  on  this  appeal  is,  wheth- 
er there  is  anything  on  the  record  from  which  it  appears  that  the  judg- 
ment for  an  abatement  of  the  nuisance  rendered  by  the  court  below 
is  erroneous  in  law.     *     *     * 

On  reference  to  the  declaration  in  the  present  case,  it  is  clear  that 
it  may  properly  be  regarded  as  in  the  nature  of  an  action  on  the  case 
for  consequential  injuries  to  the  plaintiff's  estate.  It  has  not  the  pe- 
culiar characteristics  of  an  action  of  trespass  to  real  property,  either' 
at  common  law  or  under  the  forms  appended  to  the  practice  act.  Gen. 
St.  c.  129.    There  is  no  allegation  that  the  wrong  or  injury  was  com- 

4  2  Part  of  the  opinion  is  omitted. 

Compare  Pollock's  remark,  Indian  Civil  Wrongs  Bill,  §  55,  note  (g):  "It 
will  not  escape  observation  that  to  some  extent  the  definition  of  nuisance 
overlaps  that  of  trespass  (e.  g.  the  overhanging  eaves  in  Illustration  2  seem 
to  constitute  a  continuing  trespass).  This  is  so  in  England  and  all  common- 
law  jurisdictions,  and  it  does  not  produce  any  difiiculty  or  inconvenience  that 
I  know  of."  Illustration  2  is  as  follows:  "If  Z.  has  a  house  whose  eaves 
overhang  A.'s  land,  or  if  the  branches  of  a  tree  growing  on  Z.'s  land  project 
over  A.'s  land,  this  is  a  nuisance  to  A.,  inasmuch  as  it  interferes  with  his 
lK>wers  of  control  and  enjoyment  ou  his  own  property,  and  also  tends  to 
discharge  rain-water  on  A.'s  laud." 


336  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

mitted  "with  force  and  arms"  or  "forcibly."  1  Chit.  PI.  (6th  Amer. 
Ed.)  144.  It  may  be  that  an  action  .of  trespass  might  have  been 
brought  for  the  erection  and  continuance  of  the  structure  described  in 
the  declaration,  and  that,  on  proof  of  the  plaintiffs'  title,  and  of  the 
facts  and  circumstances  connected  with  the  alleged  wrongful  act  of 
the  defendant,  such  action  would  be  the  only  appropriate  and  proper 
remedy.  But  that  is  not  the  question  before  us  on  this  record.  We 
are  not  called  on  to  decide  a  question  of  variance  between  allegations 
and  proofs,  but  only  to  determine  the  nature  of  the  action  in  which  the 
judgment  appealed  from  was  rendered.  It  seems  to  us  that  on  this 
point  there  can  be  no  doubt.  According  to  the  strictness  of  the  ancient 
forms  of  pleading,  the  declaration  in  this  action  would  have  been  a 
good  count  in  an  action  on  the  case.  This  clearly  appears  by  reference 
to  Baten's  Case,  9  Co.  53b,  in  which  it  will  be  found  that  the  declara- 
tion, mutatis  mutandis,  is  almost  identical  with  that  in  the  case  at  bar. 
The  same  is  true  of  the  declaration  in  the  recent  case  of  Fay  v.  Pren- 
tice, 1  C.  B.  828.  It  is  true  that  in  this  last  case  there  was  an  allegation 
of  special  damage  in  its  nature  consequential,  but  it  was  expressly 
held  that  the  action  might  be  maintained  for  other  damage  which  was 
not  alleged,  x^nd  in  Baten's  Case,  ubi  supra,  it  was  adjudged  that  the 
plaintiff  need  not  assign  in  a  count  in  case  for  a  nuisance  any  special 
nuisance.  It  is  sufficient  if  it  appears  from  the  declaration  that  the 
nature  of  the  structure  is  such  that  consequential  damage  would  be 
occasioned  by  the  flow  or  dropping  of  water  therefrom,  and  that  other 
similar  injuries  might  ensue  to  the  plaintiffs'  property. 

The  error  of  the  defendant  consists  in  supposing  that  we  can  travel 
out  of  the  record,  and  that,  by  reference  to  the  proceedings  in  the  for- 
mer action  between  these  parties,  and  to  the  questions  heretofore  de- 
termined in  this  suit,  we  can  judicially  ascertain  that  this  action  can 
be  supported  by  the  plaintiff's  only  as  an  action  of  trespass.*^  But 
this  we  cannot  do.     The  objection  that  the  facts  did  not  supi)ort  the 

4  3  On  the  distinction  between  trespass  and  nuisance  see  also  21  Halsbury's 
Laws  of  Enalaud,  506,  note  "k":  "The  following  acts  have  been  held  to  be 
trespass:  The  actual  pouring  of  water  on  to  a  neighbor's  land  (Prej^tou  v. 
Mercer  [16.j61  Hard.  60,  as  explained  in  Reynolds  v.  Clarke,  supra) ;  injuring 
a  person  on  the  highway  by  throwing  logs  at  him  (Reynolds  v.  Clarke,  supra). 
On  the  other  hand  the  following  acts  were  held  or  considered  to  be  nuisance 
and  not  trespass:  Overburdening  a  floor,  whereby  it  fell  and  did  damage  to 
the  goods  of  another  in  his  cellar  beneath  (Edwards  v.  Halinder  [ir)94]  Poph. 
46) ;  diverting  the  water  of  a  river  by  digging  trenches  in  the  defendant's 
own  ground  (Levridge  v.  Hoskins  [1709]  11  Mod.  Rep.  257) ;  fixing  a  spout  to 
defendant's  house  whereby  water  was  poured  on  to  the  plaintiffs  land  (Reyn- 
olds V.  Clarke  [1725]  1  Stra.  6.31) ;  so  working  a  mine  as  to  cause  water  to 
flow  through  other  mines  into  those  of  the  plaintiff  (Ilawaixl  v.  Bankes  [1760] 
2  Burr.  1113) ;  logs  left  by  one  party  to  lie  in  the  highway  to  the  personal 
injury  of  another  (Reynolds  v.  Clarke,  supra,  per  Fortescue,  J.,  at  p.  635)." 

And  see  Frazier  v.  Pennypack  Trap  Rock  Co.  (1901)  17  Montg.  Co.  (Pa.) 
105,  where  the  throwing  of  rocks  upon  adjoining  premises  by  the  discharge 
of  a  blast,  Iteing  an  actual  physical  invasion,  was  declared  to  be  a  trespass, 
while  concussions,  produced  at  the  same  time,  were  declared  to  be  a  nuisance. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  337 

declaration  should  have  been  taken  at  an  earlier  stage  of  the  case.  It 
is  now  too  late  to  raise  it.  It  is  sufficient  to  warrant  the  judgment  for 
abatement,  that  the  declaration  is  in  form  an  action  of  tort  for  a  nui- 
sance. 

Judgment  affirmed. 


WILLIAMS  V.  PO^IEROY  COAL  CO. 
(Supreme  Court  of  Ohio,  1S82.     37  Ohio  St.  583.) 

Prior  to  January  30,  1868,  one  Xahum  Ward  owned  in  fee  lot  1223, 
on  the  Ohio  river,  in  Meigs  county,  and  at  the  same  time  one  Philip 
Hondesheldt  was  the  owner  in  fee  of  lot  1222,  and  V.  B.  Horton  was 
the  owner  in  fee  of  lot  301,  and  the  latter  had  a  lease  from  Honde- 
sheldt granting  the  right  to  mine  all  the  coal  under  the  south  half  of 
lot  1222.  On  August  10,  1858,  Mr.  Horton  conveyed  to  the  Pomeroy 
Coal  Company,  by  his  lease  of  that  date  duly  executed,  his  right  to 
mine  and  take  away  the  coal  under  said  two  tracts  of  land.  By  the 
terms  of  said  lease  the  Pomeroy  Coal  Company  bound  itself  to  "quit 
and  surrender  the  premises"  at  the  end  of  ten  years,  to  wit,  by  August 
10,  1868.  The  defendant  entered  upon  the  premises,  and  as  early  as 
1862  had  mined  all  the  available  coal  thereon,  and  did,  in  that  year, 
abandon  the  said  lease,  with  the  consent  of  said  Horton,  and  turned 
over  to  him  the  abandoned  mines  on  said  premises.  The  defendants, 
while  excavating  the  coal  on  lot  1222,  mined  over  on  the  adjoining  lot 
1223,  from  thirty-six  to  thirty-nine  feet.  In  1864  the  plaintiff  bought 
lot  1223  of  said  Xahum  Ward,  and  began  operating  the  mines  there- 
on. In  June,  1868,  the  workmen  engaged  in  said  plaintiff's  mine  tap- 
ped the  water  which  had  accumulated  in  the  abandoned  mine,  and  it 
flooded  the  mine  of  plaintiff'.  The  working  over  on  lot  1223  was  done 
as  early  as  1861,  but  was  not  known  to  the  plaintiff  until  the  water 
flowed  into  his  mine  as  above  stated. 

A  judgment  in  the  common  pleas,  on  a  verdict  for  the  defendant, 
was  affirmed,  on  error,  by  the  district  court.  A  petition  in  error  is 
prosecuted  to  reverse  these  judgments. 

White,  J.  The  decision  of  this  case  depends  upon  what  constituted 
the  cause  of  action  against  the  defendant,  and  when  it  accrued. 
The  claim  of  the  plaintiff  is  that  the  cause  of  action  consists  of  a 
private  nuisance  caused  by  the  excavation  made  by  the  defendant  on 
lot  1223  when  removing  the  coal  under  his  lease  from  the  south  half 
of  lot  1222,  and  that  the  cause  of  action  is  a  continuing  one  and  first 
accrued  when  the  water  from  the  abandoned  mine  flowed  over  into  the 
mine  of  the  plaintiff.  On  the  other  hand,  the  claim  of  the  defendant 
is  that  the  cause  of  action  consisted  of  the  trespass  committed  in  mak- 
ing the  excavation,  and  was  completed  when  the  work  was  done  and 
the  mine  abandoned.  In  the  first  place,  it  may  be  observed  that  this 
Hepb.Tobts — 22 


338  TORTS  THROUGH   ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 

is  not  a  case  where  the  defendant  has  wrongfully  entered  upon  the 
lands  of  the  plaintiff  and  erected  and  maintained  structures  thereon. 
Xor  is  it  a  case  where  structures  have  been  erected  and  maintained  on 
the  lands  of  the  defendant  or  of  another,  to  the  nuisance  or  injury 
of  the  plaintiff's  premises.  In  these  cases  the  wrong  may,  by  the  lapse 
of  time,  ripen  into  a  right  under  the  statute  of  limitations  or  by  pre- 
scription. In  speaking  to  this  point  in  Clegg  v.  Dearden,  12  Ad.  & 
Ellis  (N.  S.)  601,  Lord  Denman  uses  the  following  language:  "The 
gist  of  the  action,  as  stated  in  the  declaration,  is  the  keeping  open  and 
unfilled  up  an  aperture  and  excavation  made  by  the  defendant  into  the 
plaintift''s  mine.  By  the  custom,  the  defendant  was  entitled  to  exca- 
vate up  to  the  boundary  of  his  mine,  without  leaving  any  barrier,  and 
the  cause  of  action,  therefore,  is  the  not  filling  up  the  excavation  made 
by  him  on  the  plaintiff's  side  of  the  boundary  and  within  their  mine. 
It  is  not,  as  in  the  case  of  Holmes  v.  Wilson,  10  A.  &  E.  503,  a  contin- 
uing of  something  wrongfully  placed  by  the  defendant  upon  the  prem- 
ises of  the  plaintiff';  nor  is  it  a  continuing  of  something  placed  upon 
the  land  of  a  third  person  to  the  nuisance  of  the  plaintiff,  as  in  the 
case  of  Thompson  v.  Gibson,  7  Mees.  &  W.  456.  There  is  a  legal  obli- 
gation to  discontinue  a  trespass  or  remove  a  nuisance ;  but  no  such 
obligation  upon  a  trespasser  to  replace  what  he  has  pulled  down  or 
destroyed  upon  the  land  of  another,  though  he  is  liable  in  an  action  of 
trespass  to  compensate  in  damage  for  the  loss  sustained.  The  defend- 
ant, having  made  an  excavation  and  aperture  in  the  plaintiff's  land, 
was  liable  to  an  action  of  trespass ;  but  no  cause  of  action  arises  from 
his  omitting  to  reenter  the  plaintift"'s  land  and  fill  up  the  excavation. 
Such  an  omission  is  neither  a  continuation  of  a  trespass,  nor  a  nui- 
sance ;   nor  is  it  a  breach  of  any  legal  duty." 

The  defendant  in  the  present  case  had  no  estate  or  interest  in  lot 
1222  further  than  the  right  to  mine  the  coal  therefrom.  This  he  ac- 
complished in  1862,  and  surrendered  the  premises.  He  had  no  author- 
ity from  the  owner  of  the  fee,  nor  from  Horton,  his  immediate  lessor, 
to  mine  over  into  lot  1223 ;  and  at  the  time  of  the  flowage  of  water 
from  the  abandoned  mine  into  the  mine  of  the  plaintiff,  he  had  for 
more  than  five  years  ceased  to  have  any  interest  in  lot  1222  or  any 
right  of  entry  thereon. 

If  the  claim  of  the  defendant  as  to  what  constituted  the  cause  of 
action  is  correct,  the  action  clearly  cannot  be  maintained.  1.  For  the 
reason  that  at  the  time  of  the  commission  of  the  trespass,  the  plaintiff 
was  not  the  owner  of  the  land  upon  which  the  trespass  was  committed ; 
and,  2,  if  he  had  been  such  owner,  the  action  would  be  barred  by 
the  statute  of  limitations. 

There  is  no  distinction  in  the  application  of  the  statute  of  limitations 
between  trespasses  under  ground  and  upon  the  surface;  nor  whether 
the  cause  of  action  is  known  or  unknown  to  the  plaintiff  within  the 
time  limited  by  the  statute.  Hawk  v,  Minnich,  19  c3hio  St.  466,  2  Am. 
Rep.  413;   Hunter  v.  Gibbons,  1  Hurl.  &  Nor.  459. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  339 

The  question  therefore  is,  whether  the  defendant,  in  addition  to 
the  Habihty  for  the  trespass,  is  also  liable  for  creating  and  continuing  a 
nuisance.  If  he  is  so  liable  a  recovery  for  the  trespass  would  be  no 
bar  to  subsequent  actions  for  continuing  the  nuisance. 

In  Stephen's  Commentaries  (vol.  3,  499),  a  private  nuisance  is  de- 
fined to  be  "anything  done  to  the  hurt  or  annoyance  of  the  lands,  tene- 
ments, or  hereditaments  of  another,  and  not  amounting  to  a  trespass." 

Here  the  only  thing  done  by  the  defendant  was  the  making  of  the 
excavation  upon  the  plaintiff's  land,  which  did  amount  to  a  trespass. 

Plaintiff's  counsel  claim  that  the  action  is  brought  to  recover  con- 
sequential damages  resulting  from  the  wrongful  acts  of  the  defendant. 
Be  it  so.  But  with  what  wrongful  acts  is  the  defendant  chargeable 
except  those  constituting  the  trespass  ?  We  see  none.  And  a  recovery 
for  the  trespass  or  the  bar  of  an  action  brought  for  it,  is  a  bar  to  a 
recovery  for  the  consequences  resulting  from  such  trespass.  True, 
this  is  not  the  ground  upon  which  the  jury  were  charged,  but  the  error 
in  the  charge  was  in  favor  of  the  plaintiff,  and  is  no  ground  for  re- 
versal.** 

Judgment  affirmed. 


HAYES  v.  BROOKLYN  HEIGHTS  R.  CO. 

(Court  of  Appeals  of  New  York,  1910.     200  N.  T.  183,  93  N.  E.  469.) 

Appeal,  by  permission,  from  an  order  of  the  Appellate  Division  of 
the  Supreme  Court  in  the  second  judicial  department,  which  affirmed 
an  interlocutory  judgment  of  Special  Term  sustaining  a  demurrer  to  a 
separate  defense  set  forth  in  the  answer.  The  following  questions 
were  certified : 

"1.  Does  the  complaint  herein  state  a  cause  of  action  for  the  maintenance 
of  a  nuisance? 

"2.  Does  the  complaint  herein  state  a  cause  of  action  for  negligence? 

"3.  Should  the  demurrer  to  that  part  of  the  defendant's  answer  setting 
up  the  three  years'  Statute  of  Limitations  be  sustained?" 

44  Accord:  National  Copper  Co.  v.  Minnesota  Min.  Co.  (1S8.5)  57  Mich.  S3, 
96,  23  N.  W.  781,  787  (58  Am.  Rep.  33-3):  "Neither  party  was  under  obliga- 
tion to  keep  its  mine  pumped  out  for  the  benefit  of  its  neighbor.  Either  was 
at  liberty  to  discontinue  its  operations  and  abandon  its  mine  whenever  its 
interest  should  seem  to  require  it.  And  had  the  plaintiff  brought  an  action 
within  two  years  from  the  time  of  trespass,  its  recovery  would  necessarily 
have  been  had  with  this  undoubted  right  of  abandonment  in  view.  But  a 
jury  could  not  have  awarded  damages  for  any  exercise  of  a  right,  and  they 
could  not,  therefore,  have  given  damages  for  a  possible  injury  to  flow  from 
such  an  abandonment.  This  is  on  the  plain  principle  that  the  mere  exercise 
of  a  right  cannot  be  a  legal  wrong  to  another,  and  if  damage  shall  happen, 
it  is  damnum  absque  injuria."    Per  Cooley,  C.  J. 

Compare  Lemmon  v.  Webb  (1894)  3  Ch.  1:  For  more  than  twenty  years 
the  branches  of  a  number  of  large  old  oaks  and  elms  on  D.'s  land  have  over- 
hung P.'s  boundary.  Smith  v.  Giddy  {im4)  2  K.  B.  448:  P.  claims  damages 
because  certain  elm  and  ash  trees  on  D.'s  land  overhang  P.'s  premises  and 
interfere  with  the  growth  of  his  fruit  trees. 


340  TORTS  THKOUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

HaiGht,  J.  This  action  was  brought  by  the  plaintiff  to  recover 
damages  for  a  personal  injury  alleged  to  have  occurred  on  the  12th 
day  of  March,  1902,  on  Second  avenue,  in  the  borough  of  Brooklyn, 
by  reason  of  his  stepping  into  a  hole  or  rut  while  crossing  the  avenue. 
The  complaint  alleges  that  the  defendant  was  operating  a  street  sur- 
face railroad  upon  the  avenue  in  question  and  that  it  was  its  duty  to 
keep  in  repair  that  portion  thereof  between  the  rails  of  its  tracks  and 
two  feet  in  width  outside  of  its  tracks  and  that  for  a  long  time  prior 
thereto  the  defendant  suffered  that  portion  of  Second  avenue  to  be- 
come and  continue  out  of  repair  and  a  rut  or  hole  to  be  formed  therein 
and  to  become  rough  and  uneven ;  and  further  that  the  suft"ering  and 
loss  of  earning  power  arid  income  of  the  plaintiff  by  reason  of  his  in- 
jury "were  due  solely  to  the  wrongful  and  unlawful  conduct  of  the 
defendant,  its  agents  and  servants,  in  suffering  said  hole  or  rut  to  be 
and  remain  in  the  street  near  its  tracks."  The  separate  defense  in- 
terposed by  the  defendant  to  which  the  plaintiff  demurred  is  "that  the 
cause  of  action  upon  which  a  recovery  is  herein  sought  did  not  accrue 
within  three  years  next  before  the  commencement  thereof."  The 
Special  Term  sustained  the  demurrer  and  from  the  interlocutory  judg- 
ment entered  thereon  an  appeal  was  taken  to  the  Appellate  Division, 
which  affirmed  the  same  by  a  divided  court.  This  action  was  com- 
menced on  the  11th  day  of  March,  1908. 

The  C[uestion  presented  is  as  to  whether  the  action  is  based  upon  a 
nuisance  or  negligence.  It  will  be  observed  that  the  complaint  fails  to 
allege  that  there  existed  a  nuisance  or  that  the  defendant  was  negli- 
gent. Under  the  statute  of  limitations  it  is  provided  that  an  action  to 
recover  damages  for  a  personal  injury,  "except  in  a  case  where  a  dif- 
ferent period  is  expressly  prescribed  in  this  chapter,"  shall  be  brought 
within  six  years ;  and  it  is  further  provided  that  an  action  to  recover 
damages  for  a  personal  injury  resulting  from  negligence  shall  be 
brought  within  three  years.  Code  Civ.  Proc.  §§  382,  383.  If,  there- 
fore, the  action  alleged  in  the  complaint  resulted  from  negligence,  the 
separate  defense  set  forth  in  the  answer  was  good,  and  the  demurrer 
should  not  have  been  sustained.  If,  however,  it  did  not  result  from 
negligence,  then  the  demurrer  was  properly  sustained. 

A  public  nuisance,  in  so  far  as  it  applies  to  the  case  under  considera- 
tion, consists  in  unlawfully  doing  an  act  or  omitting  to  perform  a  duty, 
which  act  or  omission  endangers  the  safety  of  any  considerable  number 
of  persons,  or  unlawfully  interferes  with,  or  tends  to  render  dangerous, 
a  public  park,  square,  street,  or  highway.  Under  the  railroad  law  the 
duty  is  imposed  upon  street  surface  railroads  of  keeping  the  space  be- 
tween their  tracks  and  two  feet  on  either  side  thereof  in  good  and  safe 
condition.  Consol.  Laws,  c.  49,  §  178.  The  duty,  therefore,  of  mu- 
nicipalities of  keeping  their  streets  and  highways  in  good  and  safe  con- 
dition, is,  to  the  extent  specified  by  the  statute,  also  devolved  upon  the 
railroad  corporations,  whose  duty  with  reference  thereto  becomes  the 
same  as  that  which  rests  upon  the  municipality. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  341 

It  will  be  observed  that,  tinder  section  382,  above  referred  to.  the 
six-year  statute  of  limitations  has  no  application  in  a  case  where  a 
different  period  is  expressly  prescribed,  and  under  section  383  a  differ- 
ent period  is  prescribed  where  the  injury  results  from  negligence.  The 
question,  therefore,  arises  as  to  whether  the  alleged  injury  in  this  case 
was  the  result  of  negligence  on  the  part  of  the  defendant.  If  a  mu- 
nicipality or  a  railroad  company  should  dig  a  pit  or  place  a  dangerous 
obstruction  in  or  upon  a  public  street,  which  it  was  obligated  to  keep 
in  repair,  it  would  be  the  creation  of  a  public  nuisance,  and  unques- 
tionably the  party  creating  the  nuisance  would  be  liable  to  a  person 
suffering  injuries  by  reason  thereof.  So,  also,  an  individual  main- 
taining a  coal  hole  in  the  sidewalk  in  front  of  his  premises  with  an  in- 
sufficient cover,  or  who  constructs  a  water  pipe  which  receives  the 
water  collected  from  the  roof  of  his  building,  and  discharges  it  on  the 
surface  of  the  sidewalk,  from  which  ice  forms  as  the  water  flows 
across  it  to  the  gutter,  becomes  liable  therefor  as  the  creator  of  the 
nuisance  irrespective  of  any  question  of  negligence.  Clifford  v.  Dam. 
81  N.  Y.  52;  Tremblay  v.  Harmony  Mills,  171  N.  Y.  598,  64  N.  E. 
501. 

But  where  the  obstruction  to  a  public  street  has  resulted  from  other 
causes,  or  from  the  acts  of  others  than  that  of  the  municipality,  a  dif- 
ferent rule  obtains  with  reference  to  its  liability.  In  such  cases  the  mu- 
nicipality is  not  the  creator  of  the  nuisance;  but  it  becomes  its  duty  to 
abate  and  remove  the  same,  to  the  end  that  the  public  may  pass  safely 
over  the  public  street.  It  is  not  called  upon  to  abate  and  remove 
until  it  has  notice  of  the  existence  of  the  obstruction,  or  such  time  has 
elapsed  after  the  existence  of  the  obstruction  as  will  raise  a  presump- 
tion that  the  municipality  or  its  officers  had  notice,  or  in  the  exercise 
of  due  diligence  should  have  had  such  notice.  In  such  cases  the  fail- 
ure to  abate  or  remove  the  obstacle  involves  a  question  of  negligence; 
for,  if  it  proceeds  with  reasonable  diligence  to  remove  the  same,  no  re- 
covery can  be  had  against  the  municipality.  But  if  it  unreasonably 
suffers  the  nuisance  to  exist,  it  does  so  by  reason  of  its  negligence,  and 
such  becomes  the  basis  of  its  liability.* 

*  Accord:  McCluskey  v.  Wile  (1911)  144  App.  Div.  470,  129  N.  T.  Supp.  455: 
The  complaint  alleged  that  the  defendant,  the  owner  of  an  apartment  house  in 
which  the  plaintiff  resided,  "unlawfully,  negligently,  and  carelessly  permitted 
a  certain  dog,  the  property  of  one  of  the  tenants  in  said  premises,  to  lie  and 
remain  about  the  liallways,  lobbies  and  staircases  of  said  premises,  so  as  to 
be  dangerous  to  the  life  and  limb  of  persons  traversing  the  said  hallways, 
lobbies,  and  staircases,  and  to  become  a  nuisance,  as  the  defendant  well 
knew."  that  the  defendant  omitted  to  light  the  hallway,  and  that  the  plaintiff, 
without  fault  on  her  part,  tripi)ed  on  the  said  dog,  which  she  could  not  see 
because  of  the  defendant's  failure  to  light  the  stairway,  and  was  thereby  in- 
jured. If  the  cause  asserted  is  for  negligence,  it  is  liarn^l  by  the  statute;  if 
it  is  for  nuisance  it  is  not  barred.  "The  plaintiff  undertakes  to  distinguish  the 
case  from  Hayes  v.  Brooklyn  Heights  R.  Co.,  200  N.  Y.  183,  93  N.  E.  4G9,  by 
the  distinction  between  the  words  'suffer'  and  'permit.'  " 

And  see  McXulty  v.  I.udwig  &  Co.  (1912)  153  App.  Div.  206,  138  N.  Y.  Supp. 
84 ;    Bailey  v.  Kelly  (1915)  93  Kan.  723,  145  Pao.  556. 


342  TORTS  THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

Accordingly,  in  the  case  of  Dickinson  v.  Mayor,  etc.,  of  N.  Y.,  92 
N.  Y.  584,  where  ice  or  snow  had  been  suffered  to  remain  upon  a 
crosswalk  of  a  street,  and  that  by  reason  thereof  the  plaintiff  sustained 
injuries  for  which  he  sought  damages,  it  was  held  that  the  action  was 
one  for  negligence,  and  not  for  a  positive  wrong  committed  by  the  de- 
fendant, and,  therefore,  the  three-year  statute  of  limitations  ran 
against  it. 

We  do  not  understand  the  case  of  Robinson  v.  Chamberlain,  34  N. 
Y.  389,  90  Am.  Dec.  713,  to  be  in  conflict  with  our  views  as  above  ex- 
pressed. True,  it  was  held  that  a  failure  to  keep  a  public  highway  in 
repair  by  those  who  have  assumed  that  duty  from  the  state,  so  that  it  is 
unsafe  to  travel  over,  is  a  public  nuisance,  making  the  party  bound 
to  repair  liable  in  an  action  by  a  person  who  has  sustained  special 
damages  by  reason  thereof ;  but  that  action  was  for  negligence.  It 
was  prosecuted  by  the  plaintiff  against  Chamberlain,  a  contractor  who 
had  undertaken  to  keep  the  state  canal  in  repair.  An  injury  was  sus- 
tained ,by  the  plaintiff's  canal  boat  in  consequence  of  the  defendant's 
neglect  to  perform  his  duties,  and  he  was  held  liable  for  the  injury  by 
reason  of  his  careless  and  negligent  omission  to  perform  his  duties. 

Our  attention  has  been  called  to  numerous  other  decisions  bearing 
upon  the  question  but  we  do  not  deem  it  necessary  to  specifically  refer 
to  fhem.  We  do  not  understand  them  to  be  in  conflict  with  the  dis- 
tinction which  we  have  made  with  reference  to  the  two  classes  of  cases 
discussed.  We  have  referred  to  the  liability  of  municipal  corpora- 
tions for  the  reason  that  such  cases  are  more  numerous  and  have  been 
more  generally  under  consideration  in  this  court.  In  view  of  the  fact, 
however,  that  the  liability  of  a  railroad  company  is  the  same  as  that 
of  the  municipality  they  become  our  guide  in  determining  the  ques- 
tions involved  in  this  case. 

We  entertain  the  view  that  the  complaint  alleges  a  cause  of  action 
based  upon  negligence,  and  consequently  the  demurrer  to  the  separate 
defense  set  forth  in  the  answer  should  be  overruled.  It  follows  that 
the  interlocutory  judgment  of  the  Appellate  Division  and  Special  Term 
should  be  reversed  and  judgment  ordered  for  defendant  on  demurrer, 
with  costs  in  all  courts,  with  leave  to  plaintiff  to  withdraw  demurrer 
within  twenty  days  on  payment  of  such  costs,  and  the  second  question 
certified  answered  in  the  affirmative,  and  the  third  question  certified 
answered  in  the  negative ;  the  first  question  not  answered.  Judgment 
accordingly. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  3i3 

HALL  et  ux.  v.  GALLOWAY  et  al. 

(Supreme  Court  of  Washington,  1913.    76  Wash.  42,  135  Pac.  478.) 

This  was  an  action  for  damages,  brought  by  Hall  and  his  wife.    The 

complaint  set  forth  the  following  facts : 

That  the  plaintiffs  were  husband  and  wife;  that  at  the  times  mentioned 
in  the  complaint  they  were  the  owners  and  proprietors  of  a  certain  hotel 
which,  at  all  the  times  mentioned,  was  a  public  house  for  the  entertain- 
ment of  travelers;  that  the  plaintiffs  were  compelled  to  receive  all  travel- 
ers who  properly  apply  for  admission  so  long  as  there  was  room  for  them ; 
that  the  plaintiffs  conducted  their  house  in  an  orderly  manner  and  that 
they  and  their  hotel  bore  a  good  reputation  in  the  community  ;  that  about 
9  o'clock  p.  m.  on  July  13,  1911,  defendant  Bannerman  entered  the  hotel, 
placed  upon  the  register  the  names  of  J.  E.  Henderson  and  wife  and  George 
H.  Holmes  and  wife  and  asked  for  rooms,  which  were  furnished  to  them ; 
that  the  defendants  and  two  females,  imknown  to  the  plaintiffs,  entered  the 
rooms,  remained  there  for  about  two  hours  until  expelled  by  the  plaintiffs ; 
that  the  defendants  falsely  represented  themselves  to  be  husbands  of  the 
females  in  question  for  the  purpose  of  gaining  admittance  to  the  hotel  and 
were  unknown  to  the  plaintiffs;  that,  soon  after  gaining  admission  to  the 
hotel,  the  defendants  and  their  consorts  indulged  in  such  lewd  and  disorderly 
conduct  that  the  plaintiffs  forcibly  ejected  them,  the  other  guests  being 
disturbed  thereby;  that  by  reason  of  this  episode  many  guests  of  the  hotel 
were  led  to  believe  it  a  place  of  ill  repute ;  and  that  the  plaintiffs  were 
brought  into  public  scorn  and  disgrace,  whereby  the  patronage  of  their  hotel 
was  decreased,  and  as  a  consequence  plaintiffs  and  each  of  them  claimed  to 
have  been  damaged  in  the  sum  of  $5,000. 

On  motion  the  trial  court  ordered  the  plaintiffs  to  state  as  separate 
causes  of  action  the  alleged  injury  to  Mr.  Hall  and  the  alleged  injury 
to  Mrs.  Hall.  The  court  also  ordered,  on  a  motion  to  make  specific, 
that  the  plaintiffs  set  out  the  names  of  the  guests  and  the  names  of 
others  who  were  led  to  believe  that  the  house  was  of  ill  repute,  and 
also  the  amount  of  damages  actually  sustained  by  reason  thereof.  The 
court  based  this  order  on  the  ground  that  the  alleged  misconduct  was 
not  actionable  per  se,  and  that  in  order  to  be  actionable  it  must  result 
in  actual  loss  to  the  plaintiffs,  and  that  the  rule  in  slander  cases  deny- 
ing damages  for  repetitions  of  slander  apply  here,  and  that  the  guests 
at  that  time  must  be  the  ones  who  withdraw  their  patronage  to  the  ex- 
tent of  causing  loss,  and  that  their  names  must  be  set  forth.  Attempt- 
ing compliance  with  these  orders,  the  plaintiffs  filed  their  amended 
complaint,  which  was  ordered  stricken  out  for  the  reason  that  it  did 
not  set  forth  the  names  of  the  guests  and  others  whose  patronage  was 
lost  by  reason  of  the  alleged  actions  of  the  defendants.  Thereupon 
the  plaintiffs  filed  a  second  amended  complaint  to  which  a  demurrer 
was  sustained  on  the  ground  that  it  did  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action  and  that  several  causes  of  action  were  im- 
properly united.  The  plaintiff's  appeal  from  a  judgment  of  dismiss- 
al.*^ 

Ellis,  J.  *  *  *  The  trial  court,  in  sustaining  the  demurrer, 
held,  in  effect,  that  the  law  making  certain  words  actionable  per  se  is 

*6  The  statement  of  the  case  is  abridged,  and  part  of  the  opinion  is  omitted. 


344  TORTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

an  exception  to  the  general  principles  of  the  law  of  torts,  and  that  such 
an  exception  should  not  prevail  where  the  action  is  founded  on  slan- 
derous  conduct  rather  than  slanderous  words. 

The  trial  court,  in  granting  the  several  motions  above  referred  to 
and  in  sustaining  the  demurrer  to  the  complaint  in  its  final  form,  drop- 
ped into  a  fundamental  error  which  seems  to  have  colored  his  view  of 
the  case  throughout.  This  error  consisted  in  a  confusion  of  the  law 
as  to  acts  illegal  in  their  nature,  constituting  a  private  nuisance  inju- 
rious to  the  property  of  the  plaintiffs  as  a  community,  with  the  rules 
of  law  relating  to  words  spoken  of  individuals  constituting  slander, 
which  is  essentially  a  wrong  personal  to  the  individual  slandered. 
While  it  is  true  that  the  two  things  in  their  nature  partake  somewhat 
of  the  same  character,  they  are  different  in  that  the  ultimate  ground 
of  recovery  in  the  one  case  is  for  an  injury  to  the  property  right  alone, 
while  in  the  other  damages  allowed  are  for  an  injury  to  personal  char- 
acter and  the  injury  to  the  sensibilities  resulting  from  the  slanderous 
words.  The  one  is,  of  course,  an  injury  to  all  persons  interested  in 
the  property  affected  by  the  illegal  acts.  The  other  is  an  injury  only 
to  the  person  of  whom  the  slanderous  words  are  spoken.  As  we  view 
the  original  complaint,  it  stated  every  fact  necessary  to  the  allegation 
of  the  perpetration  by  the  defendants  of  a  private  nuisance  actionable 
per  se  in  favor  of  the  person  whose  property  was  injuriously  affected. 
The  statute  (Rem.  &  Bal.  Code,  §  943),  in  defining  actionable  nuisanc- 
es, included  whatever  is  injurious  to  health,  or  indecent,  or  offen- 
sive to  the  senses,  or  an  obstruction  to  the  free  use  of  property,  so  as 
to  essentially  interfere  with  the  comfortable  enjoyment  of  life  and 
property,  and  declares  the  same  the  subject  of  an  action  for  damages 
and  also  for  other  and  further  relief.  Section  944  specifically  declares 
that  any  person  whose  property  is  injuriously  affected  or  whose  per- 
sonal enjoyment  is  lessened  by  the  nuisance  may  maintain  the  action. 
While  the  original  complaint  was  inartificial  in  form,  it  stated  every 
fact  essential  to  a  cause  of  action  for  a  private  nuisance  so  de- 
fined.    *     *     * 

Judgment  reversed. 


(B)  Elements  of  a  Prima  Pacie  Cause  in  Nuisance 

(a)  The  Facts  to  be  Pleaded,  in  an  Action  foe  Damages  ^o 

"Nuisance"  is  a  good  word  to  beg  a  question  with.  It  is  so  compre- 
hensive a  term,  and  its  content  is  so  heterogeneous,  that  it  scarcely 
does  more  than  state  a  legal  conclusion  that  for  one  or  another  of 

4  0  Until  a  comparatively  recent  day,  the  standard  declaration  in  trespass 
on  the  case  in  nuisance,  like  the  standard  d(>clarati<)n  in  trespass  on  the 
case  in  trover,  beclouded  the  doctrine  with  immaterial  matter.  The  follow- 
ing precedent,  from  3  Chitty  on  l'k'a(liIl^^  433  (181G),  is  of  this  class: 

"For  that   whereas   the  said  A.  B.  on,  etc.,  and  long  before  was  and  con- 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  345 

widely  varying  reasons  the  thing  stigmatized  as  a  nuisance  violates  the 
rights  of  others. 

Ezra  Riplev  Thayer,  "Public  Wrong  and  Private  Action,"  27  Harv. 
Law  Rev.  326  (1914). 


LAFLIN  &  RAND  POWDER  CO.  v.  TEARNEY. 

(Supreme  Court  of  Illinois,  1890.     131  111.  322,  23  N.  E.  390,  7  L.  R.  A.  262, 

19  Am.   St.  Rep.  34.) 

This  was  an  action  on  the  case,  brought  against  the  powder  com- 
pany, to  recover  for  damage  to  buildings  on  the  premises  of  the  plain- 
tiff, caused  by  the  explosion  of  a  powder  magazine  on  the  premises  of 
the  defendant.  The  declaration  was  not  demurred  to.  Motions  by  the 
defendant  for  a  verdict  in  its  favor,  for  a  new  trial,  and  in  arrest  of 
judgment  were  all  denied;  and  verdict  and  judgment  were  entered  for 
the  plaintiff.  This  judgment  being  affirmed  in  the  Appellate  Court,  the 
defendant  appeals. 

Magrude;r,  j_  *  *  *  Ji  [^  claimed  by  the  appellant  that  the 
declaration  does  not  set  out  a  cause  of  action. 

The  first  objection  made  to  the  declaration  is  that  it  does  not  charge 
the  defendant  with  negligence.  The  objection  is  not  well  taken.  The 
powder  magazine  kept  by  the  defendant  upon  its  premises  was  so  sit- 
uated with  reference  to  the  dwelling  house  of  the  plaintiff,  that  it  was 
liable  to  inflict  serious  injury  upon  her  person  or  her  property  in  case 
of  an  explosion.  It  was  a  private  nuisance,  and,  therefore,  the  defend- 
ant was  liable  whether  the  powder  was  carefully  kept  or  not.     As  a 

tinually  from  thence  hitherto  hath  been,  and  still  is,  lawfully  possessed  of 
and  in  a  certain  messuage  or  dwelling-house,  with  the  appurtenances,  sit- 
uate and  being  at  the  parish  of ,  in  the  county  of ,  and  by  reason 

thereof,  during  all  the  time  aforesaid,  was  and  still  is  lawfully  entitled  to 
the  use  and  enjoyment  of  a  certain  coach-walk  or  avenue,  and  of  a  certain 
footwalk  or  avenue  there  near  adjoining  and  leading  to  the  said  messuage 
or   dwelling-house,   and   to   the   shade,   shelter,  i^rotection,    and    ornament   of 

divers  trees,  to  wit,  elm  trees  and  lime  trees,  during  all  the 

tim.e  aforesaid,  growing  and  being  in  the  said  walks  or  avenues ;  yet  the 
said  C.  D.  well  knowing  the  premises,  but  contriving  and  wrongfully  intend- 
ing to  hurt,  injure,  and  prejudice  the  said  A.  B.  in  this  behalf,  and  to  obstruct 
him  in  the  use  and  enjoyment  of  the  said  walks  and  avenues,  and  to  deprive 
him  of  the  shade,  shelter,  protection,  and  ornament  of  the  said  trees  there, 
whilst  the  said  A.  B.  was  so  possessed  and  entitled  as  aforesaid,  to  wit,  on 
the  same  day  and  year  aforesaid,  and  on  divers  other  days  and  times  between 
that  day  and  the  day  of  exhibiting  the  bill  of  the  said  A.  B.  at,  etc.,  afore- 
said,  wrongfully  and  injuriously  cut,  lopped,  and  topped  the  said  trees,  to 

wit,  of  the  said  elm  trees,   and of  the  said  lime  trees.     By 

means  whereof  the  said  A.  B.  hath  been  greatly  obstructed  and  prejudiced 
in  the  use  and  enjoyment  of  the  said  walks  and  avenues,  and  hath  been  and 
is  greatly  deprived  of  the  shade,  shelter,  protection,  and  ornament  of  the 
said  trees  so  lopped,  topped,  and  cut  as  aforesaid,  to  wit,  at,  etc.,  aforesaid." 

By  the  middle  of  the  last  century,  however,  the  following  form  was  recog- 
nized as  a  suflk'ient  count  in  trespass  on  the  case  in  nuisance: 

"That  the  plaintiff  was  possessed  of  a  dwelling-house  in  which  he  dwelt, 
and  the  defendant  wrongfully  built  a  brick  kiln  near  thereto,  and  caused 
noxious  and  unwholesome  smells,  wliereby  the  j)lainlifT's  dwelling-house  be- 
came unfit  to  live  in."    See  2  Chitty  on  Pleading  (lUth  Am.  h.d.)  oHi. 


346  TORTS  THROUGH  ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

general  rule,  the  question  of  care  or  want  of  care  is  not  involved  in 
an  action  for  injuries  resulting  from  a  nuisance.  If  actual  injury  re- 
sult from  the  keeping  of  gunpowder,  the  person  keeping  it  will  be  liable 
therefor,  even  though  the  explosion  is  not  chargeable  to  his  personal 
negligence.  Wood's  Law  of  Nuisance  (1st  Ed.)  §§  Th,  115,  130,  142; 
Heeg  V.  Licht,  80  N.  Y.  579,  36  Am.  Rep.  654 ;  Cheatham  v.  Shearon, 
1  Swan  (Tenn.)  213,  55  Am.  Dec.  734;  Stout  v.  IMcAdams,  2  Scam. 
(111.)  67,  33  Am.  Dec.  441 ;  Ottawa  Gas  Co.  v.  Thompson,  39  111.  600; 
Nevins  v.  City  of  Peoria,  41  111.  502,  89  Am.  Dec.  392 ;  Cooper  v.  Ran- 
dall, 53  111.  24;  Elvers  v.  Malcolm,  6  Hill  (N.  Y.)  292,  41  Am.  Dec. 
744;  Hay  v.  Cohoes  Co.,  2  N.  Y.  159,  51  Am.  Dec.  279;  Phinizy  v. 
Augusta,  47  Ga.  263;  Burton  v.  McClellan,  2  Scam.  (111.)  434;  Wier's 
Appeal,  74  Pa.  230. 

The  second  objection  to  the  declaration  is  that  it  does  not  specifically 
aver  the  powder  magazine  to  be  a  nuisance.  It  was  not  necessary  to 
use  the  word  "nuisance,"  if  the  facts  alleged  constituted  a  nuisance. 
The  declaration  avers,  that  it  was  the  duty  of  the  defendant  to  so  use 
Its  premises  as  not  to  jeopardize  the  buildings  of  the  plaintiff,  and  not 
to  store  upon  its  premises  any  dangerous  substance  whereby  plain- 
tiff's property  might  be  destroyed  in  case  of  an  explosion ; 

that  the  defendant  did  keep  upon  its  premises  a  magazine  of  gunpowder, 
dynamite,  etc.,  and  stored  therein  a  large  amount  of  gunpowder,  dynamite, 
etc..  that  the  guniiowder,  dynamite,  etc.,  so  liept  upon  said  premises,  ex- 
ploded, and  that,  by  means  of  such  explosion,  "the  material  of  which  such 
magazine  was  constructed  was  then  and  there  driven  with  great  force  and 
violence  upon  and  against  the  property  of  the  plaintiff  hereinbefore  de- 
scribed," and  that  "the  following  property  of  the  plaintiff  was,  by  means  of 
such  explosion,  struck  by  flying  missiles,  rocks,  and  stones,  and  was  wrecked 
and  torn  by  means  of  the  concussion  of  the  air,  then  and  there  caused  by 
said  explosion,  and  was  totally  destroyed  and  lost,  and  was  of  great  value — 
to  wit:     One  two-story  frame  dwelling,"  etc. 

"A  private  nuisance  is  defined  to  be  anything  done  to  the  hurt  or 
annoyance  of  the  lands,  tenements  or  hereditaments  of  another.  3  Bl. 
Com.  216.  Any  unwarrantable,  unreasonable  or  unlawful  use  by  a 
person  of  his  own  property,  real  or  personal,  to  the  injury  of  another, 
comes  within  the  definition  stated,  and  renders  the  owner  or  possessor 
liable  for  all  damages  arising  from  such  use."  Pleeg  v.  Licht,  80  N.  Y. 
579.  The  averments  of  the  declaration  bring  the  present  case  within 
the  definition  thus  quoted.  The  fact  that  the  magazine  exploded  shows 
that  it  was  dangerous.  The  fact,  that  the  explosion  destroyed  plain- 
tiff's buildings,  shows,  that  the  keeping  of  gunpowder  in  the  magazine, 
considered  with  reference  to  "the  locality,  the  quantity  and  the  sur- 
rounding circumstances,"  constituted  a  nuisance  per  se.  Heeg  v. 
Licht,  supra ;  Wood's  Law  of  Nuisance,  §  142,  supra.     *     *     * 

The  judgment  of  the  Appellate  Court  is  affirmed.*^ 

<7  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 

See  also  Sullivan  v.  Waterman  (1808)  20  R.  I.  372,  375,  3'J  Atl.  24;!,  .39  L. 
R.  A.  773  (the  declaration  did  not  in  terms  allege  that  the  acts  complained 
of  constituted  a  nuisance). 

Magaru  Oil  Co.  v.   Ogle  (1912)   177   Ind.  292,  294,  98  N.  E.  60,  02,  42   L, 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  347 

HOLMES  V.  CORTHELL. 

(Supreme  Judicial  Court  of  Maine,  ISSS.    80  Me.  31,  12  Atl.  730.) 

The  action  was  for  obstructing  a  public  way  by  building  a  stone  wall 
across  it,  whereby  the  plaintiff  claimed  to  have  suffered  special  dam- 
age. 

Haskell,  J.  *  *  *  it  is  settled  in  this  state  that  one  who  suf- 
fers special  injury,  no  matter  how  inconsiderable,  from  a  common  nui- 
sance, may  recover  damages  in  an  action  at  law  from  the  person  creat- 
ing it,  (Rev.  St.  1883,  c.  17,  §  12;  Brown  v.  Watson,  47  Me.  161,  74 
Am.  Dec.  482 ;  Dudley  v.  Kennedy,  63  Me.  465 ;)  and  from  the  per- 
son maintaining  it  after  request  to  abate  it,  (Pillsbury  v.  Moore,  44 
Me.  154,  69  Am.  Dec.  91.)  Three  demurrers  to  the  declaration  have 
been  filed,  and  two  amendments  of  it  have  been  allowed.  To  the  sus- 
taining of  the  last  demurrer  to  the  declaration,  as  finally  amended,  the 
plaintiff'  has  taken  exception.  The  declaration  avers  the  existence  of 
a  public  way,  and  the  obstruction  of  it  by  the  defendant  in  erecting  a 
stone  wall  across  it,  whereby,  on  a  given  day  and  on  divers  other  days 
and  times,  etc.,  the  plaintiff  in  attempting  to  travel  upon  such  way,  was 
"hindered,  obstructed,  and  prevented  from  passing"  along  it,  and  "in- 
curred great  danger  and  suffered  great  pain  and  inconvenience,  in  at- 
tempting to  climb  and  pass  over  said  wall,"  and  thereby  was  injured  in 
his  comfort,  property,  and  the  enjoyment  of  his  estate.  The  plaintiff 
avers  that  he  was  "hindered,"  etc.,  from  passing  along  the  way.  Be 
it  so.  No  averment  shows  any  specific  damage  from  this  hindrance. 
It  does  not  appear  that  upon  any  special  occasion  he  was  thereby  com- 
pelled to  make  a  longer  detour  to  reach  a  particular  place  where  he  had 
need  to  go ;  nor  that  he  lost  any  time  or  was  put  to  any  expense  there- 
by. He  may  have  incurred  danger  and  suffered  pain  in  trying  to  climb 
the  wall,  both  of  which  may  have  resulted  from  his  own  careless  or 
rash  conduct,  for  which  the  defendant  is  not  responsible.  The  plain- 
tiff avers  that  certain  of  the  work-people  in  his  sardine  factory  "were 
hindered  and  prevented  from  going  to  and  attending  to  their  work, 
whereby  he  lost  and  was  deprived  of  their  services."     Suppose  this  to . 

R.  A.  (N.  S.)  714,  Ann.  Cas.  1914D,  67:  "It  is  insisted  that  the  complaint  is 
defective  because  it  contains  no  averment  that  the  plaintiff  was  free  from 
contributory  negligence,  and  no  averment  of  facts  showing  that  plaintiff  could 
not  have  protected  his  property  by  exercising  ordinary  care.  This  theory  is 
untenable.  This  is  not  an  action  for  damages  for  negligence,  but  for  damages 
for  the  maintenance  of  a  nuisance,  and  to  enjoin  or  abate  it.  Sections  291- 
293,  Burns  190S ;  sections  289-291,  R.  S.  18S1.  In  cases  of  this  character, 
the  rules  governing  the  sufficiency  of  complaints  for  negligence  have  no 
application."     Per  Morris,  C.  J. 

Hall  V.  Galloway  (1913)  76  Wash.  42,  50,  135  Pac.  478,  481:  "This  case 
being  an  action  for  damages  for  the  perpetration  of  a  private  nuisance  in- 
jurious to  the  plaiutilf's  property,  the  complaint  was  not  deiuurrahle  l)ecause 
of  its  failure  to  allege  the  specific  items  of  damage  claimed  as  would  have 
been  the  case  had  the  action  been  by  a  private  person  for  special  damages 
sustained  by  reason  of  the  perpetration  of  a  public  nuisance." 


348  TORTS  THROUGH  ACTS  OF    ABSOLUTE  LIABILITY  (Part  1 

be  true,  where  is  the  injury  to  the  plaintiff?     He  does  not  aver  the 
loss  of  their  service  to  be  at  his  cost,  nor  that  their  services,  if  ren- 
dered, would  have  been  of  any  value  to  him.     Upon  this  score  the 
plaintiff  does  not  appear  to  have  suft'ered  any  damage. 
Exceptions  overruled.** 


(b)  Nature  of  the  Plaintiff's  Interest 

WARREN  V.  WEBB. 
(Court  of  Common  Pleas,  1808.     1  Taunt.  379,  127  Eeprint,  880.) 

The  plaintiff  declared  that  he  was  possessed  of  a  dwelling  house  in 
the  parish  of  St.  George  the  Martyr,  in  the  county  of  Surrey,  and 
that  the  defendant  possessed  a  shop  contiguous,  and  a  wooden  spout 
affixed  thereon,  for  carrying  off  the  rain  water  from  the  roof,  which 
spout  it  belonged  to  the  defendant  to  keep  in  such  repair,  that  no  in- 
jury should  happen  to  the  plaintiff's  dwelling  house;  and  alleged  that 
the  defendant  suffered  the  spout  to  be  out  of  repair,  to  wit,  at  West- 
minster, in  the  county  of  Middlesex  aforesaid,  whereby  the  rain  water 
soaked  through  the  spout,  and  penetrated  and  injured  the  plaintiff's 
wall,  to  wit,  at  Westminster,  in  the  said  county.  The  premises  were 
proved  to  be  in  Surrey.  At  the  trial  of  this  cause  at  the  Westminster 
sittings  after  last  Easter  term,  before  Mansfield,  Ch.  J.,  a  verdict  was 
found  for  the  plaintiff',  with  liberty  for  the  defendant  to  move  to  enter 
a  nonsuit,  upon  the  ground  that  this  was  a  local  action,  and  that  the 
venue  ought  to  have  been  laid  in  Svirrey,  where  the  nuisance  v;as  com- 
mitted, whereas  it  was  alleged  to  have  happened  in  Middlesex.  Ac- 
cordingly, Cockell,  Serjt.,  in  Trinity  term  last,  obtained  a  rule  nisi 
to  enter  a  nonsuit. 

Mansfield,  C.  J.  The  objection  taken  in  this  case  was  that  the 
plaintiff  did  not  at  the  trial  support  his  declaration.  The  defendant's 
counsel  supposed  that  in  the  declaration  the  defendant's  house  was 

4  8  The  statement  of  facts  is  abridged  and  part  of  tlie  opinion  is  omitted. 

Accord:  Stone  v.  Wakeuian  (1608)  Noy,  120:  "Yet  for  another  cause  by 
the  Couit  the  plaintiff  shall  not  have  .iudu'meiit  (on  a  motion  in  arrest  of 
judtrment) ;  becuuse  he  hath  not  shewn  how  he  hath  suft'ered  any  pariicuiar 
damage  or  loss  by  that  stopper."  The  action  was  in  case  "for  stopping  of 
a  way."  Sohn  v.  Cambern  (1SS5)  106  Ind.  302,  6  N.  E.  813:  "The  utmost 
that  can  be  said  of  the  facts  stated  in  the  special  finding  is,  that  they  show 
that  the  appellee's  route  to  her  market  town  is  interfered  with  by  the  ob- 
struction placed  in  the  highway,  and  this  is  not  sutlicient  to  entitle  her  to 
maintain  this  action.  *  *  *  It  is  true  that  the  special  finding  states  in 
general  terms  that  the  appellee  has  suffered  special  injury,  but  this  is  a  mere 
statement  of  a  legal  conclusion,  and  is  not  the  statement  of  a  fact.  Special 
fiiulings,  like  special  verdicts,  must  state  facts,  and  not  simply  conclusions 
of  law."  Per  Elliott,  J.  Van  Buskirk  v.  Bond  (11)08)  52  Or.  2.34,  \)(i  l»ac. 
1103:  Suit  by  private  parties  to  enjoin  an  alleged  pulilic  nuisance.  The 
statement  of  the  plaintiff's  damage  was  merely  "that  they  are  peculiarly 
and  particularly  injured  by  reason  of  the  attempted  closing  of  said  roads 
by  the  defendant." 


Ch.  2)  ABSOLUTE    TORTS   OTHER   THAN   TRESPASSES  349 

alleged  to  be  in  ^Middlesex,  and  the  evidence  was  that  the  house  was 
in  Surrey.  On  reading  the  declaration  it  at  first  appeared  to  me  that  the 
videlicet  in  the  county  of  Middlesex,  as  applied  to  a  house  or  anything 
else  in  Surrey,  in  its  nature  local,  is  nonsense,  and  a  contradiction  in 
terms.  And  upon  consideration  the  true  sense  appears  to  be  this :  It 
is  a  description  of  the  house,  a  local  object,  which  it  states  to  be  in 
Middlesex,  and  consequently  the  objection  must  prevail.  If  this  is  not 
a  description  of  the  place  where  the  defendant's  house  is  situated  there 
is  no  description  of  it,  and  if  no  place  is  alleged  in  the  declaration,  it 
must  be  intended  that  the  house  lies  in  the  county  in  which  the  nui- 
sance is  alleged  to  be  committed,  which  is  Middlesex.  Therefore 
quacunque  via  data  the  declaration  is  not  supported.'*'^ 
Rule  absolute. 


M ALONE  V.  LASKEY. 

(In  the  Court  of  Appeal.     [1907]  2  K.  B.  141.) 

Sir  Gore;ll  Barnes,  President. °°  In  this  case  the  plaintiff  sues  the 
defendants  for  damages  for  injuries  sustained  by  her  under  circum- 
stances which  I  will  state  sufficiently  fully  to  indicate  the  point  that 
we  have  to  decide.    The  premises  on  which  the  accident  happened  be- 

4  9  Compare  Fitz.  Ab.  Accion  sur  le  Cas,  pi.  24,  where  it  is  said  by  Mark- 
ham:  '"Si  home  leve  un  fosse  ou  molin  a  travers  de  mou  chymin,  j'avera 
assise  de  nusans  et  mil  aiiter  brief." 

For  the  nature  of  the  Assize  of  Nuisance,  as  a  real  action,  see  3  Bl.  Com. 
221;  Jenks'  Short  Hist.  Eng.  Law,  94;  2  Pollock  and  Maitland,  Hist.  Eng. 
Law,  53:  "To  meet  that  troubling  of  possession  which  is  caused  by  nuisances 
as  distinguished  from  trespasses,  that  is,  by  things  that  are  erected,  made, 
or  done,  not  on  the  soil  possessed  by  the  complainant  but  on  neighbouring 
soil,  there  has  all  along  been  an  'assize  of  nuisance"  which- is  a  supplement 
for  the  novel  disseisin.  Law  endeavours  to  protect  the  person  who  is  seised 
of  land,  not  merely  in  the  possession,  of  the  land,  but  in  the  enjoyment  of 
those  rights  against  his  neighbours  which  he  would  be  entitled  to  were  he 
seised  under  a  good  title."  The  scope  of  the  assize  was  slightly  extended  by 
the  Statute  of  Westminster  II.  "Indeed,  the  narrow  scope  of  the  assize  is 
given  as  an  illustration  of  the  kind  of  evil  the  statute  was  meant  to  remedy." 
And  so  popular  did  the  action  in  the  case  become  that  the  older  remedy  of 
the  assize,  even  where  it  was  available,  soon  tended  to  disappear."  3  Holds- 
worth's  Hist.  Eng.  Law,  8;    Jenks'  Shorter  Hist.  94. 

On  the  continuance  of  the  local  character  of  the  cause  for  a  private  nui- 
sance notwithstanding  its  development  into  a  possible  cause  for  damages 
merely,  compare  40  Cyc.  20,  21,  "Actions  with  a  Ix)cal  Source,"  and  Waits 
V.  Kinney  (184.3)  6  Hill  (N.  T.)  82,  91.  An  analogous  limitation  appears  in  the 
doctrine  as  to  the  character  of  the  cause  to  recover  damages  merely  for  a 
trespass  to  land.  See  40  Cyc.  31,  72 ;  but  see  Little  v.  Chicago,  etc.,  R.  Co. 
(1896)  65  Minn.  48,  53,  67  N.  W.  846,  33  L.  R.  A.  423,  60  Am.   St.  Rep.  421. 

On  both  principle  and  authority  an  action  to  abate  a  nuisance  .should  re- 
main local.  Compare  40  Cyc.  73;  Northern  Indiana  R.  Co.  v.  Miehican 
Cent.  R.  Co.  (18.~).3)  15  How.  (U.  S.)  233,  244,  14  L.  Ed.  674.  And  see  Simmons  v. 
Liliystone  (1853)  8  Exch.  441. 

50  The  reporter's  statement  of  the  case,  the  arguments  of  counsel,  the  con- 
curring opinions  of  Fletcher  Moulton  and  Kennedy,  L.  .TJ.,  and  so  nnich  of 
Sir  Gorell  Barnes'  opinion  as  relates  to  the  question  of  negligence,  are  omit- 
ted.   As  respects  negligence  in  such  a  case,  see  infra. 


350  TORTS  THROUGH  ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

long  to  the  Birkbeck  Building  Society,  and  the  defendants  are  the  trus- 
tees for  that  society.  A  house  which  belonged  to  them  was  let  by  the 
defendants  in  1899  to  Witherby  &  Co.,  who  in  1901  sub-let  a  portion 
to  the  Script  Shorthand  Company.  Malone,  the  plaintiff's  husband,  was 
in  that  company's  employ  and  occupied  a  part  of  the  premises,  ap- 
parently as  part  of  the  consideration  for  his  services  to  his  employers. 
There  was  a  lavatory  in  the  house,  of  which  Malone  and  his  family 
had  the  use  and  apparently  the  exclusive  use;  and  in  the  lavatory 
there  was  flush  cistern,  which  was  fixed  against  the  wall.  About  the 
end  of  1904  the  cistern  was  said  to  be  in  an  unsafe  condition,  and  a 
communication  was  made  by  the  plaintiff  or  her  husband  to  Wither- 
by  &  Co.  on  the  subject.  On  December  26  Witherby  &  Co.  wrote  to 
Priest,  who  was  one  of  the  staff  employed  by  the  defendants,  saying 
that  the  cistern  required  to  be  replaced  and  was  then  in  a  dangerous 
condition.  On  January  6,  1905,  the  plaintiff  wrote  another  letter  of 
complaint  to  the  representative  of  Witherby  &  Co.,  in  which  vibration 
was  alluded  to  as  a  cause  of  the  dangerous  state  of  the  cistern.  The 
vibration  to  which  that  letter  referred  arose  from  the  working  of  an 
electric  light  engine  which  was  worked  by  the  defendants  on  their 
premises  close  to  this  building,  and  its  constant  working  is  said  to  have 
affected  the  security  of  the  cistern  or  tank.  Some  time  in  the  same 
month  the  defendants,  to  whom  the  complaints  had  been  handed  on  by 
Witherby  &  Co.  sent  two  plumbers,  who  were  the  servants  of  the 
defendants  and  part  of  their  permanent  staff,  to  rectify  the  defect  in 
the  condition  of  the  cistern.  The  plumbers  placed  an  iron  bracket  un- 
der the  cistern  to  support  it,  and  were  then  apparently  satisfied  that 
they  had  left  it  secure.  This  unfortunately  turned  out  not  to  be  the 
fact.  In  May,  1905,  while  the  plaintiff  was  in  the  lavatory,  she  was 
injured  by  the  bracket  falling  on  her  and  inflicting  injuries,  to  recover 
damages  for  which  she  brought  the  present  action.  At  the  trial  Dar- 
ling, J.,  left  certain  questions  to  the  jury,  in  answer  to  which  they 
found  that  the  bracket  fell  by  reason  of  the  working  of  the  engine ; 
that  the  working  of  the  engine  amounted  to  a  nuisance;  that  the  plain- 
tiff's injuries  were  the  consequence  thereof ;  that  the  defendants  put 
up  the  bracket  in  an  improper  and  negligent  manner,  and  left  the  ap- 
paratus in  a  dangerous  condition,  and  that  the  plaintiff  was  injured  in 
consequence;  and  they  assessed  the  damages  at  £400.  We  are  now 
asked  to  set  aside  the  judgment  for  the  plaintiff  and  enter  judgment 
for  the  defendants,  or  to  send  the  case  back  for  a  new  trial,  but  the 
substantial  point  argued  has  been  whether  judgment  should  be  entered 
for  the  defendants.  There  is  one  further  fact  which  I  ought  perhaps 
to  mention.  The  plaintiff  said  in  cross-examination  that  she  remem- 
bered that  when  the  new  bracket  was  put  up  she  did  not  think  it  was 
safe,  and  that  she  wrote  again  about  it.  There  is  also  some  evidence 
given  by  the  husband  and  daughter  that  the  tank  shook  after  the  brack- 
et was  put  up.  No  cjuestion,  indeed,  was  put  to  the  jury  as  to  the 
knowledge  of  the  plaintiff  that  the  cistern  was  still  unsafe,  possibly 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  351 

because  the  plaintiff  had  been  considerably  injured  by  the  accident, 
and  her  evidence  was  therefore  kept  as  short  as  possible.  Therefore 
any  discussion  of  the  question  whether  the  plaintiff  knew  the  risk,  and 
accepted  the  position  of  acting  as  though  the  cistern  were  safe,  must 
be  conducted  independently  of  any  finding  of  the  jury  on  the  point. 

The  two  main  questions  argued  before  us  were  (1)  whether  the  plain- 
tiff had  a  cause  of  action  arising  from  the  nuisance  alleged,  which 
question  involves  the  consideration  of  the  first  three  questions  left  to 
the  jury;  and  (2)  whether  there  was  a  cause  of  action  based  on  the 
negligence  of  the  defendants  in  undertaking  to  do  the  work  and  doing 
it  in  such  an  improper  manner  that  injury  resulted  to  the  plaintiff.  As 
to  the  first  question,  I  must  confess  to  feeling  some  doubt  whether 
there  was  any  substantial  evidence  that  the  fall  of  the  bracket  was  due 
to  the  alleged  vibration,  but  that  would  only  aft'ect  the  question  of 
whether  there  should  be  a  new  trial.  I  doubt  whether  the  findings  of 
the  jury  can  be  correct;  the  plaintiff  contended  that  the  use  of  oil  in 
the  engine  had  made  a  change,  but  the  defendants  reverted  from  Jan- 
uary to  May  to  the  use  of  coal ;  and  further,  as  the  engine  had  been 
working  for  years,  it  is  not  likely  to  have  done  this  damage  in  three 
months.  The  main  question,  however,  on  this  part  of  the  case  is 
whether  the  plaintiff  can  maintain  this  action  on  the  ground  of  vibra- 
tion causing  the  damage  complained  of,  and  in  my  opinion  the  plain- 
tiff has  no  cause  of  action  upon  that  ground.  Many  cases  were  cited 
in  the  course  of  the  argument  in  which  it  had  been  held  that  actions 
for  nuisance  could  be  maintained  where  a  person's  rights  of  property 
had  been  aft'ected  by  the  nuisance,  but  no  authority  was  cited,  nor 
in  my  opinion  can  any  principle  of  law  be  formulated,  to  the  effect 
that  a  person  who  has  no  interest  in  property,  no  right  of  occupation 
in  the  proper  sense  of  the  term,  can  maintain  an  action  for  a  nuisance 
arising  from  the  vibration  caused  by  the  working  of  an  engine  in  an 
adjoining  house.  On  that  point,  therefore,  I  think  that  the  plaintiff 
fails,  and  that  she  has  no  cause  of  action  in  respect  of  the  alleged 
nuisance.     *     *     *  ^^ 

Judgment  for  defendants. 


HOSMER  v.  REPUBLIC  IRON  &  STEEL  CO. 

(Supreme  Court  of  Alabama,  1913.     179  Ala.  415,  60  South.  SOI, 
43  L.  R.  A.  [N.  S.]  871.) 

Action  against  the  Steel  Company.  Judgment  for  defendant  on  de- 
murrer, and  plaintiff  appeals. 

The  facts  made  by  the  complaint  are  that,  for  a  long  time  previous 
to  the  grievances  herein  complained  of,  plaintiff  occupied  and  resided 

51  Compare  Hogle  v.  Franklin  Mfg.  Co.  (1910)  199  N.  Y.  388,  92  N.  E.  794, 
32  L.  R.  A.  (N.  S.)  1038,  whore  the  successful  plaintiff  resided  with  her  hns- 
baud  in  a  house  the  lease  of  which  from  the  owuer  was  "in  the  husbund's 
name  as  lessee." 


352  TORTS  THROUGH  ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 

with  his  family,  including  intestate,  who  was  his  son,  upon  land  near 
Greeley,  Ala.,  and  that,  after  plaintiff's  residence  and  occupation  upon 
said  land  had  commenced,  the  defendant  dammed  up  certain  water, 
and  thereby  created  a  pond  near  plaintiff's  residence;  that  defendant 
was  engaged  in  the  development  of  iron  and  other  minerals,  and  had 
caused  said  pond  to  remain  there  for  a  long  time,  and  had  placed  in 
said  pond  various  substances,  which  caused  said  pond  to  give  off  foul 
and  unwholesome  and  noxious  air,  and  caused  said  premises  on  which 
plaintiff  resided  to  become  unhealthy,  causing  plaintiff's  boy  to  be- 
come sick,  so  that  he  died.  The  demurrers  were  that  the  cause  of  ac- 
tion did  not  survive  to  the  personal  representative,  and  that  the  dam- 
ages claimed  did  not  survive;  that  there  was  nothing  to  show  that 
plaintiff's  intestate  was  the  owner  of  the  land,  or  had  any  possessory 
or  leasehold  interest  therein ;  that  the  damages  claimed  are  purely  con- 
sequential ;    and  that  no  right  of  action  was  shown. 

Sayre,  J.  The  eft'ect  of  the  complaint  is  to  aver  that  the  death  of 
plaintiff's  intestate,  on  account  of  which  he  sues,  was  caused  by  an 
issue  of  foul,  unwholesome,  and  noxious  air  from  a  pond  which  de- 
fendant corporation  constructed  in  the  neighborhood  of  his  residence, 
where  intestate,  his  minor  child,  lived  with  him.  We  are  not  required 
to  know  how  plaintiff'  will  prove  the  causation  alleged ;  but,  accepting 
the  allegation  as  true  and  provable  on  demurrer,  there  will  be  no  ques- 
tion but  that  it  shows  damage  peculiar  to  intestate,  not  merely  in  de- 
gree but  in  kind.  The  only  factor  of  the  case  presented  which  it  is 
conceived  may  possibly  be  effective  in  denial  of  the  cause  of  action  as- 
serted is  that  plaintiff's  intestate  owned  no  legal  interest  or  estate  in 
the  land  upon  which  he  lived.  To  sustain  his  contention  that  the  com- 
plaint is  defective  in  this  respect,  appellee  quotes  Blackstone's  defini- 
tion of  nuisance  as  "anything  done  to  the  hurt  or  annoyance  of  the 
lands,  tenements,  or  hereditaments  of  another."  We  have  made  ap- 
proving use  of  that  definition  in  several  cases.  On  this  occasion  it  is 
necessary  to  note  that  the  hurt  or  annoyance  of  the  definition  is  not 
necessarily  a  physical  injury  to  the  lands,  tenements,  or  hereditaments, 
but  may  be  an  injury  to  the  owner  or  possessor  thereof  in  respect  of 
his  dealing  with,  possessing,  or  enjoying  them.  Cooley  on  Torts  (3d 
Ed.)  1174. 

At  the  old  common  law,  a  declaration  in  a  suit  brought  for  the 
physical  abatement  of  a  nuisance  by  the  writ  of  nuisance  was  required 
to  allege  a  freehold  estate  in  the  premises  affected,  but  that  was  be- 
cause the  action  was  a  real  action.  One  modern  way  of  abating  a  nui- 
sance is  by  an  action  on  the  case  for  damages  merely,  in  which  case 
the  declaration  need  only  show  that  the  plaintiff  was  rightfully  in  ])os- 
session  of  the  premises  affected.  14  Ency.  PI.  «&  Pr.  1113.  This  rem- 
edy, however,  is  not  permitted  to  those  who  suffer  only  in  common 
with  the  public ;  for  otherwise,  in  the  language  of  Chief  Justice  Shaw 
in  Quincy  Canal  v.  Newcomb,  7  Mete.  (Mass.)  276,  39  Am.  Dec.  778, 
where  he  was  speaking  of  a  public  nuisance  which  had  not  become  a 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  3^3 

private  nuisance  by  reason  of  special  damage  to  the  plaintiff,  that 
'"would  lead  to  such  a  multiplication  of  suits  as  to  be  itself  an  intol- 
erable evil."  But  that  is  as  far  as  the  best  considered  cases  have  gone 
in  the  policy  of  repressing  litigation  on  account  of  wrongs  done  and 
suffered  through  nuisances,  and  we  apprehend  it  is  as  far  as  the 
courts  ought  to  go  or  will.  This  court,  in  common  with  all  others,  has 
held  that  the  fact  that  a  nuisance  may  have  deleteriously  affected  the 
property  or  personal  well-being  of  others  in  the  neighborhood  does  not 
alleviate  any  material  and  special  injury  done  to  the  plaintiff,  nor 
merge  it  in  the  public  wrong  for  which  the  public  may  have  a  remedy 
in  one  way  or  another.  Richards  v.  Daugherty,  133  Ala.  569,  31 
South.  934.  It  is  obvious  that  to  maintain  an  action  for  an  injury  af- 
fecting the  value  of  the  freehold  the  plaintiff  must  have  a  legal  estate. 
But  if  noxious  vapors  and  the  like  cause  sickness  and  death  to  one 
who  has  a  lawful  habitation  in  the  neighborhood,  no  sufficient  reason 
is  to  be  found  in  the  accepted  definitions  of  nuisance,  nor  in  that  pol- 
icy of  the  courts  which  would  discourage  vexatious  litigation,  nor  in 
the  inherent  justice  of  the  situation,  as  we  see  it,  why  the  person  in- 
jured, or  his  personal  representative  in  case  of  death,  should  not  have 
reparation  in  damages  for  any  special  injury  he  may  have  suffered, 
although  he  has  no  legal  estate  in  the  soil.°-  Certainly  a  child  has  the 
right  to  live  under  his  father's  roof — is  a  lawful  occupant  of  his  fa- 
ther's home — and  in  our  opinion  he  should  be  accorded  the  same  meas- 
ure of  protection  against  the  construction  of  nuisances  in  the  neigh- 
borhood which  are  so  noxious  and  long-continued  as  to  materially  af- 
fect his  physical  well-being.     Ft.  Worth  &  Rio  Grande  Ry.  v.  Glenn, 

52  On  the  widening  theory  of  Nuisance  compare  the  following: 

(I)  "Private  nuisance  is  the  using  or  authorizing  the  use  of  one's  property, 
or  of  anything  under  one's  control,  so  as  to  injuriously  affect  an  owner  or 
occupier  of  property  (a)  by  diminishing  the  value  of  that  property;  (b) 
by  continuously  interfering  with  his  power  of  control  or  enjoyment  of  that 
property ;  (c)  by  causing  material  disturbance  or  annoyance  to  him  in  his 
use  or  occupation  of  that  property."  Pollock's  Draft  of  a  Civil  Wrongs  Bill, 
for  the  Government  of  India  (1886)  §  55. 

(II)  "A  nuisance  consists  in  unlawfully  doing  an  act  or  omitting  to  per- 
form a  duty,  which  act  or  omission  either:  (1)  Annoys,  injures  or  endangers 
the  comfort,  repose,  health  or  safety  of  others;  or  (2)  offends  decency;  or 
(3)  unlawfully  interferes  with,  or  obstructs  or  tends  to  obstruct  or  renders 
dangerous  for  passage  any  lake  or  navigable  river,  bay,  stream,  canal  or 
basin,  or  any  public  park,  square,  street,  or  highway ;  or  (4)  in  any  way 
renders  other  persons  insecure  in  life  or  in  the  use  of  property."  Civ.  Code 
N.  D.  (1877)  §  2(^7;  Rev.  Codes  (190.5)  §  6641;  Comp.  Laws  Okl.  (1909;  § 
4751;    Rev.  Codes  S.  D.  (1903)  §  2393. 

(III)  "Whatever  is  injurious  to  health,  or  indecent  or  offensive  to  the 
senses,  or  an  obstruction  to  the  free  use  of  property,  so  as  essentially  to  in- 
terfere with  the  comfortable  enjoyment  of  life  or  property,  is  a  nuisance,  and 
the  subject  of  an  action."  Rev.  St.  Ind.  (1852)  vol.  2,  pt.  2,  §  628;  Burns'  Ann. 
St.  (1914)  §  291. 

The  same  or  a  similar  enactment,  sometimes  with  further  clau.ses,  appears 
in  Civ.  Code  Cal.  (1906)  §  3479:  Rev.  Codes  Idaho  (1909)'  §  .3656;  Code 
Iowa  (1897)  §  4.302;  Rev.  Laws  Minn.  (1905)  §  4446:  Rev.  Codes  Mont.  (1907) 
§  6162 :    Comp.  Laws  Utah  (1907)  §  3506 ;    Pierce's  Code  Wash.  (1905)  §  1265. 

Hepb.Toets — 23 


354  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

97  Tex.  586,  80  S.  W.  992,  65  L.  R.  A.  818,  104  Am.  St.  Rep.  894,  1 
Ann.  Cas.  2/0.  In  that  case  may  be  found  a  discussion  of  most  of  the 
cases  upon  which  appellee  relies,  and,  while  they  have  had  due  consid- 
eration by  us,  we  have  not  felt  obliged  by  duty  or  expediency  to  repeat 
what  was  there  said.  We  have  stated  our  concurring  conclusion,  and, 
in  a  general  way,  the  reasons  upon  which  we  proceed.  This  must  suf- 
fice. 

The  court  erred  in  sustaining  the  demurrer  as  for  any  ground  as- 
signed, and  the  judgment  will  be  reversed.^^ 


^\  (c)  The  Defendant's  Act 

ROBERTS  et  al.  v.  HARRISON. 

(Supreme  Court  of  Georgia,   1897.     101  Ga.   773,  28  S.   E.   995, 

65  Am.  St.  Rep.  342.) 

Simmons,  C.  J.  A  petition  was  filed  by  Roberts  and  five  others, 
under  section  4760  of  the  Civil  Code,  for  the  removal  of  a  pond  of 
water,  which  had  collected  upon  the  lands  of  W.  O.  Harrison.  The 
jury  returned  a  verdict  finding  the  pond  a  nuisance,  and  the  justices 

6  3  Accord:  Ft.  Wortli  &  Rio  Grande  Ry.  Co.  v.  Glenn  (1909)  97  Tex.  586, 
80  S.  W.  992,  65  L.  R.  A.  818,  104  Am.  St.  Rep.  894,  1  Ann.  Cas.  270:  (D., 
a  railway  company,  permitted  an  old  well  upon  its  right  of  way,  near  laud 
owned  and  occupied  by  P.'s  fattier  and  his  family,  to  become  a  nuisance. 
P.,  an  infant  three  years  old,  was  made  sick  by  noxious  gases  from  this 
nuisance.  P.  at  the  time  was  on  the  premises  as  a  member  of  his  father's 
family,  but  had  no  property  right  in  the  land.) 
vi^  But  see  Ellis  v.  Kansas  Citv,  etc.,  R.  R.  (1876)  63  Mo.  131,  21  Am.  Rep. 
436;  Kavanagh  v.  Barber  (1892)  131  N.  Y.  211,  30  N.  E.  235,  15  L.  R.  A.  0S9 ; 
Hughes  v.  City  of  Auburn  (1899)  161  N.  Y.  96,  55  N.  E.  389,  46  L.  R.  A. 
636.  Compare  "Nuisance,"  29  Cyc.  1257,  1258,  notes  44,  45;  21  Harv.  Law 
Rev.  633. 

Compare  the  remark  of  Powell.  J.,  delivering  the  opinion  in  Towaliga 
Falls  Power  Co.  v.  Sims  (1909)  6  Ga.  App.  749,  65  S.  E.  844:  "At  common 
law  a  nuisance  was  regarded  only  as  in  injury  to  some  interest  in  land. 
Blackstone's  definition  of  a  private  nuisance  is  'anything  done  to  the  hurt 
or  annoyance  of  the  lands,  tenements  or  hereditaments  of  another.'  The 
definition  adopted  in  our  Code  is  broader:  'A  nuisance  is  anything  that 
worketh  hurt,  inconvenience,  or  damage  to  another.'  Civ.  Code  1895,  §  3S61. 
An  examination  of  the  authorities  will  show  that  the  modern  tendency  of  the 
American  courts  is  to  break  away  from  so  much  of  the  common-law  rule  as 
confined  redress  on  account  of  nuisances  to  the  damage  done  to  some  interest 
in  real  property,  and  as  gave  remedy  only  to  persons  having  interests  in 
lands.  An  interesting  case  on  the  subject  is  that  of  Ft.  Worth  &  Rio  Grande 
Ry.  Co.  V.  Glenn,  97  Tex.  586,  80  S.  W.  992,  65  L.  R.  A.  818,  104  Am.  St.  Rep. 
894  [1  Ann.  Cas.  270].  It  is  hardly  consistent  with  the  modern  idea  ol'  legal 
rights,  wrongs,  and  remedies  that  a  husband  living  in  a  house,  the  title  to 
which  is  in  his  wife,  should  not  have  a  cause  of  action  against  one  who  erects 
near  by  a  nuisance  which  sickens  him,  and  causes  him  other  great  losses — 
and  yet  some  courts  go  to  this  extent.  Under  our  Code  we  think  the  rule  is 
not  so  rigid;  but  that  one  who  has  been  specially  endamaged  by  a  nuisance 
can  recover  from  the  wrongdoer,  though  his  damage  consists  in  an  injury  to 
his  pur.se  or  person,  irrespective  of  wliether  he  has  had  an  interest  in  real 
estate  damaged  or  not." 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  355 

of  the  peace  directed  the  sheriff  or  his  deputy  to  enter  upon  the  lands, 
"and  abate  the  nuisance  complained  of  by  removing  said  pond  in  the 
most  feasible  manner."  The  defendant  carried  the  case  by  certiorari 
to  the  superior  court.  There  the  certiorari  was  sustained,  and  the 
judgment  of  the  justices  set  aside,  on  the  ground  that  while,  in  a  sense, 
the  pond  complained  of  is  a  nuisance,  it  is  not  such  a  legal  nuisance  as 
the  justices  of  the  peace  have  jurisdiction  to  abate.  The  area  of  the 
pond  in  question  varied  from  time  to  time,  and  the  water,  partially 
receding,  would  leave  exposed  to  the  sun  portions  of  the  land  which 
had  been  submerged.  In  the  processes  of  evaporation,  and  by  the  de- 
cay of  large  masses  of  vegetable  matter,  noxious  and  deleterious  gases 
were  emitted,  which  were  injurious  to  the  public  health,  and  to  the 
health  of  persons  residing  in  the  community.  The  accumulation  of 
the  water  was  due  solely  to  natural  causes,  and  the  defendant  did  not, 
by  his  own  act  or  negligence,  contribute  to  bring  about  the  alleged  nui- 
sance. At  one  time  the  land  had  been  drained  by  a  ditch  which  emp- 
tied into  a  creek,  but  in  consequence  of  the  filling  in  and  choking  up 
of  either  the  ditch  or  the  creek,  or  both,  the  water  accumulated,  and 
formed  the  pond.  The  defendant  had  done  nothing  to  interfere  with 
the  natural  drainage,  and  the  pond  was  formed  by  the  overflow  of  the 
creek,  due  entirely  to  causes  over  which  the  defendant  had  no  control. 
The  presence  of  the  pond  and  the  attendant  evils  were  doubtless 
annoying,  and  even  injurious,  to  persons  residing  in  the  neighborhood, 
but  we  think  that  they  do  not  constitute  a  nuisance  for  which  the  de- 
fendant can  be  held  answerable,  or  which  he  can  be  compelled,  under 
section  4760  of  the  Civil  Code,  to  abate.  This  court  has  held  that  a 
person  is  not  guilty  of  an  actionable  nuisance  unless  the  injurious  con- 
sequences complained  of  are  the  natural  and  proximate  results  of  his 
own  acts  or  failure  of  duty.  Brimberry  v.  Railway  Co.,  78  Ga.  641, 
3  S.  E.  274,  and  the  cases  there  cited  and  discussed.  This  doctrine, 
we  think,  is  the  true  one,  and  it  is  recognized  as  such  by  all  of  the 
authorities  on  this  point  which  we  have  examined.  In  1  Wood,  Nuis. 
116,  we  find  the  rule  thus  stated:  "Where  water  collects  in  low, 
marshy  places,  and,  by  reason  of  becoming  stagnant,  emits  gases  that 
are  destructive  to  the  health,  and  lives  even,  of  the  community,  this  is 
not  a  nuisance  in  the  legal  sense ;  and  the  owner  of  the  land  is  not 
bound  to  drain  it,  nor  can  he  be  subjected  to  action  or  indictment  there- 
for. The  reason  is  that,  in  order  to  create  a  legal  nuisance,  the  act 
of  man  must  have  contributed  to  its  existence.  Ill  results,  however 
extensive  or  serious,  that  flow  from  natural  causes,  cannot  become  a 
nuisance,  even  though  the  person  upon  whose  premises  the  cause  ex- 
ists could  remove  it  with  little  trouble  and  expense.  *  *  *  Thus 
it  will  be  seen  that  a  nuisance  cannot  arise  from  the  neglect  of  one  to 
remove  that  which  exists  or  arises  from  purely  natural  causes."  See, 
also,  Giles  v.  Walker,  24  O.  B.  Div.  656;  Mohr  v.  Gault,  10  Wis.  513, 
78  Am.  Dec.  687;  Hartwell  v.  Armstrong,  19  Barb.  (N.  Y.)  166; 
State  \.  Rankin,  3  S.  C.  438,  16  Am.  Rep.  7Z7 \   Peck  v.  Herrington, 


35G  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

109  111.  611,  50  Am.  Rep.  62'7;  Woodruff  v.  Fisher,  17  Barb.  (N.  Y.) 
224.  The  facts  of  the  present  case  place  it  within  the  principles  an- 
nounced in  the  cases  above  cited,  and  the  judgment  of  the  justices  of 
the  peace  was  erroneous.  The  certiorari  of  the  defendant  was  prop- 
erly sustained,  and  the  judgment  of  the  justices  set  aside.  Judgment 
affirmed.^* 


MYERS  V.  MALCOLM  et  al. 
(Supreme  Court  of  New  York,  1844.     6  Hill,  292,  41  Am.  Dec.  74  i.) 

Case.  The  action  was  brought  to  recover  damages  for  an  injury 
occasioned  to  the  plaintiff  by  the  explosion  of  a  quantity  of  gunpow- 
der belonging  to  the  defendants.  On  the  trial  it  appeared,  among 
other  things,  that  the  defendants  received  about  600  pounds  of  powder 
in  kegs,  and  placed  it  in  the  loft  of  a  store  in  the  village  of  Syracuse ; 
that  they  were  soon  afterwards  notified  to  remove  it  by  the  trustees 
of  the  village,  and  did  so  by  depositing  it  in  the  upper  story  of  a  car- 
penter's shop ;  that  the  shop  was  built  of  wood,  and  was  situated  on 
the  canal,  within  the  limits  of  the  corporation ;  that  there  was  a  lum- 
ber yard  near  the  shop,  and  several  wooden  buildings,  some  of  which 
were  inhabited  dwellings,  and  others  were  used  as  stables,  etc. ;  and 
that  the  lower  part  of  the  shop  was  occupied  during  the  day  by  a  car- 
penter, but  no  fire  was  allowed  in  it,  and  it  was  locked  up  each  night. 
It  further  appeared  that  the  shop  took  fire  on  the  night  of  August  20, 
1841,  about  five  days  after  the  powder  had  been  deposited  in  it,  and 
that  during  the  progress  of  the  fire  the  powder  exploded,  killing  sev- 
eral persons,  and  seriously  wounding  and  injuring  others,  among 
whom  was  the  plaintiff.     *     *     * 

Nelson,  C.  J.  The  charge  of  the  circuit  judge,  as  detailed  in  the 
bill  of  exceptions,  is  not  very  explicit,  but  we  may  fairly  assume,  I 
think,  that  the  case  was  put  to  the  jury  on  the  question  whether  the 
conduct  of  the  defendants,  in  regard  to  the  manner  of  depositing  the 
powder,  was  such  as  to  render  them  guilty  of  a  public  nuisance ;  and 
if  that  point  has  been  properly  determined  in  favor  of  the  plaintiff, 
then  I  apprehend  his  right  to  private  dam.ages  must  follow  as  a  corol- 
lary.    In  this  view,  the  question  of  negligence  on  the  part  of  the  de- 

5  4  Accord:  Mohr  v.  Gault  (1S60)  10  Wis.  51.'?,  78  Am.  Dec.  687;  Barring 
V.  Commonwealth  (1865)  2  Duv.  (Ky.)  95.  Compare  Giles  v.  Walker  (1890) 
24  Q.  B.  656:  (The  seeds  of  thistles  growing  naturally  on  D.'s  land  are 
blown  by  the  wind  upon  the  land  of  P.) 

See  also  Adams  v.  Popham  (1879)  76  N.  Y.  410:  (D.  erected  on  his  own 
premises  a  dam  across  a  small  stream,  a  sliort  distance  from  P.'s  house ;  the 
water  of  the  pond  made  by  this  dam  was  stagnant,  and  became  filled  with 
unwholesome  matter,  which  poisoned  the  atmosphere,  rendered  the  use  of 
P.'s  premises  dangerous  to  life  and  health,  and  depreciated  its  value.  Held, 
a  nuisance  which  D,  might  be  restrained  from  continuing.)  Richards  v. 
Daugheity  (1902)  1.3.3  Ala.  569,  31  South.  9.34:  (Action  to  abate  a  nuisance 
caused  by  D.'s  building  a  dam  across  a  stream.) 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  357 

fendants,  except  so  far  as  it  may  be  necessarily  involved  in  the  ques- 
tion of  nuisance,  has  very  little,  if  anything,  to  do  with  the  case.  But, 
on  the  other  hand,  if  the  defendants'  conduct  was  not  sufficient  to  ren- 
der them  chargeable  with  the  offense  mentioned,  then  the  whole  gist 
of  the  action  lies  in  negligence,  and  the  inquiry  might  arise  whether 
this  was  so  connected  with  the  injury  as  to  render  the  defendants  lia- 
ble. Perhaps  evidence  enough  was  given  at  the  trial  to  have  justified 
the  judge  in  putting  the  case  to  the  jury  in  either  aspect;  though  the 
most  satisfactory  position  for  the  plaintiff,  I  am  inclined  to  think,  and 
the  one  most  difficult  to  be  answered  by  the  defendants,  is  the  ground 
that  the  depositing  and  keeping  of  the  powder  in  the  exposed  situation 
described  by  the  witnesses,  amounted  to  a  public  nuisance,  and  that 
any  individual  sustaining  a  special  injury  from  the  act,  was  entitled  to 
his  private  damages. 

It  was  not  doubted  in  the  case  of  People  v.  Sands,  1  Johns.  78,  3 
Am.  Dec.  296,  that  the  act  of  carelessly  keeping  fifty  barrels  of  gun- 
powder in  a  house  in  the  village  of  Brooklyn  was  a  nuisance  at  com- 
mon law.  The  allegation  in  the  indictment  there  was,  that  the  defend- 
ants kept  the  barrels  in  a  certain  house  near  the  dwelling  houses  of 
divers  good  citizens,  and  near  a  certain  public  street,  without  other- 
wise characterizing  the  manner  of  keeping  the  article;  and  upon  the 
principle  that  nothing  will  be  intended  or  inferred  to  support  an  in- 
dictment, the  court  said,  for  aught  they  could  see,  the  house  might 
have  been  one  built  and  secured  for  the  very  purpose  of  keeping  pow- 
der in  such  a  way  as  not  to  expose  the  neighborhood.  Spencer,  J., 
dissented,  holding  that  enough  appeared  to  make  the  question  one  for 
the  jury  to  settle,  who  could  inquire  into  the  various  circumstances 
of  place,  quantity,  exposed  situation  of  the  neighborhood,  etc.  In  a 
case  before  Lord  Holt,  Anonymous,  12  Mod.  342,  the  defendant  was 
indicted  and  convicted  for  keeping  several  barrels  of  gunpowder  in 
a  house  in  Brentford  Town,  sometimes  two  days  and  sometimes  a 
week,  till  he  could  conveniently  send  them  to  London.  And  it  was 
there  resolved,  "that  though  gunpowder  be  a  necessary  thing,  and  for 
defense  of  the  kingdom,  yet  if  it  be  kept  in  such  a  place  as  it  is  dan- 
gerous to  the  inhabitants,  or  passengers,  it  will  be  a  nuisance."  In 
Rex  V.  Taylor,  2  Str.  1167,  the  King's  Bench  granted  an  information 
against  the  defendant,  for  a  nuisance,  upon  "affidavits  of  his  keeping 
great  quantities  of  gunpowder,  to  the  endangering:  of  the  church  and 
houses  where  he  lived,"  or,  as  it  should  have  been  expressed,  accord- 
ing to  Burns,  "to  the  endangering  of  the  lives  of  His  Majesty's  sub- 
jects."   2  Burns,  Just.  667,  668;    1  Russ.  Cr.  297,  and  note  "o." 

I  think  the  jury  would  have  been  well  warranted  in  finding  the  de- 
fendants guilty  of  the  offense,  upon  the  facts  disclosed  in  this  case, 
as  it  cannot  be  doubted  that  the  gunpowder  was  deposited  in  a  build- 
ing insufficiently  secured  and  protected,  and  altogether  unfit  for  the 
safe-keeping  of  so  large  a  quantity  of  the  article.  The  situation  of 
the  building  in  other  respects,  moreover,  was  such  as  to  render  the 


358  TORTS  THROUGH   ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 

gunpowder  dangerous  to  the  lives  of  the  citizens ;  for  an  explosion, 
either  by  accident  or  design,  at  any  period  of  time  after  the  deposit, 
would  in  all  human  probability  have  proved  destructive  to  more  or 
less  of  the  inhabitants  residing  in  the  neighborhood. 

Assuming  that  the  jury  were  justified  in  coming  to  this  conclusion, 
the  authorities  are  abundant  to  show  that  the  defendants  were  answer- 
able to  the  plaintiff  for  the  personal  injury  occasioned  by  the  explo- 
sion. The  principle  is  stated  by  Abbott,  C.  J.,  in  Duncan  v.  Thwaites, 
3  Barn.  &  C.  556.  He  there  said :  "I  take  it  to  be  a  general  rule, 
that  a  party  who  sustains  a  special  and  particular  injury  by  an  act 
which  is  unlawful  on  the  ground  of  public  injury,  may  maintain  an 
action  for  his  own  special  injury."  The  following  cases  exemplify 
and  apply  the  principle,  viz.:  Rose  v.  Miles,  4  Maule  &  S.  101  ;  Hen- 
ly  V.  j\Iayor,  etc.,  of  Lyme  Regis,  5  Bing.  91 ;  3  Barn.  &  Ad.  77 ;  s.  c. 
in  error,  1  Bing.  N.  C.  222;  Pierce  v.  Dart,  7  Cow.  609;  Lansing 
V.  Smith,  8  Cow.  146;  s.  c.  in  error,  4  Wend.  25,  21  Am.  Dec.  89,  per 
Walworth,  Chancellor;  Mills  v.  Hall,  9  Wend.  315,  24  Am.  Dec.  160. 
See,  .also,  Mayor,  etc.,  of  N.  Y.  v.  Furze,  3  Hill,  612.     *     *     *  en 


HUBBARD  V.  PRESTON. 

(Supreme  Court  of  Michigan,  1892.     90  Mich.  221,  51  N.  W.  209, 
15  L.  R.  A.  249,  30  Am.  St.  Rep.  426.) 

The  defendant  shot  and  killed  the  plaintiff's  dog.     In  an  action  in 

a  justice's  court,  the  defendant  had  judgment.    The  only  question  sub- 

/  mitted  to  the  jury  on  the  trial  in  the  circuit  court  was  as  to  the  value 

of  the  dog,  which  the  jury  found  to  be  $25,  and  verdict  and  judgment 

were  entered  for  that  amount.     Defendant  brings  error. ^^ 

Long,  J.  On  the  trial  the  defendant  introduced  testimony  tending 
to  show  justification  for  the  killing.     The  court  permitted  the  testi- 

5  5  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point.  A  new 
trial  was  granted  for  error  in  the  admission  of  evidence. 

See  Cheatham  v.  Shearon  (1851)  1  Swan  (Tenn.)  213,  55  Am.  Dec.  734: 
(D.  stored  500  kegs  of  powder  in  a  powder  house  in  a  populous  part  of  a  city ; 
the  powder  house  was  struck  by  lightning  and  the  powder  was  thereby  ex- 
ploded, causing  damage  to  P.) 

Prussak  v.  Hutton  (1898)  30  App.  Div.  66,  51  N.  Y.  Supp.  761:  (A  powder 
house  owned  by  A.,  leased  by  him  as  a  powder  house  to  B.,  and  used  as  such 
by  C,  was  exploded  by  lightning.  Held,  that  if  the  powder  house  was  a  nui- 
sance, A.,  B.,  and  C.  were  all  liable.) 

Kleebauer  v.  Western  Fuse  &  Explosives  Co.  (1902)  69  Pac.  246 ;  Id.  (1903) 
138  Cal.  497,  71  Pac.  617,  60  L.  R.  A.  377,  M  Am.  St.  Rep.  62:  (D.  kejpt 
5,000  pounds  of  gunpowder  stored  in  a  powder  magazine  within  250  yards 
of  numerous  dwellings ;  an  employe  whom  the  police  were  seeking  to  ar- 
rest for  murder  intentionally  exploded  the  powder ;  P.'s  house  near  by  was 
damaged.) 

See  also  Heeg  v.  Licht  (1880)  80  N.  Y.  579,  36  Am.  Rep.  654,  8  Abb.  N.  C 
355 ;   McAndrews  v.  Collerd  (1880)  42  N.  J.  T.aw,  189,  36  Am.  Rep.  508. 

6«The  statement  of  the  case  is  slightly  abridged. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN   TRESPASSES  359 

mony  to  be  introduced,  but  held  that  it  did  not  amount  to  a  justifica- 
tion. The  only  question  raised  in  this  court  is  whether  the  court 
should  have  submitted  that  branch  of  the  case  for  the  determination 
of  the  jury. 

We  think  the  court  was  in  error  in  not  so  doing.  It  appeared  that 
the  defendant  did  not  keep  a  dog;  that  he  lived  on  Bagg  street,  city 
of  Detroit,  and  for  eight  clays  prior  to  the  shooting  he  and  his  family 
had  been  greatly  annoyed  by  the  congregation  of  a  large  number  of 
dogs  about  his  premises,  barking,  quarreling,  and  fighting  there ;  that 
they  came  every  night  upon  his  lawn,  about  his  house,  when  it  became 
dark  (on  two  occasions  he  counted  12  dogs),  and  that  they  kept  up 
their  cries  all  night  at  intervals ;  that  he  complained  to  the  police  on 
three  different  days  prior  to  the  killing,  but  without  any  relief,  and 
he  had  driven  them  away  on  several  nights;  that  the  noise  made  by 
them  kept  the  members  of  his  family  awake,  and  seriously  annoyed 
them;  that  he  did  not  know  the  owners;  that  on  the  night  he  killed 
plaintiff's  dog  he  drove  them  away  twice,  but  they  returned ;  that  he 
could  not  get  near  them,  but  they  would  return ;  that  they  became  an 
intolerable  nuisance,  and  finally,  about  8  o'clock  in  the  evening,  he 
went  out  with  his  revolver,  and  shot  among  them,  while  on  his  lawn. 
He  did  not  know  who  owned  any  of  them,  and  did  not  shoot  at  any 
particular  dog. 

The  defendant  had  a  right  to  protect  his  family  from  such  nuisance ; 
and  it  was  a  question  for  the  jury  whether  he  used  such  means  as 
were  reasonable  and  necessary,  under  the  circumstances,  to  rid  him- 
self of  it." 

The  judgment  must  be  reversed,  with  costs,  and  a  new  trial  ordered. 


MOORE  v.  DAME  BROWNE. 

(Court  of   Queen's   Bench,   1573.     3  Dyer,  319b,   73  Reprint,   723.) 

Trespass  on  the  case  for  the  malicious  turning  aside  of  part  of  a 
course  of  water  of  a  conduit,  which  ran  from  a  fountain  in  Clerken- 
well  to  the  house  of  the  plaintiff,  which  was  the  site  of  the  late  house 
of  the  friars  preachers  s.  the  Black-fryars  London.  The  defendant 
pleaded  not  guilty ;  and  in  evidence  at  Guildhall  at  nisi  prius,  it  ap- 
peared that  Sir  Humphrey  Browne  in  his  life  upon  finding  an  old  pipe 
near  the  main  pipe  lying  in  his  yard,  where  he  had  built  his  new  house 
in  Cow  Lane  in  the  parish  of  Saint  Sepulchre  (which  was  a  house  be- 

07  Compare  Bowers  v.  Horen  (1892)  93  Mich.  420,  53  N.  W.  535,  17  L.  R. 
A.  773,  32  Am.  St.  Rep.  513,  where  tlie  dog  was  liilled  while  trespassing, 
but  there  was  no  nuisance  shown. 

See  also  Brill  v.  Flagler  (1840)  23  Wend.  (N.  Y.)  357;  Herring  v.  Wilton 
(1906)  106  Va.  171,  55  S.  E.  546.  7  L.  R.  A.  (N.  S.)  349,  117  Am.  St.  Rep.  997, 
10  Ann.  Cas.  66,  injunction  against  the  maintenance  of  a  kennel  of  barking 
dogs. 


360  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

longing  to  the  late  monastery  of  Watton  in  the  county  of  York)  made 
a  little  pipe  and  a  cock  out  of  the  main  pipe,  drawing  thereby  water 
to  serve  his  house,  and  to  stop  it  again  at  his  pleasure ;  which  the  said 
Dame  since  the  death  of  her  husband,  when  she  lived  there  had  used 
and  occupied: — and  whether  she  by  that  shall  be  adjudged  guilty,  and 
a  trespasser  upon  this  diversion,  because  she  was  not  the  first  who  di- 
verted, but  her  husband  was,  and  the  wife  only  a  continuer  of  the  di- 
version, was  doubted.  But  because  the  portion  of  the  water  turned 
aside  had  not  continual  course  or  running,  but  was  oftentimes  stopped 
by  the  cock,  and  opened  again  at  the  pleasure  of  the  wife  toties  quoties, 
that  mav  be  called  in  her  a  new  diversion  &:c.  And  so  she  was  found 
guilty,  and  damages  ilO.  And  so  was  the  opinion  of  the  justices  in 
banc. 


HUGHES  et  al.  v.  MUNG. 

(General  Court  of  Maryland,  1796.     Court  of  Appeals,  1797. 
3  Har.  &  McH.  441.) 

This  was  an  action  on  the  case  for  diverting  an  ancient  watercourse. 

By  the  bill  of  exceptions  taken  at  the  trial  it  appears 

the  plaintiffs  made  title  to  the  land  in  the  declaration  mentioned,  called 
Penny  Pack  Pond,  under  a  patent  granted  to  Peter  Rench  in  March,  17o3, 
and  by  him  conveyed  by  deed  of  bargain  and  sale,  duly  executed  and  recorded, 
bearing  date  on  the  13th  November,  1781.  And  to  support  their  action  the 
plaintiffs  offered  evidence  to  prove  that  the  water,  for  the  diversion  of  which 
this  action  is  brought,  formerly  ran  through  the  laud  above  mentioned. 
That  about  27  or  28  years  ago,  George  Nicholas  Mung,  the  father  of  the 
defendant,  diverted  the  said  stream  of  water  from  its  ancient  course,  as 
located  by  the  plaintiffs  upon  the  plats  returned, in  the  cause,  and  turned  it 
into  the  course  in  which  it  now  runs,  as  located  upon  the  said  plats.  The 
plaintiffs  also  offered  evidence  to  prove  that  the  said  stream  of  water  has, 
ever  since  the  said  diversion  by  George  Nicholas  Mung,  run  where  it  now 
runs  as  located  on  the  plats  returned,  and  still  runs  there;  that  the  land 
through  which  the  said  stream  now  runs,  is  held  and  claimed  by  the  de- 
fendant, Jacob  Mung,  and  has  been  so  held  and  claimed  by  him  ever  since 
the  1st  of  Jaiuiary,  1792;  that  the  defendant  ever  since  that  time  has  con- 
tinued, and  still  does  continue,  to  use  the  said  stream  of  water  in  the  chan- 
nel in  which  it  now  runs,  by  watering  his  stock  therein,  by  enclosing  it  within 
his  fences,  and  by  throwing  the  water  thereout  occasionally  upon  his  meadow. 

The  defendant's  counsel  prayed  the  opinion  of  the  court,  that  this 
evidence  was  not  sufficient  in  law  to  enable  the  plaintiffs  to  sustain 
their  action. 

Thd  Court  (Chase  and  Duvall,  JJ.)  were  of  opinion,  and  so  di- 
rected the  jury,  that  an  action  will  lie  for  the  diversion  of  the  water- 
course against  the  person  who  diverted  it,  and  against  any  person  who 
keeps  up  the  obstruction  which  changed  the  watercourse;  but  no  ad- 
ventitious accidental  advantages,  derived  from  the  use  of  the  water 
running  in  its  present  course,  will  amount  to  a  continuance  of  the  nui- 
sance, without  some  act  done  by  the  defendant  to  keep  up  the  obstruc- 
tions occasioning  the  diverting  of  the  course  of  the  stream,  and  that 


Ch.  2)  ABSOLL'TE    TORTS   OTHER  THAN  TRESPASSES  361 

the  present  action  cannot  be  supported  without  showing  those  acts 
were  done  since  the  title  of  the  plaintiffs  accrued  to  the  lands  called 
Penny  Pack  Pond. 

To  this  opinion  the  plaintiffs  excepted,  and  appealed  to  the  Court 
of  Appeals. 

The  Court  of  Appeals,  at  June  term,  1797,  affirmed  the  judgment. 


LEAHAN  V.  COCHRAN. 

(Supreme  Judicial  Court  of  Massachusetts,  1901.     178  Mass.  566, 
60  N.  E.  382,  53  L.  R.  A.  891,  86  Am.  St.  Rep.  506.) 

The  evidence  tended  to  show  the  following  facts : 

Affixed  to  the  house  of  the  defendant  was  a  conductor,  constructed  and 
used  for  the  purpose  of  carrying  water  from  the  roof  to  the  public  sidewalk 
adjoining ;  there  was  a  groove  in  the  sidewalk,  extending  from  the  end  of 
the  conductor  to  the  outer  edge  of  the  sidewalk ;  the  water  from  the  con- 
ductor had  frozen  in  and  about  the  groove  upon  the  sidewalk ;  and  the  plain- 
tiff while  traveling,  in  the  exercise  of  due  care,  over  the  ice,  was  injured. 
The  evidence  warranted  a  finding  that  in  the  winter  the  natural  and  probable 
result  of  the  situation  would  be  the  formation  of  ice  upon  the  sidewalk, 
which  would  be  dangerous  to  public  travel,  and  therefore  a  public  nuisance. 
At  the  time  of  the  accident  the  defendant  had  been  the  owner  of  the  house 
for  several  years,  and  there  was  no  evidence  that  the  defendant  constructed 
the  building,  the  conductor,  the  groove,  or  the  sidewalk ;  and  it  appeared 
that  the  condition  of  the  conductor  at  the  time  of  the  purchase  was,  and  ever 
since  had  been,  the  same  as  at  the  time  of  the  accident.  There  was  no  evi- 
dence that  the  defendant  ever  had  been  requested  by  the  plaintiff,  or  by  any 
other  person,  to  reform  the  nuisance,  or  that  the  plaintiff  ever  complained 
of  it  to  the  defendant. 

There  was  a  judgment  for  the  plaintiff  and  the  defendant  brought 
exceptions. 

Hammond,  J.  The  action  is  at  common  law  and  the  question  wheth- 
er the  notice  requisite  to  the  maintenance  of  an  action,  under  Pub. 
St.  c.  52,  §  19,  was  given,  is  immaterial.  It  is  not  argued  that  the  evi- 
dence did  not  warrant  a  finding  that  this  conductor  in  its  natural  op- 
eration did  create  a  nuisance  in  the  highway.  The  only  question  pre- 
sented is  whether  the  court  erred  in  declining  to  give  the  second  and 
third  rulings  requested  by  the  defendant.  These  requests  raise  the 
question  whether,  the  situation  being  the  same  as  at  the  time  of  the 
purchase  by  the  defendant,  she  can  be  held  answerable  to  the  plaintiff, 
in  the  absence  of  any  request  made  to  her  to  reform  the  nuisance. 
There  can  be  no  doubt  that  in  the  case  of  a  private  nuisance  the  gen- 
eral doctrine  in  this  country,  following  Penruddock's  Case,  5  Coke, 
100,  is  that  the  grantee  of  land  upon  which,  at  the  time  of  the  grant, 
there  exists  a  nuisance  created  by  his  predecessors  in  title,  is  not  re- 
sponsible merely  because  he  has  become  the  owner  of  the  land.  His 
liability  arises  from  his  knowingly  continuing  the  nuisance  in  its  orig- 
inal state  unless  he  has  had  notice  to  abate,  or,  at  least,  until  he  has 
had  knowledge  that  it  is  a  nuisance,  and  injurious  to  the  rights   of 


3G2  TOllTS   THROUGH   ACTS   OF   ABSOLUTE    LIABILITY  (Part  1 

Others ;  and,  while  there  is  some  dissent  from  this  doctrine  (see  opin- 
ion of  Denio,  J.,  in  Brown  v.  Railroad  Co.,  12  N.  Y.  486 ;  of  Strong, 
J.,  in  Hubbard  v.  Russell,  24  Barb.  [N.  Y.]  404;  and  of  Manning,  J., 
in  Caldwell  v.  Gale,  11  Mich.  77),  still  it  must  be  regarded  as  the  law 
of  this  commonwealth  (McDonough  v.  Oilman,  3  Allen,  264,  80  Am. 
Dec.  72  and  cases  cited).  The  cases  are  numerous  in  which  this  doc- 
trine has  been  applied  to  private  nuisances,  but  with  the  exception  of 
Woram  v.  Noble,  41  Hun  (N.  Y.)  398,  we  have  seen  no  case  where 
the  doctrine  has  been  directly  applied  to  the  case  of  a  public  nuisance, 
although  in  Wenzlick  v.  McCotter,  87  N.  Y.  122,  41  Am.  Rep.  358, 
and  Dodge  v.  Stacy,  39  Vt.  558,  the  court  seems  to  have  failed  to  no- 
tice any  difference  in  this  respect  between  private  and  public  nui- 
sances. 

We  think  the  rule  should  not  be  extended  to  a  public  nuisance  like 
that  in  this  case.  The  reason  generally  given  for  the  rule  is  that,  in 
the  absence  of  any  notice  to  the  contrary,  the  grantee  has  the  right  to 
assume  that  the  structures  upon  the  land  are  rightfully  there,  and  that, 
even  where  they  may  seem  to  interfere  with  the  usual  rights  appurte- 
nant to  other  estates,  he  may  properly  assume  that  the  right  thus  to 
interfere  has  been  lawfully  obtained,  and  it  is  said  that  it  would  be 
inequitable  to  subject  him  to  damages  until  he  has  had  notice  that  in 
maintaining  the  structure  or  work  complained  of  he  is  infringing  upon 
the  rights  of  others.  The  reason  of  the  rule  is  not  applicable  to  a  case 
like  this.  The  conductor,  in  its  natural  and  intended  use,  caused  ice 
to  form  upon  the  sidewalk,  which,  being  dangerous  to  public  travel, 
was  a  public  nuisance.  No  matter  how  often  the  ice  was  formed,  the 
right  thus  to  incumber  the  street  could  not  be  lawful.  The  right  to 
create  such  a  nuisance  was  not  a  matter  of  grant,  nor  could  it  have 
been  acquired  by  prescription.  City  of  Holyoke  v.  Hadley  Water- 
Power  Co.,  174  Mass.  424,  426,  54  N.  E.  889;  Inhabitants  of  New 
Salem  v.  Eagle  Mill  Co.,  138  Mass.  8.  In  so  far  as  the  conductor, 
by  its  natural  operation,  caused  the  formation  of  such  ice,  it  created  a 
nuisance.  The  defendant,  as  owner,  must  have  known  this,  or  must  be 
presumed  to  have  known  it.  In  such  a  case,  the  reason  for  the  re- 
quirement of  notice  does  not  exist,  and  we  see  no  reason  why  the  rule 
should  be  applied.  See  Matthews  v.  Railway  Co.,  26  Mo.  App.  7h. 
Exceptions  overruled. 


ROSEWELL  V.  PRIOR. 

(Court  of  King's  Bench,  1701.    2  Salk.  460,  91  Reprint,  397.)  ns 

In  an  action  upon  the  case,  for  that  the  plaintiff  being  seised  of  an 
ancient  house  and  lights,  the  defendant  had  erected,  etc.,  whereby  they 
were  stopped.  There  was  a  former  recovery  for  this  erection,  and 
this  action  was  for  the  continuance ;  and  the  case  was,  tenant  for  years 

B8  S.  C,  elaborately  reported,  in  12  Mod.  6.3.'>,  88  Reprint,  1570. 


Ch.  2)  ABSOLUTE    TORTS   OTHER   THAN   TRESPASSES  363 

erected  a  nuisance,  and  afterwards  made  an  under-lease  to  J.  S.  The 
question  was,  whether,  after  a  recovery  against  the  first  tenant  for 
years  for  the  erection,  an  action  would  lie  against  him  for  the  contin- 
uance after  he  had  made  an  under-lease? 

Et  PER  Cur.  It  lies ;  for  he  transferred  it  with  the  original  wrong, 
and  his  demise  affirms  the  continuance  of  it :  he  hath  also  rent  as  a 
consideration  for  the  continuance,  and  therefore  ought  to  answer  the 
damage  it  occasions.  Vide  Jones,  272.  Receipt  of  rent  is  upholding 
2  Cro.  372,  555.  The  action  lies  against  either  at  the  plaintiff's  elec- 
tion. ^^ 


LAMBTON  V.  MELLISH. 

LAMBTON  V.  COX. 

(Chancery  Division.     [1894]  3  Ch.   163.) 

The  plaintiflf  moved  against  the  defendant  in  each  action  for  an 
injunction  restraining  him  from  playing  any  organ  so  as  to  cause  a 
nuisance  or  injury  to  the  plaintiff  or  his  family  or  other  occupiers  of 
the  plaintiff's  property.    The  following  facts  were  shown :  V 

The  plaintiff  was  the  lessee  and  occupier  of  a  house  adjoining  Ash- 
stead  Common  in  Surrey.  The  premises  of  the  defendant  Mellish 
were  about  60  yards  from  the  plaintiff's  premises ;  those  of  the  de- 
fendant Cox  were  about  120  yards  from  the  plaintiff's  premises  and 
about  100  yards  from  those  of  the  defendant  Mellish,  and  were  sep- 
arated from  both  by  a  line  of  railway.  During  the  summer  months 
a  large  number  of  school  treats  and  assemblages  of  that  description 
took  place  on  Ashstead  Common.  The  defendants  Mellish  and  Cox 
were  rival  refreshment  contractors  who  catered  for  visitors  and  ex- 
cursionists to  the  common,  and  both  the  defendants  had  merry-go- 
rounds  on  their  premises,  and  were  in  the  habit  of  using  organs  as  an 

69  See  also  Todd  v.  Flight  (1860)  9  C.  B.  (N.  S.)  377,  389. 

In  Plumer  v.  Harper  (1824)  3  N.  H.  88,  14  Am.  Dec.  333,  where  the  original 
creator  of  the  nuisance  had  conveyed  the  property  in  fee,  Richardson,  C.  J., 
remarks:  "If  the  question  which  this  case  presents  were  now  to  be  decided 
for  the  first  time,  it  seems  to  us  that  it  would  be  very  difficult  to  find  a 
good  reason  why  the  original  wrongdoer  should  be  discharged  by  conveying 
the  land.  The  injury  has  no  connection  with  the  ownership  of  the  land.  If 
A.  enter  into  the  land  of  B.,  and  there  erect  a  dam,  which  causes  the  water 
to  overflow  B.'s  land,  there  can  be  no  doubt  that  he  will  be  liable  for  any 
damage  resulting  from  such  overflowing.  So  if  A.  enters  B.'s  land  and  there 
erects  a  nuisance  to  the  prejudice  of  C,  it  is  clear  that  A.  will  be  liable  to 
C.  When  he  who  erects  the  nuisance  conveys  the  land,  he  docs  not  transfer 
the  liability  to  his  grantee.  For  it  is  agreed  in  all  the  books  that  the 
grantee  is  not  liable  until,  upon  request,  he  refuses  to  remove  the  nuisance. 
It  does  not  make  the  original  act  less  injurious  because  the  grantee  adopts 
it ;  and  we  are  not  aware  that  in  any  action  against  an  individual  for  a  turt 
it  can  be  a  good  defense  to  show  that  a  third  person  has  assented  to  the 
wrong,  and  thus  become  liable." 

Compare  Mansfield  v  Teuney  (1909)  202  Mass.  312,  88  N.  E.  892,  25  L.  R. 
A.  (N.  S.)  731,  and  note. 


/ 


364  TOUTS   THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

accompaniment  to  the  amusements.  These  organs  for  three  months 
or  more  in  the  summer  were  played  continuously  together  from  about 
10  a.  m.  till  6  p.  m.  and  the  noise  caused  by  the  two  organs  was 
"maddening." 

The  organ  used  by  Mellish  had  been  changed  and  it  was  alleged  by 
him  that  the  organ  in  use  when  the  motion  was  made  was  a  small 
portable  hand-organ  making  comparatively  little  noise.  That  used  by 
Cox  was  a  much  larger  one  provided  with  trumpet  stops  and  emitting 
sounds  which  could  be  heard  at  the  distance  of  one  mile. 

Whitehorne,  Q.  C,  and  Butcher,  for  the  defendant  Mellish:  What 
Mellish  is  doing  is  in  itself  lawful,  and  no  injunction  will  be  granted 
to  restrain  a  man  from  doing  that  which  is  lawful,  and  which  if  taken 
by  itself  is  no  nuisance.  To  obtain  an  injunction  the  plaintiff  must 
shew  that  Mellish  is  acting  in  concert  with  Cox.  It  does  not  follow 
that  if  an  injunction  will  lie  against  Cox  it  will  necessarily  lie  against 
Mellish.  Thorpe  v.  Brumfitt,  Law  Rep.  8  Ch.  650,  has  no  applica- 
tion, as  there  the  acts  complained  of  were  in  themselves  unlawful. 

Chitty,  J.  *  *  *  ®°  A  man  may  tolerate  a  nuisance  for  a  short 
period.  A  passer-by  or  a  by-stander  would  not  find  any  nuisance 
in  these  organs;  but  the  case  is  very  different  when  the  noise  has  to 
be  continuously  endured :  under  such  circumstances  it  is  scarcely  an 
exaggeration  to  term  it  "maddening,"  going  on,  as  it  does,  hour  after 
hour,  day  after  day,  and  month  after  month.  I  consider  that  the 
noise  made  by  each  defendant,  taken  separately,  amounts  to  a  nui- 
sance. But  I  go  further.  It  was  said  for  the  defendant  Mellish  that 
two  rights  cannot  make  a  wrong — by  that  it  was  meant  that  if  one 
man  makes  a  noise  not  of  a  kind,  duration,  or  degree  sufficient  to 
constitute  a  nuisance,  and  another  man,  not  acting  in  concert  with 
the  first,  makes  a  similar  noise  at  the  same  time,  each  is  responsible 
only  for  the  noise  made  by  himself,  and  not  also  for  that  made  by 
the  other.  If  the  two  agreed  and  acted  in  combination  each  would 
be  a  wrongdoer.  If  a  man  shouts  outside  a  house  for  most  of  the 
day,  and  another  man,  who  is  his  rival  (for  it  is  to  be  remembered 
that  these  defendants  are  rivals),  does  the  same,  has  the  inhabiiant  of 
the  house  no  remedy?  It  is  said  that  that  is  only  so  much  the  worse 
for  the  inhabitant.  On  the  ground  of  common  sense  it  must  be  the 
other  way.  Each  of  the  men  is  making  a  noise  and  each  is  adding 
his  quantum  until  the  whole  constitutes  a  nuisance.  Each  hears  the 
other,  and  is  adding  to  the  sum  which  makes  up  the  nuisance.  In 
my  opinion  each  is  separately  liable,  and  I  think  it  would  be  contrary 
to  good  sense,  and,  indeed,  contrary  to  law,  to  hold  otherwise.  It 
would  be  contrary  to  common  sense  that  the  inhabitants  of  the  house 
should  be  left  without  remedy  at  law.  I  think  the  point  falls  within 
the  principle  laid  down  by  Lord  Justice  James  in  Thorpe  v.  Brumfitt, 
Law  Rep.  8  Ch.  650.     That  was  a  case  of  obstructing  a  right  of  way, 

60  The  statement  of  the  case  is  abridged,  and  a  part  of  the  opinion  is 
omitted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  365 

but  such  obstruction  was  a  nuisance  in  the  old  phraseology  of  the 
law.  *  *  *  61  There  is  in  my  opinion  no  distinction  in  these  re- 
spects between  the  case  of  a  right  of  way  and  the  case,  such  as  this 
is,  of  a  nuisance  by  noise.  If  the  acts  of  two  persons,  each  being 
aware  of  what  the  other  is  doing,  amount  in  the  aggregate  to  what 
is  an  actionable  wrong,  each  is  amenable  to  the  remedy  against  the 
aggregate  cause  of  complaint.  The  defendants  here  are  both  re- 
sponsible for  the  noise  as  a  whole  so- far  as  it  constitutes  a  nuisance 
affecting  the  plaintiff,  and  each  must  be  restrained  in  respect  of  his 
own  share  in  making  the  noise.  I  therefore  grant  an  interim  in- 
junction in  both  the  actions  in  the  terms  of  the  notices  of  motion. 


RICH  V.  BASTERFIELD. 

(Court  of  Common  Pleas,  1847.     4  C.  B.  783,  136  Reprint,  715,  72  R.  R.  716.) 

Cresswell,  J.^"  This  was  an  action  on  the  case,  in  which  the  dec- 
laration alleged  that  the  plaintiff  had  been  and  was  possessed  of  a 
messuage,  etc.,  which  he  and  his  family  occupied;  that  the  defend- 
ant was  possessed  of  two  messuages  and  yards  near  to  the  plaintiff's 
messuage;  and  that  the  defendant,  contriving  to  injure  the  plaintiff 
and  his  family  in  their  occupation  etc.,  on,  etc.,  erected  certain  shops 
and  chimneys  on  the  defendant's  said  yards,  near  to  the  plaintiff's 
house,  and  continued  the  same  there,  and  lighted  fires  in  the  said 
shop,  and  caused  smoke,  etc.,  to  issue  from  the  said  chimneys ;  where- 
by the  plaintiff's  messuage  was  rendered  unhealthy,  and  he  was  com- 
pelled to  keep  his  windows  closed,  to  exclude  the  smoke,  and  was 
prevented  obtaining  fresh  air,  and  the  plaintiff  and  his  family  were 
annoyed  and  prejudiced  in  the  occupation  of  his  messuage,  etc.  The 
defendant  pleaded — first,  not  guilty — secondly,  that  he,  the  defendant, 
was  not  possessed  of  the  said  yards  and  shops. 

At  the  trial  before  my  Brother  Erie,  at  the  sittings  in  Middlesex 
after  Hilary  term,  1846,  it  appeared  in  evidence  that  the  plaintiff  was 
possessed  of  a  house,  No.  10,  and  the  defendant  of  two  other  houses, 
being  Nos.  12  and  13,  in  the  New  Road,  east  of  Tottenham  Court 
Road ;  that  the  houses  stand  a  considerable  distance  back  from  the 
road;  that,  in  front  of  the  defendant's  houses,  the  defendant  some 
time  since  erected  two  low  buildings,  which  were  let  as  shops ;  that 
he  afterwards  put  a  stove  into  one  of  the  shops,  from  which  the  smoke 
was  at  first  carried  under  ground  into  one  of  the  chimneys  of  the 

61  Mr.  Justice  Chitty  here  quoted  the  remark  of  Lord  Justice  James  in 
Thorpe  v.  Brumfitt  (1873)  L.  R.  8  Ch.  G50,  656,  which  is  given  infra,  p.  406, 
in  note  to  Delaware  &  Hudson  Canal  Co.  v.  Torrey. 

c2The  reporter's  statement,  the  arguments  of  counsel,  and  a  portion  of 
the  opinion  are  omitted. 


366  TORTS  THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

house  behind  it;  but,  that  plan  not  answering,  that  he  afterwards 
erected  a  chimney;  and  that  the  shop,  with  the  stove  and  chimney, 
was  subsequently  let  to  a  tenant  from  week  to  week,  who  occupied  it 
at  the  time  when  the  nuisance  to  the  plaintiff's  house  was  said  to  have 
been  committed,  and  by  whom  the  fires  complained  of  were  made. 

A  former  occupier  stated  that  he  used  to  make  fires  in  the  stove, 
principally  of  coke,  and  that  no  smoke  which  could  be  at  all  injurious 
then  issued  from  the  chimney.  The  fires  made  by  the  present  oc- 
cupier caused  a  good  deal  of  smoke  to  issue,  which,  when  the  wind 
blew  towards  the  plaintiff's  house,  was  driven  to  it,  and  compelled 
him  to  keep  his  windows  shut. 

Upon  this  evidence,  it  was  contended,  for  the  defendant,  that  he 
was  entitled  to  a  verdict  on  both  issues ;  for,  that  the  act  of  his  ten- 
ant in  making  fires,  could  not  be  considered  as  his  act,  and  therefore 
he  was  not  guilty ;  and  that,  the  tenant  being  in  possession  at  the  time 
when  the  nuisance  was  said  to  have  been  committed,  the  defendant 
was  entitled  to  a  verdict  on  the  issue  of  not  possessed,  also. 

The  learned  judge  reserved  to  the  defendant  leave  to  move  to  en- 
ter a  verdict  in  his  favour,  and  left  to  the  jury  the  question  whether 
the  defendant  made  a  reasonable  use  of  his  rights  in  respect  of  the 
property  in  question  in  a  reasonable  place;  and  they  found  for  the 
plaintiff.     *     *     * 

It  was  not  contended,  either  at  nisi  prius,  or  on  the  argument,  that 
the  chimney  erected  by  the  defendant  was  itself  a  nuisance ;  and,  un- 
less used  in  a  manner  which  caused  smoke  to  issue,  so  as  to  prejudice 
the  plaintiff  in  the  occupation  of  his  own  premises,  no  complaint  could 
have  been  made  against  it.  The  landlord,  therefore,  did  not  let  the 
premises  with  any  existing  nuisance  upon  them ;  if  he  had,  by  letting 
and  receiving  rent  for  them  in  that  condition,  he  would  have  been 
liable  for  continuing  and  upholding  the  nuisance,  as  in  Rosewell  v. 
Prior.  Nor  had  he  entered  into  any  contract,  express  or  implied,  with 
the  tenant,  to  mal<e  fires  of  any  kind.  The  latter  might  have  wholly 
abstained  from  making  fires,  without  being  subjected  to  any  complaint 
by  the  landlord ;  or  he  might  have  made  fires  so  that  no  inconvenience 
to  the  plaintiff  would  have  ensued,  by  using  coke,  which  was  the  course 
adopted  by  the  former  occupier.  Shearman ;  or  he  might  have  ab- 
stained from  making  fires  at  all,  when  the  wind  was  in  such  a  direc- 
tion as  to  carry  the  smoke  to  the  plaintiff's  house. 

It  being,  therefore,  quite  possible  for  the  tenant  to  occupy  the  shop 
without  making  fires,  and  quite  optional  on  his  part  to  make  them  or 
not,  or  to  make  them  with  certain  times  excepted,  so  as  not  to  annoy 
the  plaintiff,  or  in  such  a  manner  as  not  to  create  any  quantity  of 
smoke  that  could  be  deemed  a  nuisance, — it  seems  impossible  to  say 
that  the  tenant  was,  in  any  sense,  the  servant  or  agent  of  the  defend- 
ant, in  doing  the  acts  complained  of.  The  utmost  that  can  be  imputed 
to  the  defendant,  is,  that  he  enabled  the  tenant  to  make  fires,  if  he 
pleased. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  367 

The  case,  then,  resting,  not  upon  the  erection  of  the  chimney,  but 
upon  the  subsequent  use  of  it  by  tenant,  can  the  defendant,  his  land- 
lord, be  held  to  be  guilty  of  the  nuisance? 

Several  cases  have  occurred  in  which  the  owners  of  fixed  property 
have  been  held  liable  for  the  consequences  of  acts  done  upon  it  by 
persons  not  strictly  their  servants  or  agents.  But  the  principle  on 
which  those  cases  proceeded,  and  the  limits  within  which  they  should 
be  restrained,  are  clearly  laid  down  by  Littledale,  J.,  in  Laugher  v. 
Pointer,  5  B.  &  C.  547,  8  D.  &  R.  556;  which  judgment  is  cited  with 
much  just  approbation,  and  adopted  by  the  Court  of  Exchequer,  in 
Quarman  v.  Burnett,  6  M.  &  W.  499.  The  principle  stated  by  Mr. 
Justice  Littledale  is  that,  where  a  man  is  in  possession  of  fixed  prop- 
erty, he  must  take  care  that  his  property  is  so  used  and  managed  that 
other  persons  are  not  injured;  and  that,  whether  his  property  be 
managed  by  his  own  immediate  servants,  or  by  contractors  or  their 
servants.     =;=     *     * 

For  the  reasons  already  given,  we  think  that  the  verdict  must  be 
entered  for  the  defendant  on  the  plea  of  not  guilty,  as  well  as  on  the 
issue  of  not  possessed,  which  refers  to  the  time  when  the  nuisance 
was  created. 

Rule  accorded.^* 


HOGLE  v.  H.  H.  FRAXKLIN  MFG.  CO. 

(Court  of  Appeals  of  NeAv  York,  1910.     199  N.  Y.  3S8,  92  N.  E.  794, 

32  L.  R.  A.  [N.  S.]  1038.) 

For  several  years  prior  to  the  21st  of  August,  1906,  the  plaintiff 
resided  with  her  husband  in  a  house  on  West  Marcellus  street  in  the 
city  of  Syracuse,  the  lease  from  James  Doheny,  the  owrier,  being  in 
the  husband's  name  as  lessee.     The  lot  upon  which  the  house  stands 

6  3  See  Harris  v.  James  (1876)  45  L.  J.  Q.  B.  545,  and  Rex  v.  Pedley  (1834) 
1  Ad.  &  El.  822,  for  a  different  application  of  the  principle  when  the  occupa- 
tion reasonably  contemplated  by  a  landlord  is  likely  to  produce  a  nuisance, 
or  the  landlord  "lets  a  building  which  requires  particular  care  to  prevent 
the  occupation  from  being  a  nuisance,  and  the  nuisance  occurs  for  want  of 
such  care  on  the  part  of  the  tenant." 

Compare  Barker  v.  Herbert,  [1911]  2  K.  B.  633,  C.  A.:  (The  defendant  was 
the  owner  in  possession  of  a  vacant  house  in  a  street,  with  an  area  which 
adjoined  the  highway.  One  of  the  rails  of  the  area  railings  had  been  broken 
away  by  boys  playing  football  in  the  street,  and,  consequently,  a  gap  had  been 
created  in  the  railings.  The  plaintiff,  a  child,  got  through  this  gap  from 
the  street,  and  was  clambering  along  inside  the  railings,  when  he  fell  into 
the  area,  and  sustained  injuries  through  the  fall.  In  an  action  brought  on 
his  l>ehalf  to  recover  damages  from  the  defendant  in  respect  of  his  injuries, 
the  jury  found,  in  answer  to  questions  left  to  yiem,  that  the  area  was, 
when  the  accident  happened,  a  nuisance,  but  that  the  defendant  did  not 
know,  at  the  time  of  the  accident,  that  the  rail  had  been  removed,  that 
such  a  time  had  not  elapsed  after  its  removal  that  he  would  have  known 
of  it  at  the  time  of  the  accident,  if  he  had  used  reasonable  oaro.  and  that  he 
had  used  reasonable  care  to  prevent  the  premises  from  becoming  dangerous 
to  persons  using  the  highway.) 


368  TORTS  THROUGH  ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

is  34  by  100  feet,  and  the  rear  thereof  adjoins  the  land  of  the  defend- 
ant, upon  which  there  is  a  large  building  several  hundred  feet  long 
used  for  the  manufacture  of  automobiles.  Between  the  lot  on  which 
the  defendant's  factory  stands  and  the  lot  occupied  by  the  plaintiff 
and  her  husband,  which  for  convenience  will  be  called  the  plaintiff's 
lot,  there  is  a  vacant  space  ten  feet  wide  which  is  not  used  for  storage 
or  dumping  purposes,  or  for  any  purpose  except  the  admission  of 
light  and  air.  At  the  rear  of  the  plaintiff's  lot  is  a  tight  board  fence 
six  feet  high,  and  the  space  between  the  fence  and  her  house,  20  by 
34  feet,  is  used  as  a  garden.  Each  floor  of  the  factory  has  windows 
overlooking  the  plaintiff's  premises,  and  on  each  of  said  floors  are 
many  mechanics  and  laborers  in  the  employ  of  the  defendant. 

For  eighteen  months  prior  to  the  21st  of  August,  1906,  the  employes 
of  the  defendant  had  habitually  thrown  small  pieces  of  iron,  such  as 
nuts,  the  ends  of  bolts  and  the  like,  from  the  upper  windows  of  its 
factory  upon  the  rear  of  the  plaintiff's  lot.  Mr.  Hogle,  who  was  not 
at  home  much  in  the  daytime,  saw  such  objects  thrown  from  the  third 
story  of  the  factory  at  least  a  dozen  times,  some  of  w^hich  struck  his 
house  and  others  fell  in  the  yard  at  the  rear.  This  was  after  6  o'clock 
in  the  evening,  but  when  the  men  w^ere  still  at  work  in  the  factory. 
He  took  a  handful  of  the  nuts  and  bolts  collected  from  the  garden 
to  Mr.  Franklin,  the  president  of  the  defendant,  stated  the  facts  to 
him,  and  said  he  wanted  the  practice  stopped,  for  he  was  afraid  some 
one  w'ould  get  hurt.  Mr.  Franklin  replied  that  he  was  glad  to  learn 
what  had  happened  and  would  see  that  it  was  stopped.  Mr.  Doheny, 
the  lessor  of  the  plaintiff,  complained  on  several  occasions  to  the  as- 
sistant manager  of  the  defendant,  who  said  he  would  do  all  he  could 
to  stop  the  annoyance. 

The  practice,  however,  continued  and  increased,  although  Mr, 
Franklin  and  his  foreman  forbade  it  and  threatened  to  discharge  any 
one  who  w'as  seen  to  throw  anything  upon  the  plaintiff's  lot.  A  little 
son  of  the  plaintiff  was  hit  by  a  nut  when  playing  in  the  backyard. 
On  another  occasion  a  pail  of  dirty  water  was  thrown  upon  him,  and 
on  still  another  tobacco  spittle  hit  him  on  the  head.  Mrs.  Hogle  tes- 
tified that  she  saw  nuts,  pieces  of  bolts,  etc.,  thrown  on  her  lot  and  at 
the  children  playing  there  on  the  average  once  a  day  from  the  spring 
of  1905  until  in  August,  1906.  Once  she  saw  a  rattail  file  thrown  from 
the  window  on  the  third  floor  and  saw  it  pass  over  her  little  boy  and 
strike  the  ground  behind  him.  These  objects,  which  for  convenience 
counsel  called  missiles,  came  from  the  windows  of  defendant's  factory 
and  mainly  from  those  on  the  third  floor.  She  saw  many  of  them 
when  they  were  thrown  by  defendant's  workmen  from  the  windows  of 
its  factory. 

On  the  21st  of  August,  1906,  she  went  out  into  her  garden  and 
looking  up  saw  men  at  work  and  heard  them  talking  by  the  windows 
of  the  third  floor,  which  were  open.  As  she  was  kneeling  on  one  knee 
about  ten  feet  from  the  rear  of  her  lot  to  pull  some  radishes,  she 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  369 

caught  a  side  glance  of  some  object  coming  from  the  direction  of  the 
third  floor  and  at  once  was  hit  by  a  piece  of  iron  upon  her  arm  just 
below  the  shoulder.  She  produced  the  iron  in  court  and  the  injury 
inflicted  by  it  was  somewhat  severe. 

Upon  the  first  trial,  when  the  complaint  was  based  wholly  on  negli- 
gence, she  had  a  verdict,  which  was  set  aside  by  the  trial  justice  upon 
the  ground  that,  as  the  acts  of  the  defendant's  workmen  were  not  done 
within  the  scope  of  their  employment,  an  action  for  negligence  would 
not  lie,  but  it  was  pointedly  suggested  in  the  opinion  that  an  action  for 
nuisance  was  the  proper  remedy.  The  com.plaint  was  thereupon  so 
amended  as  to  rest  both  on  negligence  and  nuisance.  Upon  the  second 
trial  also  the  plaintiff  had  a  verdict  and  the  judgment  entered  thereon 
was  affirmed  by  the  Appellate  Division,  one  of  the  justices  dissenting. 
The  defendant  now  appeals  to  this  court. 

Van'N,  J.  *  *  *  ^Ys  the  Appellate  Division  held,  and  as  we 
think,  the  evidence  warranted  the  jury  in  finding  that  the  piece  of  iron 
which  injured  the  plaintiff  was  maliciously  thrown  from  a  window 
of  the  defendant's  factory  by  one  of  its  workmen,  and  that  for  more 
than  a  year  it  had  been  the  practice  of  its  workmen,  maliciously,  or  in 
a  spirit  of  mischief,  to  throw  similar  objects  from  the  windows  of  its 
factory  upon  the  premises  adjoining  where  plaintiff  lived,  with  the 
knowledge  of  the  defendant,  but  without  its  consent  and  in  violation 
of  its  orders. 

The  defendant  contends — and  its  motion  for  a  nonsuit  was  based 
on  the  ground — "that  there  can  be  no  recovery  in  this  case  unless  the 
jury  should  find  that  this  piece  of  iron  was  thrown  upon  plaintiff's 
premises  as  a  necessary  consequence  of  the  work  being  carried  on  there 
or  as  an  incident  to  it."  The  refusal  to  so  hold  is  the  main  assignment 
of  error  on  this  appeal. 

While  we  all  think  that  the  recovery  should  be  sustained  we  differ 
somewhat  as  to  the  exact  theory  upon  which  it  should  be  based.  No 
request  that  the  plaintiff  should  elect  between  the  theory  of  nuisance 
and  that  of  negligence  was  made  at  the  trial,  and  the  complaint  was 
adapted  to  either.  The  trial  judge  did  not  name  the  action,  but  treat- 
ed it  as  an  action  on  the  case.  If  the  evidence  established  a  cause  of 
action  for  negligence  in  failing  to  take  reasonable  precautions  to  sup- 
press the  evil  practice,  such  as  closing  the  windows  or  screening  them 
with  wire  netting  or  setting  a  watch  upon  the  men  or  some  other  of 
like  character,  the  defendant  cannot  complain.  Such  negligence  would 
rest,  not  on  the  throwing  of  the  missiles,  as  they  were  not  thrown  in 
furtherance  of  the  master's  business,  but  on  not  using  reasonable  care 
to  prevent  them  from  being  thrown.  In  other  words,  it  would  rest  on 
a  relative,  and  not  on  an  absolute,  duty.  If,  on  the  other  hand,  the 
evidence  established  an  action  for  nuisance,  the  rulings  of  the  court 
were  more  favorable  to  the  defendant  than  it  was  entitled  to,  because 
the  liability  for  injury  from  a  nuisance  is  not  relative,  but  absolute, 
Hepb. Torts — 24 


370  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

and  proof  of  negligence  on  the  one  hand  and  the  absence  thereof  on 
the  other  is  not  required. 

The  line  between  protracted  and  habitual  negligence  and  nuisance  is 
not  easily  drawn,  and  facts  may  exist  which  call  for  damages  on  either 
theory  when  the  pleadings  are  appropriate,  as  in  this  case,  to  either 
kind  of  relief.  High  authority  is  not  wanting  to  sustain  the  judgment 
below  on  the  ground  of  negligence  pure  and  simple.  Thus,  in  an  im- 
portant case,  the  plaintiff  was  a  workman  employed  by  the  defendant 
railroad  at  its  workshop  in  the  city  of  Washington.  When  returning 
from  his  day's  labor,  he  stopped  at  the  intersection  of  two  streets  to 
enable  a  repair  train  to  pass  him.  For  a  long  time  prior  it  had  been 
the  custom  of  the  defendant  to  allow  its  workmen,  who  went  out  on 
a  repair  train  in  the  morning,  to  bring  back  with  them  on  their  return 
in  the  evening  sticks  of  refuse  timber  for  their  individual  use  as  fire- 
wood, and  these  men  were  in  the  habit  of  throwing  the  sticks  off  the 
train  while  in  motion  at  the  points  nearest  their  own  homes ;  but  they 
had  been  cautioned  by  the  company  not  to  injure  any  one  in  doing  so. 
As  the  defendant's  train  passed  the  plaintiff,  such  a  piece  of  refuse 
wood  was  thrown  from  it  by  one  of  the  men  and,  striking  the  ground, 
rebounded,  struck  the  plaintiff,  and  injured  him  seriously.  Upon  the 
trial  of  an  action  to  recover  damages,  after  proving  these  facts,  the 
plaintiff  rested,  and  defendant  moved  for  a  verdict  in  its  favor,  and 
the  motion  was  granted.  Upon  appeal  to  the  Court  of  Appeals  of  the 
District  of  Columbia  the  judgment  was  affirmed;  but  upon  further 
appeal  to  the  Supreme  Court  of  the  United  States  it  was  reversed,  on 
the  ground  that  the  jury  could  have  found  the  defendant  guilty  of 
negligence.  Fletcher  v.  Baltimore  &  Potomac  R.  R.  Co.,  168  U.  S. 
135,  18  Sup.  Ct.  35,  42  L.  Ed.  411.  Mr.  Justice  Peckham,  writing  for 
all  the  judges,  said:  "Negligence  on  the  part  of  the  company  is  the 
basis  of  its  liability,  and  the  mere  failure  to  prevent  a  single  and  dan- 
gerous act,  as  above  stated,  would  not  prove  its  existence.  *  *  * 
If  the  act  on  the  car  were  such  as  to  permit  the  jury  to  find  that  it 
was  one  from  which,  as  a  result,  injury  to  a  person  on  the  street 
might  reasonably  be  feared,  and  if  acts  of  a  like  nature  had  been  and 
were  habitually  performed  by  those  upon  the  car  to  the  knowledge 
of  the  agents  or  servants  of  the  defendant,  who  with  such  knowledge 
permitted  their  continuance,  then  in  such  case  the  jury  might  find 
the  defendant  guilty  of  negligence  in  having  permitted  the  act  and 
liable  for  the  injury  resulting  therefrom,  notwithstanding  the  act  was 
that  of  an  employe  and  beyond  the  scope  of  his  employment  and  to- 
tally disconnected  therewith.  *  *  *  It  is  not  a  question  of  scope 
of  employment  or  that  the  act  of  the  individual  is  performed  by  one 
who  has  ceased  for  the  time  being  to  be  in  the  employment  of  the 
company.  The  question  is :  Does  the  company  owe  any  duty  wliat- 
ever  to  the  general  public,  or,  in  other  words,  to  individuals  who  may 
be  in  the  streets  through  which  its  railroad  tracks  arc  laid,  to  use 
reasonable  diligence  to  see  to  it  that  those  who  are  on  its  trains  shall 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  371 

not  be  guilty  of  any  act  which  might  reasonably  be  called  dangerous 
and  liable  to  result  in  injuries  to  persons  on  the  street,  where  such 
act  could  by  the  exercise  of  reasonable  diligence  on  the  part  of  the 
company  have  been  prevented  ?  We  think  the  company  does  owe  such 
a  duty  and  if  through  and  in  consequence  of  its  neglect  of  that  duty 
an  act  is  performed  by  a  passenger  or  employe  which  is  one  of  a 
series  of  the  same  kind  of  acts  and  which  the  company  had  knowledge 
of  and  had  acquiesced  in,  and  if  the  act  be  in  its  nature  a  dangerous 
one,  and  a  person  lawfully  on  the  street  is  injured  as  a  result  of  such 
an  act,  the  company  is  liable.  Any  other  rule  would  in  our  opinion  be 
most  disastrous,  and  would  be  founded  upon  no  sound  principle." 
See,  also,  Swinarton  v.  Le  Boutillier,  7  Misc.  Rep.  639,  28  N.  Y. 
Supp.  53,  affirmed  148  N.  Y.  752,  43  N.  E.  990;  Dwyer  v.  D.  &  H. 
Canal  Co.,  17  App.  Div.  623,  47  N.  Y.  Supp.  1135. 

The  defendant  had  reason  to  believe  that  missiles  would  be  thrown 
from  its  premises  upon  those  of  the  plaintiff  in  the  future,  as  they 
had  been  continuously  in  the  past,  and  that  they  might  hurt  some  one. 
It  took  some  precautions  to  prevent  the  evil ;  but  they  were  not  ef- 
fective, and  the  defendant  knew  they  were  not.  It  could  not  remain 
quiet  and  let  the  practice  go  on.  The  jury  could  properly  say  that 
in  the  exercise  of  reasonable  care  in  the  management  of  its  own  prop- 
erty, so  as  to  prevent  an  injury  reasonably  to  be  expected  to  its  neigh- 
bor's property  and  person,  it  should  have  taken  further  precautions, 
and  that  it  was  negligent  in  not  having  done  so.  This  would  lead  to 
an  affirmance  on  the  ground  of  negligence,  the  real  ground  upon  which 
the  case  was  sent  to  the  jury.  I  am  personally  of  the  opinion,  how- 
ever, that  the  practice  complained  of  was  a  nuisance  as  matter  of 
fact,  if  the  jury  so  found.  "Sic  utere  tuo  ut  ahenum  non  laedas,"  is 
an  old  maxim  of  the  law,  which  applies  both  to  the  use  made  and  the 
use  knowingly  suffered  to  be  made  of  one's  own  property  while  he 
is  in  full  control  thereof.  It  is  a  trespass  for  the  owner  of  one  lot  to 
throw  anything  upon  the  adjoining  lot  of  his  neighbor.  The  defend- 
ant furnished  the  place  from  which  and  the  means  with  which  habitual 
trespasses,  calculated  to  inflict  personal  injury,  were  committed  on  the 
adjoining  premises  of  the  plaintiff.  The  defendant  knew  of  the  prac- 
tice and  knew  that  it  had  existed  a  long  time,  and,  while  some  efforts 
were  made  to  prevent  it,  the  evil  continued  and  even  grew  worse. 
An  occasional  trespass  of  this  kind  committed  by  the  defendant's 
workmen  would  not  warrant  a  jury  in  finding  it  guilty  of  suffering 
or  maintaining  a  nuisance;  but,  when  the  practice  became  habitual 
and  the  injury  was  direct,  substantial,  and  well  known,  I  think  the 
duty  of  the  defendant  became  absolute,  and  that  it  was  guilty  of 
suft'ering  a  nuisance  to  continue  on  its  land  if  it  did  not  prevent  the 
evil. 

In  a  recent  case,  without  attempting  a  general  definition  of  a 
nuisance,  we  said  that :  "If  the  natural  tendency  of  the  act  complain- 
ed of  is  to  create  danger  and  inflict  injury  upon  person  or  property. 


372  TORTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

it  may  properly  be  found  a  nuisance  as  matter  of  fact;  but,  if  the  act 
in  its  inherent  nature  is  so  hazardous  as  to  make  the  danger  extreme 
and  serious  injury  so  probable  as  to  be  almost  a  certainty,  it  should 
be  held  a  nuisance  as  matter  of  law."  Melker  v.  City  of  New  York, 
190  N.  Y.  481,  488,  83  N.  E.  565,  567,  16  L.  R.  A.  (N.  S.)  621,  13 
Ann.  Cas.  544.  See,  also,  Sullivan  v.  Dunham,  161  N.  Y.  290,  55 
N.  E.  923,  47  L.  R.  A.  715,  76  Am.  St.  Rep.  274;  McCarty  v. 
Natural  Carbonic  Gas  Co.,  189  N.  Y.  40,  81  N.  E.  549,  13  L.  R.  A. 
(N.  S.)  465,  12  Ann.  Cas.  840.  While  that  definition  implies  that  the 
act  is  that  of  the  defendant,  I  think  the  same  rule  should  apply  when 
a  series  of  acts  extending  over  many  months  is  committed  by  men  in 
the  employment  of  the  defendant,  to  its  knowledge,  with  its  personal 
property  and  while  standing  on  its  premises,  even  if  the  acts  are  with- 
out the  line  of  its  business.  Although  the  defendant  did  not  com- 
mit the  injuries  nor  sanction  them,  it  suffered  them  to  continue  for  so 
long  a  period  as  to  make  them  its  own,  or  so  at  least  the  jury  could 
find.  It  is  a  nuisance  for  one  to  permit  a  crowd  to  habitually  gather 
on  his  land  and  by  boisterous  singing,  obscene  language,  and  other 
disorderly  conduct  to  seriously  annoy  his  next-door  neighbor.  It  is 
immaterial  whether  the  acts  are  committed  by  his  own  workmen  or 
by  strangers,  so  long  as  they  are  committed  on  his  land,  constantly 
and  with  his  knowledge. 

It  is  the  duty  of  the  owner  of  premises  to  prevent  them  from  being 
made  a  constant  source  of  injury  to  others,  and  it  is  upon  this  prin- 
ciple that  suffering  a  foul  water  closet  to  exist  in  a  crowded  neigh- 
borhood is  held  a  nuisance.  The  decaying  carcasses  of  animals, 
whether  placed  on  his  land  by  the  owner  or  not,  hogpens,  cesspools, 
dangerous  structures,  explosives  and  the  like,  while  all  are  depend- 
ent on  the  surrounding  circumstances  and  on  the  degree  of  danger  or 
annoyance,  may  be  found  nuisances  in  fact.  Although  the  mere  own- 
ership of  land  may  impose  no  liability  for  a  nuisance  thereon,  or  com- 
mitted therefrom,  still  if  the  owner  suffers  his  premises  to  become 
the  stand  point  for  the  habitual  infliction  of  injuries  upon  his  neigh- 
bor, and  such  injuries  could  not  be  inflicted  without  standing  on  such 
land,  he  may  be  held  liable  by  the  jury  as  a  principal.  He  suffers 
the  evil  to  exist  on  his  land,  if,  while  in  the  full  possession  and  con- 
trol thereof,  he  knows  that  it  exists  thereon  and  he  does  not  abate  it 
within  a  reasonalDle  time  and  under  reasonable  circumstances,  both 
time  and  circumstances  ordinarily  being  for  the  jury. 

I  think  that  upon  the  facts  as  they  are  presumed  to  have  been  found 
by  the  jury  the  defendant  was  guilty  of  suffering  a  nuisance  to  exist 
and  continue  on  its  premises,  and  that  it  is  liable  for  the  injury  re- 
sulting therefrom  to  the  plaintiff  without  proof  of  negligence  or  its 
incidents. 

The  judgment  should  be  affirmed,  with  costs,®* 

«*  Part  of  the  opinion  is  omitted. 


Ch,  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  373 

(d)  Kinds   and   Degrees   of   the   Annoyance  es 

WALTER  V.  SELFE. 

(High  Court  of  Chancery,  ISul.    4  De  Gex.  &  Sm.  315,  64  Reprint,  849.) 

This  was  a  motion  for  an  injunction  to  restrain  the  defendant  from 
SO  burning  bricks  on  a  strip  of  ground  belonging  to  the  defendant 
as  to  occasion  annoyance  to  the  plaintiffs  or  damage  to  the  buildings 
or  the  trees  and  shrubbery  on  the  plaintiffs'  premises. ^^"^ 

The  Vice-Chancellor  (Sir  J.  h.  Knight  Bruce).  *  *  * 
One  of  the  plaintiffs  sues  as  the  owner,  and  the  other  as  his  tenant 
and  the  occupier,  of  a  parcel  of  land  at  Surbiton,  in  Surrey,  of  which 
a  dwelling-house,  with  outbuildings  appurtenant  to  it,  stands  on  part, 
and  other  part  consists  of  a  garden  or  pleasure-ground  or  both,  also 
belonging  to  the  house. 

It  is  admitted  that  the  house  was  built  before  the  year  1829,  and  has 
been  used  and  occupied  as  a  dwelling-house  from  a  time  preceding 
that  year.  The  land  on  its  northwestern  part  adjoins  a  portion  of  a 
parcel  of  land,  containing  more  than  an  acre,  but  less  than  two  acres 
in  the  whole,  which  belongs  to  the  defendant,  and  on  which,  in  the 
spring  or  early  in  the  summer  of  the  year  1850,  he  began  to  manufac- 
ture bricks  of  the  clay  of  the  earth  of  the  same  land  by  burning,  in 
what  is,  I  believe,  a  common  mode  of  manufacturing  them, — by  means 
of  a  clamp,  that  is  to  say,  not  a  kiln.  It  does  not  appear  that,  before 
the  year  1850,  any  manufacture  or  process  of  that  sort,  or  of  any  of- 
fensive, objectionable  or  disagreeable  kind,  had  been  begun  upon  any 
portion  of  this  parcel  of  land,  or  carried  on  there.     *     *     * 

The  first  point,  disputed  or  not  conceded,  is  the  question  whether,  as 
between  the  defendant  in  his  character  of  a  person  owning,  using  and 
occupying  his  parcel  of  land  that  has  been  mentioned  on  the  one  hand, 
and  the  plaintiffs  in  their  characters  of  owner  and  occupier  of  the 
house,  offices  and  garden  occupied  by  the  plaintiff',  Mr.  Pressly,  on  the 
other  hand,  Mr.  Pressly  is  entitled  to  an  untainted  and  unpolluted 
stream  of  air  for  the  necessary  supply  and  reasonable  use  of  himself 
and  his  family  there,  or,  in  other  words,  to  have  there  for  the  ordi- 
nary purposes  of  breath  and  life  an  unpolluted  and  untainted  atmos- 

6  5  "It  would  be  dangerous  to  attempt  any  exhaustive  list  of  specific  nui- 
sances ;  for  it  is  to  be  expected  that,  with  changes  in  social  and  industrial 
habits,  new  examples  will  continually  arise,  and,  possibly,  old  ones  disappear 
from  the  list."  Jenks'  Digest  of  Eng.  Civil  Law,  bk.  II,  pt.  3,  p.  401  (1907), 
where  12  classes  of  well-known  instances  are  mentioned.  See  also  the 
14  classes  of  "Nuisances  in  Respect  of  Particular  Matters,"  in  Halsbury's 
Laws  of  England,  vol.  21,  pp.  513-546,  the  10  classes  in  Salmond,  Torts 
184,  185,  note  (1910),  and  the  125  heads  of  nuisance  in  29  Cyc.  1165-1184. 
A  valuable  collection  of  specific  nuisances,  within  the  doctrine  of  one  state, 
can  be  found  in  Popper  &  Lewis'  Pennsylvania  Digest,  cc.  2.3938-24026. 

c!  The  .statement  of  the  case  is  abridged,  and  portions  of  the  opinion  are 
omitted. 


374  TORTS  THROUGH   ACTS   OP    ABSOLUTE   LIABILITY  (Part  1 

phere ;  and  there  can,  I  think,  be  no  doubt  upon  the  facts  and  law 
but  that  this  question  must  be  answered  in  the  affirmative,  meaning, 
by  "untainted"  and  "unpolkited,"  not  necessarily  air  as  fresh,  free 
and  pure  as  at  the  time  of  building  the  plaintiffs'  house  the  atmos- 
phere there  was,  but  air  not  rendered  to  an  important  degree  less  com- 
patible, or  at  least  not  rendered  incompatible,  with  the  physical  com- 
fort of  human  existence,  a  phrase  to  be  understood  of  course  with 
reference  to  the  climate  and  habits  of  England. 

It  is  next  to  be  considered  whether  the  defendant  has  interfered  or 
purposes  to  interfere  materially  with  this  right  of  the  plaintiff's,  or  of 
the  plaintiff,  Mr.  Pressly. 

That  the  process  of  manufacturing  bricks  by  burning  them  on  the 
defendant's  land,  in  the  manner  begun  and  now  intended  by  him,  must 
communicate  smoke,  vapours  and  floating  substances  of  some  kinds 
to  the  air  is  certain.  I  think  it  plain  also,  from  the  relative  positions 
of  the  two  properties,  that  this  smoke  and  these  vapours  and  floating 
substances,  the  burning  being  to  the  westward  of  the  defendant's  own 
house,  must  wholly  or  to  a  great  extent  enter  and  become  mixed  with 
the  air  supplying  the  plaintiffs'  house,  and  part  at  least  of  the  garden 
or  pleasure-ground  belonging  to  it,  and  this  without  being  previously 
so  dispersed  or  attenuated  as  to  become  imperceptible,  or  be  materially 
impaired  or  diminished  in  force.  I  conceive  that  the  plaintiff's'  house, 
and  at  least  part  of  its  pleasure-ground  or  garden,  must  generally  or 
often,  if  the  manufacture  shall  proceed,  be  subjected  substantially,  as 
far  as  the  quality  of  the  atmosphere  is  concerned,  to  the  original  and 
full  strength  of  the  mixture  and  dose  thus  produced.  I  speak  without 
forgetting  the  trees  that  stand  along  the  line  of  the  boundary,  and 
without  assuming  their  continuance,  or  the  contrary. 

The  question  then  arises  whether  this  is  or  will  be  an  inconvenience 
to  the  occupier  of  the  plaintiffs'  house  as  occupier  of  it,  a  question 
which  must,  I  think,  be  answered  in  the  affirmative;  though,  whether 
to  the  extent  of  being  noxious  to  human  health,  to  animal  health,  in 
any  sense,  or  to  vegetable  health,  I  do  not  say  nor  deem  it  necessary 
to  intimate  an  opinion ;  ^^    for  it  is  with  a  private  not  a  public  nui- 

6  7  Compare  Campbell  v.  Seaman  (1876)  63  N.  Y.  568,  20  Am.  Rep.  567: 
(D.,  a  large  manfacturer  of  bricks  from  clay  upon  his  own  land,  used  a 
process  which  caused  each  kiln  to  give  out.  for  at  least  two  days  of  its 
burning,  a  volume  of  sulphurous  acid  gas.  While  D.  was  thus  making  bricks, 
P.  built  a  handsome  residence  on  the  adjoining  property.  The  residence 
stood  in  some  40  acres  of  ornamental  grounds.  The  gas  from  D.'s  kilns  de- 
stroys P.'s  white  and  yellow  pines  and  Norway  spruces  and  damages  his 
grape  vines.  P.  seeks  an  injunction.  Said  Earl,  J.,  delivering  the  opinion: 
"Tlie  plaintiffs  had  built  a  costly  mansion  and  had  laid  out  their  grounds 
and  planted  them  with  ornamental  and  useful  trees  and  vines,  for  their  com- 
fort and  enjoyment.  How  can  one  be  compensated  in  damages  for  the  de- 
struction of  his  ornamental  trees,  and  the  flowers  and  vines  which  sxir- 
rounded  his  home?  How  can  a  jury  estimate  their  value  in  dollars  and  centsV 
Tlie  fact  that  trees  and  vines  are  for  ornament  or  luxury  entitles  them  no  loss 
to  the  protection  of  the  law.  Every  one  has  the  right  to  surround  himself 
with  articles  of  luxury,  and  he  will  be  no  less  protected  than  one  who  pro- 


Ch,  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  375 

sance  that  the  defendant  is  charged.  And  both  on  principle  and  au- 
thority the  important  point  next  for  decision  may  properly,  I  conceive, 
be  thus  put :  Ought  this  inconvenience  to  be  considered  in  fact  as 
more  than  fanciful,  more  than  one  of  mere  delicacy  or  fastidiousness, 
as  an  inconvenience  materially  interfering  with  the  ordinary  comfort 
physically  of  human  existence,  not  merely  according  to  elegant  or 
dainty  modes  and  habits  of  living,  but  according  to  plain  and  sober 
and  simple  notions  among  the  English  people? 

And  I  am  of  opinion  that  this  point  is  against  the  defendant.  As 
far  as  the  human  frame  in  an  average  state  of  health  at  least  is  con- 
cerned, mere  insalubrity,  mere  unwholesomeness,  may  possibly,  as  I 
have  said,  be  out  of  the  case,  but  the  same  may  perhaps  be  asserted 
of  stied  hogs,  melting  tallow,  and  other  such  inventions  less  sweet 
than  useful.  That  does  not  decide  the  dispute ;  a  smell  may  be  sick- 
ening though  not  in  a  medical  sense.  Ingredients  may,  I  believe,  be 
mixed  with  air  of  such  a  nature  as  to  affect  the  palate  disagreeably 
and  oft'ensively,  though  not  unwholesomely.  A  man's  body  may  be 
in  a  state  of  chronic  discomfort,  still  retaining  its  health,  and  perhaps 
even  suft'er  more  annoyance  from  nauseous  or  fetid  air  for  being  in 
a  hale  condition.  Nor,  I  repeat,  do  I  think  it  incumbent  on  the  plain- 
tiff's to  establish  that  vegetable  life  or  vegetable  health,  either  univer- 
sally or  in  particular  instances,  is  noxiously  affected  by  the  contact  of 
vapours  and  floating  substances  proceeding  from  burning  bricks ;  for, 
as  I  said,  they  have  I  think  established  that  the  defendant's  intended 
proceedings  will,  if  prosecuted,  abridge  and  diminish  seriously  and 
materially  the  ordinary  comfort  of  existence  to  the  occupier  and  in- 
mates of  the  plaintiff's'  house  (whatever  their  rank  or  station,  what- 
ever their  age,  whatever  their  state  of  health).     *     *     *  es 

vides  himself  only  with  .articles  of  necessity.  The  law  will  protect  a  llowei- 
or  a  vine  as  well  as  an  oak.  Cook  v.  Forbes  [1867]  L.  R.  5  Eq.  Ca.  166  ; 
Broatlbent  v.  Imperial  Gas  Co.  [1856]  7  De  G.,  McN.  &  G.  436.  These  dam- 
ages are  irreparable,  too,  because  the  trees  and  vines  cannot  be  replaced, 
and  the  law  will  not  compel  a  person  to  take  money  rather  than  the  objects 
of  beauty  and  utility  which  he  places  around  his  dwelling  to  gratify  his  taste 
or  to  promote  his  comfort  and  his  health.") 

6  8  Compare  the  remarks  of  the  Chancellor  (Zabriskie)  in  Cleveland  v. 
Citizens'  Gas  Light  Co.  (1869)  20  N.  J.  Eq.  201,  205:  "To  live  comfortably  is 
the  chief  and  most  reasonable  object  of  men  in  acquiring  property  as  the 
means  of  attaining  it;  and  any  interference  with  our  neighbor  in  the  com- 
fortable enjoyment  of  life,  is  a  wrong  which  the  law  will  redress.  The  only 
question  is  what  amounts  to  that  discomfort  from  which  the  law  will  pro- 
tect. The  discomforts  must  be  physical,  not  such  as  depend  upon  taste  or 
imagination.  But  whatever  is  offensive  physically  to  the  senses,  and  by  such 
offensiveness  makes  life  uncomfortable,  is  a  nuisance ;  and  it  is  not  the  less 
so,  because  there  may  be  persons  whose  habits  and  occupations  have  brought 
them  to  endure  the  same  annoyances  without  discomfort.  Other  persons  or 
classes  of  persons  whose  senses  have  not  been  so  hardened,  and  who,  by  their 
education  and  habits  of  life,  retain  the  sensitiveness  of  their  natural  organ- 
ization, are  entitled  to  enjoy  life  in  comfort  as  they  are  constituted.  The 
law  knows  no  distinction  of  classes,  and  will  protect  any  citizen  or  class  of 
citizens,  from  wrongs  and  grievances  that  might  perhaps  be  borne  by  others 
without   suffering  or   much   inconvenience.     The   complainants   have   houses 


376  TORTS  THROUGH  ACTS   OP    ABSOLUTE   LIABILITY  (Part  1 

It  appears  to  me  that  in  the  present  instance,  the  defendant  as  well 
as  the  plaintiffs  declining  to  go  before  a  jury  and  asking  a  court  of 
chancery  to  decide  between  them  without  assistance  in  any  shape  from 
a  court  of  law  I  ought  to  grant  an  injunction.* 


EVERETT  et  ux.  v.  PASCHALL. 

(Supreme  Court  of  Wasbingtou,  1910.     61  Wash.  47,  111  Pac.  879, 
31  L,  R.  A.   [N.   S.]  827,  Ann.  Cas.  1912B,  1128.) 

This  action  was  brought  to  enjoin  the  defendant  from  maintaining 
a  tuberculosis  sanitarium,  with  a  capacity  of  ten  patients,  in  a  resi- 
dential portion  of  the  city  of  Seattle,  on  a  lot  separated  from  plain- 
tiff's lot  by  an  alleyway.  The  lower  court  denied  an  injunction,  and 
the  plaintiffs  appealed. 

Chadwick,  j,  *  *  *  i^g  text  of  our  decision  has  been  aptly 
stated  by  counsel  for  appellant:  "Can  a  tuberculosis  hospital  be  main- 
l  tained  in  a  residential  portion  of  a  city  where  its  maintenance  depre- 
ciates the  value  of  contiguous  property  from  33%  to  50  per  cent.,  and 
where  its  existence  detracts  from  the  comfortable  use  of  such  residen- 
tial property?" 

In  the  evolution  of  the  law  of  nuisance  there  has  grown  an  element 
not  clearly  recognized  at  common  law.  Blackstone,  3  Com.  216,  has 
defined  a  nuisance  to  be  "anything  that  worketh  hurt,  inconvenience, 
or  damage,"  reducing  the  nuisances  which  affect  a  man's  dwelling  to 
three:  (1)  Overhanging  it;  (2)  stopping  ancient  lights;  and  (3)  cor- 
rupting the  air  with  smells.  It  will  be  seen  that  within  these  defini- 
tions the  maintenance  of  a  sanitarium  conducted  with  due  attention 
to  sanitation  is  not  a  nuisance,  for  it  creates  no  physical  inconvenience 
whatever.  But  a  new  element  in  the  law  of  nuisance  has  been  devel- 
oped, first,  by  judicial  decisions,  and,  later,  by  declaratory  statutes; 

built  and  held  for  the  purpose  of  residences,  by  families  of  means  and  re- 
spectability, and  anything  that  by  producing  physical  discomfort  would  ren- 
der them  unfit  for  such  residence,  or  drive  such  families  from  them,  is  a  nui- 
sance which  the  law  will  restrain.  This,  then,  is  the  question  before  me: 
Whether  the  proposed  works  of  the  defendants  would  produce  such  annoyance 
as  would  render  such  families,  composed  of  women  and  children,  as  well  as 
men,  uncomfortable ;  not  whether  men  accustomed  to  follow  their  occupa- 
tions in  places  where  they  are  surrounded,  and  unavoidably,  by  much  that 
is  offensive,  may  not  be  so  accustomed  to  odors  of  like  nature  as  not  to  be  an- 
noyed by  these." 

Compare  Adams  v.  Ursell,  [1913]  1  Ch.  2G9:  (Action  to  restrain  an  alleged 
nuisance  caused  by  a  fried  fish  shop,  in  promises  adjoining  the  plaintiff's 
residence.  "The  frying  of  fish  went  on  daily  betwoen  11:30  a.  m.  and  1:30 
p.  m.,  and  between  G:.30  and  10:.30  p.  m.  The  plaintitl'  gave  evidence  that  the 
odour  caused  by  frying  the  fish  pervaded  every  room  of  his  house  and 
affected  the  flavour  of  butter  in  his  larder ;  and  that  the  vapour  from  the 
defendant's  cooking  stove  appeared  in  the  plaintiff's  house  like  a  fog  or  mist." 
But  it  appeared  tliat  this  was  not  injurious  to  health.) 

*An  appual  from  that  decision  was  heard  by  the  Lord  Chancellor  (Lord  St. 
Leonards)  and  was  dismissed,  with  costs. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN   TRESPASSES  377 

that  is,  the  comfortable  enjoyment  of  one's  property.  It  is  written  in 
the  statutes  of  this  state:  "Nuisance  consists  in  unlawfully  doing  an 
act  or  omitting  to  perform  a  duty,  which  act  or  omission  either  an- 
noys, injures  or  endangers  the  comfort,  repose,  health  or  safety  of 
others,  ottends  decency  *  *  *  or  in  any  way  renders  other  per- 
sons insecure  in  life,  or  in  the  use  of  property."  Rem.  &  Bal.  Code, 
§  8309.  Respondent  contends,  and  the  court  has  found,  that  the  prop- 
erty of  respondent  is  not  a  nuisance  per  se,  and  that  it  is  so  conducted 
that  it  is  not,  and  cannot  be,  a  nuisance  by  reason  of  its  use ;  that  there 
is  no  real  danger;  that  the  fear  or  dread  of  the  disease  is,  in  the  hght 
of  scientific  investigation,  unfounded,  imaginary,  and  fanciful;  and 
that  the  injury,  if  any,  is  damnum  absque  injuria.  On  the  other  hand, 
the  appellants  insist  that  the  location  of  a  sanitarium  for  the  treat- 
ment of  a  disease,  of  which  there  is  a  positive  dread  which  science  has 
so  far  failed  to  combat,  so  robs  them  of  that  pleasure  in,  and  com- 
fortable enjoyment  of,  their  home  as  to  make  it  an  actionable  nuisance 
under  the  statute ;  and,  furthermore,  under  the  findings  of  the  court, 
that  the  presence  of  the  sanitarium  in  a  district  given  over  to  resi- 
dences, and  which  has  depreciated  property  from  33  to  50  per  cent., 
is  such  a  deprivation  of  property  as  will  warrant  a  decree  in  their  fa- 
vor under  the  maxim,  "Sic  utere  tuo  ut  alienum  non  Ifedas." 

Waiving  for  the  present  the  substantial  pecuniary  damage  which  the 
court  found  to  exist,  and  addressing  ourselves  to  the  principle  under- 
lying the  lower  court's  decree — that  is,  that  the  danger  being  only  in 
the  apprehension  of  it,  a  fear  unfounded  and  unsustained  by  science, 
a  demon  of  the  imagination — the  courts  will  take  no  account  of  it:  If 
dread  of  the  disease  and  fear  induced  by  the  proximity  of  the  sani- 
tarium, in  fact,  disturb  the  comfortable  enjoyment  of  the  property  of 
the  appellants,  we  question  our  right  to  say  that  the  fear  is  unfounded 
or  unreasonable,  when  it  is  shared  by  the  whole  public  to  such  an  ex- 
tent that  property  values  are  diminished.  The  question  is,  not  whether 
the  fear  is  founded  in  science,  but  whether  it  exists ;  not  whether  it 
is  imaginary,  but  whether  it  is  real,  in  that  it  afifects  the  movements 
and  conduct  of  men.  Such  fears  are  actual,  and  must  be  recognized 
by  the  courts  as  other  emotions  of  the  human  mind.  That  fear  is  real 
in  the  sense  indicated,  and  is  the  most  essentially  human  of  all  emo- 
tions, there  can  be  no  doubt.     *     *     * 

Nuisance  is  a  question  of  degree,  depending  upon  varying  circum- 
stances. There  must  be  more  than  a  tendency  to  injury.  There  must 
be  something  appreciable.  The  cases  generally  say,  "tangible,  actual, 
measurable,  or  subsisting."  But  in  all  cases,  in  determining  whether 
the  injury  charged  comes  within  these  general  terms,  resort  should  be 
had  to  sound  common  sense.  Each  case  must  be  judged  by  itself. 
Joyce  on  Nuisances,  19.  Regard  should  be  had  for  the  notions  of 
comfort  and  convenience  entertained  by  persons  generally  of  ordinary 
tastes  and  susceptibilities.  Columbus  Gaslight  &  Coke  Co.  v.  Free- 
land,  12  Ohio  St.  392 ;   Barnes  v,  Hathorn,  54  ]\le.  124.    The  nuisance 


378  TOUTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

and  discomfort  must  atlect  the  ordinary  comfort  of  human  existence 
as  understood  by  the  American  people  in  their  present  state  of  en- 
Hghtenment.  Joyce  on  Nuisances,  §  20.  The  theories  and  dogmas 
of  scientific  men,  though  provable  by  scientific  reference,  cannot  be 
held  to  be  controlling  unless  shared  bv  the  people  generally.  In  Gro- 
ver  y.  Zook,  44  Wash.  494,  87  Pac.  639,  7  L.  ^.  A.  (N.  S.)  582,  120 
jVm.  St.  Rep.  1012,  12  Ann.  Cas.  192,  this  court  said:  "That  pulmo- 
nary tuberculosis  is  both  contagious  and  hereditary,  as  these  terms 
are  understood  (although  not  in  a  strictly  technical  and  professional 
sense),  as  well  as  infectious,  admits  of  little,  if  any,  doubt."  This 
principle  applies  with  peculiar  force  in  this  case ;  for  aside  from  the 
general  dread  of  the  disease,  as  found  by  the  court,  it  is  also  shown 
that  the  security  of  the  public  depends  upon  proper  precautions  and 
sanitation,  which  may  at  any  time  be  relaxed  by  incautious  nurses  or 
careless  or  ignorant  patients. 

Furthermore,  the  court  found  that  the  bacilla  of  the  disease  may 
be  carried  by  house  flies.  Thus  every  house  fly  that  might  drone  a 
summer  afternoon  in  the  drawing  room  or  nursery  is  a  constant  re- 
minder to  plaintiffs  of  their  neighbor,  tending  to  disquiet  the  mind 
and  render  the  enjoyment  of  their  home  uncomfortable.  The  only 
case  we  find  holding  that  fear  alone  will  not  support  a  decree  in  this 
class  of  cases  is  Anonymous,  3  Atk.  750,  where  Lord  Hardwicke  said : 
"And  the  fears  of  mankind,  though  they  may  be  reasonable  ones,  will 
not  create  a  nuisance."  Our  statute  modifies,  if  indeed  it  was  not  de- 
signed to  change,  this  rule.  Under  the  facts,  we  cannot  say  that  the 
dread  which  is  the  disquieting  element  upon  which  plaintiffs'  com- 
plaint is  made  to  rest  is  unreal,  imaginary,  or  fanciful.  In  so  doing, 
we  are  not  violating  the  settled  principles  of  the  law,  but  affirming 
them. 

We  conceive  the  case  of  Stotler  v.  Rochelle,  83  Kan.  86,  109  Pac. 
788,  29  L.  R.  A.  (N.  S.)  49,  to  be  directly  in  point.  There  we  find 
the  same  contentions  made  as  here.  The  question  was  whether  the 
fear  of  cancer  was  sustained  in  the  light  of  medical  authority.  The 
court  said :  "In  the  present  state  of  accurate  knowledge  on  the  sub- 
ject, it  is  quite  within  bounds  to  say  that,  whether  or  not  there  is 
actual  danger  of  the  transmission  of  the  disease  under  the  conditions 
stated,  the  fear  of  it  is  not  entirely  unreasonable."  The  unusual  fea- 
ture of  that  case,  in  that  judicial  notice  is  taken  of  the  fact  that  fear 
may  be  urged  as  a  ground  for  injunctive  relief,  challenged  the  interest 
of  the  Honorable  John  D.  Lawson,  the  learned  editor  of  the  American 
Law  Review.  He  takes  no  issue  with  the  rule.  He  says :  "A  hospi- 
tal, said  the  court,  is  not  a  nuisance  per  se,  or  even  prima  facie,  but 
it  may  be  so  located  and  conducted  as  to  be  a  nuisance  to  people  living 
close  to  it.  The  question  was  not  whether  the  establishment  of  the 
hospital  would  place  the  occupants  of  the  adjacent  dwellings  in  actual 
danger  of  infection,  but  whether  they  would  have  reasonable  ground 
to  fear  such  a  result,  and  whether,  in  view  of  the  general  dread  in- 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  379 

spired  by  the  disease,  the  reasonable  enjoyment  of  their  property 
would  not  be  materially  interfered  with  by  the  bringing  together  of  a 
considerable  number  of  cancer  patients  in  this  place.  However  care- 
fully the  hospital  might  be  conducted,  and  however  worthy  the  institu- 
tion might  be,  its  mere  presence,  which  would  necessarily  be  mani- 
fested in  various  ways,  would  make  the  neighborhood  less  desirable 
for  residence  purposes,  not  to  the  oversensitive  alone,  but  to  persons 
of  normal  sensibilities.  The  court  concluded  that  upon  these  consid- 
erations the  injunction  was  rightfully  granted.  The  plaintiff,  as  the 
owner  and  occupant  of  adjacent  property,  had  such  a  peculiar  interest 
in  the  relief  sought  as  to  enable  him  to  maintain  the  action."  40  Am. 
Law  Review,  No.  5,  p.  759. 

In  the  case  of  Baltimore  v.  Fairfield  Imp.  Co.,  87  IMd.  352,  39  Atl. 
1081,  40  L.  R.  A.  494,  67  Am.  St.  Rep.  344,  an  injunction  against  plac- 
ing a  leper  in  a  residence  neighborhood  for  care  and  restraint  was  jus- 
tified upon  the  ground  that  the  disease  produced  a  terror  and  dread  in 
the  minds  of  the  ordinary  individual.  In  that  case,  the  court  said : 
"Leprosy  is,  and  always  has  been,  universally  regarded  with  horror  and 
loathing.  *  *  *  f  he  horror  of  its  contagion  is  as  deep-seated  to- 
day as  it  was  more  than  2,000  years  ago  in  Palestine.  There  are  mod- 
ern theories  and  opinions  of  medical  experts  that  the  contagion  is 
remote  and  by  no  means  dangerous ;  but  the  popular  belief  of  its  perils 
founded  on  the  Biblical  narrative,  on  the  stringent  provisions  of  the 
Mosaic  law  that  show  how  dreadful  were  its  ravages  and  how  great 
the  terror  which  it  excited,  and  an  almost  universal  sentiment,  the 
result  of  a  common  concurrence  of  thought  for  centuries,  cannot  in 
this  day  be  shaken  or  dispelled  by  mere  scientific  asservation  or  con- 
jecture. It  is  not,  in  this  case,  so  much  a  mere  academic  inquiry  as  to 
whether  the  disease  is  in  fact  highly  or  remotely  contagious ;  but  the 
question  is  whether,  viewed  as  it  is  by  the  people  generally,  its  intro- 
duction into  a  neighborhood  is  calculated  to  do  a  serious  injury  to  the 
property  of  the  plaintiff  there  located."  In  Cherry  v.  Williams,  147 
N.  C.  452,  61  S.  E.  267,  125  Am.  St.  Rep.  566,  15  Ann.  Cas.  715,  a 
temporary  restraining  order  was  granted  against  the  maintenance  of 
a  tuberculosis  hospital,  notwithstanding  evidence  was  introduced,  as 
in  this  case,  tending  to  show  that  the  establishment  of  such  a  hospital, 
if  properly  maintained  and  conducted,  would  not  be  a  menace  to  the 
health  of  the  community,  but  in  fact  a  benefit.  We  have  no  cases  in 
this  state  directly  in  point,  yet  a  case  not  without  bearing  is  that  of 
Shepard  v.  City  of  Seattle,  59  Wash.  363,  109  Pac.  1067,  40  L.  R.  A. 
(N.  S.)  647.  Judge  Rudkin,  delivering  the  opinion  of  the  court,  said : 
"The  presence  of  a  private  insane  asylum,  with  its  barred  windows, 
and  irresponsible  inmates,  would  annoy,  injure,  and  endanger  the  com- 
fort, safety,  and  repose  of  any  person  of  average  sensibilities  if  lo- 
cated within  200  feet  of  his  place  of  abode.  In  other  words,  it  is  a 
matter  of  common  knowledge  that  the  presence  of  such  an  institution 


380  TORTS  THROUGH  ACTS  OP   ABSOLUTE  LIABILITY  (Part  1 

in  a  residential  portion  of  a  city  would  practically  destroy  the  value  of 
all  property  within  its  immediate  vicinity  for  residence  purposes." 

We  therefore  conclude  that  the  lower  court  erred  in  denying  an  in- 
junction. The  case  is  remanded  with  instructions  to  enter  a  decree 
upon  the  findings  in  favor  of  appellant.*^® 

6  0  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 

But  see  Board  of  Health  v.  North  American  Home  (1910)  77  N.  J.  Eq. 
464,  78  Atl.  677:  ("Notwithstanding  the  great  public  good  which  will  neces- 
sarily result  from  the  work  of  an  institution  of  this  nature  [a  sanitarium  de- 
A'oted  exclusively  to  the  treatment  of  children  afflicted  with  bone  tuber- 
culosis], it  is  manifest  that  if  the  health  of  the  residents  of  Ventnor  City 
is  jeopardized  by  its  maintenance,  a  court  of  equity  may  grant  such  relief 
as  will  afford  adequate  protection  to  the  residents  of  that  city  from  the 
threatened  danger;  but  if  no  real  danger  of  that  nature  exists,  the  mere 
fact  that  uninformed  people  who  are  unacquainted  with  the  true  conditions 
may  or  probably  will  assume  such  a  danger  to  exist  cannot  be  made  the 
basis  of  equitable  relief."     Per  Leaming,  V.  C.) 

In  Tod-Heatley  v.  Benham  (1888)  40  Ch,  D.  SO,  98,  Bowen,  L.  J.,  remarked: 
"I  will  assume  as  a  matter  of  argument  only  that  'nuisance'  in  this  covenant 
(in  a  building  lease  against  doing  any  act  which  shall  or  may  be  or  grow  to 
the  annoyance,  nuisance,  grievance  or  damage  of  the  lessor,  his  heirs  or  as- 
signs) means  only  a  nuisance  at  common  law ;  that  is,  in  the  language  of 
Vice-chancellor  Knight  Bnice  in  Walter  v.  Selfe  (1851)  4  De  G.  &  Sm.  .322, 
'an  inconvenience  materially  interfering  with  the  ordinary  comfort  physi- 
cally of  human  existence,  not  merely  according  to  elegant  or  daintj'  modes 
and  habits  of  living,  but  according  to  plain  and  sober  and  simple  notions 
among  the  English  people.'  Any  material  interference  with  the  ordinary 
comfort  of  existence:  that  would  be  a  nuisance.  The  law,  in  thus  deflning 
'nuisance'  has  stopped  short,  I  will  not  say  of  protecting  the  fancies  of 
people,  because  the  mere  fancies  of  people  I  do  not  think  can  in  any  view  be 
an  element  in  the  definition,  but  has  stopped  short,  according  to  what  is  said 
in  Aldred's  Case  (IGIO)  9  Rep.  .5Sb,  of  giving  an  action  in  respect  of  that 
which  is  a  matter  only  of  delight,  and  not  of  necessity.  'Annoyance'  is  a 
wider  term  than  'nuisance,'  and  if  you  find  a  thing  which  reasonably  troubles 
the  mind  and  pleasure,  not  of  a  fanciful  person  or  of  a  skilled  person  who 
knows  the  truth,  but  of  the  ordinary  sensible  English  inhabitant  of  a  house — 
if  you  find  there  is  anything  which  disturbs  his  reasonable  peace  of  mind, 
that  seems  to  me  to  be  an  annoyance,  although  it  may  not  appear  to  amount 
to  physical  detriment  to  comfort.  You  must  take  sensible  people,  you  must 
not  take  fanciful  people  on  the  one  side  or  skilled  people  on  the  other ;  that 
is  the  key  as  it  seems  to  me  of  this  case.  Doctors  may  be  able  to  say,  and, 
for  anything  I  know,  to  say  with  certainty,  that  there  is  no  sort  of  danger 
from  this  hospital  to  the  surrounding  neighbourhood.  But  the  fact  that 
some  doctors  think  there  is  makes  it  evident  at  all  events  that  it  is  not  a 
very  unreasonable  thing  for  persons  of  ordinary  apprehension  to  be  troubled 
in  their  minds  about  it.  And  if  it  is  not  an  unreasonable  thing  for  an  ordi- 
nary person  who  lives  in  the  neighbourhood  to  be  troubled  in  his  mind  by  the 
apprehension  of  such  risk,  it  seems  to  me  there  is  danger  of  annoyance, 
though  there  may  not  be  a  nuisance.    *     *     *  " 

See  further  Kestner  v.  Homeopathic  M.  &  S.  Hospital  (1914)  245  Pa.  .326, 
91  Atl.  659,  52  L.  R.  A.  (N.  S.)  1032. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  381 


DAVIS  V.  SAWYER. 

(Supreme  Judicial  Court  of  Massachusetts,  1882.     133  Mass.  289, 

43  Am.   Rep.   519.) 

W.  Alle;n,  J.  This  is  a  bill  in  equity  praying  for  an  injunction  to 
restrain  the  defendants  from  ringing  a  bell.  The  case  comes  here  on 
appeal  by  the  defendants  from  a  decree  entered  by  a  single  judge,  en- 
joining them  from  ringing  the  bell  earlier  than  half  after  6  o'clock 
in  the  morning.  The  plaintiffs  for  many  years  have  owned  and  occu- 
pied dwelling-houses  situated,  one  about  one  thousand  feet,  and  the 
other  about  three  hundred  feet,  from  a  woollen  mill  of  the  defend- 
ants. The  defendants  began  to  run  their  mill,  which  had  been  before 
that  occupied  by  other  persons,  in  December,  1879,  and  about  January 
1,  1880,  placed  the  bell  upon  the  mill,  and  caused  it  to  be  rimg  every 
working  day  at  5  o'clock,  and  twice  between  6  and  6 :30  o'clock,  in 
the  morning,  and  at  other  times  during  the  day,  except  that  the  5 
o'clock  bell  was  discontinued  during  the  summer  months. 

The  plaintiff's  allege  that  the  bell  as  rung  is  a  private  nuisance  to 
them,  and  injures  their  property,  and  disturbs  the  quiet  and  comfort 
of  their  homes;  that  it  is  not  necessary  for  any  purpose  of  trade  or 
manufacture;  that  it  is  unnecessarily  large,  and  rung  at  unseasonable 
hours,  and  unreasonably  long.  The  defendants  in  their  answer  deny 
that  the  bell  is  a  nuisance  to  the  plaintiff's,  and  say  that  it  is  used  by 
the  defendants  to  summon  the  operatives  in  their  mill  to  work;  that 
it  is  necessary  and  customary  to  adopt  some  method  to  summon  oper- 
atives in  such  a  manufactory  to  their  work ;  that  the  bell  is  of  suita- 
ble size,  and  rung  at  suitable  hours,  and  in  a  proper  manner,  for  that 
purpose. 

Two  questions  are  presented:  whether  the  plaintiffs  have  proved 
that  the  ringing  of  the  bell  is  a  nuisance  to  them ;  and  whether  it  is 
such  a  nuisance  that  this  court  will  interfere  to  restrain  it  by  injunc- 
tion.^ ° 

Noise  which  constitutes  an  annoyance  to  a  person  of  ordinary  sensi- 
bility to  sound,  such  as  materially  to  interfere  with  the  ordinary  com- 
fort of  life,  and  impair  the  reasonable  enjoyment  of  his  habitation,  is 
a  nuisance  to  him.  Crump  v.  Lambert,  L.  R.  3  Eq.  409;  Wesson  v. 
Washburn  Iron  Co.,  13  Allen,  95,  90  -\m.  Dec.  181 ;  Fay  v.  Whitman, 
100  Mass.  76.  Upon  a  careful  examination  of  the  evidence  reported, 
it  seems  fully  to  sustain  the  finding  of  the  judge  who  heard  the  case, 
that  the  ringing  of  the  bell  was  a  nuisance  to  the  plaintiffs.  The  bell 
weighs  about  two  thousand  pounds,  and  is  set  in  an  open  tower  about 
forty  feet  from  the  ground,  and  was  rung  for  a  long  time  at  5  o'clock, 
as  many  as  ninety  strokes  having  been  repeatedly  counted.    The  resi- 

7  0  The  second  question,  whether  it  was  such  a  nuisance  that  the  court  will 
interfere  to  restrain  it  bv  injunction  was  answered  in  the  affirmative. 
See  Sawyer  v.  Davis  (1883)  13G  Mass.  239,  49  Am.  Rep.  27. 


7 


382  TORTS  THROUGH  ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

dences  of  the  plaintiffs  are  so  situated  with  respect  to  the  bell,  par- 
ticularly that  of  the  plaintiff  Davis,  being  higher  than  the  bell  and  upon 
a  hill-side,  with  no  obstruction  between,  that  they  receive  the  full 
force  of  the  sound,  and  they  are  in  a  village  in  which,  at  that  hour, 
there  is  no  other  ringing  of  bells,  or  other  disturbing  noise.  Without 
referring  to  the  evidence  in  detail,  or  reviewing  the  particular  circum- 
stances affecting  the  question,  it  is  enough  to  say  that  the  evidence 
sustains  what  must  have  been  found  by  the  judge,  namely,  that  the 
plaintiffs  were  deprived  of  sleep  during  the  hours  usually  devoted  to 
repose,  and  were  personally  annoyed,  and  disturbed  in  their  homes, 
and  the  quiet  and  comfort  of  their  dwellings  were  impaired,  as  the 
natural  consequence  of  the  acts  of  the  defendants  which  are  conv 
plained  of.  Nor  is  the  fact  that  a  large  majority  of  the  persons  living 
nearer  to  the  bell  than  the  plaintiffs  were  not  annoyed  by  it,  at  all  con- 
clusive that  it  would  not,  and  did  not,  awaken  and  annoy  persons  of 
ordinary-  sensibility  to  noise  situated  as  the  plaintiffs  were.  Besides 
the  consideration  that  nearness  to  the  bell  would  not  alone  determine 
the  effect  produced  by  its  sound,  it  is  obvious  that  the  bell  was  suffi- 
cient and  effective  to  awaken  persons  ordinarily  sensitive  to  sound, 
who  were  no  more  exposed  to  its  effects  than  the  plaintiffs  were. 
That  was  the  effect  it  was  intended  to  produce,  and,  if  it  had  not  in 
fact  produced  the  effect,  its  use  would  not  have  been  continued.  The 
fact  that  some  persons  may  have  had  such  associations  connected  with 
the  sound  that  it  may  have  been  to  them  a  pleasure  rather  than  an  an- 
noyance, or  that  the  sensibility  of  others  to  the  sound  may  have  be- 
come so  deadened  that  it  ceased  to  disturb  them,  shows  that  the  noise 
was  not  a  nuisance  to  them,  but  does  not  change  its  character  as  to 
others.  Many  persons  can,  by  habit,  lose,  to  some  extent,  their  sensi- 
bility to  a  disturbing  noise,  as  they  can  to  a  disagreeable  taste  or  odor 
or  sight,  or  their  susceptibility  to  a  particular  poison,  but  it  is  because 
they  become  less  than  ordinarily  susceptible  to  the  particular  impres- 
sion. In  this  case,  the  evidence  shows  that  persons  were  awakened 
and  disturbed  by  the  bell  until  they  had  lost  ordinary  sensibility  to  its 
sound.  *  *  * 
Decree  affirmed. 


ROGERS  v.  ELLIOTT. 

(Supreme  Judicial  Court  of  Massachusetts,  1888.     146  Mass.  349, 
15  N.  E.  768,  4  Am.  St.  Rep.  316.) 

Tort  for  a  nuisance,  namely,  the  ringing  of  a  church  bell.     At  the 

trial  there  was  evidence  tending  to  prove 

that  the  plaintiff,  who  lived  with  his  father  in  a  thickly  settled  portion  of 
Proviiicotowu,  had  received  a  sun-stroke,  and  was  carried  home  and  a 
physician  called  to  attend  him ;  that  directly  opposite  his  father's  house 
across  a  street  but  twenty  feet  in  width  was  a  Koman  Catholic  Church  of 
which  the  defendant  was  the  clergyman  in  charge ;   that  one  of  the  incidents 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  383 

of  the  plaintiff's  illness  was  that  loud  noises  might  throw  him  into  convul- 
sions ;  that  the  defendant  was  informed  by  the  physician  and  the  plaintiff's 
father  of  the  probable  consequences  to  the  plaintiff  of  the  ringing  of  the  bell 
upon  his  church,  and  was  requested  not  to  ring  it ;  that  the  defendant  re- 
fused to  refrain  from  ringing  the  bell,  but  caused  it  to  be  rung  eiglit  times 
upon  the  next  Sunday,  as  usual,  twice  before  each  of  the  four  services  held 
upon  that  day ;  that  the  plaintiff,  the  windows  of  whose  room  were  shut, 
was  thrown  into  violent  and  painful  convulsions  at  each  time  that  the  bell 
on  the  church  was  rung,  as  well  as  when  other  bells  in  the  town  were  rung, 
or  a  whistle  on  a  steamboat  in  the  harbor  was  blown,  and  once  when  the 
town  clock  struck ;  and  that  the  convulsions  increased  the  illness  and  re- 
tarded the  recovery  of  the  plaintiff. 

The  judge  ruled  that  the  plaintiff  was  not  entitled  to  recover,  and 
ordered  a  verdict  for  the  defendant;  and  reported  the  case  for  the 
determination  of  this  court.  If  the  ruling  w^as  v^rong,  the  verdict  was 
to  be  set  aside  and  a  new  trial  granted ;  otherwise,  judgment  was  to 
be  rendered  on  the  verdict. 

Knowlton,  J.  The  defendant  was  the  custodian  and  authorized 
manager  of  property  of  the  Roman  Catholic  Church  used  for  religious 
worship.  The  acts  for  which  the  plaintiff  seeks  to  hold  him  responsi- 
ble were  done  in  the  use  of  this  property,  and  the  sole  question  before 
us  is  whether  or  not  that  use  was  unlawful.  The  plaintiff's  case  rests 
upon  the  proposition  that  the  ringing  of  the  bell  was  a  nuisance.  The 
consideration  of  this  proposition  involves  an  inquiry  into  what  the  de- 
fendant could  properly  do  in  the  use  of  the  real  estate  which  he  had 
in  charge,  and  what  was  the  standard  by  which  his  rights  were  to  be 
measured. 

It  appears  that  the  church  was  built  upon  a  public  street  in  a  thickly 
settled  part  of  the  town,  and  if  the  ringing  of  the  bell  on  Sundays  had 
materially  affected  the  health  or  comfort  of  all  in  the  vicinity,  wdi eth- 
er residing  or  passing  there,  this  use  of  the  property  would  have  been 
a  public  nuisance,  for  which  there  would  have  been  a  remedy  by  in- 
dictment. Individuals  suffering  from  it  in  their  persons  or  their  prop- 
erty could  have  recovered  damages  for  a  private  nuisance.  Wesson 
v.  Washburn  Iron  Co.,  13  Allen,  95,  90  Am.  Dec.  181. 

In  an  action  of  this  kind,  a  fundamental  question  is,  by  what  stand- 
ard, as  against  the  interests  of  a  neighbor,  is  one's  right  to  use  his  real 
estate  to  be  measured.  In  densely  populated  communities  the  use  of 
property  in  many  ways  which  are  legitimate  and  proper  necessarily 
aft'ects  in  greater  or  less  degree  the  property  or  persons  of  others  in 
the  vicinity.  In  such  case  the  inquiry  always  is,  when  rights  are  called 
in  question,  what  is  reasonable  under  the  circumstances.  If  a  use  of 
property  is  objectionable  solely  on  account  of  the  noise  which  it  makes, 
it  is  a  nuisance,  if  at  all,  by  reason  of  its  effect  upon  the  health  or  com- 
fort of  those  who  are  within  hearing.  The  right  to  make  a  noise  for 
a  proper  purpose  must  be  measured  in  reference  to  the  degree  of  an- 
noyance which  others  may  reasonably  be  required  to  submit  to.  In 
connection  with  the  importance  of  the  business  from  which  it  pro- 
ceeds, that  must  be  determined  by  the  effect  of  noise  upon  people  gen- 


384  TORTS  THROUGH  ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

erally,  and  not  upon  those,  on  the  one  hand,  who  are  peculiarly  sus- 
ceptible to  it,  or  those,  on  the  other,  who  by  long  experience  have 
learned  to  endure  it  without  inconvenience ;  not  upon  those  whose 
strong  nerves  and  robust '  health  enable  them  to  endure  the  greatest 
disturbances  without  suffering,  nor  upon  those  whose  mental  or  physi- 
cal condition  makes  them  painfully  sensitive  to  everything  about  them. 

That  this  must  be  the  rule  in  regard  to  public  nuisances  is  obvious. 
It  is  the  rule  as  well,  and  for  reasons  nearly,  if  not  quite  as  satisfac- 
tory, in  relation  to  private  nuisances.  Upon  a  question  whether  one 
can  lawfully  ring  his  factory  bell,  or  run  his  noisy  machinery,  or 
whether  the  noise  will  be  a  private  nuisance  to  the  occupant  of  a  house 
near  by,  it  is  necessary  to  ascertain  the  natural  and  probable  effect 
of  the  sound  upon  ordinary  persons  in  that  house, — not  how  it  will 
affect  a  particular  person,  who  happens  to  be  there  to-day,  or  who  may 
chance  to  come  to-morrow.  Fay  v.  Whitman,  100  Mass.  76;  Davis 
V.  Sawyer,  133  Mass.  289,  43  Am.  Rep.  519;  Walter  v.  Selfe,  4  De  G. 
&  Sm.  315,  323;  Soltau  v.  De  Held,  2  Sim.  (N.  S.)  133;  St.  Helen's 
Smelting  Co.  v.  Tipping,  11  H.  L.  Cas.  642.     *     *     * 

If  one's  right  to  use  his  property  were  to  depend  upon  the  effect  of 
the  use  upon  a  person  of  peculiar  temperament  or  disposition,  or  upon 
one  suffering  from  an  uncommon  disease,  the  standard  for  measuring 
it  would  be  so  uncertain  and  fluctuating  as  to  paralyze  industrial  en- 
terprises. The  owner  of  a  factory  containing  noisy  machinery,  with 
dwelling-houses  all  about  it,  might  find  his  business  lawful  as  to  all 
but  one  of  the  tenants  of  the  houses,  and  as  to  that  one,  who  dwelt 
no  nearer  than  the  others,  it  might  be  a  nuisance.  The  character  of 
his  business  might  change  from  legal  to  illegal,  or  illegal  to  legal,  with 
every  change  of  tenants  of  an  adjacent  estate;  or  with  an  arrival  or 
departure  of  a  guest  or  boarder  at  a  house  near  by ;  or  even  with  the 
wakefulness  or  the  tranquil  repose  of  an  invalid  neighbor  on  a  par- 
ticular night.  Legal  rights  to  the  use  of  property  cannot  be  left  to 
such  uncertainty.  When  an  act  is  of  such  a  nature  as  to  extend  its 
influence  to  those  in  the  vicinity,  and  its  legal  quality  depends  upon 
the  eff"ect  of  that  influence,  it  is  as  important  that  the  rightfulness  of 
it  should  be  tried  by  the  experience  of  ordinary  people,  as  it  is,  in 
determining  a  question  as  to  negligence,  that  the  test  should  be  the 
common  care  of  persons  of  ordinary  prudence,  without  regard  to  the 
peculiarities  of  him  whose  conduct  is  on  trial. 

In  the  case  at  bar  it  is  not  contended  that  the  ringing  of  the  bell  for 
church  services  in  the  manner  shown  by  the  evidence  materially  af- 
fected the  health  or  comfort  of  ordinary  people  in  the  vicinity,  but 
the  plaintiff's  claim  rests  upon  the  injury  done  him  on  account  of  his 
peculiar  condition.  However  his  request  should  have  been  treated 
by  the  defendant  upon  considerations  of  humanity,  we  think  he  could 
not  put  himself  in  a  place  of  exposure  to  noise,  and  demand  as  of  legal 
riglit  that  the  bell  should  not  be  used. 

The  plaintiff,  in  his  brief,  concedes  that  there  was  no  evidence  of 


Ch.  2)        ABSOLUTE  TOUTS  OTHER  THAN  TRESPASSES  385 

express  malice  on  the  part  of  the  defendant,  but  contends  that  malice 
was  implied  in  his  acts.  In  the  absence  of  evidence  that  he  acted 
wantonly,  or  with  express  malice,  this  implication  could  not  come 
from  his  exercise  of  his  legal  rights.  How  far  and  under  what  cir- 
cumstances malice  may  be  material  in  cases  of  this  kind,  it  is  unneces- 
sary to  consider. 
Judgment  on  the  verdict.''^ 


(e)  Whetheb  Actual  Damage,  is  Essential 

TAYLOR  V.  BENNETT. 
(At  Nisi  Prius,  Swansea  Assizes,  1836,     7  Car.  &  P.  329.) 

Case.  The  first  count  of  the  declaration  was  for  disturbing  the 
plaintiff  in  the  use  of  a  well  which  she  claimed  as  appurtenant  to  "a 
certain  dwelling-house  called  Caivatre,"  by  filling  up  the  well  with  rub- 
bish, and  rendering  the  water  muddy. 

It  appeared  that  the  rubbish  had  been  thrown  into  the  well,  but  that 
the  well  had  not  been  filled  up  thereby. 

71  Part  of  the  opinion  is  omitted. 

Accord:  Lord  v.  De  Witt  (1902  C.  C.)  116  Fed.  713:  (P.  is  suffering  from 
disease  and  an  operation  wtiicti  have  left  him  so  sensitive  to  jar,  and  with 
so  weak  a  heart,  that  if  D.  goes  on  with  certain  blasting  which  D.  has  begun 
on  his  own  lot,  with  a  view  to  building  a  house,  the  necessary  jar  from  the 
blast  will  probably  cause  P.'s  death.     P.  seeks  to  enjoin  the  blasting.) 

Compare  the  analogous  principle  adopted  by  the  Judicial  Committee  of  the 
Privy  Council  in  Eastern  &  South  African  Telegraph  Company  v.  Cape  Town 
Tramways  Companies,  [1902]  A.  C.  381.  Tlie  action  was  for  damages  because 
of  disturbances  in  the  working  of  the  plaintiffs'  submarine  cable,  caused  by 
an  escape  of  electricity  stored  by  the  defendants  for  the  working  of  their 
tramway  system.  Said  Lord  Robertson,  delivering  the  judgment  of  their 
Lordships:  '  "If  the  instrument  (tlie  plaintiffs'  telegraphic  cable)  be  taken  as 
it  was  when  the  injury  occurred,  its  nature  is  such  that  to  insure  its  im- 
munity from  disturbance  is  a  somewhat  serious  liability  to  cast  on  neigh- 
bours.' To  describe  this  as  a  delicate  instrument  might  be  inaccurate,  if 
the  term  were  used  in  relation  to  other  electrical  instruments  of  extreme 
sensibility.  But  in  the  present  discussion  this  is  not  the  true  comparison  at 
all.  The  true  comparison  is  with  things  used  in  the  ordinary  enjoyment  of 
property,  and  this  instrument  differs  from  such  things  in  its  peculiar  lia- 
bility to  be  affected  by  even  minute  currents  of  electricity.  Now,  having 
regard  to  the  assumptions  of  the  appellants'  argument,  it  seems  necessary 
to  point  out  that  the  appellants,  as  licensees  to  lay  their  cable  in  the  sea 
and  as  owners  of  the  premises  in  Cape  Town  where  the  signals  are  received, 
cannot  claim  higher  privileges  than  other  owners  of  land,  and  cannot  create 
for  themselves,  by  reason  of  the  peculiarity  of  their  trade  apparatus,  a 
higher  right  to  limit  the  operations  of  their  neighbours  than  belongs  to  ordi- 
nary owners  of  land  who  do  not  trade  with  telegraphic  cables.  If  the  ap- 
paratus of  such  concerns  requires  special  protection  against  the  operations 
of  their  neighbours,  that  must  be  found  in  legislation ;  the  remedy  at  present 
invoked  is  an  appeal  to  a  connnon  law  principle  which  applies  to  much 
more  usual  and  less  special  conditions.  A  man  cannot  increase  the  liabilities 
of  his  neighbour  by  applying  his  own  property  to  special  uses,  whether  for 
business  or  pleasure." 

Hepb.Tobts — 25 


386  TORTS  THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  J 

Coleridge;,  J.  (in  summing  up).  If  the  effect  of  throwing  in  this 
rubbish  was  merely  to  make  the  water  temporarily  muddy,  that  would 
be  too  minute  a  damage  to  justify  you  in  finding  for  the  plaintiff;  but 
if  you  think  that  the  defendant  has  shallowed  the  water  of  the  well, 
and  has  thereby  rendered  it  less  convenient  to  the  plaintiff'  to  obtain 
water,  the  plaintiff'  is  entitled  to  a  verdict.''* 

Verdict  for  the  plaintiff'  on  the  first  count  of  the  declaration.  Dam- 
ages Is. 


FAY  V.  PRENTICE  et  al. 
(Court  of  Common  Pleas,  1845.    1  C.  B.  S28,  135  Reprint,  769,  6S  R.  R.  S2:J.) 

Case,  for  erecting  a  cornice  at  the  side  of  the  house  of  the  defend- 
ant Prentice,  projecting  over  the  garden  of  the  plaintiff. 

On  the  trial,  after  a  plea  of  not  guilty,  it  appeared  that  the  defend- 
ant Prentice  was  possessed  of  a  messuage  adjoining  the  messuage  and 
garden  of  the  plaintiff,  and  built  up  to  the  extreme  boundary  of  his 
own  land,  and  that,  in  May,  1844,  he  caused  to  be  erected  thereon  (by 
the  other  defendant,  a  builder),  an  ornamental  cornice,  which  pro- 
jected about  fourteen  inches  over  the  plaintiff's  garden.  The  case  at- 
tempted to  be  made  out  on  the  part  of  the  plaintiff  was,  that  the  plants 
and  gravel-walk  in  his  garden  were  injured  by  the  dripping  of  rain 
from  this  cornice ;  and  some  of  his  witnesses  stated,  that,  in  the  event 
of  the  cornice  being  permitted  to  remain  up  so  long  as  to  give  the 
owner  of  the  house  a  right  to  keep  it  there,  the  value  of  the  plaintiff's 
premises  would  be  thereby  diminished  to  the  extent  of  £100.,  inasmuch 
as  he  would  be  prevented  from  building  to  the  extremity  of  his  land. 
Upon  cross-examination,  none  of  the  witnesses  would  undertake  to 
state  that  any  rain  had  fallen  upon  the  plaintiff's  garden  from  the  time 
of  the  erection  of  the  cornice  down  to  the  commencement  of  the  ac- 
tion, the  2d  of  July,  1844. 

It  was  thereupon  insisted,  on  the  part  of  the  defendants,  that,  as  the 
grievance  of  which  the  plaintiff  complained  in  his  declaration  was  the 
causing  the  rain-water  to  flow  from  the  cornice  on  to  the  plaintiff's 
garden,  the  evidence  did  not  sustain  it,  no  such  inconvenience  as  that 
complained  of  having,  in  fact,  been  sustained  by  the  plaintiff',  down 
to  the  time  of  the  commencement  of  the  action. 

72  "But  even  should  you  think  it  proved  that  the  defendants  committed  the 
act  complained  of,  and  that  they  have  also  not  succeeded  in  making  out 
their  justiflcation,  before  you  can  find  for  the  plaintiff,  you  must  be  also  sat- 
isfied that  the  plaintiff  has  sustained  some  substantial  damage;  it  is  not 
every  unpleasantness  or  inconvenience  that  will  be  a  good  ground  for  an  ac- 
tion like  the  present.  There  are  many  nuisances  which  the  law  will  not 
recognize;  as,  by  building  so  as  slightly  to  obstruct  another's  light,  or  to 
shut  out  his  view  of  a  fine  prospect,  and  the  like.  You  must  be  satisfied 
that  the  plaintiff  has  sustained  some  substantial  damage."  Lord  Denman, 
summing  up  in  Evans  v.  Lisle  (1836)  7  Car.  &  P.  503,  565. 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  387 

His  Lordship  refused  to  nonsuit  the  plaintiff,  but  reserved  the  point ; 
and  he  left  it  to  the  jury  to  say  whether  or  not  the  plaintiff  had  been 
injured  by  the  dripping  of  rain  from  the  defendant's  cornice,  upon  his 
garden,  or  by  reason  of  the  projection  itself;  which  latter  he  inclined 
to  think  gave  a  cause  of  action,  inasmuch  as  the  plaintiff  would  be 
thereby  prevented  from  building  to  the  extremity  of  his  own  land,  if 
so  minded.    The  jury  returned  a  verdict  for  the  plaintiff,  damages  40s. 

A  rule  nisi  having  been  obtained  to  enter  a  nonsuit, 

Shee,  Serjt.,  urged  the  doctrine  of  Holt,  C.  J.,  in  Ashby  v.  White 
(1703)  2  Ld.  Raym.  938,  that  "every  injury  to  a  right  imports  a  dam- 
age, in  the  nature  of  it,  though  there  be  no  pecuniary  loss." 

(Maule,  J.  I  think  there  is  no  doubt  that  trespass  would  lie  here : 
but,  can  the  plaintiff  maintain  case  without  showing  some  consequen- 
tial damage?) 

Talfourd,  Serjt.,  in  support  of  the  rule:  It  is  not  disputed  that  case 
will  lie  for  a  permanent  injury  to  the  plaintiff's  right,  upon  a  declara- 
tion aptly  framed.  But  the  question  here  is,  whether  any  such  injury 
(apart  from  the  falling  of  rain)  is  suggested  upon  this  record  as  will 
entitle  the  plaintiff  to  maintain  this  action.  Striking  out  the  allegation 
as  to  the  dripping  of  rain  upon  the  plaintift''s  garden,  that  which 
remains  is  a  mere  allegation  of  a  trespass.  You  cannot  disengage 
the  damage  resulting  from  the  trespass,  from  the  trespass  itself,  so 
as  to  make  it  the  subject  of  another  form  of  action.  Suppose  the  de- 
fendants had  put  up  a  pipe  over  their  own  land,  in  such  a  manner  that 
it  would  only  in  very  wet  weather  incommode  the  plaintiff ;  the  plain- 
tiff, clearly,  could  not  have  brought  an  action  until  some  actual  dam- 
age had  occurred.'^ ^ 

CoLTMAN,  J*  *  *  Let  us  strike  out  of  the  declaration  the  al- 
legation as  to  the  dripping  of  rain ;  and  then  there  remains  simply 
an  allegation  that  the  defendants  wrongfully  and  injuriously  built,  and 
caused  and  procured  to  be  built,  a  certain  cornice  and  projection,  near 
to,  and  projecting  over,  the  plaintiff's  garden-ground,  and  that,  by  rea- 
son of  the  premises,  the  plaintiff  had  been  greatly  annoyed  and  incom- 
moded in  the  use,  possession,  and  enjoyment  of  his  messuage,  garden- 
ground,  etc.,  and  the  same  thereby  became  and  was  greatly  deterio- 
rated and  lessened  in  value.  Now,  my  brother  Talfourd  contends  that 
evidence  as  to  damage  resulting  to  the  plaintiff  from  the  projection  of 
the  cornice,  apart  from  rain,  w^as  not  admissible,  there  being  no  alle- 
gation in  the  declaration  to  warrant  it;  for,  that  the  statement  as  to 
the  erection  of  the  cornice  must  be  considered  as  a  mere  allegation 
of  a  trespass,  for  which  the  plaintiff  could  not  recover  any  damages 
in  this  form  of  action.  It  was  not  contended  at  the  trial  that  that 
amounted  to  a  trespass ;   nor  was  it  so  put  by  Sir  T.  Wilde,  on  moving 

7  3  The  statement  of  the  case  is  abridged.  A  part  of  the  opinion  of  Coltniau, 
J.,  and  the  concurring  opinions  of  Maule  and  Cresswell,  JJ.,  are  omitted. 


388  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

for  the  rule.  Supposing  it,  however,  to  be  conceded  that  that  would 
amount  to  an  act  of  trespass — which  is  opposed  to  the  opinion  of 
Lord  Ellenborough,  Pickering  v.  Rudd,  1  Stark.  N.  P.  C.  56,  by  reason 
of  the  presumption  of  law,  cujus  est  solum,  ejus  est  usque  ad  coehun, 
there  is  nothing  to  show  that  the  plaintiff  had,  or  claimed,  a  right  so 
extensive  as  that:  and  it  is  mere  matter  of  fact.  There  is  nothing, 
therefore,  in  this  declaration  that  necessarily  shows  that  the  building 
of  the  cornice  amounted  to  a  trespass ;  and,  consequently,  I  see  no 
ground  for  saying  that  the  evidence  that  was  received  was  improperly 
admitted,  or  that  the  case  was  improperly  left  to  the  jury.  Baten's 
Case,  9  Co.  Rep.  53b,  has  considerable  bearing  on  the  present.  It  was 
there  alleged  that  the  defendant  erected  a  house  at  the  extremity  of 
his  land  so  as  to  project  or  jut  over  the  house  of  the  plaintiffs,  ad 
nocumentum  liberi  tenement!  ipsorum :  and  the  court  resolved  that 
the  plaintiffs  need  not  assign  any  special  nuisance;  for,  it  appeared 
to  the  court  that  it  was  to  their  nuisance.  So,  here,  the  mere  fact  of  the 
defendants'  cornice  overhanging  the  plaintiff's  land,  may  be  considered 
as  a  nuisance  to  him,  importing  a  damage  which  the  law  can  estimate. 
And,  if  so,  it  is  quite  unnecessary,  as  I  apprehend,  to  lay  special  dam- 
age in  the  declaration.  For  these  reasons,  I  am  of  opinion  that  there 
is  no  ground  for  disturbing  the  verdict.'^* 
Rule  discharged. 


STURGES  v.  BRIDGMAN. 

(Chancery  Division,  1S7S.     Court  of  Appeal,  1879.     11  Ch.  Div.  852.) 

The  plaintiff  was  a  physician.  In  the  year  1865  he  purchased  the 
lease  of  a  house  in  Wimpole  Street,  London,  which  he  occupied  as 
his  professional  residence.  Wimpole  Street  runs  north  and  south, 
and  is  crossed  at  right  angles  by  Wigmore  Street.  The  plaintiff's 
house  was  on  the  west  side  of  Wimpole  Street,  and  was  the  second 
house  from  the  north  side  of  Wigmore  Street.    Behind  the  house  was 

74  See  the  remarks  of  Kelly,  C.  B.,  in  Harrop  v.  Hirst  (1868)  L.  R.  4  Ex. 
43,  46:  "The  plaintili's  claim,  with  other  persons,  inhabitants  of  the  same 
district  as  themselves,  a  right  to  a  continuous  flow  of  water  for  domestic 
purposes  from  a  spout  situated  in  the  street  of  Tamewater,  in  the  parish  of 
Saddleworth,  in  the  West  Riding  of  Yorkshire.  The  defendant  is  the  oc- 
cupier and  owner  of  certain  land  through  which  the  stream  on  which  the 
spout  is  dependent  for  its  supply  of  water,  flows ;  and  he  has  from  time 
to  time  abstracted  water  from  the  stream,  to  such  an  extent  as  to  render  the 
amount  which  reaches  the  spout  to  be  sometimes  insullicient  for  the  supply 
of  the  whole  district  entitled  to  make  use  of  it.  It  did  not  appear,  however, 
at  the  trial  that  the  plaintiffs  themselves  had  ever  suffered  any  actual  per- 
sonal inconvenience  from  the  want  of  water,  and  the  question  is,  whctlier, 
under  these  circumstances,  an  action  is  maintainable  at  their  suit — in  other 
words,  does  such  an  action  lie  without  proof  of  any  actual  personal  and 
particular  damage?  I  think  it  is  clear  on  the  authorities,  and  especially  ou 
the  case  of  Westhury  v.  Towel,  cited  in  Fineux  v.  Hovendeu  (151)9)  Cro. 
Eliz.  664,  that  such  an  action  is  maintainable." 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  389 

a  garden,  and  in  1873  the  plaintiff  erected  a  consulting-room  at  the 
end  of  his  garden. 

The  defendant  was  a  confectioner  in  large  business  in  Wigmore 
Street.  His  house  was  on  the  north  side  of  Wigmore  Street  and  hi's 
kitchen  was  at  the  back  of  his  house,  and  stood  on  ground  which  was 
formerly  a  garden  and  abutted  on  the  portion  of  the  plaintiff's  garden 
on  which  he  built  the  consulting-room.  So  that  there  was  nothing  be- 
tween the  plaintiff's  consulting-room  and  the  defendant's  kitchen  but 
the  party-wall.  The  defendant  had  in  his  kitchen  two  large  marble 
mortars  set  in  brickwork  built  up  to  and  against  the  party-wall  which 
separated  his  kitchen  from  the  plaintiff's  consulting-room,  and  worked 
by  two  large  wooden  pestles  held  in  an  upright  position  by  horizontal 
bearers  fixed  into  the  party-wall.  These  mortars  were  used  for  break- 
ing up  and  pounding  loaf-sugar  and  other  hard  substances,  and  for 
pounding  meat. 

The  plaintiff  alleged  that  when  the  defendant's  pestles  and  mortars 
were  being  used  the  noise  and  vibration  thereby  caused  were  very 
great,  and  were  heard  and  felt  in  the  plaintiff's  consulting-room,  and 
such  noise  and  vibration  seriously  annoyed  and  disturbed  the  plaintiff, 
and  materially  interfered  with  him  in  the  practice  of  his  profession. 
In  particular  the  plaintiff  stated  that  the  noise  prevented  him  from 
examining  his  patients  by  auscultation  for  diseases  of  the  chest.  He 
also  found  it  impossible  to  engage  with  effect  in  any  occupation  which 
required  thought  and  attention.  The  use  of  the  pestles  and  mortars 
varied  with  the  pressure  of  the  defendant's  business,  but  they  were 
generally  used  between  the  hours  of  10  a.  m.  and  1  p.  m. 

The  plaintiff  made  several  complaints  of  the  annoyance,  and  ulti- 
mately brought  this  action,  in  which  he  claimed  an  injunction  to  re- 
strain the  defendant  from  using  the  pestles  and  mortars  in  such  man- 
ner as  to  cause  him  annoyance. 

The  defendant  stated  in  his  defence  that  he  and  his  father  had. 
used  one  of  the  pestles  and  mortars  in  the  same  place  and  to  the  same 
extent  as  now  for  more  than  sixt}^  years,  and  that  he  had  used  the 
second  pestle  and  mortar  in  the  same  place  and  to  the  same  extent 
as  now  for  more  than  twenty-six  years.  He  alleged  that  if  the 
plaintiff  had  built  his  consulting-room  with  a  separate  wall,  and  not 
against  the  wall  of  the  defendant's  kitchen,  he  would  not  have  ex- 
perienced any  noise  or  vibration;  and  he  denied  that  the  plaintiff 
suffered  any  serious  annoyance,  and  pleaded  a  prescriptive  right  to 
use  the  pestles  and  mortars  under  the  2  &  3  Will.  IV,  c.  71. 

Issue  was  joined,  and  both  parties  went  into  evidence.  The  result 
of  the  evidence  was  that  the  existence  of  the  nuisance  was,  in  the  opin- 
ion of  the  court,  sufficiently  proved ;  and  it  also  appeared  that  no 
material  inconvenience  had  been  felt  by  the  plaintiff  until  he  built  his 
consulting-room. 

The  action  came  on  for  trial  before  the  Master  of  the  Rolls. 


390  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

JESSEL,  M.  R.'^"  I  think  this  is  a  clear  case  for  the  plaintiff.  There 
is  really  no  dispute  as  to  this  being  a  nuisance ;  in  fact,  the  evidence 
is  all  one  way,  and,  as  has  been  often  said  in  these  cases,  the  plaintiff 
is  not  bound  to  go  on  bringing  actions  for  damages  every  day,  when 
he  is  entitled  to  an  injunction. 

The  only  serious  point  which  has  been  argued  for  the  defendant  is 
that  by  virtue  of  the  statute,  or  by  prescription,  he  was  entitled  as 
against  the  plaintiff"  to  make  this  noise  and  commit  a  nuisance.  Now 
the  facts  seem  to  be  that  until  a  very  recent  period  it  was  not  a 
nuisance  at  all.  There  was  an  open  garden  at  the  back  of  and  attach- 
ed to  the  plaintiff's  house,  and  the  noise,  it  seems,  if  it  went  anywhere, 
went  over  the  garden,  and,  of  course,  was  rapidly  dispersed;  as  far 
as  I  can  see  upon  the  evidence  before  me,  there  was  until  a  recent 
period  no  nuisance  to  anybody — no  actionable  nuisance  at  all.  The 
actionable  nuisance  began  when  the  plaintiff  did  what  he  had  a  right 
to  do,  namely,  built  a  consulting-room  in  his  garden,  and  when,  on 
attempting  to  use  the  consulting  room  for  a  proper  purpose,  he  found 
this  noise  too  great  for  anything  like  comfort.  That  was  the  time 
to  bring  an  action  for  nuisance. 

Now,  under  those  circumstances,  it  appears  to  me  that  neither  the 
defence  of  the  statute,  nor  the  defence  of  the  right  by  prescription, 
can  possibly  avail.     *     *     * 

It  seems  to  me  that,  neither  on  the  theory  of  lost  grant  nor  on  the 
statute,  can  the  defendant  claim  to  do  what  he  has  done,  and  therefore 
the  plaintiff  is  entitled  to  an  injunction;  but  as  it  would  be  somewhat 
hard  upon  a  confectioner  to  alter  his  mode  of  business  at  the  height 
of  the  London  season,  I  will  give  him  a  reasonable  time,  say  until 
the  1st  of  August,  to  alter  the  position  of  his  mortars/^ 

7  5  Part  of  the  opinion  is  omitted. 

Compare  Dana  v.  Valentine  (1S42)  5  Mete.  (Mass.)  8:  P.  sought  an  injunc- 
tion to  restrain  D.  from  carrying  on  the  business  of  slaughtei'ing  cattle  on 
his  land  adjoining  P.'s  property.  The  defense  was  that  D.  had  been  carrying 
on  this  business  at  this  place  for  more  than  twenty  years  without  molesta- 
tion. But  to  this  it  was  objected  that  P.'s  property  had  been  vacant  during 
this  period,  that  he  had  suffered  no  annoyance  until  recently,  and  therefore 
that  he  could  not  interpose  to  prevent  its  continuance.  "But,"  said  Wilde,  J., 
"it  is  very  clear  that  where  a  party's  right  of  property  is  invaded,  he  may 
maintain  an  action  for  the  invasion  of  his  right,  without  proof  of  actual 
damage." 

76  From  this  decision  the  defendant  appealed.  After  argument  the  Court 
of  Appeal  (James,  Baggallay,  and  Thesiger,  L.  J  J.)  dismissed  the  appeal:  "The 
Master  of  the  Rolls  in  the  Court  below  took  substantially  the  same  view  of 
the  matter  as  ourselves,  and  granted  the  relief  which  the  plaintiff  prayed  for 
and  we  are  of  opinion  that  his  order  is  right  and  should  be  affirmed."  The 
opinion  in  the  Court  of  Appeal,  by  Thesiger,  L.  J.,  is  omitted. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  391 

ROBERTS  V.  GWYRFAI  DISTRICT  COUNCIL. 
(Chancery  Division.     [1899]  1  Ch.  583.) 

The  plaintiff  was  the  owner  and  occupier  of  an  ancient  water-mill, 
with  lands  belonging  thereto,  and  he  claimed,  as  riparian  owner  and 
occupier  of  the  same,  to  be  entitled  to  the  natural  flow  of  a  stream 
that  ran  past  his  mill  from  a  lake  at  the  foot  of  a  mountain  some  dis- 
tance above  the  mill,  the  stream  being  utilized  for  driving  the  mill. 
The  plaintiff  also  claimed  that,  whenever  necessary  for  the  purposes 
of  his  mill,  he  was  entitled,  in  times  of  drought  and  scarcity  of  water 
in  the  stream,  to  dam  up  the  water  of  the  lake  as  a  reservoir  so  as 
to  ensure  a  sufficient  supply  of  water  to  the  mill.  In  1893,  the  defend- 
ants, who  had  obtained  a  lease  of  the  lake  from  the  Crown  and  also 
a  lease  of  adjoining  land  for  the  purpose  of  increasing  the  size  of 
the  lake,  informed  the  plaintiff  of  their  intention  to  take  water  from 
the  lake  for  the  purpose  of  supplying  certain  villages  in  their  district 
with  water,  and  applied  to  him  for  his  written  consent  thereto  under 
section  332  of  the  Public  Health  Act,  1875  (38  &  39  Vict.  c.  55),  but 
he  refused  to  give  such  consent.  Thereupon  the  defendants,  with- 
out any  further  notice,  laid  down  pipes,  and  under,  it  was  said,  a 
license  granted  by  the  Crown  in  1896,  constructed  a  dam  across  the 
end  of  the  lake,  of  which  the  stream  in  question  formed  the  natural 
outlet,  so  as  to  increase  the  water  storage,  a  sluice  being  placed  in 
the  dam  to  regulate  the  outflow  from  the  lake.  The  area  of  the  lake 
was  considerably  increased  by  the  defendants'  works. 

The  plaintiff,  in  1898,  issued  the  writ  in  this  action  for  an  injunc- 
tion to  restrain  the  defendants  from  taking  any  of  the  water  from 
the  lake,  and  from  doing  any  act  whereby  the  flow  of  water  in  the 
stream  through  and  by  the  plaintiff's  mill  and  lands  would  be  diminish- 
ed. The  defendants,  as  lessees  and  occupiers  of  land  adjoining  the 
lake,  claimed  riparian  and  other  rights  in  the  lake,  including  the  right 
to  take  water  therefrom  for  supplying  their  district,  so  far  as  they 
could  do  so  without  causing  damage  to  other  riparian  owners.  They 
denied  that  they  had  done  or  were  intending  to  do  anything  whereby 
the  flow  of  water  in  the  stream  past  the  plaintiff's  mill  had  been  or 
would  be  diminished  or  so  as  to  cause  any  damage  to  the  plaintiff. 

The  action  now  came  on  for  trial  with  witnesses.  It  was  admitted 
at  the  trial  that  the  plaintiff  had  not  yet  suffered  any  actual  damage, 
and  that  the  defendants'  dam  had  been  properly  constructed  for  the 
purpose  they  had  in  view ;  also,  that  an  arrangement  had  been  made 
by  means  of  the  sluice  for  providing  a  regulated  flow  of  water  down 
the  stream.  This,  the  defendants'  witnesses  said,  would  give  the  plain- 
tiff a  constant  supply  instead  of  an  intermittent  one,  which  the  plain- 
tiff admitted  sometimes  occurred  in  dry  seasons.  The  plaintiff,  how- 
ever, insisted  that  he  was  entitled,  as  of  right,  to  the  flow  of  water 
past  his  mill  unimpeded  and  uncontrolled  in  any  way  by  the  defend- 
ants. 


392  TORTS  THROUGH  ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

KekEwich,  J,  *  *  *  The  defendants,  in  the  exercise  of  what 
they  conceive  to  be  their  duty  and  within  their  powers,  utihsed  the 
waters  of  this  lake  by  constructing  certain  works  which  are  admit- 
ted at  present  to  be  properly  constructed  with  a  view  of  supplying  the 
district  with  water.  It  is  not  suggested  that  the  plaintiff  will  be  any 
worse  off  now  than  he  was  before ;  probably  he  will  be  better  off  in 
the  future  than  he  has  been  in  the  past.  The  supply  may  not  be  the 
same,  but  it  will  be  sufficient,  and  will  be  apparently  more  constant 
than  it  has  been  before,  since  the  evidence  shews  it  to  have  been  of  an 
intermittent  character  and  sometimes  very  much  less  than  was  re- 
quired for  the  purposes  of  the  mill.  But  the  plaintiff  says:  "I  am 
entitled  to  insist  upon  having  what  I  had  before.  It  is  immaterial 
whether  the  supply  of  water  I  had  before  is  better  or  worse  than 
what  is  now  proposed  to  be  given  to  me.  It  is  for  me  to  consider 
whether  I  shall  derive  any  benefit  from  the  alteration.  I  protest  against 
any  alteration  at  all." 

Several  cases  have  been  referred  to,  but  I  intend  to  refer  only  to 
one  of  them  in  which  occurs  a  passage  to  which  Mr.  Renshaw  called 
my  attention.  The  law  on  this  subject  has  been  threshed  out  again 
and  again,  and  I  do  not  think  any  advantage  would  be  gained  by  my 
going  through  the  authorities.  A  riparian  proprietor  or  owner  is  en- 
titled to  say  that  the  water  which  flows  by  his  property  and  which 
is  used  by  him  for  ordinary,  or  it  may  be  for  extraordinary,  purposes 
shall  flow  in  the  future  as  it  has  done  in  the  past — debet  currere  ut 
currere  solebat.  That  seems  to  me  to  be  the  common  law  right;  and 
unless  that  common  law  right  has  been  affected  by  statute  he  is  en- 
titled to  insist  upon  it.  But  there  is  one  passage  in  Lord  Cairns's 
speech  in  the  House  of  Lords  in  the  case  of  Swindon  Waterworks  Co. 
V.  Wilts  and  Berks  Canal  Navigation  Co.,  L.  R.  7  H.  L.  697,  which, 
Mr.  Renshaw  says,  instead  of  being  in  the  plaintiff's  favour  is  against 
him.  I  do  not  so  read  it.  What  Lord  Cairns  says  is  this  (L.  R.  7 
H.  L.  705) :  "Therefore,  my  Lords,  so  far  as  regards  the  position  of 
the  respondents  as  riparian  owners,  it  appears  to  me  that  they  clearly 
have  a  right  to  complain  of  that  which  is  done  by  the  appellants,  if 
what  is  so  done  by  them  is  insisted  upon  as  a  thing  which  they  have 
a  right  to  do."  That  is  the  qualification.  "I  put  this  qualification 
because,  if,  when  the  attention  of  the  appellants  had  been  called  to 
what  they  were  doing,  they  had  not  insisted  upon  doing  it  as  a  matter 
of  right,  I  can  well  understand  that  if  the  Court  of  Chancery  found 
*  *  *  that  no  sensible  damage  had  occurred  to  them,  it  might 
not  have  thought  it  necessary  to  interfere  with  them  by  an  injunc- 
tion or  declaration." 

What  I  understand  Lord  Cairns  to  mean  is  that,  there  being  no 
sensible  damage,  an  injunction  or  declaration  would  not  have  been 
granted  unless  the  appellants  had  insisted  upon  what  they  were  doing 
as  a  thing  they  were  entitled  to  do  as  a  matter  of  right.  From  which 
I  should  conclude  also  that,  as  they  did  insist  upon  it  as  a  matter  of 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  393 

right,  whether  damage  was  incurred  or  not,  the  respondents  were 
entitled  to  an  injunction  or  declaration.  That,  as  I  understand,  is 
the  meaning  of  his  Lordship's  observations,  and  what  he  means  by  the 
qualification,  and  what  he  deduces  from  it.  Therefore  it  seems  to  me 
that,  unless  the  defendants  have  some  higher  authority  by  statute  (pre- 
scription being  out  of  the  question)  to  interfere  with  the  flow  of  water, 
they  have  no  right  to  alter  the  flow  even  although  the  alteration  may 
cause  no  sensible  damage  to  the  plaintiff.  He  is  entitled  to  have  his 
water  flowing  as  it  did  before,  and  so  far  I  am  entirely  in  his  fa- 
vour.    *     *     * 

The  defendants  are  seeking  to  interfere  with  the  plaintiff's  common 
law  right,  and  there  is  no  statutory  power  enabling  them  to  do  that. 
The  common  law  right  seems  to  me  to  be  unaffected  by  the  statute. 

The  result  is  that,  in  my  opinion,  the  plaintiff  is  entitled  to  an  in- 
junction. The  injunction  will  be  a  perpetual  injunction  to  restrain 
the  defendants,  their  servants,  agents,  and  workmen,  from  taking  any 
water  from  the  lake  for  the  purpose  of  supplying  their  district  with 
water,  and  from  doing  any  other  act  for  that  purpose  whereby  the 
flow  of  water  in  the  stream  and  through  and  by  the  plaintiff's  mill 
and  lands  shall  be  diminished.''^ 


DOWNING  V.  ELLIOTT. 

(Supreme  Judicial  Court  of  Massachusetts,  1902.    182  Mass.  28,  64  N.  E.  201.) 

This  case  was  reserved  from  the  Supreme  Judicial  Court,  Suffolk 
County,  for  the  full  court,  on  the  pleadings,  master's  report,  and  com- 
plainant's exceptions.  y 

Morton,  J.  The  plaintiff  is  engaged  in  the  ice  business,  and  is  the 
owner  of  a  pond  in  Brighton,  from  which  he  cuts  ice  for  family  and 
wholesale  trade.  The  defendant  is  the  owner  of  a  greenhouse  near  the 
pond,  and  heated  by  steam.  Prior  to  the  bringing  of  the  bill  he  had 
used  soft  coal ;  and  the  bill  alleges  that  smoke,  dust,  soot,  and  cinders 
were  thereby  deposited  in  the  plaintiff's  pond,  and  the  ice  rendered 
unfit  for  use.  The  prayer  of  the  bill  is  that  the  defendant  may  be 
restrained  from  using  soft  coal  or  other  fuel  that  will  interfere  with 
or  injure  the  property  or  business  of  the  plaintiff,  and  for  the  assess- 
ment of  damages.     *     *     * 

The  defendant's  business  is  a  lawful  business,  and  he  has  a  right  to 
use  his  premises  in  any  manner  that  will  not  interfere  with  the  legal 
rights  of  others  or  violate  the  law.  It  cannot  be  said,  we  think,  that 
the  use  of  soft  coal  for  the  purpose  of  generating  steam  of  itself 
constitutes  a  nuisance,  and  there  is  nothing  to  show  that  the  business 
is  not  a  proper  one  to  be  carried  on  in  that  locality,  or  that  it  is  not 
carried  on  in  a  proper  manner.     Indeed,  there  would  seem  to  be  few 

7  7  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point. 


394  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

businesses  less  objectionable  than  that  of  growing  plants  and  flowers 
for  sale.  But,  though  the  locality  is  a  suitable  one,  and  the  business 
is  lawful,  and  carried  on  in  a  proper  manner,  the  defendant  has  no 
right  to  materially  contaminate  the  air  that  comes  to  the  plaintiff's 
premises,  and  injure  his  business  and  property,  by  the  presence  and 
deposit  of  smoke,  soot,  dust,  and  cinders.  Every  one  has  a  right  to 
have  the  air  that  comes  to  his  premises  come  as  pure  and  uncontam- 
inated  as  can  reasonably  be  expected.  In  thickly-settled  communities 
absolute  purity  is  out  of  the  question;  and  the  more  thickly-settled 
the  community  is,  and  the  more  varied  are  the  kinds  of  business,  the 
more  will  the  atmosphere  be  unavoidably  impregnated  with  impurities. 
This  is  one  of  the  inconveniences,  if  it  is  an  inconvenience,  which 
every  one  who  lives  in  a  populous  neighborhood  must  sufifer.  But 
the  fact  that  the  atmosphere  is  already  impure  does  not  justify  or 
excuse  a  party  in  adding  to  the  impurity,  so  as  thereby  to  cause  still 
further  discomfort  to  others,  or  still  further  injury  to  their  business 
or  property;  and  conduct  which  leads  to  such  a  result  will  constitute 
an  invasion  of  the  rights  of  the  parties  injuriously  affected  thereby. 
But  in  these  as  in  other  cases  an  independent  wrongdoer  is  responsible 
only  for  the  consequences  of  his  own  wrongdoing,  and  not  for  the 
acts  or  conduct  of  others.  The  burden  of  proof  is  upon  the  party 
complaining,  and  each  case  must  stand  on  its  own  facts.  No  general 
rules  can  be  laid  down  that  will  furnish  an  infallible  guide  in  all 
cases.  The  most  that  can  be  done  is  to  indicate  the  lines  along  which 
the  decision  must  proceed.  To  entitle  the  plaintiff  to  relief,  the 
injury  of  which  he  complains  must  be  certain  and  substantial,  and 
not  slight  or  theoretical.  The  right,  as  already  observed,  is  not  a 
right  to  absolute  purity,  any  invasion  Of  which  would  give  a  right  of 
action,  but  it  is  a  right  to  such  a  degree  of  purity  as,  taking  all  the 
circumstances  into  account,  the  plaintiff  is  reasonably  entitled  to.  See 
Ferrule  Co.  v.  Hills,  159  Mass.  147,  34  N.  E.  85,  20  L.  R.  A.  844; 
Rogers  v.  Elliott,  146  Mass.  349,  15  N.  E.  768,  4  Am.  St.  Rep.  316; 
Smelting  Co.  v.  Tipping,  11  H.  L.  Cas.  642;  Crump  v.  Lambert,  L. 
R.  3  Eq.  409;  Walter  v.  Selfe,  4  De  Gex  &  S.  315;  Fleming  v.  His- 
lop  (1886)  11  App.  Cas.  686;   Wood,  Nuis.  (1st  Ed.)  429  et  seq. 

In  the  present  case  the  master  finds  that  the  ice  was  unfit  and  un- 
suitable for  the  plamtiff's  family  trade  by  reason  of  black  spots 
resembling  soot  and  cinders  embedded  in  it,  and  that  the  black  specks 
referred  to  had  been  deposited  on  the  surface,  and  had  sunk  into 
the  ice  in  the  process  of  alternate  freezing  and  thawing ;  and  he  says, 
what  is  obvious,  that  the  main  question  in  the  case  is  to  determine 
from  what  source  these  specks  came.  Upon  that  question  he  finds  as 
follows :  "I  cannot  find  that  no  ])articles  of  soot  or  carbon  from  the 
defendant's  chimney  are  deposited  on  the  plaintiff's  pond  or  upon  his 
ice,  but  I  find  and  report  that  soot  and  cinders  from  the  defendant's 
chimney,  caused  by  the  burning  of  soft  coal  by  him,  are  only  one 
cause  contributing  to  the  specks  resembling  soot  and  cinders  in  the 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  395 

plaintiff's  ice,  rendering  it  unfit  and  unsuitable  to  be  used  and  dis- 
posed of  in  his  family  trade.  I  further  find  and  report,  if  it  is 
material,  that  the  portion  of  soot  and  cinders  coming  from  the  de- 
fendant's chimney  is  of  small  importance  in  comparison  with  other 
causes  contributing  to  injure  the  plaintiff's  ice  and  render  it  unfit 
and  unsuitable  as  aforesaid."  These  findings  are  warranted  by  other 
facts  found  by  the  master, — such,  for  instance,  as  the  general  con- 
siderations affecting  the  locality,  the  precautions  taken  by  the  defend- 
ant to  prevent  the  escape  of  soot  and  cinders,  the  distance  from  the 
fire  to  the  chimney  and  the  distance  from  them  to  the  pond,  the  fact 
that  the  prevailing  wind  was  not  in  a  direction  from  the  greenhouse 
towards  the  pond,  and  the  experiments  and  other  circumstances  tend- 
ing to  show  that  the  atmosphere  abounded  in  impurities  from  other 
causes.  There  is  no  finding  that  any  unusual  or  extraordinary  vol- 
umes of  smoke  issued  at  any  time  from  the  defendant's  chimney ; 
and  the  fair  import  of  the  master's  findings  is,  it  seems  to  us,  that 
while  he  cannot  say  that  no  soot  and  cinders  from  the  defendant's 
chimney  were  deposited  on  the  plaintiff's  ice,  if  any  were  deposited 
they  contributed  only  slightly,  if  at  all,  to  the  injury  to  the  ice,  and 
the  damage  done  by  them  was  insignificant  as  compared  with  that 
resulting  from  other  causes.  He  further  finds  that,  while  the  use  of 
soft  coal  is  not  a  necessity  in  carrying  out  the  defendant's  business, 
it  is  more  economical,  and  saves  him  between  $400  and  $500  a  year. 
If,  therefore,  an  injunction  should  issue  as  prayed  for,  it  not  only 
will  not  afford  the  plaintiff  the  relief  which  he  seeks,  but  will  inflict 
great  and  unnecessary  injury  on  the  defendant.  As  the  case  stands, 
we  do  not  think  that  the  plaintiff  is  entitled  to  an  injunction.  Neither 
do  we  think  that  he  is  entitled  to  damages.  If  the  alleged  injuries 
are  too  slight  and  uncertain  to  be  ground  for  an  injunction,  we  do  not 
see  how  they  can  be  made  the  basis  for  an  assessment  of  damages. '^^ 
The  result  is  that  we  think  that  the  bill  should  be  dismissed.  So 
ordered. 

7  8  Part  of  the  opinion  is  omitted. 

"In  all  these  cases  of  nuisance,  one  has  to  consider  what  must  be  proved 
by  the  plaintiff  in  order  to  support  his  action.  It  seems  to  me  that  the 
House  of  Lords  went  upon  the  principle  that,  whether  the  plaintiff  was  rel.y- 
ing  upon  his  common  law  rights,  or  upon  his  prescriptive  rights,  or  his  riglits 
of  property  of  any  sort  or  kind,  tlie  conditions  precedent  to  constitute  a  cause 
of  action  were  really  identical.  Tlie  courts  have  always  been  unwilling  in 
these  cases  of  nuisance  to  hold  that  every  nuisance,  apart  from  the  rule 
de  minimis  non  curat  lex,  should  be  a  cause  of  action.  On  the  contrary,  in 
all  these  cases  of  nuisance  which  involve  a  limitation  of  a  man's  right  to 
use  his  own  land,  the  courts  will  not  enforce  the  alleged  rights  of  the  plain- 
tiff, unless  that  which  has  occurred  is  a  substantial  interference  with  his 
comfortable  or  profitable  occupation  of  his  dwelling-house,  or  warehouse, 
or  house  of  business,  as  the  case  may  be."  Vaughan  Williams,  L.  J.,  in 
Kine  V.  Jolly,  [1905]  1  Ch.  480,  488. 


■J 


J 


396  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 


(C)  The  Remedies  in  Nuisance 

There  was  an  old  Assise  of  Nuisance;  but  this,  as  a  real  action, 
could  only  be  used  by  and  against  freeholders,  while  the  action  of  Case 
framed  upon  the  analogy  of  it  was  open  to  all  persons  having  an  in- 
terest in  possession,  against  all  persons  causing  a  physical  injury  to 
their  land.  A  curious  and  not  altogether  commendable  survival  of  the 
right  of  self-help  marks  the  transition.  Under  the  old  Assise  of  Nui- 
sance, and  the  still  older  Writ  of  Quod  Permittat,  the  successful  plain- 
tiff was  entitled  to  have  the  nuisance  "abated,"  or  taken  away  by  the 
sheriff  and  the  power  of  the  county.  The  judgment  in  the  action  of 
Case  in  the  Nature  of  Nuisance  was  merely  for  damages;  but  the 
complainant  was,  apparently,  permitted  to  abate  the  nuisance  himself, 
and  the  right  survives  to  the  present  day,  though  the  exercise  of  it 
has  been  largely  superseded  by  the  issue  of  mandatory  injunctions. 

Jenks,  Short"  History  of  Eng.  Law,  144  (1912). 


GATES  v.  BLINCOE. 

(Court  of  Appeals  of  Kentucky,  1834.    2  Dana,  158,  26  Am.  Dec.  440.) 

Robertson,  C.  J.  The  plaintiff  sued  the  defendants,  in  case,  for 
diverting  the  water  from  his  mill,  by  cutting  a  ditch.  They  attempted 
to  justify  on  the  ground  that  the  mill  dam  was  a  nuisance,  which  they 
had  a  legal  right  to  abate. 

On  the  trial,  the  court  instructed  the  jury  that 

"if  the  water  occasioned  (by  the  dam)  was  a  nuisance,  or  had  been  a  nuisance, 
and  was  like  to  become  so  again,  the  defendants  had  a  right  to  cut  a  ditch, 
and  draw  off  the  water," 

and  thereupon  the  jury  found  a  verdict  for  the  defendants,  on  which 
the  court  rendered  a  judgment  in  bar  of  the  action.     *     *     * 

In  the  opinion  of  this  court,  the  instruction  is  erroneous  in  three 
particulars : 

First.  It  is  not  strictly  true,  that  "if  the  dam  had  been  a  nuisance, 
and  was  like  to  become  so  again,"  the  defendants  had  a  right  to  abate 
it.  Unless  it  was  a  nuisance  at  the  time  when  the  ditch  was  cut,  no 
person  had  a  right  to  stop  or  obstruct  the  mill  without  the  owner's 
consent.  It  is  not  now  material  whether  the  evidence  tended  to  prove 
that  the  dam  was  a  nuisance  when  the  ditch  was  cut ;  for  the  instruc- 
tion clearly  implies  that,  though  it  may  not  have  been  then  a  nuisance, 
the  defendants  had  a  right  to  abate  it,  if  it  had  been,  and  would  prob- 
ably again  become  a  nuisance ;  and  it  is  evident  that,  even  though  it 
may  have  been  once  a  nuisance,  and  might  again  become  so,  it  may 
not  have  been  a  nuisance  when  the  ditch  was  cut  by  the  defendants. 
A  probability  that  a  thing  may  become  a  nuisance,  or,  in  other  words, 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  397 

an  actual  and  substantial  annoyance,  public  or  private,  does  not  make 
a  nuisance  wbich  can  be  lawfully  abated;  and  therefore,  Lord  Hard- 
wicke,  in  an  anonymous  case  in  3  Atk.  said  that  "the  fears  of  man- 
kind, though  they  may  be  reasonable,  will  not  create  a  nuisance." 

In  a  proper  case,  when  the  danger  is  imminent,  a  nuisance  may  be 
prevented  by  injunction;  and  for  that  which  had  been  a  common  nui- 
sance, an  indictment  would  be  an  effectual  and  appropriate  remedy. 

A  nuisance  must  be  actually  subsisting,  to  the  injury  of  the  public, 
or  of  some  individual,  before  any  person  should  be  suffered  to  resort 
to  a  remedy  so  critical,  perilous  and  extraordinary,  as  that  of  his  own 
will  and  power,  which  necessity  alone  indulges,  in  cases  of  extremity 
or  of  great  emergency,  in  which  no  ordinary  remedy  will  be  altogether 
effectual.  The  public  peace  should  not  be  jeoparded,  by  permitting 
individuals  to  redress  their  own  wrongs,  when  they  might  obtain  ade- 
quate security  and  indemnity  by  a  resort  to  any  of  the  ordinary  rem- 
edies in  courts  of  justice. 

Prima  facie,  a  mill  dam  which  was  once  a  nuisance  will  continue 
to  be  so  as  long  as  it  exists ;  but  it  may  not ;  and,  therefore,  as  the 
dam  may  not  in  this  case  have  been  a  nuisance  when  the  ditch  was  cut, 
the  instruction  was  erroneous. 

Second.  Even  though  the  dam  may  have  been  a  nuisance  when  the 
ditch  was  cut,  the  defendants  had  not,  as  the  court  instructed  the  jury 
that  they  had,  a  right,  as  a  matter  of  course,  to  abate  the  nuisance; 
because  it  may  have  been,  in  the  opinion  of  the  jury,  a  private  nui- 
sance only,  and,  if  so,  no  person  who  was  not  injured  by  it  had  a  right 
to  abate  it ;  and  therefore,  as  the  jury,  and  not  the  court,  had  the  right 
to  decide  whether  the  nuisance  was  public  or  private  and  whether,  if 
private,  it  annoyed  the  defendants,  or  any  of  them,  the  court  erred 
in  instructing  the  jury,  that  if  they  believed  that  the  dam  was  a  nui- 
sance, the  defendants  had  a  right  to  abate  it. 

Third.  If  the  defendants  had  a  right  to  cut  a  ditch  for  abating  a  nui- 
sance, their  right  was  limited  to  that  which  was  a  nuisance ;  they  had 
no  right  to  draw  off  more  water  than  so  much  as  would  abate  the  nui- 
sance. If  they  transcended  that  limit,  they  did  an  injury  to  the  plain- 
tiff for  which  he  might  have  an  action.  Rex  v.  Rippineau,  1  Strange, 
686,  and  Russell  on  Crimes,  306.  The  ditch  may  have  been  deeper 
than  the  end  to  be  legitimately  effected  by  it,  required.  There  was  no 
proof  as  to  that  point,  and  the  instruction  is,  in  that  particular,  un- 
qualified, and,  therefore,  is  erroneous ;  because  it  imports  that  the  de- 
fendants were  justifiable,  even  if,  in  abating  a  nuisance,  they  wantonly 
or  recklessly  destroyed,  without  necessity,  the  total  value  of  the  plain- 
tiff's mill. 

Wherefore,  it  is  considered  by  this  court  that  the  judgment  be  re- 
versed, and  the  cause  remanded  for  a  new  trial.''® 

7  9  Part  of  the  opinion  Is  omitted. 

See  Baton's  Case  (1611)  9  Co.  Rep.  53  b,  54  b:  ("Nota  reader,  there  are 
two  ways  to  address  a  uusance,  one  by  action,  and  in  that  he  shall  recover 


398  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

STATE  V.  MOFFETT  et  al. 

(Supreme  Court  of  Iowa,  1848.    1  G.  Greene,  247.) 

The  defendants  were  indicted  for  damaging  a  mill-dam.  It  appears 
from  the  bill  of  exceptions 

that  jMoffett  built  and  possessed  a  mill  and  dam  on  Skunk  River  in  1834  or 
1835;  that  at  the  time  of  the  alleged  injury  he  was  in  possession;  that  in 
1840  Peter  Brener,  built  a  mill  and  dam  on  the  same  river,  about  a  mile 
and  half  below  Moffett's  mill,  the  effect  of  which  was  to  throw  back-water 
to  an  injurious  extent  on  the  wheels  of  Moffett's  Mills,  but  not  so  as  to  stop 
them  entirely ;  that  both  mills  are  public  mills ;  and  on  the  23d  of  March, 
1848,  ^loffett  and  the  other  defendants  tore  down  Brener's  dam  to  a  con- 
siderable degree — a  space  from  fifty  to  eighty  feet  wide,  and  from  one  to 
three  feet  deep — with  intent  to  remove  the  alleged  nuisance ;  and  justified 
In  their  defense  on  the  ground  that  Brener's  dam  was  a  nuisance  injurious  to 
Moffett,  and  that  he  had  a  right  to  abate  it  by  his  own  act. 

The  prosecution  asked  the  court  to  instruct  the  jury,  that,  by  the 
15th  section  of  the  criminal  law  of  Iowa,  entitled  an  "Act  Defining 
Crimes  and  Punishments,"  the  right  of  Moffett  to  abate  a  mill-dam 
as  a  nuisance,  by  his  own  act,  was  taken  away ;  which  instruction  was 
refused.  The  court  also  refused  to  instruct  the  jury,  that  the  act  of 
the  legislative  assembly  authorizing  Peter  Brener  to  build  a  dam  did 
not  take  away  Moffett's  right  to  abate  the  dam  as  a  nuisance.  The 
court  then  instructed  the  jury,  that  if  Brener's  dam  caused  water  to 
flow  back  upon  the  wheel  of  Moffett's  mill  to  his  serious  injury,  it  was 
a  private  nuisance,  and  Moffett  might  pull  it  down  so  as  to  remove  the 
back-water.  These  instructions,  refused  and  given,  are  assigned  for 
error. 

KiNNKY,  J.  The  only  question  in  this  case  is,  whether  the  statute 
making  it  a  penal  offense  to  "injure  a  mill-dam,"  took  away  Moffett's 
right  to  abate  it  for  a  nuisance.  That  a  person  at  common  law  has 
a  right  to  abate  a  nuisance  cannot  be  denied.  It  is  one  of  those  rights 
which  secure  to  him  the  uninterrupted  enjoyment  of  his  person  and 
property.  When  properly  exercised,  it  may  be  as  essential  to  his  hap- 
piness as  the  right  of  self  defense.    But  like  other  summary  rights  of 

damages,  and  have  judgment  that  the  nusance  shall  be  removed,  cast  down, 
or  abated,  as  the  case  requires ;  or  the  party  grieved  may  enter  and  abate 
the  nusance  himself,  as  appears  by  17  E.  3,  44,  9  E.  4,  35,  and  in  Penrud- 
dock's  Case,  but  then  he  shall  not  have  an  action,  nor  recover  damages,  for 
in  an  assize  of  nusance,  or  quod  permittat  prostornore,  etc.,  it  is  a  good 
plea,  that  the  plaintiff  himself  either  before  the  writ  brought,  or  pending  the 
writ,  has  abated  the  nusance:  for  in  an  assise  or  quod  permittat,  he  shall 
have  judgment  of  two  things,  sc.  to  have  the  nusance  abated,  and  to  re- 
cover damages,  and  he  has  disabled  himself  by  his  own  act  to  have  judgment 
for  one  of  them,  s.  to  have  a  nusance  abated,  and  therefore  the  action  doth 
not  lie.")  James  v.  Ilayward  (1631)  Cro.  Car.  184,  78  Reprint.  701.  Raikes 
V.  Townsend  (1804)  2  Smith,  9,  7  R.  R.  77G,  when  Serjeant  Williams  urged 
unsuccessfully  that  the  right  of  abatement  l)y  self  help  was  confined  to  the 
cases  mentioned  in  2  Rolle's  Abridgement,  144,  pis.  2  and  3,  nuisances  to  a 
house,  to  a  mill,  or  to  land. 

See  also  29  Cvc.  1214  et  seq. ;  37  Cent.  Dig.  "Nuisance,"  §§  51-54 ;  Key-No. 
"Nuisance,"  §§  20,  74. 


Ch.  2)  ABSOLUTE    TORTS  OTHER  THAN  TRESPASSES  399 

this  nature,  it  is  confined  within  certain  Uniits.  No  more  injury  to 
the  property  of  another  must  be  inliicted  than  is  absolutely  necessary 
to  accomplish  the  object.  A  salutary  check  is  thrown  around  an  im- 
proper exercise  of  this  right,  as  the  individual  is  always  under  the 
peril  of  being  deemed  a  trespasser,  unless  the  existence  of  the  nuisance 
is  established.  Thus,  while  a  person  can  be  the  judge,  in  the  first  in- 
stance, as  to  the  existence  of  the  nuisance,  if  it  should  turn  out  other- 
wise he  is  responsible,  and  can  be  made  to  answer  to  the  party  in- 
jured, and  may  subject  himself  to  criminal  prosecution.  But  at  com- 
mon law,  his  right  to  abate  a  nuisance,  when  it  really  is  such,  is  un- 
controverted.  And  we  think  our  statute  has  not  impaired  this  right 
by  making  it  penal  to  injure  a  mill-dam,  if  the  mill-dam  becomes  a 
nuisance.  The  injury  to  the  dam,  to  come  within  the  purview  of  the 
statute,  must  be  "willful  or  malicious."  The  summary  abatement  of 
a  dam  as  a  nuisance,  is  not  necessarily  attended  with  malicious  or  will- 
ful motives.  It  may  be  an  act  necessary  for  the  protection  and  en- 
joyment of  property.  *  *  *  so 
Judgment  afiirmed. 


SMITH  V.  CxIDDY. 
(High  Court  of  Justice,  King's  Bench  Division.     [1904]  2  K.  B.  448.) 

The  plaintiff  and  the  defendant  were  the  occupiers  of  adjoining 
premises.  The  plaintiff  alleged  that  he  had  sustained  damage  to  the 
extent  of  i60.  by  reason  of  certain  elm  and  ash  trees  growing  on  the 
defendant's  premises  overhanging  the  plaintiff's  premises  and  interfer- 
ing with  the  growth  of  his  fruit  trees.  The  plaintiff  claimed  damages 
iuid  an  injunction. 

The  county  court  judge  held  that  the  plaintiff's  only  remedy  was  to 
abate  the  nuisance  by  cutting  back  the  overhanging  trees  himself,  and 
he  directed  a  nonsuit.     The  plaintiff  appealed.®^ 

Wills,  J.  I  am  of  opinion  that  the  judgment  of  the  county  court 
judge  in  this  case  was  erroneous,  and  that  there  must  be  a  new  trial. 
It  is  no  doubt  quite  true  that  there  is  no  case  to  be  found  in  the  books 
in  which  the  action  has  been  held  to  lie  against  an  adjoining  owner 
for  allowing  his  trees  to  project  over  the  boundary  where  the  only 
damage  resulting  from  the  projection  has  been  a  damage  to  the  plain- 
tift"s  crops.  It  was  pointed  out  by  Kelly,  C.  B.,  in  Crowhurst  v.  Amer- 
sham  Burial  Board  [1878]  4  Ex.  D.  5,  that  there  was  no  precedent 
for  such  an  action,  and  it  was  thei'e  suggested  that  there  was  much  to 
be  said  on  the  grounds  of  general  convenience  in  favour  of  such  an 
action  not  being  maintainable.  But  I  am  of  opinion  that  the  principle 
upon  which  that  case  was  decided  is  enough  to  enable  us  to  decide 

80  Part  of  the  opinion,  disrussing  the  scope  of  the  statute,  is  omitted. 

81  See  Lemmon  v.  Webb,  [lSi)4]  3  Ch.  1. 


400  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

the  present  case  in  favour  of  the  plaintiff.  There  the  action  was 
brought  against  the  owners  of  a  yew  tree  which  they  or  their  prede- 
cessors in  title  had  planted  on  their  land  and  which  they  allowed  to 
overhang  their  boundary,  whereby  the  plaintiff's  horse  in  the  adjoin- 
ing meadow  feeding  on  the  projecting  branches  was  poisoned;  and  it 
was  held  that  the  action  lay.  The  court  treated  the  case  as  an  illus- 
tration of  the  rule  in  Rylands  v.  Fletcher  [1868]  L.  R.  3  H.  L.  330, 
that  a  person  who  brings  on  his  land  something  that  is  likely  to  do 
damage  if  it  escapes  is  responsible  if  that  damage  occurs. ^^  It  seems 
to  me  that  there  is  no  distinction  in  principle  between  the  damage  oc- 
casioned in  that  case  and  the  damage  in  the  present.  The  injury  to 
the  plaintiff's  fruit  trees  was  the  natural  consequence  of  the  defend- 
ant's trees  being  allowed  to  overhang. 

I  have  come  to  this  conclusion  with  considerable  reluctance,  for  I 
have  a  strong  feeling  that  it  is  highly  desirable  not  to  establish  new 
causes  of  action  if  it  can  possibly  be  avoided,  but  I  do  not  see  how 
we  can  refuse  to  hold  that  this  action  lies  without  departing  from  the 
principle  of  Crowhurst's  Case.  Moreover,  we  are  fortified  in  this  view 
by  the  dictum  of  Kay,  L.  J.,  in  the  case  of  Lemmon  v.  Webb  [1894] 
3  Ch.  1,  where,  although  it  was  not  necessary  to  the  decision,  he  dis- 
tinctly states  it  as  his  opinion  that  for  any  damage  occasioned  by  over- 
hanging boughs  an  action  on  the  case  would  lie.  It  has  been  con- 
tended that  the  remedy  which  the  plaintiff  has  of  cutting  the  trees  back 
himself  is  all  sufficient,  and  that  under  those  circumstances  it  is  un- 
necessary to  invent  a  new  cause  of  action.  But  that,  in  my  opinion, 
is  no  answer  to  the  action, 

Kennedy,  J.  I  am  of  the  same  opinion.  The  county  court  judge 
has  nonsuited  the  plaintiff;  therefore  we  must  assume,  for  the  pur- 
poses of  the  present  argument,  that  the  damage  alleged  in  the  par- 
ticulars has  actually  been  suffered.  If  that  be  so,  the  damage  was  sub- 
stantial. And  under  those  circumstances  I  fail  to  see  any  reason  in 
principle  why  the  action  should  not  lie  as  for  a  nuisance.  I  cannot 
differentiate  the  present  case  in  principle  from  Crowhurst  v.  Amer- 
sham  Burial  Board.  If  trees  although  projecting  over  the  boundary 
are  not  in  fact  doing  any  damage,  it  may  be  that  the  plaintiff's  only 
right  is  to  cut  back  the  overhanging  portions ;  but  where  they  are  ac- 
tually doing  damage,  I  think  there  must  be  a  right  of  action.  In  such 
a  case  I  do  not  think  that  the  owner  of  the  offending  trees  can  compel 
the  plaintiff  to  seek  his  remedy  in  cutting  them.  He  has  no  right  to 
put  the  plaintiff  to  the  trouble  and  expense  which  that  remedy  might 
involve.    The  case  must  go  back  for  a  new  trial. 

Judgment  for  the  appellant.^* 

82  See  infra. 

83  As  to  the  effect  if  it  had  appeared  in  this  case  that  the  trees  were  a 
natural  growth,  see  Giles  v.  Walker  (1890)  24  Q.  B.  D.  656. 


Ch.  2)  ABSOLUTE    TOUTS   OTHER  THAN   TRESPASSES  401 

COULSON  V.  WHITE. 

(High  Court  of  Chancery,  1743,    3  Atk.  21,  26  Eeprint,  816.) 

The  Lord  Chancellor.    Every  common  trespass  is  not  a  founda- 
tion for  an  injunction  in  this  court,  where  it  is  only  contingent  and 
temporary ;  but  if  it  continues  so  long  as  to  become  a  nuisance,  in  such      y^ 
a  case  the  court  will  interfere  and  grant  an  injunction  to  restrain  the 
person  from  committing  it.®* 


CRUMP  V.  LAMBERT. 

(In  Chancery,  1S67.    L.  R.  a  Eq.  409.) 

Lord  Romilly,  M.  R.  The  plaintiff  in  this  cause  is  the  occupier 
and  owner  of  a  house  in  Walsall,  in  Staffordshire,  and  complains  that 
the  defendants  have  recently  erected  an  iron  factory  adjoining  his 
grounds,  the  smoke,  noise,  and  effluvia  proceeding  from  which  occa- 
sion a  nuisance  which  he  applies  to  this  court  to  abate.  The  defence 
is,  in  substance,  twofold ;  first,  one  of  law,  and  secondly,  one  of  fact. 
The  defendants  say  that  smoke  alone  does  not  entitle  a  person  to  come 
here  for  an  injunction;  that  a  disagreeable  smell  alone  does  not  en- 
title a  plaintiff'  to  ask  for  an  injunction ;  that  noise  alone  does  not  en- 
title a  plaintiff  to  ask  for  an  injunction.     *     *     * 

With  respect  to  the  question  of  law,  I  consider  it  to  be  established 
by  numerous  decisions  that  smoke,  unaccompanied  with  noise  or  nox- 
ious vapour,  that  noise  alone,  that  off'ensive  vapours  alone,  although 
not  injurious  to  health,  may  severally  constitute  a  nuisance  to  the  own- 
er of  adjoining  or  neighbouring  property;  that  if  they  do  so,  substan- 
tial damages  may  be  recovered  at  law,  and  that  this  court,  if  applied 
to,  will  restrain  the  continuance  of  the  nuisance  by  injunction  in  all 

84  As  late  as  1S34,  Lord  Chancellor  Brougham  remarked,  in  Earl  of  Ripon 
V.  Hobart,  3  My.  &  K.  1G9,  ISO:  "It  is  always  to  be  borne  in  mind  that 
the  jui-isdiction  of  this  court  over  nuisance  by  injunction  at  all  is  of  recent 
growth,  has  not  till  very  lately  been  much  exercised,  and  has  at  various  times 
found  great  reluctance  on  the  part  of  the  learned  judges  to  use  it,  even  in 
cases  where  the  thing  or  the  act  complained  of  was  admitted  to  be  directly 
and  immediately  hurtful  to  the  complainant.  All  that  has  been  said  in  the 
cases  where  this  unwillingness  has  appeared,  may  be  referred  to  in  support 
of  the  proposition  which  I  have  stated ;  as  in  The  Attorney-General  v. 
Nichol  [3809]  16  Ves.  338,  The  Attorney-General  v.  Cleaver  [1811]  18  Ves. 
211,  an  Anonymous  case  [1790]  1  Ves.  Jun.  140,  before  Lord  Thurlow,  and 
others.  It  is  also  very  material  to  observe,  what  is  indeed  strong  authority 
of  a  negative  kind,  that  no  instance  can  be  produced  of  the  interposition 
by  injunction  in  the  case  of  what  we  have  been  regarding  as  eventual  or 
contingent  nuisance." 

On  the  present  extent  and  variety  of  this  equitable  jurisdiction,  see  29  Cyc. 
1219  et  seq.,  and  21  Halsbury's  Laws  of  Lngland,  560. 

The  principles  followed  in  granting  or  refusing  an  injunction  for  a  nui- 
sance are  in  the  main  those  which  apply  generally  to  this  branch  of  equity. 

Hepb.Toets— 26 


402  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

cases  where  substantial  damages  could  be  recovered  at  law.  Elliot- 
son  V.  Feetham  [1835]  2  Bing.  N.  C.  134,  and  Soltau  v.  De  Held 
[1851]  2  Sim.  N.  S.  133,  are  instances  relating  to  noise  alone.  In  the 
former,  damages  were  recovered  in  an  action  at  law ;  and  in  the  sec- 
ond, an  injunction  was  granted  on  account  of  sound  alone. 

What  constitutes  a  nuisance  is  thus  defined  by  Lord  Justice  Knight 
Bruce,  when  Vice-Chancellor,  in  Walter  v.  Selfe,  4  De  G.  &  Sm.  322 : 
"Both  on  principle  and  authority  the  important  point  next  for  decision 
may  properly,  I  conceive,  be  thus  put :  Ought  this  inconvenience  to  be 
considered  in  fact  as  more  than  fanciful,  more  than  one  of  mere  deli- 
cacy or  fastidiousness,  as  an  inconvenience  materially  interfering  with 
the  ordinary  comfort,  physically,  of  human  existence,  not  merely  ac- 
cording to  elegant  or  dainty  modes  and  habits  of  living,  but  according 
to  plain  and  sober  and  simple  notions  among  the  English  people?" 
This  definition  is  adopted  in  Soltau  v.  De  Held  by  Vice-Chancellor 
Kindersley,  and  is,  I  apprehend,  strictly  correct ;  and  it  agrees  with 
the  principle  of  all  the  cases  referred  to  at  common  law  and  approved 
of  in  the  case  of  St.  Helen's  Smelting  Company  v.  Tipping,  11  H.  L. 
C.  642,  which  settled  the  law  as  regards  another  part  of  this  case,  to 
which  I  shall  presently  have  occasion,  when  citing  Hole  v.  Barlow,  4 
C.  B.  N.  S.  334  (E.  C.  L.  R.  vol.  93),  to  refer.  The  law  on  this  sub- 
ject is,  I  apprehend,  the  same,  whether  it  be  enforced  by  action  at 
law  or  by  bill  in  equity.  In  any  case  where  a  plaintiff  could  obtain 
substantial  damages  at  law,  he  is  entitled  to  an  injunction  to  restrain 
the  nuisance  in  this  court.  ^^ 


RIDER  V.  CLARKSON. 

(Court  of  Chancery  of  New  Jersey,  1910.     77  N.  J.  Eq.  469,  78  Atl.  676, 

140  Am.   St.   Rep.   614.) 

Suit  for  injunction  by  Susie  B.  Rider  and  others  against  Mary  E. 
Clarkson  and  others. 

LUAMiNG,  V.  C.  *  *  *  It  is  lawful  for  a  person  to  keep  a  vi- 
cious dog.  De  Gray  v.  Murray,  69  N.  J.  Law,  458,  55  Atl.  237.  But 
it  is  not  lawful  for  a  person  to  keep  a  vicious  dog  in  such  manner 
that  neighbors  are  unnecessarily  exposed  to  danger.  It  is  no  less  a 
nuisance  for  a  neighbor  to  keep  a  vicious  dog  without  appropriate 
restraint  and  in  such  manner  that  the  dog  can  and  will  escape  and 
inflict  bodily  harm  than  it  is  for  such  neighbor  to  conduct  a  lawful 
business  in  such  negligent  manner  as  to  endanger  the  health  of  resi- 
dents in  the  vicinity.  The  undisputed  facts  are  that  the  dog  in  ques- 
tion is  vicious,  and  is  only  restrained  by  a  fence  over  which  he  can 
jump  at  will;  and  that  the  owner  of  the  dog  refuses  to  adopt  suitable 

85  Only  i5o  much  of  the  case  is  given  as  relates  to  the  one  point. 
On  the  liuntations  attaching  to  equity  jurisdiction  in  such  causes,  see  29 
Cyc.  1:^22  et  seq. 


Ch.  2)  ABSOLUTE    TORTS  OTHER  THAN  TRESPASSES  403 

measures  to  prevent  the  escape  of  the  dog ;  aiid  that  complainants  are 
in  danger  of  being  attacked  by  the  dog  at  such  times  as  they  leave 
their  homes.  The  dog  Eas  been  ordered  by  the  municipality  to  be 
killed,  pursuant  to  the  provisions  of  a  local  ordinance,  but  the  execu- 
tion of  that  order  had  been  prevented  by  a  writ  of  certiorari;  in  the 
meantime  the  unlawful  conduct  of  defendants  renders  it  unsafe  for 
complainants  to  pass  to  and  from  their  homes.  I  think  it  the  un- 
doubted duty  of  a  court  of  equity  to  extend  immediate  relief  against 
the  continuance  of  such  conditions. 

I  see  no  reason  why  complainants  may  not  appropriately  join  in  the 
bill.  They  suffer  special  injury  by  reason  of  the  proximity  of  their 
properties  to  the  property  occupied  by  defendants,  and  the  wrongful 
conduct  of  defendants  affects  them  in  a  similar  way  and  at  the  same 
time.  See  Rowbotham  v.  Jones,  47  N.  J.  Eq.  337,  20  Atl.  731,  19 
L.  R.  A.  663. 

I  will  advise  a  preliminary  injunction  restraining  defendants  from 
longer  keeping  the  dog  on  the  premises  in  question  without  the  adop- 
tion of  suitable  measures  to  prevent  the  escape  of  the  dog  from  the 
premises.®^ 


COOMBS  et  al.  v.  LENOX  REALTY  CO. 

(Supreme  Judicial  Court  of  Maine,  1913.    Ill  Me.  178,  88  Atl.  477, 

47  L.  R.  A.   [X.   S.]  1085.) 

Spear,  J.  This  is  a  bill  in  equity  in  which  the  plaintiffs  allege  that 
the  brick  wall  of  the  defendant's  building,  18  feet  from  the  ground, 
and  between  the  second  and  third  floor  continuing  to  the  roof,  shows 
a  maximum  overhang  upon  the  plaintiff's'  premises  of  about  11/2  inches, 
and  prays  that  the  encroachment  upon  the  plaintiff's  land  occasioned 
thereby  may  be  adjudged  a  nuisance  and  that  the  defendant  may  be 
ordered  and  required  to  remove  it  forthwith. 

The  case  comes  up  on  appeal  from  the  decree  of  the  sitting  justice. 
In  this  decree  the  law  and  the  facts  are  so  fully  stated  that  the  court 
feels  fully  justified  in  adopting  it  as  a  proper  declaration  of  the  law. 
If  we  were  to  write  an  opinion,  it  would  necessarily  be  but  a  restate- 
ment of  the  law  found  in  the  decree,  as  we  fully  indorse  both  the 
reasoning  and  the  result  therein  announced.  The  decree  is  as  fol- 
lows : 

"The  case  came  on  to  be  heard  on  bill,  answer,  and  proof,  and 
was  argued  by  counsel.  And  now,  after  mature  deliberation,  I  make 
the  following  findings  of  fact  and  rulings  in  law : 

"The  defendant  in  the  winter  of  1911-12  erected  a  four-story  brick 
apartment  building  on  Turner  street,  Auburn,  on  land  adjoining  the 
plaintiff's  land.     At  the  bottom,  the  wall  next  to  the  plaintiff's  land 

86  Part  of  the  opinion  is  omitted. 


404  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

was  built  about  one  inch  in  from  the  division  hne,  and  was  so  con- 
tinued up  to  the  second  story.  At  a  point  between  the  second  and 
third  stories,  owing  it  is  said  to  the  freezing  of  the  mortar  nights  in 
extreme  cold  weather,  the  wall  gradually  bulged  out  as  it  was  built 
up,  until  it  was  in  a  place  or  places  two  inches  over  the  line.  The 
trouble  was  then  noticed  by  the  contractor,  and  the  wall  was  grad- 
ually drawn  in  until  at  the  top  it  projected  over  the  line  about  a 
quarter  of  an  inch.  The  result  was  that  when  the  wall  was  completed 
there  was  an  area  on  its  side,  towards  the  easterly  end,  20  to  30  feet 
high  and  30  to  40  feet  long,  which  overhung  the  plaintiff's  land,  and 
the  overhang  was  2  inches  at  the  most,  and  from  that  down  to  a  point 
at  the  bottom,  and  a  quarter  of  an  inch  at  the  top. 

"It  is  not  shown  that  any  of  the  defendant's  ofificers  or  agents  knew 
of  the  bulging  until  after  the  building  was  completed.  The  contractor 
testified,  and  I  find,  that,  although  he  knew  of  the  bulging  before 
the  wall  was  completed,  he  did  not  think  it  was  over  the  line.  The 
plaintiffs  have  not  been  guilty  of  laches,  and  have  in  no  sense  ac- 
quiesced. 

"It  is  not  disputed  that  the  plaintiffs,  owning  the  soil  in  fee,  owned 
also  ad  usque  coelum,  and  the  overhang  of  the  wall  is  an  invasion  of 
their  rights.  They  have  already  brought  two  successive  actions  of 
trespass  quare  clausum  fregit  for  the  trespass,  and  have  recovered 
judgment  in  each.  The  plaintiffs  now  bring  this  bill  for  a  mandatory 
injunction  to  compel  the  defendant  to  remove  the  overhang  of  the  wall 
which  is  over  their  line. 

"The  plaintiffs  have  a  three-story  wooden  tenement  building  on  their 
lot,  standing  so  near  the  offending  brick  wall  of  the  defendant  that 
it  will  be  impossible  to  remedy  a  very  considerable  portion  of  the 
overhang  by  working  on  the  outside.  The  wall  will  have  to  be  torn 
out  from  the  inside  and  rebuilt,  if  abatement  is  ordered.  The  plain- 
tiffs are  sustaining  no  pecuniary  damage  at  the  present  time,  and 
will  not  so  long  as  their  present  use  of  their  property  is  unchanged. 

"It  is  not  disputed  that  equity  has  jurisdiction  to  order  the  invasion 
of  the  plaintift''s  premises  to  be  abated.  The  grounds  of  such  juris- 
diction, as  usually  stated,  are  the  want  of  a  complete  remedy  at  law, 
since  full  compensation  for  the  entire  wrong  cannot  be  obtained  in 
an  action  at  law  for  damages  (see  4  Pomeroy's  Eq.  Juris.  §  1357,  and 
note)  and  to  prevent  a  multiplicity  of  actions,  since  a  plaintiff  might 
be  compelled  to  bring  a  succession  of  actions  in  order  to  obtain  re- 
lief. See  1  Pomeroy's  Eq.  Juris.  §  252,  and  5  Pomeroy's  Eq.  Juris. 
§§  496,  516. 

"But  it  does  not  follow  that  a  writ  of  mandatory  injunction  should 
be  granted  in  all  cases.  It  is  a  discretionary  writ.  The  discretion,  how- 
ever, is  not  an  arbitrary  one,  but  is  to  be  exercised  in  accordance 
with  settled  rules  of  law.  The  rules  by  which  I  think  this  case  must 
be  tested  are  stated  in  Lynch  v.  Union  Institution  for  Savings,  159 
Mass.  at  page  308,  34  N.  E.  at  page  364,  20  L.  R.  A.  842,  in  these 


Ch.  2)  ABSOLUTE    TORTS  OTHER  THAN  TRESPASSES  405 

words :  'In  general,  where  a  defendant  has  gone  on  without  right 
and  without  excuse  in  an  attempt  to  appropriate  the  plaintiff's  prop- 
erty, or  to  interfere  with  his  rights,  and  has  changed  the  condition 
of  his  real  estate,  he  is  compelled  to  undo,  so  far  as  possible,  what 
he  had  wrongfully  done  affecting  the  plaintiff,  and  to  pay  the  dam- 
ages. In  such  a  case  a  plaintiff'  is  not  compelled  to  part  with  his  prop- 
erty at  a  valuation,  even  though  it  would  be  much  cheaper  for  the  de- 
fendant to  pay  the  damages  in  money  than  to  restore  the  property. 
*  *  *  On  the  other  hand,  where,  by  an  innocent  mistake,  erec- 
tions have  been  placed  a  little  upon  the  plaintiff's  land,  and  the  dam- 
ages caused  to  the  defendant  by  removal  of  them  would  be  greatly 
disproportionate  to  the  injury  of  which  the  plaintiff  complains,  the 
court  will  not  order  their  removal,  but  will  leave  the  plaintiff  to  his 
remedy  at  law.  *  *  *  'pj^g  doctrines  applied  by  the  court  of  equi- 
ty in  cases  of  this  kind  call  for  a  consideration  of  all  the  facts  and 
circumstances  which  help  to  show  what  is  just  and  right  between  the 
parties.' 

"I  think  the  case  at  bar  falls  within  the  second  class  of  cases  men- 
tioned in  the  Massachusetts  case.  Here  there  was  no  intention  nor 
attempt  to  appropriate  the  plaintiff's  property.  The  contractor  made 
a  mistake.  The  injury  to  the  plaintiffs  is  now  trivial,  and  at  no  time 
can  it  be  so  great  that  it  would  not  be  many  times  outweighed  by  the 
expense,  damage,  and  loss  which  would  necessarily  be  occasioned  to 
the  defendant  if  it  should  be  compelled  to  remove  the  overhang  of 
its  wall.  I  do  not  think  that  equity  requires  or  permits  the  court  to 
use  its  strongest  arm  to  produce  a  result  so  inequitable.  I  think  the 
bill  should  be  dismissed,  but,  under  the  circumstances,  without  costs. 
For  further  discussion,  see  Methodist  Epis.  Soc.  v.  Akers,  167  Mass. 
560,  46  N.  E.  381 ;  Harrington  v.  McCarthy,  169  Mass.  492,  48  N.  E. 
278,  61  /\m.  St.  Rep.  298;  Levi  v.  Worcester  Consolidated  St.  Ry., 
193  Mass.  116,  78  N.  E.  853;  Kendall  v.  Hardy,  208  Mass.  20,  94 
N.  E.  254;  Kershishian  v.  Johnson,  210  Mass.  135,  96  N.  E.  56,  36 
L.  R.  A.  (N.  S.)  402;   Hunter  v.  Carroll,  64  N.  H.  572,  15  Atl.  17. 

"It  is  therefore  ordered,  adjudged,  and  decreed  that  the  bill  be  dis- 
missed." 

Appeal  denied.®^ 

87  See  Pile  v.  Pedrick  (1895)  167  Pa.  296,  31  Atl.  646,  647,  46  Am.  St.  Rep. 
677;  Huber  v.  Stark  (1905)  124  Wis.  359,  102  N.  W.  12,  109  Am.  St.  Rep. 
937.  4  Ann.  Cas.  340;  Baugh  v.  Bergdoll  (1910)  227  Pa.  420,  76  Atl.  207; 
Kershishian  v.  Johnson  (1911)  210  Mass.  135,  96  N.  E.  56,  36  L.  R.  A.  (X.  S.) 
402. 

And  see  "Adjoining  Landowners,"  1  Cyc.  773,  1  C.  J.  120S;  "Injunction," 
22  Cyc.  834,  note  42. 


y 


406  TORTS  THROUGH  ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 


(D)  Bxciisahle  Nuisances  ^^ 

DELAWARE  &  HUDSON  CANAL  CO.  v.  TORREY. 
(Supreme  Court  of  Pennsylvania,  1S59.     33  Pa.  143.) 

This  was  an  action  on  the  case  by  the  canal  company  for  obstruct- 
ing the  navigation  of  its  canal,  by  the  discharge  of  saw-dust  from 
the  defendant's  mill  into  the  Lackawaxen  river,  a  public  highway,  in 
such  a  manner  as  to  allow  the  saw-dust  to  enter  the  feeder  of  the 
company's  canal  and  basin. 

It  appeared  that  the  defendant  had  built  a  saw-mill  on  the  south 
side  of  the  Lackawaxen,  in  such  a  way  that  the  tail-race  terminated 
at  the  head  of  the  company's  feeder,  and  the  saw-dust  from  the  mill 
entered  the  feeder,  and  passed  down  to  the  basin,  where  it  settled 
and  obstructed  the  navigation.  The  defendant  offered  evidence  to 
prove  that  it  was  impossible  for  him  to  use  and  enjoy  his  saw-mill, 
without  letting  the  saw-dust  fall  into,  and  pass  off  with  the  stream. 
The  court  admitted  this  evidence,  notwithstanding  an  objection  by 
the  plaintiff,  and  sealed  a  bill  of  exceptions.  Verdict  and  judgment 
for  the  defendant.®'' 

Strong,  J.  The  court  was  requested  to  instruct  the  jury,  "that  if 
the  whole  or  any  part  of  the  saw-dust  made  at  the  defendant's  mill, 
came  into  the  company's  basin  and  there  intermingled  with  other 
matter,  obstructing  the  navigation,  and  making  it  necessary  for  the 
company  to  remove  it,  then  the  verdict  should  be  for  the  plaintiffs." 


8  8  "In  an  action  on  tlie  case,  under  the  plea  of  not  guilty,  the  defendant 
may  not  only  put  the  plaintifi:  upon  proof  of  the  whole  charge,  contained 
in  the  declaration,  but  may  give  in  evidence  any  justification  or  excuse  of 
it,  or  shew  a  former  recovery,  release,  or  satisfaction.  *  *  *  So  in  case  for 
obstructing  ancient  lights,  a  custom  of  London  to  build  on  an  ancient  founda- 
tion to  any  height,  may  be  given  in  evidence  by  the  defendant ;  and  though 
a  license  must  be  pleaded  in  trespass,  yet  it  is  the  practice  to  admit  it  in 
evidence  in  an  action  on  the  case."     1  Chitty,  PI.  4S8  (1828). 

Rules  in  Hilary  Term  (1833):  "Pleadings  in  Particular  Actions:  IV.  In 
Case:  1.  In  actions  on  the  case,  the  plea  of  not  giiilty  shall  operate  as  a 
denial  only  of  the  breach  of  duty  or  wrongful  act  alleged  to  have  been 
committed  by  the  defendant,  and  not  of  the  facts  stated  in  the  inducement, 
and  no  other  defence  than  such  denial  shall  be  admissible  under  that  plea: 
all  other  pleas  in  denial  shall  take  issue  on  some  particular  matter  of  fact 
alleged  in  the  declaration.  In  an  action  on  the  case  for  a  nuisance  to  the 
occupation  of  a  house  by  carrying  on  an  offensive  trade,  the  plea  of  not  guilty 
will  operate  as  a  denial  only  that  the  defendant  carried  on  the  alleged  trade 
in  such  a  way  as  to  be  a  nuisance  to  the  occupation  of  the  house,  and  will 
not  operate  as  a  denial  of  the  plaintiff's  occupation  of  the  house. 

In  an  action  on  the  case,  for  obstructing  a  right  of  way,  such  plea  will 
operate  as  a  denial  of  the  obstruction  only,  and  not  of  the  plaintiff's  right 
of  way. 

2.  All  matters  in  confession  and  avoidance  shall  be  pleaded  specially." 

See  Chitty,  Pi.  (10th  Am.  Ed.)  755. 

s»  The  statement  of  the  case  is  abridged  and  part  of  the  opinion  is  omitted. 


Ch.  2)  ABSOLUTE    TORTS  OTHER  THAN  TRESPASSES  407 

This  proposition  the  court  refused  to  affirm,  but  on  the  contrary 
charged  the  jury  that,  if  they  beHeved  the  saw-dust  from  the  defend- 
ant's mill  alone,  unaccompanied  and  unmixed  with  saw-dust  from 
other  mills,  would  not  inconvenience  the  plaintiffs,  they  could  not  re- 
cover. Thus  the  jury  were  led  to  believe  that  the  deposit  of  saw- 
dust by  the  defendant  in  their  basin  was  not  sufficient  to  enable  the 
plaintiffs  to  maintain  an  action,  unless  it  alone  caused  a  practical  in- 
convenience and  obstruction  to  the  navigation.  This  we  hold  to  have 
been  erroneous,  and  the  error  was  a  radical  one  underlying  the  whole 
charge.""  It  was  repeated  in  various  forms,  and  covered  nearly  the- 
whole  ground  of  contest  in  the  case.  The  facts,  as  developed  by  the 
evidence,  seem  to  leave  no  doubt,  that  the  dust  from  the  defendant's 
mill,  falling  into  the  stream,  was  carried  by  the  current  through  the 
feeder  of  the  canal  into  the  basin,  and  there  deposited.  The  defence 
consisted  mainly,  not  in  a  denial  of  this  fact,  but  in  the  assertion, 
that  if  there  had  not  been  intermingled  with  it  saw-dust,  culm,  and 
other  substances  from  other  mills,  no  obstruction  of  the  navigation 
would  have  been  caused.  In  the  way  in  which  the  learned  judge  put 
the  case  to  the  jury,  they  must  have  understood  that,  if  the  facts 
were  as  contended  by  the  defendant,  there  could  be  no  recovery — 
that  the  dust  from  Mr.  Torrey's  mill  alone  must  have  been,  of  itself, 
an  obstruction.  If  this  be  so,  then  the  basin  of  the  plaintiffs  might 
have  been  filled  without  any  legal  injury  to  them,  for  the  contributors 
to  the  deposit  might  have  been  so  numerous  that  the  share  contributed 
by  each  would  be  inappreciable.  Or  suppose  there  had  been  no  other 
saw-mill  on  the  stream  than  that  of  the  defendant.  In  a  course  of 
years  that  might  have  filled  the  basin  with  its  dust,  and  yet  the  quan- 
tity deposited  during  any  period  of  six  years  might  not,  of  itself, 
have  caused  any  obstruction.  If  the  doctrine  avowed  by  the  learned 
judge  be  correct,  the  wrong  would  be  remediless.  The  court  con- 
founded the  degree  with  the  existence  of  the  injury,  or  perhaps  failed 
to  distinquish  between  a  wrong  to  the  present  enjoyment  and  an  in- 
jury to  the  right  of  enjoyment.  The  defendant  cannot  justify  him- 
self by  showing  that  others  were  guilty  of  similar  and  concurrent 
wrongs.  He  had  no  right  to  cause  any  saw-dust  to  be  deposited  in  the 
plaintiff's  basin.  His  first  deposit  therefore  was  an  actionable  injury, 
though  it  caused  no  practical  inconvenience,  because  it  was  a  viola- 
tion of  the  plaintiffs'  right,  and  because  continued  deposition  for 
twenty-one  years  would  have  given  to  him  an  easement,  a  right  to 
continue  it,  as  was  ruled  in  Wright  v.  Williams,  1  M.  &  W.  77 ,  and 
as  we  held  in  Jones  v.  Crow,  32  Pa.  398,  a  case  decided  at  this  term. 
The  commencement  of  the  acquisition  of  such  an  easement  is  with 

9  0  The  charge  on  this  point,  notwithstanding  the  admission  of  this  testi- 
mony, was  as  follows:  "It  is  argued  here,  that  a  water  saw-mill  cannot  be 
so  constructed  as  to  avoid  the  diliiculty  complained  of.  The  only  answer  we 
need  make  to  it  is,  that  it  must  be  so  constructed  as  not  to  create  a  nuisance 
to  the  injury  of  others." 


408  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

the  first  user,  and  of  course  the  first  user  is  an  invasion  of  the  rights 
of  the  owner  of  the  servient  tenement.     *     *     *  oi 

The  evidence,  the  admission  of  which  is  the  subject  of  the  sixth 
assignment  of  error,  was  doubtless  inadvertently  received.  The  court 
subsequently  charged  the  jury,  that  if  the  defendant  could  not  enjoy 
a  water-power  on  his  own  premises  without  depriving  others  above 
or  below  him  of  vested  rights,  he  must  cease  to  enjoy  it,  or  answer  in 
damages  for  injury  done.  This  ruling,  undoubtedly  correct,  if  ap- 
plied to  the  evidence,  would  have  excluded  it. 

The  judgment  is  reversed,  and  a  venire  de  novo  awarded.' 


92 


91  "Then  it  was  said  that  the  plaintiff  alleges  an  obstruction  caused  by 
several  persons  acting  indej^endently  of  each  other,  and  does  not  shew  what 
share  each  had  in  causing  it.  It  is  probably  impossible  for  a  person  in  the 
plaintiff's  position  to  shew  this.  Nor  do  I  think  it  necessary  that  he  should 
shew  it.     The  amount  of  obstruction  caused  by  any  one  of  them  might  not, 

/  if  it  stood  alone,  be  sufficient  to  give  any  ground  of  complaint,  though  the 
»  amount  caused  by  them  all  may  be  a  serious  injury.  Suppose  one  person 
leaves  a  wheelbarrow  standing  on  a  way,  that  may  cause  no  appreciable 
inconvenience,  but  if  a  hundred  do  so,  that  may  cause  a  serious  incon- 
venience, which  a  person  entitled  to  the  use  of  the  way  has  a  right  to  pre- 
vent ;  and  it  is  no  defence  to  any  one  person  among  the  hundred  to  say 
that  what  he  does  causes  of  itself  no  damage  to  the  complainant."  Per 
James,  L.  J.,  in  Thorpe  v.  Brumtitt  (1S73)  L.  R.  S  Ch.  650,  656. 

Compare  the  opinion  of  Chitty,  J.,  in  Lambton  v.  Mellish,  [1894]  3  Ch.  163, 
where  it  was  submitted  by  counsel  that  the  independent  act  of  one  of  the 
defendants,  in  using  a  gentle  hand  organ,  was  a  lawful  act,  and  therefore 
could  not  be  enjoined. 

92  See  also  Richards  v.  Daughertj^  (1902)  133  Ala.  569,  31  South.  934; 
West  Munice  Strawboard  Co.  v.  Slack  (1909)  164  Ind.  21,  27,  72  N.  E.  879; 
United  States  v.  Luce  (1905  C.  C.)  141  Fed.  385,  411:  (The  factory  of  the 
defendants  and  the  factory  of  Brown  &  Co.  "are  so  situated  with  respect  to 
each  other  that  when  the  wind  is  in  such  direction  as  to  carry  the  odors 
from  one  of  them  to  the  quarantine  station  it  will  carry  the  odors  from  the 
other  there,  and  the  odors  from  one  cannot  be  distinguished  from  the  otlors 
from  the  other.  There  is  no  evidence  of  co-operation,  privity  or  business 
relationship  of  any  kind  between  the  defendants  and  Brown  &  Co.  in  the 
erection  and  operation  of  their  respective  factories,  or  between  the  defendants 
and  the  succeeding  owners  or  managers,  if  such  there  be,  of  the  factory 
erected  by  Brown  &  Co. ;  nor  is  there  any  evidence  to  the  point  that  the 
odors  from  either  of  the  factories  alone  would  or  would  not  so  contaminate 
the  air  at  the  quarantine  station  as  to  create  a  nuisance  there  within 
the  definition  of  the  authorities.  But  the  combined  odors  from  both  factories 
unquestionably  have  that  effect,  and  in  producing  it  the  two  establishments 
in  fact  co-operate  in  and  contribute  to  the  creation  of  the  nuisance.  Under 
these  circumstances,  in  the  absence  of  a  plain,  adequate  and  complete  remedy 
at  law,  the  owners  or  managers  of  both  or  either  of  the  factories  can  be 
enjoined  from  maintaining  or  contributing  to  the  maintenance  of  the  nui- 
sance."    Per  Bradford,  D.  J.) 

For  other  cases  in  point  see  "Nuisance,"  37  Cent.  Dig.  §  8 ;   15  Dec.  Dig.  §  8. 

Compare  Chipman  v.  Palmer  (1879)  77  N.  Y.  51,  33  Am.  Rep.  566:  (D. 
and  other  persons  polluted  a  stream  by  the  discharge  of  sewage  therein,  each 
from  his  own  premises,  and  each  acting  separately  and  independently  of  the 
others:  Held,  that  D.  was  not  liable  for  all  the  damage  caused  P.  by  the 
nuisance  thus  created,  but  was  liable  only  to  the  extent  of  the  damage  cre- 
ated by  D.)  Simmons  v.  Everson  (1891)  124  N.  Y.  319,  26  N.  E.  911,  21  Am. 
St.  Rep.  676:  (One  action,  to  recover  damages  for  the  death  of  S.,  was 
brought  against  three  defendants,  B.,  P.,  and  L.  These  three  defendants 
owned  in  severalty  three  adjoining  lots  upon  a  city  street.  Upon  these  lots 
stood  three  brick  stores,  separated  from  each  other  by  brick  partition  walls 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  409 


RAPIER  V.  LONDON  TRAMWAYS  CO. 

(High  Court  of  Justice,  Chancery  Division,  [1893]  2  Ch.  588. 
In  the  Court  of  Appeal,  [1893]  2  Ch.  597.) 

The  defendants,  the  London  Tramways  Company,  were  empow- 
ered by  Act  of  ParHament  to  construct  three  lines  of  tramway  ac- 
cording to  certain  plans,  "with  all  proper  rails,  plates,  works,  and 
conveniences  connected  therewith."  The  act  gave  no  compulsory  pow- 
er for  taking  land  and  made  no  special  mention  of  building  stables. 
The  defendants  constructed  the  lines,  and  built  large  blocks  of  stables 
near  the  plaintiff's  house  for  the  horses  employed  in  drawing  the 
cars.  The  plaintiff  complained  of  the  smell  caused  by  the  stables, 
and  brought  an  action  for  an  injunction  to  restrain  the  defendants 
from  using  the  stables  so  as  to  cause  a  nuisance. 

The  action  came  on  for  hearing  before  Mr.  Justice  Kekewich,  who 
granted  the  injunction  asked  as  regards  the  smell.  The  defendants 
appealed.^^ 

LiNDLE^Y,  L.  J.  I  think  it  is  impossible  to  disturb  the  judgment  or 
order  which  is  appealed  from.  The  case  is  one  of  very  considerable 
importance  both  to  the  plaintiff  and  to  the  defendants,  and  it  is  also 
of  importance  from  a  public  point  of  view. 

The  first  point  which  we  have  to  consider  is  the  Act  of  Parliament 
under  which,  if  at  all,  the  defendants  can  justify  what  they  have 
done.  Now,  what  they  have  done  is  this.  Being  a  company  formed 
for  making  tramways,  they  have  bought  a  piece  of  land  near  the 
plaintiff's  house,  about  five  acres  in  extent.  They  have  erected,  at 
very  considerable  expense,  very  excellent  stables  upon  this  land,  capa- 
ble of  holding  more  than  400  horses,  but  used  apparently  up  to  the 
present  time  for  200,  more  or  less.  All  that  is  perfectly  lawful. 
There  is  no  reason  why  people  should  not  have  stables,  and  large 
stables  too,  provided  only  they  carry  on  their  stable  business  in  such 
a  way  as  not  to  occasion  a  nuisance  to  their  neighbours.  The  x^ct  of 
Parliament  to  which  Mr.  Willis  has  referred  does  not  appear  to  me 

extending  from  the  foundations  to  the  roofs.  The  fronts  of  the  stores  made 
a  continuous  brick  wall  of  uniform  height  and  thickness.  The  partition 
walls  and  the  front  wall  were  interlocked  or  built  together.  On  October 
17,  1887,  the  three  stores  were  destroyed  by  fire.  Nothing  was  left  standing 
except  the  front  wall  and  parts  of  the  partition  walls.  Soon  after  the  fire 
the  front  wall  began  to  incline  towards  the  street,  and  continued  to  incline 
more  and  more  in  that  direction  until  November  17,  1887,  when  it  gave 
way,  near  the  partition  wall  between  the  buildings  of  L.  and  P.,  and  the 
whole  front  fell  into  the  street.  Material  from  a  part  of  the  front  wall 
standing  on  the  lots  of  E.  and  P.,  and  from  their  partition  wall,  fell  upon 
and  killed  S.,  who  was  lawfully  upon  the  sidewalk  near  the  boundary  be- 
tween their  lots.  No  part  of  L.'s  wall  touched  him.  It  was  contended  that, 
if  E.,  P.,  and  L.  were  liable  at  all,  they  were  not  liable  jointly,  within  the 
rule  of  Chipman  v.  Palmer  (1879)  77  N.  Y.  51,  33  Am.  Rep.  56G.  Held,  tliat 
they  were  jointly  liable.) 

93  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point. 


410  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

to  do  more  than  authorize  them  to  create  and  make  a  certain  tram- 
way; it  proceeds  on  the  assumption  that  they  may  use  animal  power; 
I  do  not  think  it  otherwise  authorizes  such  use.  Animal  power  for 
such  a  purpose  in  this  country  means  horse-power,  and  as  a  matter 
of  course  the  defendants  must  have  horses.  That  involves,  as  a 
natural  consequence,  stables  to  put  them  in.  To  that  extent  the  Act 
of  Parliament  authorizes  the  defendants  to  have  stables  and  horses. 

I  agree  with  Mr.  Willis  that  it  is  for  the  directors  to  say,  within  the 
limits  which  I  will  discuss  presently,  where  they  shall  have  stables, 
how  many  horses  they  will  have,  and  where  they  will  locate  them. 
What  are  the  limits  of  that  discretion?  Mr.  Willis  says  this  Act  of 
Parliament,  which  does  not  say  anything  expressly  about  stables  or 
horses,  gives  the  directors  power  to  do  whatever  in  the  exercise  of 
their  discretion  they  may  think  reasonable  and  proper  in  their  own 
interests,  provided  they  take  all  reasonable  care  not  to  commit  a 
nuisance. 

Is  that  the  true  construction  of  the  Act  of  Parliament?  or  is  it 
that  they  may  do  what  they  may  think  right  in  the  exercise  of  their 
own  discretion  provided  they  do  not  commit  a  nuisance?  Which  is 
it?  The  whole  case  up  to  a  certain  point  turns  on  that.  An  Act  of 
Parliament  might  be  so  worded  as  to  cast  upon  them  no  greater  duty 
than  the  duty  to  take  reasonable  care.  Unless  the  Act  of  Parliament 
IS  so  worded  as  to  limit  their  duty  to  that  extent,  I  think  the  common 
law  must  prevail,  that  they  must  exercise  their  power  so  as  not  to 
commit  a  nuisance.  At  common  law,  if  I  am  sued  for  a  nuisance, 
and  the  nuisance  is  proved,  it  is  no  defence  on  my  part  to  say,  and 
to  prove,  that  I  have  taken  all  reasonable  care  to  prevent  it.^*     The 

84  Compare  Bohan  v.  Port  Jervis  Gas  Light  Co.  (1890)  122  N.  Y.  18,  25  N. 
E.  246,  9  L.  R.  A.  711:  (P.  sued  to  recover  damages  for  an  alleged  miisauce 
caused  by  D.  in  making  gas  from  naphtha.  There  was  no  evidence  of  neg- 
ligence on  the  part  of  D.  The  trial  court  was  asked  to  charge:  "That  unless 
the  jury  should  find  that  the  works  of  the  defendant  were  defective,  or  that 
they  were  out  of  repair,  or  that  the  persons  in  charge  of  manufacturing  gas 
at  these  works  were  unskillful  and  incapable,  their  verdict  should  be  for  the 
defendant;"  and  "that  if  the  odors  which  affect  the  plaintiff  are  those  that 
are  inseparable  from  the  manufacture  of  gas  with  the  most  approved  ap- 
paratus and  with  the  utmost  skill  and  care,  and  do  not  result  from  any  defects 
in  the  works,  or  from  want  of  care  in  their  management,  the  defendant  is 
not  liable."     This  charge  the  court  refused  to  give.) 

Whittemore  v.  Baxter  Laundry  Co.  (1914  Mich.)  148  N.  W.  437,  52  L.  R. 
A.  (N.  S.)  930,  and  note:  (In  his  business  of  dry  cleaning  D.  uses  15.000  gal- 
lons of  gasoline  annually.     He  is  about  to  place  on  his  propei'ty,  and  within 

II  feet  of  P.'s  dwelling,  two  steel  tanks  for  the  storage  of  gasoline.  The  tanks 
have  a  capacity  of  10,000  gallons  each.  P.  seeks  to  enjoin  D.  from  storing 
gasoline  in  the  tanks.  Said  Kuhn,  J.,  delivering  the  opinion:  "We  may 
grant  that  the  storage  of  gasoline  on  the  premises  adjacent  to  or  adjoining 
the  premises  of  another  is  not  a  private  nuisance  per  se.  It  might,  however, 
become  such  considering  the  locality,  the  quantity,  and  the  surrounding  cir- 
cumstances, and  would  not  necessarily  depend  upon  tlie  degree  of  care  used 
in  its  storage.  Heeg  v.  Licht,  80  N.  Y.  579,  36  Am.  Rep.  654,  29  Cyc.  1177. 
We  may  also  concede  that  in  the  instant  case  every  precaution  that  human 
ingenuity  has  conceived  has  been  made  use  of  in  the  construction  of  the 
tanks  as  testified  to  by  the  defendant's  experts.     Considering,  however,  the 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  411 

Act  of  Parliament  may  be  an  answer.  It  was  an  answer  in  the  case 
of  London,  Brighton  and  South  Coast  Railway  Company  v.  Truman, 
29  Ch.  D.  89,  11  App.  Cas.  45,  and  it  might  be  an  answer  here  if  the 
Act  of  Parliament  went  further  than  it  did.  I  cannot  find  that  the 
Act  of  Parliament  contains  any  clause  which  warrants  us  in  saying 
that  no  limit  is  set  to  the  exercise  of  the  discretion  of  the  directors 
except  the  duty  to  take  reasonable  care  not  to  create  a  nuisance.  The 
only  limit  I  can  find  is  the  limit  which  is  set  by  the  general  law  of  the 
country  that  they  do  not  commit  a  nuisance.  Within  that  limit  they 
may  have  what  stables  they  like,  they  may  have  what  number  of 
horses  they  like,  and  they  may  conduct  them  how  they  like.     *     *     * 

dangerous  character  of  the  substance  and  its  power  as  an  explosive,  of  which 
in  this  age  of  its  wonderful  development  as  a  power  to  propel  automobiles, 
traction  engines,  and  airships,  we  can  well  take  judicial  notice,  and  also 
considering  human  fallibility,  that  accidents  in  the  operation  of  the  most  per- 
fect mechanism  will  occur,  and  all  that  it  needs  to  change  what  is,  when 
properly  protected,  a  harmless  agency  to  a  most  dangerous  explosive  is  a 
careless  person,  can  it  be  said  that  to  have  20,000  gallons  of  such  an  agency 
stored  within  but  a  few  feet  of  one's  dwelling  house  is  not  sufficient  to  be 
an  unreasonable  interference  with  the  comfortable  enjoyment  of  that  home?" 

West  V.  Bristol  Tramways  Co.,  [190S]  2  K.  B.  14:  (D.,  a  tramway  company 
which  was  required,  by  a  special  Act  of  Parliament,  to  pave  between  and 
on  either  side  of  its  rails  with  wood,  used  for  that  purpose  wood  blocks 
coated  with  creosote.  The  fumes  given  off  by  this  creosoted  wood  pavement 
caused  damage  to  plants  and  shrubs  belonging  to  P.,  a  market  gardener  whose 
premises  abutted  on  a  road  thus  paved  by  D.  There  was  another  kind  of 
wood  paving,  in  use  for  several  years,  which  D.  might  have  used,  and  which, 
if  used,  would  have  caused  no  damage  to  P.'s  plants  and  shrubs.  The  jury 
found  "that  it  was  not  absolutely  necessary  for  the  defendants  to  pave  the 
road  as  they  did,  and  at  the  time  they  did ;  and  that  it  was  reasonably  neces- 
sary for  them  to  pave  the  road  as  they  did,  and  at  the  time  they  did,  ac- 
cording to  the  knowledge  of  the  defendants  at  the  time,  but  that  in  the  light 
of  the  evidence  given  at  the  hearing  it  was  not  reasonably  necessary."  Said 
Lord  Alverstone,  C.  .!.:  "In  my  opinion  the  proposition  of  law  applicable 
to  this  case  is  correctly  stated  in  Garrett  on  Nuisances  (2d  Ed.)  p.  129 ;  and 
I  will  read  that  statement  as  part  of  my  judgment,  as,  in  my  opinion,  the 
law  on  the  subject  could  not  be  more  clearly  expressed.  It  is  as  follows: 
'Where  the  owner  of  land  uses  his  land  for  any  purpose  for  which  it  may 
in  the  ordinary  course  of  enjoyment  of  land  be  used,  he  will  not,  in  the  ab- 
sence of  negligence  on  his  part,  be  liable,  though  damage  result  to  his  neigh- 
bour in  the  ordinary  enjoyment  by  the  latter  of  his  property ;  for  it  lies 
with  the  latter  to  protect  himself  from  the  operation  of  natural  laws.  But,  if 
the  owner  of  land  uses  it  for  any  purpose  which  from  its  character  may 
be  called  non-natural  or  extraordinary  user,  such  as,  for  example,  the  intro- 
duction on  to  the  land  of  something  which  in  the  natural  condition  of  the 
land  is  not  upon  it,  he  does  so  at  his  peril,  and  is  liable  if  sensible  damage  re- 
sults to  his  neighbour's  land  from  its  escape,  or  if  the  latter's  legitimate  en- 
joyment of  his  land  is  thereby  materially  curtailed.'  If  the  contention  of 
the  defendant's  counsel  in  this  case  is  correct,  this  last  proposition  is  stated 
much  too  widely ;  for  they  contend  that  the  owner  of  hind  who  has  so  acted 
has  not  done  so  at  his  peril,  and  is  not  liable,  unless  the  plaintiff  shews  that 
the  thing  introduced  on  the  land  was,  to  the  knowledge  of  the  defendant, 
likely  to  escape  and  cause  damage.  The  authorities  do  not,  in  my  opinion, 
support  the  suggestion  that  this  onus  is  cast  on  the  party  injured." 

And  see  the  principle  of  Fletcher  v.  Rylands  (1866)  L.  It.  1  Kx.  265;  (186S) 
L.  R.  3  H.  L.  330,  infra. 


412  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

VILE  V.  PENNSYLVANIA  R.  CO. 

(Supreme  Court  of  Pennsylvania,  1914.    246  Pa.  35,  91  Atl.  1049.) 

The  action  was  against  the  raih-oad  company  for  damages  to  the 
plaintiff's  land  from  the  discharge  of  cinders,  smoke,  etc.,  from  the 
defendant's  locomotives.  Verdict  for  the  plaintiff  with  judgment  for 
the  defendant  non  obstante  veredicto.    The  plaintiff  appeals. 

Brown,  J.  In  1889  the  plaintiff  below  leased  several  acres  of 
land,  in  the  city  of  Philadelphia,  for  the  purpose  of  carrying  on  his 
business  as  a  truck  gardener.  He  raised  all  kinds  of  vegetables,  some 
under  sash  for  the  early  market.  In  1904  the  Pennsylvania  Railroad 
Company  established  a  place  about  400  yards  from  his  truck  garden, 
for  the  purpose  of  cleaning  its  locomotives.  These  were  cleaned  by 
the  use  of  compressed  air  driven  through  the  boiler  tubes.  As  a  con- 
sequence of  this  process  of  cleaning,  smoke,  soot,  ashes,  cinders  and 
^  greasy  substances  were  blown  out  of  the  stacks  of  the  locomotives  and 
settled  on  appellant's  premises,  ruining  his  plants  and  vegetables  and 
destroying  his  business.  In  this  action  he  recovered  a  verdict  of  $5,500 
for  the  injuries  which  he  sustained,  but  defendant's  motion  for  judg- 
ment non  obstante  veredicto  was  allowed  on  the  ground  that  the 
testimony  of  the  witness  called  by  the  plaintiff  as  an  expert  to  show 
that  the  locomotives  of  the  defendant  could  have  been  cleaned  without 
any  resultant  injury  to  the  plaintiff  was  insufficient  to  sustain  his 
charge  of  negligence.  On  this  appeal  the  narrow  question  is  whether 
the  court  below  correctly  so  held  in  denying  plaintiff  judgment  on  the 
verdict.     *     *     * 

In  support  of  the  judgment  of  the  court  below  it  is  argued  that  the 
defendant  cannot  be  held  liable  to  the  plaintiff,  because  it  appeared  that 
the  means  which  it  had  adopted  to  clean  the  boiler  tubes  were  those 
in  general  use  by  other  railroad  companies.  In  view  of  the  testimony 
as  to  the  practicability  of  adopting  other  means  for  cleaning  the  boilers 
by  which  such  injuries  as  were  sustained  by  the  appellant  may  be  avoid- 
ed, the  doctrine  of  general  usage,  contended  for  by  counsel  for  ap- 
pellee, is  not  to  be  applied.  To  apply  it  in  the  present  case  would  mean 
that  though  the  defendant  could  have  adopted  means  for  the  prevention 
of  injuries  to  others  in  cleaning  its  locomotives  in  its  yard,  it  was  not 
bound  to  adopt  them  until  they  had  been  adopted  by  other  railroad 
companies.  It  is  to  be  remembered  that  the  complaint  of  the  appel- 
lant does  not  grow  out  of  the  actual  operation  of  the  locomotives,  but 
out  of  what  resulted  from  preparing  them  for  operation — on  property 
owned  by  the  defendant  company.  It  had  a  right  to  use  the  property 
for  that  purpose,  but,  under  the  competent  testimony  in  the  case,  be- 
lieved by  the  jury,  only  in  obedience  to  the  rule,  "Sic  utere  tuo  ut 
alienum  non  laedas;"    and  not  to  have  so  used  it  was  found  by  the 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  413 

jury  to  have  been  negligence,  for  the  consequences  of  which  the  de- 
fendant must  answer  to  the  plaintiff.     *     *     * 

The  judgment  entered  for  the  defendant  is  therefore  reversed,  and 
the  record  remitted,  that  plaintiff  may  have  judgment.* 


PILE  et  al.  v.  PEDRICK  et  al. 

(Supreme  Court  of  Pennsylvania,  1S95.     167  Pa.  296,  31  Atl.  646,  647, 

46  Am.   St.  Rep.  677.) 

Bill  in  equity  against  Pedrick  and  another  to  compel  the  removal 
of  a  wall.  From  this  decree  below  both  the  plaintiff's  and  the  de- 
fendants appeal. 

Williams,  J.  The  learned  judge  of  the  court  below  was  right  in 
holding  that  the  wall  in  controversy  was  not  a  party  wall.  It  w^as  not 
intended  to  be.  The  defendants  were  building  a  factory  and  under 
the  advice  of  their  architect  decided  to  build  w-ithin  their  own  lines 
in  order  to  avoid  the  danger  of  injury  to  others  from  vibration  w^hich 
might  result  from  the  use  of  their  machinery.  They  called  upon  the 
district  surveyor  to  locate  their  line  and  built  within  it  as  so  ascer- 
tained. Subsequent  surveys  by  city  surveyors  have  determined  that 
the  line  w^as  not  accurately  located  at  first  but  w^as  about  one  and  a 
half  inches  over  on  the  plaintiffs.  This  leaves  the  ends  of  the  stones 
used  in  the  foundation  wall  projecting  into  the  plaintiffs'  land  below 
the  surface  one  and  three-eighths  inches.  This  unintentional  intru- 
sion into  the  plaintiffs'  close  is  the  narrow  foundation  on  which  this 
bill  in  equity  rests. 

The  wall  resting  on  the  stone  foundation  is  conceded  to  be  wnthin 
the  defendants'  line.  The  defendants  offered  nevertheless  to  make 
it  a  party  wall  by  agreement  and  to  give  to  plaintiff's  free  use  of  it, 
as  such,  on  condition  that  the  windows  on  the  third  and  fourth  floors 
should  remain  open  until  the  plaintiff  should  desire  to  use  the  wall. 
This  off'er  was  declined.  The  trespass  was  then  to  be  remedied  in 
one  of  two  ways.  It  could  be  treated  with  the  plaintiff's'  consent  as 
a  permanent  trespass  and  compensated  for  in  damages,  or  the  defend- 
ants could  be  compelled  to  remove  the  offending  ends  of  the  stones 
to  the  other  side  of  the  line.  The  plaintiffs  insisted  upon  the  latter 
course,  and  the  court  below  has  by  its  decree  ordered  that  this  should 
be  done.  The  defendants  then  sought  permission  to  go  on  the  plain- 
tiffs' side  of  the  line  and  chip  off  the  projecting  ends,  oft'ering  to  pay 
for  all  inconvenience  or  injury  the  plaintiffs  or  their  tenants  might 
suft'er  by  their  so  doing.     This  they  refused.^''     Nothing  remained 

♦Only  so  much  of  the  case  is  given  as  relates  to  the  one  point. 

9  5  Compare  Thompson  v.  Gibson  (1S41)  7  M.  &  W.  456,  56  R.  R.  762:  (The 
defendants  had  erected  a  building,  on  the  land  of  S.,  which  excluded  the 
public  from  a  part  of  the  space  on  which  a  market  was  lawfully  held.  They 
cannot  now  remove  the  nuisance  without  committing  a  trespass  ou  S.'s  laud. 


414  TORTS  THROUGH   ACTS   OP  ABSOLUTE  LIABILITY  (Part  1 

but  to  take  down  and  rebuild  the  entire  wall  from  the  defendants' 
side  and  with  their  building  resting  on  it.  This  the  decree  requires, 
but  in  view  of  the  course  of  the  litigation  the  learned  judge  divided 
the  costs.     *     *     * 

It  is  not  denied  that  the  foundation  wall  on  which  the  appellant 
(Pedrick)  has  built  was  located  under  a  mistake  made  by  the  district 
surveyor,  and  does  in  fact  project  slightly  into  the  plaintiffs'  land. 
For  one  inch  and  three-eighths  the  ends  of  the  stones  in  the  wall  are 
said  to  project  beyond  the  division  line.  The  defendants  have  no 
right  at  law  or  in  equity  to  occupy  land  that  does  not  belong  to  them 
and  we  do  not  see  how  the  court  below  could  have  done  otherwise 
than  recognize  and  act  upon  this  principle.  They  must  remove  their 
wall  so  that  it  shall  be  upon  their  land.  This  the  court  directed  should 
be  done  within  a  reasonable  time.  To  avoid  further  controversy  over 
this  subject  we  will  so  far  modify  the  decree  as  to  permit  such  re- 
moval to  be  made  within  one  year  from  the  date  of  filing  hereof. 
In  all  other  respects  the  decree  is  affirmed.®' 


BLISS  V.  HALL. 

(Court  of  Common  Pleas,  1S38.    4  Bing.  N.  C.  183,  132  Reprint,  758, 

44   R.   R.   697.) 

In  an  action  of  nuisance  for  carrying  on  the  business  of  a  tallow 

chandler  in  a  messuage  adjoining  the  messuage  of  the  plaintiff,  the 

defendant  pleaded  as  follows : 

That  the  defendant  was  possessed  of  his  said  messuages  for  a  long  space 
of  time,  to  wit,  for  the  space  of  three  years  next  before  the  plaintiff  became 
possessed  of  his  said  messuage  in  the  declaration  mentioned,  and  before  the 
plaintiff  occupied,  inhabited,  and  dwelt  in  the  same ;  and  that  before  and 
at  the  time  when  the  defendant  first  became  and  was  possessed  of  his  said 
messuages,  the  said  furnaces  and  stoves  in  the  introductory  part  of  this  plea 
mentioned  had  been  and  then  were  erected,  set  up,  and  placed  in  and 
upon  the  same:  that  the  defendant  always,  to  wit,  from  the  time  at  which 
he  became  so  possessed  of  his  said  messuages,  until  and  at  and  after  the 
plaintiff  so  became  possessed  of  his  said  messuage  as  in  the  declaration 
mentioned,  and  thence  hitherto,  had  used,  exercised,  and  carried  on  the  said 
trade  and  business  of  a  candlemaker,  and  had  occasioned — the  phenomena 
described  in  the  declaration  (enumerating  them  as  above) — in  the  same  man- 
ner and  form,  and  degree,  and  to  the  same  extent,  and  at  the  same  hours, 
and  times,  and  seasons,  as  at  the  said  time  when,  etc.,  in  the  declaration 
and  in  the  introductory  part  of  this  plea  mentioned ;    and  the  same  during 

"But,"  said  Baron  Parke,  "that  Is  a  consequence  of  their  own  original  wrong, 
and  they  cannot  be  permitted  to  excuse  themselves  from  paying  damages  for 
the  injury  it  causes,  by  showing  their  Inability  to  remove  it,  without  expos- 
ing themselves  to  another  action.")  Smith  v.  Elliot  (1848)  9  Pa.  315:  (D. 
cut  llio  bank  of  a  stream  and  thus  diverted  water  from  P.'s  mill.  The 
break  in  the  bank  was  on  the  land  of  a  stranger,  and  D.  cannot  abate  the 
nuisance  without  committing  a  trespass.) 

"«  Part  of  the  opinion  of  Pile's  Appeal,  as  to  dividing  the  costs,  is  omitted. 

Compare  Coombs  v.  Jjenox  Realty  Co.  (1913)  111  Me.  178,  SS  Atl.  477, 
47  L.   R.  A.  (N.   S.)   1085. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  415 

all  that  time,  and  at  the  said  time  when,  etc.,  were  and  still  are  requisite 
and  necessarj-  to  enable  the  defendant  to  carry  on  his  said  trade  and  business, 
in.  and  upon  his  said  premises,  in  the  same  manner  and  form,  and  to  the 
same  extent,  as  the  defendant  carried  ou  the  same  at  tlie  time  when  the 
plaintiff  came  to  his  said  premises  in  the  declaration  mentioned,  near  and 
adjoining  to  the  premises  and  business  of  the  defendant,  so  carried  on  as 
aforesaid :  that  the  defendant  lawfully  enjoyed  his  said  premises,  manu- 
factory, and  business,  before  the  plaintiff  came  to,  occupied,  or  was  pos- 
sessed of  his  said  premises  in  the  declaration  mentioned,  in  the  same,  condi- 
tion, extent,  manner,  and  form,  as  he  enjoyed  and  possessed  tlie  same  at  the 
said  time  when,  etc.,  in  the  declaration  mentioned,  and  of  right  ought 
still  lawfully  to  enjoy  the  same  without  interruption  or  suit  of  the  plaintiff; 
and  that,  the  defendant  was  ready  to  verify. 

Demurrer  and  joinder. 

Hoggins,  against  the  demurrer.  Even  if  it  be  a  nuisance,  a  party 
who  comes  to  it  is  not  entitled  to  complain.  It  was  his  own  election 
to  approach  so  near.^^ 

TiNDAL,  C.  J,  In  this  case  the  declaration  alleges  that  the  defend- 
ant injuriously  carried  on,  in  messuages  contiguous  to  the  messuage 
of  the  plaintiff,  the  trade  and  business  of  a  candlemaker,  by  which 
noxious  vapours  and  smells  proceeded  from  the  messuage  of  the  de- 
fendant and  dift'used  themselves  over  the  messuage  of  the  plaintiff; 
and  all  that  the  defendant  says  in  answer,  is,  that  he  carried  on  the 
business  for  three  years  before  the  plaintiff  became  possessed  of  the 
messuage  he  inhabits.  That  is  no  answer  to  the  complaint  in  the 
declaration ;  for  the  plaintiff"  came  to  the  house  he  occupies  with  all 
the  rights  which  the  common  law  aff'ords,  and  one  of  them  is,  a  right 
to  wholesome  air.  Unless  the  defendant  shows  a  prescriptive  right 
to  carry  on  his  business  in  the  particular  place,  the  plaintiff'  is  entitled 
to  judgment. 

Vaughan,  J.  The  smells  and  noises  of  which  the  plaintiff"  com- 
plains are  not  hallowed  by  prescription,  and  under  this  plea  the  de- 
fendant cannot  justify  their  continuance. 

BosAXOuET,  J.  I  am  of  the  same  opinion.  The  defendant  has, 
prima  facie,  a  right  to  enjoy  his  property  in  a  way  not  injurious  to 
his  neighbour;  but  here  on  his  own  showing  the  business  he  carries 
on  is  offensive,  and  he  makes  out  no  title  to  persist  in  the  annoyance. 

Judgment  for  the  plaintiff'.^ 


98 


8  7  Compare  Blackstone's  remark:  "If  my  neighbor  makes  a  tan-yard,  so  as 
to  annoy  and  render  less  salubrius  the  air  of  my  house  or  garden,  the  law 
will  furnish  me  with  a  remedy;  but  if  he  is  first  in  possession  of  the  air, 
and  I  fix  my  habitation  near  him,  the  nuisance  is  of  my  own  seeking,  and 
may  continue."     2   Bl.  Com.  403   (1765). 

8  8  The  concurring  opinion  of  Park,  J.,  is  omitted. 


416  TORTS  THROUGH  ACTS  OP  ABSOLUTE  LIABILITY  (Part  1 


BAMFORD  V.  TURNLEY. 

(Court  of  Queen's  Bench,  1S60.     In  the  Exchequer  Chamber,  1SC2.     3  Best 
&  S.  62,  66,  129  R.  R.  235,  238,  122  Reprint,  25,  27.) 

Action  for  a  nuisance  arising  from  the  burning  of  bricks  on  the 
defendant's  land  near  to  the  plaintiff's  house.  The  declaration  was  in 
two  counts;  the  only  material  plea  to  both  counts  was  "Not  Guilty." 
On  the  trial  it  appeared: 

That  some  land,  part  of  the  Beulah  Spa  Estate,  was  offered  for  sale  in  lots 
by  public  auction,  in  accordance  with  certain  printed  particulars  of  sale. 
These  were  headed  "Particulars  of  the  first  section  of  the  Beulah  Spa  Es- 
tate, consisting  of  about  fifty  acres  of  Freehold  Building  Land,  etc.,  in  nine- 
teen lots,"  and  stated,  among  other  things,  that  the  property  presented 
"splendid  sites  for  the  erection  of  first  class  villas;"  and  that  "there  is 
abundance  of  brick  earth  and  gravel,  which,  combined  with  all  tlie  other 
advantages  appertaining  to  this  exceedingly  beautiful  property,  present  an 
unusually  advantageous  opportunity  of  carrying  out  safe  and  profitable 
building  operations."  The  brother-in-law  of  the  plaintiff,  in  the  year  1S57, 
purchased  lot  11  of  this  property,  containing  about  two  acres,  and  built 
a  residence  on  it.  The  house  was  finished  in  the  year  1858,  and  shortly 
afterwards  the  plaintiff  became  the  tenant  of  the  house  and  property.  The 
defendant  was  a  solicitor  in  London,  and  in  the  year  1858,  he  bought  some 
other  lots  of  the  same  property  under  the  same  particulars  and  conditions, 
being  respectively  lots  1,  10,  14,  and  16.  It  was  proved  that  building  was 
going  on  in  the  neighbourhood,  the  plaintiff's  house  being  within  ten  minutes' 
walk  of  the  new  railway  station;  that,  during  the  preceding  year,  bricks 
had  been  burnt  at  certain  spots  in  lots  13  and  15,  and  at  a  spot  adjoining  to 
lot  15 ;  that  during  the  last  seventeen  years,  bricks  had  from  time  to  time 
been  burnt  at  various  parts  of  the  field,  of  which  the  site  of  the  clamp  in 
question  then  formed  part,  such  field  having  been  divided  at  the  time  of 
the  sale  into  various  lots;  and  that  bricks  had  previously  been  made  on 
the  spot  where  the  plaintiff's  house  stood. 

In  June,  1860,  the  defendant,  with  the  view  of  burning  bricks  made  out 
of  the  brick  earth  found  upon  his  land  and  thereby  obtaining  bricks  to 
build  upon  it,  erected  a  clamp  of  bricks  on  lot  16,  at  a  distance  of  180  yards 
from  the  plaintiff's  house.  It  was  proved  that  there  was  an  annoyance  to 
the  plaintiff  arising  from  the  erection  and  use  of  the  clamp  as  complained  ol 
in  the  first  count  suHicient  prima  facie  to  constitute  a  cause  of  action;  but 
it  was  also  proved  that  the  erection  and  use  of  the  clamp  by  the  defendant 
as  complained  of  was  temporary  only,  and  for  the  sole  purpose  of  making 
bricks  on  his  own  land  and  from  the  clay  found  there,  with  a  view  to  the 
erection  of  dwelling-houses  on  his  own  land;  and  that  the  clamp  for  burning 
the  bricks  was  placed  on  that  part  of  the  defendant's  land  most  distant 
from  the  plaintiff's  house,  and  so  as  to  create  no  further  annoyance  than 
necessarily  resulted  from  the  burning  of  bricks. 

The  question  was  whether,  under  the  circumstances  so  proved,  an 
action  could  be  maintained  in  respect  of  such  annoyance. 

Lord  Chief  Justice  Cockburn,  before  whom  the  case  was  tried,  in- 
timated that  the  case  came  within  the  principle  laid  down  in  Hole  v. 
Barlow  [1858]  4  C.  B.  N.  S.  334,  and  directed  the  jury,  upon  the  au- 
thority of  that  case,  that  if  they  thought  that  the  spot  was  convenient 
and  proper,  and  the  burning  of  the  bricks  was,  under  the  circ.nn- 
.«;tances,  a  reasonable  use  by  the  defendant  of  his  own  land,  the  de- 
fendant would  be  entitled  to  a  verdict  upon  the  first  count,  independ- 
ent of  the  small  matter  of  whether  there  was  an  interference  with  the 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  417 

plaintiff's  comfort  thereby.  Upon  this  ruling  a  verdict  was  by  ar- 
rangement entered  for  the  defendant  on  the  first  count,  leave  being 
reserved  to  the  plaintiff  to  move  to  set  it  aside,  if  the  Court  should  be 
of  opinion  that  the  above  ruling  of  the  Lord  Chief  Justice  was  erro- 
neous.^ 

In  the  following  Alichaelmas  Term,  Petersdorff,  Sergt.,  moved  for 
a  rule  calling  upon  the  defendant  to  show  cause  why  a  verdict  should 
not  be  entered  for  the  plaintiff  on  the  first  count  for  40s.  damages. 

Pe;r  Curiam  (Cockburn,  C.  J.,  and  Wightman,  Hill,  and  Black- 
burn, JJ.).     Rule  refused  with  leave  to  appeal. 

In  the  Exchequer  Chamber. 

The  plaintiff  having  appealed  against  the  above  decision,  a  case  set- 
ting forth  the  facts  was  stated,  and  concluded  as  follows: 

"If  the  court  should  be  of  opinion  that,  upon  the  facts  as  stated,  the  ruling 
of  the  Lord  Chief  Justice,  founded  upon  the  decision  of  Hole  v.  Barlow,  was 
erroneous,  the  verdict  found  for  the  defendant  on  the  fii'st  count  is  to  be  set 
aside,  and  a  iverdict  entered  for  the  plaintiff  instead  thereof  with  40s. 
damages. 

"If  the  court  should  be  of  a  contrary  opinion,  the  verdict  entered  for  the 
defendant  upon  the  first  count  is  to  stand." 

The  case  was  argued,  in  Easter  V'acation,  before  Erie,  C.  J.,  Pol- 
lock, C.  B.,  Williams  and  Keating,  ]].,  and  Bramwell  and  Wilde,  BB. 

Williams,  J.,  delivered  the  judgment  of  Erle,  C.  J.,  Ke:ating,  J., 
WiLDB,  B.,  and  himself : 

On  the  argument  of  this  case,  there  was  some  contest  as  to  what  the 
true  question  was  which  the  court  had  to  consider.  On  the  part  of 
the  plaintiff'  it  was  said  to  have  been  proved  at  the  trial,  beyond  dis- 
pute, that  the  burning  of  the  bricks  in  the  kilns  of  the  defendant  was 
a  nuisance,  and  that  the  point  reserved  was,  whether  it  was  legalized 
by  the  other  facts  which  the  jury  must  be  taken  to  have  found  to  exist. 
On  the  part  of  the  defendant  it  was  said  that  the  true  point  was, 
whether,  under  all  the  circmnstances  of  the  case,  the  burning  of  the 
bricks  amounted  to  an  actionable  nuisance. 

It  is  not,  perhaps,  material  which  of  these  contentions  is  correct. 
For  the  Lord  Chief  Justice,  at  the  trial,  directed  the  jury,  on  the  au- 
thority of  Hole  V.  Barlow,  4  C.  B.  N.  S.  334,  to  find  for  the  defendant, 
notwithstanding  his  burning  the  bricks  had  interfered  with  the  plain- 
tiff's comfort,  if  they  were  of  opinion  that  the  spot  where  the  bricks 
were  burnt  was  a  proper  and  convenient  spot,  and  the  burning  of  them 
was,  under  the  circumstances,  a  reasonable  use  by  the  defendant  of 
his  own  land.  The  jury,  consequently,  if  they  were  of  that  opinion, 
would  have  been  bound  to  find  their  verdict  for  the  defendant,  not- 

1  The  statement  of  the  case  is  abridged.  Upon  the  second  count,  a  verdict 
was  by  arrangement  entered  for  the  plaintiff,  with  Is.  damages,  but  no  ques- 
tion arose  on  that  count.  Part  of  the  opinion  of  Bramwell,  B,,  and  the  dis- 
senting opinion  of  Pollock,  C.  B.,  are  omitted. 

Hepb.Tokts — 27 


418  TORTS  THROUGH   ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

withstanding  they  were  also  of  opinion  that  the  brick-kilns  of  the  de- 
fendant, by  immitting  corrupted  air  upon  the  plaintiff's  house,  had 
rendered  it  unfit  for  healthy  or  comfortable  occupation. 

It  was  therefore  treated  as  a  doctrine  of  law  that,  if  the  spot  should 
be  found  by  the  jury  to  be  proper  or  convenient,  and  the  burning  of 
the  bricks  a  reasonable  use  of  the  land,  these  circumstances  would  con- 
stitute a  bar  to  the  action ;  and  if  there  is,  in  truth,  no  such  doctrine, 
there  was  a  misdirection :  it  is  the  same  thing  as  if  there  had  been  a 
plea  averring  the  existence  of  these  circumstances,  and  a  demurrer 
to  the  plea.  Such  a  plea,  though  it  would  admit  all  the  allegations  of 
the  declaration,  would  be  a  good  plea  by  way  of  avoidance,  if  the  di- 
rection of  the  Chief  Justice  was  right.  And  it  is  not  material  to  in- 
quire whether  it  would  be  good  as  averring  facts  which  amount  to  a 
legalization  of  the  nuisance  stated  in  the  declaration,  or  as  superad- 
ding facts  which,  taken  together  with  those  stated  in  the  declaration, 
show  that  the  alleged  annoyance  was  not  an  actionable  nuisance.  In 
either  point  of  view  the  question  for  our  consideration  appears  to  be, 
whether  the  case  of  Hole  v.  Barlow,  4  C.  B.  N.  S.  334,  was  well  de- 
cided.     And  we  are  of  opinion  that  it  was  not. 

That  decision  was  plainly  founded  on  a  passage  in  Comyns'  Digest, 
Action  upon  the  Case  for  a  Nuisance  (C),  which  is  in  the  following 
words :  "So  an  action  does  not  lie  for  a  reasonable  use  of  my  right, 
though  it  be  to  the  annoyance  of  another;  as,  if  a  butcher,  brewer, 
&c.,  use  his  trade  in  a  convenient  place,  though  it  be  to  the  annoyance 
of  his  neighbour."  It  may  be  observed  that,  in  the  language  of  this 
dictum  (for  which  no  authority  is  cited  by  Comyns),  there  is  a  want 
of  precision,  especially  in  the  words  "reasonable"  and  "convenient," 
which  renders  its  meaning  by  no  means  clear.  And  it  may  be  doubted 
whether  the  court,  in  Hole  v.  Barlow,  did  not  misunderstand  it.  What 
is  a  "convenient  place"?  Does  this  expression  mean,  as  the  court 
understood  it  in  that  case,  that  the  place  is  proper  and  convenient  for 
the  purpose  of  carrying  on  the  trade,  or  does  it  mean  that  it  is  a  place 
where  a  nuisance  will  not  be  caused  to  another?  It  has  been  pointed 
out  by  Mr.  W.  H.  Willes,  in  his  valuable  edition  of  Gale  on  Ease- 
ments, p.  410,  note,  that  this  latter  sense  of  the  word  "convenient" 
is  the  one  adopted  by  Hide,  C.  J.,  in  Jones  v.  Powell,  Palm.  536,  539, 
s.  c.  Hutt.  135,  where  he  says,  "A  tan-house  is  necessary,  for  all  men 
wear  shoes,  and  nevertheless  it  may  be  pulled  down  if  it  be  erected 
to  the  nuisance  of  another :  in  like  manner  of  a  glass-house ;  and  they 
ought  to  be  erected  in  places  convenient  for  them."  In  the  original 
Norman-French  it  is  "Un  tan  house  est  necessary,  car  touts  wear 
shoes ;  et  uncore  ceo  poit  estre  pull  down,  etc.,  si  est  erect  al  nusance 
d'auter:  et  issint  de  glass  house;  Et  pur  ceux  doient  estre  erect  in 
places  convenient  pur  eux."  The  term  appears  to  be  used  in  the  same 
sense  when  applied  to  questions  as  to  public  nuisances.  Thus  it  is  said 
in  Hawkins,  P.  C,  book  1,  c.  75  (2  Hawk.  P.  C,  by  Leach,  p.  146,  § 
10),  "It  seems  to  be  agreed,  that  a  brew  house,  erected  in  such  an  in- 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  419 

convenient  place  wherein  the  business  cannot  be  carried  on  without 
greatly  incommoding  the  neighbourhood,  may  be  indicted  as  a  common 
nuisance."  It  should  seem,  therefore,  that  just  as  the  use  of  an  offensive 
trade  will  be  indictable  as  a  public  nuisance  if  it  be  carried  on  in  an 
inconvenient  place,  i.  e.,  a  place  where  it  greatly  incommodes  a  multi- 
tude of  persons,  so  it  will  be  actionable  as  a  private  nuisance  if  it  be 
carried  on  in  an  inconvenient  place,  i.  e.,  a  place  where  it  greatly  in- 
commodes an  individual. 

If  this  be  the  true  construction  of  the  expression  "convenient"  in 
the  passage  from  Comyns'  Digest,  the  doctrine  contained  in  it  amounts 
to  no  more  than  what  has  long  been  settled  law,  viz.,  that  a  man  may, 
without  being  liable  to  an  action,  exercise  a  lawful  trade,  as  that  of  a 
butcher  or  brewer  and  the  like,  notwithstanding  it  be  carried  on  so 
near  the  house  of  another  as  to  be  an  annoyance  to  him,  in  rendering 
his  residence  there  less  delectable  or  agreeable,  provided  the  trade  be 
so  conducted  that  it  does  not  cause  what  amounts,  in  point  of  law,  to 
a  nuisance  to  the  neighbouring  house. 

In  Hole  V.  Barlow,  4  C.  B.  N.  S.  334,  however,  the  court  appear  to 
have  read  the  passage  as  containing  a  doctrine  that  a  place  may  be 
"proper  and  convenient"  for  the  carrying  on  of  a  trade,  notwithstand- 
ing it  is  a  place  where  the  trade  cannot  be  carried  on  without  causing 
a  nuisance  to  a  neighbour.  This  is  a  doctrine  which  has  certainly 
never  been  judicially  adopted  in  any  case  before  that  of  Hole  v.  Bar- 
low, and  moreover  the  adoption  of  it  would  be  inconsistent  with  the 
judgments  pronounced  in  some  of  the  cases  cited  at  the  bar  during  the 
argument,  and  more  especially  with  the  case  of  Walter  v.  Selfe,  4  De 
Gex  &  Sm.  315.  And  the  introduction  of  such  a  doctrine  into  our 
law  would  we  think  lead  to  great  inconvenience  and  hardship,  because, 
as  was  forcibly  urged  by  Mr.  Mellish  in  arguing  for  the  plaintiff,  if 
the  doctrine  is  to  be  maintained  at  all,  it  must  be  maintained  to  the 
extent  that,  however  ruinous  may  be  the  amount  of  nuisance  caused 
to  a  neighbour's  property  by  carrying  on  an  offensive  trade,  he  is  with- 
out redress  if  a  jury  shall  deem  it  right  to  find  that  the  place  where 
the  trade  is  carried  on  is  a  proper  and  convenient  place  for  the  pur- 
pose. 

It  should  be  observed  that  the  direction  of  the  judge  to  the  jury  in 
Hole  V.  Barlow,  which  was  upheld  by  the  Court  of  Common  Pleas, 
was  simply  that  the  verdict  ought  to  be  for  the  defendant  if  the  place 
where  the  bricks  were  burnt  was  a  convenient  and  proper  place  for  the 
purpose.  But  in  the  present  case,  the  Lord  Chief  Justice's  direction  to 
the  jury  pointed  at  a  further  condition,  viz.,  if  the  burning  of  the 
bricks  was  under  the  circumstances  a  reasonable  use  by  the  defendant 
of  his  own  land.  It  remains,  therefore,  to  consider  whether  the  doc- 
trine adopted  in  Hole  v.  Barlow,  if  accompanied  with  this  addition, 
is  maintainable. 

If  it  be  good  law,  that  the  fitness  of  the  locality  prevents  the  carry- 
ing on  of  an  offensive  trade  from  being  an  actionable  nuisance,  it  ap- 


420  TORTS  THROUGH  ACTS   OF   ABSOLUTE  LIABILITY  (Part  1 

pears  necessary  to  follow  that  this  must  be  a  reasonable  use  of  the 
land.  But  if  it  is  not  good  law,  and  if  the  true  doctrine  is,  that  when- 
ever, taking  all  the  circumstances  into  consideration,  including  the  na- 
ture and  extent  of  the  plaintiff's  enjoyment  before  the  acts  complained 
of,  the  annoyance  is  sufficiently  great  to  amount  to  a  nuisance  accord- 
ing to  the  ordinary  rule  of  law,  an  action  will  lie,  whatever  the  locality 
may  be,  then  surely  the  jury  cannot  properly  be  asked  whether  the 
causing  of  the  nuisance  was  a  reasonable  use  of  the  land. 

If  such  a  question  is  proper  for  their  consideration  in  an  action  such 
as  the  present,  for  a  nuisance  by  immitting  corrupted  air  into  the  plain- 
tiff's house,  we  can  see  no  reason  why  a  similar  question  should  not 
be  submitted  to  the  jury  in  actions  for  other  violations  of  the  ordi- 
nary rights  of  property ;  e.  g.  the  transmission  by  a  neighbour  of  wa- 
ter in  a  polluted  condition.  But  certainly  it  would  be  difficult  to  main- 
tain, as  the  law  now  stands,  that  the  jury,  in  such  an  action,  ought  to 
be  told  to  find  for  the  defendant  if  they  thought  that  the  manufactory 
which  caused  the  impurity  of  the  water  was  built  on  a  proper  and 
convenient  spot,  and  that  the  working  of  it  was  a  reasonable  use  by 
the  defendant  of  his  own  land.  Again,  where  an  easement  has  been 
gained  in  addition  to  the  ordinary  rights  of  property,  e.  g.  where  a 
right  has  been  gained  to  the  lateral  passage  of  light  and  air,  no  one 
has  ever  suggested  that  the  jury  might  be  told,  in  an  action  for  ob- 
structing the  free  passage  of  the  light  and  air,  to  find  for  the  defend- 
ant if  they  were  of  opinion  that  the  building  which  caused  the  obstruc- 
tion was  erected  in  a  proper  and  convenient  place,  and  in  the  reason- 
able enjoyment  by  the  defendant  of  his  own  land.  And  yet,  on  prin- 
ciple, it  is  difficult  to  see  why  such  a  question  should  not  be  left  to  the 
jury  if  Hole  v.  Barlow  was  well  decided. 

We  are,  however,  of  opinion  that  the  decision  in  that  case  was 
wrong,  and,  consequently,  that  the  direction  of  the  Lord  Chief  Jus- 
tice which  was  founded  on  it,  was  erroneous,  that  the  verdict  for  the 
defendant  ought  to  be  set  aside,  and  a  verdict  entered  for  the  plaintiff. 

Bramwkll,  b.  *  *  *  The  question  seems  to  me  to  be,  Is  this 
a  justification  in  law, — and,  in  order  not  to  make  a  verbal  mistake,  I 
will  say, — a  justification  for  what  is  done,  or  a  matter  which  makes 
what  is  done  no  nuisance?  It  is  to  be  borne  in  mind,  however,  that, 
in  fact,  the  act  of  the  defendant  is  a  nuisance  such  that  it  would  be 
actionable  if  done  wantonly  or  maliciously.  The  plaintiff,  then,  has 
a  prima  facie  case.  The  defendant  has  infringed  the  maxim,  Sic 
utere  tuo  ut  alicnum  non  Ijedas.  Then,  what  principle  or  rule  of  law 
can  he  rely  on  to  defend  himself?  It  is  clear  to  my  mind  that  there 
is  some  exception  to  the  general  application  of  the  maxim  mentioned. 
The  instances  put  during  the  argument,  of  burning  weeds,  emptying 
cesspools,  making  noises  during  repairs,  and  other  instances  which 
would  be  nuisances  if  done  wantonly  or  maliciously,  nevertheless  may 
be  lawfully  done.  It  cannot  be  said  that  such  acts  are  not  nuisances, 
because,  by  the  hypothesis,  they  are;    and  it  cannot  be  doubted  that, 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  421 

if  a  person  maliciously  and  without  cause  made  close  to  a  dwelling- 
house  the  same  offensive  smells  as  may  be  made  in  emptying  a  cess- 
pool, an  action  would  lie.  Nor  can  these  cases  be  got  rid  of  as  ex- 
treme cases,  because  such  cases  properly  test  a  principle.  Nor  can  it 
be  said  that  the  jury  settle  such  questions  by  finding  there  is  no  nui- 
sance, though  there  is.  For  that  is  to  suppose  they  violate  their  duty, 
and  that,  if  they  discharged  their  duty,  such  matters  would  be  action- 
able, which  I  think  they  could  not  and  ought  not  to  be.  There  must 
be,  then,  some  principle  on  which  such  cases  must  be  excepted.  It 
seems  to  me  that  that  principle  may  be  deduced  from  the  character  of 
these  cases,  and  is  this,  viz.,  that  those  acts  necessary  for  the  common 
and  ordinary  use  and  occupation  of  land  and  houses  may  be  done,  if 
conveniently  done,  without  subjecting  those  who  do  them  to  an  action. 
This  principle  would  comprehend  all  the  cases  I  have  mentioned,  but 
would  not  comprehend  the  present,  where  what  has  been  done  was  not 
the  using  of  land  in  a  common  and  ordinary  way,  but  in  an  excep- 
tional manner — not  unnatural  nor  unusual,  but  not  the  common  and 
ordinary  use  of  land.  There  is  an  obvious  necessity  for  such  a  prin- 
ciple as  I  have  mentioned.  It  is  as  much  for  the  advantage  of  one 
owner  as  of  another ;  for  the  very  nuisance  the  one  complains  of,  as 
the  result  of  the  ordinary  use  of  his  neighbour's  land,  he  himself  will 
create  in  the  ordinary  use  of  his  own,  and  the  reciprocal  nuisances 
are  of  a  comparatively  trifling  character.  The  convenience  of  such  a 
rule  may  be  indicated  by  calling  it  a  rule  of  give  and  take,  live  and  let 
live.^ 


ST.  HELEN'S  SMELTING  CO.  v.  TIPPING. 

(House  of  Lords,  1865.     11  H.  L.  C.  642,  11  Eeprint,  1483.) 

This  was  an  action  to  recover  damages  for  injuries  done  to  the 
plaintiff's  trees  and  crops,  by  the  defendants'  works.  The  defendants 
are  the  directors  and  shareholders  of  the  St.  Helen's  Copper  Smelting 
Company  (Limited).  The  plaintiff,  in  1860,  purchased  a  large  portion 
of  the  Bold  Hall  estate,  consisting  of  the  manor  house  and  about  1300 
acres  of  land,  within  a  short  distance  of  which  stood  the  works  of 
the  defendants.    The  declaration  alleged  that: 

"The  defendants  erected,  used,  and  continued  to  use,  certain  smelting 
works  upon  land  near  to  the  said  dwelling  house  and  lands  of  the  plaintiff, 
and  caused  large  quantities  of  noxious  gases,  vapours,  and  other  noxious 
matter,  to  issue  from  the  said  worljs,  and  diffuse  themselves  over  the  land 
and  premises  of  the  plaiutifl',  whereby  the  hedges,  trees,  shrubs,  fruit,  and 
herbage,  were  greatly  injured ;    the  cattle  were  rendered  unhealthy,  and  the 

2  "For  instance,  annoyance  may  be  caused  to  my  neighbor  by  what  is  done 
in  repairing  my  house  in  one  year,  and  he  in  turn  will  cause  me  similar  an- 
noyance in  another  year.  But  the  same  considerations  do  not  apply  to  a 
noil  natural  or  extraordinary  user  of  land."  I'er  Farwell,  L.  J.,  in  West 
V.  Bristol  Tramways  Company  [1908J  2  K.  B.  14,  23. 


422  TORTS  THROUGH  ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

plaintiff  was  prevented  from  liaving  so  beneficial  a  use  of  the  said  land  and 
premises  as  he  would  otherwise  have  enjoyed,  and  also  the  reversionary 
lands  and  premises  were  depreciated  in   value."' 

The  Lord  Chancellor  (Lord  Westbury).  *  *  *  j\iy  Lords, 
I  think  your  Lordships  will  be  satisfied  with  the  answer  we  have  re- 
ceived from  the  learned  judges  to  the  questions  put  by  this  House.^ 

My  Lords,  in  matters  of  this  description  it  appears  to  me  that  it 
is  a  very  desirable  thing  to  mark  the  difference  between  an  action 
brought  for  a  nuisance  upon  the  ground  that  the  alleged  nuisance  pro- 
duces material  injury  to  the  property,  and  an  action  brought  for  a 
nuisance  on  the  ground  that  the  thing  alleged  to  be  a  nuisance  is  pro- 
ductive of  sensible  personal  discomfort.     With  regard  to  the  latter, 

3  The  history  of  the  case  to  this  point  was  as  follows:  The  cause,  under 
a  plea  of  Not  Guilty,  was  tried  before  Mr.  Justice  Mellor,  at  Liverpool  in 
August,  1S63.  The  defendants  offered  evidence  to  show  that  the  whole 
neighborhood  was  studded  with  manufactories  and  tall  chimneys,  that 
there  were  some  alkali  works  close  by  the  defendants'  works,  that  the  smoke 
from  one  was  quite  as  injurious  as  the  smoke  from  the  other,  that  the  smoke 
of  both  sometimes  united,  and  that  it  was  impossible  to  say  to  which  of  the 
two  any  particular  injury  was  attributable.  The  fact  that  the  defendants' 
works  existed  before  the  plaintiff  bought  the  property  was  also  relied  on. 

The  defendants'  counsel  submitted  that  the  three  questions  which  ought 
to  be  left  to  the  jury  were,  "whether  it  was  a  necessary  trade,  whether  the 
place  was  a  suitable  place  for  such  a  trade,  and  whether  it  was  carried  on 
in  a  reasonable  manner."  The  learned  judge  did  not  put  the  questions  in  this 
form,  but  did  ask  the  jury  whether  the  enjoyment  of  the  plaintiff's  property 
was  sensibly  diminished,  and  the  answer  was  in  the  affirmative.  Whether 
the  business  there  carried  on  was  an  ordinary  business  for  smelting  copper, 
and  the  answer  was,  "We  consider  it  an  ordinary  business,  and  conducted  in  a 
proper  manner,  in  as  good  a  manner  as  possible."  But  to  the  question 
whether  the  jurors  thought  that  it  was  carried  on  in  a  proper  place,  the  an- 
swer was,  "We  do  not."  The  verdict  was  therefore  entered  for  the  plaintiff. 
A  motion  was  made  for  a  new  trial,  on  the  ground  of  misdirection,  but  the 
rule  was  refused.  4  Best  &  S.  60S.  Leave  was  however  given  to  appeal, 
and  the  case  was  carried  to  the  Exchequer  Chamber,  where  the  judgment 
was  affirmed;  Lord  Chief  Baron  Pollock  there  observing:  "My  opinion  has 
not  always  been  that  which  it  is  now.  Acting  upon  what  has  been  decided 
in  this  court,  my  Brother  JNIellor's  direction  is  not  open  to  a  bill  of  ex- 
ception."   4  Best  &  S.  616.     This  appeal  was  then  brought. 

The  judges  were  summoned,  and  Mr.  Baron  Martin,  Mr.  Justice  Willes, 
Mr.  Justice  Blackburn,  Mr.  Justice  Keating,  Mr.  Baron  Pigott,  and  Mr.  Jus- 
tice Shee,  attended.  For  the  appellants,  who  were  the  defendants  in  the  court 
below,  there  was  an  argument  by  the  Attorney  General  (Sir  R.  Palmer)  and 
Mr.  Webster,  to  the  effect  that  the  dissent  in  Bamford  v.  Turnley,  in  the 
Excheqiier  Chamber,  from  tlie  doctrine  of  Hole  v.  Barlow,  was  not  war- 
ranted by  principle  or  authority.  "Our  material  question,"  said  the  counsel 
for  the  appellants,  "is  the  convenience  or  fitness  of  the  place  where  the  busi- 
ness is  carried  on." 

These  two  questions  were  thereupon  proposed  by  the  Lord  Chancellor  to 
the  judges:  "Whether  directions  given  by  the  learned  judge  at  Nisi  Prius 
to  the  jury  were  correct?  or,  Whether  a  new  trial  ought  to  be  granted  in 
this  case?" 

Mr.  Baron  Martin.  My  Lords,  in  answer  to  the  questions  proposed  by  your 
lordships  to  the  judges,  I  have  to  state  their  unanimous  opinion  that  the 
directions  given  by  the  learned  judge  to  the  jury  were  correct,  and  that 
a  new  trial  ought  not  to  be  granted.  As  far  as  the  experience  of  all  of  us 
goes,  the  directions  are  such  as  we  have  given  in  these  cases  for  the  last 
twenty  years. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  423 

namely,  the  personal  inconvenience  and  interference  with  one's  enjoy- 
ment, one's  quiet,  one's  personal  freedom,  anything  that  discomposes 
or  injuriously  affects  the  senses  or  the  nerves,  whether  that  may  or 
may  not  be  denominated  a  nuisance,  must  undoubtedly  depend  greatly 
on  the  circumstances  of  the  place  where  the  thing  complained  of  ac- 
tually occurs.  If  a  man  lives  in  a  town,  it  is  necessary  that  he  should 
subject  himself  to  the  consequences  of  those  operations  of  trade  which 
may  be  carried  on  in  his  immediate  locality,  which  are  actually  neces- 
sary for  trade  and  commerce,  and  also  for  the  enjoyment  of  property, 
and  for  the  benefit  of  the  inhabitants  of  the  town  and  of  the  public  at 
large.  If  a  man  lives  in  a  street  where  there  are  numerous  shops,  and 
a  shop  is  opened  next  door  to  him,  which  is  carried  on  in  a  fair  and 
reasonable  way,  he  has  no  ground  for  complaint,  because  to  himself 
individually  there  may  arise  much  discomfort  from  the  trade  carried 
on  in  that  shop.  But  when  an  occupation  is  carried  on  by  one  person 
in  the  neighbourhood  of  another,  and  the  result  of  that  trade,  or  occu- 
pation, or  business,  is  a  material  injury  to  property,  then  there  un- 
questionably arises  a  very  different  consideration.  I  think,  my  Lords, 
that  in  a  case  of  that  description,  the  submission  which  is  required 
from  persons  living  in  society  to  that  amount  of  discomfort  which 
may  be  necessary  for  the  legitimate  and  free  exercise  of  the  trade  of 
their  neighbours,  would  not  apply  to  circumstances  the  immediate  re- 
sult of  which  is  sensible  injury  to  the  value  of  the  property. 

Now,  in  the  present  case,  it  appears  that  the  plaintiff  purchased  a 
very  valuable  estate,  which  lies  within  a  mile  and  a  half  from  certain 
large  smelting  works.  What  the  occupation  of  these  copper  smelting 
premises  was  anterior  to  the  year  1860  does  not  clearly  appear.  The 
plaintiff  became  the  proprietor  of  an  estate  of  great  value  in  the  month 
of  June  1860.  In  the  month  of  September  1860  very  extensive  smelt- 
ing operations  began  on  the  property  of  the  present  appellants,  in  their 
works  at  St.  Helen's.  Of  the  effect  of  the  vapours  exhaling  from 
those  works  upon  the  plaintiff's  property,  and  the  injury  done  to  his 
trees  and  shrubs,  there  is  abundance  of  evidence  in  the  case. 

My  Lords,  the  action  has  been  brought  upon  that,  and  the  jurors 
have  found  the  existence  of  the  injury ;  and  the  only  ground  upon 
which  your  Lordships  are  asked  to  set  aside  that  verdict,  and  to  direct 
a  new  trial,  is  this,  that  the  whole  neighbourhood  where  these  copper 
smelting  works  were  carried  on,  is  a  neighbourhood  more  or  less  de- 
voted to  manufacturing  purposes  of  a  similar  kind,  and  therefore  it 
is  said,  that  inasmuch  as  this  copper  smelting  is  carried  on  in  what 
the  appellant  contends  is  a  fit  place,  it  may  be  carried  on  with  im- 
punity, although  the  result  may  be  the  utter  destruction,  or  the  very 
considerable  diminution,  of  the  value  of  the  plaintift''s  property.  My 
Lords,  I  apprehend  that  that  is  not  the  meaning  of  the  word  "suita- 
ble," or  the  meaning  of  the  word  "convenient,"  which  has  been  used 
as  applicable  to  the  subject.  The  word  "suitable"  unciuestionably  can- 
not carry  with  it  this  consequence,  that  a  trade  may  be  carried  on  in 


424  TORTS  THROUGH  ACTS   OF   ABSOLUTE  LIABILITY  (Part  1 

a  particular  locality,  the  consequence  of  which  trade  may  be  injury 
and  destruction  to  the  neighbouring  property.  Of  course,  my  Lords, 
I  except  cases  where  any  prescriptive  right  has  been  acquired  by  a 
lengthened  user  of  the  place. 

On  these  grounds,  therefore,  shortly,  without  dilating  farther  upon 
them  (and  they  are  sufificiently  unfolded  by  the  judgment  of  the  learn- 
ed judges  in  the  court  below),  I  advise  your  Lordships  to  affirm  the 
decision  of  the  Court  below,  and  to  refuse  the  new  trial,  and  to  dis- 
miss the  appeal  with  costs.* 

Judgment  of  the  Exchequer  Chamber,  affirming  the  judgment  of  the 
Court  of  Queen's  Bench,  affirmed ;  and  appeal  dismissed  with  costs. 


RUSHMER  V.  POLSUE  &  ALFIERI,  Limited. 
(In  the  Court  of  Appeal.    [1906]  1  Ch.  234.) 

POLSUE  &  ALFIERI,  Limited,  v.  RUSHMER. 
(In  the  House  of  Lords.     [1907]  A.  C.  121.) 

Appeal  from  the  judgment  of  Warrington,  J.,  granting  a  perpetual 
injunction  to  restrain  a  nuisance  arising  from  noise.  The  facts  of 
the  case,  as  shown  by  the  evidence,  were  as  follows : 

For  the  last  seventeen  or  eighteen  years  the  plaintiff  had  been,  and 
he  still  was,  the  occupier,  and  was  also  the  present  lessee,  of  a  house. 
No.  8  Gough  Square,  Fleet  Street,  in  the  City  of  London,  in  which  he 
was  residing  with  his  family.  In  a  shop  on  the  ground  floor  he  car- 
ried on  the  business  of  a  dairyman. 

Gough  Square  was  a  small  oblong  space  situate  in  a  district  bounded 
on  the  east  by  Shoe  Lane,  on  the  south  by  Fleet  Street,  on  the  west 
by  Fetter  Lane,  and  on  the  north  by  Holborn.  It  was  a  district 
specially  devoted  to  the  printing  and  allied  trades.  There  was  no 
thoroughfare  for  wheeled  traffic  in  Gough  Square,  the  only  access  for 
such  traffic  being  under  an  archway  in  the  north-west  corner.  The 
plaintiff's  house,  No.  8,  was  in  the  north-east  corner.  For  a  house  in 
the  heart  of  the  City  of  London  the  plaintiff's  was,  it  appeared,  in 
a  quiet  situation,  except  for  such  noises  as  inevitably  arose  from  neigh- 
bouring business  establishments.  No.  7,  Gough  Square,  the  house  ad- 
joining the  plaintiff's  house  on  the  west  side,  had  for  some  time  been 
occupied  by  persons  maintaining  and  working  machinery,  but  it  ap- 
peared from  the  evidence  that  although  in  the  day  time  the  plaintiff 
must  have  been  subjected  to  noise  from  that  source,  yet  no  noisy  ma- 
chinery had  been  worked  at  night  in  that  house.  Nearly  opposite  to 
the  plaintiff's  house  was  a  large  printing  establishment,  Messrs.  Par- 
don's, in  which  work  on  certain  days  of  the  week  proceeded  at  night, 

*  The  concurring  oi>juious  of  Lord  Cranworth  and  Lord  Wensleydale  are 
omitted. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  425 

and  some  distance  further  away  were  the  printing  works  of  the  Daily 
Telegraph  newspaper,  which  were  run  regularly  at  night.  The  evi- 
dence, however,  shewed  that  no  disturbance  at  night  was  caused  by 
noise  arising  from  either  of  those  sources. 

The  defendants,  Polsue  &  Alfieri,  Limited,  were  a  company  carrying 
on  business  as  printers  and  publishers  at  Xos.  4  and  5,  Gough  Square, 
and  at  No.  10,  Wine  Office  Court,  which  latter  house  immediately  ad- 
joined the  plaintiff's  house,  being  separated  therefrom  only  by  a  party- 
wall.  No.  10,  Wine  Office  Court,  was  taken  by  the  defendants  in  1904. 
A  printing  business  had  been  previously  carried  on  there,  though  with- 
out causing  the  plaintiff  any  nuisance  from  noise ;  but  in  September  of 
that  year  the  defendants  set  up  in  that  house  and  began  to  work  cer- 
tain machinery,  including  a  cutter  on  the  ground  floor  and  a  printing 
machine  in  the  basement.  The  noise  of  which  the  plaintiff  complained 
mainly  arose  from  this  printing  machine,  the  evidence  shewing  that 
no  real  nuisance  arose  from  the  cutter.  The  printing  machine  was  of 
an  improved  type,  quieter,  it  was  said,  than  most  machines  of  the 
kind,  and  was  properly  fixed  upon  a  concrete  bed.  It  was  driven  by 
an  electric  motor,  and  was  usually  run  at  a  speed  throwing  off  1,440 
impressions  per  hour;  but  under  exceptional  circumstances  it  might 
be,  and  in  fact  had  been,  run  at  a  rate  of  1,560  impressions.  It  had 
always  been  carefully  and  properly  worked.  When  first  set  up  it  was 
driven  through  the  medium  of  a  shafting  fixed  to  the  ceiling  of  the 
room ;  but  after  a  complaint  by  the  plaintiff  this  was  altered  and  the 
machine  was  driven  by  a  belt  passing  directly  to  it  from  the  motor. 
In  October,  1904,  the  plaintiff  again  complained,  and  on  October  21 
caused  a  formal  letter  of  complaint  to  be  written  by  his  solicitor.  To 
this  no  reply  was  made,  and  on  November  1  the  plaintiff  issued  the 
writ  in  this  action  against  the  defendants  for  an  injunction  to  restrain 
them  from  so  w^orking  their  machinery  and  carrying  on  their  printing 
works  at  No.  10,  Wine  Office  Court,  as,  by  reason  of  noise  or  other- 
wise, to  cause  a  nuisance  or  annoyance  to  the  plaintiff  as  lessee  and 
occupier  of  the  house  No.  8,  Gough  Sc}uare,  or  to  his  family,  or  to  the 
persons  inhabiting  or  resorting  to  that  house.  Notice  of  motion  for 
an  injunction  was  given,  but  the  motion  was  never  heard,  the  action 
being  by  arrangement  at  once  set  down  for  a  speedy  trial.  g 

In  their  defence  to  the  plaintiff's  statement  of  claim,  the  defendants 
denied  that  their  printing  machine  was  being  so  worked  as  to  cause  a 
nuisance  to  the  plaintiff,  and  they  insisted  that,  as  his  premises  were 
situated  in  the  heart  of  a  district  almost  entirely  devoted  to  the  print- 
ing and  allied  trades,  he  was  not  entitled  to  an  injunction.  At  the  trial 
oral  evidence  was  given  on  both  sides  by  several  engineering  experts 
as  to  the  general  nature  and  effect  of  the  noises  arising  from  printing 
and  other  machines  in  the  neighbourhood.  As  to  the  noise  caused  by 
the  defendants'  machine  and  to  the  alleged  nuisance  arising  therefrom 
to  the  plaintiff  and  his  family,  particularly  at  night,  evidence  was  given 
by  several  persons,  including,  in  addition  to  the  plaintiff,  his  two  daugh- 


426  TORTS  THROUGH  ACTS  OF    ABSOLUTE  LIABILITY  (Part  1 

ters  and  his  son.  At  the  conclusion  of  the  trial,  before  Warrington, 
J.,  which  occupied  five  days  of  the  Michaelmas  Sittings,  1904,  his 
Lordship  reserved  judgment.  On  January  12,  1905,  he  delivered  his 
judgment,  in  which  he  commenced  with  the  following  statement  of 
the  legal  principles  which,  in  his  opinion,  were  applicable  to  the  case: 

"The  question  I  have  to  answer  is  whether  the  defendants,  by  working  the 
machine  in  question,  seriously  interfei'e  with  the  comfort,  physically,  of  the 
plaintiff  and  his  family  in  the  occupation  of  his  house  according  to  the 
ordinary  notions  prevalent  among  reasonable  English  men  and  women:  Wal- 
ter V.  Selfe  (1S51)  4  De  G.  &  Sm.  315,  322 ;  and  for  the  purpose  of  answering 
this  question  I  am  not  to  look  at  the  defendants'  operations  in  the  ab.stract 
and  by  themselves,  but  in  connection  with  all  the  circumstances  of  the 
locality,  and  in  particular  in  reference  to  the  nature  of  the  trades  usually 
carried  on  there,  and  the  noises  and  disturbance  existing  prior  to  the  com- 
mencement of  the  defendants'  operations:  Sturges  v.  Bridgman,  11  Ch.  D. 
852,  865;  St.  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L.  C.  642.  But  if,  after 
taking  these  circumstances  into  consideration,  I  find  a  serious  and  not  merely 
a  slight  additional  interference  with  the  plaintiff's  comfort  as  above  defined, 
I  think  it  is  the  duty  of  the  Court  to  interfere:  Crump  v.  Lambert,  L.  R. 
3  Eq.  409.    Tliis  seems  to  me  to  be  the  true  result  of  the  authorities." 

His  Lordship  then  proceeded  to  deal  with  the  evidence,  and  stated 
the  three  following  definite  findings  of  fact : 

First,  that  although  in  the  day  time  the  plaintiff  must  have  been  subject 
to  some  noise  from  printing  works  in  the  immediate  neighbourhood,  no  dis- 
turbance at  night  had  been  caused  by  noise  arising  from  any  of  these  sources. 
Secondly,  that  as  regarded  the  ordinary  working  hours  in  the  day  time,  the 
plaintiff  had  not  proved  such  a  substantial  addition  to  pre-exis"tin.<!;  noises 
as  would  amount  to  a  legal  nuisance.  And,  thirdly,  that  the  night  working 
of  the  defendants'  machine  caused  a  serious  disturbance  to  the  plaintiff  and 
his  family  such  as  had  not  previously  been  experienced  by  them. 

His  Lordship  held  this  to  be  a  legal  nuisance  entitling  the  plaintiff 
to  an  injunction.  Accordingly  he  granted  a  perpetual  injunction  re- 
straining the  defendants,  their  workmen,  servants  and  agents  from 
so  working  their  machinery,  and  so  carrying  on  their  printing  works, 
at  No.  10,  Wine  Office  Court,  as  by  reason  of  noise  to  cause  a  nuisance 
to  the  plaintiff  as  lessee  and  occupier  of  the  adjoining  house,  No.  8, 
Gough  Square,  or  to  his  family,  or  to  the  persons  inhabiting  or  re- 
sorting to  such  house. 

The  defendants  appealed.*^ 

'  In  the  Court  of  Appeal. 

Cozens-Hardy,  L.  J.  This  is  an  appeal  from  the  judgment  of 
Warrington,  J.,  who  has  granted  an  injunction  restraining  the  defend- 
ants from  so  working  a  printing  machine  as  to  occasion  a  nuisance  to 
the  plaintiff.  The  plaintiff'  has  for  seventeen  years  been  residing  with 
his  family  at  No.  8,  Gough  Square,  Fleet  Street.  In  the  lower  part 
of  the  house  he  carries  on  a  milk  business.  The  defendants'  machine 
is  next  door  to  the  plaintiff's  house.  The  plaintiff's  house  is  situate  in 
a  district  specially  devoted  to  the  printing  and  allied  trades,  most  of 

5  The  arguments  of  counsel  and  the  opinions  of  Vaughan  Williams  and 
Stirling,  L.  JJ.,  both  concurring  in  the  dismissal  of  the  appeal,  are  omitted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  427 

which  are  noisy,  though  not  all  equally  noisy.  The  district  is  one  in 
which  it  is  not  reasonable  to  expect  the  same  quiet  and  freedom  from 
noise  as  might  be  looked  for  in  more  purely  residential  neighbour- 
hoods. Warrington,  J.,  has  stated  the  legal  principles  which  it  was  his 
duty  to  apply  as  follows.  (His  Lordship  then  read  from  the  learned 
judge's  judgment  the  passage  above  quoted  and  proceeded :)  In  my 
opinion  that  is  a  statement  of  the  law  which  is  not  only  accurate,  but 
adequate.  He  then  proceeds  to  deal  with  the  evidence.  He  does  not 
leave  us  to  infer  the  conclusions  at  which  he  has  arrived,  for  he  states 
certain  definite  findings  of  fact.  (His  Lordship  then  read  the  three 
findings  above  stated,  and  proceeded  :)  In  my  opinion,  it  is  not  right  for 
the  Court  of  Appeal  in  a  case  like  this  to  overrule  the  decision  on  is- 
sues of  fact  of  a  judge  who  has  seen  and  heard  the  witnesses ;  and, 
this  being  so,  I  think  the  appeal  must  fail.  I  cannot  doubt  that  the 
learned  judge  did  apply  the  legal  principles  he  himself  enunciated,  and 
I  do  not  think  we  ought  to  embark  upon  the  consideration  of  the  ques- 
tion whether  his  mind  may  not  have  been  influenced  by  some  other 
legal  view  than  that  expressed  by  him.  But  some  arguments  were 
raised  by  counsel  for  the  appellants  and  for  the  respondent  to  which 
I  desire  shortly  to  refer.  It  was  strenuously  contended  by  Mr.  Duke 
that  a  person  living  in  a  district  specially  devoted  to  a  particular  trade 
cannot  complain  of  any  nuisance  by  noise  caused  by  the  carrying  on 
of  any  branch  of  that  trade  without  carelessness  and  in  a  reasonable 
manner.^     I  cannot  assent  to  this  argument.     A  resident  in  such  a 

«  In  his  argniment  for  the  defendant,  Duke,  K.  C,  cited  the  following  cases 
in  support  of  his  contention:  St.  Helen's  Smelting  Co.  v.  Tipping  (1S65)  11 
H.  L.  C.  642;  Gaunt  v.  Fynney  (1872)  L.  R.  8  Ch.  8,  10,  13;  Sturges  v. 
Bridgman  (1879)  11  Ch.  D.  8-52,  86-5;  Christie  v.  Davey,  [1893]  1  Ch.  316; 
Saunders-Clark  v.  Grosveuor  Mansions  Co.,  [1900]  2  Ch.  373;  Attorney  Gen- 
eral V.  Cole  &  Son,  [1901]  1  Ch.  205;  Bamford  v.  Turnley  (1860)  3  B.  &  S. 
62.  The  following  cases  were  distinguished  from  the  case  at  bar:  Crump  v. 
Lambert  (1867)  L.  R.  3  Eq.  409,  414 ;  Heather  v.  Pardon  (1877)  37  L.  T.  393 ; 
Bartlett  v.  Marshall,  [1S95]  44  W.  R.  251;  Crossley  &  Sons  v.  Lightowler 
(1867)  L.  R.  2  Ch.  478,  481. 

On  the  local  standard  of  comfort  as  a  test  in  Nuisance,  see  also  21  Hals- 
bury's  Laws  of  England,  531,  532  (1912) ;  29  Cyc.  1157,  1159,  and  especially 
notes  33,  47,  48,  49;  and  the  annotations  to  Rushmer  v.  Polsue  (1906)  in  4 
A.  &  E.  Ann.  Cas.  373,  377. 

Compare  Gilbert  v.  Showerman  (1871)  23  Mich.  448:  (P.,  the  owner  of  a 
four-story  business  building  in  Detroit,  in  a  part  of  that  city  which  was 
chiefly  given  over  to  business,  occupied  the  upper  part  of  his  building  as  his 
dwelling.  D.  used  his  adjoining  four-story  building  as  a  steam-flouring 
mill.  P.  sought  to  enjoin  D.  from  operating  his  mill,  claiming  a  nuisance. 
Said  Corley,  J.,  in  dismissing  the  bill:  "The  complainant,  having  taken  up 
his  residence  in  a  portion  of  the  city  mainly  appropriated  to  business  par- 
pose.s,  cannot  complain  of  any  new  busine.ss  near  him,  provided  such  new 
business  is  not  in  itself  objectionable  as  compared  with  those  already  estab- 
lished, and  is  carried  on  in  a  proper  manner.") 

EUer  V.  Koehler  (190.3)  68  Ohio  St.  51,  67  N.  E.  89:  (P.  sued  to  recover 
damages  for  alleged  injuries  to  her  health  and  her  property  resulting  from 
the  noise  and  vibrations  occasioned  by  D.'s  drop-hammers,  in  use  on  his 
adjoining  lot.  D.  averred  that  his  "said  manufacturing  plant  is  situate  in  a 
part  of  the  city  which  is  and  has  been  devoted  to  like  business  purposes,  and 
was  so  at  the  time  said  plant  was  constructed."    This  was  not  denied  by  P. 


428  TORTS  THROUGH  ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

neighbourhood  must  put  up  with  a  certain  amount  of  noise.  The 
standard  of  comfort  differs  according  to  the  situation  of  the  property 
and  the  class  of  people  who  inhabit  it.  This  idea  is  expressed  by  The- 
siger,  L.  J.,  in  Sturges  v.  Bridgman,  11  Ch.  D.  852,  when  he  said 
that  what  might  be  a  nuisance  in  Belgrave  Square  would  not  be  a  nui- 
sance in  Bermondsey.  But  whatever  the  standard  of  comfort  in  a  par- 
ticular district  may  be,  I  think  the  addition  of  a  fresh  noise  caused  by 
the  defendant's  works  may  be  so  substantial  as  to  create  a  legal  nui- 
sance. It  does  not  follow  that  because  I  live,  say,  in  the  manufactur- 
ing part  of  Sheffield  I  cannot  complain  if  a  steam  hammer  is  intro- 
duced next  door,  and  so  worked  as  to  render  sleep  at  night  almost  im- 
possible, although  previously  to  its  introduction  my  house  was  a  rea- 
sonably comfortable  abode,  having  regard  to  the  local  standard;  and 
it  would  be  no  answer  to  say  that  the  steam  hammer  is  of  the  most 
modern  approved  pattern  and  is  reasonably  worked.  In  short,  if  a 
substantial  addition  is  found  as  a  fact  in  any  particular  case,  it  is  no 
answer  to  say  that  the  neighbourhood  is  noisy,  and  that  the  defendant's 
machinery  is  of  first-class  character.'^ 

It  was,  on  the  other  hand,  urged  by  Mr.  Terrell  that  any  kind  of 
noise  occasioning  discomfort  is  actionable  unless  the  defendant  can 
prove  a  prescriptive  right  to  create  a  noise.  I  do  not  think  this  argu- 
ment can  be  supported,  and  I  see  no  ground  for  supposing  that  War- 
rington, J.,  was  influenced  by  it.     The  lower  standard  of  comfort 

The  court  was  asked  by  D.  to  charge  the  jui'y  thus:  "In  determining  the 
question  whether  tlie  plaintiff  has  suffered  actual,  substantial,  and  material 
injuries,  you  may  consider  the  locality  of  her  property  and  that  of  the  de- 
fendant, the  nature  of  the  business  that  is  being  conducted  by  the  defendant, 
the  character  of  the  machinery  that  he  is  using,  the  manner  of  using  the 
property  producing  the  alleged  injuries ;  and  you  may  also  consider  the 
kinds  of  business,  if  any,  which  are  being  conducted  and  carried  on  in  the 
vicinity  of  these  properties.  *  *  *  if  you  find  from  the  evidence  that  the 
plaintiff's  property  is  situated  in  a  populous  city,  and  in  the  vicinity  of  otlior 
shops  of  the  same,  or  substantially  the  same,  character  and  kind,  then  you 
may  consider  this  fact  in  determining  whether  the  plaintiff  has  suffered 
injuries  of  the  kind  named.  A  party  dwelling  in  a  populous  city,  and  in  the 
vicinity  of  shops  and  factories,  cannot  have  the  same  quiet  and  freedom  from 
annoyances  that  he  would  have  in  the  country  or  in  other  districts.  If  these 
annoyances,  should  you  find  them  to  be  such,  are  either  trifling  in  th<nr 
nature,  or  are  such  as  under  the  particular  circumstances  of  this  case  do 
not  cause  real,  substantial,  and  material  injuries,  then,  so  finding,  the  plain- 
tiff could  not  recover."  The  court  refused  to  so  instruct.  There  was  a  judg- 
ment for  plaintiff.  The  refusal  of  this  instruction  was  held  reversible  error.) 
7  Compare  Ross  v.  Butler  (1S6S)  4  C.  E.  Green  (19  N.  J.  Eq.)  294,  307,  97 
Am.  Dec.  654:  (P.  sought  to  enjoin  D.  from  operating  a  pottery  on  his  city 
lot,  in  the  same  block  with  P.'s  dwelling  houses;  D.  answered  that  this  part 
of  the  city  "is  inhabited  principally  by  mechanics  and  laborers,  many  of 
whom  use  their  houses  and  lots  for  business  punxjses,  and  that  the  com- 
plainants so  use  their  premises."  An  injunction  was  granted,  Cliancellor 
Zabriskie  remarking:  "Here  tlie  question  is  whether  a  dense  smoke  laden 
with  cinders,  caused  by  the  burning  of  pine  wood,  and  continued  for  twelve 
hours,  twice  in  each  month  falling  upon  and  penetrating  the  houses  and  prem- 
ises of  the  complainants,  at  distances  varying  from  forty  to  two  hundred  feet, 
would  cause  such  injury,  annoyance,  and  discomfort,  as  would  constitute  a 
legal  nuisance.     1  am  of  opinion  that  it  would.") 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  429 

existing,  say,  in  Whitechapel  would  equally  exist  in  one  of  the  numer- 
ous districts  which  have  sprung  up  in  late  years  on  the  outskirts  of 
the  City,  and  which  are  occupied  by  persons  of  the  same  class  as  those 
who  occupy  the  older  houses  in  Whitechapel.  In  short,  prescription 
has  nothing  to  do  with  the  case. 

In  the  result  I  accept  Warrington,  J.'s  findings  of  fact,  and  his 
enunciation  of  the  legal  principles  applicable  to  the  case,  and  I  think 
that  this  appeal  must  be  dismissed. 

The  Court  of  Appeal  (Vaughan  Williams,  Stirling,  and  Cozens- 
Hardy,  L.  JJ.)  having  affirmed  the  decision  of  Warrington,  J.,  the  de- 
fendants appealed. 

In  the  House  of  Lords. 

Lord  LorEburn,  L.  C.  My  Lords,  this  appeal  has  been  pre- 
sented to  your  Lordships  with  great  fairness  and  propriety ;  but  to 
my  mind  it  is  a  hopeless  appeal.  There  is  no  question  of  law  that  I 
can  see  in  the  case.  Warrington,  J.,  laid  down  the  law  quite  soundly ; 
nor  is  it  disputed  that  he  did  so. 

The  law  of  nuisance  undoubtedly  is  elastic,  as  was  stated  by  Lord 
Halsbury  in  the  case  of  Colls  v.  Home  and  Colonial  Stores,  [1904]  A. 
C.  179,  at  p.  185.  He  said:  "What  may  be  called  the  uncertainty 
of  the  test  may  also  be  described  as  its  elasticity.  A  dweller  in  towns 
cannot  expect  to  have  as  pure  air,  as  free  from  smoke,  smell,  and  noise 
as  if  he  lived  in  the  country,  and  distant  from  other  dwellings,  and 
yet  an  excess  of  smoke,  smell,  and  noise  may  give  a  cause  of  action, 
but  in  each  of  such  cases  it  becomes  a  question  of  degree,  and  the 
question  is  in  each  case  whether  it  amounts  to  a  nuisance  which  will 
give  a  right  of  action."    This  is  a  question  of  fact. 

It  is  said,  indeed,  by  the  learned  counsel  for  the  appellants  that 
Warrington,  J.,  did  not  carry  out  his  law  in  the  way  in  which  he  ap- 
proached the  facts.  I  cannot  see  that  it  is  so.  There  was  evidence 
sufficient  to  shew  that,  taking  into  consideration  the  character  of  the 
locality  and  the  noises  there  prevailing,  yet  a  serious  addition  had  been 
caused  by  the  defendants.  In  my  opinion  that  was  quite  sufficient  to 
warrant  the  conclusion  arrived  at  by  the  learned  judge  and  the  Court 
of  Appeal. 

I  agree  with  Cozens-Hardy,  L.  J.,  when  he  says :  "It  does  not  fol- 
low that  because  I  live,  say,  in  the  manufacturing  part  of  Sheffield  I 
cannot  complain  if  a  steam  hammer  is  introduced  next  door,  and  so 
worked  as  to  render  sleep  at  night  almost  impossible,  although  previ- 
ously to  its  introduction  my  house  was  a  reasonably  comfortable  abode, 
having  regard  to  the  local  standard ;  and  it  would  be  no  answer  to  say 
that  the  steam  hammer  is  of  the  most  modern  approved  pattern  and 
is  reasonably  worked." 

My  Lords,  I  think  that  this  appeal  wholly  fails  and  that  it  ought 
to  be  dismissed  with  costs. 


430  TORTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 


PIERSON  V.  GLEAN. 

(Supreme  Court  of  Judicature  of  New  Jersey,  1833.    2  Green  [14  N.  J.  Law]  36, 

25  Am.  Dec.  497.) 

The  declaration  alleged  that  the  plaintiff  was  lawfully  seized  and 
possessed,  on  the  first  day  of  April,  1831,  of  certain  lands,  through 
which  a  stream  of  water  had  always  been  accustomed  to  flow ;  that  the 
defendant  on  the  said  first  day  of  April,  1831,  and  from  that  time  con- 
tinually afterwards,  maintained  a  mill  dam  across  the  said  stream  and 
thereby  caused  the  waters  of  the  said  stream  to  overflow  and  drown 
the  plaintiff's  land. 

To  this  declaration  the  defendant  put  in  three  pleas — 1st,  the  general 
issue.  2dly,  protesting  that  he  never  erected  or  unlawfully  maintained 
the  dam,  the  defendant  says  that  prior  to  the  26th  of  July,  1830,  he 
had  no  title  or  possession;  that  on  that  day  he  became  seized  and 
possessed  of  the  said  dam;  since  which  neither  the  plaintiff  or  any 
other  person,  for  him  or  in  his  behalf,  ever  requested  the  defendant 
to  reform  or  remove  the  said  dam ;  and  concludes  with  a  verification, 
3dly,  that  the  mill-dam  was  erected,  kept  up  and  maintained  before 
the  26th  July,  1830,  previous  to  which  day  the  defendant  had  no  title, 
possession  or  interest  in  the  said  dam — that  on  that  day  the  defendant 
became  seized  and  possessed  in  fee,  and  has  never  since  been  requested, 
etc. 

To  the  second  and  third  pleas  there  is  a  general  demurrer  and  join- 
der. 

HoRNBLOWER,  C.  J.  *  *  *  The  only  question  presented  to  the 
court  upon  the  pleadings  in  this  case,  is,  whether  an  action  for  con- 
tinuing a  nuisance,  will  lie  against  him,  who  did  not  erect  it,  before 
any  request  made  to  him  to  remove  or  abate  the  injury. 

The  plaintift''s  declaration  is  not  for  erecting,  but  for  maintaining 
and  keeping  up  the  dam. 

The  defendant  says,  the  dam  was  erected  before  he  became  seized 
or  possessed  of  the  premises,  and  that  the  plaintiff  did  not  at  any  time 
before  the  commencement  of  the  action,  request  him  to  reform  or  re- 
move the  injury  complained  of.  This  allegation  is  fully  admitted  by 
the  general  demurrer. 

The  law  as  settled  in  Penruddock's  Case,  5  Co.  101,  has  never,  I 
believe,  been  seriously  questioned  since.  In  that  case  it  was  resolved, 
that  though  the  continuance  of  a  nuisance  by  the  feofee  was  a  new 
wrong,  yet  a  quod  permittat  would  not  lie  against  him,  without  a 
request  made,  etc.  Ld.  Ch.  Just.  Willes,  in  Winsmore  v.  Greenljank, 
Willes  Rep.  583,  speaking  of  the  distinction  between  the  beginning  and 
the  continuance  of  a  nuisance,  by  building  a  house  that  hangs  over  or 
damages  another,  refers  to  Penruddock's  case ;  says  the  law  is  cer- 
tainly so,  and  the  reason  obvious.  Mr.  Chitty,  in  his  treatise  on  Plead- 
ing, vol.  1,  p.  376,  says  it  is  necessary  to  state  a  request  in  declaration. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  431 

for  continuing  a  nuisance  erected  by  another.  See  2  Chit,  on  PI.  334, 
note  c.  In  the  case  of  Sahiion  v.  Bensley,  Ryan  and  Moody,  195,  21 
Engl.  Com.  L.  R.  414,  2  Saund.  on  Evid.  and  Plead.  690,  the  same 
doctrine  is  admitted  by  Abbott,  Ld.  Ch.  Just.,  though  he  held  that  a 
person  who  takes  premises  upon  which  a  nuisance  exists,  and  contin- 
ues it,  takes  them  subject  to  all  the  restrictions  imposed  upon  his  pred- 
ecessors, by  the  receipt  of  such  a  notice,  as  had  in  that  case  been 
served  upon  the  preceding  occupant. 

As  well  then  upon  the  good  sense  and  common  justice  of  the  case, 
as  upon  the  ground  of  venerable  and  unquestioned  authorities,  I  am 
of  opinion,  that  the  demurrer  ought  to  be  overruled. 

Judgment  for  defendant  on  demurrer.^ 


BONNER  v.  VvELBORN. 
(Supreme  Court  of  Georgia,  1849.    7  Ga.  296.) 

In  1843  Alfred  Welborn  erected  a  mill-dam  on  his  own  land,  ad- 
joining the  property  known  as  the  Meriwether  Warm  Springs,  then 
the  property  of  Seymour  R.  Bonner.  In  1845.  Seymour  R.  Bonner 
sold  and  conveyed  this  property  to  the  plaintiff  in  error,  Robert  Bon- 
ner. 

In  1847,  Robert  Bonner  brought  an  action  against  Alfred  Welborn, 
alleging  that  he  had  been  damaged  $20,000,  because  the  defendant  on 
November  1,  1843,  and  on  divers  other  days  and  times  between  that 
date  and  the  commencement  of  this  suit  had  erected  a  mill-dam  with- 
in 400  yards  of  certain  medicinal  springs  and  a  hotel  of  which  the 
plaintiff  was  possessed  and  thus  had  caused  the  water  to  stagnate  and 
plaintiff's  premises  to  become  unhealthy,  with  the  result  that  plaintiff's 
hotel  business  fell  oft'.  At  the  trial,  no  request  by  the  plaintiff  to  the 
defendant  to  abate  the  nuisance  was  proven. 

The  court  charged  the  jury,  that  the  erection  of  the  mill-pond  by  the 
defendant,  on  his  own  land,  being  a  lawful  act,  it  was  necessary  that 
the  plaintiff  should  request  the  defendant  to  abate  it,  or  give  notice  to 
that  effect,  before  he  could  maintain  this  action ;  and  the  mill-dam,  as 
shown  by  the  proof,  having  been  erected  before  the  plaintiff  purchased 
the  land,  or  went  into  possession  of  the  springs,  he  could  not  maintain 
this  action  for  its  erection  or  continuance,  until  he  had  requested  the 
defendant  to  take  it  down. 

NiSBET,  J*  *  *  The  circuit  judge  ruled,  that  the  defendant 
was  not  liable  in  this  case,  but  upon  request,  or  notice  to  abate  the  nui- 
sance. That  decision  is  also  excepted  to,  and  is  the  only  other  question 
made.  The  plaintiff  is  the  grantee  of  the  property,  holding  title  of 
Seymour  Bonner,  who  was  the  owner  at  the  time  the  mill-dam  was 

8  The  statement  of  the  case  is  abridged,  and  pait  of  the  opinion  is  omitted. 


432  TORTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

built.  The  defendant,  Welborn,  erected  the  mill-dam,  and  is  still 
the  owner.  The  mill-pond  did  not  prove  a  nuisance,  until  after  the 
plaintiff  bought  and  went  into  possession  of  the  springs.  At  this  bar, 
it  is  insisted,  that  an  action  for  damages  does  not  lie  in  favor  of  him 
who  is  the  feofee  or  assignee  of  the  owner,  at  the  time  the  nuisance 
was  erected,  against  him  who  erected  it,  without  request.  This  prop- 
osition, I  do  not  think,  is  sustainable,  either  upon  principle  or  au- 
thority. 

A  private  nuisance,  is  anything  done  to  the  hurt  or  annoyance  of 
the  lands,  tenements,  or  hereditaments  of  another.  3  Black.  170.  If, 
for  example  a  person  keeps  his  hogs  or  other  noisome  animals  so  near 
the  house  of  another,  that  the  stench  of  them  incommodes  him,  and 
makes  the  air  unwholesome,  this  is  an  injurious  nuisance,  as  it  tends 
to  deprive  him  of  the  use  and  benefit  of  his  house.  9  Coke,  58 ;  1  Bur- 
row, 337 ;  3  Black.  Com.  217,  If  one  does  any  other  act,  in  itself  law- 
ful, which  yet  being  done  in  that  place,  necessarily  tends  to  the  dam- 
age of  another's  property,  it  is  also  a  nuisance.  So  closely,  says  Black- 
stone,  does  the  law  of  England  enforce  that  excellent  rule  of  gospel 
morality,  of  "doing  to  others,  as  we  would  that  they  should  do  unto 
ourselves."  Let  this  suffice  to  show  what  a  nuisance  is,  and  that  the 
act  complained  of  in  this  instance  is  a  nuisance.  The  obligation  of 
each  citizen  is,  to  use  his  own  property  in  such  a  way  as  not  to  do 
hurt  or  damage  to  the  property  of  another.  If  he  does  not,  he  creates 
a  nuisance,  and  is  liable  to  respond  in  damages ;  and  this,  although  the 
use  to  which  he  applies  his  property  is,  in  itself,  lawful.  The  condi- 
tion upon  which  he  uses  his  property  is,  that  no  one  shall  be  injured 
thereby.  The  rule  is  of  universal  application ;  no  one  is  exempt  from 
its  operation ;  nor  does  the  obligation  depend  upon  the  time  when,  or 
the  manner  in  which,  he  becomes  owner.  Eo  instanti  in  which  the 
use  of  his  property  becomes  injurious  to  another,  it  is  a  nuisance,  and 
he  is  liable  in  damages.  This  liability  depends  upon  no  other  fact  or 
circumstance — if  the  nuisance  exists,  if  the  damage  is  proven,  the  law, 
without  more,  attaches  to  him  the  liability.  The  law  devolves  upon 
him  the  burden  of  seeing  to  it,  that  in  the  use  of  his  property,  he  does 
no  injury  to  his  neighbor.  There  is,  therefore,  no  condition  precedent 
to  the  recovery  of  the  person  injured  in  his  property,  or  the  use  of  it. 
The  conclusion  from  these  principles,  is  irresistible,  that  he  who  does 
hurt  or  damage  to  another,  in  the  use  of  his  own  property,  is  liable, 
without  notice  or  request.     *     *     *  » 

0  The  statement  of  facts  is  abridged,  part  of  the  opinion  of  Nishet,  J., 
and  the  concurring  opinion  of  Lumpkin,  J.,  and  the  dissenting  opinion  of 
Warner,  J.,  are  omitted. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  433 

MURTHA  V.  LOVEWELL. 

(Supreme  Judicial  Court  of  Massachusetts,  1S96.     166  Mass.  391, 
44  N.  B.  347,  55  Am.   St.  Rep.  410.) 

Report  from  Supreme  Judicial  Court,  Suffolk  County ;  Oliver  Wen- 
dell Holmes,  Judge.  The  case  was  reported  to  the  full  court  for 
decision. 

Lathrop,  J.  The  defendants  do  not  now  contend  that  their  fur- 
nace for  melting  iron  was  not  properly  found  by  the  justice  of  this 
court  who  heard  the  case  to  be  a  nuisance  at  common  law,  but  they 
seek  to  justify  their  acts  on  the  ground  of  certain  so-called  "licenses," 
issued  by  the  mayor  and  aldermen  of  Chelsea,  under  Pub.  St.  c. 
102,  §§  40-48.  The  first  of  these  appears  to  be  merely  a  street  per- 
mit to  use  a  portion  of  the  street  in  front  of  the  premises  for  the  de- 
posit of  building  materials.  On  March  5,  1895,  a  license  to  erect  a 
furnace  for  melting  iron  was  granted  to  the  defendants,  with  the 
provision  that  they  build  a  stack  25  feet  in  height  above  the  roof  of 
the  building,  with  a  suitable  spark  arrester  placed  upon  the  top  there- 
of. Due  notice  was  given  of  the  application  for  such  a  license,  in 
accordance  with  section  41  of  chapter  102  of  the  Public  Statutes.  A 
copy  of  this  order  was  served  upon  the  defendants,  but,  through  some 
mistake,  the  height  of  the  stack  above  the  roof  was  stated  to  be  20 
feet,  instead  of  25  feet.  Thereupon  the  defendants  proceeded  to 
erect  their  stack  only  20  feet  high  above  the  roof.  Subsequently,  this 
mistake  was  discovered,  and  the  defendants  filed  a  petition  that 
the  board  of  aldermen  should  revise  the  order  by  striking  out  the 
word  "five"  after  the  word  "twenty" ;  and  on  May  4,  1895,  the  for- 
mer action  of  the  board  was  rescinded,  and  a  new  license  was  issued, 
to  maintain  a  steam  engine  and  boiler,  also  to  melt  iron,  etc.,  on 
condition  that  the  chimney  on  said  building  be  20  feet  high,  and  capped 
with  a  suitable  spark  arrester.  No  notice,  however,  was  given  to 
any  one  on  this  petition. 

We  are  of  opinion  that  the  defendants  show  no  ground  of  defense. 
They  did  not  comply  with  the  license  of  March  5,  1895,  although 
perhaps  through  no  fault  of  theirs ;  and  the  license  of  May  14,  1895, 
cannot  avail  them,  because  no  notice  was  given,  as  provided  in  section 
41,  above  referred  to.  If  the  case  stopped  here,  the  plaintiff  would 
be  entitled  to  an  injunction  to  restrain  the  defendants  from  continuing 
the  nuisance,  and  to  the  damages  which  had  been  assessed  for  the 
injury  already  done  to  the  plaintiff's  premises.  But  it  was  stated  by 
counsel  on  both  sides  at  the  argument  that,  since  the  case  was  reported 
to  this  court,  the  defendants  had  obtained  a  license,  in  proper  form, 
after  due  notice,  to  continue  their  business ;  and  we  have  been  re- 
quested to  consider  the  question  whether,  under  the  sections  above 
referred  to,  a  license  is  any  defense  to  this  bill  in  equity  for  a  private 
Hepb.Tobts — 28 


434  TORTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

nuisance.  If  it  is  a  defense,  it  is  obvious  that  an  injunction  should 
not  be  granted;  and  the  plaintiff  will  be  entitled  only  to  the  damages 
which  he  has  sustained,  and  which,  by  agreement  of  parties  made 
at  the  argument,  is  to  be  the  sum  found  by  the  justice  who  heard 
the  case.  We  are  of  opinion  that  it  is  well  settled  in  this  common- 
wealth that,  under  statutes  similar  to  the  one  before  us,  where  a 
license  is  granted  by  a  local  board,  and  the  licensees  are  complying 
with  the  license,  what  they  do  cannot  be  considered  as  a  nuisance  or 
be  restrained  by  this  court. 

In  Com.  V.  Parks,  155  Mass.  531,  30  N.  E.  174,  it  is  said  by  Mr. 
Justice  Holmes :  "It  is  settled  that,  within  constitutional  limits  not 
exactly  determined,  the  legislature  may  change  the  common  law  as 
to  nuisances,  and  may  move  the  line  either  way,  so  as  to  make  things 
nuisances  which  were  not  so,  or  to  make  things  lawful  which  were 
nuisances,  although,  by  so  doing,  it  affects  the  use  or  value  of  prop- 
erty." Under  St.  1845,  c.  197,  §  1,  which  is  similar  in  its  language  to 
Pub.  St.  c.  102,  §  40,  it  was  said  in  Call  v.  Allen,  1  Allen,  137,  142, 
143,  that,  the  power  being  vested  in  the  ofificers  named  in  the  statute 
to  grant  licenses,  "it  is  an  inevitable  implication  from  its  exercise  in 
making  and  recording  an  order  prescribing  rules,  restrictions,  and 
alterations  as  to  the  building  in  which  the  furnace  or  engine  is  con- 
structed, and  other  provisions  for  the  safety  of  the  neighborhood,  that 
the  owner  may  thereafter,  by  conforming  to  and  observing  all  the 
terms  and  requirements  of  the  order,  lawfully  continue  to  maintain, 
use,  and  work  them."  And  again :  "The  further  prosecution  of  his 
business  by  the  defendant,  by  the  use  of  his  engine,  was  lawful;  and 
his  mills  and  works  could  afterwards  be  justly  complained  of  only 
when  he  should  fail  in  any  respect  to  comply  with  the  requirements 
of  the  order,  or  should  act  contrary  to  or  in  violation  of  its  provi- 
sions." 

This  question  was  considered  at  length  in  Sawyer  v.  Davis,  136 
Mass.  239,  241,  242,  245,  49  Am.  Rep.  27.  In  that  case,  after  this 
court  had  determined  on  a  bill  in  equity  that  the  ringing  of  a  bell  on 
a  mill  was  a  private  nuisance  to  the  plaintiff,  and  after  a  final  injunc- 
tion was  issued  restraining  such  ringing,  the  legislature  passed  a  stat- 
ute authorizing  manufacturers,  for  the  purpose  of  giving  notice  to 
employes,  to  ring  bells  and  use  whistles  and  gongs  of  such  size  and 
weight,  and  in  such  manner,  and  at  such  hours,  as  the  board  of  alder- 
men of  cities  and  selectmen  of  towns  might  designate.  The  select- 
men of  the  town  where  the  mill  was  situated  granted  a  license  to  the 
owner  to  ring  the  bell  on  the  mill  at  the  hour  at  which  he  was  pre- 
vented from  ringing  it  by  the  injunction.  It  was  held  on  a  bill  of  re- 
view brought  by  the  millowner,  seeking  to  have  the  injunction  dis- 
solved, that  the  statute  was  constitutional,  and  that  the  bill  could  be 
maintained.  It  was  said  in  the  opinion:  "And,  when  the  legislature 
directs  or  allows  that  to  be  done  which  would  otherwise  be  a  nuisance, 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN   TRESPASSES  435 

it  will  be  valid,  upon  the  ground  that  the  legislature  is  ordinarily  the 
proper  judge  of  what  the  public  good  requires,  unless  carried  to  such 
an  extent  that  it  can  fairly  be  said  to  be  an  unwholesome  and  un- 
reasonable law."  See,  also,  Com.  v.  Rum  ford  Chemical  Works,  16 
Gray,  231;  Alter  v.  Dodge,  140  Mass.  594,  5  N.  E.  504;  White  v. 
Kenney,  157  Mass.  13,  31  N.  E.  654.  The  case  of  Ouinn  v.  Light  Co., 
140  Alass.  106,  3  N,  E.  200,  upon  which  the  plaintiff  relies,  was  de- 
cided upon  the  ground  that  a  license  under  Pub.  St.  c.  102,  §  40,  to 
run  a  steam  engine,  if  it  included  authority  to  run  any  kind  of  ma- 
chinery, was  broader  than  the  statute;  that  the  machinery,  therefore, 
might,  by  its  noise,  be  a  nuisance,  for  which  an  action  for  damages 
would  lie. 

In  the  case  at  bar,  the  nuisance  appears  to  have  been  caused  by  the 
spark  arrester  not  preventing  sparks  and  small  pieces  of  red-hot  iron 
from  falling  upon  the  vacant  lot  of  the  plaintiff,  but  "the  authority 
to  do  an  act  must  be  held  to  carry  with  it  whatever  is  naturally  inci- 
dental to  the  ordinary  and  reasonable  performance  of  that  act."  Saw- 
yer V.  Davis,  136  Mass.  245,  49  Am.  Rep.  27.  The  presiding  justice 
has  stated  that  he  was  satisfied  that,  on  the  evidence,  this  spark  ar- 
rester was  the  best  one  known  for  the  purpose,  and  so  found  it  to  be 
suitable,  and  that  the  furnace  and  chimney  were  managed  with  all 
the  precaution  practicable  for  the  business.  Under  the  statutes  above 
referred  to,  which  apply  to  this  case,  we  are  of  opinion  that  there  is 
enough  to  show  that  the  legislature  intended  the  license  to  cover  the 
whole  question,  and  to  authorize  the  doing  of  the  business  with  rea- 
sonable care.  We  are  also  of  the  opinion  that  the  finding  of  the 
single  justice  shows  that  the  business  was  conducted  with  such  care. 
Assuming  that  there  was  a  proper  license,  w-e  are  therefore  of  opin- 
ion that  the  plaintiff  is  not  entitled  to  an  injunction,  but  is  only  en- 
titled to  recover  the  damages  which  have  been  assessed.  Decree  ac- 
cordingly. 


BRANAHAN  v.  HOTEL  CO. 
(Supreme  Court  of  Ohio,  1883.    39  Ohio  St.  333,  48  Am.  Rep.  457.) 

The  Cincinnati  Hotel  Company  had  obtained  a  judgment  in  the 
District  Court  against  Branahan  and  others,  owners  and  drivers  of 
hackney  coaches,  perpetually  enjoining  them  from  using  the  street 
in  front  of  the  plaintiff's  property  as  a  hackney  coach  stand.  It  ap- 
peared that  this  use  of  the  street  was  under  the  authority  of  a  city  ^ 
ordinance.  The  defendants  move  to  file  a  petition  in  error  to  the 
District  Court. 

Johnson,  C.  j.  *  +  *  fhe  City  is  clothed  with  power  over  the 
streets,  and  is  charged  with  the  duty  of  keeping  them  open  for  public 
use  and  free  from  nuisance.    It  may  enlarge  these  general  public  uses 


436  TORTS  THROUGH  ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

without  infringing  the  rights  of  the  adjacent  owner,  but  where  addi- 
tional burdens  are  imposed  even  for  a  public  purpose,  which  materially 
impair  the  incidental  property  right  of  the  lot  owner,  equity  will  en- 
join, until  compensation  is  made.  Railway  v.  Lawrence,  38  Ohio  St. 
41,  43  Am.  Rep.  419;  Street  Railway  v.  Cumminsville,  14  Ohio  St. 
524;  Crawford  v.  Village  of  Delaware,  7  Ohio  St.  459.  This  ordi- 
nance granted  a  permanent  use  of  the  street  for  mere  private  uses. 
As  well  might  the  city  authorize  permanent  booths  or  structures  for 
the  use  of  dealers  in  various  articles  of  trade.  Having  no  rent  to  pay, 
the  occupants  could  accommodate  the  public  at  better  rates. 

The  supervision  and  control  of  the  public  highways  of  a  city  is  a 
public  trust,  and  while  additional  uses  may  be  imposed,  not  subversive 
of,  or  impairing  the  original  use,  such  as  laying  down  gas  and  water 
mains;  yet  the  rights  of  the  public  to  use  it  as  a  street,  and  of  tha 
adjacent  lot  owner  to  enjoy  it  as  the  means  of  access  to  his  property, 
cannot  be  materially  impaired. 

The  city  has  the  right  to  regulate  hackney  coaches  (R.  S.  §  1692), 
and  also  the  right  to  appropriate  private  property  for  the  use  of  the 
corporation,  but  it  has  no  power  to  appropriate  the  easement  of  an 
adjacent  owner  to  a  mere  private  use.  This  permanent  occupancy  of 
the  streets  cutting  off  access  to  the  plaintiff's  store  rooms,  for  the 
convenience  and  benefit  of  a  private  business,  cannot  be  justified  on 
the  plea  that  the  public  who  use  hacks  are  accommodated  more  readily 
and  on  better  terms. 

The  same  would,  doubtless,  be  the  case  with  other  kinds  of  business 
located  in  the  streets.  The  finding  of  the  court  is,  that  the  use  com- 
plained of  deprives  the  owner  of  all  access  to  his  premises. 

Even  if,  as  is  suggested,  this  is  in  the  nature  of  a  public  use,  like 
a  market,  the  city  could  not  appropriate  it  to  such  use  without  pro- 
ceeding according  to  law  as  settled  in  the  cases  already  cited.^° 

Motion  overruled. 

10  A  portion  of  the  case  Is  omitted. 

Compare  Bacon  v.  Boston  (1S91)  154  INIass.  100,  28  N.  E.  9,  and  the  remark 
of  C.  Allen,  J.:  "The  general  rule  is  that  the  legislature  may  authorize 
small  nuisances  without  compensation,  but  not  great  ones.  Sawyer  v.  Davis, 
136  IMass.  239,  243  [49  Am.  Rep.  27].  But  it  will  not  be  assumed  that  the 
legislature  intended  to  authorize  a  nuisance  unless  this  is  the  necessary 
result  of  the  powers  granted." 

And  see  29  Cyc.  1196  et  seq. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  437 


III.  Trover  and  Conversion  " 

(A)  Nature  of  the  Tort 

(a)  Trover  and  Conversion  Distinguished  from  Other  Torts. 

PUT  and  HARDY  v.  RAWSTERNE  et  al. 

(Court  of  King's  Bench,  1GS2.     Sir  T.  Eaym.  472,  S3  Reprint,  246.) 

Trover  of  divers  goods.  The  defendant  pleads  an  action  of  trespass 
vi  &  armis  brought  against  them  formerly,  for  taking  and  disposing  of 
the  same  goods ;  and  upon  not  guilty  pleaded,  a  verdict  for  the  de- 
fendants:  judgment  si  actio.  The  plaintiff  demurs;  and  adjudged 
for  the  plaintiff  in  this  action  of  trover,  because  trover  and  trespass 
are  actions  sometimes  of  a  different  nature;  for  trover  will  some- 
times lie  where  trespass  vi  &  armis  will  not  lie ;  as  if  a  man  hath 
my  goods  by  my  delivery  to  keep  for  me,  and  I  afterwards  demand 
them,  and  he  refuses  to  deliver  them,  I  may  have  an  action  of  trover, 
but  not  trespass  vi  &  armis  because  here  was  no  tortious  taking:  and 
sometimes  the  case  may  be  such,  that  either  the  one  or  the  other  will 

11 A  Declaration  in  Trover  and  Conversion,  in  tlie  Case  of  Bancks  v. 
Jeans  (1735),  the  Pleader's  Assistant  (1795)  509: 

"To  wit.  Robert  Bancks,  Esq.,  complains  of  Thomas  Jeans,  in  custody, 
&c,  for  this,  that  whereas  the  said  Robert  upon  the  first  day  of  May  in  the 
year  of  our  Lord  one  thousand  seven  hundred  and  thirty-five,  at  Basiustoke, 
in  the  county  of  Southampton,  was  possessed  of  divers  goods  and  chattels, 
that  is  to  say,  of  thirty  ton  weight  of  paving  stones,  thirty  ton  weight  of 
other  stone  for  building,  three  thousand  bricks,  and  ten  cart  loads  of  timber, 
of  the  value  of  sixty  pounds,  as  of  his  own  proper  goods  and  chattels,  and  be- 
ing so  possessed  thereof,  the  said  Robert  afterwards,  that  is  to  say,  en  the 
same  day  and  year  abovesaid,  at  Basinstoke  aforesaid,  casually  lost  the  said 
goods  and  chattels  out  of  his  hands  and  possession,  which  said  goods  and 
chattels  afterwards,  to  wit,  on  the  same  day  and  year  abovementioned,  at 
Basinstoke  aforesaid,  came  to  the  hands  and  possession  of  the  said  Thomas 
by  finding  the  same,  yet  the  said  Thomas  well  knowing  the  said  goods  and 
chattels  to  be  the  proper  goods  of  him  the  said  Robert,  and  of  right  to  belong 
and  appertain  to  him,  but  devising  and  fraudulently  intending,  craftilly 
and  subtilly  to  deceive  and  defraud  the  said  Robert  of  the  said  goods  and 
chattels,  hath  not  delivered  the  said  goods  and  chattels,  nor  any  of  them 
to  the  said  Robert  (although  often  requested  so  to  do)  but  afterwards,  that 
is  to  say,  upon  the  second  day  of  May.  in  the  year  aforesaid,  at  Basingstoke 
aforesaid,  converted  and  disposed  of  the  said  goods  and  chattels  to  his  own 
use,  to  the  damage  of  the  said  Robert  sixty  pounds,  and  thereupon  he  brings 
his  suit." 

See  also  the  form  of  the  declaration  in  Stephen  on  Pleading  (Williston's 
Ed.  1895)  44,  and  in  Whittier's  Cases  on  Pleading,  195. 

Under  the  Judicature  Acts  (1875),  the  following  is  a  sufficient  statement 
of  claim  in  Trover  and  Conversion : 

"The  plaintifl;  has  suffered  damage  by  the  defendant  wrongfully  depriving 
him  of  a  gold  watch  belonging  to  the  plaintiff,  and  converting  the  same  to  his 
own  use  after  a  demand  from  the  plaintiff  for  its  delivery.  The  plaintilf 
claims  £40.  damages."     Cunningham  and  Mattinson,  Precedents  509  (1SS4). 

For  the  different  uses  of  the  term  "Consersion"'  see  Black's  Dictionary, 
"Conversion  in  Law"  and  "Conversion  in  Equity,"  and  9  Cyc.  824. 


438  TORTS  THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

lie;  as  where  there  is  a  tortious  taking  away  of  goods,  and  detaining 
them,  the  party  may  have  either  trover  or  trespass,  and  in  such  case 
judgment  in  one  action  is  a  bar  in  the  other.  And  the  rule  for  this 
purpose  is,  that  wheresoever  the  same  evidence  will  maintain  both  the 
actions,  there  the  recover}'-  or  judgment  in  one  may  be  pleaded  in  bar 
of  the  other;  but  otherwise  not;  and  so  this  judgment  will  not  clash 
with  Ferrer's  Case,^-  which  is  good  in  law;  for  here  it  is  to  be  pre- 
sumed that  the  plaintiffs  in  the  first  action  had  mistaken  their  action; 
for  that  they  had  brought  a  trespass  vi  &  armis,  whereas  they  had  no 
evidence  to  prove  a  wrongful  taking,  but  only  a  demand  and  denial, 
and  therefore  the  verdict  passed  against  them  in  that  action,  and  so 
were  forced  to  begin  in  this  new  action  of  trover.  This  judgment  was 
given  positively  by  Pkmberton,  Jonjes  and  myself,  Dolbj^n  hsesitante. 


LACON  V.  BARNARD,  Attorney. 
(Court  of  Common  Pleas,  20  Jac.  I.    Cro.  Car.  35,  79  Reprint,  635.) 

Trover  and  conversion  of  one  hundred  sheep,  shewing  that  the  plain- 
tiff upon  the  twenty-fifth  day  of  March,  19  Jac.  I,  was  possessed  of 
those  goods  and  lost  them,  and  that  upon  the  last  day  of  April  they 
came  to  the  defendant's  hands,  who  the  same  day  sold  and  converted 
them  to  his  proper  use. 

The  defendant  for  eleven  of  them  pleaded  not  guilty;  and  as  to  the 
eighty-nine,  the  residue,  he  pleaded,  that  the  plaintiff  at  another  time, 
viz.  on  the  eighteenth  day  of  September,  19  Jac.  I,  prosecuted  an  orig- 
inal writ  out  of  the  Chancery,  returnable  in  this  Court,  against  the 
defendant  and  one  Brian  Smith,  quare  ceperunt  et  abduxerunt  100 
oves;  and  thereto  they  appeared,  and  the  plaintiff  counted  against 
them  of  their  taking  of  a  hundred  sheep  upon  the  fourteenth  day  of 
April,  19  Jac.  I ;  and  thereto  they  pleaded  not  guilty  for  the  eleven 
sheep,  and  for  the  eighty-nine  residue  they  pleaded  a  recovery  in  debt 
by  the  defendant  against  Edward  Hatcliff  of  a  debt  of  sixty  pounds ; 
and  that  the  said  Edward  Hatcliff  was  then  possessed  of  the  said  eighty- 
nine  sheep,  and  that  by  virtue  of  a  fieri  facias  those  goods  were  sold 
to  him,  whereupon  he  took  them  into  his  custody.  The  plaintiff'  there- 
to replied,  and  took  issue,  and  found  for  him,  and  damages  assessed 
to  twopence:  and  thereupon  the  plaintiff  had  judgment  of  the  said 
twopence  damages,  and  had  six  pounds  for  costs ;  and  avers,  that  the 
said  taking  and  driving,  for  which  the  recovery  in  trespass  was  had, 
and  the  conversion  of  the  said  eighty-nine  sheep  in  this  action  be  all 
one,  and  that  the  said  judgment  is  yet  in  force. 

To  this  plea  the  plaintiff  replies,  that  true  it  is  he  brought  such  an 
action,  and  recovered  the  twopence  for  the  taking  and  driving  of  the 

12  Ferrer's  Case  (1509)  6  Co.  7a.  And  see  Ferrers  v.  Arden  (159S)  Cro. 
Eliz.  008,  78  Reprint,  906. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  439 

said  eighty-nine  sheep,  and  six  pounds  for  costs ;  but  he  farther  saith, 
that  the  twopence  damages  was  not  assessed  for  the  value  of  the  said 
sheep  and  the  conversion  of  them,  and  that  the  said  defendant,  at  the 
day  and  year  in  the  bill,  sold  the  said  eighty-nine  sheep  and  converted 
them  to  his  own  use :  the  which  conversion  is  the  same  conversion 
whereof  he  now  complaineth ;  and  traverseth,  that  the  said  taking  and 
driving  in  the  said  action,  whereupon  the  judgment  was  given,  is  the 
same  trespass  as  to  the  conversion  of  those  goods  whereof  the  plain- 
tiff now  declareth. 

Upon  this  replication  the  defendant  demurred  generally :  and  it 
was  now  argued  at  the  Bar  by  Serjeant  Crew,  for  the  defendant,  and 
by  Serjeant  Henden,  for  the  plaintiff;  and  after  the  said  arguments 
at  the  Bar,  it  was  resolved 

By  HuTTON,  Harvey,  and  myself,  that  this  replication  is  good,  and 
that  the  plaintiff  ought  to  recover;  for  the  damages  of  twopence  given 
for  the  eighty-nine  sheep  being  so  small,  is  in  itself  an  implication  (and 
the  Court  shall  so  intend  it)  that  it  was  given  only  for  the  taking  and 
driving  of  them,  and  that  the  plaintiff  had  them  again,  and  not  in  lieu 
of  the  value  of  them;  for  if  it  should  be  given  for  the  value  of  them, 
then  the  plaintiff  should  thereby  lose  the  property  in  them  and  have 
nothing  for  his  sheep  but  twopence,  and  the  defendant  should  have 
the  sheep :  but  the  law  will  rather  intend  (and  so  it  may  be  averred) 
that  those  damages  were  given  only  for  the  taking  and  driving,  and 
that  the  plaintiff  had  them  again,  and  afterwards  lost  them,  and  that 
the  defendant  found  and  after  converted  them,  &c. :  and  this  demur- 
rer is  a  confession  that  he  converted  them  after  the  said  taking  and 
driving;  for  the  action  of  trespass  is  supposed  to  be  upon  the  14th 
April,  19  Jac.  I,  and  the  trover  and  conversion  in  this  action  is  sup- 
posed to  be  upon  the  30th  April,  19  Jac.  I,  which  well  stands  with  the 
former  action ;  for  the  defendant  may  take  and  chase  them  one  day, 
and  the  plaintiff  recover  damages  for  the  chasing,  and  after  lose  them, 
&c.  And  this  first  action  is  brought  for  the  first  taking  and  chasing, 
and  the  second  for  the  conversion,  so  both  may  stand  together,  which 
is  now  confessed  by  the  demurrer,  and  that  the  damages  were  given 
for  the  first  taking  and  driving  and  not  for  the  conversion ;  therefore 
they  conceived  the  plaintiff  should  recover. 

But  Yelverton  held,  because  the  action  of  trespass  is  cepit  et  ab- 
duxit,  therefore  it  includes  that  the  defendant  had  them,  and  ousted 
the  plaintiff  of  the  possession :  and  although  the  damages  be  small,  it 
shall  be  intended  to  be  given  for  the  sheep ;  and  if  so,  then  he  cannot 
have  an  action  for  converting  them  afterward. 

But  judgment  was  given  for  the  plaintiff. 


440  TORTS  THROUGH  ACTS  OF   ABSOLUTE  LIABILITY  (Part  1 

AMERICAN  UNION  TELEGRAPH  CO.  v.  MIDDLETON. 

(Court  of  Appeals  of  New  York,  ISSO.     SO  N.  Y.  408.) 

Miller,  J.  This  action  was  brought  to  recover  damages  for  wrong- 
fully and  maliciously  cutting  down,  and  unlawfully  carrying  away  and 
converting  twenty-three  telegraph  poles,  wires,  and  insulators  attached 
thereto,  located  in  the  State  of  New  Jersey,  and  forming  a  part  of  a 
continuous  line  of  telegraph  in  operation  in  that  State.  An  order  of 
arrest  was  granted,  the  defendant  held  to  bail,  and  a  motion  to  vacate 
the  order  was  denied.  The  defendant  appealed  to  the  General  Term, 
where  the  order  was  affirmed  and  an  appeal  was  taken  to  this  court. 

The  question  presented  is  whether  an  order  of  arrest  can  be  law- 
fully granted  in  such  a  case.  The  telegraph  poles,  with  the  wires 
and  attachments  thereto,  which,  it  is  alleged,  were  cut  down  by  the 
defendant,  were  affixed  to  the  soil  of  a  highway,  and  constituted  a 
part  of  the  freehold.  The  Electric  Tel.  Co.  v.  Overseers,  24  L.  J.  (N. 
S.)  146.  As  they  could  not  be  cut  down  without  an  entry  on  the  realty, 
and  this  constitutes  a  material  part  of  the  damages,  the  only  action 
which  can  properly  be  brought  is  an  action  of  trespass  quare  clausum 
f regit.  This  is  clearly  manifest ;  and  as  such  action  is  local  in  its 
character,  by  the  statute  as  well  as  by  the  common-law,  it  will  not  lie 
in  this  State,  where  the  land  is  located  in  another  State.  Watts' 
Adm'rs  v.  Kinney,  23  Wend.  484.  In  the  case  last  cited  it  was  held 
that  although  the  courts  will  entertain  actions  which  are  in  their  nature 
transitory,  notwithstanding  they  arise  abroad,  actions  for  trespass  quare 
clausum  f regit,  ejectment,  etc.,  where  the  land  lies  in  a  foreign  coun- 
try, cannot  be  tried  here. 

It  is  claimed  that  the  damage  to  the  real  estate  is  not  the  cause  of 
action ;  and  as  the  tortious  acts  were  committed  upon  the  highway 
where  the  defendant  had  a  right  to  be,  there  could  be  no  trespass  on 
the  close.  The  answer  to  this  position  is  that  the  plaintiff  had  af- 
fixed their  poles  to  the  realty,  and  the  cutting  away  of  the  same  was 
a  trespass  for  which  damages  could  only  be  recovered  by  an  action 
quare  clausum  fregit. 

It  is  also  insisted  that  the  gravamen  of  the  complaint  was  for  carry- 
ing away  and  converting  the  poles  which  were  severed,  and  were  per- 
sonal property  after  the  cutting,  even  if  they  were  a  part  of  the  realty 
previously.  It  is  quite  obvious  that  the  cutting  of  the  poles  and  the 
removal  of  them  was  one  continuous  and  uninterrupted  transaction, 
inseparably  connected  together,  which  constituted  a  single  cause  of  ac- 
tion which  cannot  be  divided  into  two  actions,  one  for  the  cutting  and 
another  for  the  conversion.  The  one  was  a  part  of  the  other,  and  the 
conversion  so  coupled  with  the  cutting  that  they  were  the  same,  and 
both  of  them  are  thus  made  local.    Howe  v.  Willson,  1  Denio,  181. 

Conceding,  however,  that  the  poles  and  wires  could  have  been  made 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  441 

the  subject  of  a  conversion  after  they  had  been  severed  from  the  soil, 
we  think  that  the  affidavits  estabhsh  that  no  such  separate  conversion 
actually  took  place.  The  defendant  only  carried  them  from  the  place 
where  they  were  cut  and  from  the  highway  to  the  ditches  and  side 
fences  of  the  road,  and  left  them  there  or  placed  them  on  the  side 
fences  by  the  road-side.  There  was  no  assumption  of  possession,  no 
attempt  to  exercise  control,  or  to  convert  them  to  his  own  use.  But 
even  if  there  was,  the  only  damages  which  could  be  recovered  in  such 
a  case  would  be  the  actual  value  of  the  poles  and  wires,  which  would 
be  merely  nominal  when  compared  with  the  amount  of  damages  ($5,- 
000)  which  the  plaintiff  claims  to  recover,  and  for  which  sum  the  de- 
fendant was  held  to  bail  in  this  action.  It  is  very  evident  from  the 
plaintiff's  affidavits  that  there  was  no  legal  conversion,  and  that  it 
could  not  take  place  without  a  removal  of  the  poles  and  wires  for  the 
purpose  of  taking  them  away  from  the  plaintiff,  or  by  the  exercise  of 
some  dominion  over  them  by  the  defendant  for  the  benefit  of  himself 
or  of  some  other  person.  The  mere  act  of  removal,  of  itself,  inde- 
pendent of  any  claim  over  them  in  favor  of  the  defendant,  or  any  one 
else,  does  not  am.ount  to  the  conversion  of  the  poles,  wires  and  insula- 
tors :   Addison  on  Torts  (3d  Ed.),  309.     *     *     * 

It  follows  that  the  order  of  the  Special  and  General  Terms  must  be 
reversed.     *     *     *  is 


WILLIAMS  V.  GESSE. 

(Court  of  Common  Pleas,  18.37.    3  Bing.  [N.  C]  849,  132  Reprint,  637, 

43  R.  R.  822.)  i* 

Trover  for  a  coat  and  pantaloons.  Plea,  not  guilty.  The  defendant 
kept  a  public  house  at  Oxford,  frequented  by  farmers.  The  plain- 
tiff's clothes,  packed  in  a  box,  were  deposited  in  the  defendant's 
kitchen,  behind  the  settle,  by  a  person  who  said  the  box  was  to  stay 
till  called  for.  The  box  was  never  seen  again  by  the  plaintiff,  but 
when  he  enquired  for  it,  the  defendant  said,  "I  suppose  it's  behind 
the  settle." 

Verdict  for  the  plaintiff,  with  leave  for  the  defendant  to  move  to 
enter  a  nonsuit  instead,  on  the  ground  that  there  was  no  evidence  of 
any  conversion. 

13  Part  of  the   opinion  is  omitted. 

Compare:  Radway  v.  Duffy  (1903)  79  App.  Div.  116,  SO  N.  T.  Supp.  334: 
(D.  entered  without  right  upon  the  laud  of  P.,  and  dug  up  and  carried 
away  6,000  cubic  yards  of  earth,  and  used  it  in  grading  a  public  street,  for 
which  D.  had  a  contract.) 

McGonigle  v.  Atchison  (1885)  33  Kan.  726,  7  Pac.  550:  (P.  sued  to  recover 
for  200,000  bushels  of  sand  dug  out  of  his  land  in  Missouri  by  D.,  and  by 
him  taken  into  Kansas  and  there  converted  to  his  own  use.) 

14  For  the  report  of  this  case  at  nisi  prius,  see  Williams  v.  Gessey  (1837) 
7  Car.  &  P.  777. 


442  TORTS  THROUGH   ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

Ludlow,  Scrjt.,  having  obtained  a  rule  nisi  accordingly, 

V.  Lee  appeared  for  the  plaintiff;  but  upon  reading  the  learned 
Judge's  report,  as  above. 

The  rule  was  made  absolute. 

In  a  similar  action  by  a  sister  of  the  plaintiff  against  the  same  de- 
fendant, it  was  proved  that  the  defendant  received  parcels  for  car- 
riers; that  the  parcels  were  accustomed  to  be  placed  behind  the  set- 
tle; and  when  application  was  made  for  the  parcel  in  question,  the 
defendant's  wife  said,  "My  husband  has  sent  it,  no  doubt,  by  Croft, 
the  carrier:  he  has  a  bad  memory;  it's  a  pity  you  did  not  speak  to 
me."    Verdict  for  the  defendant. 

V.  Lee,  in  Easter  Term,  moved  for  a  new  trial,  on  the  ground  that 
the  language  of  the  wife  showed  that  the  defendant  had  interfered 
by  giving  directions,  which  would  amount  to  a  conversion. 

Sed  PER  Curiam:  What  was  there  to  go  to  the  jury?  Was  there 
anything  but  negligence?    That  will  not  support  the  action.^^ 

Rule  refused. 

15  Accord:  Mulgrave  v.  Ogden  (1591),  Cro.  Eliz.  219,  78  Reprint  475: 
(Action  sur  trover  of  twenty  barrels  of  butter;  and  counts  that  be  tarn 
negligenter  custodivit  that  they  became  of  little  value.  Upon  this  it  was 
demurred,  and  held  by  all  the  justices,  that  no  action  upon  the  case  lieth 
in  this  case ;  "for  no  law  compelleth  him  that  finds  a  thing  to  keep  it  safely ; 
as  if  a  man  finds  a  garment,  and  suffers  it  to  be  moth-eaten ;  or  if  one  finds 
a  horse,  and  giveth  it  no  sustenance:  but  if  a  man  finds  a  thing  and  useth 
it,  he  is  answerable,  for  it  is  conversion:  so  if  he  of  purpose  misuseth  it; 
as  if  one  finds  paper,  and  puts  it  into  the  water,  &c.  but  for  negligent  keep- 
ing no  law  punisheth  him.")  Owen  v.  Lewyn  (1672)  1  Ventr.  22?j,  86  Re- 
print, 150;  Ross  V.  Johnson  (1772)  5  Burr.  2S25;  Bowlin  v.  Nye  (1852)  10 
Gush.  (Mass.)  416;  Wamsley  v.  Atlas  S.  S.  Co.  (1901)  168  N.  Y.  533,  61  N.  E. 
896,  85  Am.  St.  Rep.  699. 

Compare  Central  Railroad  &  Banking  Co.  v.  Lampley  (1884)  76  Ala.  357,  52 
Am.  Rep.  334:  (Action  against  a  railroad  company  to  recover  damages  for 
the  alleged  conversion  of  money  which  the  plaintiff  sent  in  a  registered 
letter  addressed  to  L.,  at  a  station  on  the  defendant's  line.  The  defendant 
was  engaged  in  transporting  the  mail,  and  in  this  capacity  received  the 
letter'  in  question.  The  letter  never  reached  its  address.  The  complaint 
contained  only  one  count,  in  trover  for  conversion  of  the  money,  not  stating 
any  other  facts.  Plea,  not  guilty.  The  trial  court  charged  that  "it  is  no 
answer  to  this  complaint  that  the  money  was  lost  through  the  defendant's 
want  of  proper  care."  Said  Clopton,  J.,  delivering  tlie  opinion  of  the  re- 
viewing court:  "The  essential  element  of  a  conversion  is  malfeasance. 
The  action  will  lie  against  a  common  carrier,  for  a  misdelivery,  or  an  ap- 
propriation of  the  property  to  his  own  use,  or  for  any  act  of  dominion  or 
ownership  antagonistic  to,  and  inconsistent  with  tlie  plaintiff's  claim  or 
right.  But  trover  will  not  lie  against  a  carrier,  for  goods  lost  by  accident 
or  stolen,  or  for  non-delivery,  unless  there  be  a  refusal  to  deliver  while  having 
possession ;  nor  for  any  act  or  omission,  which  amounts  to  negligence  merely, 
and  not  to  an  actual  wrong.  Packard  v.  (ietman,  4  "Wend.  [N.  Y.]  613,  21 
Am.  Dec.  166;  Magnin  v.  I>insmore,  70  N.  Y.  410,  26  Am.  Rep.  608.  So  also 
a  bailee  is  not  liable  for  a  conver.sion,  who  deals  negligently  with  goods 
intrusted  to  him.  Heald  v.  Carey  (1852)  11  C.  B.  977.  On  like  principles, 
trover  will  not  lie  against  a  mail-contractor,  for  money  lost  by  negligence, 
or  stolen,  unless  the  theft  was  authorized  by  him.  We  do  not  understand,  as 
is  insisted  on,  that  the  evidence  shows,  or  tends  to  show,  that  the  defendant 
is  guilty  of  any  wrongful  disposition,  or  appropriation,  or  withholding  of  tlie 
letter  containing  the  money,   other  than   a  failure  to  deliver  on   the  com- 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  443 

OLIVAXT  V.  BERING. 
(Court  of  King's  Bench,  1743.    1  Wils.  23,  95  Reprint,  471.) 

In  trover  for  some  pictures  it  was  moved,  that  plaintiff  should  be 
obliged  to  take  the  pictures  and  costs  upon  an  aftidavit  that  they  are  all 
the  goods  that  the  defendant  has  of  the  plaintiff,  and  that  not  denied. 

But  PER  Cur:  This  action  is  for  damages;  and  you  cannot  oblige 
the  plaintiff  to  accept  the  thing  itself,^^ 


ALLEN  V.  FOX. 

(Court  of  Appeals  of  New  Yorli,  1873.     51  N.  T.  562,  10  Am.  Rep.  &41.) 

This  action  was  brought  to  recover  the  possession  of  a  horse.  The 
horse  had  been  taken  in  the  action,  and  delivered  to  the  plaintiff  and 
retained  by  him  to  the  time  of  the  trial.  There  was  conflicting  evi- 
dence as  to  the  title  of  the  horse,  but  the  jury  found  the  title  to  be 

mencement  of  the  suit.  It  appears  that  the  letter  was  stolen  by  some  one; 
but  whether  by  a  third  person,  or  a  servant  of  the  defendant,  the  defendant 
is  not  liable  as  for  a  conversion.  In  Conner  &  Johnson  v.  Allen  &  Reynolds, 
33  Ala.  515.  it  was  said:  'Trover  is  one  of  the  actions,  the  boundaries  of 
which  are  distinctly  marked,  and  carefully  preserved  by  the  Code.  A  con- 
version is  now,  as  it  has  ever  been,  the  gist  of  that  action,  and  without 
proof  of  it  the  plaintiff  can  not  recover,  whatever  else  he  may  prove,  or 
whatever  may  be  his  right  of  recovery  in  another  form  of  action.'  On  the 
facts  shown  by  the  record,  the  defendant  is  not  liable  as  for  a  conversion 
of  the  money.    Reversed  and  remanded. "j 

See,  on  the  general  bearings  of  this  question,  the  article  by  Professor 
Emliu  MeClain  in  14  Columbia  Law  Rev.  632,  639  (1914). 

16  "Note:  In  Buxton  and  Gabell,  Trin.  9  G.  I,  trover  for  a  ring;  and 
Pas.  9  or  10  G.  II,  in  trover  for  goods,  this  Court  refused  the  like  motion." 

See  also  Harding  v.  Wilkin  (1754)  Sayer,  120  (motion  that  upon  bringing 
into  court  a  gold  watch  and  a  diamond  ring,  for  the  conversion  of  which 
the  action  was  brought,  the  proceedings  in  trover  might  be  stayed).  But  see 
Fisher  v.  Prince  (1762)  3  Burr.  1364,  where  Lord  Mansfield  aud  Mr.  Justice 
Wilmot  both  concurred  in  the  follo\\'ing  distinction :  "That  where  trover 
is  brought  for  a  specific  chattel,  of  an  ascertained  quantity  and  quality, 
and  unattended  with  any  circumstances  that  can  enhance  the  damages 
above  the  real  value,  but  that  its  real  and  ascertained  Aalue  must  be  the 
sole  measure  of  the  damages,  there  the  si>ecific  thing  demanded  may  be 
brought  into  court;  (and  Mr.  Justice  Wilmot  said  this  was  the  more  rea- 
sonable, as  this  action  of  trover  comes  in  the  place  of  the  old  action  of 
detinue :)  where  there  is  an  uncertainty  either  as  to  the  quantity  or  quality 
of  the  thing  demanded,  or  that  there  is  any  tort  accompanying  it  that 
may  enhance  the  damages  above  the  real  value  of  the  thing,  and  there  is 
no  rule  whereby  to  estimate  the  additional  value,  there  it  shall  not  be 
brought  in."  The  rule  thus  announced  has  been  followed  in  England. 
Pickering  v.  Truste  (1796)  7  T.  R.  531 ;  Tucker  v.  Wright  (1826)  3  Ring.  601 ; 
Gibson  v.  Humphrey  (1S33)  1  Cr.  &  M.  544.  And  see  27  Halsbury's  Laws 
of  Eng.  911,  912  (1913). 

On  the  American  rule,  see  Carpenter  v.  Manhattan  Life  Ins.  Co.  (1880) 
22  Hun  (N.  Y.)  47  ("A  i>arty  whose  goods  are  converted,  cannot  be  forced  to 
receive  them  back");  Livermore  v.  Northrup  (1870)  44  N.  Y.  107;  Railroad 
Co.  V.  O'Donnell  (1S92)  49  Ohio  St.  489,  32  N.  E.  476;  Cernahan  v.  Chrisler 
(1900)  107  Wis.  045,  83  N.  W.  778 ;  38  Cyc.  2102 ;  47  Cent.  Dig.  "Trover  aud 
Conversion,"  §  277;    Key-No.  "Trover  and  Conversion,"  §  58. 


444  TORTS  THROUGH  ACTS   OP   ABSOLUTE  LIABILITY  (Part  1 

in  the  defendant,  and  assessed  its  value  at  $175,  and  damages  for 
its  detention  by  the  plaintiff  at  ^7S.  The  defendant,  for  the  purpose 
of  proving  his  damages  for  the  detention,  gave  evidence  of  the  value 
of  the  use  of  the  horse.  The  plaintiff'  objected  to  this  evidence,  claim- 
ing that  the  value  of  the  use  was  not  the  proper  measure  or  rule  of 
damage.  This  objection  being  overruled  raised  the  only  question  con- 
sidered upon  this  appeal. 

Earl,  c.  *  *  *  In  actions  of  trover,  in  cases  where  there  has 
been  no  increase  in  the  value  of  the  property  converted  intermediate 
the  conversion  and  the  time  of  the  trial,  the  measure  of  damages  is 
the  value  at  the  time  of  the  conversion,  and  interest  thereon  to  the 
time  of  the  trial,  and  it  would  have  to  be  a  very  special  case  that 
would  authorize  greater  damages.  The  claim  here  is,  that  the  same 
rule  applies  in  an  action  of  replevin,  and  I  shall  endeavor  to  show 
that  it  does  not  apply  in  all  cases,  and  that  this  case  is  one  of  a  class 
to  which  it  cannot  be  applied. 

The  very  nature  of  the  two  kinds  of  action  shows  that  the  same 
rule  of  damages  should  not  be  inflexibly  applied  in  each. 

In  the  action  of  trover,  the  plaintiff  does  not  seek  to  recover  his 
property,  but  its  value  as  a  substitute  for  the  property.  He  abandons 
the  property  to  the  defendant,  preferring  to  pursue  him  for  its  value. 
He  makes  a  kind  of  forced  sale  of  it,  without  any  expectation  or 
intention  of  retaking  it.  Hence,  in  such  cases,  he  can  be  expected 
at  once  to  go  into  the  market  and  supply  himself  with  the  same  prop- 
erty at  its  market  value  if  he  desires  it.  But  in  the  action  of  replevin, 
the  plaintiff  seeks  to  recover  the  property  and  is,  in  all  stages  of  the 
case  to  final  judgment,  in  pursuit  of  that,  and  not  its  value.  And 
during  the  whole  time  the  defendant  may  have  the  possession  and  the 
use  (if  it  can  be  used)  of  his  property.  At  the  termination  of  the 
suit  it  is  not  optional  with  him  to  take  the  property  or  its  value.  If 
the  defendant  has  the  property,  and  will  permit  him  to  take  it,  he  is 
obliged  to  take  it.  Code,  §  277;  Dwight  v.  Enos,  9  N.  Y.  470; 
Fitzhugh  V.  Wiman,  9  N.  Y.  559.  Hence  the  plaintiff  cannot  always 
be  expected  or  required,  in  such  cases,  to  go  into  the  market  and 
supply  himself  with  the  same  kind  of  property  at  its  market  value. 
Suppose  the  controversy  be  about  a  canal  boat  or  a  carriage,  or  an 
expensive  machine.  If  the  plaintiff  should  go  into  market  and  buy 
another,  at  the  end  of  the  litigation,  in  case  of  success,  he  would  have 
on  hand  duplicates  of  the  article,  and  would  thus  be  subjected  to 
further  loss  and  inconvenience.  These  observations  are  made  simply 
to  show  that  there  is  nothing  in  the  nature  of  the  two  actions  requir- 
ing the  application  of  the  same  rule  of  damages.     *     *     * 

In  the  action  of  replevin,  under  the  Code,  the  jury  are  required  to 
assess  the  value  of  the  property,  and  damages  for  its  detention.  The 
value  here  intended  is  the  value  at  the  time  of  the  trial.  In  case  the 
prevailing  party  can  obtain  a  delivery  of  the  property,  he  must  take 
it  as  it  then  is;    if  he  cannot  obtain  such  delivery,  then  the  value  is 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  445 

intended  as  a  substitute  and  precise  equivalent  of  the  property.  The 
damages  for  detention  are  the  same,  whether  the  party  recover  the 
property  or  its  value.     *     *     * 

Suppose  the  plaintiff  had  taken  defendant's  boat,  worth  $2,000,  and 
kept  it  a  whole  year  before  it  was  ordered,  as  the  result  of  the  action, 
to  be  returned  to  the  defendant,  would  the  interest  be  a  fair  com- 
pensation to  the  defendant  for  the  loss  of  the  use  of  his  boat?  In- 
stead of  a  boat,  suppose  it  had  been  a  carriage,  worth  $1,000,  would 
the  interest  be  a  sufficient  allowance  for  the  use  of  the  carriage  a 
whole  year?  The  same  supposition  may  be  made  as  to  any  article 
of  personal  property  having  a  usable  value.  There  v/ould  be  very 
few  cases  where  the  interest  would  give  the  owner  a  fair  or  adequate 
indemnity,  and  thus  two  of  the  fundamental  rules  of  damages  would 
be  violated :  The  owner  would  not  be  completely  or  fully  indemnified 
for  the  loss  of  the  use  of  his  property,  and  the  wrong-doer  who  had 
had  the  use  of  it  would  make  a  profit  out  of  his  own  wrong,  which  the 
law  does  not  tolerate. 

This  case  illustrates  the  injustice  of  the  rule  contended  for  by  the 
plaintiff  as  well  as  any.  The  jury  found  the  value  of  the  horse  to  be 
$175  and  the  value  of  the  use  to  be  $75  for  one  year  and  three  months. 
For  the  same  period  the  interest  would  have  been  $15.31,  and  if  that 
had  been  taken  as  the  measure  of  damages,  the  owner  would  have 
lost  about  sixty  dollars  and  the  wrong-doer  would  have  made  that 
much  profit  out  of  his  wrong.  A  rule  of  damage  which  works  out 
such  a  result,  cannot  have  a  basis  of  principle  or  justice  to  stand 
upon.     *     *     *  -"^^ 

It  follows  that  the  rule  of  damages  adopted  below  was  right,  and 
that  the  judgment  must  be  affirmed  with  costs. 


(b)    Subject- Matter  of  Trover  and   Conversion 
MACKINTOSH  v.  TROTTER  et  al. 

(Court  of  Exchequer,  1838.     3  Mees.  &  W.  184,  49  R.  R.  565.) 

Trover  for  fixtures,  furniture,  &c.  Plea,  that  the  goods  and  chat- 
tels in  the  declaration  mentioned  were  not,  nor  were  any  of  them,  the 
property  of  the  plaintiff.  At  the  trial,  it  appeared  that  the  action  was 
brought  by  the  plaintiff,  an  innkeeper  at  Liverpool,  to  recover  from 
the  defendants,  his  assignees  under  a  fiat  in  bankruptcy,  which  he 
alleged  to  be  void,  the  value  of  certain  tenant's  fixtures  and  house- 
hold furniture,  which  they,  as  his  assignees,  had  put  up  to  sale  by  auc- 
tion, together  with  the  lease  of  his  house  and  the  goodwill  of  his 

17  Tart  of  the  opinion,  discussing  and  limiting  Tw-inam  v.  Swart,  4  Lans. 
(N.  Y.)  2G3,  is  omitted. 


446  TORTS  THROUGH  ACTS   OF   ABSOLUTE  LIABILITY  (Part  1 

business.  The  fixtures  and  furniture  were  sold  in  one  lot,  for  £19. 
8s.  8d.,  and  it  was  proved  that  the  former  still  remained  affixed  to 
the  freehold,  not  having  been  removed  by  the  purchaser.  It  was  con- 
tended, for  the  defendants,  that  the  fixtures  were  not  recoverable  in 
trover.  The  learned  Judge  was  disposed  to  think  that  the  defendants, 
by  selling  them,  had,  as  between  themselves  and  the  plaintiffs,  treated 
them  as  goods  and  chattels:  he  however  desired  the  jury  to  assess 
the  value  of  the  fixtures  separately;  and  they  having  stated  their 
value  at  £55.,  a  verdict  passed  for  the  plaintiff  for  £79.  8s.  8d.,  leave 
being  reserved  to  the  defendants  to  move  to  reduce  the  damages  by 
the  sum  of  £55. 

In  Michaelmas  Term,  Cowling  obtained  a  rule  accordingly. 

Cresswell,  Wightman,  and  Addison  now  showed  cause:  These 
were  fixtures  which  the  plaintiff,  being  tenant,  might  have  removed; 
and  for  such  fixtures,  if  the  tenant  be  dispossessed  of  them  during  his 
term,  he  may  maintain  trover,  *  *  *  jf  trespass  was  maintainable 
for  the  wrongful  taking,  so  trover  would  lie  for  the  wrongful  conver- 
sion and  detention  of  them.  (Parke:,  B.  Would  trover  lie  for  a  crop 
of  standing  corn?  Your  argument  amounts  to  this,  that  the  plaintiff 
may  maintain  trover  for  preventing  him  from  exercising  his  right 
of  removal.) 

Alexander  and  Cowling,  in  support  of  the  rule,  were  stopped  by 
the  Court. 

Parke,  B.  Minshall  v.  Lloyd,  2  M.  &  W.  450,  is  a  direct  authority 
on  this  point.  I  gave  my  opinion  in  that  case,  not  on  my  mere  im- 
pression at  the  time,  but  after  much  consideration  of  this  point,  that 
the  principle  of  law  is,  that  whatsoever  is  planted  in  the  soil  belongs 
to  the  soil,  quicquid  plantatur  solo,  solo  cedit;  that  the  tenant  has  the 
right  to  remove  fixtures  of  this  nature  during  his  term,  or  during 
what  may,  for  this  purpose,  be  considered  as  an  excrescence  on  the 
term;  but  that  they  are  not  goods  and  chattels  at  all,  but  parcel  of 
the  freehold,  and  as  such  not  recoverable  in  trover.  That  case  is  a 
direct  authority,  so  far  as  my  opinion  and  that  of  my  brother  Alderson 
go;   and  I  think  it  was  a  correct  decision. 

BoLLAND  and  Gurnejy,  BB.,  concurred. 

Rule  absolute.^® 

18  Compare  Rogers  v.  Gilinger  (1S5S)  00  Pa.  185,  72  Am.  Dec.  G94,  where 
the  question  of  the  subject-matter  of  conversion  relates  to  fragments  of  a 
large  frame  building  blown  down  by  a  wind,  "leaving  the  foundation  and 
floors  nearly  entire,  but  breaking  the  superstructure,  so  that  its  materials 
could  not  be  replaced,  or  used  in  the  construction  of  a  similar  building." 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  447 

WOOD  V.  SMITH. 
(Court  of  King's  Bench,  1606.     Cro.  Jac.  129,  79  Reprint,  112.) 

Action  of  trover  of  divers  goods  (naming  them  particularly),  and 
converting  of  them.  The  defendant  pleaded  not  guilty;  and  it  v^^ai 
found  against  him,  and  damages  assessed  to  i40.  And  it  was  now 
moved  in  arrest  of  judgment, 

First,  the  action  is  brought  of  divers  things  by  an  administrator,  of 
goods  of  the  intestate's  found  and  converted ;  and  it  appears  that  par- 
cel of  those  goods  are  things  fixed  to  the  freehold,  and  as  parcel  there- 
of, for  which  this  action  lies  not,  for  the  declaration  is,  that  he  was 
possessed  de  duobus  articulis  vocat.  portal,  cum  suspensis  vocat. 
hinges,  et  de  uno  molendino  vocat.  an  hand-mill,  et  de  uno  plumbo 
vocat.  a  lead,  et  de  una  alveola  vocat.  a  washing-fat,  and  lost  them, 
&c.  which  things  appear  to  be  fixed  to  the  house,  and  are  as  parcel 
thereof,  and  are  not  accounted  as  goods ;  so  the  action  lies  not  for 
them;  for  the  portal  is  a  door  of  the  house,  and  the  hand-mill  and 
the  lead  (which  is  a  brewing  lead),  and  the  washing-fat  (which  is 
parcel  of  the  brewing  vessels),  are  always  fixed  things,  and  go  to  the 
heir  and  not  to  the  executor,  as  20  Hen.  VH  is. 

Sed  non  allocatur;  for  it  is  alleged  in  the  declaration,  that  he 
was  possessed  of  them  ut  de  bonis  propriis ;  and  it  may  be  that  those 
things  were  severed  from  the  freehold,  and  things  lying  by;  and  it 
shall  be  so  intended,  when  the  plaintiff  so  declares ;  and  the  contrary 
appears  not  to  the  Court  by  any  matters  shewn  to  them  by  the  de- 
fendant's plea.     *     *     * 

Adjudged  for  the  plaintiff'.^* 


GRYMES  v.  SHACK. 

(Court   of  King's  Bencli,    1610,     Cro.   Jac.  262,   79   Reprint,  226.) 

Action  of  trover  and  conversion  of  one  hundred  muskcats  and  sixty 
monkies.  The  defendant  pleads  not  guilty ;  and  it  was  found  against 
him :  and  it  was  moved  in  arrest  of  judgment,  that  an  action  lay  not, 
because  he  doth  not  shew  that  they  were  tame  or  reclaimed;  as  12 
Hen.  Vni  and  14  EHz.  Dyer,  for  a  hawk. 

Sed  non  allocatur;  for  they  are  merchandise,  and  valuable.  And 
so  it  is  of  an  action  for  a  parrot.  Wherefore  it  was  adjudged  for 
the  plaintiff. 

le  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point 


448  TORTS  THROUGH  ACTS  OF   ABSOLUTE  LIABILITY  (Parti 

KINASTON  V.  MOOR. 
(Court  of  Common  Pleas,  1627.     Cro.  Car.  89,  79  Reprint,  G7S.) 

Error  in  the  Exchequer  Chamber  of  a  judgment  in  the  King's  Bench 
in  action  of  trover  and  conversion  of  divers  goods,  and  among  other 
things  of  £190  in  pecuniis  numeratis.  Upon  not  guilty  pleaded,  a  ver- 
dict was  found  for  the  plaintiff,  and  entire  damages  given.  The  error 
was  assigned,  because  trover  and  conversion  cannot  be  of  money  out  of 
a  bag. 

But  all  the  Justices  and  Barons  agreed,  that  it  well  lies :  for  al- 
though it  was  alleged  that  money  lost  cannot  be  known;  and  so 
whether  it  was  the  plaintiff's  money,  whereof  the  trover  and  conver- 
sion was,  as  is  the  charge  of  this  action,  yet  the  Court  said,  it  being 
found  by  a  jury  that  he  converted  the  plaintiff's  money  (for  the  losing 
is  but  a  surmise  and  not  material,  for  the  defendant  may  take  it  in  the 
presence  of  the  plaintiff,  or  any  other  who  may  give  sufficient  evi- 
dence; and  although  he  take  it  as  a  trespass,  yet  the  other  may 
charge  him  in  an  action  upon  the  case  in  a  trover,  if  he  will),  the  plain- 
tiff had  good  cause  of  action.  Wherefore  the  judgment  before  well 
given  was  now  affinned. 

The  Justices  and  Barons  said,  that  this  action  lies  as  well  for  money 
out  of  a  bag,  as  of  corn  which  cannot  be  known. 


ORTON  v.  BUTLER. 

(Court  of  King's  Bench,  1822.     5  Barn.  &  Aid.  652,  106  Reprint,  1.329.) 

The  declaration  in  this  case  contained  three  counts ;  the  third  count 
was  as  follows : 

And,  whereas  also  the  said  defendant  afterwards,  to  wit,  on,  etc.  at,  etc. 
had  and  received  for  the  use  of  the  plaintiff,  a  certain  sum  of  money;  to 
wit,  the  sum  of  ten  sliillings  to  be  paid  by  the  defendant  to  the  plaintiff 
upon  request.  Yet  the  defendant,  not  regarding  his  duty  in  that  behalf,  but 
contriving,  etc.  hath  not,  although  often  requested,  paid  to  the  plaintiff 
the  last  mentioned  sum  of  money,  or  any  part  thereof,  but  hath  wholly 
omitted  so  to  do;  and  on  the  contrary  thereof,  afterwards,  to  wit,  on, 
etc.  at,  etc.  con^•erted  and  disposed  thereof  to  his  own  use. 

The  defendant  pleaded  to  the  first  two  counts  the  general  issue,  and 
demurred  specially  to  the  last  count. 

Abbott,  C.  J.  The  law  has  provided  certain  specific  forms  of  ac- 
tion for  particular  cases,  and  it  is  of  great  importance  that  they  should 
be  preserved;  we  ought  therefore  to  look  with  great  jealousy  to  an 
innovation  of  this  sort.  The  present  count  states,  that  the  defendant 
had  and  received  to  the  use  of  the  plaintiff,  a  certain  sum  of  money, 
to  wit,  ten  shillings  to  be  paid  to  the  plaintiff,  but  which  the  defend- 
ant converted  to  his  own  use.     It  is  contended,  that  this  is  a  count  in 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  449 

trover.  Now,  the  action  of  trover  is  only  maintainable  for  specific 
property ;  it  will  lie  for  so  many  pieces  of  gold  or  silver,  and  in  that 
case  a  defendant  can  only  redeem  himself  by  tendering  to  the  plaintiff 
the  same  specific  pieces.  But  in  this  case  he  clearly  might  do  so  by 
returning  an  equal  sum  of  money.  There  is,  therefore,  not  merely  a 
want  of  certainty  in  the  count,  but  it  states  that  which  is  not  the  sub- 
ject of  an  action  of  trover  at  all.  The  demurrer  therefore  must  be  al- 
lowed. 

Best,  J.  This  is  an  innovation  upon  the  old  forms  established  by 
law,  and  therefore  ought  not  to  be  allowed.  There  is  a  broad  distinc- 
tion between  actions  ex  contractu  and  ex  delicto.  Here,  it  arises  out 
of  a  breach  of  contract,  and  the  party  ought  not  to  be  allowed  to  pro- 
ceed in  the  present  mode  of  framing  his  count  ex  delicto,  which  would 
be  attended  by  the  inconveniences  pointed  out  in  argument.  The  de- 
fendant might  be  deprived  of  his  set  off,  and  if  he  lived  within  the 
jurisdiction  of  an  inferior  Court,  of  his  costs,  and  in  addition  to  that, 
would  not  be  able  to  pay  money  into  Court.  The  action  of  trover  is 
clearly  not  maintainable  in  a  case  like  the  present :  there  a  party  re- 
covers damages  for  the  detention  of  specific  goods.  But  it  would 
be  inconsistent  with  justice,  if  wliere  a  sum  of  money  was  delivered 
generally  to  a  defendant,  the  Court  were  to  hold,  that  he  could  not  de- 
fend himself  unless  he  could  prove  that  he  had  restored  the  same 
specific  money  delivered  to  him.  But  this  would  be  the  case  if  we 
were  to  allow  the  action  of  trover  to  be  maintainable. 

Judgment  for  the  defendant. 


ROYCE,  ALLEN  &  CO.  v.  OAKES. 

(Appellate  Division,   Supreme  Court  of  Rhode  Island,  1S97.     20  E,.  I.  252, 

38  Atl.  371.) 

Action  of  trespass  on  the  case.  Certified  from  the  Common  Pleas 
Division  and  heard  on  demurrer  to  each  count  in  the  declaration. 

TiLLiNGHAST,  J.  The  plaintiffs  set  out  in  the  first  count  of  their 
declaration  that  on  January  15,  1894,  they  delivered  to  the  defendant 
the  sum  of  $1,714.60  in  money  together  with  three  gross  of  napkin 
rings  of  the  value  of  $49.26,  said  money  and  goods  being  the  property 
of  the  plaintiffs,  for  safe  keeping,  and  to  be  redelivered  by  the  de- 
fendant to  the  plaintiff's  thereafterwards  on  the  same  day ;  that  the 
defendant  received  said  money  and  merchandise  for  the  purpose 
aforesaid,  yet,  not  regarding  his  duty  in  that  behalf,  afterwards  on 
the  same  day,  intending  and  contriving  to  injure  the  plaintiff's,  fraud- 
ulently and  unlawfully  converted  said  money  and  goods  to  his  own  use, 
and,  although  thereafterwards  duly  requested,  he  neglected  and  re- 
fused to  deliver  said  money  and  goods,  or  any  part  thereof,  to  the 
plaintiffs. 

IlEPB.TOKTS— 29 


450  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

To  the  first  count  of  the  declaration  the  defendant  demurs,  on  the 

grounds : 

(1)  That  the  matters  therein  stated  do  not  set  forth  a  cause  of  action 
against  the  defendant.  (2)  That,  whereas  said  action  is  trespass  on  the  case, 
said  count  states  no  cause  of  action  against  the  defendant  unless  the  same 
be  an  action  for  breach  of  contract.  (3)  Tliat  said  count  does  not  state 
facts  constituting  an  action  of  trespass  on  tlie  case  against  tlie  defendant, 
but  if  any  cause  of  action  sounding  in  tort  is  therein  stated,  tlie  same  is 
an  action  of  trover,  and  not  a  trespass  on  the  case.  And  (4)  that  said  jjlain- 
tiiis  Join  a  cause  of  action  for  breach  of  contract  with  a  cause  of  action 
sounding  in  tort. 

We  think  the  demurrer  to  the  first  count  should  be  overruled ;  for, 
while  it  is  somewhat  inartificially  drawn,  yet  it  sufficiently  states  a 
case  in  trover,  which  is  a  species  of  action  on  the  case.  It  sets  out 
property  in  the  plaintiffs,  alleging  a  value  thereof,  together  with  the 
conversion  thereof  by  the  defendant  at  a  certain  time  and  place;  and 
we  think  this  is  sufficient.  For,  while  it  is  customary  to  incorporate 
into  the  declaration  the  legal  fiction  that  the  plaintiff  casually  lost 
the  goods  and  chattels  described,  and  that  the  same  thereafterwards 
came  to  the  defendant's  hands  by  finding,  yet  we  think  it  is  suiificient 
to  allege  that  they  came  to  his  hands  generally,  the  conversion  being 
the  gist  of  the  action.  See  Oliv.  Prec.  (3d  Ed.)  467 ;  Gen.  Laws  R.  I. 
c.  235,  §§  4,  5. 

But  the  defendant  contends  that  trover  lies  only  for  the  conversion 
of  personal  chattels,  and  does  not  lie  for  the  failure  to  deliver  to  the 
plaintiffs  money,  as  such;  -°  and  that  the  proper  form  of  action  as  to 
that  is  assumpsit,  for  money  had  and  received.  It  is  true  that  the 
obligation  to  pay  money  to  another  is  primarily  within  the  confines  of 
assumpsit,  or  debt ;  but  the  cause  stated  in  said  first  count  shows 
something  more  than  a  debt.  It  shows  a  trust  coupled  with  a  specific 
duty,  together  with  a  breach  of  the  trust  and  a  fraudulent  violation  of 
the  duty.  It  shows  that  the  defendant  received  the  money  in  question 
simply  for  safe  keeping,  the  same  to  be  delivered  to  the  plaintiffs  on 
demand,  and  that  instead  of  discharging  the  duty  thus  devolved  upon 
him  he  wrongfully  converted  the  money  to  his  own  use.  Having  re- 
ceived the  money  in  specie,  simply  for  safe 'keeping,  it  was  his  duty 
to  deliver  the  same  specific  money  to  the  plaintiffs  on  demand.  See 
Donohue  v.  Henry,  4  E.  D.  Smith  (N.  Y.)  162;  Worley  v.  Moore,  97 
Ind.  15;   Richmond  v.  Soportos  (City  Ct.  N.  Y.)  18  N.  Y.  Supp.  433; 


20  "  'Tis  pity  that  reporters  sometimes  catch  at  quaint  expressions  that 
may  happen  to  be  dropped  at  the  bar  or  bench ;  and  mistake  their  meaning. 
It  has  been  quaintly  said  'that  tlie  reason  wliy  money  cannot  be  followed 
is,  because  it  has  no  ear  mark':  but  this  is  not  true.  The  true  reason  is,  upon 
account  of  the  currency  of  it:  it  cannot  be  recovered  after  it  has  passed  in 
currency.  So  in  case  of  money  stolen,  the  true  owner  cannot  recover  it; 
after  it  has  been  paid  away  fairly  and  houestly  upon  a  valuable  and  bona 
fide  consideration:  but  Ix^fore  money  has  passed  in  currency,  an  action  may 
be  hromiht  toy  the  money  itself."  Per  Lord  Mauslield,  in  Miller  v.  liace 
(175S>  1  Burr.  452,  457. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  451 

26  Am.  &  Eng.  Ency.  L.  7(i(>\  Coffin  v.  Anderson,  4  Blackf.  (Ind.) 
395 ;  Govett  v.  Radnidge,  3  East,  62-70. 

As  to  the  napkin  rings,  of  course  no  question  is  made  that  they 
are  the  subject  of  trover  and  conversion. 

But  the  defendant  contends  that  the  plaintiffs  have  joined  in  the 
same  count  a  cause  of  action  ex  contractu  with  a  cause  of  action  ex 
dehcto,  and  hence  that  it  is  demurrable.  As  we  construe  the  count 
there  is  no  such  misjoinder.  It  simply  sets  out  the  manner  in  which 
the  defendant  became  possessed  of  the  property  in  question,  his  duty 
regarding  the  same,  and  his  wrongful  conversion  thereof  to  his  own 
use.  In  short,  it  states  a  case  wholly  sounding  in  tort  and  not  in  as- 
sumpsit.    *     *     * 

The  demurrer  to  the  first  count  is  overruled. ^^ 


(c)  Effect  of  a  Judgment  for  Plaintiff 
ADAMS  v.  BROUGHTON. 

(Court   of   King's    Bench,    1737.     Andrew.?,   IS,   95   Eeprint,    27S.) 

An  action  of  trover  was  brought  by  the  present  plaintiff  against  one 
Mason,  wherein  he  obtained  judgment  by  default,  and  afterwards  had 
final  judgment;  whereupon  a  writ  of  error  was  brought.  And  an- 
other action  of  trover  was  now  brought  by  the  same  plaintiff,  and  for 
the  same  goods  for  which  the  first  action  was  brought,  against  Brough- 
ton.  It  was  thereupon  moved  by  Solicitor  General  Strange,  on  an  af- 
fidavit that  the  goods  converted  amounted  to  more  than  £10  that  the 
defendant  may  be  held  to  special  bail.  And  he  compared  this  to  the 
case  of  an  indorsee  of  a  bill  of  exchange,  who  may  bring  an  action  both 

21  Part  of  the  opinion,  relating  to  a  second  count,  is  omitted. 

Compare  Larson  v.  Dawson  (1902)  24  R.  I.  317,  53  Atl.  93,  96  Am.  St.  Rep. 
716:  (The  declaration  set  out  that  on  July  19,  1901,  the  plaintiff  was  possess- 
ed of  $900  lawful  money  of  the  United  States,  and  that  on  said  day  he  in- 
trusted said  money  to  the  defendant  with  the  request  that  he  should  purchase 
for  the  plaintiff  out  of  said  money  a  certain  lot  of  land  situate  on  Greene 
street  in  Pawtucket,  the  defendant  to  pay  for  said  lot  the  sum  of  $050, 
and  that  with  the  remaining  $250  he  was  to  commence  the  erection  of  a 
house  on  said  lot  for  the  plaintiff ;  that  the  defendant  received  said  money 
in  pursuance  of  said  request,  and  afterwards,  to  wit,  ou  October  23,  1901. 
he  informed  the  plaintiff  that  he  would  not  purchase  said  lot  of  hmd 
with  said  money,  nor  would  he  return  the  money  to  the  plaintiff;  that  the 
plaintiff  thereupon  demanded  of  the  defendant  the  said  $900,  which  the 
defendant  refused  to  deliver,  and,  not  minding  or  regarding  his  duty  in  this 
behalf,  but  intending  and  contriving  to  injure  and  defraud  the  plaintiff, 
fraudulently  and  unlawfully  converted  said  money  to  his  own  use  by  ex- 
pending or  dissipating  the  same,  or  otlievwise  disposing  thereof  contrary 
to  law.  And  the  plaintiff'  avers  that  criminal  proceedings  were  instil  uted 
against  the  defendant,  for  embezzling  said  money,  before  tlie  commencement 
of  this  action.  To  this  declaration  the  defendant  demurred,  on  the  ground, 
among  others,  tliat  the  action  of  trover  will  not  lie  for  money  delivered  to 
the   defendant    under   tiie   circumstances   above    sot   forth.) 

And  see  Clark  and  Liudsell  on  Torts  (IOCS)  25S,  and  38  Cyc.  2011  et  seq. 


452  TORTS  THROUGH   ACTS   OF   ABSOLUTE  LIABILITY  (Part  1 

against  the  drawer  and  the  indorser,  and  hold  them  both  to  bail :  and 
he  cited  the  cases  of  Wyndham  and  Wither,  and  Wyndham  and  Trull, 
East,  8  Geo.  I,  where  upon  a  motion  to  stay  proceedings  it  was  held, 
that  an  indorsee  of  a  bill  of  exchange  may  bring  an  action  thereon, 
both  against  the  indorser  and  drawer;  and  the  Court  is  only  to  see 
that  the  plaintiff  hath  but  one  satisfaction.  So  here  the  plaintiff  may 
sue  both  Alason  and  the  present  defendant,  and  is  entitled  to  the  same 
process  against  the  last,  as  i-f  the  action  had  been  brought  against  him 
only.  And  he  urged,  in  answer  to  an  objection  made  by  P&ge,  J.,  that 
by  a  judgment  obtained  by  the  plaintiff  in  trover,  the  goods  are  be- 
come the  defendant's ;  that  a  special  property  only  is  thereby  vested 
in  him :  and  in  the  present  case,  it  is  evidence  only  of  a  property  as 
between  the  plaintiff  and  Mason,  but  not  as  between  the  present  par- 
ties. 

But  PER  Cur'  (Liit,  C.  J.,  absente) :  The  property  of  the  goods  is 
intirely  altered  by  the  judgment  obtained  against  Mason,  and  the  dam- 
ages recovered  in  the  first  action  are  the  price  thereof ;  so  that  he 
hath  now  the  same  property  therein  as  the  original  plaintiff  had ;  and 
this  against  all  the  world.    And  therefore  the  motion  was  denied.-- 

22  See  the  remarks  of  Willes,  J.,  in  Brinsmead  v.  Harrison  (1S71)  L.  R. 
6  C.  P.  584,  588:  "This  question  whether  the  property  is  changed  by  the 
mere  recovery  in  trover  appears  to  have  led  to  much  difference  of  opinion. 
The  authority  mainly  relied  upon  by  ^Ir.  Powell  was  the  dictum  of  Jervis, 
C.  J.,  in  Buckland  v.  Johnson  (1854)  15  C.  B.  145,  157,  in  which  that  very 
learned  and  accurate  judge  did  lay  it  down,  upon  the  authonty  of  a  case 
in  Strange,  Adams  v.  Broughton  (17o7)  2  Str.  1078,  that  the  proi>erty  is 
changed  by  the  mere  recovery,  without  any  satisfaction.  I  would  observe, 
however,  that  the  case,  as  reported  in  Strange,  is  far  from  satisfactory.  It 
is  also  reported  in  Andrews,  18,  where  the  case  is  thus  stated.  *  *  *  The 
loose  expressions  of  the  Court, — that  'the  property  of  the  goods  is  entirely 
altered  by  the  judgment  obtained  against  Mason,  and  the  damages  recovered 
in  the  first  action  are  the  price  thereof;  so  that  he  hath  now  the  same 
property  therein  as  the  original  plaintiff  had;  and  this  against  all  the 
world,' — were  quite  unnecessary.  The  same  may  be  said  as  to  the  dictum  of 
Jervis,  C.  J.,  in  Buckland  v.  Johnson  (1854)  15  C.  B.  145.  *  *  *  On  the 
other  hand,  there  is  a  series  of  decisions  shomng  that  a  mere  recoverj%  with- 
out  satisfaction,    has    not    the    effect   of   changing    the   property.     *     *     *  " 

A  like  result  was  reached  by  the  majority  of  the  bench  in  Miller  v.  Hyde 
(1894)  IGl  Mass.  472,  37  N.  E.  760,  25  Ta  II.  A.  42,  42  Am.  St.  Kep.  424.  but 
with  Field,  C.  J.,  and  Holmes  and  Knowlton,  JJ.,  dissenting.  "I  am  of 
opinion,"  said  Mr.  Justice  Holmes  in  his  dissenting  opinion,  "that  the  plaintiff 
ought  to  be  barred  in  this  action  by  her  recovery  of  judgment  in  trover 
for  the  same  horse.  I  am  aware  that  the  doctrine  that  title  passes  by 
judgment  without  satisfaction  is  not  in  fashion,  but  I  never  have  been 
able  to  understand  any  other.  It  always  has  seemed  to  me  that  one  whose 
property  has  been  converted  has  an  election  l)etween  two  courses,  that  he 
may  have  the  thing  back  or  may  have  its  value  in  damages,  but  tnat  he 
cannot  have  both ;  that  when  he  chooses  one  he  necessarily  gives  up  the 
other,  and  that  by  taking  a  judgment  for  the  value  he  does  choose  one 
conclusively.  He  cannot  have  a  right  to  the  value  of  the  thing,  effectual 
or  ineffectual,  and  a  right  to  the  thing  at  the  same  time.  The  defendant  is 
estopped  by  the  judgment  to  deny  the  plaintiff's  right  to  the  value  to  the 
tbiug.  Usually  estoppels  by  judgment  are  mutual.  It  would  seem  to 
follow  that  the  plaintiff  also  is  estopped  to  deny  his  right  to  the  value  of 
the  thing,  and  therefore  is  estopped  to  set  up  an  inconsistent  claim.  In 
general  an  election  is  determined  by  judgment.    Butler  v.  Uildreth  (1842)  5 


Ch.  2) 


ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  453 


Mete.  (Mass.)  49;  Bailey  v.  Hervey  (18S3)  135  Mass.  172,  174;  Goodyear 
Dental  ^'ulcanite  Co.  v.  Caduc  (1887)  144  Mass.  85,  86,  10  N.  E.  483 ;  Raphael 
V.  Reinstein  (1891)  154  Mass.  178,  179,  28  N.  E.  141.  I  know  of  no  reason 
why  a  judgment  should  be  less  conclusive  in  this  case  than  any  other.  Of 
course.  I  am  speaking  of  a  judgment  for  the  value  of  the  chattel,  not  of 
one  giving  nominal  damages  for  the  taking.  The  argument  from  election 
is  adopted  in  White  v.  Philbrick  (1827)  5  Greenl.  147,  150,  17  Am.  Dec.  214, 
which  so  far  as  I  know  is  still  the  law  of  Maine,  notwithstandins  the  re- 
mark in  Murray  v.  Lovejoy  (1863)  2  Cliflf.  191,  198.  Fed.  Cas.  No.  9963.  See 
also  Shaw.  C.  J.,  in  Butler  v.  Ilildreth  (1842)  5  Mete.  (Mass.)  49,  53.  The 
most  conspicuous  cases  which  have  taken  a  different  view  speak  of  the 
hardship  of  a  man's  losing  his  property  without  being  paid  for  it,  and 
sometimes  cite  the  dictum  in  Jenkins,  4tli  Cent.,  Case  88,  'Solutio  pretii 
emptionis  loco  habetur,'  which  is  dogma,  not  reasoning,  or  if  reasoning,  is 
based  on  the  false  analogy  of  a  sale :  but  they  leave  the  argument  which  I 
have  stated  unanswered,  not,  as  I  think,  because  the  judges  deemed  it  un- 
worthy of  answer  or  met  by  paramount  considerations  of  policy,  but  because 
they  did  not  have  either  that  or  a  clue  to  the  early  cases  before  their  mind. 
Lovejoy  v.  Murray  (1865)  3  Wall.  1,  17,  18  L.  Ed.  129:  Brinsmead  v.  Harrison 
(1871)  L.  R.  6  C.  P.  584,  587;  s.  c.,  L.  R.  7  C.  V.  547,  554.  It  is  not  the 
practice  of  the  English  judges  to  overrule  the  common  law  because  they 
disapprove  it.  and  to  do  so  without  discussion.  In  Brinsmead  v.  Harrison, 
Mr.  Justice  Willes  thought  he  was  proving  that  the  common  law  always  had 
been  in  accord  v\-ith  his  position.  So  far  as  the  question  of  policy  goes,  it 
does  not  seem  to  me  that  the  possibility — it  is  only  the  possibility — of  an 
election  turning  out  to  have  been  unwise,  is  a  sufficient  reason  for  breaking 
in  upon  a  principle  which  must  be  admitted  to  be  sound  on  the  whole,  and 
for  overthrowing  the  doctrine  of  tlie  common  law  by  a  judicial  fiat.  I  am 
not  informed  of  any  statistics  which  establish  that  judgiuents  for  money 
usually  give  the  judgment  creditor  only  an  empty  right.  That  the  view  which 
I  hold  is  the  view  of  the  common  law  I  think  may  be  proved  by  considering 
what  was  the  theory  on  which  the  remedies  of  trespass  and  replevin  were 
given.  In  T.  B.  19  Hen.  VI,  65,  pi.  5,  Newton  says :  'If  you  had  taken  my 
chattels  it  is  at  my  choice  to  sue  replevin,  which  shows  that  the  property 
is  in  me,  or  to  sue  a  writ  of  trespass,  which  shows  that  the  property  is  in 
the  taker ;  and  so  it  is  at  my  will  to  waive  the  property  or  not.'  In  6  Hen. 
VII,  8,  pi.  4,  Vavisor  uses  similar  language,  and  adds,  'And  so  it  is  of  goods 
taken,  one  may  devest  the  property  out  of  himself,  if  he  will,  by  proceedings 
in  trespass,  or  demand  property  by  replevin  or  writ  of  detinue,'  if  he  prefers. 
There  is  no  doubt  that  the  old  law  was  that  replevin  affirms  property  in 
the  plaintiff  and  trespass  disaffirms  it,  and  that  the  plaintiff  has  election. 
Bro.  Abr.  Trespass,  pi.  134 ;  IS  Vin.  Abr.  69  (B) ;  Anderson  and  Warberton, 
JJ.,  in  Bishop  v.  Montague  (1601)  Cro.  Eliz.  824.  The  proposition  is  made 
clearer  when  it  is  remembered  that  a  tortious  possession,  at  least  if  not 
felonious,  carried  with  it  a  title  by  wrong  in  the  case  of  chattels  as  well  as 
in  the  case  of  a  disseisin  of  land,  as  appears  from  the  page  of  Viner  just 
cited,  and  as  has  been  shown  more  fully  by  the  learned  researches  of  Mr. 
Ames  and  Mr.  Maitland,  3  Harv,  Law  Rev.  23,  326.  See  1  Law  Quarterly 
Bev.  324.  I  do  not  regard  that  as  a  necessary  doctrine,  or  as  the  law  of 
Massachusetts,  but  it  was  the  common  law,  and  it  fixed  the  relations  of 
tre.spass  and  replevin  to  each  other.  Trespass,  and  on  the  same  principle 
trover,  proceed  on  the  footing  of  alhrming  property  in  the  defendant,  and  of 
ratifying  the  act  of  the  defeud.'int  which  already  has  afllrmed  it.  I  do  not 
see  on  what  other  ground  a  judgment  for  the  value  can  be  justified.  If  the 
title  still  is  in  doubt,  or  remains  in  the  plaintiff,  the  defendant  ought  not  to 
be  charged  for  anything  but  the  tortious  taking.  Again,  cannot  the  plaintifiC 
take  the  converted  chattel  on  execution"/  And  on  what  principle  can  he  do 
so  if  it  does  not  yet  belong  to  the  defendant?  I  say  but  a  word  as  to  tlie 
practical  difficulties  of  the  prevailing  rule.  No  doubt  they  can  be  met  in 
one  way  or  another.  Suppose  the  plaintiff  after  judgment  were  to  retake 
the  chattel  by  his  own  act,  it  would  strike  me  as  odd  to  .say  that  this  satisfied 
the  judgment,  and  as  impossible  to  say  tliat  it  .satisfied  the  whole  judgment, 
which  was  for  the  tort,  as  well  as  for  the  value  of  the  property.     Yet  on  the 


454  TORTS  THROUGH  ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

HEPBURN  V.  SEWELL. 

(Court  of  Appeals  of  MaiTland,  1821.    5  Har.  &  J.  211,  9  Am.  Dec.  512.) 

Trover  for  negro  slaves,  brought  by  the  appellant  against  the  ap- 
pellee. 

DoRSi^Y,  J.  The  appellant  in  this  cause,  as  administrator  of  Jane 
Fishwich,  instituted  an  action  of  trover  against  the  appellee,  to  recover 
the  value  of  certain  negroes,  among  whom  were  Sail,  Patt  and  Phillis, 
the  property  of  the  appellant's  intestate,  and  obtained  a  verdict  for 
the  sum  of  $7,153.50,  on  which  judgment  was  rendered.  The  appel- 
lee appealed  from  that  judgment  to  the  court  of  appeals,  and  the  same 
was  affirmed  at  June  term,  1818;  and  the  amount  of  the  judgment, 
with  costs,  was  paid  by  the  appellant  to  the  appellee  before  the  trial 
but  after  the  issue  was  joined  in  the  present  suit.  After  the  com- 
mencement of  the  action  of  trover,  in  which  the  verdict  was  rendered, 
the  slaves,  Sail,  Patt  and  Phillis,  each  had  a  child,  and  the  present 
action  of  trover  was  instituted  by  the  appellant  to  recover  the  value  of 
the  said  children.  The  court  below  decided  that  the  action  could  not 
be  maintained,  and  this  court  concur  in  that  decision.  The  British 
authorities  lay  down  the  general  proposition,  that  if  the  plaintiff  in 
an  action  of  trover  has  recovered  damages  for  the  conversion  of  the 
goods,  the  property  thereof  vests  in  the  defendant,  who,  as  damages 
to  the  value  have  been  recovered  against  him,  is  to  be  considered  as  a 
purchaser.  Adams  v.  Broughton,  2  Str.  1078;  6  Bacon's  Abr.  tit. 
Trover,  A,  p.  679.  This  court  are  of  an  opinion,  that  the  judgment 
per  se  doth  not  clothe  the  defendant  with  the  legal  character  of  a  pur- 
chaser;   but  that  the  judgment  and  its  fruit,  to  wit,  the  payment  of 

view  which  I  oppose  I  presume  that  the  judgment  could  not  be  collected. 
See  Coombe  v.  Sansom  (1S22)  1  Dowl.  &  Ry.  201.  It  seems  to  me  tliat  the 
opinion  which  I  hold  was  the  prevailing  one  in  England  until  Brinsraead 
V.  Harrison.  Bishop  v.  Montague  (KJOl)  Cro.  Eliz.  824;  Fenner,  J.,  in 
Brown  v.  Wootton  (lOOS)  Cro.  Jac.  73,  74 ;  s.  c,  Yelv.  67 ;  Moore,  762 ;  Adams 
V.  Broughton  (1737)  2  Strange,  1078;  s.  c,  Andrews,  18,  19;  Buokland  v. 
Johnson  (1854)  15  C.  B.  145,  157,  162,  163 ;  Sergt.  Manning's  note  to  6  Man. 
&  Gr.  040.  See  Lamine  v.  Dorrell  (1705)  2  Ld.  Raym.  1216,  1217.  And  I 
should  add  that  I  see  a  relic  of  the  ancient  and  true  doctrine  in  the  otherwise 
unexplained  notion  that  when  execution  is  satisfied  the  title  of  the  defendant 
relates  bacli  to  the  date  of  the  conversion.  Ileiiburn  v.  Sewell  (1821)  5  liar. 
&  J.  211,  9  Am.  Dec.  512;  Smith  v.  Smith  (1872)  51  N.  H.  571,  and  (1870) 
50  N.  H.  212.  Compare  Atwater  v.  Tupper  (1877)  45  Conn.  144,  147.  148,  29 
Am.  Eep.  674.  The  only  authorities  binding  upon  us  are  the  ancient  evi- 
dences of  the  common  law  as  it  was  before  the  Revolution  and  our  own 
decisions.  I  have  shown  what  I  think  was  the  common  law.  Our  own  deci- 
sions leave  the  question  open  to  be  decided  in  accordance  with  it.  Campbell 
V.  Phelps  (1822)  1  Pick.  (Mass.)  62,  65,  70,  11  Am.  Dec.  139;  Bennett  v. 
Hood  (1861)  1  Allen  (Mass.)  47,  79  Am.  Dec.  705.  Many  cases  in  other 
states  are  collected  in  Freem.  Judgments  (4th  I'^d.)  §  237." 

For  other  cases  on  the  jioint  see  38  Cyc.  2112.  notes  24,  25,  and  26;  47 
Cent.  Dig.  "Trover  and  Conversion,"  §  314;  19  Dec.  Dig.  "Trover  and 
Conversion,"  §  70. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  455 

the  amount  thereof,  must  both  concur,  to  vest  the  right  of  property  in 
the  defendant.  But  the  question  occurs,  to  what  epoch  shall  the  title 
of  the  defendant  relate  on  his  satisfying  the  amount  of  the  judgment? 
And  we  think  his  title  relates  back  to  the  time  of  the  conversion.  If 
the  thing  converted  should  from  any  cause,  whether  natural  or  arti- 
ficial, be  destroyed  during  the  interval  intervening  between  the  period 
of  conversion  and  the  payment  of  the  judgment,  the  loss  must  be  sus- 
tained by  the  defendant ;  and  it  would  seem  to  follow,  that  if  the 
thing  should  improve  in  value  during  that  period,  the  benefit  ought  to 
inure  to  the  defendant,  on  the  principle  qui  sentit  onus,  sentire  debet  et 
commodum. 

It  must  be  borne  in  mind  that  the  plaintiff  in  an  action  of  trover  com- 
pels the  defendant  to  become  a  purchaser  against  his  will ;  and  from 
what  period  does  he  elect  to  consider  the  defendant  as  a  purchaser,  or 
as  answerable  to  him  for  the  value  of  the  thing  converted?  He  selects 
the  date  of  conversion  as  the  epoch  of  the  defendant's  responsibility, 
and  claims  from  him  the  value  of  the  property  at  that  period,  with  m- 
terest,  to  the  time  of  taking  the  verdict.  The  inchoate  right  of  the  de- 
fendant as  a  purchaser  must,  therefore,  be  considered  as  coeval  with 
the  period  of  conversion,  and  his  right  being  consummated  by  the  judg- 
ment and  its  discharge,  must,  on  equal  and  equitable  principles,  relate 
back  to  its  commencement.  The  generality  of  our  expressions  must 
not  be  misunderstood ;  we  do  not  mean  to  decide  that  in  all  cases  of 
trover  the  payment  of  the  damages  assessed  vests  the  right  of  property 
in  the  defendant.  Thus,  if  property  converted  is  returned  and  re- 
ceived by  the  owner  before  the  institution  of  an  action  of  trover,  as 
damages  could  only  be  given  for  a  partial  conversion,  the  payment 
thereof  would  not  divest  the  right  of  property  out  of  the  plaintiff  and 
vest  it  in  the  defendant. 

Judgment  affirmed. 


(B)  Elements  of  the  Prima  Facie  Cause  in  Trover  anid  Conversion 

It  is  an  action  of  trover.  *  *  *  jj^  form  it  is  a  fiction;  in  sub- 
stance, a  remedy  to  recover  the  value  of  personal  chattels  wrongfully 
converted  by  another  to  his  own  use.  The  form  supposes  the  de- 
fendant may  have  come  lawfully  by  the  possession  of  the  goods. 
This  action  lies,  and  has  been  brought  in  many  cases  where,  in  truth, 
the  defendant  has  got  the  possession  lawfully.  Where  the  defendant 
takes  them  wrongfully,  and  by  trespass,  the  plaintiflf,  if  he  thinks  fit 
to  bring  this  action,  waives  the  trespass,  and  admits  the  possession  to 
have  been  lawfully  gotten.  Hence,  if  the  defendant  delivers  the  thing 
upon  demand,  no  damages  can  be  recovered  in  this  action,  for  having 
taken  it. 

This  is  an  action  of  tort ;  and  the  whole  tort  consists  in  the  wrong- 
ful conversion.    Two  things  are  necessary  to  be  proved,  to  entitle  the 


456  TORTS  THROUGH  ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 

plaintiff  to   recover  in   this   kind  of   action :     First,   property   in   the 
plaintiff ;   and  secondly,  a  wrongful  conversion  by  the  defendant. 
Lord  Mansfield,  in  Cooper  v.  Chitty  (1756)  1  Burr.  20,  31. 


(a)  The  Pi,AiNTrFF's  Eight  in  Conversion  23 

WILBRAHAM  v.  SNOW. 

(Court  of  King's  Bench,  1670.     2  Wms.  Saund.  47,  85  Reprint,  624.) 

Trover,  upon  special  verdict,  the  case  was  this :  the  plaintiff,  being 
sheriff",  seized  goods  in  execution  by  virtue  of  the  writ  of  fieri  facias ; 
and  afterwards,  and  before  they  were  sold,  the  defendant  took  and 
carried  them  away,  and  converted  them  to  his  own  use ;  for  which  the 
plaintiff  brought  his  action.  And  on  the  first  argument  it  was  ad- 
judged that  the  action  well  lies ;  and  that  the  plaintiff,  being  sheriff, 
has  such  a  property  in  the  goods,  by  seizing  them  in  execution,  that 
he  may  maintain  an  action  of  trespass  or  trover  at  his  election ;  and 
judgment  was  given  for  the  plaintiff  nisi,  &c.  but  it  was  not  moved 
afterwards.^* 


ARMORY  V.  DELAMIRIE. 

(Court  of  King's  Bench,  at  Nisi  Prius,  in  Middlesex,  Coram  Pratt,  C.  J.,  1722. 

1  Str.  505,  93  Reprint,  664.) 

The  plaintiff  being  a  chimney  sweeper's  boy  found  a  jewel  and  car- 
ried it  to  the  defendant's  shop  (who  was  a  goldsmith)  to  know  what  it 
was,  and  delivered  it  into  the  hands  of  the  apprentice,  who  under  pre- 
tence of  weighing  it,  took  out  the  stones,  and  calling  to  the  master  to 
let  him  know  it  came  to  three  halfpence,  the  master  offered  the  boy 
the  money,  who  refused  to  take  it,  and  insisted  to  have  the  thing  again ; 
whereupon  the  apprentice  delivered  him  back  the  socket  without  the 
stones.    And  now  in  trover  against  the  master  these  points  were  ruled : 

1.  That  the  finder  of  a  jewel,  though  he  does  not  by  such  finding 

23  "The  'right  to  possession'  which  is  necessary  to  found  an  action  of 
trover  is  often  described  as  a  'special  property'  in  the  goods.  This  is  a  most 
unfortunate  expression ;  for  in  one  of  the  best  known  cases  it  is  expressly 
laid  down  that  the  term  'special  property'  includes  interests  which  do  not 
carry  the  right  to  possession,  and  which,  therefore,  are  not  suflicient  to 
found  actions  of  trover.  See  Webb  v.  Lawrence  (1797)  7  T.  R.  at  p.  398, 
per  Lawrence,  J.  On  the  other  hand,  a  i)erson  whose  goods  have  been 
distrained  for  rent  can  sue  a  third  party  in  trover.  Turner  v.  Ford  (184G) 
15  M.  &  W.  212."    J.  C.  Miles,  in  Dig.  Eng.  Civ.  Law,  Bk.  II,  Part  III,  414. 

■24  Elaborate  notes  to  this  case,  by  Serjeant  Williams  in  1S02.  and  by 
later  hands,  touching  many  points  in  the  doctrine  of  trover,  will  be  found 
in  the  reports  named. 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  457 

acquire  an  absolute  property  or  ownership,  yet  he  has  such  a  property 
as  will  enable  him  to  keep  it  against  all  but  the  rightful  owner,  and 
consequently  may  maintain  trover. ^^ 

2.  That  the  action  well  lay  against  the  master,  who  gives  a  credit  to 
his  apprentice,  and  is  answerable  for  his  neglect. 


BUCKLEY  V.  GROSS  et  al. 

(Coiirt  of  Queen's  Bench,  1863.    3  Best  &  S.  566,  122  Reprint,  213, 

129  R.  R.  457.) 

This  was  an  action  for  the  conversion  of  certain  goods  and  chattels 
of  the  plaintiff,  that  is  to  say,  a  quantity  of  fat  and  tallow  mixed  to- 
gether :  to  which  the  defendants  pleaded  Not  guilty,  and  a  traverse 
of  the  goods  and  chattels  in  the  declaration  being  the  goods  and  chat- 
tels of  the  plaintiff:    on  both  of  which  pleas  issue  was  joined. 

25  Accord:  Bridges  v.  Hawkeswortli  (1S51)  21  L.  J.  Q.  B.  75,  91  R.  R.  850: 
(P.  liad  called  at  D.'s  shop  on  business.  As  P.  was  leaving  he  noticed  and 
picked  up  a  small  parcel  which  was  lying  on  the  floor.  He  immediately 
showed  it  to  one  of  the  shopmen  and  on  opening  it  found  that  it  contained 
bank  notes  to  the  value  of  £55.  P.  told  D.  that  he  had  found  a  parcel  of 
notes  and  requested  D.  to  keep  them  to  deliver  to  the  owner.  D.  advertised 
for  the  o'mier,  but  ^^^thout  response.  Three  years  having  elapsed,  and  no 
owner  appearing,  P.  applied  to  D.  for  the  notes,  offering  to  pay  the  expense  of 
the  advertisements  and  to  indemnify  D.  against  any  claim.  The  latter  re- 
fused to  deliver  the  notes.     P.  sues  for  conversion.) 

Compare  McAvoy  v.  Medina  (1866)  11  Allen  (Mass.)  548,  87  Am.  Dec. 
733:  (P.,  being  a  customer  in  D.'s  barber  shop,  saw  and  took  up  a  pocket- 
book  which  was  lying  upon  a  table  there,  and  said,  "See  what  I  have 
found."  D.  came  to  the  table  and  asked  where  P.  found  it.  P.  laid  it  back 
in  the  same  place  and  said,  "I  found  it  right  there."  D.  then  took  it  and 
counted  the  money,  and  P.  told  him  to  keep  it,  and  if  the  o^\■ner  came  to 
give  it  to  him  ;  otherwise  to  advertise  it,  which  D.  promised  to  do.  Sub- 
sequently P.  made  three  demands  for  the  money,  and  D„  never  claimed 
to  hold  the  same  till  the  last  demand.  It  was  agreed  that  the  pocketbook 
was  placed  upon  the  table  by  a  transient  customer  of  D.  and  accidentally 
left  there,  and  was  first  seen  and  taken  up  by  P.,  and  that  the  owner  had 
not  been  found.  Said  Dewey,  J.,  delivering  the  opinion:  "It  seems  to  be 
the  settled  law  that  the  finder  of  lost  property  has  a  valid  claim  to  the 
same  against  all  the  world  except  tJie  true  owaier,  and  generally  that  the 
Dlace  in  which  it  is  found  creates  no  excejition  to  this  rule.  2  Parsons  on 
Cont.  97;  Bridges  v.  Hawkesworth  (1851)  7  Eng.  Law  &  Eq.  R.  424.  But 
this  property  is  not,  under  tlie  circumstances,  to  be  treated  as  last  property 
in  that  sense  in  which  a  finder  has  a  valid  claim  to  hold  the  same  until 
called  for  by  the  true  owner.  This  property  was  voluntarily  placed  upon 
a  tiible  in  the  defendant's  shop  by  a  customer  of  his  who  accidentally  left 
the  same  there  and  has  never  called  for  it.  The  plaintiff  also  came  tliero 
as  a  customer,  and  first  saw  the  same  and  took  it  up  from  the  table.  The 
plaintiff  did  not  by  this  acquire  the  right  to  take  the  property  from  tho 
shop,  but  it  was  rather  the  duty  of  the  defendant  when  the  fact  became  tlms 
known  to  him,  to  use  reasonable  care  for  the  safe  keeping  of  the  same  until 
the  owner  should  call  for  it.  In  the  case  of  Bridges  v.  HawUesworth  tlie 
property,  although  found  in  a  shop,  was  found  on  the  floor  of  the  same, 
and  had  not  been  placed  there  voluntarily  by  the  owner,  and  the  court 
held  that  the  finder  was  entitled  to  the  possession  of  the  same  except  as 
to   the  owner.") 


458  TORTS  THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

On  the  trial,  it  appeared  that,  in  June,  1861,  a  severe  fire  broke  out 
among  some  wharves  and  warehouses  on  the  Surrey  side  of  the  river 
Thames  below  London  Bridge.  In  those  warehouses  were  deposited 
large  quantities  of  fat  and  tallow,  the  property  of  different  persons, 
which,  being  melted  by  the  fire,  flowed  down  into  the  main  sewers,  and 
was  by  them  conveyed  into  the  river,  from  both  of  which  large  por- 
tions of  it  were  unwarrantably  taken  by  different  persons.  Among 
these  was  one  B.,  a  servant  in  the  employ  of  the  Metropolitan  Board 
of  Works,  who,  having  obtained  some  of  the  tallow,  whether  from 
the  sewer  or  river  did  not  appear,  sold  it  to  the  plaintiff.  Early  on 
the  morning  of  the  1st  July,  a  policeman  in  one  of  the  streets  of  the 
metropolis  stopped  a  cart  with  the  plaintiff  and  a  boy  in  it  conveying 
this  tallow,  which  the  plaintiff,  on  being  questioned,  said  belonged  to 
one  M.  The  policeman  took  possession  of  the  tallow,  and  charged  the 
plaintiff  and  the  boy  before  a  magistrate  with  the  possession  of  tallow 
supposed  to  have  been  stolen  or  unlawfully  obtained,  who  dismissed 
the  charge,  but  ordered  the  tallow  to  be  detained  under  2  &  3  Vict, 
c.  71,  §  29,  for  regulating  the  police  courts  in  the  metropolis.  The 
tallow  was  accordingly  detained,  and  deposited  in  a  yard  with  other 
portions  of  tallow  which  had  been  seized  by  the  police  from  other 
persons,  until,  the  whole  becoming  a  nuisance,  it  was,  in  the  course  of 
a  few  days,  taken  away  and  sold  by  direction  of  Sir  Richard  Mayne, 
the  Commissioner  of  the  Police  of  tlie  metropolis.  The  defendants 
were  the  purchasers  of  the  tallow  in  question,  and,  having  refused  to 
deliver  it  up  to  the  plaintiff  on  demand,  this  action  was  brought. 

On  this  evidence  a  verdict  was,  under  the  direction  of  the  learned 
Judge,  entered  for  the  defendants,  with  leave  reserved  to  move  to 
enter  a  verdict  for  the  plaintiff"  for  £12.,  the  value  of  the  tallow,  if 
the  Court  should  be  of  opinion  that  he  had  a  sufficient  property  in  it 
to  maintain  the  action,  it  being  agreed  that  the  Court  should  be  at 
liberty  to  draw  any  inferences  of  fact  from  the  evidence  that  a  jury 
might  properly  draw. 

A  rule  nisi  was  accordingly  obtained  and  argued. 

Crompton,  J.  It  is  clearly  established  that  possession  alone  is  suf- 
ficient to  maintain  trover  or  trespass  against  a  wrong-doer  who  takes 
property  from  a  person  having  possession  of  it.  It  is  not  clear,  how- 
ever, that  the  plaintiff,  or  the  person  from  whom  he  purchased  this 
tallow,  was  a  finder  of  it  within  the  principle  of  Armory  v.  Delamirie, 
1  Str.  505,  and  other  cases.  I  think,  on  the  evidence  and  the  infer- 
ences to  be  fairly  drawn  from  it,  that  he  is  more  in  the  position  of 
a  person  who  has  unlawfully  or  feloniously,  perhaps  the  latter,  ob- 
tained possession  of  it,  whereas  I  look  on  the  term  "finder"  in  those 
cases  to  mean  an  innocent  finder.  This  action  must  be  founded  on 
possession ;  here  the  possession  was  divested  out  of  the  plaintiff,  and 
lie  cannot  revert  to  a  rigiit  of  property  to  re-establish  it.  I  agree  with 
my  Lord  Chief  Justice  that  where  possession  is  lawfully  divested 
out  of  a  man,  and  the  property  is  ultimately  converted  by  a  person 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  459 

who  does  not  claim  through  an  original  wrong-doer,  the  party  whose 
possession  was  so  divested  had  no  property  at  the  time  of  the  conver- 
sion. Here,  in  my  mind,  the  plaintiff's  possession  was  gone.  The 
goods  were  properly  taken  from  him,  and  there  is  no  such  doctrine  as 
that  it  will  reinvest  in  him  in  the  manner  contended  for;  otherwise 
every  person  who  was  possessor  of  goods  for  any  time,  however  short, 
might  bring  an  action  against  any  person  afterwards  found  in  pos- 
session of  them,  however  he  may  have  come  by  it.  That  would  be 
pressing  too  far  the  doctrine  of  sufficient  title  against  a  wrong-doer. 
But  here  the  plaintiff  obtained  the  goods  under  circumstances  which 
show  that  he  knew  they  came  from  these  burning  warehouses.  I  can- 
not think  that  when  property  of  different  persons  is  mixed  together, 
any  third  person  does  not  commit  a  crime  in  taking  it — I  think  he 
does.  Neither  is  this  a  derelict — it  is,  as  my  brother  Blackburn  says, 
more  like  property  seized  by  wreckers ;  and  if  I  were  obliged  to  draw 
an  inference,  I  should  say  that  the  plaintiff  came  by  it  feloniously.  I 
consider  that  it  was  the  duty  of  the  constable  to  take  the  tallow  and 
the  plaintiff  into  the  custody  of  the  law,  and  that  even  without  refer- 
ence to  Stat.  2  &  3  Vict.  c.  71.  The  defendants  here  do  not  claim  un- 
der the  constable,  and,  supposing  they  did,  the  constable  did  nothing 


wrong 


26 


Rule  discharged. 


AVERILL  V.  CHADWICK. 

(Supreme  Judicial  Court  of  Massachusetts,  1891,    153  Mass.  171,  26  N.  E.  441). 

Tort  for  the  conversion  of  two  rabbits.  At  the  trial  there  was  evi- 
dence tending  to  show  the  following  facts: 

The  plaintiff  kept  a  provision  store  in  Salem,  and  on  March  2,  18S9,  ex- 
posed therein  a  pair  of  rabbits  for  sale.  The  defendant  came  to  the  store, 
and,  after  looking  at  the  rabbits,  told  the  plaintiff  that  he  was  an  officer 
and  should  have  to  take  them  away.  The  plaintiff  supposed  from  his  state- 
ment that  he  was  an  officer,  and,  as  he  testified,  let  the  defendant  "take 
them;  I  did  not  give  them  to  him  or  sell  them;  he  (the  defendant)  said  he 
should  take  them  away,  and  he  took  them  away."  The  defendant  was  a 
deputy  of  the  board  of  game  commissioners,  and  had  no  further  authority 
either  as  a  constable  or  otherwise.  He  acted  upon  the  occasion  in  question 
under  a  direction  of  the  game  commissioners,  to  seize  and  remove  all  game 
unlawfully  offered  for  sale.  He  had  no  warrant,  and  had  received  no  order 
from  any  court  to  make  the  seizure,  and  his  purpose  was,  as  he  testified, 
"to  enforce  the  law  as  I  understood  the  statute." 

The  judge  ruled  that  there  was  no  question  of  fact  for  the  jury, 
and  ordered  a  verdict  for  the  plaintiff;  the  defendant  alleged  ex- 
ceptions. 

26  The  arguments  of  counsel  are  omitted,  and  the  opinions  of  Lord  Chief 
Justice   Cockbum   and  Blackburn,   J.,  with   whom   Crompton,  J.,   concurred. 


460  TORTS  THROUGH  ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

By  the  Court.^^  The  following  opinion  was  prepared  by  Mr.  Jus- 
tice Devens,  and  was  adopted  as  the  opinion  of  the  court  after  his 
death  by  the  Justices  who  sat  with  him  at  the  argument. 

We  have  no  occasion  to  consider  whether  the  rabbits,  for  the  con- 
version of  which  this  action  is  brought,  were  unlawfully  exposed  for 
sale  in  violation  of  the  St.  of  1886,  c.  276,  §  5,  nor  whether,  upon 
proper  proceedings  had,  they  might  have  been  adjudged  to  be  forfeit- 
ed. Without  so  deciding,  we  assume  these  positions  in  favor  of  the 
defendant's  contentions.  His  own  statement,  which  in  the  present  pos- 
ture of  the  case  must  be  taken  as  correct,  does  not  show  him  to  have 
been  either  a  constable  or  police  officer,  even  if  these  officers  could 
have  made  a  seizure  of  the  property  without  a  warrant,  which  again 
we  do  not  intend  to  decide.  He  was  a  deputy  of  the  board  of  inland 
fisheries  and  game  commissioners,  and  he  stated  that  he  had  orders 
from  them  to  seize  and  remove  whatever  of  this  nature  was  offered 
for  sale  unlawfully.  He  did  not  pretend  that  he  had  orders  from 
any  court,  or  any  warrant,  but  took  the  rabbits  to  destroy  them.  It 
is  quite  clear  that  neither  the  commissioners  nor  their  deputy  could, 
v;ithout  power,  seize,  remove,  and  destroy  property,  even  though  the 
same  was  unlawfully  exposed  for  sale.  No  right  to  do  this  is  given 
by  the  statute,  nor  is  any  authority  cited  to  us  which  justifies  it. 

Even  if  the  taking  of  the  rabbits  was  unlawful,  yet,  the  possession 
of  them  being  illegal,  it  is  the  contention  of  the  defendant  that  the 
plaintiff  cannot  avail  himself  of  this  illegal  possession  to  maintain  the 
action.  In  Commonwealth  v.  Rourke,  10  Cush.  397,  it  is  held  to  be 
well  established  at  common  law  that  property  unlawfully  acquired 
may,  nevertheless,  be  the  subject  of  larceny;  and  it  is  said  that  "even 
he,  who  larceniously  takes  the  stolen  object  from  a  thief  whose  hands 
have  but  just  closed  upon  it,  may  himself  be  convicted  therefor,  in 
spite  of  the  criminality  of  the  possession  of  his  immediate  predecessor 
in  crime."  In  Commonwealth  v.  Coft"ee,  9  Gray,  139,  where  the  ar- 
ticle stolen  was  intoxicating  liquor,  purchased  in  violation  of  the 
statute  of  Alassachusetts,  and  intended  to  be  sold  in  violation  of  the 
act,  it  was  held  to  be  the  subject  of  larceny.  Even,  therefore,  if,  as 
we  have  assumed  in  the  case  at  bar,  the  plaintiff  might  have  forfeited 
and  lost  his  property  if  it  had  been  seized  upon  proper  legal  process, 
and  it  had  appeared  that  it  was  kept  for  an  illegal  purpose,  he*  was 
only  to  be  deprived  of  it  upon  such  proof,  and  by  the  methods  which 
the  law  points  out.  In  the  plaintiff's  hands  the  rabbits  were  still  prop- 
erty, even  if  unlawfully  kept  for  sale.  If  deprived  of  them  by  a 
wrongful  seizure,  the  party  taking  them  should  be  made  responsible 
to  him  for  their  value.     *     *     * 

Exceptions  overruled. 

27  A  part  of  tlie  opinion,  on  a  question  of  defense,  Is  omitted. 
On    the   general    principle    involved    coiupaie   the   opinion    of    Mitchell,    J., 
in  Andeijsou  v.  Gouldberg  (1S92J  51  Minn.  294,  53  N.  W.  636. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  461 

JONES  V.  WINSOR. 
(Supreme  Court  of  South  Dakota,  190S.     22  S.  D.  480,  118  N.  W.  716.) 

CoRSOX,  J.  This  is  an  appeal  by  the  defendant  from  an  order  over- 
ruling his  demurrer  to  the  complaint.  It  is  alleged  in  the  complaint, 
in  substance: 

That  on  or  about  the  Ist  of  Api-il.  1907,  the  plaintiffs,  bein.2r  desirous  of 
securing-  a  francliise  for  a  city  railway  system  in  the  city  of  Sioux  Falls, 
employed  the  defendant  to  act  as  an  attorney  for  them  in  securing  or  at- 
tempting to  secure  an  ordinance  from  the  city  council  granting  the  plaintiffs 
such  license;  that  carrying  out  their  purpose,  or  attempting  to  cari-y  out 
the  same,  it  became  necessary  for  tlie  plamtiffs  to  make  a  deposit  -with  the 
city  treasurer,  and  on  said  day  the  plaintiffs  delivered  to  the  defendant  the 
sum  of  $2,500  to  be  by  him  deposited  with  the  said  treasurer  of  the  city, 
and  which  money  was  so  deposited,  as  appears  by  the  receipt  of  the  treasurer 
of  said  city  copied  in  tlie  said  complaint;  that  on  or  about  the  4th  day  of 
April  the  defendant  received  a  further  sum  of  ?130,  which  was  to  be  used 
by  the  defendant  for  these  plaintiffs  in  securing  or  attempting  to  secure  the 
said  franchise;  that  the  said  franchise  which  plaintiffs  were  attempting  to 
secure  from  said  city  was  not  granted  to  these  plaintiffs,  and  thereupon, 
about  the  17th  day  of  April,  the  city  treasurer  returned  to  the  defendant 
the  said  sum  of  $2,500  "as  money  belonging  to  these  plaintiffs  and  for  their 
use  and  benefit"  :  that  on  or  about  the  same  day  the  said  defendant  rendered 
to  these  plaintiffs  an  account  of  all  moneys  received  by  him  for  and  on 
account  of  these  plaintiffs,  with  an  itemized  statement  of  all  disbursements, 
and  in  connection  therewith  a  pretended  charge  for  his  seiwices  or  fee  of 
$1,250,  and  with  said  account  was  a  draft  drawn  iu  favor  of  the  plaintiffs 
for  $1,012.25 ;  that  the  pretended  charge  of  the  defendant  of  the  sum  of 
$1,250  as  shown  upon  said  account  and  alleged  to  be  for  services  rendered 
by  him  is  unjust,  unlawful,  and  fraudulent,  and  the  reasonable  value  of  the 
services  rendered  by  the  defendant  was  not  and  is  not  of  the  value  of  more 
than  $250;  that  of  the  moneys  so  received  by  the  defendant  for  and  on 
behalf  of  these  plaintiffs  and  for  their  use  and  benefit  there  remains  in  his 
hands  the  sum  of  $1,000,  which  he  has  refused  and  still  refuses  to  pay  over 
to  these  plaintiffs,  although  frequently  requested  so  to  do,  and  "he  has 
wrongfully  and  fraudulently  converted  to  his  own  use  the  said  sum  of 
$1,000"  ;  that  on  or  about  the  10th  day  of  September,  1907,  the  plaintiffs 
demanded  of  the  said  defendant  payment  of  the  aforesaid  sum  of  money, 
being  "the  amomit  wrongfully  and  fraudulently  retained  by  the  said  de- 
fendant at  the  time  he  made  to  the  plaintiff's  his  accounting  as  aforesaid," 
and  remitted  to  them  by  draft  the  sum  of  $1,012.25,  with  interest  upon  the 
said  sum  from  April  17th,  "but  the  said  defendant  then  and  there  refused 
and  still  refuses  to  pay  the  same  or  any  part  thereof  to  the  plaintiffs  and 
has  wrongfully  converted  the  same  to  his  own  use."  Wherefore  "plaintiffs 
demand  judgment  against  the  said  defendant  for  the  sum  of  $1,000  and 
interest  thereon  from  the  17th  day  of  April,  1907,  for  the  wrongful  conver- 
sion of  said  property  and  for  the  costs  of  this  action." 

To  this  complaint  the  defendant  interposed  a  demurrer  on  the 
ground  that  "said  complaint  does  not  state  facts  sufficient  to  constitute 
a  cause  of  action." 

It  is  contended  by  the  appellant  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action  in  trover  or  conversion, 
for  the  reason  that  the  complaint  nowhere  alleges  ownership  by  the 
plaintiffs  of  the  property  alleged  to  have  been  converted  at  the  time 
the  action  was  brought ;  nor  does  it  allege  ownership  or  possession  of 
the  property  in  the  plaintiffs  at  the  time  it  is  alleged  to  have  been 


462  TORTS   THROUGH  ACTS   OF   ABSOLUTE  LIABILITY  (Part  1 

converted  which  is  absohitely  essential  in  the  form  of  action.  Assum- 
ing that  the  complaint  in  this  case  was  intended  to  state  an  action 
for  the  conversion  of  this  money  by  the  defendant,  it  is  clearly  in- 
sufificient  in  not  alleging  that  the  plaintiffs,  at  the  time  the  defendant 
is  charged  with  having  converted  it,  were  the  owners  or  in  posses- 
sion of  the  money  so  alleged  to  have  been  converted.  In  Irving  v. 
Hubbard  et  al,  12  S.  D.  67,  80  N.  W.  156,  this  court,  in  discussing 
a  similar  question,  uses  the  following  language:  "In  actions  for  con- 
version the  pleader  must,  of  course,  allege  ownership  or  possession 
of  the  property  in  the  plaintiff  at  the  time  it  is  alleged  to  have  been 
taken."  Smith  v.  Force,  31  Minn.  119,  16  N.  W.  704;  Sawyer  v. 
Robertson,  11  Mont.  416,  28  Pac.  456;  Kennett  v,  Peters,  54  Kan.  119, 
Z7  Pac.  999,  45  Am.  St.  Rep.  274.     *     *     * 

The  order  of  the  circuit  court  overruling  the  demurrer  is  reversed.^^ 


NICHOLS   &  SHEPARD   CO.  v.    MINNESOTA   THRESHING 

MFG.  CO. 

(Supreme  Court  of  Minnesota,  1897.     70  Minn.  528,  73  N.  W.  415.) 

Action  of  trover  against  the  Minnesota  Threshing  Manufacturing 
Company.  Finding  for  defendant.  The  plaintiff  appeals  from  an 
order  denying  a  new  trial. 

Canty,  J.  The  complaint  alleges  in  substance,  that  in  June,  1892, 
one  Kenitzer  was  the  owner  of  a  threshing  machine  and  engine,  which 
was  then  in  South  Dakota,  where  Kenitzer  then  resided ;  that  on  that 
day  he  mortgaged  the  same  to  the  plaintiff  corporation  to  secure  the 
payment  of  $325  then  due  by  him  to  it,  and  that  the  mortgage  was 
then  duly  recorded  in  the  proper  office  in  the  county  of  his  residence ; 
that  thereafter,  in  1893,  while  said  mortgage  was  in  full  force  and 
effect,  and  after  the  conditions  thereof  were  broken,  and  when  plain- 
tiff was  entitled  to  the  immediate  possession  of  the  mortgaged  prop- 
erty, the  defendant  corporation  obtained  possession  of  all  of  the 
property,  and  "wrongfully  converted  the  same  to  its  own  use."  The 
answer  is  a  general  denial.  On  the  trial  before  the  court  without 
a  jury,  the  court  found  for  defendant,  and  from  an  order  denying 
a  new  trial  plaintiff  appeals.     *     *     *  '^ 

2.  The  trial  court  found  all  of  the  facts  hereinbefore  stated,  and 
found  as  a  conclusion  of  law  that  plaintiff  is  not  entitled  to  recover. 
The  court  seemed  to  be  of  opinion  that  these  facts  do  not  show  a 
conversion.    We  are  of  the  opinion  that  they  do.    True,  the  mortgage 

2«  In  an  omitted  portion  of  the  opinion,  tlie  question  whether,  under  the 
principle  of  the  one  form  of  action,  the  complaint  could  he  construed  as 
scttiii;^  up  a  cause  for  money  had  and  received,  was  considered  at  length, 
and  answered  in  the  ne^'ative. 

29  Part  of  the  opinion  is  here  omitted. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  463 

did  not  pass  the  title  of  the  mortgaged  property  to  the  mortgagee,  but 
is  a  mere  Hen.  It  is  also  true  that  the  mortgagor  had  a  vendible  in- 
terest in  the  property.  Defendant  could  not  be  held  guilty  of  con- 
version if  nothing  more  appeared  than  that  it  purchased  the  property 
from  the  mortgagor  for  an  adequate  consideration,  which  implies  good 
faith.  Kellogg  v.  Olson,  34  Minn.  103,  24  N.  W.  364;  Sanford  v. 
Elevator  Co.,  2  N.  D.  6,  48  N.  W.  434.  But  something  more  does 
appear.  Defendant  sold  the  property  to  Hayden.  The  sale  implies  a 
warranty  against  incumbrances,  including  this  lien  (Benj.  Sales  [6th 
Ed.]  632),  unless  the  contract  of  sale  expressly  provided  to  the  con- 
trary ;  and  it  does  not  appear  that  it  did  so  provide.  Then  the  finding 
that  defendant  sold  the  property  to  Hayden  amounts  to  a  finding  that 
it  "exercised  dominion  over  the  property  in  exclusion  and  defiance 
of  the  rights"  of  plaintiff,  which  will,  in  a  case  where  the  mortgage 
passes  the  legal  title,  amount  to  a  conversion.  See  4  Am.  &  Eng.  Enc. 
Law,  108;  Bish.  Noncont.  Law,  406.  The  same  is  true  where  the 
plaintiff  has  but  a  mere  lien,  if  it  entitled  him  to  the  immediate  pos- 
session. 1  Jones,  Liens  (2d  Ed.)  1035 ;  Sanford  v.  Elevator  Co.,  supra. 
The  fact  that  it  was  not  in  the  power  of  defendant  to  deprive  plain- 
tiff of  its  rights  in  the  property  is  not  the  test  of  whether  trover  will 
lie.  The  defendant,  being  in  possession,  may  be  taken  at  its  word; 
and,  if  it  exercises  a  dominion  over  the  property  hostile  to  and  in- 
consistent with  the  rights  of  plaintiff,  the  latter  may  maintain  an 
action  for  conversion. 

This  disposes  of  the  case.     The  order  appealed  from  is  reversed, 
and  a  new  trial  granted. 


RAYMOND  SYNDICATE  v.  GUTTENTAG. 
(Supreme  Judicial  Court  of  Massachusetts,  1901.    177  Mass.  562,  59  N.  E.  446.) 

The  superior  court  gave  judgment  for  the  plaintiff;  the  defendant 
brings  exceptions.  It  appeared  that  the  plaintiff's  chattels  were  at- 
tached by  the  defendant  while  they  were  in  the  possession  of  one  Wy- 
man  under  a  contract  that  he  should  have  the  use  of  them  for  a  term 
not  yet  expired  and  then  either  purchase  or  return  them. 

Barker,  J.  The  declaration  alleges  "that  the  defendant  has  con- 
verted to  his  own  use  the  property  of  the  plaintiff."  The  bill  of  ex- 
ceptions purports  to  state  the  facts  of  the  case,  and  that  the  defend- 
ant requested  rulings  that  the  plaintiff'  could  not  recover  upon  the  evi- 
dence, and  that  upon  the  evidence  the  plaintiff  was  not  entitled  to  the 
possession  of  the  goods,  and  consequently  could  not  maintain  the  ac- 
tion. Both  briefs  are  addressed  to  the  question  whether,  upon  the 
facts  stated,  the  action  would  lie  upon  the  declaration,  and  we  there- 
fore consider  that  question. 

The  declaration  follows  a  statute  form  first  given  in  St.  1851,  c. 
233,  and  which  is  also  found  in  St.  1852,  c.  312,  Gen.  St.  c.  129,  and 


464  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

Pub.  St.  c.  167.  None  of  these  statutes  abolished  the  action  of  trover. 
Each  of  them  enacted  that  there  should  be  only  three  divisions  of  per- 
sonal actions,  one  of  which  divisions,  actions  of  tort,  has  always  in- 
cluded the  action  of  trover  by  that  name,  the  two  first  statutes  desig- 
nating it  as  the  action  "now  known  as  trover,"  and  the  two  last  as  the 
action  "heretofore  known  as  trover."  St.  1851,  c.  233,  §  1;  St.  1852, 
c.  312,  §  1 ;  Gen.  St.  c.  129,  §  1 ;  Pub.  St.  c.  167,  §  1.  Under  the  old 
practice,  the  owner  of  chattels  could  not  maintain  trover  for  their  con- 
version, unless  when  the  acts  complained  of  were  done  he  had  pos- 
session or  the  right  to  immediate  possession.  Fairbank  v.  Phelps,  22 
Pick.  535,  and  cases  cited.  The  owner's  remedy  for  damage  to  his  re- 
versionary interest  in  chattels,  done  when  he  had  neither  possession 
nor  the  right  to  immediate  possession,  was  an  action  on  the  case. 
Ayer  v.  Bartlett,  9  Pick.  156;  Forbes  v.  Parker,  16  Pick.  462.  After 
the  adoption  of  the  practice  acts,  it  was  held  that  they  made  no  change 
in  the  rules  of  evidence  applicable  to  the  causes  of  action  compre- 
hended under  the  designation  of  actions  of  tort,  and  that  it  was  still 
necessary,  under  the  statute  form  given  for  trover,  that  the  evidence 
should  be  such  as  would  have  proved  a  conversion  in  an  action  of  tro- 
ver at  common  law.  Robinson  v.  Austin,  2  Gray,  564;  W'inship  v. 
Neale,  10  Gray,  382. 

It  is  settled  that  to  maintain  tort  under  a  declaration  like  the  present 
one  the  plaintiff  must  show  possession  or  the  right  to  immediate  pos- 
session. Winship  v.  Neale,  10  Gray,  382 ;  Landon  v.  Emmons,  97 
Mass.  37;  Ring  v.  Neale,  114  Mass.  Ill,  19  Am.  Rep.  316;  Clapp  v. 
Campbell,  124  Mass.  50;  Baker  v.  Seavey,  163  Mass.  522,  526,  40 
N.  E.  863,  47  Am.  St.  Rep.  475;  Field  v.  Early,  167  Mass.  449,  451, 
45  N.  E.  917.  The  ground  of  action  of  one  not  in  possession,  or  hav- 
ing the  right  to  immediate  possession  should  be  set  forth  in  a  different 
form.     Baker  v.  Seavey,  supra. 

The  facts  stated  show  that,  when  the  plaintiff's  chattels  were  at- 
tached by  the  defendant,  the  plaintiff  had  neither  possession  nor  the 
right  to  possession.  There  is  nothing  to  show  that  the  attachment  of 
the  goods  worked  a  forfeiture  of  Wyman's  right  to  retain  and  use 
them  under  his  contract  with  the  plaintiff,  or  gave  the  latter  a  right 
to  retake  them.  See  Ayer  v.  Bartlett,  9  Pick.  156,  160.  Therefore 
the  plaintiff  could  not  recover  in  the  action  upon  the  facts,  and  the 
jury  should  have  been  instructed  to  that  eft'ect,  in  accordance  with  the 
defendant's  requests.     *     *     *  so 

Exceptions  sustained. 

30  A  portion  of  the  opinion,  on  a  question  of  the  proper  evidence  of  damage 
in  coiiver.siou,  is  omitted 

Compare  Gordon  v.  Harper  (1790)  7  T.  R.  10:  (Goods  leased  by  P.  to  B. 
as  furniture  with  a  house  were  taken  on  execution  by  D.,  a  slieriff,  under 
an  execution  against  S.  The  levy  is  wrongful.  P.  brings  trover.  The  lease 
is  still  in  force.) 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  465 

(b)  The  Defendant's  Act 
(aa)  As  Part  of  the  Plaintiff's  Case 

ATTERSOL  v.  BRIANT. 

(At  Nisi  Prius,  Adjourned  Sittings  in  London,  ISOS.     1  Camp.  409.) 

Trover  for  5000  bricks.  The  case  opened  on  the  part  of  the  plam- 
tiff  was,  that  the  bricks  in  question  had  been  sent  to  the  defendant,  to 
be  carried  by  him  as  a  common  carrier,  and  dehvered  to  one  Stiles ; 
that  he  had  asserted  to  the  plaintiff  he  had  delivered  them  to  Stiles 
accordingly ;  but  that  in  truth  he  had  not  done  so,  and  they  had  never 
reached  Stiles's  hands.  Under  these  circumstances,  it  was  contended, 
the  defendant  must  be  taken  to  have  converted  the  bricks  to  his  own 
use. 

Lord  EllEnborough,  however,  said,  that  the  facts  stated  were  not 
sufficient  evidence  of  a  conversion  to  support  an  action  of  trover.  Al- 
though the  defendant  might  have  been  guilty  of  a  tort  respecting  the 
bricks,  it  did  not  appear  that  he  was  guilty  of  the  specific  tort  men- 
tioned in  the  declaration.    The  action  was  therefore  misconceived. 

Plaintiff  nonsuited. 


DRUDE  v.  CURTIS. 

(Supreme  Judicial  Court  of  Massachusetts,  1903.    183  Mass.  317,  67  N.  E.  317, 

62  L.  R.  A.  755.) 

■  The  plaintiff,  an  infant,  made  a  contract  of  purchase  from  the  de- 
fendant, also  an  infant,  and  paid  the  consideration.  After  the  seller 
had  spent  the  money  so  paid  him,  the  plaintiff'  elected  to  avoid  the  con- 
tract, and  brought  trover  for  the  consideration.  The  superior  court 
ruled  in  favor  of  the  plaintiff',  and  the  defendant  brought  exceptions. 
Hammond,  J.  Both  parties  being  infants  at  the  time  of  the  con- 
tract, either  could  avoid  it  without  a  return  of  the  consideration.  But 
neither  could  avoid  it  in  part.  He  must  avoid  it  wholly,  if  at  all.  And 
if  the  infant,  when  avoiding  the  contract,  has  in  his  hands  any  of  the 
specific  fruits,  the  act  of  avoiding  the  contract  by  which  he  acquired 
such  property  will  divest  him  of  all  right  to  retain  the  same,  and  the 
other  party  may  reclaim  it.  Chandler  v.  Simmons,  97  Mass.  508,  514, 
93  Am.  Rep.  117.  The  plaintiff',  who  was  the  buyer,  sought  first  to  ex- 
ercise his  right  to  avoid,  and  brought  this  action  to  recover  the  money ; 
and,  if  the  defendant  also  had  not  been  an  infant,  he  would  have  had 
no  defense,  upon  the  count  in  contract,  because  the  law  would  have 
implied  a  contract  upon  his  part  to  refund  the  money.  But  the  difii- 
culty  with  the  plaintiff's  case  is  that  the  defendant  is  meeting  the  plain- 
Hepb.Torts — 30 


4CG  TORTS  THROUGH  ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

tiff  with  a  weapon  like  that  used  by  him,  to  wit,  avoidance  of  a  con- 
tract on  the  ground  of  infancy.  And  while  the  infancy  of  the  plaintiff' 
is  a  shield  to  him,  it  does  not  prevent  the  defendant  from  relying  upon 
his  own  infancy  in  turn  as  a  shield  to  him.  So  far  as  respects  the  right 
of  the  defendant  to  take  advantage  of  his  own  infancy,  it  is  immate- 
rial whether  the  plaintiff'  be  an  infant  or  an  adult.  Can  the  plaintiff 
recover  in  this  action  the  money  paid  by  him  to  the  defendant?  The 
defendant  spent  it  before  the  plaintiff  avoided  the  contract.  His  plea 
of  infancy  is  a  complete  defense  to  the  counts  in  contract.  So  the 
court  ruled,  and  we  do  not  understand  that  the  correctness  of  this  rul- 
ing is  contested  by  the  plaintiff".  If  at  the  time  the  plaintiff  elected  to 
avoid  the  contract  the  defendant  had  in  his  possession  the  same  money 
which  he  received  from  the  plaintiff',  then  since,  by  reason  of  the  avoid- 
ance, the  defendant  had  no  right  further  to  hold  it,  the  plaintiff  per- 
haps might  have  maintained  replevin,  or,  upon  proper  proceedings 
taken,  have  maintained  trover  as  for  a  subsequent  conversion. 

The  plaintiff"  contends  that  trover  will  lie  even  if,  at  the  time  he 
avoided  the  contract,  the  money  had  been  spent.  But  one  great  diffi- 
culty upon  the  facts  in  this  case  is  to  find  any  conversion,  any  tortious 
dealing  with  the  money.  There  was  no  tortious  act  on  the  part  of  the 
defendant  in  obtaining  it.  It  was  paid  to  him  to  be  held  and  used  by 
him  as  his  own  money,  in  accordance  with  the  terms  of  a  contract 
which  is  not  claimed  to  have  had  in  it  any  element  of  fraud.  Tliere 
was  nothing  tortious  in  that.  Having  received  it  as  his  own  money, 
he  spent  it  as  such,  and  all  this  the  plaintiff,  not  yet  having  avoided 
the  contract,  must  be  held  to  have  expected  and  consented  to.  There 
was,  therefore,  nothing  tortious  in  any  act  of  the  defendant,  with 
reference  to  the  money,  before  the  contract  was  avoided.  Nor  has  the 
defendant  been  guilty  of  any  tortious  act  since,  unless  it  be  his  failure 
to  refund  an  equal  sum  to  the  plaintiff;  but  that  failure  at  the  most 
can  be  considered  only  as  a  breach  of  an  implied  contract,  and  this 
the  law  permits  him  to  avoid.  To  hold  that,  while  for  this  failure  to 
pay  over  under  these  circumstances  he  cannot  be  held  in  contract,  but 
still  can  be  held  in  tort,  is  to  convert  that  which  arises  out  of  a  con- 
tract into  a  tort,  and  to  take  away  the  shield  which  the  law  throws 
around  the  infant  for  his  protection.  Upon  this  theory  money  lent  to 
an  infant  might  be  recovered.  The  plaintiff  finds  himself  where  any 
one  is  likely  to  be  who  places  money  into  the  hands  of  an  infant  with 
the  right  to  spend  it  as  his  own  money,  and  the  right  has  been  exer- 
cised. Upon  this  general  subject  see  Slayton  v.  Barry,  175  Mass.  513, 
56  N.  E.  574,  49  L.  R.  A.  560,  78  Am.  St.  Rep.  510,  and  cases  cited; 
Carr  v.  Clough,  26  N.  H.  280,  59  Am.  Dec.  345. 

The  plaintiff  relies  upon  Walker  v.  Davis,  1  Gray,  506,  as  decisive 
in  favor  of  the  right  to  maintain  this  action,  but  an  examination  of  the 
case  will  show  that  the  ground  upon  which  the  decision  was  based 
in  no  way  conflicts  with  the  conclusion  to  which  we  have  come.  In 
that  case,  which  was  trover  for  the  conversion  of  a  cow,  it  appeared 


Ch.  2)  ABSOLUTE    TORTS  OTHER  THAN  TRESPASSES  467 

that  the  defendant,  an  infant,  pHed  the  plaintiff,  who  was  an  old  man, 
with  liquor  until  he  became  drunk,  and  then  took  advantage  of  the 
plaintiff's  incompetent  condition  to  trade  for  a  cow.  The  defendant 
took  the  cow,  and  gave  his  note  in  payment.  When  the  note  became 
due,  the  plaintiff  brought  a  suit  upon  it,  in  which  the  defendant  pre- 
vailed upon  the  plea  of  infancy.  The  plaintiff  then  brought  the  suit 
in  trover.  The  defense  was  that  the  plaintiff  had  waived  the  tort,  and 
affirmed  the  contract,  and  also  that,  when  the  note  fell  due,  the  defend- 
ant had  sold  the  cow,  and  parted  with  all  control  over  her.  The  court 
held  the  action  maintainable,  disposing  of  the  first  ground  of  the  de- 
fense by  saying  that,  since  the  defendant  also  had  avoided  the  con- 
tract, the  plaintiff"s  attempted  affirmance  did  not  become  operative, 
and,  as  to  the  second  ground,  that  there  had  been  a  conversion,  and 
consequently  trover  would  lie.  But  the  conversion  relied  upon  was 
not  the  sale  of  the  cow,  but  the  taking  at  the  time  of  the  contract.  The 
contract  was  voidable  by  the  plaintiff  upon  the  ground  of  fraud. 
Upon  coming  to  his  senses,  the  plaintiff  might  have  rescinded  the  con- 
tract, and,  without  any  demand,  have  brought  trover  for  the  cow  upon 
the  ground  that  she  had  been  tortiously  taken  from  him  under  a  fraud- 
ulent contract  (Thurston  v.  Blanchard,  22  Pick.  18,  33  Am.  Dec.  700) ; 
and  since,  at  the  time  of  this  suit,  his  right  to  rescind  still  existed,  the 
remedy  still  existed.  And  the  plea  of  infancy  was  no  defense,  be- 
cause, in  the  language  of  Thomas,  J. :  "The  defendant  obtained  the 
possession  of  *  *  *  the  cow  by  fraud,  a  fraud  to  which  infancy 
would  constitute  no  defense."  It  is  thus  seen  that  the  action  was  sus- 
tained upon  the  ground  that  the  original  taking,  being  fraudulent,  was 
tortious.  No  question  seems  to  have  been  made  as  to  whether  infancy 
would  have  been  a  defense  to  such  a  fraud.  The  court  assumed  that 
it  would  not  be  a  defense,  and,  having  so  assumed,  held  that  the  taking 
of  the  cow  at  the  time  of  the  contract  was  tortious.  Walker  v.  Davis 
is  therefore  no  authority  for  the  contention  that  the  subsequent  spend- 
ing of  the  money  by  the  defendant  in  this  case  was  tortious. 
Exceptions  sustained. 


McCarthy  et  al.  v.  HEISELMAN  et  al. 

(Supreme  Court  of  New  York,  Appellate  Divisiou,  1910.     140  App.  Div.  240, 

125  N.  Y.  Supp.  13.) 

The  action  was  against  three  defendants,  for  an  alleged  conversion. 
Two  of  the  defendants  moved  for  judgment  on  the  pleadings,  and  ap- 
peal from  an  order  refusing  this  judgment. 

Carr,  J.  This  action  is  to  recover  for  an  unlawful  conversion  of 
moneys  belonging  to  the  plaintiffs.  There  are  three  defendants.  One 
is  a  boy,  under  age,  and  the  other  two  are  his  parents.  The  complaint 
alleges  that  the  boy  was  hired  by  the  plaintiffs  to  work  in  their  store 
with  the  consent  of  the  parents,  and  that  during  the  employment  he 


468  TORTS  THROUGH  ACTS   OP   ABSOLUTE   LIABILITY  (Part  1 

turned  over  his  wages  to  them.  It  then  alleges  that  the  boy  from  time 
to  time 

"in  the  due  course  and  line  of  his  employment  and  without  the  knowledge 
or  consent  of  the  plaintiffs,  *  *  *  ^^^^^j^^  fi-cm  the  possession  of  the  plain- 
tiffs and  unlawfully  and  illegally  retained  and  kept,  and  converted  to  the 
use  of  the  defendants,  various  small  sums  of  money,  aggregating,  however, 
to  about  $1,000." 

The  defendant  parents  have  moved  for  judgment  on  the  pleadings, 
claiming  that,  as  against  them,  the  complaint  states  no  cause  of  action. 
On  a  motion  of  this  character  the  complaint  is  to  be  searched  as  on 
demurrer.  A  demurrer  cannot  be  sustained  simply  because  the  facts 
in  a  complaint  are  averred  imperfectly  or  informally,  but  the  pleading 
will  be  deemed  to  allege  whatever  can  be  implied  from  its  statements 
by  fair  and  reasonable  intendment.  Kain  v,  Larkin,  141  N.  Y.  144, 
36  N.  E.  9. 

It  will  be  noted  that  the  complaint  does  not  state  that  the  parents 
have  received  from  the  boy  the  moneys  which  he  stole,  nor  aver  that 
the  stealing  was  done  at  their  suggestion  or  with  their  consent.  The 
pleading  does  state  that  the  boy  gave  his  wages  to  the  parents,  and  the 
pleaders  contend  that  there  is  a  fair  implication  that  he  likewise  turned 
over  his  stealings  to  them.  To  hold  this  would  push  the  doctrine  of 
fair  intendment  or  implication  to  an  absurd  length.  It  is  clearly  not 
permissible  here.  It  is  true  that  the  essence  of  a  conversion  is  not 
an  evil  intent,  and  that  the  exercise  of  an  unlawful  dominion  over  the 
chattel  or  personal  property,  even  in  good  faith,  may  constitute  a 
conversion.  Boyce  v.  Brockway,  31  N.  Y.  490.  And,  where  a  com- 
plaint sets  forth  the  receipt  or  possession  of  the  chattel  by  the  defend- 
ant in  order  to  charge  conversion,  it  is  not  necessary  to  specify  in  de- 
tail the  tortious  acts  of  dominion  exercised  by  the  defendant,  and  a 
mere  statement  that  he  "converted  it  to  his  own  use"  will  be  held  suffi- 
cient.   Decker  v.  Mathews,  12  N.  Y.  313. 

Yet,  in  this  pleading,  the  charge  is  that  the  boy  converted  the  mon- 
eys, not  simply  to  his  own  use,  but  "to  the  use  of  the  defendants," 
including  himself  and  his  parents.  As  to  them,  there  is  no  allegation 
of  a  taking  or  possession  on  their  part  on  which  can  be  based  any  im- 
plication of  the  exercise  by  them  of  a  dominion  over  the  chattels.  If, 
however,  the  action  be  treated  as  one  for  money  had  and  received, 
there  is  likewise  no  sufficient  allegation  in  the  complaint  that  the  par- 
ents ever  received  and  had  the  moneys  in  question.  The  complaint 
states  a  good  cause  of  action  for  conversion  by  the  boy,  but  none  as 
against  the  parents,  unless  they  are  to  be  held  liable  for  the  boy's  tort. 
The  general  rule  of  the  common  law  is  that  a  parent  is  not  liable  for 
the  torts  of  a  child  without  some  participation  on  his  part  in  the  un- 
lawful act.  Tifft  V.  Tifft,  4  Denio,  175;  29  Cyc.  1665.  Such  partici- 
pation is  to  be  alleged  and  proved.  It  is  not  presumed,  as  a  matter 
of  law,  from  the  simple  relation  of  parent  and  child. 

The  facts  of  the  case  as  developed  on  a  trial  may  give  rise  to  a  pre- 


Ch.  2)  ABSOLUTE    TOUTS   OTHER  THAN   TRESPASSES  409 

sumption  of  fact,  as  in  Beedy  v.  Reding,  16  Me.  362,  and  Hower  v. 
Ulrich,  156  Pa.  410,  27  Atl.  37.  In  both  these  cases  the  parent  was 
held  Hable  for  the  trover  of  minor  children  who  carried  away  wood 
and  corn  from  third  persons,  and  the  parent  kept  and  used  the  articles. 
These  cases  were  decided,  however,  on  the  theory  that  the  parent  by 
his  acts  had  either  constituted  the  child  as  his  agent  or  had  subsequent- 
ly ratified  an  implied  agency.  The  liability  arose  clearly  not  from  the 
relation  of  parent,  but  from  the  principles  of  agency.  In  the  pleading 
before  us,  there  is  no  fact  alleged  to  indicate  any  agency  of  the  boy 
for  the  parents  in  the  conversion  or  the  disposition  of  the  proceeds  of 
the  conversion.  Was  the  boy  in  this  case,  while  employed  by  the 
plaintiffs,  the  agent  of  his  parents  in  any  aspect?  It  is  true  he  went 
into  the  plaintiffs'  service  with  the  consent  of  his  parents,  and  turned 
over  his  wages  to  them.  This  fact  alone  does  not  make  him  the  serv- 
ant of  his  parents  while  engaged  in  the  service  of  another.  To  hold 
otherwise  would  enlarge  the  scope  of  a  parent's  liability  for  the  torts 
of  a  child  beyond  reasonable  limits,  and  lead  to  a  result  not  only  most 
inconvenient,  but  contrary  to  the  common  understanding. 

The  order  should  be  reversed  with  $10  costs  and  disbursements,  and 
the  motion  for  judgment  granted,  unless  within  20  days  the  plaintiffs 
apply  at  Special  Term  and  obtain  leave  to  serve  an  amended  complaint. 
All  concur. 


(bh)  Conversion  through  Demand  and  Refusal 

MAGEE  v.  SCOTT. 
(Supreme  Judicial  Court  of  Massachusetts,  1851.    0  Cusli.  148,  55  Am.  Dec.  49.) 

Shaw,  C.  J.  This  is  an  action  of  trover  for  furniture,  in  which 
a  verdict  was  found  for  the  plaintiff,  and  the  case  comes  before  us  on 
the  defendant's  exceptions.  This  cause  has  been  very  elaborately 
argued,  but,  when  understood,  it  appears  to  us  to  be  governed  by  a 
few  plain  principles.  It  turns  upon  the  directions  of  the  judge,  who 
tried  the  cause,  in  matter  of  law. 

It  is  to  be  regretted  that  the  facts  appearing  on  the  trial,  showing 
the  relations  of  the  parties,  and  the  circumstances  under  which  the 
goods,  admitted  to  be  the  property  of  the  plaintiff',  came  into  the  pos- 
session of  the  defendant,  are  not  stated,  in  order  to  show  the  appli- 
cation of  the  rule  of  law  laid  down  by  the  court.  Such  circumstances 
will  usually  indicate  what  was  the  nature  and  character  of  such  change 
of  possession,  whether  in  consequence  of  a  sale  or  temporary  loan, 
or  how. 

The  plaintiff  is  proved  to  be  the  owner  of  the  property,  and  that 
right  of  property  will  continue  until  a  change  proved  as  by  sale,  lien, 
or  voluntary  loan.  Whoever  relies  on  such  change  must  prove  it; 
the  proof  lies  on  him.    All  that  appears  in  the  present  case  is,  that  the 


470  TORTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

property  came  into  the  possession  of  the  defendant,  with  the  plain- 
tiff's consent. 

How  ?  On  what  trust  or  contract  ?  This  does  not  appear.  Demand 
of  the  goods  was  made,  and  a  refusal  to  deliver  them  by  the  defendant 
to  the  plaintiff,  on  such  demand,  before  action  brought,  and  this  is 
evidence  of  a  conversion,  conclusive,  if  not  rebutted.^ ^  We  are  then 
called  on  to  consider  the  directions  given  by  the  judge  on  the  trial. 

The  first  was,  that  presumption  of  ownership  continues  until  some 
alienation  is  shown.  This  is  correct.  A  party  having  this  ownership 
does  not  lose  it,  by  permitting  another  to  be  in  possession.  The  or- 
dinary mode  of  proving  property  is,  proving  that  it  was  purchased  and 
]iaid  for,  and  it  will  be  deemed  in  law  to  be  the  purchasers'  until  some- 
thing is  shown  to  change  the  title,  and  merely  parting  with  the  pos- 
session affords  no  conclusive  evidence  of  such  change.  Possession 
is  prima  facie  evidence  of  title,  good  against  everybody  but  one  prov- 
ing property ;  that  is,  against  any  one  but  the  right  owner.  Armory 
V.  Delamirie,  1  Stra.  505.  This  case  of  the  chimney  sweeper's  boy, 
from  Strange,  well  illustrates  these  principles.  A  chimney  sweeper's 
boy,  having  found  a  jewel,  carried  it  to  a  goldsmith,  to  ascertain  its 
value,  but  the  goldsmith,  by  his  apprentice,  detained  it,  and  refused 
to  restore  it.  The  boy  having  brought  trover,  it  was  held  that  his  pos- 
session was  some  evidence  of  property,  good  against  any  one  but 
the  true  owner,  and  that  he  could  maintain  trover  for  it,  on  such 
prima  facie  proof  of  title ;  and  that  refusal  to  restore  it  to  him,  on 
demand,  was  evidence  of  a  conversion. 

The  defendant's  possession  was  prima  facie  evidence  of  title  in  him, 
but  it  was  rebutted  by  proof  of  prior  possession,  and  actual  ownership, 
on  the  part  of  the  plaintiff.  The  burden  of  proof  was  on  her,  and 
she  sustained  it  by  proof  of  title. 

Exceptions  overruled  and  judgment  on  the  verdict  for  the  plain- 
tiff. 


SEVERIN  V.  KEPPEL. 

(At  Nisi  Prius,  Sittings  after  Term,  at  Westminster,  1803.     4  Esp.  1.56.) 

This  was  an  action  of  trover,  for  several  articles  of  plate  and  plat- 
ed goods,  staled  in  the  declaration. 

The  defendant  was  a  silversmith ;  and  they  had  been  delivered  to 
him  for  the  purpose  of  putting  glasses  into  them.     He  had  been  ap- 

81  Compare  the  remark  of  Coke,  C.  J.,  in  Isaack  v.  Clark  (161.3)  2  Rnlst. 
306,  314:  "In  tliis  case  we  do  all  of  us  agree  in  this,  that  prima  facie, 
a  denj-er  upon  a  demand  is  a  good  evidence  to  a  jury  of  a  conversion;  but 
if  the  contrary  be  shewed,  then  the  same  is  no  conversion." 

And  see  the  remark  of  Holt,  C.  J.,  in  Baldwin  v.  Cole  (1704)  6  Mod.  212: 
"The  very  denial  of  goods,  to  him  that  has  a  right  to  demand  them,  is  an 
actual  conversion,  and  not  only  evidence  of  it,  as  has  been  holden,"  On 
the  point  see  also  Salniond,  Torts  (2d  Ed.)  297,  298. 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  471 

plied  to,  on  many  occasions,  for  the  articles  so  delivered  to  him ;  he 
made  excuses,  and  said,  the  glass  was  not  come  from  the  glass- 
blower's;  there  was  no  denial  at  any  time  to  deliver  the  goods,  but 
rather  excuses  for  not  delivering  them  :  however,  in  one  instance,  the 
defendant  admitted  that  the  glass  was  come  home ;  but  he  then  said, 
his  wife  was  out,  and  he  could  not  deliver  them.  He  afterwards  de- 
livered the  plated  goods,  and  said  he  had  sent  the  silver  ones  home, 
which  was  not  true. 

It  was  objected  by  the  defendant's  counsel,  that  on  the  evidence 
given,  there  was  no  conversion  sufficient  to  support  the  action  of 
trover. 

Erskine,  for  the  plaintifif,  contended.  That  the  defendant  having, 
in  the  last  instance,  admitted  his  possession  of  the  goods,  and  having 
made  a  frivolous  and  false  pretence  for  not  delivering  the  articles, 
after  his  repeated  excuses  before  made,  that  it  was  evidence  of  con- 
version sufficient  to  go  to  the  jury;  particularly  from  the  circumstance 
of  his  having  returned  the  plated  goods,  and  pretended  to  have  sent 
home  the  other ;   which  was  not  the  case. 

Lord  Ellsnbo rough  said,  he  thought  the  plaintiff  should  be  non- 
suited, as  there  was  no  evidence  to  sustain  the  action  in  its  present 
form :  that  what  begins  in  contract,  a  non-performance  of  what  the 
party  so  undertakes  to  do ;  or  a  bare  non-delivery  of  what  he  under- 
takes to  deliver,  is  not  to  be  considered  as  of  itself  amounting  to  a 
tortious  conversion.  There  was  a  case  in  the  Court  of  King's  Bench 
some  time  ago,  in  which  that  principle  was  recognized.  It  was  an 
action  of  trover  against  a  carrier,  for  not  delivering  goods.  If  a 
carrier  sa3's  he  has  the  goods  in  the  warehouse,  and  refuses  to  de- 
liver them,  that  will  be  evidence  of  conversion,  and  trover  may  be 
maintained;  but  not  for  a  bare  non-delivery,  without  any  such  re- 
fusal. So  in  this  case,  the  goods  were  delivered  to  the  Defendant  to 
work  upon.  There  was  no  evidence  of  any  refusal  by  him  to  deliver 
them;  but,  on  the  contrary,  he  makes  excuses  for  not  doing  it. 
The  plaintiff  must  be  called.^^ 

32  Compare  Whiting  v.  Wliiting  (1913)  111  Me.  13,  87  Atl.  381 :  D.  held 
eight  $1,000  bonds  for  his  brother,  who  assigned  them  to  his  wife,  P.  She 
made  a  demand  upon  D.  at  liis  residence  in  his  last  illness,  shortly  before  his 
death.  D.  kept  the  bonds  in  a  safe  deposit  box  away  from  his  residence, 
and  when  the  demand  was  made  said  that  he  could  not  deliver  the  bonds 
Ijecause  the  gi-andfather  of  his  brother's  children  by  his  first  wife  had 
requested  him  not  to  do  so.  Held  that,  as  there  w-as  no  evidence  of  a  negation 
of  the  owner's  right,  there  was  no  conversion.  And  see.  in  general,  as  to  what 
amounts  to  a  refusjil,  38  Cyc.  2039-2040.  notes  18-24 ;  47  Cent.  Dig.  "Trover 
and  Conversion,"  §  78;  19  Dec.  Dig.  "Trover  and  Conversion,"  §  9(12);  27 
Halsbury's  Laws  of  England,  "Trover  and  Detinue,"  894-897. 


472  TORTS  THROUGH  ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 


RUSHWORTH  v.  TAYLOR. 

(Court  of  Queen's  Bench,  1842.    3  Q.  B.  699,  114  Reprint,  674,  61  B.  B.  358.) 

Trover   for  a  gun.     Plea,  not  guilty.     On  the  trial  before  Lord 

Dennian,  C.  J.,  it  appeared  that  the  plaintiff,  in  July  or  August,  1839, 

put  the  gun  into  the  possession  of  one  Cross,  to  be  sold.     Cross,  with 

the  view  of  obtaining  a  purchaser,  lent  it  to  one  Todd;    and  Todd 

lent  it  to  the  defendant  to  try.     Defendant  overcharged  the  gun,  and 

burst  it.     Plaintiff  afterwards  wrote  to  the  defendant  as  follows : 

"Mr.  George  Taylor :  I  hereby  give  you  notice  that  the  double-barrelled 
gun  you  received  from  Bobert  Todd,  which  he  received  from  Thomas  Cross, 
who  had  previously  received  the  same  from  me  for  the  purpose  of  making 
sale  thereof,  is  my  property ;  and  I  hereby  demand  the  same  of  you,  and 
require  you  forthwith  to  deliver  the  same  to  me  in  the  same  plight  and  con- 
dition as  the  said  gun  was  in  at  the  time  you  received  the  same  from  the 
hands  of  the  said  Bobert  Todd.    Dated  this  11th  day  of  March,  1840. 

"John  Bushworth." 

Defendant  said  that  he  would  not  pay  for  the  repair  of  the  gun. 
He  afterwards  redelivered  it  to  Todd,  for  the  purpose,  as  he  said,  of 
his  taking  it  to  a  gunmaker's ;  and  it  was  then  taken  (but  by  whom  it 
did  not  distinctly  appear)  to  a  gunsmith  at  Hull,  and  remained  in 
the  possession  of  the  gunsmith  or  of  the  defendant,  never  having  been 
restored  to  the  plaintiff,  when  this  action  was  brought. 

The  Lord  Chief  Justice  thought  it  difficult  to  say  that  the  qualified 
demand  contained  in  the  letter  (that  the  gun  should  be  delivered  up 
"in  the  same  good  plight,"  &c.),  and  the  refusal  which  followed,  were, 
of  themselves,  proof  of  a  conversion;  and  he  directed  the  jury  to  find 
for  the  defendant  on  the  first  count,  if,  in  their  opinion,  there  had 
been  no  denial  of  the  plaintiff's  right.  Verdict  for  defendant  on  all 
the  issues. 

W.  H.  Watson  now  moved  for  a  new  trial  on  the  ground  of  mis- 
direction, and  contended  that  the  demand  and  refusal,  if  not  of  them- 
selves evidence  of  a  conversion,  fully  proved  it  when  coupled  with  the 
other  facts  of  the  case,  to  which  the  jury's  attention  had  not  been 
sufficiently  directed  in  the  suirmiing  up.  (Lord  D^nman,  C.  J.  The 
claim  in  trover  was  founded  on  a  demand  and  refusal;  and  the  de- 
mand was  that  the  gun  should  be  delivered  in  the  same  good  plight 
as  when  the  defendant  received  it.  Refusal  of  such  a  demand  is 
different  from  refusing  altogether  to  restore.) 

Williams,  J.  The  case  was  properly  put  to  the  jury  as  to  the  de- 
mand and  the  refusal.  A  demand  of  the  article  in  statu  quo  was  not 
a  demand  on  which,  in  case  of  refusal,  a  charge  of  conversion  could 
be  founded.    The  rest  of  the  evidence  did  not  bear  out  the  declaration. 

Coleridge,  J.  I  am  of  the  same  opinion.  The  qualified  demand 
could  not  be  complied  with;  and  the  rest  of  the  evidence  was  not 
clear  enough  to  entitle  the  plaintiff  to  recover. 

Lord  Denman,  C.  J.,  and  Wightman,  J.,  concurred. 

Rule  refused. 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  473 

SMITH  V.  YOUNG. 
(At  Nisi  Prius,  1S08.     1  Camp.  439.) 

Trover  by  Smith,  as  assignee  of  a  bankrupt,  for  a  lease  assigned 
by  the  bankrupt  to  the  defendant  after  an  act  of  bankruptcy.     *     *     * 

When  the  lease  was  demanded  the  defendant  said  "he  would  not 
deliver  it  up;  but  it  was  then  in  the  hands  of  his  attorney,  who  had 
a  lien  upon  it  for  a  small  sum  of  money  due  to  him." 

Garrow,  for  the  plaintiff,  contended  that  the  attorney's  possession 
of  the  lease  was  in  law  the  possession  of  the  defendant,  who  must  be 
considered  as  having  a  complete  control  over  it,  and  that  the  lien  did 
not,  under  these  circumstances,  prevent  the  refusal  to  deliver  up  the 
deed  from  amounting  to  a  conversion. 

Lord  Elle;nborough.  The  defendant  would  have  been  guilty  of  a 
conversion  if  it  had  been  in  his  power;  but  the  intention  is  not 
enough.  There  must  be  an  actual  tort.  To  make  a  demand  and  re- 
fusal sufficient  evidence  of  a  conversion,  the  party  when  he  refuses 
must  have  it  in  his  power  to  deliver  up  or  to  detain  the  article  de- 
manded.^^ 

Plaintiff  nonsuited. 


WRIGHT  V.  FRANK  A.  ANDREWS  CO. 

(Supreme  Judicial  Court  of  Massactiusetts,  1912.    212  Mass.  1S6,  98  N.  B.  798.) 

This  was  an  action  by  Wright,  in  tort  or  contract,  for  the  conversion 
of  a  diamond  ring  or  for  breach  of  contract  in  failure  to  deliver  the 
ring.  The  court  refused  the  following  request  presented  by  the  de- 
fendant : 

"Eightli.  If  at  the  time  of  the  demand  upon  the  defendant  by  the  plaintiff 
for  the  delivery  of  the  ring,  the  ring  was  not  then  in  the  possession  of  the 
defendant,  the  refusal  of  the  defejndant  to  deliver  the  ring  would  not  con- 
stitute conversion." 

There  was  a  judgment  for  plaintiff,  and  defendant  brings  excep- 
tions. 

Sheldon,  J.  The  jury  could  find  that  the  plaintiff  purchased  a  par- 
ticular diamond  of  the  defendant,  the  title  to  which  at  once  passed  to 

3  3  Part  of  the  case,  raising  a  question  of  evidence,  is  omitted.  Reporter's 
query:  "If  the  defendant  had  said  he  had  delivered  the  deed  to  his  attorney, 
would  this  have  amounted  to  evidence  of  a  conversion?" 

Accord:  De  Young  v.  Frank  A.  Andrews  Co.  (191.*'.)  214  Mass.  47,  100  N. 
E.  lOSO :  "When  the  plaintiff  relies  upon  demand  and  refusal  as  independent 
and  basic  evidence  of  conversion,  it  must  appear  that  at  the  time  of  the 
demand  and  refusal  the  defendant  has  the  control  of  the  article  so  as  to  be 
able  to  couii)ly  with  the  demand;  and  the  burden  of  proving  all  this  is  upon 
the  plaintiff'.  Lord  Ellenborough  in  Sn)ith  v.  Young  (180S)  1  Camp.  4o9, 
441 ;  2  Greeul.  on  Ev.  (J44,  and  cases  cited.  See  also,  Johnson  v.  Couillard 
(1862)  4  Allen  (Mass.)  446;  GiUnore  v.  Newton  (1864)  9  Allen  (Mass.)  171, 
85  Am.  Dec.  749."     Per  Hammond,  J. 

See,  also,  38  Cyc.  2034,  and  notes  85,  86. 


474  TORTS  THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

the  plaintiff,  but  that  he  left  it  with  the  defendant  to  be  set  in  a  ring, 
for  the  whole  price  of  $500,  of  which  he  paid  down  the  sum  of  $100. 
They  also  could  find  that  the  stone  was  set  in  the  ring  to  his  satisfac- 
tion and  acceptance,  and  that  the  defendant  then  retained  it  until  he 
should  make  full  payment  therefor.  The  plaintiff,  as  it  could  be 
found,  could  not  then  pay  the  residue  of  the  price,  and  after  a  con- 
siderable delay  made  an  offer  to  the  defendant  to  rescind  the  purchase 
and  take  back  what  he  had  paid ;  but  the  defendant  did  not  accept  this 
oft'er.  After  still  further  delay  he  tendered  the  balance  due  to  the 
defendant  and  demanded  the  ring,  and  the  defendant  merely  answered 
that  it  did  not  then  have  the  ring  but  could  get  it.  By  the  tender  any 
lien  which  the  defendant  had  upon  the  ring  was  ended,  and  the  plain- 
tiff was  entitled  to  immediate  possession  thereof,  as  could  be  found, 
but  the  defendant  refused  to  give  it  to  him.  If  so,  he  was  entitled  to 
maintain  an  action  for  its  conversion.  Gilmore  v.  Newton,  9  Allen, 
171,  85  Am.  Dec.  749;  ^lilliken  v.  Hathaway,  148  Mass.  69,  19  N.  E. 
16,  1  L.  R.  A.  510.  The  jury  need  not  believe  the  defendant's  testi- 
mony that  it  was  not  then  in  possession  of  the  ring.     *     *     * 

The  eighth  request  contained  a  correct  statement  of  the  law  so  far 
as  it  went.  Johnson  v.  Couillard,  4  Allen,  446.  But  it  ought  not  to 
have  been  given  without  leaving  it  also  to  the  jury  to  say  whether 
before  the  demand  and  refusal  the  defendant  had  parted  with  or  con- 
verted the  ring,  or  otherwise  by  its  merely  wrongful  act  had  disabled 
itself  from  delivering  it  to  the  plaintiff  (Gilmore  v.  Newton,  9  Allen, 
171,  85  Am.  Dec.  749;  Milliken  v.  Hathaway,  148  Mass.  69,  19  N.  E. 
16,  1  L.  R.  A.  510),  or  whether  the  ring,  even  if  not  in  the  immediate 
possession  of  the  defendant,  was  yet  not  within  its  full  control,  as  the 
statement  of  its  president  testified  to  by  the  plaintiff'  indicated. 

Exceptions  overruled  ^^ 


DUNLAP  V.  HUNTING. 

(Supreme  Court  of  New  York,  1S4G.     2  Denio,  64.3,  43  Am.  Dec.  763.) 

Dunlap  sued  Hunting  before  a  justice  in  trover  for  two  law  books ; 

and  the  case  was  as  follows : 

The  plaintiff  was  a  constable  of  Ovid,  Seneca  Co.,  and  had  a  warrant 
from  the  president  of  a  tourt-martial  to  collect  a  fine  from  the  defendant. 
The  plaintiff  went  to  the  defendanf.s  othce  in  Furmerville,  and  levied  upon 
two  of  his  law  books,  which  were  left  in  the  defendant's  possession  on  hi.s 
agreeing  to  deliver  them  to  the  plaintiff  at  some  future  time.  The  plaintiff 
afterwards  saw  the  defendant  at  Ovid,  and  demanded  the  books.  Tlie  de- 
fendant replied,  either  that  he  had  not  got  the  books,  or  that  he  would  not 
give  them  up;  the  impression  of  the  witness  was,  that  he  said  he  had  not 
got  the  books. 

Bronson,  C.  J.  The  proof  leaves  it  somewhat  uncertain  where  and 
when  the  books  were  to  be  delivered.     But  assuming  that  they  were 

34  A  part  of  the  case,  on  another  point,  is  omitted.  Compare  De  Young 
V,  Frank  A.  Andrews  Co.  (1913)  214  Mass.  47,  100  N.  El  1080. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  475 

to  be  delivered  at  the  defendant's  office  in  Farmen-ille  on  demand,  it 
was  not  indispensable  to  a  right  of  action  that  the  demand  should  be 
made  at  that  place.  Property  may  be  demanded  of  a  bailee  wherever 
he  may  be  at  the  time,  and  although  he  is  not  bound  to  deliver  it  at 
that  place.  And  then  if  the  bailee  answer  that  he  is  ready  to  de- 
liver at  the  proper  place,  there  will  be  no  breach  of  his  duty.  But  if 
he  deny  the  right  of  the  bailor  and  refuse  to  deliver  the  property  at 
all,  there  could  be  no  use  in  making  another  demand,  and  the  bailee 
will  be  answerable  in  the  proper  action.  Scott  v.  Crane,  1  Conn.  255 ; 
Higgins  V.  Emmons,  5  Id.  76,  13  Am.  Dec.  41 ;  Slingerland  v.  Morse, 
8  Johns.  474;  Mason  v.  Briggs.  16  Mass.  453;  2  Kent,  508.  Now 
here,  although  the  demand  was  made  at  Ovid,  if  the  defendant's  an- 
swer was  that  he  would  not  give  up  the  books,  that  was  a  full  denial 
of  the  plaintiflf's  right,  and  no  further  demand  could  be  necessary.  If 
the  answer  was  that  he  had  not  got  the  books,  that  would  make  a 
more  doubtful  case.  But  as  the  defendant  did  not  intimate  that  he  had 
lost  the  books,  or  that  anything  had  happened  to  discharge  his  obliga- 
tion as  a  bailee,  the  answer  involved  a  denial  of  the  bailment  and 
amounted  to  a  refusal  to  deliver  the  property.  At  least,  the  answer 
may  have  been  so  understood  by  the  jury.  A  bailee  is  not  at  liberty 
to  be  silent  when  a  reasonable  demand  is  made,  though  not  at  the  place 
for  delivery.  Higgins  v.  Emmons,  5  Conn.  76,  13  Am.  Dec.  41.  Here, 
there  was  nothing  like  a  satisfactory  answer,  and  I  think  the  evidence 
was  sufficient  to  carry  the  cause  to  the  jury,     *     *     *  ^^ 


(ccj  Conversion  without  Demand  and  Refusal 
(1)  In  General 

BRUEN  V.  ROE. 

(Court  of  King's  Bench.  1665.    1  Sid.  2&i,  82  Reprint,  1095.) 

On  a  special  verdict  in  trover  and  conversion.  *  *  * 
3.  It  was  held  by  the  court  on  the  verdict  that  if  in  trover  and  con- 
version an  actual  taking  of  goods  is  given  in  evidence,  this  is  suffi- 
ciently good  without  proving  a  demand  and  denial,  as  the  taking  of  my 
cap  from  my  head ;  for  that  is  actual  conversion ;  but  when  the  thing 
comes  by  trover,  there  ought  to  be  an  actual  demand,  etc. 


36 


3  5  Part  of  the  opinion  is  omitted. 

Compare  Richards  v.  Pitts  Agricultural  Works  (1885)  37  Hun  (N.  Y.)  1: 
(P.'s  tlireshing  machine  is  in  the  posses.sion  of  D.  It  is  demanded  by  P. 
No  reply  is  made  by  D.  "The  cases  where  silence  of  the  person  havinj;  i)os- 
session  of  property,  on  demand  being  made  on  him  by  the  owner,  is  held  to 
constitue  evidence  of  refusal,  are  distinguishable  from  the  one  at  bar." 
Per  Bradley,  J.,  reviewing  the  authorities.) 

3  6  The  te.xt  is  a  translation  from  the  report  in  Siderfln.  In  Fowler  v. 
Hollius  (1872)  L.  R.  7  Q.  B.  616,  627,  628,  Mr.  Justice  Brett  makes  the  fol- 


476  TORTS  THROUGH  ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

IRISH  V.  CLOYES  et  al. 
(Supreme  Court  of  Vermont,  1S3G.    8  Vt.  30,  30  Am.  Dec.  446.) 

Trover.  Verdict  for  the  defendants.  The  plaintiff  excepted  to  the 
charge  to  the  jury. 

Re;dkiELd,  J.  In  relation  to  the  first  point  decided  by  the  court 
here,  the  question  arose  in  reference  to  certain  "mill  logs,"  which  were 
on  the  land,  conveyed  by  plaintiff  to  defendants.  There  was  evidence 
in  the  case,  that  the  plaintiff  had  also  sold  this  lumber  to  defendants. 
But  this  point  being  controverted,  it  became  necessary  to  inquire 
whether  any  sufficient  evidence  of  a  conversion  by  defendants  had 
been  given.  The  only  evidence  relied  upon  was,  that  after  the  con- 
veyance of  the  land,  some  stranger  wishing  to  purchase  the  logs,  ap- 
plied to  defendants  for  permission  to  purchase  them  of  plaintiff.  The 
defendants  refused  to  give  any  such  permission  or  consent,  on  the 
alleged  ground  that  they  had  already  bought  the  logs  of  plaintiff.  The 
case  finds  that  the  defendants  had  not  in  any  other  way  whatever  in- 
terfered with  the  property  in  question. 

For  the  purposes  of  the  consideration  of  this  question  it  is  to  be 
conceded  that  the  "logs"  were  the  property  of  the  plaintiff.  And  we 
have  no  doubt  that  the  mere  assertion  by  defendants,  that  the  proper- 
ty belonged  to  them,  is  not  in  any  sense  evidence  of  a  conversion,  or 
from  which  a  conversion  can  be  inferred.  If  this  assertion  had  been 
made  in  plaintiff's  presence,  and  at  a  time  when  he  claimed  to  take 
possession  of  the  logs,  and  for  the  purpose  of  deterring  him  therefrom, 
it  might  merit  a  difTerent  consideration.  But  made  as  it  was  to  a 
stranger,  and  not  in  the  presence  of  plaintiff,  or  within  view  of  the 
logs,  it  would  be  too  much  to  say  this  is  evidence  from  which  the 
jury  could  be  permitted  to  infer  a  conversion  of  the  property  by  de- 
fendants. 

This  is  in  accordance  with  the  decisions  which  have  been  had  upon 
analogous  cases.  Any  mere  assertion  of  the  right  of  dominion  is  never 
permitted  to  go  to  the  jury,  in  cases  of  trover,  as  evidence  of  a  con- 
version, unless  the  assertion  is  made  in  view  of  the  property,  and  in 
presence  of  the  owner,  and  in  order  to  deter  him  from  exercising  his 
just  control  over  it.  A  demand  and  refusal  are  evidence  of  a  conver- 
sion only  when  the  defendant  had,  at  the  time  of  the  demand,  the  ac- 
tual custody  of  the  property,  so  that  he  might  have  delivered  it  if  he 
would.  Hence  in  the  case  of  title  deeds,  which  had  been  wrongfully 
pledged  to  an  attorney,  but  were  in  the  custody  of  the  attorney,  it  was 
held  at  nisi  prius,  and  the  decision  has  always  been  acquiesced  in,  that 
a  demand  upon  the  defendant  and  a  refusal,  under  the  circumstances, 

lowing  comment  on  tliis  case:  "The  actual  taking  there  described  is  a  taking 
intentionally  without  or  against  the  consent  of  the  person  in  p(xssession.  The 
trover  imiilios  an  actual  possession,  hut  is  held  to  he  insuflicient  to  consti- 
tute a  conversion,  because  consistently  with  it  the  defendant  may  not  be  claim- 
ing anything  more  than  the  mere  custody  of  the  goods." 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  477 

was  not  evidence  of  a  conversion.  Smith  v.  Young,  1  Com.  439,  1 
Camp.  439.  And  a  false  assertion  by  a  carrier  that  he  had  delivered 
the  goods,  does  not  amount  to  a  conversion.  Attersol  v.  Briant,  Id. 
409,  1  Camp.  409.  And  in  every  case  where  a  demand  and  refusal  is 
permitted  to  go  to  the  jury  as  evidence  of  a  conversion,  it  must  be 
preceded  by  evidence  that  the  goods  are  in  defendant's  possession,  or 
what  is  equivalent,  in  the  possession  of  his  servant,  with  his  knowl- 
edge or  by  his  consent,  either  express  or  implied.  Bull.  N.  P.  44,  cited 
3  Stark.  Ev.  1497,  and  also  2  Salk.  441,  Jones  v.  Hart. 


ELDRED  v.  OCONTO  CO. 
(Supreme  Court  of  Wisconsin,  1873.     33  Wis.  133.) 

This  is  an  action  to  recover  the  possession  of  1,446  pine  saw  logs, 
which  the  complaint  alleges  were  unlawfully  detained  by  the  defend- 
ant from  the  plaintiff.  The  complaint  is  in  the  usual  form,  alleging 
that  the  plaintiff  is  the  owner  and  entitled  to  the  possession  of  the  logs. 
The  answer  is  the  general  denial.  The  plaintiff  had  a  verdict  and 
judgment,  and  the  defendant  appealed. 

Lyon,  j,  *  *  *  q^j^g  court  refused  to  give  the  following  in- 
structions prayed  for  on  behalf  of  the  defendant : 

"If  the  logs,  taken  from  the  land  of  the  plaintiff,  were  taken  by  a  party 
or  parties  other  than  the  defendant,  and  tlie  defendant  purchased  said  logs 
in  good  faith,  without  knowletlge  how  they  cauie  into  the  possession  of  said 
third  pnrty  or  parties,  then  the  defendant  is  not  liable  in  this  action  witliout 
a  previous   demand." 

*  *  *  The  testimony  tends  to  show  that  the  logs  in  controversy 
were  purchased  in  good  faith  by  the  defendant,  of  parties  who  wrong- 
fully took  the  same  from  the  lands  of  the  plaintiff  *  *  *  ^l-^Q.  ^q. 
f  endant  supposing  and  believing  that  their  vendors  owned  the  logs ; 
and  no  demand  therefor  was  made  before  this  action  was  commenced. 
The  question  is,  whether,  under  these  circumstances,  a  demand  is  nec- 
essary before  an  action  to  recover  the  logs  can  be  maintained  against 
the  defendant. 

It  must  be  conceded  that  in  New  York  the  courts  have  uniformly 
held,  that  where  property  which  has  been  wrongfully  taken  from  the 
owner,  comes  into  the  hands  of  an  innocent  third  party,  an  action  to 
recover  it  cannot  be  maintained  by  the  owner  against  such  bona  fide 
holder  thereof,  until  after  demand.  But  we  find  a  decided  weight  of 
authority  the  other  way,  and  we  are  satisfied  that  the  New  York  rule 
is  not  sound  in  principle. 

The  subject  is  fully  discussed  and  numerous  authorities  cited,  in 
the  cases  of  Stanley  v.  Gaylord,  1  Cush.  (Mass.)  536,  48  Am.  Dec.  643; 
Galvin  v.  Bacon,  11  Me.  28,  25  Am.  Dec.  258;  and  Smith  v.  McLean, 
24  Iowa,  322.  The  head  note  to  the  latter  case  is  as  follows:  "De- 
mand of  possession  before  commencing  an  action  of  replevin  need  be 


478  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

made  only  in  those  cases  where  it  is  necessary  to  terminate  the  right 
of  possession  in  the  defendant  and  confer  it  upon  the  plaintiff.  Where 
both  parties  claim  title  and  the  right  of  possession  incident  thereto,  no 
demand  is  necessary."  This  is  precisely  such  a  case.  Both  parties 
here  "claim  title  and  the  right  of  possession  incident  thereto."  In  the 
IMaine  and  Massachusetts  cases  above  cited  it  was  held  that  if  the  bailee 
of  a  chattel,  without  authority  to  retain  or  sell  it,  does  sell  or  mort- 
gage such  a  chattel,  even  to  a  person  who  believes  that  he  may  law- 
fully do  so,  and  the  purchaser  or  mortgagee  takes  possession  of  the 
same,  trover  or  replevin  can  be  maintained  therefor  against  such  in- 
nocent purchaser  or  mortgagee,  by  the  owner,  without  previous  de- 
mand. These  are  not  as  strong  cases  for  the  plaintiff  as  this,  because 
in  this  case  there  was  never  any  bailment  of  the  logs.  It  is  not  deemed 
necessary  to  enter  into  a  full  discussion  of  the  question.  It  is  suffi- 
cient to  say  that  we  approve  of  the  doctrine  of  the  above  cases, 
and  adopt  the  same  as  the  law  of  this  case. 

But  it  is  said  that  this  doctrine  is  only  applicable  where  the  com- 
plaint charges  a  wrongful  taking.  We  do  not  think  that  this  position 
can  be  maintained.  By  omitting  to  allege  in  his  complaint  that  the 
original  taking  was  tortious,  the  plaintiff  does  not  admit  that  the 
taking  was  lawful,  or  preclude  himself  from  showing  that  it  was,  in 
fact,  a  wrongful  taking.  And  by  proving  its  tortious  character  he 
demonstrates  that  the  detention  of  the  logs  by  the  defendant  is  unlaw- 
ful. In  other  words,  by  proving  a  state  of  facts  which  renders  a  de- 
mand unnecessary,  he  proves  the  gravamen  of  his  action,  to  wit,  the 
unlawful  detention  of  the  logs.     *     *     *  ai 

Judgment  affirmed. 


(2)  Different  Forms  of  Such  Conversion 

BENCH  V.  WALKER. 
(Supreme  Judicial  Court  of  Massachusetts,  1780.     14  Mass.  500.) 

Trover  for  four  hogsheads  of  rum.  On  the  trial,  the  evidence 
appeared  thus :  Walker  undertook  to  transport  from  Boston  to 
Springfield  the  four  hogsheads  of  rum  for  the  plaintiff.  At  the  time 
of  the  delivery  to  Walker,  the  rum  was  good;  but  on  its  arrival  at 
Springfield,  it  was  much  adulterated  and  greatly  lessened  in  value; 
and  whetlier  it  was  thus  adulterated  by  the  defendant  himself,  or  by 
his  servant,  the  teamster,  did  not  appear.  It  was  objected  that  trover 
did  not  lie  in  this  case. 

But  Gushing,  C.  J.,  with  the  rest  of  the  Court,  held  that  it  will  lie 
For  the  alteration  of  the  quality  of  the  liquor  undertaken  to  be  trans- 
ported, whether  it  was  done  by  the  defendant  or  his  servant,  was 
an  unlawful  conversion.     Vide  Holt,  528. 

3  7  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  479 

KEYWORTH  v.  HILL  et  ux. 

(Court  of  King's  Bench,  1820.     3  Bam.  &  Aid.  684,   100   Reprint.   811.) 

Trover  against  husband  and  wife,  for  a  bond  and  two  promissory 
notes.  The  declaration  stated  that  the  defendants  converted  and 
disposed  of  the  same  to  their  own  use,  plea,  not  guilty.  After  verdict 
for  the  plaintiff,  a  rule  was  obtained  in  last  Easter  term  for  arresting 
the  judgment,  on  the  ground  that  no  action  could  be  supported  against 
the  husband  and  wife  for  converting  goods  to  their  own  use,  inasmuch 
as  the  wife  could  acquire  no  property,  and  the  conversion  must  be 
by  the  husband  only,  and  Berry  v.  Nevys,  Cro.  Jac.  661,  was  cited. 

Abbott,  C.  J.  The  question,  in  this  case,  arises  upon  a  motion  in 
arrest  of  judgment.  The  ground  of  the  objection  is,  that  inasmuch 
as  a  married  woman  cannot  acquire  property,  the  conversion  of  the 
property  can  only  be  the  act  of  the  husband,  and  must  be  so  charged. 
If  the  allegation  in  the  declaration,  that  the  defendants  converted  the 
property  to  their  own  use,  necessarily  imported  an  acquisition  of 
property  by  them,  there  would  be  considerable  weight  in  the  objection. 
It  seems  to  me,  however,  that  that  is  not  the  necessary  import  of  the 
expression,  for  a  conversion  may  be  by  an  actual  destruction  of  the 
property.  And  if  the  allegation  does  not  necessarily  import  that  the 
defendants  acquired  a  property,  we  are  bound,  after  the  verdict,  to 
consider  the  conversion  to  have  taken  place  by  other  means  than  by 
the  acquisition  of  property.  I  am,  therefore,  of  opinion  that  the  dec- 
laration is  sufficient,  and  that  this  rule  should  be  discharged. 

Bayley,  J.  It  is  quite  clear  that  in  trespass  the  husband  and  wife 
might  be  jointly  sued.  The  reason  of  which  is,  that  the  action  is 
founded  on  the  wrongful  act  of  the  defendants.  Now,  it  seems  to  me, 
that  the  action  of  trover  is  founded  on  the  tort  also.  The  cases  cited 
on  the  part  of  the  defendant  proceed  upon  the  supposition  that  the 
conversion  could  only  take  place  by  the  defendants  acquiring  a  prop- 
erty. It  seems  to  me,  however,  that  in  trover  the  foundation  of  the 
action  is  not  the  acquisition  of  property  by  the  defendants,  but  the 
deprivation  of  property  to  the  plaintiffs.  If  the  wife  were  to  take  up 
a  book,  and  her  husband  desired  her  to  put  it  in  the  fire  and  burn  it 
and  she  did  burn  it,  that  would  be  a  conversion,  and  yet  the  husband 
and  wife  would  acquire  no  property;  so,  if  a  man  takes  my  horse 
and  rides  it,  I  may  bring  trover  for  the  temporary  conversion.  And 
if  there  can  be  any  case  of  a  conversion  without  an  ultimate  change 
of  property,  we  are  bound,  after  verdict,  to  imply  that  it  was  such 
a  conversion  as  the  wife  might  be  guilty  of. 

Rule  discharged.^^ 

38  The  arguments  of  counsel  and  the  concurring  oiiinions  of  ITolroyd  niid 
and  Best,  .TJ.,  are  omitted.  Best,  J.,  remarked:  "Tliere  may  be  a  distinction 
between  detinue  and  trover:  in  tlie  former,  the  plaintiff  seelvs  to  recover 
the  goods  in  specie;    in  the  latter  he  only   asks  for  damages."     And  see 


480  TORTS  THROUGH  ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

CROSSIER  V.  OGLEBY. 

(Court  of  King's  Bench,  1717.     1  Str.  60,  93  Reprint,  3S5.) 

Trover  by  an  administrator  for  rum  taken  and  converted  in  the 
intestate's  life.  Upon  evidence  it  appeared,  that  the  rum  was  taken 
in  the  intestate's  life,  but  not  used  till  after  his  death.  And  the  ques- 
tion was,  whether  this  evidence  of  not  vising  it  till  the  administrator's 
time  would  not  overthrow  the  declaration  of  a  conversion  in  the  in- 
testate's life. 

Sed  PER  Curiam.  The  time  of  using  the  rum  lay  in  the  breast  of 
the  defendant,  who  ought  to  have  disclosed  that  matter  by  his  plea: 
and  the  taking  in  the  life  of  the  intestate,  and  keeping  it  till  his  death, 
is  a  trover  and  conversion  sufificient  to  maintain  this  declaration. 
Wherefore  the  plaintiff  had  judgment,  this  being  a  point  reserved  at 
nisi  prius.^" 


TINKLER  V.  POOLE  et  al. 
(Court  of  King's  Bencti,  1770.     5  Burrows,  2657,  98  Reprint,  39G.) 

This  was  an  action  of  trover  for  goods  seized  by  a  Custom-House 
officer.  It  was  a  parcel  of  herrings  seized  by  him  for  not  having 
satisfied  the  salt-duty,  and  carried  by  him  to  the  King's  warehouse. 
It  was  agreed  that  they  were  not  seizable :  and  the  only  question  was 
"whether  this  species  of  action  lay  against  the  officer,  for  seizing  them 
and  carrying  them  away." 

Serjeant  Glynn,  for  the  plaintiff,  argued  that  it  did.  The  conver- 
sion, he  said,  was  the  substantial  part  of  the  action :  the  trover  is  ficti- 
tious. The  defendant  had  no  authority  to  take  them.  He  took  them 
wrongfully.  He  was  a  wrong-doer.  He  acquired  a  tortious  property 
of  them  in  himself.     ****(> 

Isaac  V,  Clarke  (1613)  2  Bulstr.  30S,  per  Doddridge,  J. :  "If  goods  are  delivered 
to  husband  tind  wife,  no  action  of  detinue  lies  against  them  both  for  these, 
but  against  the  husband  alone." 

39  "Trover  also  became  concurrent  with  trespass.  In  1601  the  Court  of 
King's  Bench  decided,  that  trover  would  lie  for  a  taking.  In  the  same  year 
the  Court  of  Common  Pleas  was  equally  divided  on  the  question,  but  in 
1604,  in  the  same  case,  it  was  decided,  one  judge  dissenting,  that  the  plaintiff 
might  have  his  election  to  bring  trespass  or  case.  The  Exchequer  gave  a 
similar  decision  in  1610,  Leverson  v.  Kirk,  1  Roll.  Ab.  105,  (M),  10.  Iii 
1627,  in  Kinaston  v.  Moore,  Cro.  Car.  89,  'semble  per  all  the  Justices  and 
Barons,  *  *  *  although  he  take  it  as  a  trespass,  j'et  the  other  may 
charge  him  in  an  action  ujion  the  case  in  a  trover  if  he  will.'  In  all  these 
cases  the  original  taking  was  adverse."  James  Barr  Ames,  in  "History  of 
Trover,"  11  Harv.  Law  Rev.  384,  3  Anglo-Amor.  Leg.  Essays,  442.  See  also 
the  opinion  of  Parke,  J.,  in  Norman  v.  Ball  (1831)  2  B.  &  Ad.  190. 

*o  In  the  omitted  portion  of  the  argument  two  nisi  prius  cases  of  half 
a  century  before  were  discussed  by  counsel  and  Judges :  Etriche  v.  An  OfTicer 
of  the  Bevenue  (1720)  Bunbury,  67,  and  Israel  v.  Ktheridge  (1721)  P.unbury, 
80.    In  the  former,  "upon  an  infornmtion  of  seizure  of  goods,  there  had  been 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  481 

Lord  IMansFiEld,  who  tried  the  present  cause,  said  he  saved  this 
point,  upon  the  cases  cited  out  of  Bunbury,  by  the  counsel  for  the 
defendants.  But  nothing  is  clearer,  than  "that  trover  lies."  It  is  a 
wrongful  conversion ;  let  the  property  be  in  whom  it  will. 

The  case  of  Chapman  v.  Lamb,  in  2  Strange,  943,  was  mentioned  by 
Mr.  \\'allace ;  which  was  subsequent  to  the  others,  being  in  [Michael- 
mas term  6  G.  IL  It  was  trover  against  a  Custom-House  officer  for 
14  shirts,  a  nightgown,  and  cap,  seized  for  non-payment  of  duty; 
which  were  stated,  negatively,  and  "not  to  be  imported  as  merchan- 
dize." The  plaintiff  had  judgment;  without  any  objection  to  its  being 
an  action  of  trover. 

The  court  ordered  the  postea  to  be  delivered  to  the  plaintiff. 

a  verdict  for  the  defendant,  who  afterwards  brou2:ht  trover  against  the 
officer,  for  the  goods.  The  Attorney  General  objected,  that  trover  did  not 
lie  for  these  goods,  for  that  the  seizure  of  them  and  putting  them  into  the 
Custom-House  warehouse  could  not  be  said  to  be  any  conversion  to  its 
own  use,  but  trespass,  or  trespass  upon  the  case;  and  Mr.  Attorney  insist- 
ing upon  a  siJecial  verdict,  and  the  Chief  Baron  inclining  to  be  of  that 
opinion,  'that  trover  would  not  lie,'  the  plaintiff  chose  to  be  nonsuited." 
Lord  Mansfield  said :  "Mr.  Bunbury  never  meant  that  those  cases  should 
have  been  published :    they  are  very  loose  notes." 

In  the  latter  case  Baron  Price  is  reported  as  saying  "that  trover  did  not 
lie  against  an  officer,  for  seizure  absque  probabili  causa;  but  trespass  would." 
Baron  Montague  was  of  opinion  "that  neith&r  trover  nor  trespass  would  lie, 
because  the  seizure  is  not  contra  pacem ;  but  that  trespass  upon  the  case, 
setting  forth  that  the  seizure  was  absque  probabili  causa,  would  lie." 

See  also  Professor  Ames'  remark :  "Trespass,  as  the  learned  reader  will 
remember,  would  not  lie,  originally,  for  a  wrongful  distress;  the  taking  in 
such  a  case  not  being  in  the  nature  of  a  disseisin.  In  time,  however,  tres- 
pass became  concurrent  with  replevin.  History  repeats  itself  in  this  respect, 
in  the  development  of  trover.  In  Dee  v.  Bacon  (1595)  Cro.  El.  4.35,  the  de- 
fendant pleaded  to  an  action  of  trover  that  he  took  the  goods  damage 
feasant.  The  plea  was  adjudged  bad  as  being  an  argumentative  denial  of 
the  conversion.  Salter  v.  Butler,  Noy,  46,  and  Agars  v.  Lisle  (161.3)  Hutt. 
10,  were  similar  decisions,  bec-ause,  as  was  said  in  the  last  case,  'a  distress 
is  no  conversion.'  The  same  doctrine  was  held  a  century  later  in  two  cases 
in  Bunbury.  But  in  1770,  in  Tinkler  v.  Poole,  5  Burr.  2657,  these  two  cases, 
which  simply  followed  the  earlier  precedents,  were  characterized  by  Lord 
Mansfield  as  'very  loose  notes,'  and  ever  since  that  case  it  has  been  generally 
agi'eed  that  a  wrongful  distress  is  a  conversion.  This  last  step  being  taken, 
trover  became  theoretically  concurrent  with  all  of  our  four  actions,  appeal 
of  larceny,  trespass,  detinue,  and  replevin,  and  in  practice  the  common 
remedy  in  all  cases  of  asportation  or  detention  of  chattels  or  of  their  misuse 
or  destruction  by  a  defendant  in  possession.  The  career  of  trover  in  the  field 
of  torts  is  matched  only  by  that  of  assumpsit,  the  other  specialized  form  of 
action  on  the  case,  in  the  domain  of  contract."  History  of  Trover  (1S9S)  11 
Harv.  Law  Rev.  385,  3  Anglo-Am.  Leg.  Essays,  444. 

Hepb.Tobts — 31 


482  TORTS   THROUGH  ACTS   OF   ABSOLUTE  LIABILITY  (Part  1 

RAMSBY  V.  BEEZLEY. 

(Supreme  Court  of  Oregon,  1S83.     11  Or.  49,  8  Pac.  288.) 

Lord,  J.  This  was  an  action  of  trover,  and  the  only  question  in- 
volved in  the  case  is,  what  will  constitute  a  conversion?  It  originated 
in  the  refusal  of  the  court  to  give  certain  instructions  asked  by  the 
defendant,  and  an  exception  to  an  instruction  given,  based  upon  evi- 
dence tending  to  show  about  this  state  of  facts :  That  the  plaintiff 
was  the  owner  of  the  cattle  in  controversy  by  purchase  from  one  Smith, 
which  were  running  at  large  on  the  range;  that  the  defendant  sold 
them  to  Strickland,  and  received  therefor  the  sum  of  $500,  and  that 
the  plaintiff  has  never  seen  nor  had  possession  of  the  cattle  since.  The 
defendant  admitted  that  he  sold  the  cattle  to  Strickland,  received  the 
money  for  them,  and  "believed  and  supposed  that  Strickland  had  took 
them,"  but  there  was  no  evidence  that  the  defendant  ever  exercised 
any  other  actual  control  or  dominion  over  the  cattle  than  such  sale  to 
Strickland,  or  that  he  actually  delivered  them  to  him,  or  that  Strick- 
land ever  gathered  the  cattle  in  pursuance  of  such  sale,  except  what 
may  be  inferred  from  the  fact  that  the  plaintiff  has  never  seen,  nor 
had  possession  of  his  cattle,  since  the  sale,  and  the  payment  for  the 
cattle,  and  the  admission  of  the  defendant  that  he  believed  and  sup- 
posed that  Strickland  had  taken  the  cattle. 

Upon  this  state  of  facts  the  court  gave  the  following  instruction  to 
the  jury,  to  which  the  defendant  excepted: 

"Any  assertion  of  title  to  or  any  act  of  dominion  over  personal  property 
inconsistent  with  the  rights  of  the  owner  is  a  conversion.  A  sale  of  the 
property  of  one  person  by  another  is  a  conversion.  Therefore,  if  you  find 
the  plaintiff  was  the  owner  of  the  cattle  at  the  time  of  the  alleged  taking, 
and  that  the  defendant  sold  them  without  the  plaintiff's  consent,  or  in  any 
way  appropriated  them  to  his  own  use  without  plaintiff's  consent,  you  should 
find  for  the  plaintiff  in  such  sum  as  he  was  damaged  thereby.  But  if  you 
find  that  the  plaintiff  was  not  the  owner  of  the  cattle,  or  that  the  defendant 
did  not  so  convert  them,  you  should  find  for  the  defendant." 

The  effect  of  the  instruction  asked  and  the  point  raised  is  that,  to 
maintain  an  action  of  trover,  the  defendant  must  have  actual  or  vir- 
tual possession  of  the  property.  A  conversion  is  defined  to  be  "any 
distinct  act  of  dominion  wrongfully  exerted  over  one's  property  in 
denial  of  his  right,  or  inconsistent  with  it."  Cooley,  Torts,  448.  "It 
may  be  laid  down  as  a  general  princi])le,"  says  Mr.  Bigelow,  "that 
the  assertion  of  a  title  to  or  an  act  of  dominion  over  personal  property 
inconsistent  with  the  right  of  the  owner  is  a  conversion."  Bigelow, 
Torts,  428;  2  Hil.  Torts,  §  3,  p.  97.  Of  the  different  ways  by  which 
a  conversion  of  personal  property  may  be  effected,  one  is,  where  a  par- 
ty sells  the  property  of  another  without  his  authority  or  consent. 
Such  sale  is  the  assumption  of  ownership,  of  dominion  over,  or 
right  to  control  the  property,  inconsistent  with,  and  in  denial  of  the 
rights  of  the  true  owner.  Hence,  it  is  said,  "Every  assuming  by 
one  to  dispose  of  the  goods  of  another  is  a  conversion."     "Trover," 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  483 

Bac.  Abr.  631.  Or  "the  assumption  of  authority  over  property,  and 
actual  sale,  constitutes  a  conversion."  Gilman  v.  Hill,  36  N.  H.  324. 
No  actual  force  need  be  used,  (Gibbs  v.  Chase,  10  Mass.  128,)  nor 
any  manual  taking  or  removal  of  the  property,  (Reynolds  v.  Shuler, 
5  Cow.  [N.  Y.]  326;  Connah  v.  Hale,  23  Wend.  [N.  Y.]  465,)  nor 
proof  that  the  defendant  had  actual  possession  of  the  property,  (Fer- 
nald  V.  Chase,  37  Me.  289,)  for,  in  the  language  of  Shepley,  C.  J. : 
"The  exercise  of  such  a  claim  of  right  or  dominion  over  the  property 
as  assumes  that  he  is  entitled  to  the  possession,  or  to  deprive  the 
other  party  of  it,  is  a  conversion."  See,  also,  Anonymous,  6  Mod. 
212;  McCombie  v.  Davies,  6  East,  540;  Reid  v.  Colcock,  1  Nott  & 
AIcC.  (S.  C.)  601,  9  Am.  Dec.  729;  Dickey  v.  Franklin,  32  Me.  572. 
As  applied  to  the  facts,  the  instruction  was  not  objectionable.  The 
defendant  had  assumed  to  himself  the  property  and  the  right  of  dis- 
posing of  the  plaintiff's  cattle.  He  sold  them,  received  the  money  for 
them,  authorized  the  purchaser  to  take  them,  and  swears  he  believed 
and  supposed  the  cattle  were  taken.  The  gist  of  conversion  is  the 
owner's  deprivation  of  his  rightful  dominion  and  control  over  his 
property.  Under  this  state  of  facts,  the  sale  of  the  defendant  was 
a  wrongful  assumption  of  authority  and  dominion,  subversive  of  the 
rightful  dominion  and  control  of  the  plaintiff  over  his  property.  The 
judgment  must  be  affirmed.*^ 


THURSTON  et  al.  v.  BLANCHARD. 

(Supreme   Judicial   Court  of  Massachusetts,   1S;]9.     22   Pick.    18, 

33  Am.  Dec.  700.) 

Trover,  to  recover  the  value  of  certain  goods  alleged  to  have  been 
obtained  by  the  defendant,  from  the  plaintiff's,  by  means  of  false  and 
fraudulent  pretences. 

It  appeared  on  the  trial  that  the  goods  were  purchased  of  the  plain- 
tiffs by  the  defendant,  by  means  of  false  representations,  for  the  sum 
of  %(i77 .77 ;  that  the  defendant  gave  his  negotiable  promissory  note 
for  the  amount,  payable  in  six  months ;  that  this  note  had  been  in 
the  possession  of  the  plaintiff's  ever  since  it  was  given ;  that  they  had 
never  offered  to  give  it  up  to  the  defendant;  and  that  they  had  not 
made  a  demand  upon  him,  for  the  goods,  before  commencing  this  suit. 
The  plaintiff's,  however,  produced  the  note  in  court,  at  the  trial,  and 

41  Compai-e  Mead  v.  Thompson  (1875),  78  111.  62:  (D.  brought  an  attach- 
ment against  T.,  an  absconding  debtor,  and  levied  on  T.'s  corn.  At  the  time, 
P.,  the  landlord  of  T.,  had  a  lien  on  this  corn  for  rent.  Judgment  was  ob- 
tained by  D.  in  his  attachment  suit,  and  the  corn  so  levied  on  being  sold 
at  public  sale  by  a  constable,  D.  bid  it  off  and  transferred  his  bid  to  E., 
who  paid  for  the  property  and  took  it  away.  There  was  no  further  possession 
or  intei-metldling  by  D.  In  P.'s  suit  for  conversion,  it  is  contended  that, 
however  it  may  be  as  to  E.,  there  is  no  liability  for  conversion  on  the  part 
of  D.)  See  also  Geneva  Wagon  Company  v.  Smith  (1905)  1S8  Mass.  202,  74 
N.  E.  299. 


484  TORTS  THROUGH  ACTS   OP    ABSOLUTE  LIABILITY  (Part  1 

there  offered  to  give  it  up,  or  to  put  it  on  the  files  of  the  court;  but 
the  defendant  declined  taking  it,  and  it  was  placed  on  the  files. 

The  defendant  offered  no  evidence  in  his  defence,  but  relied  upon 
the  facts,  that  the  note  had  not  been  given  up  or  tendered  to  him  by  the 
plaintiff's,  and  that  no  demand  had  been  made  upon  him  for  a  return 
of  the  goods.    A  verdict  was  taken  for  the  plaintiffs,  by  consent. 

If  the  Court  should  be  of  opinion,  that  the  action  could  be  main- 
tained, judgment  was  to  be  rendered  on  the  verdict;  otherwise,  the 
plaintiffs  were  to  be  nonsuited. 

Choate  and  S.  Parker,  for  the  defendant.  *  *  *  a  demand  of 
the  goods  was  necessary  on  the  part  of  the  plaintiffs.  The  sale  was 
voidable  and  not  void,  even  if  the  evidence  proved  that  the  goods  were 
obtained  under  false  pretences.  The  title  therefore  passed,  voidable 
only  at  the  election  of  the  vendor. 

Shaw,  C.  J.  We  are  now  to  take  it  as  proved  in  point  of  fact,  to 
the  satisfaction  of  the  jury,  that  the  goods,  for  which  this  action  of 
trover  is  brought,  were  obtained  from  the  plaintiffs  by  a  sale,  but  that 
this  sale  was  influenced  and  effected  by  the  false  and  fraudulent  repre- 
sentations of  the  defendant.  Such  being  the  case,  we  think  the  plain- 
tiffs were  entitled  to  maintain  their  action,  without  a  previous  demand. 
Such  demand,  and  a  refusal  to  deliver,  are  evidence  of  conversion 
when  the  possession  of  the  defendant  is  not  tortious ;  but  when  the 
goods  have  been  tortiously  obtained,  the  fact  is  sufficient  evidence  of 
conversion.  Such  a  sale,  obtained  under  false  and  fraudulent  repre- 
sentations, may  be  avoided  by  the  vendor,  and  he  may  insist  that  no 
title  passed  to  the  vendee,  or  any  person  taking  under  him,  other  than 
a  bona  fide  purchaser  for  value  and  without  notice,  and  in  such  case 
the  seller  may  maintain  replevin  or  trover  for  his  goods.  Buffington 
V.  Gerrish,  15  Mass.  156,  8  Am.  Dec.  97.     *     *     *  42 

Judgment  on  the  verdict  for  the  plaintiffs. 


PIIORT  V.  BOTT. 

(Court  of  Exchequer,  1S74.     L.  R.  9  Exch.  8G.) 

Action  of  trover  for  barley,  tried  before  Archibald,  J.,  at  the  Staf- 
fordshire Summer  Assizes,  1873.  The  facts  were  as  follows :  The 
plaintiff's,  who  were  corn  merchants,  trading  under  the  name  of  Broch- 
ner  &  Co.,  at  Hull,  had  been  in  the  habit  of  employing  one  Grimmett 
as  their  broker.  In  consequence  of  a  telegram  from  Grimmett,  they, 
on  the  8th  of  June,  1872,  fowardcd  to  the  London  &  North  Western 
Railway  station  at  Birmingham  83  quarters  of  barley,  and  at  the  same 

42  A  portion  of  the  case,  on  the  effect  of  bringing  suit  without  a  previous 
tender  of  the  note  given  by  the  fraudulent  vendee,  is  omitted. 

.See  the  concluding  remarks  of  Professor  Ames'  "History  of  Trover,"  11 
Harr.  Law  Rev.  38G,  3  Anglo-Am.  Legal  Essays,  445. 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  485 

time  sent  to  the  defendant,  who  was  a  licensed  victualler  carrying  on 
business  at  Deritend,  Birmingham,  a  letter,  inclosing  an  invoice  for 
the  barley,  in  which  it  was  stated  to  be  "sold  by  Mr.  Grimmett  as 
broker  between  buyer  and  seller,"  and  a  delivery  order,  which  made 
the  barley  deliverable  "to  the  order  of  consignor  or  consignee."  The 
barley  had  in  fact  never  been  ordered  by  the  defendant,  who  had  had 
no  previous  dealings  with  either  the  plaintiffs  or  Grimmett.  A  day  or 
two  after  the  receipt  of  these  documents  by  the  defendant,  Grimmett 
called ;  the  defendant  produced  the  documents,  and  said,  "What  does 
this  mean?  I  never  bought  any  barley  through  you  off  Brochner  & 
Co."  Grimmett  said :  "It  was  a  mistake  of  Brochner  &  Co. ;  they  had 
no  doubt  confused  the  defendant's  name  and  some  other  name ;  they 
were  doing  a  large  business,  and  might  have  made  a  mistake."  Grim- 
mett then  asked  the  defendant  to  indorse  the  order,  telling  him  that 
he  could  not  get  the  barley  without,  and  that  by  not  sending  the  order 
back  expense  would  be  saved.  Thereupon  the  defendant  indorsed  the 
delivery  order  to  Grimmett,  who  took  it  to  the  railway  station,  ob- 
tained delivery  of  the  barley,  disposed  of  it,  and  absconded. 

In  answer  to  a  question  by  the  learned  judge,  the  jury  found  that 
the  defendant,  in  signing  the  order,  had  no  intention  of  appropriating 
the  barley  to  his  own  use,  but  was  anxious  to  correct  what  he  believed 
to  be  an  error;  and,  on  the  learned  judge  adding,  "and  with  a  view 
of  -returning  the  barley  to  the  plaintiffs,"  they  assented.  The  learned 
judge  then  directed  the  verdict  to  be  entered  for  the  defendant,  with 
leave  to  the  plaintiffs  to  move  to  enter  the  verdict  for  them  for  £180, 
the  value  of  the  barley.    A  rule  nisi  was  obtained  accordingly. 

BramwELL,  B.*^  I  think  the  plaintiff's  are  entitled  to  recover; 
though,  so  far  as  concerns  the  defendant,  whose  act  was  well  meant,  I 
regret  the  result.  Mr.  Bosanquet  gave  a  good  description  of  what 
constitutes  a  conversion  when  he  said  that  it  is  where  a  man  does  an 
unauthorized  act  which  deprives  another  of  his  property  permanently 
or  for  an  indefinite  time.  The  expression  used  in  the  declaration  is 
"converted  to  his  own  use";  but  that  does  not  mean  that  the  defend- 
ant consumed  the  goods  himself ;  for,  if  a  man  gave  a  quantity  of 
another  person's  wine  to  a  friend  to  drink,  and  the  friend  drank  it, 
that  would  no  doubt  be  as  much  a  conversion  of  the  wine  as  if  he 
drank  it  himself.  Now  here  the  defendant  did  an  act  that  was  un- 
authorized. There  was  no  occasion  for  him  to  do  it ;  for  the  delivery 
order  made  the  barley  deliverable  to  the  order  of  the  consignor  or 
consignee,  and  if  the  defendant  had  done  nothing  at  all  it  would  have 
been  delivered  to  the  plaintiffs.  And  there  is  no  doubt  that  by  what 
he  did  he  deprived  the  plaintiffs  of  their  property;  because,  by  means 
of  this  order  so  indorsed,  Grimmett  got  the  barley  and  made  away 
with  it,  leaving  the  plaintiffs  without  any  remedy  against  the  railway 

48  riie  ars^nments  are  omitted,  and  a  concurring  opinion  by  Cleasl»y,  B. 
Compare  Mead  v.  Thompson   (1870)  7S  111.  02,  64. 


486  TORTS  THROUGH  ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

company,  who  had  acted  according  to  the  instructions  of  the  plaintiffs 
in  delivering  the  barley  to  the  order  of  the  consignee.  The  case,  there- 
fore, stands  thus :  that  by  an  unauthorized  act  on  the  part  of  the 
defendant,  the  plaintiff's  have  lost  their  barley,  without  any  remedy 
except  against  Grimmett,  and  that  is  worthless.  It  seems  to  me  there- 
fore, that  this  was  assuming  a  control  over  the  disposition  of  these 
goods,  and  a  causing  them  to  be  delivered  to  a  person  who  deprived 
the  plaintiffs  of  them.    The  conversion  is  therefore  made  out. 

Various  ingenious  cases  were  put  as  to  what  would  happen  if,  for 
instance,  a  parcel  were  left  at  your  house  by  mistake,  and  you  gave  it 
to  your  servant  to  take  back  to  the  person  who  left  it  there,  and  the 
servant  misappropriated  it.  Probably  the  safest  way  of  dealing  with 
that  case  is  to  wait  until  it  arises ;  but  I  may  observe  that  there  is 
this  difference  between  such  a  case  and  the  present  one,  that  where 
a  man  delivers  a  parcel  to  you  by  mistake,  it  is  contemplated  that  if 
there  is  a  mistake,  you  will  do  something  with  it.  What  are  you  to 
do  with  it?  Warehouse  it?  No.  Are  you  to  turn  it  into  the  street? 
That  would  be  an  unreasonable  thing  to  do.  Does  he  not  impliedly 
authorize  you  to  take  reasonable  steps  with  regard  to  it — that  is,  to 
send  it  back  by  a  trustworthy  person?  And  when  you  say,  "Go  and 
deliver  it  to  the  person  who  sent  it,"  are  you  in  any  manner  convert- 
ing it  to  your  own  use?  That  may  be  a  question.  But  here  the 
defendant  did  not  send  the  order  back ;  but  at  Grimmett's  request  in- 
dorsed it  to  him,  though,  no  doubt,  as  the  jury  have  found,  with  a 
view  to  the  barley  being  returned  to  the  plaintiffs.  There  is  therefore 
a  distinction  between  the  case  put  and  the  present  one.  And  there 
is  also  a  distinction  between  the  case  of  Heugh  v.  London  &  North 
Western  Ry.  Co.,  Law  Rep.  5  Ex.  51,  which  was  cited  for  the  defend- 
ant, and  the  present  case ;  because  there  it  was  taken  that  the  plaintiff 
authorized  the  defendants  to  deliver  the  goods  to  a  person  applying 
for  them,  if  they  had  reasonable  grounds  for  believing  him  to  be  the 
right  person. 

On  these  considerations  I  think  the  plaintiff's  are  entitled  to  recover. 
But  I  must  add  one  word.  This  is  an  action  for  conversion,  and  I 
lament  that  such  a  word  should  appear  in  our  proceedings,  which 
does  not  represent  the  real  facts,  and  which  always  gives  rise  to  a 
discussion  as  to  what  is,  and  what  is  not,  a  conversion.  But  supposing 
the  case  were  stated  according  to  a  nonartificial  system  of  pleading, 
thus :  "We,  the  plaintiffs,  had  at  the  London  &  North  Western  Rail- 
way station  certain  barley.  We  had  sent  the  delivery  order  to  you, 
the  defendant.  You  might  have  got  it,  if  you  were  minded  to  be  the 
buyer  of  it ;  you  were  not  so  minded,  and  therefore  should  have  done 
nothing  with  it.  Nevertheless,  you  ordered  the  London  &  North 
Western  Railway  Company  to  deliver  it,  without  any  authority,  to 
Grimmett,  who  took  it  away."  Would  not  that  have  been  a  logical 
and  precise  statement  of  a  tortious  act  on  the  part  of  the  defendant, 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  487 

causing  loss  to  the  plaintiffs?    It  seems  to  me  that  it  would.     I  think, 
but  not  without  some  regret,  that  this  rule  should  be  made  absolute, 
to  enter  the  verdict  for  the  plaintiffs. 
Rule  absolute. 


MULTERER  v.  DALLENDORFER. 

(Supreme  Court  of  Wisconsin,  1914.    158  Wis.  268,  148  N.  W.  1084.) 

Action  to  recover  the  value  of  a  quantity  of  lumber  claimed  to  have 
been  wrongfully  taken  from  plaintiff  by  defendants  and  converted 
by  the  latter  to  their  own  use. 

The  major  question  at  issue  was  whether  the  lumber  passed  to  de- 
fendants under  a  bill  of  sale  made  to  them  by  Theresa  Multerer, 
October  4,  1912,  when  they  purchased  a  farm  of  her  and  some  per- 
sonal property,  located  on  and  used  in  connection  with  it.  The  lumber 
was  then  on  the  place.  Her  grantor  had  piled  it  there  in  1906  for 
farm  building  purposes.  He  sold  her  farm  and  the  lumber  some  six 
years  later.  The  bill  of  sale  made  by  her  in  1912  to  defendants  de- 
scribed the  personal  property  intended  to  be  conveyed  with  the  place, 
as  follows:  "Seven  cows,  four  calves,  30  chickens,  3  pigs,  114  sacks 
of  oats,  18  sacks  of  barley,  5  tons  of  hay,  one  Deering  binder,  one 
Deering  mower,  one  rake,  one  tedder,  one  Monitor  seeder,  2  drags, 
1  plow,  1  cultivator,  1  wagon,  3  buggies,  one  double  harness,  one  single 
harness,  all  corn  and  30  bushels  of  potatoes,  all  small  tools  such  as 
sacks,  forks,  etc.,  including  everything  but  household  furniture." 

Without  taking  possession  of  the  farm  defendants  sold  it  and  the 
personalty  they  supposed  they  obtained  with  it  to  one  Felton.  There- 
after he  took  possession  of  the  property  he  supposed  to  be  included 
in  his  purchase.  There  was  evidence  tending  to  show  that  defendants 
claimed  to  own  the  lumber  and  authorized  Felton  to  take  possession 
of  it;  that  he  did  so  and  was  in  such  possession  claiming  as  owner 
under  a  conveyance  from  such  defendants  when  the  action  was  com- 
menced. There  was  some  controversy  as  to  whether  the  lumber  was 
spoken  of,  particularly,  at  the  time  of  the  sale  to  defendants,  and 
some  as  to  whether  the  bill  of  sale  was  changed  after  its  execution. 

The  cause  was  submitted  to  the  jury  for  a  special  verdict  without 
any  question  as  to  whether  the  lumber  was  part  of  the  land  at  the 
time  of  the  sale  to  defendants.  The  jury  found  as  follows:  Plaintiff 
and  defendants  did  not  agree,  in  making  the  bargain  and  sale  as  to 
the  farm  and  personalty,  that  the  lumber  was  part  of  the  latter.  The 
bill  of  sale  was  not  changed  after  it  was  signed  by  plaintiff. 

The  court  decided  that  the  lumber,  at  the  time  of  the  sale  to  defend- 
ants, was  not  a  fixture;  that  the  assertion  of  right  thereto  by  de- 
fendants and  taking  possession  thereof  by  their  grantee  by  their  au- 
thority was  a  wrongful  conversion  of  the  property  and  that  the  de- 
scription contained  in  the  bill  of  sale  did  not  include  such  property. 


488  TORTS  THROUGH   ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 

Judgment  was  rendered  in  plaintiff's  favor. 

Marshall,  J.  The  objections  to  the  judgment  are  efficiently  an- 
swered by  the  following: 

1.  Whether  the  lumber  at  the  date  of  the  deed  to  defendants,  was 
a  fixture  and  so  part  of  the  realty,  in  the  most  favorable  view  for 
respondent,  was  a  mixed  question  of  law  and  fact,  and  no  request 
having  been  made  for  a  finding  by  the  jury  in  respect  thereto,  it  is 
presumed  that  the  decision  of  the  matter  was  left  to  the  court  and 
the  result  cannot  be  disturbed,  since  it  is  not  clearly  contrary  to  the 
evidence. 

2.  The  verdict  of  the  jury  is  broad  enough  to  negative  there  having 
been  any  occurrence  characterizing  the  sale  of  the  land  to  defendants 
constituting  an  express  or  implied  agreement  that  the  lumber  should 
pass  as  part  of  the  subject  of  the  sale  transaction,  or  in  the  light  of 
which  either  the  bill  of  sale  or  the  deed  should  be  read  as  including 
such  property,  and  the  decision  in  that  regard  is  fairly  supported  by 
the  evidence. 

3.  The  meaning  of  the  language  of  the  bill  of  sale  to  defendants,  as 
regards  whether  the  parties  intended  thereby  to  include  the  lumber, 
so  far  as  not  covered  in  plaintiff's  favor  by  the  verdict,  was  a  matter 
for  the  court  to  determine,  and  it  seems  that  its  construction  of  the 
paper  is  the  most  reasonable  one  which  can  be  given.  The  words  "etc., 
including  everything  but  household  furniture"  following  the  long 
schedule  of  articles  such  as,  generally,  characterize  a  farm  property, 
in  the  absence  of  pretty  clear  circumstantial  indications  to  the  con- 
trary, or  express  explanation  in  the  writing,  should  be  read  as  refer- 
ring to  articles  of  like  nature  as  regards  being  for  and  in  use  as  part 
of  the  farm  property.  As  said  by  the  trial  court,  the  rule  of  "noscitur 
a  sociis" ;  the  meaning  of  a  word  may  be  discovered  by  looking  to  the 
plain  meaning  of  the  words  associated  with  it,  applies.  That  is  very 
familiar  doctrine. 

4.  The  consummated  intention  of  defendants  of  placing  their  gran- 
tee in  possession  of  the  lumber  as  owner,  was  a  sufficient  appropri- 
ation of  the  property  to  their  own  use  to  render  them  liable  in  con- 
version, though  there  was  no  manual  interference  by  them  with  such 
property. 

The  judgment  is  affirmed. 


WHEELOCK  v.  WHEELWRIGHT. 
(Supreme  Judicial  Court  of  Massachusetts,  ISOO.     5  -Arass.  104.) 

The  declaration  was  in  case,  and  alleged  that  the  defendant,  on  the 
15th  of  January,  1806,  hired  a  horse  and  sleigh  of  the  plaintiff  to 
ride  from  Boston  into  the  country  four  miles,  and  to  return  at  7 
o'clock  in  the  evening;  yet  the  defendant  so  carelessly  and  immoder- 
ately  drove  and   rode  the   said  horse  and  sleigh,   and  neglected  to 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  489 

take  proper  care  of  said  horse,  and  exposed  him  after  said  immoderate 
driving  and  riding  for  so  long  a  time  to  the  extreme  coldness  of  the 
weather,  that  by  means  thereof  the  said  horse  died,  and  the  said 
sleigh  was  broken,  &c. 

The  defendant  pleaded  the  general  issue  of  not  guilty,  and  the 
cause  was  tried  on  the  review  at  the  last  November  term  in  this  coun- 
ty, before  the  Chief  Justice,  when  a  verdict  was  found  for  the  plain- 
tiff, subject  to  the  opinion  of  the  Court,  upon  the  following  case 
agreed  by  the  parties,  viz. : 

On  the  15th  of  January,  1S06,  between  3  and  4  o'clock  in  the  afternoon, 
the  weather  being  extremely  cold,  the  defendant  hired  of  the  plaintiff  in 
Boston  the  horse  mentioned  in  the  declaration,  with  a  slei.irh,  to  ride  to  the 
Punch  Bowl  in  Bi-ookline,  distaiit  about  4^^  miles,  the  defendant  saying  that 
he  should  retiirn  by  7  o'clock  in  the  evening.  No  express  price  for  the  hire 
was  agreed  upon.  After  the  defendant  had  rode  to  the  Bunch  Bowl,  and  tar- 
ried there  about  15  minutes,  he  rode  on  about  414  miles  further  to  Water- 
town.  After  staying  there  until  past  9  o'clock  in  the  evening,  he  returned 
with  the  horse  and  sleigh  to  Gen.  W.'s  door  in  Boston,  one  of  the  general's 
family  being  in  the  sleigh,  after  10  o'clock.  Having  remained  at  the  general's 
about  five  minutes,  he  took  the  horse  and  sleigh  to  return  them  to  Wheelock ; 
and  having  rode  about  two  rods,  the  horse,  after  rearing  up.  fell  dead  on 
one  of  the  shafts  of  the  sleigh,  which  was  broken  by  the  fall.  The  sleigh 
was  returned  to  Wheelock,  and  notice  given  by  Wheelwright  that  the  horse 
was  dead.  It  was  agreed  that  the  defendant  did  not  ride  the  horse  immoder- 
ately, or  neglect  to  feed  or  cover  him  properly  with  cloths. 

If  the  Court  should  be  of  opinion  that  on  this  evidence  the  plaintiff 
can,  in  this  action,  recover  damages  on  account  of  the  horse  it  was 
agreed  the  verdict  should  stand ;  otherwise  it  should  be  set  aside,  and 
a  general  verdict  entered  for  the  defendant,  and  judgment  be  ren- 
dered accordingly. 

Parsoxs,  C.  J.  Upon  comparing  the  evidence  with  the  declaration, 
we  are  satisfied  that  the  case  agreed  has  negatived  the  gravamen  al- 
leged by  the  plaintiff  in  his  declaration,  and  that  in  this  action  the 
plaintiff  cannot  recover. 

The  defendant,  by  riding  the  horse  beyond  the  place  for  which  he 
had  liberty,  is  answerable  to  the  plaintiff  in  trover.  For  thus  riding 
the  horse  is  an  unlawful  conversion;  and  if  the  horse  had  been  re- 
turned to  the  plaintiff,  the  defendant  might  have  given  it  in  evidence 
in  mitigation  of  damages.  As  the  horse  was  not  returned,  the  de- 
fendant might  have  recovered  the  value  of  the  horse  in  damages. 
What  that  value  was,  must  be  settled  by  a  jury.  If  the  horse  in  fact 
labored  under  a  mortal  distemper,  although  unknown  before  his  death, 
the  damages  would  have  been  the  value  of  a  horse  so  diseased.  But 
it  would  have  been  incumbent  on  the  defendant  to  have  proved  that 
from  any  causes  the  horse  was  not  worth  the  apparent  value;  and 
if  he  failed  to  satisfy  the  jury  of  the  reduced  value,  the  plaintiff  ought 
to  recover  the  apparent  value. 

According  to  the  facts,  the  plaintiff's  action  is  misconceived.  It 
should  have  been  trover,  and  not  case  for  improperly  using  the  horse. 
And  if  this  verdict  should  stand,  it  would  not  be  a  bar  to  an  action  of 


490  TORTS  THROUGH  ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 

trover  for  a  conversion  by  riding  the  horse  to  a  place  without  the 
contract. 

The  verdict  must  be  set  aside,  and  a  general  verdict  entered  for  the 
defendant/* 


DAUGHERTY  v.  REVEAL. 

(Appellate  Court  of  Indiana,  1913.    54  Tnd.  App.  71,  102  N.  E.  .381.) 

Action  by  Daugherty,  a  livery  stable  keeper,  to  recover  damages 
for  the  death  of  a  horse  which  the  plaintiff  had  hired  to  the  defendant. 
The  complaint  was  in  four  paragraphs  or  counts.  The  first  charged 
a  conversion ;  the  second,  a  breach  of  contract ;  the  third  negligence ; 
the  fourth,  willful  injury.     The  evidence  revealed  the  following  facts: 

On  June  18,  1910,  defendant  came  to  plaintiff's  livery  barn  and 
asked  whether  he  could  get  a  horse  early  the  next  morning  to  drive 
to  a  Mr.  Sullivan's.  Defendant  stated  that  he  would  put  the  horse  in 
the  barn  at  Sullivan's  and  leave  it  there  until  he  was  ready  to  return. 
He  was  informed  that  the  cost  of  such  hiring  would  be  $2.  On  the 
morning  of   Sunday,   June    19,    accordingly,   defendant  procured   the 

44  "In  the  ease  of  Wheelock  v.  Wheelwright  (1809)  5  IMass.  104,  which  in 
the  facts,  as  well  as  the  principles,  is  similar  to  this,  it  was  decided,  not 
only  that  case  for  improperly  using  the  horse  would  not,  but  that  trover 
was  the  only  action  which  would  lie."  Per  Morton,  J.,  in  Homer  v.  Thwing 
(1826)  3  Pick.  (Mass.)  492,  494.  In  this  case  a  recovery  in  trover  was  permit- 
ted against  an  infant  who,  having  hired  a  horse  to  drive  to  the  Punch 
Bowl  in  Brookline,  drove  in  a  different  direction  and  without  leave,  to  Fresh 
Pond  in  Cambridge,  and  then  to  the  Punch  Bowl.  "The  driving  of  the  horse 
beyond  the  place  to  which  the  defendant  had  permission  to  go,  was  a  con- 
version, and  trover  is  the  proper  remedy." 

See  also  the  remarks  of  Perley,  J.,  in  Woodman  v.  Hubbard  (18.52)  2.5  N. 
H.  67,  57  Am.  Dec.  310:  "When  the  defendant  voluntarily  drove  the  horse 
beyond  the  limits  for  which  he  was  hired,  he  acted  wholly  \^^thout  right. 
He  then  took  the  horse  into  his  own  control,  without  any  authority  or  license 
from  the  owner.  The  conversion  was  in  law  as  complete,  the  wrongful  in- 
vasion of  the  plaintiff's  right  of  property  was  as  absolute,  as  if,  instead 
of  driving  the  horse  a  few  miles  beyond  the  place  for  which  he  had  hired 
him,  he  had  detained  and  used  him  for  a  year,  or  any  other  indefinite  time, 
or  had  driven  him  to  market  and  sold  him.  If  taking  the  wrongful  control  of 
the  horse,  and  driATug  him  ten  miles,  was  not  a  substantial  conversion,  how 
far  must  the  defendant  have  driven  him?  How  long  must  he  have  det^iined 
him?  And  what  other  and  further  wrongful  acts  was  it  necessary  that  he 
should  do  in  order  to  make  himself  a  substantial  and  real  wrong-doer? 
It  would  .seem  to  be  quite  clear  that  if  the  original  act,  assuming  control  over 
the  hor.se,  was  not  a  substantial  invasion  of  the  plaintiff's  right  of  property, 
no  .subsequent  use  or  abuse  of  the  horse  by  the  defendant  could  make  it  so; 
and  that  if  the  defendant  can  not  on  the  facts  of  this  case  be  charged  for  the 
conversion  of  the  horse,  he  could  not  have  been  if  he  had  sold  or  willfully 
destroyed  him.  In  other  wortis,  the  plaiutiO:  having  delivered  the  horse 
into  the  defendant's  hands  on  a  contract  that  was  illegal,  but  which  never- 
theless left  the  general  property  in  the  plaintiff  the  defendant  may  do  what 
he  will  with  the  horse,  and  tlie  i»lainti£f  can  have  no  remedy,  because  what- 
ever he  does  can  be  no  more  than  a  breach  of  his  unlawful  contract  to  re- 
turn the  horse.    This  does  not  apiear  to  be  a  reasonable  conclusion." 


Ch.  3,  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  491 

horse  and  drove  to  Sullivan's.  The  plaintiff  knew  at  the  time  that 
the  defendant  was  under  age. 

The  evidence  further  showed  that  in  the  forenoon  of  June  19,  the 
defendant,  in  company  with  the  daughter  of  Mr.  Sullivan,  drove  to 
and  from  Sunday  school  a  mile  and  a  half  or  two  miles  from  Sul- 
livan's residence;  that  between  2  and  3  o'clock  in  the  afternoon  he 
went  out  driving  and  returned  to  Mr.  Sullivan's  between  5  and  6 
o'clock ;  that  on  his  return  the  horses  were  hitched  in  front  of  the 
house  for  a  time  and  then  the  horse  driven  by  appellee  was  again  put 
in  the  barn  about  7  o'clock  p.  m. ;  that  the  horse  v/as  driven  slowly 
and  was  not  in  any  way  injured  or  affected  by  such  use;  that  later 
in  the  evening,  when  defendant  went  to  turn  the  horse  around,  to 
start  home,  the  horse  fell  and  broke  his  neck.  The  defendant  there- 
upon telephoned  plaintiff  of  the  accident. 

On  these  facts,  there  was  a  directed  verdict  for  the  defendant,  with 
judgment  accordingly.     The  plaintiff  appeals. 

Felt,  J.  (after  stating  the  facts  and  holding  that  there  was  a  failure 
of  proof  under  the  paragraphs  of  complaint  which  charged  negligence 
and  willful  injury  and  that  there  was  no  valid  claim  for  breach  of 
contract).  If  liable  at  all,  appellee  must  be  held  liable  on  the  theory 
of  a  conversion  by  driving  the  horse  beyond  the  destination  fixed  by 
the  contract  of  hiring.     *     *     *  45 

Where  there  is  a  bailment  the  law  implies  a  duty  on  the  part  of  the 
bailee  to  use  ordinary  care  and  diligence  to  protect  the  property  from 
injury  and  to  return  it  at  the  time  and  place  agreed  upon.  A  mere 
neglect  to  perform  such  duty  would  not  subject  either  a  minor  or  an 
adult  to  a  suit  for  conversion  of  the  property.  But  if  the  bailee  does 
any  willful  and  positive  act  in  violation  of  such  duty  or  in  repudiation 
of  the  contract  of  bailment,  to  the  injury  or  loss  of  the  property,  the 
bailor  is  entitled  to  the  immediate  possession  thereof  and  may  have 
his  right  of  action  for  damages  for  any  tort  so  committed.  Rice  v. 
Boyer,  108  Ind.  472^79,  9  N.  E.  420,  58  Am.  Rep.  53 ;  Campbell  v. 
Stakes,  2  Wend.  (N.  Y.)  137,  19  Am.  Dec.  561 ;  Eaton  v.  Hill,  50 
N.  H.  235,  9  Am.  Rep.  189-193;  Humphrey  v.  Douglass,  33  Am. 
Dec.  177,  notes;  Lowery  v.  Gate,  108  Tenn.  54,  64  S.  W.  1068,  57 
L.  R.  A.  673,  and  notes  page  680,  91  Am.  St.  Rep.  744;  Collins  v. 
Gifford,  203  N.  Y.  465,  96  N.  E.  721,  38  L.  R.  A.  (N.  S.)  202,  Ann. 
Gas.    1913A,  969-974. 

The  facts  of  this  case  do  not  tend  to  show  any  intention  on  the 
part  of  appellee  to  repudiate  the  contract  of  hiring  or  to  willfully 
and  intentionally  injure  the  horse.  They  at  most  only  show  a  devia- 
tion from  the  terms  of  the  bailment  of  a  character  insufficient  to  bring 
the  case  within  the  rule  applicable  where  a  tort  has  been  committed 
in  connection  with  the  property  bailed  of  a  character  independent  of 
and  beyond  the  contract  to  such  an  extent  as  to  show  repudiation 

4  5  Portions  of  the  opinion  are  omitted. 


492  TORTS  THROUGH  ACTS   OF   ABSOLUTE  LIABILITY  (Part  1 

thereof  or  a  negligent  or  willful  injury  of  the  property.  Appellee  did 
put  the  horse  in  the  barn  at  the  place  agreed  upon,  and  it  was  at  Sulli- 
van's residence  when  the  accident  occurred.  Appellant  knew  appellee 
was  a  minor  and  understood  the  purpose  of  his  visit  to  Mr.  Sullivan's 
when  he  dealt  with  him.  Viewed  in  this  light,  the  deviation  from  the 
strict  terms  of  the  bailment  was  not  sufficient  to  enable  appellant  to 
assert  a  liability  for  conversion  of  the  property.  Schouler's  Bailments 
(3d  Ed.)  §§  139-141 ;  2  Kent  Com.  (12th  Ed.)  §  241 ;  Churchill  v. 
White,  58  Neb.  22,  78  N.  W.  369,  76  Am.  St.  Rep.  64;  Caswell  v. 
Parker,  96  Me.  39,  51  Atl.  238;  Towne  v.  Wiley,  23  Vt.  355,  56 
Am.  Dec.  85;  Gilson  v.  Spear,  38  Vt.  311,  88  Am.  Dec.  659;  Lowery 
V.  Cate,  supra. 

In  Young  v.  Muhling,  48  App.  Div.  617,  on  page  619,  63  N.  Y. 
Supp.  181,  on  page  183,  the  court  said:  "The  doctrine  that  a  person 
who  hires  a  horse  for  a  specified  journey  is  liable  for  conversion  if 
he  drives  the  horse  further  than  the  stipulated  journey,  or  on  an- 
other and  different  trip,  cannot  be  pressed  so  far  as  to  make  the  hirer 
chargeable  as  for  a  tort  merely  by  reason  of  slight  and  immaterial  de- 
partures from  the  general  course  of  the  direction  outlined  in  the  con- 
tract." 

It  is  generally  held  to  be  the  law  that  a  bailor  may  sue  in  tort  for 
damages  to  the  property  bailed,  resulting  from  a  violation  of  the  con- 
tract of  bailment  or  from  a  negligent  or  willful  injury  to  the  same. 
The  great  weight  of  authority  limits  such  recovery  to  loss  or  injury 
resulting  from  such  violation  of  the  contract  or  to  cases  where  the 
act  or  omission  evinces  an  intent  to  convert  the  property  and  destroy 
or  defeat  the  interest  of  the  bailor  therein. 

Schouler's  Bailments  (3d  Ed.)  §  139,  states  that  the  suit  for  the  tort 
is  permitted,  "not,  we  may  say,  on  the  ground  that  the  hirer  has,  in 
the  ancient  sense  of  the  word,  converted  the  thing  let  to  him,  but 
because  the  bailee's  gross,  willful,  or  wanton  violation  of  his  bailor's 
rights  makes  it  reasonable  to  treat  the  bailment  as  virtually  ended." 
The  same  author  in  section  140  states :  "On  the  other  hand,  it  is 
not  difficult  to  conceive  that  technical  misuse  might  occur  without  on 
actual  abuse  of  the  terms  of  hire  and  where  it  would  be  harsh  to 
visit  deviation  with  such  disastrous  penalties.  A  conclusion  is  reached 
in  one  case,  after  a  searching  review  of  the  authorities,  that  in  a  bail- 
ment for  hire  upon  a  certain  term,  and  not  merely  during  pleasure, 
the  hirer's  use  of  the  property  differently  in  purpose  or  manner  from 
what  had  been  mutually  intended  will  not  amount  to  a  conversion  jus- 
tifying trover,  unless  the  chattel's  destruction  was  thereby  occasioned, 
or,  at  least,  unless  the  act  was  done  with  intent  to  convert.  *  *  * 
In  truth,  the  leaven  of  common  sense,  which  keeps  our  law  in  con- 
stant ferment,  is  here  at  work,  recalling  the  injustice  of  visiting  blame- 
worthy and  blameless  deviation  with  the  same  penalties  of  absolute 
or  insurance  accountability." 


Ch.  2)  ABSOLUTE   TORTS  OTUEB  THAN  TRESPASSES  493 

In  Harvey  v.  Epes,  53  Va.  153,  pages  176,  178,  182,  we  have  a 
long  and  exhaustive  discussion  of  the  question  and  a  review  of  the 
EngHsh  and  American  decisions.  Among  other  things  it  is  said : 
"Upon  the  whole,  I  am  of  opinion  that  in  the  case  of  a  bailment  upon 
hire  for  a  certain  term,  *  *  *  the  use  of  the  property  by  the 
hirer  during  the  term,  for  a  different  purpose  or  in  a  different  man- 
ner from  that  which  was  intended  by  the  parties,  will  not  amount  to  a 
conversion  for  which  trover  will  lie,  unless  the  destruction  of  the  prop- 
erty be  thereby  occasioned,  or  at  least  unless  the  act  be  done  with 
intent  to  convert  the  property,  and  thus  to  destroy  or  defeat  the 
interest  of  the  bailor  therein.  *  *  *  'phg  act  of  misuser,  to  be 
a  conversion,  must  occasion  the  loss  of  the  property  or  be  done  with 
the  actual  intent  to  convert  it.  *  *  *  A  contrary  doctrine  would 
be  attended  with  very  harsh  and  unjust  consequences.  The  true  rule  on 
the  subject  is  not,  properly  speaking,  a  general  rule  subject  to  excep- 
tions but  is  a  simple  rule  to  this  eft'ect :  That  if  hired  property  be 
used  by  the  hirer  for  a  purpose  or  in  a  manner  not  authorized  by 
the  terms  of  the  hiring,  and  the  loss  of  the  property  be  occasioned 
by  such  misuser,  he  is  liable  in  trover  for  its  value."  See,  also.  Story 
on  Bailments  (9th  Ed.)  §  413  et  seq.,  and  notes;  Cooley  on  Torts 
(3d  Ed.)  p.  184;  Davis  v.  Garrett,  6  Bingham,  716,  722-724;  19 
Eng.  Com.  Law,  321 ;   Spencer  v.  Pilcher,  35  Va.  565. 

In  Churchill  v.  White,  supra,  the  Supreme  Court  of  Nebraska  ap- 
proved an  instruction  which  stated  at  page  26  of  58  Neb.,  at  page 
371  of  78  N.  W.  {76  Am.  St.  Rep.  64) :  "The  rule  that  one  who 
hires  property  of  this  kind  for  one  purpose  and  uses  it  for  another 
or  different  purpose  from  that  contemplated  by  the  parties  in  the 
contract  of  hiring  is  liable  for  any  harm  that  may  happen  it  while  he 
is  so  using  it  applies  to  minors  as  well  as  to  adults." 

There  is  no  evidence  in  this  case  tending  to  show  that  the  death 
of  the  horse  was  in  any  way  connected  with  or  occasioned  by  any  use 
of  the  horse  outside  the  strict  terms  of  the  contract  of  hiring  as 
given  by  appellant  himself.  Nor  is  there  any  evidence  tending  to 
show  that  appellee  had  any  intention  of  converting  the  property  and 
depriving  appellant  thereof.  There  being  a  failure  of  evidence  tend- 
ing to  connect  the  death  of  the  horse  with  any  violation  of  the  terms 
of  the  bailment  and  to  show  any  intention  to  convert  the  property, 
the  court  did  not  err  in  directing  a  verdict  or  in  overruling  appellant's 
motion  for  a  new  trial.     *     *     *     Judgment  affirmed. 


i94  TORTS  THROUGH   ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 

(C)  The  Defense  in  Trover  and  Conversion 
(a)  In  General 

[Historical  Note. — In  the  action  of  trespass  at  common  law,  a 
plea  of  "not  guilty"  was  deemed  to  deny  the  act  of  trespass  charged 
against  the  defendant  but  not  the  wrongfulness  of  that  act.  If  the 
physical  act,  committed  vi  et  armis  by  the  defendant  against  the  plain- 
tiff, was  shown,  there  was,  without  more,  an  apparent  wrong;  the 
plaintiff's  cause  was  prima  facie  complete.  There  might  be,  of  course, 
cotemporaneous  facts  which,  in  legal  effect,  rendered  the  defendant's 
act  not  wrongful,  as  when,  for  instance,  the  act  charged  against  him 
in  trespass  for  assault  and  battery  was  a  blow  struck  by  him  in  self- 
defense.  In  these  cases  the  defendant  who  would  use  this  cotempo- 
raneous fact  must  plead  it  affirmatively,  in  confession  and  avoidance 
in  excuse.  Although  a  possibly  vital  fact  in  the  occurrence,  it  was  not 
within  the  case  presented  by  the  plea  of  not  guilty. 

In  trover  and  conversion,  however,  the  plea  of  "not  guilty"  was 
deemed  at  common  law  to  deny  both  the  physical  act  charged  against 
the  defendant  and  the  wrongfulness  of  this  act.  The  ettect  was  that 
in  trover  a  defendant  who  had  pleaded  merely  "not  guilty"  could  in- 
troduce evidence  of  various  states  of  fact  having  the  general  charac- 
ter of  those  which  in  an  action  of  trespass  he  could  show  only  if  he 
had  alleged  them  affirmatively,  through  a  plea  in  confession  and  avoid- 
ance. 

For  instance,  in  trover  for  the  conversion  of  personal  property,  the 
fact  that  it  was  destroyed  by  the  executive  officer  of  the  board  of 
health,  as  required  by  law,  to  prevent  the  spread  of  disease,  can  be 
shown  under  the  plea  of  "not  guilty" ;  but,  in  trespass  for  taking  away 
personal  property,  the  fact  that  the  act  was  done  under  legal  process 
cannot  be  shown  under  a  plea  of  "not  guilty." 

A  further  effect  of  this  doctrine  appears  now  and  again  in  the  trover 
cases.  A  well-established  rule  of  the  common-law  procedure  required 
that  a  plea  which  amounted  to  the  general  issue  should  be  so  pleaded, 
under  risk  of  a  special  demurrer.  But,  from  the  nature  of  the  com- 
mon-law theory  of  trover  and  conversion,  nearly  every  possible  plea 
of  excuse  amounted  to  the  general  issue.  "As  the  conversion,  which 
is  the  gist  of  the  action  in  trover,  is,  ex  vi  termini,  a  tortious  act,  which 
cannot  in  law  be  justified  or  excused,  it  is  manifest  that  any  plea  al- 
leging matter  of  justification  or  excuse  (as  a  license  from  the  plaintiff, 
an  authority  derived  from  the  law,  etc.)  is  equivalent  to  the  pica  of  not 
guilty,  since  it  must  involve  a  denial  of  the  conversion."  Thus,  in 
detinue  the  detention  was  to  be  denied  or  justified,  but  in  trover  both 
results  were  reached  by  a  denial  of  the  conversion.  "Conversion  is 
always  a  wrongful  act  and  cannot  be  confessed  and  avoided." 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  495 

This  deviation  from  the  principles  of  scientific  pleading  was  cor- 
rected, in  large  part,  in  England,  by  the  Rules  of  Hilary  Term  of  1833. 
Regularly,  under  the  American  Codes  and  the  English  Judicature 
Acts,  if  the  defendant  in  an  action  of  tort  admits  the  prima  facie  case 
charged  against  him,  but  wishes  to  show  that  it  was  not  wrongful,  he 
mtist  plead  his  justification  specially,  by  way  of  confession  and  avoid- 
ance. But  in  some  of  the  trover  cases  under  the  Codes,  the  older  the- 
ory still  finds  an  echo. 

Where  this  view  prevails,  whether  at  common  law  or  under  the 
Code,  the  doctrine  of  excuses  for  conversion  lacks  a  clear-cut  edge. 
—Bd.] 


ROCKWOOD  V.  FEASAR. 
(Court  of  Queen's  Bench,  1590.     Cro.  Eliz.  262,  78  Reprint,  517.) 

Action  of  trover  in  London.  The  defendant  pleaded,  that  long  time 
before  the  conversion  supposed  to  be,  J.  S.  was  possessed  of  these 
goods,  as  of  his  own  goods,  at  B.  in  Norfolk ;  and  that  he  before  the 
conversion  supposed  did  casually  lose  them  and  they  came  to  the  hand 
of  J.  Palmer  by  trover,  who  gave  them  to  the' plaintiff,  who  lost  them 
in  London;  and  the  defendant  found  them,  and  afterward  did  con- 
vert them  to  his  own  use,  by  the  command  of  the  said  J.  S.  as  it  was 
lawful  for  him  to  do.  It  was  moved,  that  this  is  no  plea,  for  it 
amounts  to  the  general  issue.*® 

But  all  the  justices  held  it  a  good  plea ;  for  it  conf esseth  the  posses- 
sion and  property  in  the  plaintiff,  against  all  but  the  lawful  owner. 

Nota. — This  plea  was  devised  by  Coke  to  alter  the  trial.*^ 


HARTFORD  v.  JONES. 

(Court   of    King's   Bench,    1G9S.      2    Salk.    654,    91    Reprint,    556.) 

In  trover  and  conversion  the  defendant  pleaded,  that  the  goods  were 
cast  away,  and  they  saved  and  detained  them  till  they  were  paid  for 
their  pains.  On  demurrer.  Holt,  C.  J.,  held  that  they  might  retain  for 
payment,  as  a  carrier  for  his  hire ;  and  salvage  is  allowed  by  all  na- 
tions :   he  that  serves  another  ought  in  reason  to  be  paid  for  his  serv- 

46  On  thi.s  point  see  the  note  to  Hartford  v.  Jones,  infra. 

47  Compare  Ward  v.  Blunt  (1.5SS)  Cro.  Eliz.  146 :  In  trover  for  divers 
loads  of  corn  and  hay.  The  defendant  pleaded  that  he  had  out  the  corn 
and  hay  on  his  own  land  and  was  possessed  of  them  until  he  lost  them; 
that  the  plaintiff  found  them,  but  lost  them ;  that  they  then  came  to  the 
hands  of  the  defendant,  and  he  converted  them,  as  it  was  lawful  for  him 
to  do.    Held  open  to  demurrer,  as  amounting  to  the  general  issue. 


496  TORTS  THROUGH  ACTS   OP   ABSOLUTE  LIABILITY  (Parti 

ice ;  but  the  plea  is  naught ;  for  if  the  detainer  be  lawful,  he  does  not 
confess  a  conversion:  I  never  knew  but  one  special  plea  good  in  tro- 
ver, viz.  Yelv.  198.*^  And  the  rule  was  in  the  principal  case,  to  waive 
the  plea  and  plead  not  guilty. 


NORMAN  V.  BELL  et  al. 
(Court  of  King's  Bench,  1831.     2  Barn.  &  Adol.  190,  109  Reprint,  1114.) 

Trover  for  wheat,  &c.  Plea,  not  guilty.  At  the  trial  before  Parke, 
J.,  at  the  Carlisle  Spring  Assizes,  1831,  it  appeared,  that  in  November 
preceding,  the  defendant  was  employed  to  take  toll  of  corn  for  the 
Earl  of  Egremont  in  Cockermouth  market.  The  toll  was  taken  by  put- 
ting the  hand  into  the  sack  of  corn  as  it  stood  in  the  market,  taking  out 
a  handful,  and  placing  it  in  a  bowl  held  near  the  top  of  the  sack:  and 
the  complaint  in  this  action  was,  that  the  defendant  had  varied  from 
the  mode  previously  used,  so  as  to  bring  away  a  quantity  exceeding  the 
lawful  toll.  The  regular  mode  was  described  as  lifting,  that  practised 
by  the  defendant  as  sweeping.  It  was  objected,  on  behalf  of  the  de- 
fendant, that  trover  was  not  maintainable.  The  learned  Judge  over- 
ruled the  objection,  and  the  jury  found  a  verdict  for  the  plaintiff  with 
nominal  damages. 

F.  Pollock  now  moved  for  a  new  trial.  The  question  in  this  case 
is  as  to  the  form  of  action,  which  has  subjected  the  defendant  to  the 
expense  of  proving  title  to  the  tolls,  when  it  ultimately  turned  out 
that  the  real  matter  of  complaint  was  only  an  excessive  taking.  If 
the  defendant  had  been  a  wrong-doer  in  the  whole  of  his  proceeding, 
there  would  have  been  no  difficulty ;  but  here,  the  right  to  some  toll 
being  admitted,  the  action  is  brought  in  respect  of  part  of  the  corn 
taken.     How   is   that  part  to  be   distinguished  in   a  mixed   quanti- 

Lord  Te;ntErdi:n,  C.  J.  The  plaintiff,  by  adopting  this  form  of  ac- 
tion, has  certainly  subjected  the  defendant  to  considerable  difficulty 
and  expense,  in  consequence  of  the  generality  of  the  pleadings.  On 
the  other  hand,  the  proceeding  has  its  conveniences ;  but  the  question 
is  not,  now,  on  which  side  the  advantage  preponderates ;  we  must 
take  the  law  as  we  find  it.  The  defendant  in  this  case  was  entitled 
to  take,  as  toll,  a  certain  quantity  of  corn,  amounting  perhaps  to  a 
pint.  He  takes  a  pint  and  a  half.  There  is  no  doubt  that  he  is  a 
wrong-doer:  the  question  is  as  to  the  form  of  action.  If  the  decla- 
ration had  been  in  trespass,  the  defendant  must  have  justified  by  a 

4  8  "The  plea  in  Yelverton  was,  that  the  defendant  took  the  wine  mentioned 
in  the  declaration  for  prisage  due  to  the  King.  The  following  pleas  in  trover 
have  been  also  held  good :  a  former  recovery  in  trespass  for  the  same 
goods,  Show.  146;  a  recovery  in  trover  against  a  stranger,  Cro.  Jac.  73 ;  or 
against  the  defendant,  2  Str.  1078;  that  an  innkeeper  detained  a  horse 
for  liis  meat,  2  Bulst.  289;  tlie  Statute  of  Limitations,  Lut  99.  Vide  Bull. 
N.  F.  4i8."—l{cporter'a  Note. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  497 

prescription  to  take  so  much  corn  for  toll,  and  on  proof  that  he  had 
taken  more,  he  would  undoubtedly  have  been  liable  on  account  of  the 
excess.  If  this  would  have  been  so  in  an  action  of  trespass,  I  think 
in  the  present  form  of  action  the  result  must  be  the  same. 

Parke,  J.  This  case  may  be  made  clear  by  considering  how  it  would 
have  stood  if  this  defence  had  been  specially  pleaded  in  an  action 
of  trespass.  Suppose,  to  a  declaration  in  that  form,  the  defendant 
had  pleaded  a  prescription  to  take  a  certain  toll  of  corn,  amounting 
to  one  handful,  and  that  he  took  in  pursuance  of  such  prescription ; 
and  the  plaintiff  had  alleged  in  his  replication  or  new  assignment  a 
taking  of  two  handfuls,  or  more  than  one  handful,  would  such  repli- 
cation or  new  assignment  have  been  good  as  supporting  the  declara- 
tion, or  would  it  have  been  bad  on  demurrer?  If  bad,  the  present 
application  is  rightly  made;  if  good,  it  is  not;  and  if  the  plaintiff, 
on  such  pleadings  in  trespass,  would  have  been  entitled  to  recover,  he 
is  certainly  entitled  to  recover  in  this  action  of  trover ;  for  a  plaintiff 
may  always  bring  an  action  of  trover  where  an  action  of  trespass  de 
bonis  asportatis  would  lie.  Now  it  appears  to  me  that  a  replication, 
in  trespass,  that  the  defendant  had  taken  more  than  the  quantity  claim- 
able under  the  prescription,  would  clearly  have  been  sufficient  in  point 
of  law ;  and,  therefore,  this  action  may  be  supported.*® 


WHITE  v.  SPETTIGUE. 

(Court  of  Exchequer,  1845.     13  Mees.  &  W.  603,  67  R.  R.  753.) 

Trover  for  books ;  pleas,  not  guilty  and  not  possessed.  At  the 
trial,  it  appeared  that  the  plaintiff,  a  solicitor,  had  missed  from  day 
to  day  several  volumes  of  the  Statutes  at  Large,  which  he  suspected 
to  have  been  stolen  by  a  young  man  who  was  at  that  time  a  clerk 
in  his  office.  The  defendant,  a  bookseller  carrying  on  business  in 
London,  became  possessed  of  the  books  by  a  bona  fide  purchase  of 
them  on  different  days,  from  a  young  man  who  brought  them  to  his 
shop  and  offered  them  for  sale.  The  defendant  havmg  sold  the  books, 
this  action  was  brought  to  recover  the  value  of  them. 

On  the  above  facts  appearing  in  evidence,  it  was  objected  for  the 
defendant,  that,  as  the  plaintiff  had  .done  nothing  to  prosecute  the 
person  who  has  stolen  the  books,  he  could  not  maintain  the  action. 
Crimson  v.  Woodfull,  2  Car.  &  P.  41 ;  Peer  v.  Humphrey,  41  R.  R. 
471,  2  Ad.  &  El.  495,  4  Nev.  &  M.  430.  The  learned  Judge,  however, 
told  the  jury  that  there  was  no  evidence  to  show  who  stole  the  books, 
and  that  the  property  in  the  goods,  being  originally  in  the  plaintiff, 
could  not  be  taken  out  of  him  by  any  act  of  a  third  party;    and  he 

4  9  Part  of  the  argument  is  omitted.  Littledate  and  Patterson,  J  J.,  con- 
curred. 

Hepb.  Torts — 32 


498  TORTS  THROUGH  ACTS   OF    ABSOLUTE  LIABILITY  (Parti 

directed  them  to  find  for  the  plaintiff,  unless  they  beHeved  the  de- 
fendant received  the  goods  knowing  them  to  have  been  stolen,  in 
which  case  the  right  would  then  merge  in  the  felony,  and  the  plaintiff 
would  not  be  entitled  to  recover.  The  jury  having  found  for  the 
plaintiff,  Merewether  now  moved  for  a  new  trial,  on  the  ground  of 
misdirection. 

Parke,  B.  I  think  there  is  not  the  least  foundation  for  a  rule  in 
this  case.  In  the  first  place,  independently  of  the  point  of  law,  there 
are  neither  pleadings  to  warrant  the  defence,  nor  facts  to  support  it. 
The  only  pleas  on  the  record  are  Not  guilty,  which  puts  in  issue  the 
conversion,  and  Not  possessed,  which  puts  in  issue  the  plaintiff's  title 
at  the  time  of  conversion,     *     *     *  so 

Rule  refused. 


NICHOLS  &  SHEPARD  CO.  v.  MINNESOTA  THRESH- 
ING MFG.  CO. 

(Supreme  Court  of  Minnesota,  1S97.     70  Minn.  52S,  78  N.  W.  415.) 

Canty,  J.^^  *  *  *  It  is  assigned  as  error  that  the  court  permit- 
ted defendant  to  prove  a  certain  statute  of  South  Dakota,  against  the 
objection  that  it  was  not  pleaded  in  the  answer,  which  statute,  as  the 
courts  of  that  state  have  construed  it,  provides  that  a  chattel  mortgage 
shall  not  pass  the  title  to  the  property  covered  by  it  until  after  fore- 
closure, but  that  it  shall  confer  on  the  mortgagee  merely  a  lien  as  se- 
curity for  the  payment  of  the  indebtedness.  We  are  of  the  opinion 
that  the  evidence  was  competent,  if  material.  The  plaintiff  did  not 
allege  the  manner  in  which  defendant  converted  the  property  and 
under  its  complaint  might  have  proved  that  defendant  converted  it 
in  any  one  of  several  different  ways.  The  proof  was  that  defendant 
received  the  mortgaged  property  from  the  mortgagor  in  exchange 
for  other  property,  and  then  sold  the  mortgaged  property  to  one 
Hayden.  The  defendant  was  not  obliged  to  anticipate  this  proof 
in  the  answer,  but  had  a  right  to  meet  it  by  any  evidence  that  showed 
that  it  was  not  guilty  of  converting  the  mortgaged  property.  John- 
son V.  Oswald,  38  Minn.  550,  38  N.  W.  630,  8  Am.  St.  Rep.  698; 
Adamson  v.  Wiggins,  45  Minn.  448,  48  N.  W.  185. 

6  0  The  statement  of  the  case  is  sliglitly  abridged.  Only  so  much  of  Baron 
Parke's  opinion  is  given  as  relates  to  the  one  point.  There  were  concurring 
opinions  by  Pollock,  C.  B.  ("^Moreover,  the  defense  sought  to  be  raised  is 
not  admissible  under  these  pleas"),  Alderson,  B.  ("I  also  think  that  this 
defence  ought  to  be  specially  pleaded"),  and  Rolfe,  B. 

51  For  the  statement  of  facts  and  the  opening  portion  of  the  opinion,  see 
this  case,  ante,  p.  462. 


Ch.  2)  ABSOLUTE    TORTS  OTHER  THAN  TRESPASSES  499 

KERWOOD  V.  AYRES. 
(Supreme  Court  of  Kansas,  1S9S.     59  Kan.  343,  53  Tac.  134.) 

The  action,  by  Kerwood,  resulted  in  a  judgment  for  the  defendant. 
The  plaintiff  brings  error. 

DosTER,  C.  J.  The  defendant  in  error,  as  sheriff,  levied  an  attach- 
ment upon  certain  goods  as  the  property  of  one  Denny.  The  plaintiff 
in  error,  claiming  ownership  of  the  goods  by  purchase  from  Denny, 
brought  an  action  against  the  sheriff'  for  damages  for  their  conver- 
sion. The  petition,  however,  did  not  characterize  the  act  of  con- 
version as  performed  by  the  defendant  in  his  official  capacity.  To 
this  petition  only  a  general  denial  by  way  of  answer  was  filed.  The 
jury  found  in  defendant's  favor.  Judgment  was  rendered  in  accord- 
ance with  the  verdict,  and  the  plaintiff"  prosecutes  error  to  this  court. 

Upon  the  trial  the  district  court,  over  the  plaintiff's  objections, 
received  evidence  tending  to  show  that  the  claim  of  purchase  of  the 
goods  from  Denny  was  fraudulent.  The  admission  of  this  evidence 
constitutes  the  principal  ground  of  complaint.  The  argument  is  that, 
in  actions  for  damages  for  conversion  of  goods,  affirmative  defenses, 
such  as  justification  or  impeachment  of  plaintiff's  title,  are  not  ad- 
missible under  the  general  denial;  that  under  such  denial  the  de- 
fendant is  limited  to  counter  evidence  of  the  charge  of  conversion. 
The  plaintiff  in  error  is  mistaken.  The  rule  is  the  same  in  actions 
for  conversion  as  in  replevin.  According  to  repeated  decisions  of 
this  court,  the  filing  of  a  general  denial  in  the  last-mentioned  class 
of  actions  fully  puts  in  issue  the  plaintiff's  title  to  the  property  claim- 
ed. Wilson  V.  Fuller,  9  Kan.  176;  Holmberg  v.  Dean,  21  Kan.  79. 
The  courts  apply  the  same  rule  in  actions  for  conversion.  "A  general 
denial  traverses,  not  only  the  conversion,  but  also  the  plaintiff's  title ; 
and  hence  a  defendant  may,  under  such  a  pleading,  show  the  sources 
from  which  he  claims  title,  or  that  he  has  no  title,  or  that  the  prop- 
erty belonged  to  a  third  person,  who  transferred  it  to  the  plaintiff 
without  consideration  and  with  intent  to  cheat  the  third  person." 
1  Kinkead,  Code  PI.  §  474.  In  Steel  Works  v.  Bresnahan,  66  Mich. 
489,  33  N.  W.  834,  the  supreme  court  of  that  state  said:  "We  are 
cited  by  the  plaintiff's  counsel  to  the  general  rules  of  practice,  4 
Wm.  IV  (1833),  as  authority  for  his  position  that  the  general  issue 
in  trover  is  a  denial  of  the  conversion  only,  and  not  of  the  plaintiff's 
title  to  the  goods.  But  these  rules  have  not  been  adopted  into  our 
practice,  and  the  general  issue  in  this  state,  as  formerly  in  England, 
puts  the  whole  declaration  in  issue.  To  entitle  the  plaintiff  to  re- 
cover, two  points  are  essential  to  be  proved :  First,  property  in  him- 
self, and  a  right  of  possession  at  the  time  of  conversion ;  and,  second, 
a  conversion  of  the  goods  by  the  defendant  to  his  own  use ;  and  under 


500  TORTS  THROUGH  ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

the  general  issue  the  defendant  may  prove  by  any  competent  evi- 
dence that  the  title  to  the  goods  was  in  himself,  either  absolutely  as 
general  owner,  or  specially  as  bailee,  or  by  way  of  lien."     *     *     *  52 
Judgment  affirmed. 


(b)  The  Defense  When  the  Convekston  was  through  a  Demand 

AND  IlEFUSAL 

BALDWIN  V.  COLE. 
(Court  of  Queen's  Bench,  1705.     6  Mod.  212,  87  Reprint,  964.) 

Trover.  The  case,  upon  evidence,  was  this :  A  carpenter  sent  his 
servant  to  work  for  hire  to  the  Queen's  yard ;  and  having  been  there 
some  time,  when  he  would  go  no  more,  the  surveyor  of  the  work 
would  not  let  him  have  his  tools,  pretending  a  usage  to  detain  tools  to 
enforce  workmen  to  continue  until  the  Queen's  work  was  done.  A  de- 
mand and  refusal  was  proved  at  one  time,  and  a  tender  and  refusal 
after. 

Holt,  C.  J.  The  very  denial  of  goods  to  him  that  lias  a  right  to 
demand  them  is  an  actual  conversion,  and  not  only  evidence  of  it,  as 
has  been  holden ;  for  what  is  a  conversion,  but  an  assuming  upon  one's 
self  the  property  and  right  of  disposing  another's  goods,  and  he  that 
takes  upon  himself  to  detain  another  man's  goods  from  him  without 
cause,  takes  upon  himself  the  right  of  disposing  of  them :  so  the  tak- 
ing and  carrying  away  another  man's  goods  is  a  conversion :  so  if  one 
come  into  my  close,  and  take  my  horse  and  ride  him,  there  it  is  con- 
version :  and  here  if  the  plaintiff  had  received  them  upon  the  tender, 
notwithstanding  the  action  would  have  lain  upon  the  former  conver- 
sion, and  the  having  of  the  goods  after  would  go  only  in  mitigation  of 
the  damages :  and  he  made  no  account  of  the  pretended  usage,  but 
compared  it  to  the  doctrine  among  the  army,  that  if  a  man  came  into 
the  service,  and  brought  his  own  horse,  that  the  property  thereof  was 
immediately  altered,  and  vested  in  the  Queen;  which  he  had  already 
condemned. 

And  here  one  of  the  particulars  In  the  declaration  being  ill  laid,  the 
defendant  was  found  not  guilty  as  to  that,  and  guilty  as  to  the  rest. 


SMITH  V.  YOUNG. 
(At  Nisi  Prius,  1808.     1  Camp,  439.) 
See  ante,  p.  473,  for  a  report  of  the  case. 

02  Part  of  the  opinion  is  omitted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  501 

LOPARD  V.  SYMONS. 

(Supreme  Court  of  New  York,  Appellate  Term,  1904.     S5  N.  Y.  Supp.  1025.) 

The  action  was  by  Lopard.  The  judgment  was  for  the  defendant, 
and  the  plaintiff  appealed. 

Friedman,  P.  J.    The  facts  that  are  undisputed  in  this  case  are  as 

follows : 

Plaintiff,  a  diamond  dealer,  on  October  7,  1902,  intrusted  to  the  defendant, 
at  his  request,  a  diamond  stud.  The  defendant  was  a  proposed  purchaser, 
and  took  the  stone  for  the  purpose  of  having  it  appraised.  He  executed  a 
writing  by  which  he  agreed  to  return  the  stone  on  demand.  It  was  shown 
upon  the  trial,  A^dthout  objection,  that  the  defendant  was  to  return  the  stud 
within  an  hour.  Subsequently,  and  a  few  hours  later  on  the  same  day,  the 
plaintiff  called  at  the  defendant's  place  of  business  and  asked  for  the  return 
of  the  stone,  saying  that  he  had  another  customer  for  it.  The  defendant 
thereupon  promised  to  return  it  within  half  an  hour.  This  he  did  not  do, 
but,  instead,  took  it  home;  and  some  time  during  that  night  his  room  was 
entered  by  a  burglar,  who  stole  the  diamond,  together  with  defendant's 
watch,  chain,  money,   etc. 

Upon  suit  being  brought  by  plaintiff  for  conversion,  the  defendant 
interposed  this  theft  as  his  defense,  and  succeeded  in  the  court  below. 
The  judgment  must  be  reversed. 

Upon  failure  by  the  defendant  to  return  the  stone  upon  the  demand 
made  by  the  plaintiff,  the  defendant  assumed  to  exercise  act  of  con- 
trol over  the  property  of  the  plaintiff  in  hostility  to  his  rights  as 
owner,  and  was  then  liable  in  an  action  for  conversion.  Boyce  v. 
Brockway,  31  N.  Y.  490.  He  could  not  excuse  himself  from  refusing 
to  return  the  stud  upon  demand  by  showing  that  the  property  was  sub- 
sequently stolen  from  him,  even  if  he  showed  that  he  exercised  the 
greatest  care  in  its  preservation.  ' 

Judgment  reversed.  New  trial  ordered,  with  costs  to  the  appellant 
to  abide  the  event.    All  concur. 


ALEXANDER  v.  SOUTHEY. 

(Court  of  King's  Bench,  1821.    5  Barn.  &  Aid.  247,  106  Reprint,  1183, 

24  R.   R.  348.) 

Trover  for  printing  types  and  other  goods.  Plea,  general  issue.  At 
the  trial  at  the  last  Guildhall  sittings  before  Best.  J.,  it  appeared  that 
the  defendant,  who  was  the  servant  of  the  Albion  Insurance  Com- 
pany, had  in  his  custody  in  a  warehouse,  of  which  he  kept  the  key. 
certain  goods  belonging  to  the  plaintiff,  saved  from  a  fire  at  the 
plaintiff's  house,  and  which  had  been  carried  to  the  warehouse  by  the 
servants  of  the  company.  The  only  evidence  of  a  conversion  was, 
that  when  the  plaintiff  demanded  the  goods  from  the  defendant,  the 
latter  said  that  he  could  not  deliver  them  up  without  an  order  from  the 
Albion  Office.     The  learned  Judge  left  it  to  the  jury  to  say,  whether 


502  TORTS  THROUGH   ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

this  qualification  of  the  defendant's  refusal  was  a  reasonable  one,  tell- 
ing them,  that  if  so,  he  was  of  opinion,  that  there  was  not  sufficient 
evidence  of  a  conversion.  The  jury  accordingly  found  a  verdict  for 
the  defendant.     And  now 

Denman  moved  for  a  new  trial,  on  the  ground  of  a  misdirection. 

BaylKy,  J,  If  the  plaintiff  in  this  case  had  informed  the  defendant 
that  he  had  previously  made  application  to  the  Insurance  Company, 
and  that  they  had  refused  permission  for  the  delivery  of  the  property, 
or  had  told  the  defendant,  that  he  expected  him  to  go  and  get  an  order, 
authorizing  the  delivery  of  the  property,  and  after  that,  the  defendant 
had  refused  either  to  deliver  the  goods  or  to  go  and  get  such  order, 
I  think  it  would  have  amounted  to  a  conversion  on  his  part :  but  here 
the  defendant  had  the  goods  in  his  possession  as  the  agent  of  the 
Insurance  Company,  and  he  would  not  have  done  his  duty  if  he  had 
given  them  up  without  an  application  to  his  employers.  He  only  gave, 
as  it  seems  to  me,  a  qualified,  reasonable,  and  justifiable  refusal. 

Bkst,  J.  I  thought  at  the  trial  that  I  might  properly  have  nonsuited 
the  plaintiff,  but  that  the  safer  course  was  to  leave  the  question  to  the 
jury.  An  unqualified  refusal  is  almost  always  conclusive  evidence  of 
a  conversion;  but  if  there  be  a  qualification  annexed  to  it,  the  question 
then  is  whether  it  be  a  reasonable  one.  Here,  the  jury  thought  the 
qualification  a  reasonable  one,  and  that  the  refusal  did  not  amount  to 
a  conversion  of  the  property,  and  I  think  they  were  right  in  that  con- 
clusion. 

Rule  refused.^* 


VAUGHAN  V.  WATT. 

(Court  of  Exchequer,   1840.     6   Mees.  &   W.   492,  55  R.  I?.   712.) 

Trover  for  different  articles  of  wearing  apparel,  &c.  Pleas :  First, 
not  guilty;  secondly,  that  the  goods  were  not  the  property  of  the 
plaintiff:  on  which  issues  were  joined.  At  the  trial,  before  Rolfe,  B., 
the  following  appeared  to  be  the  facts  of  the  case : 

On  the  24th  of  July,  1839,  the  goods  in  question  were  pledged  with  the 
defendant,  a  pawnbroker,  by  a  female  of  tlie  name  of  Hubbard,  in  the  name 
(as  the  defendant  understood  it)  of  Mary  Warne.  and  the  duplicate  was 
so  made  out.  On  tJie  next  day  he  was  sent  to  by  that  person  (whom  he  did 
not  then  know,  Init  who  afterwards  proved  to  be  the  plaintiff's  wife),  to  say 
that  she  had  lost  the  duplicate,  and  she  demanded  and  obtained  from  him 
a  copy  thereof,  and  also  a  form  of  a  declaration  of  the  loss  of  it,  pursuant 
to  the  Stat.  39  &  40  Geo.  Ill,  c.  99,  §  16,  and  5  &  6  Will.  IV,  c.  62,  §  12.  54 

53  The  concurring  opinions  of  Abbott,  C.  J.,  and  Holroyd,  J.,  are  omitted. 
See  the  comment  on  this  case  by  Mr.  Justice  Blackburn  in  Hollins  v.  Fowler, 
when  that  case  was  before  the  House  of  Lords  in  1875.    L.  R.  7  H.  L.  757,  767. 

5*  By  the  terms  of  this  statute  the  person  obtaining  the  copy  ".shall  there- 
upon prove  his  or  her  property  in  or  right  to  such  goods  and  chattels,  to 
the  satisfaction  of  some  justice  of  the  peace  of  the  place  where  the  goods 
or  chattels  shall  have  been  pledged." 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  503 

Some  days  afterwards,  upon  an  allegation  that  this  document  also  was 
lost,  she  obtained  from  the  defendant  another  similar  form.  On  the  6th 
of  August,  the  plaiutiQ:  Vaughau  produced  the  duplicate  to  the  defendant, 
and  demanded  the  goods,  tendering  the  amount  of  the  pledge  and  the  interest. 
The  defendant  refused  to  give  them  up,  on  the  ground  of  the  declarations 
having  been  obtained  from  him.  On  the  7th,  the  plaintiff  made  an  applica- 
tion to  a  police  magistrate,  for  the  purpose  of  compelling  the  restoration  of 
the  gootls,  and  a  summons  was  granted  for  the  defendant's  appearance. 
The  plaintiff  stated  that  it  was  his  wife  by  whom  the  goods  had  been 
pledged ;  but  the  magistrate,  after  hearing  the  circumstances,  declined  to 
interfere.     The  plaintiff  then  brought  this  action. 

It  was  contended  for  the  defendant,  that  there  was  no  evidence  of 
such  an  absoUite  refusal  by  him  to  deliver  up  the  goods  to  the  plaintiff, 
as  constituted  a  conversion ;  and  that  he  was  justified  in  refusing  to 
do  so,  by  the  circumstance  of  the  declarations  having  been  obtained 
by  another  party  claiming  to  be  the  owner.  The  learned  Judge  thought 
that  the  mere  fact  of  these  documents  having  been  obtained  was  no 
defence  as  against  the  real  owner  of  the  goods,  who  might,  in  that 
case,  never  have  it  in  his  power  to  recover  possession  of  them  and 
under  his  Lordship's  direction,  a  verdict  was  found  for  the  plaintiff, 
damages  £10,  leave  being  reserved  to  the  defendant  to  move  to  enter  a 
nonsuit. 

A  rule  for  a  nonsuit  or  for  a  new  trial  was  accordingly  obtained  and 
argued. ^^ 

Parke,  B.  The  learned  Judge  was  incorrect  in  telling  the  jury  that 
the  mere  refusal  to  deliver  the  goods  to  the  real  owner  was  a  con- 
version. It  was  a  question  for  the  jury  whether  the  defendant  meant 
to  apply  them  to  his  own  use,  or  assert  the  title  of  a  third  party 
to  them,  or  whether  he  only  meant  to  keep  them  in  order  to  ascer- 
tain the  title  to  them,  and  clear  up  the  doubts  he  then  entertained 
on  the  subject,  and  whether  a  reasonable  time  for  doing  so  had 
not  elapsed,  without  which  it  would  not  be  a  conversion.  It  ought 
therefore  to  have  been  left  to  the  jury,  whether  the  defendant  had  a 
bona  fide  doubt  as  to  the  title  to  the  goods,  and  if  so,  whether  a  rea- 
sonable time  for  clearing  up  that  doubt  had  elapsed.  The  party  ob- 
taining the  declaration  is  bound  to  go  before  a  magistrate,  and  satisfy 
him  by  evidence  that  he  is  the  real  owner  of  the  goods;  and  if  a  rea- 
sonable time  had  elapsed  in  this  case  for  doing  so,  the  defendant  had 
no  longer  any  reasonable  ground  for  detaining  them  on  the  6th  of 
July,  for  a  supposed  defect  of  title.  That  was  a  question  for  the  jury. 
The  statute  supposes  that  the  party  will  go  before  the  magistrate  im- 
mediately ;  and  if  three  or  four  days  elapse  without  his  doing  so,  the 
jury  would  be  well  warranted  in  finding  that  the  reasonable  time  had 
elapsed.  But  it  is  all  for  the  jury;  however  strong  the  facts,  the  Judge 
cannot  take  it  upon  himself  to  refuse  to  leave  the  question  to  them. 

65  The  argument  on  the  rule  is  omitted. 


504  TORTS  THROUGH  ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 

Therefore,  although  the  result  will  clearly  be  the  same,  in  strict  law 
the  defendant  is  entitled  to  have  the  facts  submitted  to  the  jury.  There 
must  therefore  be  a  new  trial. ^* 


BOARDMAN  v.  STLL. 
(At  Nisi  Prius,  Sittings  after  Michaelmas  Term,  1809.     1  Camp.  410,  note.) 

Trover  for  some  brandy  which  lay  in  the  defendant's  cellars,  and 
which  when  demanded  he  had  refused  to  deliver  up,  saying  it  was 
his  own  property.  At  this  time  certain  warehouse  rent  was  due  to  the 
defendant  on  account  of  the  brandy,  of  which  no  tender  had  been 
made  to  him.  The  Attorney  General  contended  that  the  defendant 
had  a  lien  on  the  brandy  for  the  warehouse  rent,  and  that  till  this  was 
tendered  trover  would  not  lie. 

But  Lord  EllEncorough  considered,  that  as  the  brandy  had  been 
detained  on  a  different  ground,  and  as  no  demand  of  warehouse  rent 
had  been  made,  the  defendant  must  be  taken  to  have  waived  his  lien, 
if  he  had  one,  which  would  admit  of  some  doubt.  The  plaintiff  had  a 
verdict.^' 


ALLGEAR  v.  WAESH. 

(Kansas  City  Court  of  Appeals,  Missouri,  1887.     24  Mo.  App.  134.) 

Philips,  P.  J.  The  plaintiff  sued  the  defendant  in  trover  for  the 
conversion  of  a  barrel  of  whiskey.  The  answer,  after  tendering  the 
general  issue,  pleaded  that  prior  to  the  general  state  election  in  1884, 
the  plaintiff  made  a  bet  with  one  Flaisig,  to  the  eft"ect,  that  the  plain- 
tiff wagered  $100  against  one  barrel  of  whiskey,  the  property  of 
Flaisig,  that  Marmaduke  would  be  elected  governor  of  the  state ;  that 
prior  to  this  bet  the  said  Flaisig,  in  order  to  induce  defendant  to  go  on 
a  note  with  him  as  surety  to  the  Saxton  National  Bank,  of  St.  Joseph, 
for  the  sum  of  $2,200,  agreed  to,  and  did,  turn  over  to  defendant  thirty 
barrels  of  whiskey  as  collateral  security;  that  he  accordingly  executed 
said  note,  which  has  not  been  paid  off  or  satisfied ;  that  at  the  time  of 
the  making  of  the  said  bet  the  plaintiff  and  Flaisig  came  to  him,  when 
plaintiff  asked  if  he  (defendant)  had  a  barrel  of  whiskey  belonging  to 
Flaisig,  to  which  he  answered  that  he  had,  but  without  explaining  to 

seTlie  concurring  opinions  of  Lord  Abinger,  C.  B.,  and  of  Rolfe,  B.,  are 
omitted. 

5"  Compare:  Marine  Bank  v.  Fiske  (1877)  71  N.  Y.  353:  (P.  demands  a 
larger  quantity  of  wheat  than  he  is  entitled  to ;  D.  refuses  upon  the 
ground  that  no  part  of  the  wheat  belongs  to  P.)  Singer  Mfg.  Co.  v.  King 
(1884)  14  R.  I.  .511:  An  agent  who  had  received  a  chattel  from  his  principal 
refu.sed  to  deliver  it  to  the  owner,  not  in  order  to  consult  his  princ-ipal  as 
to  the  title,  hut  iu  co-operation  with  his  principal  in  the  unlawful  withholding 
from  the  owner. 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  505 

plaintiff  how  he  held  the  same.  The  answer  alleged  that  he  held  said 
barrel  by  reason  of  said  pledge,  and  that  the  wager  between  the  said 
parties  was  illegal,  etc.  Plaintiff  had  judgment,  from  which  defend- 
ant has  appealed. 

The  appellant  presents  his  case  on  the  theory,  first,  that  this  action, 
in  its  essence,  is  to  enforce  a  wagering  contract,  or  to  recover  from  a 
stakeholder  property  won  on  a  bet  on  an  election.  It  is  manifest,  from 
the  instructions  given  and  refused  by  the  court,  that  it  tried  the  case 
on  the  theory  that  plaintiff's  cause  of  action  was  predicated  on  a  trans- 
action independent  of  the  wagering  contract,  and  which  supervened 
after  the  performance  by  the  parties.     *     *     * 

In  Armstrong  v.  Toler,  11  Wheat.  258,  6  L.  Ed.  468,  while  the 
general  rule  was  recognized,  that  the  courts  will  not  enforce  contracts 
growing  immediately  out  of,  or  connected  with,  an  illegal  act,  yet  it 
was  held  that  if  the  promise  on  which  the  action  is  predicated  be  dis- 
connected from  the  illegal  act,  and  founded  on  a  new  undertaking,  it 
is  not  affected  by  such  act,  though  it  was  known  to  the  promisee,  who 
abetted  the  illegal  act.  In  recognition,  no  doubt,  of  this  ruling,  it  has 
been  held  that  the  test  whether  a  claim  connected  with  an  illegal 
transaction  be  enforceable  at  law  is  whether  the  plaintiff  requires  the 
aid  of  the  forbidden  transaction  to  establish  his  case.  If  he  can  fully 
develop  his  cause,  without  predicating  it  on  the  illegal  matter,  so  that 
it  is  not  in  fact  and  law  dependent  thereon,  the  action  is  maintainable. 
Swan  V.  Scott,  11  Serg.  &  R.  (Pa.)  164;  Thomas  v.  Brady,  10  Pa.  170; 
Holt  v.  Green,  7Z  Pa.  198,  13  Am.  Rep.  7^1 ;  Tyler  v.  Larimore,  19 
Mo.  App.  458;  Parsons  v.  Randolph,  21  Mo.  App.  353. 

All  that  was  necessary  to  enable  plaintiff  to  make  out  the  case  stated 
in  the  petition  was  to  prove  the  agreement  by  which  Flaisig,  the  ad- 
mitted original  owner  of  the  whiskey,  consented  that  the  defendant 
should  turn  the  same  over  to  plaintiff,  and  the  defendant's  assent  to 
hold  the  same  subject  to  plaintiff's  order,  the  demand  and  refusal 
to  return  to  plaintiff.  This  case  is  little  distinguishable  in  principle 
from  that  of  Gowan,  Adm'r,  v.  Gowan,  30  Mo.  472,  in  which  it 
was  held  that  where  a  debtor  deposits  personal  property  in  the 
hands  of  another  as  bailee  for  the  purpose  of  fraudulently  screen- 
ing it  from  his  creditors,  the  bailee  cannot  avail  himself  of  the 
fraudulent  intent  of  the  depositor,  to  defeat  an  action  brought  against 
him  by  the  bailor  for  the  recovery  of  such  property.  Napton,  J.,  in 
delivering  the  opinion  of  the  court,  very  appositely  observed:  "The 
plaintiff  simply  asks  that  the  bailment  may  be  enforced ;  that  as 
he  put  the  property  in  the  defendant's  hands,  subject  to  his  order, 
he  shall  now  have  it  again  when  demanded.  No  document  or  fact  is 
alleged  to  show  that  the  transaction  was  any  otherwise  than  it  appeared 
to  be." 

The  same  principle,  in  effect,  was  again  recognized  by  the  Supreme 
Court  in  Watson  v.  Harmon,  85  Mo.  443,  where  the  vendor  of  goods 
was  left  in  possession  by  the  vendee  as  a  cloak  to  defraud  the  creditors 


506  TORTS  THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

of  the  vendee.  The  vendee  was  allowed  to  maintain  trover  against 
the  vendor  who  refused  on  demand  to  surrender  the  goods. 

So  in  Charles  v.  McCune,  57  Mo.  166,  the  plaintiff,  who  had  sent 
certain  stock  from  INIissouri  into  Texas  during  the  war,  in  contraven- 
tion of  the  non-intercourse  proclamation  of  the  president,  was  held  to 
be  entitled  to  maintain  trover  against  the  defendant,  who  acquired  the 
possession  of  the  stock,  and  converted  the  same  to  his  own  use.  While 
the  violation  of  the  proclamation  rendered  the  stock  subject  to  confis- 
cation, that  fact  constituted  no  defence  to  the  conduct  of  the  defend- 
ant.    *     *     * 

Judgment  affirmed.^^ 


ENGLAND  v.  COWLEY. 

(Court  of  Exchequer,  1873.     L.  R.  8  Exch.  126.) 

Trover  for  household  furniture.  Plea:  Not  guilty  by  statute."** 
Issue. 

The  plaintiff  was  the  holder  of  a  bill  of  sale  over  the  household 
furniture  of  Miss  Morley,  the  tenant  to  the  defendant  of  a  house  in 
River  Terrace,  Chelsea.  The  bill  of  sale  contained  the  usual  clauses 
enabling  the  plaintiff  to  take  possession  of,  and  remove  and  sell  the 
furniture  in  case  of  default  upon  Miss  Morley's  part  in  payment  of 
the  sum  advanced.  She  having  made  default,  the  plaintiff  put  a  man 
in  possession  early  in  August,  1872,  and  upon  the  11th  of  August  sent 
two  of  his  men  with  vans  to  remove  the  furniture  from  the  house. 
It  was  then  after  sunset.  The  men  were  met  at  the  house  by  the  de- 
fendant, the  landlord,  who  alleged  that  half  a  year's  rent  was  due  and 
in  arrear,  and  stated  that  he  did  not  intend  to  allow  the  goods  to  be 
removed,  as  be  meant  to  distrain  on  the  day  following.  One  of  the 
men  returned,  and  informed  the  plaintiff  of  what  had  passed.  The 
plaintiff  thereupon  went  to  the  house  himself,  and  was  told  by  the 
defendant,  who  was  in  the  passage,  that  he  would  not  suffer  any  of 
the  goods  to  be  taken  away  until  his  rent  was  paid.  The  defendant 
had  also  engaged  a  policeman,  whom  he  stationed  outside,  to  prevent 
the  removal  of  the  goods.  The  plaintiff'  thereupon  gave  up  the  at- 
tempted removal  and  went  away,  leaving  a  man  still  in  possession. 
The  defendant  did  not  himself  actually  take  possession  of  or  remove 
any  of  the  goods  upon  this  occasion.  His  object  was  to  prevent  the 
plaintiff's  removing  them  in  order  to  distrain  the  next  day  at  a  legal 
hour. 

58  The  arguments  and  part  of  the  opinion  are  omitted. 

50  Tlie  statute  referred  to  is  the  Act  of  11  Geo.  II,  c.  19,  §  21  (1738),  de- 
claring,' that  in  actions  of  trespass  or  on  the  case  against  persons  eiililied  to 
rent,  it  shall  be  lawful  for  the  dofcudaut  "to  plead  the  general  issue,  and 
give  the  special  matter  in  evidence." 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  507 

The  cause  was  tried  before  Bramwell,  B.,  at  the  Surrey  summer  as- 
sizes, 1872.  In  summing  up  the  learned  judge  directed  the  jury  in  the 
following  terms : 

"If  you  are  of  opinion  that  the  defendant  did  not  deprive  the  plaintiff  of 
his  goods,  did  not  take  i>ossession  of,  nor  assume  dominion  over,  them,  but 
merely  prevented  the  plaintiff  from  removing  them  from  one  place  to  another, 
allowing  him  to  remain  in  possession  of  them  if  he  liked,  then  there  is  no 
cause  of  action." 

The  jury  answered  this  question  in  favour  of  the  defendant,  and  a 
verdict  was  entered  for  him  accordingly,  with  leave  to  enter  a  verdict 
for  the  plaintiff  for  £40,  the  value  of  the  goods,  if  the  Court  should  be 
of  opinion  that  the  learned  judge  ought  to  have  directed  a  verdict 
for  the  plaintiff.  A  rule  was  obtained  in  Michaelmas  Term  accord- 
ingly, on  the  ground  that  the  learned  judge  ought  to  have  directed  the 
jury  that  the  conversion  was  proved. 

jMartin,  B.  I  think  this  rule  should  be  made  absolute.  The  real 
question  is  whether  the  defendant  "converted  to  his  own  use,  or 
wrongfully  deprived"  the  plaintiff  of  his  goods.  Now  it  appears  that 
the  plaintiff  had  a  bill  of  sale  over  the  goods  of  one  Morley,  whose 
landlord  the  defendant  was.  After  sunset  on  the  11th  of  August, 
1872,  when  a  distress  was  impossible,  the  plaintiff,  who  had  previously 
put  a  man  in  possession,  went  himself  to  the  house,  with  the  view  of 
removing  the  goods,  there  having  been  a  default  under  the  bill  of  sale. 
The  defendant  could  not  distrain  that  evening,  but  in  order  to  have 
the  opportunity  of  distraining  he  told  the  plaintiff  that  he  would  pre- 
vent the  goods  being  removed,  and  he  took  steps  accordingly,  placing  a 
policeman  to  watch  the  house  and  tO  prevent  the  removal.  I  think  this 
was  a  conversion.  The  plaintiff  was  not  bound  to  resist  the  defendant, 
and  to  remove  his  goods  at  the  peril  of  coming  into  collision  with  him. 
He  was  deprived,  by  the  plaintiff's  act,  of  the  power  over  his  goods 
which  he  was  entitled  to  exercise.  That  is,  in  my  opinion,  enough 
to  enable  him  to  maintain  this  action.  If  the  defendant  had  been  in 
the  room  where  the  goods  were,  and  had  said  to  the  plaintiff,  "These 
goods  shall  not  be  removed,"  surely  that  would  have  been  a  "wrongful 
deprivation."  The  defendant  was,  in  fact,  not  in  the  room  but  in  the 
passage,  with  equal  means,  however,  of  stopping  the  removal.  I  can 
see  no  difference  between  the  two  cases. 

Kklly,  C.  B.  I  am  of  opinion  that  this  rule  should  be  discharged. 
The  defendant,  in  my  judgment,  never  converted  these  goods  to  his 
own  use.  The  plaintiff  was  himself  in  actual  possession  of  them, 
and  all  the  defendant  did  was  to  say,  "Rent  is  due  to  me,  and  before 
that  rent  is  paid  I  will  not  allow  these  goods  to  be  removed."  This 
is  no  conversion.  Many  illustrations  might  be  put  to  shew  how  absurd 
would  be  the  consequences  of  so  holding.  For  instance ;  suppose  a 
lodger  was  ill,  and  an  attempt  were  made  to  remove  the  bed  he  was 
lying  on.  Someone  interferes,  and  says  to  the  man  who  wants  to  re- 
move, and  who  is  the  true  owner,  "You  shall  not  do  so."     This  is  an 


508  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

interference  with  his  dominion  over  his  own  property;  yet  there 
would  be  no  conversion.  Indeed,  it  is  only  by  relying  upon  the  some- 
what vague  language  which  has  been  used  about  this  form  of  action 
that  any  plausible  argument  can  be  maintained.  Apart  from  mere 
dicta,  no  case,  so  far  as  I  am  aware,  can  be  found  where  a  man  not  in 
possession  of  the  property  has  been  held  liable  in  trover  unless  he  has 
absolutely  denied  the  plaintiff's  right,  although,  if  in  possession  of  the 
property,  any  dealing  with  it,  inconsistent  with  the  true  owner's  right 
would  be  a  conversion.  A  limited  interference  with  the  plaintiff's 
property,  where  all  along  the  plaintiff  is  himself  in  possession,  does 
not  constitute  conversion.  In  the  case  of  Fowler  v.  Hollins,  Law  Rep. 
7  Q.  B.  616,  the  cotton  was  in  the  defendant's  actual  possession.  I 
thought  him  not  guilty  because  he  was  acting  as  broker  merely ;  but 
even  assuming  the  case  was  well  decided,  the  plaintiff  was  out  of  pos- 
session, and  the  defendant  had  full  control  over  the  goods.  So  also  in 
Willbraham  v.  Snow,  2  Wins.  Saund.  87,  the  plaintiff's  tools  were 
entirely  under  the  control  of  the  defendant.  Nor  does  the  case  re- 
ferred to  by  my  Brother  Martin,  of  Fouldes  v.  Willoughby,  8  M.  &  W. 
540,  really  assist  the  plaintiff;  for  the  dictum  of  Alderson,  B.,  which 
at  first  sight  appears  to  favour  his  contention,  is  founded  upon  the 
assumption  that  the  plaintiff  was  out  of  actual  possession  of  the  goods. 

I  think,  therefore,  that  the  plaintiff  must  fail  in  this  form  of  ac- 
tion. He  may  have  another  remedy  by  some  form  of  action  of 
trespass  on  the  case,  but  the  measure  of  damages  would  be  different. 
It  would  be  unjust  that,  under  the  circumstances  proved,  he  should 
recover  against  the  defendant  the  value  of  the  goods.  The  rule  must, 
therefore,  be  discharged. 

Rule  discharged.®" 

80  Pollock  and  Bramwell,  BB.,  concurred  with  the  Chief  Baron.  In  his 
concurring  opinion  Bramwell,  B.,  renuirked :  "Here  the  defendant  did  not 
'convert'  the  goods  to  his  own  use,  either  hy  sale  or  in  any  other  way.  Nor 
did  he  deprive  the  plaintiff  of  them.  All  he  did  was  to  prevent,  or  threaten 
to  prevent,  the  plaintiff  from  using  them  in  a  particular  way.  'You  shall 
not  remove  them,'  he  said,  but  the  plaintiff  still  might  do  as  he  pleased  with 
them  in  the  house.  Assume  that  there  was  actual  prevention,  still  I  think 
this  action  cannot  be  maintained.  Take  some  analogous  cases,  by  way  of 
Illustration.  A  man  is  going  to  fight  a  duel,  and  goes  to  a  drawer  to  get 
one  of  his  pistols.  I  say  to  him  'You  shall  not  take  that  pistol  of  yours 
out  of  the  drawer,'  and  hinder  his  doing  so.  Is  that  a  conversion  of  the 
pistol  by  me  to  my  own  use?  Certainly  not.  Or,  again,  I  meet  a  man  on 
liorseback  going  in  a  particular  direction,  and  say  to  liim,  'You  shall  not 
go  that  way,  you  must  turn  back ;'  and  make  him  comply.  Who  could  say 
that  I  had  been  guilty  of  a  conversion  of  the  horse?  Or  I  might  prevent  a 
man  from  pawning  his  watch,  but  no  one  would  call  that  a  conversion  of 
the  watch  by  me.    And  really  this  case  is  the  same  with  these." 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  509 


DONNELL  V.  CANADIAN  PAC.  RY.  CO. 

(Supreme  Judicial  Court  of  Maine.  1912.     109  Me.  500,  84  Atl.  1002, 

50  L.  R.  A.  [N.  S.]  1172.) 

Spear,  J.  This  case,  coming  up  on  report,  imposes  jury  powers 
upon  the  court.  It  is  the  opinion  of  the  court  that  the  following  facts 
may  be  found  upon  a  preponderance  of  evidence : 

This  is  an  action  of  trover  for  the  conversion  of  personal  property, 
consisting  of  various  kinds  of  merchandise  of  the  alleged  value  of 
$2,600,  the  amount  of  which  is  not  in  dispute.  The  plaintiff  was  a 
large  dealer  in  groceries,  provisions,  and  feed  in  the  village  of  Presque 
Isle,  and  had  been  so  engaged  for  at  least  seven  years.  The  defend- 
ant is  a  railroad  corporation,  having  a  station,  freight  house,  and  place 
of  business  at  Presque  Isle. 

The  defendant  company  and  the  Bangor  &  Aroostook  Railroad  Com- 
pany are  competing  roads  as  common  carriers  of  freight  at  Presque 
Isle.  Prior  to  the  7th  day  of  June,  1909,  for  several  years  the  plain- 
tiff had  an  agreement  with  the  defendant  that  the  bulk  of  his  freight 
coming  in  car  load  lots  should  come  over  the  defendant  road,  and  that 
in  consideration  for  this  business  the  defendant  should  set  apart  a  por- 
tion of  its  freight  house  for  the  storage  of  his  goods,  and  keep  them 
separate  from  the  goods  of  other  shippers,  and  allow  the  plaintiff 
and  his  servants  at  any  time  to  remove  them,  for  the  storage  of  which 
no  charge  was  to  be  made.  This  arrangement  was  admitted  by  the 
defendant's  agent,  and  had  existed  for  some  years  prior  to  the  date 
of  the  fire.  As  a  necessary  result  the  defendant,  his  agents,  and  em- 
ployes had  been  furnished  with  a  key,  whenever  called  for,  for  the 
purpose  of  storing  and  removing  goods  from  the  storehouse.  Pre- 
vious to  the  day  of  the  fire,  neither  the  plaintiff  nor  any  one  of  his 
employes  had  ever  been  refused  the  use  of  the  key,  upon  request,  to 
give  them  access  to  the  building. 

On  the  afternoon  of  June  7,  1909,  a  fire  started  in  the  western  part 
of  the  village  of  Presque  Isle,  about  one-half  mile  from  the  freight 
and  store  house  of  the  defendant,  which  rapidly  developed,  threatened, 
and  finally  consumed  a  large  part  of  the  village,  including  the  freight 
house  in  question.  At  this  time  the  goods  alleged  to  have  been  con- 
verted, together  with  five  barrels  of  sugar,  which  were  removed,  were 
in  the  storehouse  without  insurance.  When  the  plaintiff'  became 
alarmed  at  the  progress  of  the  fire,  he  took  his  team,  with  three  serv- 
ants, and  proceeded  to  the  storehouse.  Immediately  upon  arriving, 
he  sent  one  of  his  men,  Mr.  McKenney,  who  had  long  been  a  clerk  in 
his  store  and  well  known  to  the  defendant's  agent  as  his  clerk,  to 
obtain  the  key  to  the  storehouse  to  enable  him  to  unlock  it  and  re- 
move his  goods  to  a  place  of  safety.  This  was  from  three-quarters 
of  an  hour  to  an  hour  before  the  fire  was  communicated  to  the  freight 
house.     The  defendant's  agent,  although  he  said  in  his  testimony,  "I 


510  TORTS  THROUGH  ACTS   OF   ABSOLUTE  LIABILITY  (Part  1 

presumed  he  wanted  the  key  for  the  purpose  of  removing  his  goods," 
refused  to  deHver  the  key.  He  also  says  that  he  gave  Mr.  McKenney 
no  reasons  whatever  for  refusing  him  the  key.  McKenney  returned 
without  the  key,  and  the  plaintiff  himself  then  proceeded  to  the  sta- 
tion, found  the  defendant's  agent,  and  requested  the  key.  As  to  what 
occurred  between  the  plaintiff  and  the  defendant's  agent  with  refer- 
ence to  what  seems  to  have  been  a  fatal  delay  in  not  turning  over  the 
key  to  the  plaintiff,  there  appears  to  be  a  material  conflict  in  the  tes- 
timony, which  must  be  solved  in  the  light  of  the  circumstances  and 
probabilities,  because  it  is  not  controverted  that  the  plaintiff,  had  he 
been  given  the  key  when  he  first  approached  the  agent,  would  have 
been  able  to  save  all  his  goods.  Therefore  the  loss  of  the  time  between 
the  request  for  the  key  and  receiving  it  was  responsible  for  the  burning 
of  the  goods.  The  defendant  contends  that  this  loss  of  time  was  due 
to  the  voluntary  concession  of  the  plaintiff,  based  upon  the  conclusion 
that  the  storehouse  was  not  in  danger.  The  plaintiff,  however,  con- 
tends that  he  was  unable  to  obtain  the  key  until  the  burning  of  the 
warehouse  was  imminent.     *     *     * 

We  therefore  think  that  the  plaintiff's  testimony,  corroborated  by 
the  probabilities,  sustains  the  burden  of  proof  in  favor  of  his  conten- 
tion as  to  the  cause  of  the  delay.  Upon  this  conclusion  of  fact,  did 
the  refusal  of  the  defendant  to  deliver  the  key  to  the  plaintiff  con- 
stitute a  conversion? 

Again,  the  circumstances  under  which  the  plaintiff  was  acting  con- 
stitute an  important  element  in  determining,  not  only  the  facts,  but 
his  legal  rights  upon  the  question  of  conversion.  Under  ordinary  con- 
ditions we  should  gravely  doubt  if  the  acts  of  the  defendant's  agent 
could  be  regarded  as  tantamount  to  a  conversion.  The  right  to  pos- 
session of  goods  in  the  hands  of  a  bailee  may  depend,  however,  so  in- 
timately upon  immediate  surrender  that  a  delay  of  a  few  minutes  even 
may  result  in  the  difference  between  salvage  and  partial  or  total  loss. 
And  the  typical  illustration  of  this  rule  would  occur  in  case  of  fire. 
It  is  the  opinion  of  the  court  that  it  did  occur  in  the  case  at  bar. 
While  the  defendant's  agent  did  not  refuse  to  deliver  the  goods,  nor 
claim  title  in  them,  nevertheless,  under  the  circumstances,  he  exercised 
a  dominion  over  them,  in  refusing  the  key,  more  disastrous  to  the  plain- 
tiff' than  an  ordinary  delay  for  a  month  to  allow  him  to  enter  the 
storehouse.  Upon  the  plaintiff's  demand,  emphasized  by  the  immediate 
presence  of  dangerous  conditions,  it  would  seem  that  almost  any  hes- 
itancy or  delay  to  give  him  the  quickest  possible  possession  of  his 
goods  was  wrongful.  And,  as  we  understand  the  law,  a  wrongful 
detention  upon  proper  demand  will  support  an  action  of  trover.  In 
Fifield  V.  Me.  Central  R.  R.  Co.,  62  Me.  77,  it  is  said:  "To  constitute 
it,  there  must  have  been  either  a  wrongful  taking,  or  wrongful  de- 
tainer, or  an  illegal  using  or  a  misusing,  or  an  illegal  assumption  of 
ownership."  In  Fernald  v.  Chase,  Z7  Me.  289,  it  is  said :  "To  make 
out  a  conversion,  there  must  be  proof  of  a  wrongful  possession,  or 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  511 

of  the  exercise  of  a  dominion  over  it,  in  exclusion  or  defiance  of  the 
owner's  rights,  or  of  an  unauthorized  and  injurious  use,  or  of  a 
wrongful  detention  after  demand."  To  the  same  effect  is  Fuller  v. 
Tabor,  39  Me.  519.  Cooley  on  Torts,  524,  says:  "Any  distinct  act  of 
dominion,  wrongfully  exerted  over  one's  property,  in  defiance  of  his 
right  or  inconsistent  with  it,  is  a  conversion.  *  *  *  It  is  not  nec- 
essary that  it  should  be  shown  that  he  has  applied  it  to  his  own  use. 
Does  he  exercise  a  dominion  over  it  in  exclusion  or  in  defiance  of  the 
plaintiff's  right?  If  he  does,  that  is  in  law  a  conversion,  be  it  either  his 
own  or  another  person's  use."  We  think  the  rule  is  too  well  estab- 
lished to  require  further  citation  that,  when  one  person  exercises  a  do- 
minion over  personal  property  inconsistent  with  the  possession  of  the 
owner,  in  consequence  of  which  the  property  is  lost  or  destroyed,  the 
exercise  of  such  dominion  constitutes  a  conversion. 

Nor,  in  the  case  at  bar,  can  the  intention  with  which  the  defend- 
ant's agent  withheld  the  key  become  material.  28  Am.  &  Eng.  Enc. 
Law  (2d  Ed.)  681,  and  cases  cited;  38  Cyc.  2029.  See  also  Ingalls 
V.  Bulkley,  15  111.  224. 

In  accordance  with  the  terms  of  the  report  the  entry  must  be : 
Judgment  for  the  plaintiff  for  $2,600  and  interest  from  the  date  of 
the  writ.*^^ 


(c)  The  Dejfense  When  the  Conversion  was  through  a  Destruction 

OR   AN  Asportation 

BIRD  V.  ASTCOCK. 

(Court  of  King's  Bench,  1615.     2  Bulst  280,  80  Reprint,  1122.) 

In  a  special  action  upon  the  case  brought  by  the  plaintiff  against 
the  defendant,  being  a  carryer,  a  boatman,  for  a  trover  and  conver- 
sion of  his  goods  to  him  delivered,  and  they  miscarryed :  two  actions 
by  him  brought,  the  one  a  trespass,  the  other  a  trover  and  conversion : 
upon  a  motion  now  made,  the  rule  of  the  Court  was,  that  he  should 
proceed  in  one  of  the  actions  onely,  in  the  trover  and  conversion. 

Coke.  There  was  a  case  resolved  in  the  C.  B.  when  I  was  there, 
concerning  Gravesend  Barge,  in  which  were  a  great  number  of  pas- 
sengers; one  there  had  a  pack  of  great  value,  and  of  great  weight 
in  the  barge,  there  suddenly  happened  a  very  great  storm,  and  they 
were  all  in  great  danger,  and  were,  for  their  own  safety,  enforced 
to  throw  out  a  great  part  of  the  goods,  for  the  safeguard  of  their 
lives  which  were  then  in  the  barge;  amongst  which  goods,  for  the 
lightning  of  the  barge,  this  pack  of  goods  was  thrown  over:  after- 
wards, he  which  was  the  owner  of  this  pack,  brought  his  action  upon 
the  case  against  the  bargeman,  for  these  his  goods  thus  cast  over ; 
and  we  all  there  did  resolve  it  clearly,  that  this  being  the  act  of  God, 

61  Part  of  the  opinion  is  omitted. 


512  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

this  sudden  storm  which  occasioned  the  throwing  over  of  the  goods, 
and  could  not  be  avoided,  and  for  this  cause  he  recovered  nothing; 
upon  this  reason  is  the  case  in  6  Eliz.  in  Dalison's  Reports,  where  one 
was  bound  to  keep  and  maintain  the  sea  walls  from  overflowing;  if 
this  happen  by  his  negligence,  this  shall  be  wast,  otherwise  if  it  so 
happen  by  the  act  of  God  suddainly,  and  so  unavoidable;  the  whole 
Court  agreed  with  him  herein. 


BUSHEL  v.  MILLER. 

(At  Guildhall,  Coram  Pratt,  C.  J.,  1718.    1  Str.  128,  93  Reprint,  428.) 

Upon  the  Custom-House  quay  there  is  a  hut,  where  particular  por- 
ters put  in  small  parcels  of  goods,  if  the  ship  is  not  ready  to  receive 
them  when  they  are  brought  upon  the  quay.  The  porters,  who  have 
a  right  in  this  hut,  have  each  particular  boxes  or  cupboards,  and  as 
such  the  defendant  had  one.  The  plaintii?  being  one  of  the  porters 
puts  in  goods  belonging  to  A.  and  lays  them  so  that  the  defendant 
could  not  get  to  his  chest  without  removing  them.  He  accordingly 
does  remove  them  about  a  yard  from  the  place  where  they  lay,  to- 
wards the  door,  and  without  returning  them  into  their  place  goes 
away,  and  the  goods  are  lost.  The  plaintiff  satisfies  A.  of  the  value 
of  the  goods,  and  brings  trover  against  the  defendant.  And  upon 
the  trial  two  points  were  ruled  by  the  C.  J. 

L  That  the  plaintiff  having  made  satisfaction  to  A.  for  the  goods, 
had  thereby  acquired  a  sufficient  property  in  them  to  maintain  trover. 

2.  That  there  was  no  conversion  in  the  defendant.  The  plaintiff 
by  laying  his  goods  where  they  obstructed  the  defendant  from  going 
to  his  chest,  was  in  that  respect  a  wrong-doer.  The  defendant  had  a 
right  to  remove  the  goods,  so  that  thus  far  he  was  in  no  fault.  Then 
as  to  the  not  returning  the  goods  to  the  place  where  he  found  them; 
if  this  were  an  action  of  trespass,  perhaps  it  might  be  a  doubt;  but 
he  was  clear  it  could  not  amount  to  a  conversion.*^^ 

c2  Compare  Shea  v.  Milford  (1887)  145  Mass.  525,  14  N.  E.  769:  (P. 
had  a  contract  with  D.  to  build  a  house  on  land  owned  by  D.  Before  the 
house  was  finished  D.  re<iuested  P.  to  remove  certiiin  chattels,  thou  on  the 
laud  and  used  by  P.  In  building  the  house,  to  another  part  of  the  lot.  P. 
neglected  to  do  this,  and  D.  then  removed  them  to  another  part  of  the  lot, 
doing  no  unnecessary  damage.  P.  sued  for  a  conversion  of  these  chattels. 
Said  W.  Allen,  J.:  "The  evidence  negatived  a  conversion  of  the  property 
by  the  defendants,  and  showed  that  they  claimed  no  title  to  it,  assumed 
no  dominion  over  it,  and  did  nothing  in  derogation  of  the  plaintiff's  title 
to  it,  and  that  all  that  was  claimed  by  the  defendants  was  the  right  to  re- 
move the  goods  from  one  place  to  another  on  their  own  land.  All  that  was  done 
was  in  assertion  of  their  right  in  the  land,  and  in  recognition  of  the  plain- 
tiff's right  of  proi>erty  in  the  chattels.  If  the  plaintiff  had  the  light  to 
occupy  the  land  which  he  claimed,  the  act  of  the  defendants  was  wrongful, 
and  they  would  be  liable  to  the  plaintiff  for  damages  for  breach  of  contract, 
or  for  the  trespass,  but  not  for  the  value  of  property  converted  to  their 
own  use.  Fanisworth  v.  Lowery  IISS.*^!  I'M  Mass.  512;  Fouldes  v.  Willoughby 
11841 J  8  M.  &  W.  540;   Heald  v.  Carey  L1852J  11  C.  B.  977.") 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  513 

FORSDICK  V.  COLLINS. 

(King's  Bench  [at  Nisi  Prius]  Hilary  Term,  1816.    1  Starkie,  173,  18  R.  R.  757.) 

Trover  for  the  value  of  a  block  of  Portland  stone.  The  stone  had 
been  placed  by  the  plaintiff  on  the  land  adjoining  some  shells  of 
houses,  which  he  had  purchased  in  Hunter  Street.  The  defendant 
afterwards  coming  into  possession  of  the  land,  refused  to  permit  the 
plaintiff  to  carry  the  stone  away,  and  afterwards  removed  it  himself 
to  Burton  Crescent  Mews. 

Puller,  for  the  defendant,  contended  that  he  had  a  right  to  remove  it 
from  his  own  premises. 

Lord  ElIvEnborough.  But  he  is  not  justified  in  removing  it  to  a 
distance.  In  an  action  of  trespass  at  the  suit  of  the  owner,  he  must 
in  his  justification  have  alleged,  that  he  removed  it  to  some  adjacent 
place  for  the  use  of  the  owner;  he  could  not  have  justified  this  re- 
moval. 

Puller  insisted  that  no  sufficient  demand  had  been  proved. 

Lord  ElIvEnborough.  A  demand  is  unnecessary  where  the  party 
has  been  guilty  of  a  conversion,  and  he  is  guilty  of  a  conversion 
v/here  he  oversteps  the  authority  of  law ;  here  the  defendant  over- 
stepped that  authority  by  removing  the  property  to  a  distance. 

Verdict  for  the  plaintiff. 


WILSON  V.  McLaughlin. 

(Supreme  Judicial  Court  of  Massachusetts,  1871.     107  Mass.  587.) 

Tort  for  conversion  of  a  horse.  At  the  trial,  after  a  general  de- 
nial, the  facts  were  found  as  follows : 

On  October  26,  1867,  a  horse  of  value  of  $250,  belonging  to  the  plaintiff, 
escaped  from  a  pasture  in  Milford,  and  appeared  a  day  or  two  afterwards 
in  a  highway  in  West  Roxbury  near  an  avenue  which  led  from  the  travelled 
road  into  the  messuage  of  Matthew  Bolles.  The  defendant,  who  wasi  in 
the  employment  of  Bolles,  supposing  that  the  horse  belonged  to  a  neighbor, 
one  of  whose  beasts  had  previously  strayed  upon  the  laud  of  Bolles  and  done 
damage  there,  drove  it  from  the  highway  into  an  inclosed  pasture  belonging 
to  Bolles,  for  the  purpose  of  preventing  it  from  straying  on  Bolles's  cultivatetl 
land.  This  was  done  without  the  direction,  knowledge  or  authority  of 
Bolles,  who  was  not  aware  of  what  had  been  done  until  the  horse  had  been 
in  his  pasture  for  two  nights  and  a  day,  when  he  immediately  directed  the 
defendant  to  turn  it  into  the  highway  again,  and  the  defendant  did  so,  and 
the  plaintiff  never  recovered  it.  The  defendant  never  caused  anj'  notice 
of  the  horse  to  be  entered  with  the  town  clerk  and  posted  up,  or  the  horse  to 
be  cried. 

The  judge  ruled  that  these  facts  would  not  sustain  the  action,  and 
ordered  judgment  for  the  defendant.    The  plaintiff  alleged  exceptions. 

Ames,  J.  It  appears  that,  when  the  horse  was  taken  up,  he  was 
going  at  large  in  the  highway,  and  was  supposed  to  be  about  to  en- 
ter upon  the  premises  of  the  defendant's  employer.  Under  such  cir- 
cumstances, the  act  of  turning  him  into  an  inclosed  pasture  was  not 
Hepb.Torts— 33 


514  TORTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

an  interference  with  the  owner's  possession,  or  a  conversion  of  the 
horse  to  the  defendant's  own  use.  Nothing  is  shown  at  all  inconsist- 
ent with  a  purpose  on  the  defendant's  part  to  keep  the  horse  for  the 
owner;  and  it  has  been  decided  that  the  finder  of  an  estray  may  keep 
it  for  the  owner,  and  is  not  liable  in  trover  unless  he  uses  the  estray, 
or  refuses  to  deliver  it  on  demand.  Nelson  v.  Merriam,  4  Pick.  249. 
We  do  not  understand  the  plaintiff  to  complain  of  this  act,  except 
on  the  ground  that  the  defendant  afterwards  violated  his  trust  as 
a  voluntary  bailee  by  turning  the  horse  into  the  highway  again.  But 
this,  it  appears  to  us,  was  the  act  of  his  employer,  and  not  of  himself. 
He  could  not  keep  the  horse  on  another  man's  land,  against  the  will 
of  such  other  man.  The  turning  out  into  the  highway  was  therefore 
an  act  which  he  could  not  prevent,  and  for  which  he  cannot  be  held 
responsible;  and  the  plaintiff  has  no  cause  of  action  under  his  first 
count.     *     *     * 

Exceptions  overruled.®^ 


RYAN  v.  CHOWN. 

(Supreme  Court  of  Michigan,  1910.     160  Mich.  204,  125  N.  W.  46, 

136  Am.  St.  Rep.  4-33.) 

Action  by  Daniel  W.  Ryan  against  Eunice  Chown.  A  justice's  judg- 
ment for  plaintiff  was  reversed  on  appeal  to  the  circuit  court,  and 
plaintiff  brings  error. 

Brooke,  J.  The  plaintiff"  in  July,  1907,  was  the  owner  of  a  hen 
turkey  and  14  young  ones.  Defendant,  who  also  owned  turkeys,  re- 
sided about  a  mile  and  a  half  distant  from  plaintiff's  farm.  One  of 
defendant's  hen  turkeys  had  been  astray  for  some  weeks.  About 
the  middle  of  July,  defendant,  while  driving  along  the  highway,  in 
the  vicinity  of  plaintiff's  farm,  found  a  hen  turkey  and  chicks  in  the 
road.  She  seems  to  have  believed  that  the  mother  bird  was  the  one 
belonging  to  her  own  flock,  which  was  astray.  At  any  rate,  she  caught 
the  mother  and  brood  of  10,  conveyed  them  to  her  home  and  shut  them 
up  that  night.  Upon  the  same  day,  she  was  advised  by  one  Thick, 
a  neighbor  of  both  plaintiff  and  defendant,  who  had  passed  her  while 
she  was  securing  the  brood,  that  he  believed  she  had  made  a  mistake, 
that  he  thought  the  turkey  she  had  taken  belonged  to  plaintiff"  and 
that  her  turkey  was  on  the  corner.  Plaintiff,  missing  his  brood,  and 
being  advised  by  Thick  of  the  fact  that  defendant  had  taken  a  brood, 
which  he  (Thick)  believed  belonged  to  Ryan,  drove  over  to  defendant's 
farm  to  make  inquiries  about  his  property.  There,  defendant  admitted 
possession  of  the  brood,  said  she  did  not  know  whether  it  belonged 
to  Ryan  or  not,  but  that  if  he  said  it  did,  he  might  take  it.  At  that 
time,  the  brood  was  in  a  field  of  standing  oats  and  it  could  not  be  seen 
or  captured.     The  oats  were  cut  the  following  week.     A  few  days 

63  The  statement  is  abridged.  The  argument  for  the  plaintiff  and  the 
opinion  on  a  second  count  are  omitted. 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  515 

later,  and  after  the  oats  were  cut,  a  note  was  written  by  plaintiff, 
demanding  a  return  of  the  property,  and  threatening  suit  if  it  was 
not  returned.  Upon  receipt  of  this  note,  defendant  claims  to  have 
taken  the  turkey  and  her  brood,  one  night  after  dark,  back  to  the 
place  in  the  highway  where  she  had  found  them,  and  there  liberated 
them,  without  notice  to  plaintiff,  and  he  has  never  regained  possession 
of  them.  Plaintiff,  knowing  nothing  of  the  return  (if  such  return 
was  made),  commenced  suit  in  trover  on  August  29th,  which  resulted 
in  a  judgment  in  his  favor  for  S22.  Defendant  appealed  from  said 
judgment  to  the  circuit  court,  where  it  was  reversed.  Plaintiff  has 
removed  the  case  to  this  court  for  review  on  writ  of  error. 
The  trial  court  charged  the  jury  in  part  as  follows: 

"I  charge  you,  further,  that  in  order  for  defendant  to  avoid  the  liability 
in  an  action  for  trover  she  must  have  returned  the  turkeys  to  plaintiff,  before 
suit,  and  the  fac-t  that  the  turkeys  were  in  the  neighborhood  some  time 
after  the  commencement  of  the  suit  would  be  no  defense  to  this  action. 
Now,  counsel  ask  me  to  say  to  you  that  if  she  turned  the  turkeys  loose 
in  the  highway,  that  would  not  be  a  return,  but  I  decline  to  give  it  in 
that  form,  and  leave  it  a  question  for  the  juiy  to  determine,  whether  leading 
the  turkeys  where  they  were  found  in  the  highway  was  a  return  of  the 
turkeys  to  the  plaintiff.  I  say  to  you  that  if  you  find,  considering  the  nature 
of  the  turkeys  in  view  of  all  the  circumstances  of  this  case,  that  that  was 
a  proper,  fair,  and  reasonable  return  of  the  property  to  Mr.  Ryan,  if  they 
were  his  turkeys,  and  she  did  that  before  the  suit,  and  she  is  sure  about  the 
date,  then  she  would  not  be  liable,  but  if  you  find  that  the  leaving  of  them 
that  distance  from  Ms  house,  at  that  time  of  day,  or  evening,  or  night 
\Aithout  giving  him  any  notice  was  not  a  fair  and  reasonable  return  of 
the  propei'ty,  then  there  is  no  question  but  that  she  was  liable,  if  the  turkeys 
were  Mr.  Ryan's." 

We  think  error  is  properly  assigned  upon  this  instruction.  The 
record  shows  that  it  is  the  nature  of  turkeys  to  wander.  The  alleged 
return,  the  fact  of  which,  as  to  time,  is  not  clear  upon  the  record, 
was  not  such  a  return  as  would  relieve  defendant  from  liability,  be- 
cause the  property  was  not  in  fact,  placed  in  plaintift"'s  possession,  nor 
was  he  notified  of  defendant's  act.  Assuming  that  defendant  did  just 
what  she  claims,  her  act  indicated  rather  a  desire  to  avoid  liability 
than  a  purpose  in  good  faith  to  repossess  plaintiff  of  his  property. 

Plaintiff  assigns  error  upon  the  admission  of  an  advertisement,  in- 
serted by  plaintiff,  in  a  local  newspaper,  to  the  effect  that  10  stray 
turkeys  came  to  his  place  about  October  12th.  We  think  the  excep- 
tion well  taken.  Plaintiff  had  recovered  judgment  against  defendant 
for  the  value  of  the  property  on  September  20th.  That  judgment  put 
an  end  to  his  right  to  reclaim  the  property,  even  supposing  the  prop- 
erty advertised  to  have  been  identical  with  that  in  litigation,  which 
is  not  sh.own.  Kenyon  v.  Woodruff,  33  Mich.  310.  But  the  admission 
of  the  advertisement  may  have  led  the  jury  to  infer  that  plaintiff  had 
recovered  his  property,  and  was  therefore  not  entitled  to  re- 
lief.    *     *     * 

The  judgment  is  reversed  and  a  new  trial  granted.*'* 

«*  Part  of  the  opinion  is  omitted. 


516  TORTS  THROUGH  ACTS  OF   ABSOLUTE  LIABILITY  (Part  1 


GURLEY  V.  ARMSTEx\D. 

(Supreme  Judicial  Court  of  Massachusetts,  18S9.    148  Mass.  267,  19  N.  E.  3S9, 
2  L.  R.  A.  SO,  12  Am.  St.  Rep.  555.) 

Tort  for  the  conversion  of  certain  articles  of  personal  property  be- 
longing to  the  plaintiff.  The  case  was  submitted  to  the  superior  court, 
and,  after  judgment  for  the  defendant,  to  this  court,  on  appeal,  on  an 
agreed  statement  of  facts,  which,  so  far  as  material,  appears  in  the 
opinion. 

De;vi;ns,  J.  The  defendant,  who  was  a  job  teamster,  removed  the 
goods  alleged  to  have  been  by  him  converted  from  a  room  in  the 
dwelling-house  of  one  Whittier  to  the  store  of  one  Davis,  and  there 
delivered  them  to  Whittier,  by  whose  direction  he  had  acted.  Al- 
though the  goods  were  in  the  house  of  Whittier,  they  were  in  a  room 
hired  by  the  plaintiff  from  him.  The  contract  between  them  was  one 
for  rent,  and  not  for  storage,  Whittier  reserving  no  control  over  the 
room.  It  was,  however,  neither  locked  nor  fastened,  although  no 
goods  were  in  it  except  those  of  the  plaintiff.  In  all  that  he  did  the 
defendant  acted  in  good  faith,  without  any  intention  of  depriving  the 
rightful  owner  of  her  property,  and  in  ignorance  of  the  fact  that  the 
plaintiff  was  such  owner,  neither  asserting  title  in  himself  nor  denying 
title  to  any  other,  nor  exercising  any  act  of  ownership  except  by  the 
removal  above  stated. 

The  legal  possession  of  the  goods  was,  under  these  circumstances, 
undoubtedly  in  the  plaintiff,  and  as  they  were  in  the  room  hired  by 
her,  the  actual  possession  was  also  hers.  The  apparent  control  of 
them  was,  however,  in  Whittier,  as  they  were  in  his  house,  and  he  had 
further  the  present  capacity  to  take  actual  physical  possession,  as  the 
room  in  which  they  were  was  neither  locked  nor  fastened. 

It  is  conceded  that  whoever  receives  goods  from  one  in  actual,  al- 
though illegal,  possession  thereof,  and  restores  the  goods  to  such  per- 
son, is  not  liable  for  a  conversion  by  reason  of  having  transported 
them.  Strickland  v.  Barrett,  20  Pick.  415;  Leonard  v.  Tidd,  3  Mete. 
6.  And  this  would  be  so  apparently,  even  if  the  goods  thus  received 
were  restored  to  the  wrongful  possessor,  after  notice  of  the  claim  of 
the  true  owner.  Loring  v.  Mulcahy,  3  Allen,  575 ;  Aletcalf  v.  Mc- 
Laughlin, 122  Mass.  84. 

Upon  the  precise  question  raised,  we  have  found  no  direct  authority, 
nor  was  any  cited  in  the  argument ;  but  the  principle  on  which  the  de- 
cisions above  cited  rest  is  not  unreasonably  extended  when  it  is  applied 
to  the  circumstances  of  the  case  at  bar.  The  act  of  removing  goods  by 
direction  of  the  wrongful  possessor  of  them  is  an  act  in  derogation  of 
the  title  of  the  rightful  owner;  but  the  party  doing  this  honestly  is 
protected  because  from  such  actual  possession  he  is  justified  in  believ- 
ing the  possessor  to  be  the  true  owner.     He  does  no  more  than  such 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  517 

possessor  might  himself  have  done  by  virtue  of  his  wrongful  posses- 
sion. 

The  defendant  was  a  job  teamster,  and  thus  in  a  small  way  a  com- 
mon carrier  of  such  wares  and  merchandise  as  could  appropriately  be 
transported  in  his  tearri  or  wagon.  He  exercised  an  employment  of 
such  a  character  that  he  could  not  legally  refuse  to  transport  property 
such  as  he  usually  carried,  which  was  tendered  to  him  at  a  suitable 
time  and  place  with  the  offer  of  a  reasonable  compensation.  If  he 
holds  himself  out  as  a  common  carrier,  he  must  exercise  his  calling 
upon  proper  request  and  under  proper  circumstances.  Buckland  v. 
Adams  Express  Co.,  97  Mass.  124,  93  Am.  Dec.  68 ;  Judson  v.  West- 
ern Railroad,  6  Allen,  486,  83  Am.  Dec.  646.  His  means  of  ascer- 
taining the  true  title  of  the  freight  confided  to  him  are  of  necessity 
limited.  He  must  judge  of  this  as  it  is  fairly  made  to  appear.  If 
Whittier  had  actually  gone  into  the  room,  as  he  might  readily  have 
done,  and  taken  physical  possession  of  the  goods,  the  defendant  upon 
well  established  authority  would  have  been  justified  in  obeying  the 
order,  and  transporting  the  goods  to  Whittier  at  another  place;  and 
he  should  not  be  the  less  justified  where  Whittier,  in  apparent  control 
of  the  goods  in  his  own  house,  and  capable  of  immediately  taking  them 
into  his  actual  custody,  by  entering  the  room  through  the  unlocked 
door,  has  directed  the  removal. 

If  a  person  standing  near  and  in  sight  of  a  bale  of  goods  lying  on 
the  sidewalk  belonging  to  another,  and  thus  in  the  legal  possession  of 
such  other,  is  able  at  once  to  possess  himself  of  it  actually,  although 
illegally,  and  directs  a  carrier  to  remove  it  and  deliver  it  to  him  at 
another  place,  compliance  wnth  this  order  in  good  faith  cannot  be 
treated  as  a  conversion ;  and  apparent  control,  accompanied  with  the 
then  present  capacity  of  investing  himself  with  actual  physical  posses- 
sion, must  be  equivalent  to  illegal  possession  in  protecting  a  carrier 
who  obeys  the  order  of  one  having  such  control.®^ 

Judgment  for  the  defendant. 

65  Accord:  Greenway  v.  Fisber  (1S24)  1  C.  &  P.  190:  (D.,  a  packer,  acting 
under  the  orders  of  S.,  who  had  employed  him,  shipped  the  goods  of  P.,  in  the 
ordinary  course  of  business.  Said  Abbott,  C.  J.:  "While  he  is  a  mere  conduit 
pipe  in  the  ordinary  course  of  trade,  I  think  he  Is  not  liable.")  Nanson  v. 
Jacob  (1887)  93  Mo.  331,  6  S.  W.  246,  3  Am.  St.  Rep.  531;  Leuthold  v. 
Fairchild  (1886)  35  Minn.  99,  27  N.  W.  503.  28  N.  W.  218;  Hodgson  v.  St. 
Paul  Plow  Co.  (1899)  78  Minn.  172,  80  N.  W.  956,  50  L.  R.  A.  644,  and  note 
652;    Walker  v.  First  National  Bank  (1903)  43  Or.   102,   72  Pac.  635. 

Compare  Liefert  v.  Galveston  L.  &  H.  Ry.  Co  (1900,  Tex.  Civ.  App.) 
57  S.  W.  899:  A  railway  company  employed  by  P.  to  transport  his  goods 
to  Galveston  as  their  destination,  by  mistake  there  delivered  tliem  to  U., 
a  steamship  company,  for  transportation  to  New  York.  "In  this  case,"  said 
the  court,  "the  steamship  company  received  tlie  gootls  from  tlie  Laporte 
Company,  who  had  neither  authority  nor  consent  from  the  owner  to  export 
them.  The  rule  seems  to  be  that  there  is  no  lion  in  favor  of  the  carrier 
where  the  goods  have  been  received  from  a  wrongful  holder  or  from  one 
not  authorized  to  ship  them.  5  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  403,  note. 
And  in  such  a  case  the  true  owner  can  maintain  an  action  for  conversion, 
however  innocent  the  defendant  may  be." 


518  TORTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

KNAPP  V.  GUYER. 
(Supreme  Court  of  New  Hampshire,  1909.     75  N.  H.  397.  74  Atl.  873.) 

The  action  was  by  Knapp  for  the  alleged  conversion  of  5,875 
pounds  of  potatoes.  There  was  a  judgment  in  the  superior  court  for 
the  plaintiff,  after  which  the  case  was  transferred  to  the  Supreme 
Court. 

The  plaintiff  was  a  farmer  at  Piermont,  and  the  defendant  was  a 
merchant  at  Hanover.  In  May,  1908,  one  Blood,  an  innkeeper  at 
Hanover,  was  in  financial  difficulties.  He  desired  to  purchase  100 
bushels  of  potatoes,  intending  to  use  most  of  them  himself,  and  to 
sell  the  remainder,  and  arranged  with  the  defendant  for  the  shipment 
of  potatoes  to  Hanover  in  the  latter's  name.  Blood  called  at  the 
plaintiff's  farm,  purchased  100  bushels  of  potatoes,  informed  the 
plaintiff  that  the  purchase  was  for  Guyer,  paid  $10,  and  took  a  receipt 
therefor  in  his  own  name,  and  directed  that  the  potatoes  be  billed  to 
the  defendant.  Shipment  was  made  in  accordance  with  Blood's  in- 
structions. When  the  potatoes  arrived  at  their  destination,  the  station 
agent  notified  the  defendant,  who  replied  that  he  was  not  expecting 
potatoes,  and  did  not  know  about  them.  Shortly  thereafter  Blood 
called  at  the  station  and  inquired  for  the  potatoes,  and  was  informed 
that  they  were  billed  to  the  defendant.  He  thereupon  left  the  station, 
but  soon  returned  with  an  order  written  and  signed  by  the  defendant, 
directing  the  delivery  of  the  potatoes  to  Blood.  The  order  was  com- 
plied with  and  Blood  took  possession  of  the  potatoes,  which  were  im- 
mediately attached  by  his  creditors  and  held  for  his  debts.  Blood  had 
no  authority  from  the  defendant  to  purchase  potatoes  in  his  name,  and 
the  latter  derived  no  benefit  from  the  transaction.  He  merely  acted 
for  the  accommodation  of  Blood,  and  permitted  the  shipment  of  pota- 
toes as  above  stated. 

Bingham,  J.  It  is  clear  from  the  facts  found  that  the  plaintiff  did 
not  sell  the  property  in  question  to  the  defendant,  although  he  billed 
it  to  him  upon  the  representation  of  Blood  that  the  defendant  was  the 
purchaser.  It  is  equally  clear  that  he  did  not  sell  it  to  Blood,  and  that 
in  delivering  it  to  the  railroad  billed  to  the  defendant  he  parted  with 
the  possession,  but  not  with  his  title  and  right  of  possession.  Having 
the  title  and  right  of  possession  at  the  time  that  the  defendant  gave 
the  order  to  the  railroad  to  deliver  the  property  to  Blood,  the  order 
was  an  act  in  itself  implying  an  assertion  of  title  or  right  of  dominion 
over  the  property,  inconsistent  with  the  plaintiff's  title  and  right  of 
possession,  and  was  in  law  a  wrongful  act  and  a  conversion.  Brown  v. 
Ela,  67  N.  H.  110,  111,  30  Atl.  412;  Baker  v.  Beers,  64  N.  H.  102, 
105,  6  Atl.  35 ;   Evans  v.  Mason,  64  N.  H.  98,  99,  5  Atl.  766. 

If  the  defendant  could  be  said  to  have  honestly  mistaken  his  rights, 
that  fact  would  be  of  no  consequence  in  this  case.  "The  defendant's 
act  in  assuming  dominion  over  the  property  was  none  the  less  an  in- 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  519 

vasion  of  the  plaintiff's  right  *  *  *  because  he  did  not  intend  a 
wrong,  or  know  that  he  was  committing  one.  An  encroachment  upon 
a  legal  right  must  constitute  a  legal  wrong;  and  it  is  familiar  law  that 
intention  is  of  no  account  in  a  civil  action  brought  by  one  man  to  re- 
cover damage  for  a  wrongful  interference  with  his  property  by  an- 
other. The  law  gives  the  plaintiff  compensation  for  the  injury  he  has 
sustained,  whether  the  defendant  intended  such  injury  or  not."  Farley 
V.  Lincoln,  51  N.  H.  577,  579,  12  Am.  Rep.  182.  At  any  rate,  the 
purpose  or  intention  of  the  defendant  would  become  material  only 
when  the  act  done  would  not  in  itself  imply  an  assertion  of  title  or 
right  of  dominion.     Evans  v.  ]\Iason,  64  N.  H.  98,  99,  5  Atl.  766. 

The  original  act  of  the  defendant  in  asserting  dominion  over  the 
propert}^  being  wrongful,  a  demand  was  not  necessary.  Porell  v. 
Cavanaugh,  69  N.  H.  364,  366,  41  Atl.  860;  Farlev  v.  Lincoln,  51 
N.  H.  577,  581,  12  Am.  Rep.  182;  Bartlett  v.  Hoyt,  33  N.  H.  151,  169. 

Exception  overruled.    All  concurred. 


(d)  The  Defense  When  the  Conversion  was  thbough  Usee 
DRAKE  V.  SHORTER. 

(At  Nisi  Prius,  1S03.     4   Esp.   165.) 

Trover  for  a  boat.  Plea  of  the  general  issue.  The  case  stated  on 
the  part  of  the  plaintiff  was,  that  the  defendant,  who  was  employed  in 
an  invention  for  making  a  vessel  sail  against  wind  and  tide,  had  em- 
ployed the  plaintiff  to  work  on  her ;  that  while  the  vessel  was  so  work- 
ing on,  she  took  fire ;  that  the  defendant  took  a  boat  belonging  to  the 
plaintiff,  to  endeavour  to  extinguish  it;  but  that  she  sunk,  and  was 
lost. 

Garrow,  for  the  defendant,  states  his  defence  to  be,  that  while  the 
plaintiff'  was  working  on  the  vessel,  it  was  his  duty  to  have  taken  care 
of  her ;  and  that  the  interference,  in  this  case,  was  to  prevent  the  fire 
spreading,  by  means  of  which  the  accident  happened ;  which  he  con- 
tended was  lawful. 

Lord  Ellenbo rough  said,  That  if  the  fact  was  so,  he  thought  it 
amounted  to  a  defence :  that  what  might  be  a  tort  under  one  circum- 
stance, might,  if  done  under  others,  assume  a  different  appearance. 
As  for  example :  If  the  thing  for  which  the  action  was  brought,  and 
which  had  been  lost,  was  taken  to  do  a  work  of  charity,  or  to  do  a 
kindness  to  the  party  who  owned  it,  and  without  any  intention  of 
injury  to  it,  or  of  converting  it  to  his  own  use;  if,  under  any  of 
these  circumstances,  any  misfortune  happened  to  the  thing,  it  could 
not  be  deemed  an  illegal  conversion;  but  as  it  would  be  a  justifica- 
tion in  an  action  of  trespass,  it  would  be  a  good  answer  to  an  action  of 
trover. 


520  TORTS  THROUGH  ACTS   OF   ABSOLUTE  LIABILITY  (Part  1 

The  defendant  failed  in  proving  the  circumstances  as  to  the  ship 
being  in  the  plaintiff's  care ;  so  that  the  accident  of  the  fire  proceeded 
from  the  defendant  himself ;  and  the  plaintiff  had  a  verdict. 


WARING  V.  PENNSYLVANIA  R.  CO.,  for  Use,  etc. 
(Supreme    Court   of   Pennsylvania,    1874.      76    Pa.   491.) 

This  was  an  action  of  trover  against  Waring,  surviving  member  of 
the  firm  of  Waring  &  Lafferty,  oil  refiners.  The  action  was  brought 
for  the  value  of  three  car  loads  of  crude  oil  delivered  by  the  Penn- 
sylvania Railroad  Company  by  mistake  to  Waring  &  Lafferty.  The  oil 
belonged  to  other  persons.  It  was  delivered  by  the  plaintiffs  by  run- 
ning a  train  of  tank  cars  into  the  siding  of  Waring  &  Lafferty  at  the 
refinery,  and  leaving  the  cars  intended  for  them  without  further  no- 
tice. The  cars  were,  as  soon  as  could  be,  unloaded  by  pumping  them 
into  the  refiners'  tanks.  There  were  no  marks  on  the  cars  indicating 
to  whom  the  oil  was  consigned.  The  oil  had  been  received  from  the 
consignors  by  the  Allegheny  Railroad  Company,  the  use-plaintiffs,  and 
they  had  paid  the  owners  of  the  oil  for  it  upon  ascertaining  that  it 
had  not  been  delivered  to  them. 

The  trial  resulted  in  a  verdict  and  judgment  for  the  plaintiffs.  The 
defendant  took  a  writ  of  error.^^ 

Gordon,  J.  Lord  Mansfield  defines  the  action  of  trover  to  be,  "a 
remedy  to  recover  the  value  of  personal  chattels  wrongfully  converted 
by  another  to  his  own  use."  1  Chit.  Plead.  146.  The  taking  may  have 
been  lawful,  hence  the  gist  of  the  action  lies  in  the  wrongful  conver- 
sion. Where  one  has  the  lawful  possession  of  the  goods  of  another, 
and  has  not  converted  them,  this  action  will  not  lie  until  there  has  been 
a  refusal  to  deliver  them  upon  demand  made.  Ordinarily  where  such 
goods  have  been  converted  b)?^  the  bailee,  the  law  presumes  it  to  be 
wrongful,  and  the  action  may  be  brought  without  a  previous  demand ; 
but  such  presumption  may  be  rebutted,  showing  a  permission  from 
the  plaintiff  to  convert  the  property.  So  we  may  suppose  a  case  of 
this  kind :  A.  purchased  a  ton  of  wheat  flour  from  B.,  a  miller,  B. 
delivers  to  A.  a  ton  of  wheat  flour  belonging  to  C,  and  A.  converts  it 
to  his  own  use.  Now  it  cannot  be  that  B.,  as  bailee  of  C,  can  main- 
tain trover  against  A.,  without  first  explaining  to  him  the  mistake,  and 
demanding  of  him  a  return  of  C.'s  flour ;  for  here  the  conversion  is  not 
wrongful,  but  permissive,  there  being  nothing  in  the  transactions  which 
would  lead  A.  to  suppose  that  he  had  gotten  any  but  his  own  property. 

This  example  will  apply  to  the  case  in  hand.  The  defendant  offered 
to  prove  that  he  had  received  from  the  railroad  company  no  more 
car  loads  of  oil  than  he  was  entitled  to.  This,  as  we  understand  the 
offer,  not  by  way  of  recoupment,  which  was  not  permissible,  but  to 

60  A  portion  of  tlie  statement  of  tiie  case  and  the  arguments  are  omitted. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  521 

show  that  he  received  the  oil  in  good  faith,  supposing  it  to  be  his  own. 
By  his  subsequent  offers,  he  proposed  to  prove,  that  if  he  received  the 
oil  in  dispute  at  all,  it  was  by  a  delivery  from  the  plaintiffs'  ag'ents ;  if 
there  was  an  error,  it  was  produced  by  the  plaintiffs,  and  finally  that 
the  defendant  received  the  property  "at  the  instance  and  request  of 
the  plaintiffs." 

The  offers  should  not  have  been  overruled.  Had  the  proof  therein 
proposed  been  produced,  it  is  clear  the  plaintiffs  had  no  case. 

On  such  showing-  the  defendant  did  no  wrong,  there  was  no  wrong- 
ful conversion,  and  the  action  of  trover  would  not  lie.  We  observe  no 
error  in  the  charge,  or  in  the  answer  to  the  points.  Under  the  evi- 
dence, as  admitted,  they  were  correct.  A  wrongful  conversion  of  the 
oil  in  question  by  the  defendant,  would  sustain  the  action,  and  if  he,  or 
the  firm  of  which  he  was  a  member,  knowingly  took  advantage  of  the 
mistake  of  the  plaintiffs'  agents,  and  appropriated  the  property  of  an- 
other to  the  use  of  the  firm,  it  would  be  such  a  conversion.  This  is 
the  substance  of  the  charge,  and  is,  so  far  as  it  goes,  a  sound  exposition 
of  the  law." 

The  judgment  reversed,  and  a  venire  facias  de  novo  awarded. 


HOMER  V.  THWING. 
(Supreme  Judicial  Court  of  Massacliusetts,   1826.     3  Pick.   492.) 

Trover  for  a  horse.  One  of  the  defendants  was  defaulted.  Thwing, 
who  was  an  infant,  defended  by  guardian. 

The  plaintiff  offered  evidence  that  the  horse  was  let  by  him  to  the 
defendants  to  drive  in  a  chaise  to  the  Punch  Bowl  in  Brookline,  and 

6  7  Compare  Tidey  v.  Kent  Circuit  Judge  (1914)  179  Mich.  5S0,  146  N.  W. 
224 :  (A  limited  copartnersliip,  of  Hamilton,  Ontario,  being  indebted  in  the 
sum  of  $425  to  the  "Grand  Rapids  Textile  ]\[achinery  Company,"  then  lo- 
cated in  Grand  Rapids,  Mich.,  sent  their  check  for  said  amount  to  Grand 
Rapids  for  the  purpose  of  paying  this  indebtedness ;  the  check  was  made 
out  and  mailed  to  the  "Grand  Rapids  Machinery  Company,"  the  word  "Tex- 
tile" being  omitted  by  a  clerical  error.  D.  was  doing  business  at  Greenville, 
Mich.,  under  the  name  of  the  "Grand  Rapids  Machinery  Company,"  and  had 
formerly  done  business  in  Grand  Rapids  in  that  name,  selling  secondhand 
machinery,  and  after  he  went  to  Greenville  he  instructed  the  Grand  Rapids 
postmaster  to  forward  his  mail  to  the  latter  place.  D.  had  authorized  his 
wife  to  look  after  his  business  affairs  in  his  absence,  to  open  his  letters, 
read  his  mail,  and  cash  his  checks.  The  letter  containing  the  check  in 
question  was  forwarded  from  Grand  Rapids  to  Greenville,  where  it  was 
received  by  relator's  wife  in  his  absence,  tlie  check  taken  out  and  indorsed 
by  her,  as  relator's  agent,  "Grand  Rapids  Machinery  Company,  A.  L.  Tidey," 
and  cashed  at  the  Greenville  banlc,  the  money  being  received  thereon  and 
delivered  to  D.,  who  spent  it.  "The  fact,"  said  Steere,  J.,  delivering  the 
opinion,  "that  relator  fD.]  acted  under  juistake,  in  ignorance  of  who  was 
the  actual  owner,  or  even  in  tlie  belief  that  the  money  was  his  own  instead  of 
that  of  another,  does  not  constitute  a  defense  in  trover.  38  Cyc.  2011 ; 
Gibbons  v.  Farwell  [1886]  6.3  Mich.  .'549,  29  N.  W.  8.->o,  6  Am.  St.  Rep.  301; 
Kenney  v.  Ranney  [1893J  96  Mich.  617,  55  N.  W.  982.") 


522  TORTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

that  they  went  to  Fresh  Pond  in  Cambridge  without  leave,  and  after- 
wards to  the  Punch  Bowl,  and  that  the  horse  was  returned  much 
injured. 

The  counsel  for  Thwing  contended  that,  as  this  was  a  transaction 
arising  originally  on  contract,  in  which  the  infancy  of  Thwing  would 
have  been  a  good  defence,  the  plaintiff  should  not  recover  upon  the 
same  facts  by  changing  the  form  of  his  action  to  tort. 

But  the  jury  were  instructed,  for  the  purposes  of  this  trial,  that  the 
action  would  lie  against  Thwing,  notwithstanding  his  infancy;  and 
a  verdict  was  found  for  the  plaintiff. 

If  the  Court  should  be  of  opinion,  that  the  instruction  to  the  jury 
was  wrong,  the  plaintiff  was  to  be  nonsuited;  but  otherwise  judgment 
was  to  be  entered  according  to  the  verdict.®^ 

Morton,  J.  The  defence  in  this  case  is  infancy.  It  is  contended, 
that  this  action  is  founded  in  contract,  and  that  the  defendant  can- 
not be  ousted  of  this  defence  by  changing  the  form  of  action  from 
contract  to  tort. 

Infants  are  liable  in  actions  arising  ex  delicto,  but  not  in  those  aris- 
ing ex  contractu.  The  defendant  however  contends,  that  there  is  a 
qualification  of  this  rule,  and  that  infants  are  liable  for  positive 
wrongs  only,  and  not  for  constructive  torts.  But  we  know  of  no  such 
distinction,  and  in  the  case  of  Jennings  v.  Rundall,  8  T.  R.  335,  so 
much  relied  upon  by  the  defendant's  counsel,  it  is  expressly  rejected. 
It  is  true,  that  an  infant  cannot  become  a  trespasser  by  any  prior  or 
subsequent  consent.  But  he  may  be  guilty  of  torts,  as  well  by  omis- 
sions of  duty,  as  by  the  commission  of  positive  wrongs.  1  Chit.  PL 
65  (6th  Amer.  Ed.  87) ;  Co.  Litt.  180b,  Butler's  note  56.  He  is  also 
liable  for  frauds,  as  well  as  for  torts.  And  his  liability  is  to  be  deter- 
mined by  the  real  nature  of  the  transaction,  and  not  by  the  form  of 
the  action.     1  Dane's  Abr.  143;   1  Esp.  Rep.  172. 

Although  an  infant  shall  not  be  charged  in  trover  for  goods  sold 
to  him  with  a  knowledge  of  his  infancy  (Manby  v.  Scott,  1  Sid.  129), 
and  although  an  action  will  not  lie  against  an  infant  for  affirming 
himself  to  be  of  full  age  in  the  execution  of  a  contract  (Johnson  v. 
Pie,  1  Lev.  169,  and  1  Keb.  905),  yet  detinue  will  lie  against  an  in- 
fant for  goods  delivered  upon  a  special  contract  for  a  specific  pur- 
pose, after  the  contract  is  avoided ;  Mills  v.  Graham,  1  New  Rep. 
140;  and  assumpsit  will  lie  against  an  infant  for  money  embezzled; 
for  the  Court  will  look  through  the  form  of  the  action  into  the  tor- 
tious nature  of  the  transaction.     1  Esp.  Rep.  172. 

It  has  been  holden,  that  trover  will  not  lie  against  an  infant  for  im- 
moderately using  a  horse  which  he  had  contracted  to  use  moderately, 
on  the  ground  that  the  action  could  only  be  supj^orted  upon  the  con- 
tract.    Jennings  v.  Rundall,  before  cited.     But  in  the  case  at  bar,  the 

«8  The  statement  of  the  case  is  abridged. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  523 

driving  of  the  horse  beyond  the  place  to  which  the  defendant  had 
permission  to  go,  was  a  conversion,  and  trover  is  the  proper  remedy. 
In  the  case  of  Wheelock  v.  Wheelwright,  5  Mass.  104,  which  in  the 
facts,  as  well  as  the  principles,  is  similar  to  this,  it  was  decided,  not 
only  that  case  for  improperly  using  the  horse  would  not,  but  that 
trover  was  the  only  action  which  would  lie. 

Whenever  trover  is  the  proper  form  of  action,  it  will  lie  against  an 
infant.  The  defence  therefore  is  insufficient,  and  judgment  must  be 
entered  on  the  verdict. 


.  STEPHENS  et  al.  v.  ELWALL. 

(Court  of  King's  Bench,  1815.     4  Maule  &  S.  259,  105  Keprint,  830, 

16  R.  R.  458.) 

Trover  for  goods  by  the  assignee  of  two  bankrupts.  Plea,  not 
guilty.  At  the  trial  before  Le  Blanc,  J.,  at  the  last  Lancaster  assizes 
the  case  was  this : 

The  bankrupts  being  possessed  of  the  goods  in  question  sold  them  after 
their  bankruptcy  to  one  Deane,  to  be  paid  for  by  bills  on  Heathcote,  who  had 
a  house  of  trade  in  Loudon,  and  for  whom  Deane  bought  the  goods.  Heath- 
cote was  in  America,  and  the  defendant  was  his  clerk,  and  conducted  the 
business  of  the  house.  Deane  communicated  to  the  defendant  information 
of  the  purchase  on  the  day  it  was  made,  and  the  goods  were  afterwards 
delivered  to  the  defendant,  and  he  disposed  of  them  by  sending  them  to 
America  to  Heathcote.  No  demand  was  made  upon  the  defendant  until 
nearly  two  years  after  the  purchase. 

The  learned  Judge  inclined  to  think,  and  so  stated  to  the  jury,  that 
if  the  defendant  was  acting  merely  as  the  clerk  of  Heathcote  he  was 
not  liable ;  but  if  he  was  transacting  business  for  himself,  though  in 
the  name  of  another,  then  he  would  be  liable.  The  jury  found  a 
verdict  for  the  defendant.  A  rule  nisi  was  obtained  for  a  new  trial, 
in  order  to  question  the  accuracy  of  the  learned  Judge's  direction  in 
point  of  law.*^^ 

Lord  Ellenborough,  C.  J.  The  only  question  is,  whether  this  is 
a  conversion  in  the  clerk,  which  undoubtedly  was  so  in  the  master. 
The  clerk  acted  under  an  unavoidable  ignorance  and  for  his  master's 
benefit  when  he  sent  the  goods  to  his  master;  but  nevertheless  his 
acts  may  amount  to  a  conversion ;  for  a  person  is  guilty  of  a  conver- 
sion who  intermeddles  with  my  property  and  disposes  of  it,  and  it  is 
no  answer  that  he  acted  under  authority  from  another,  who  had  him- 
self no  authority  to  dispose  of  it.  And  the  Court  is  governed  by  the 
principle  of  law,  and  not  by  hardship  of  any  particular  case.  For 
what  can  be  more  hard  than  the  common  case  in  trespass,  where  a 
servant  has  done  some  act  in  assertion  of  his  master's  right,  that  he 

69  The  argument  is  omitted. 


524  TORTS  THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

shall  be  liable,  not  only  jointly  with  his  master,  but  if  his  master 
cannot  satisfy  it,  for  every  penny  of  the  whole  damage ;  and  his 
person  also  shall  be  liable  for  it;  and  what  is  still  more,  that  he  shall 
not  recover  contribution? 

Le  Blanc,  J.  I  think  the  rule  of  law  is  very  different  from  what  I 
considered  it  at  the  trial.  The  great  struggle  made  at  the  trial  was, 
whether  the  goods  were  for  Heathcote  or  not;  but  that  makes  no 
difference  if  the  defendant  converted  them.  And  here  was  a  conver- 
sion by  him  long  before  the  demand. 

Per  Curiam.    Rule  absolute. 


LOESCHMAN  v.  MACHIN. 
(At  Nisi  Prius,  1818.    2  Starkie,  311,  20  R.  R.  687.) 

This  was  an  action  of  trover,  brought  to  recover  the  value  of  two 
pianofortes. 

The  plaintiff  was  a  maker  of  pianofortes,  and  the  defendant  was 
an  auctioneer.  The  plaintiff  had  lent  one  of  the  pianos,  the  larger,  to 
a  person  of  the  name  of  Brown,  whose  wife  was  a  musical  teacher,  on 
hire,  for  which  Brown  was  to  pay  at  the  rate  of  18s.  per  month,  if 
he  kept  it  for  the  whole  year;  and  if  for  a  less  period,  he  was  to  pay 
a  guinea  per  month.  With  respect  to  the  other  piano,  it  did  not 
appear  very  clearly  on  what  terms  it  had  been  delivered  by  the  plain- 
tiff to  Brown,  whether  upon  hire,  or  that  he  might  dispose  of  it  for 
the  plaintiff.  Brown  had  sent  both  these  pianos  to  the  defendant,  to 
be  sold  by  auction,  and  he,  upon  the  plaintiff's  application  to  deliver 
the  pianos  to  him,  refused  to  deliver  them  unless  the  plaintiff  would 
pay  the  amount  of  certain  expenses  which  had  been  incurred. 

Abbott,  J.,  in  summing  up  to  the  jury  said:  I  wish  you  to  find 
whether  the  smaller  piano  was  let  on  hire,  or  sent  to  be  sold  by  Brown, 
if  an  opportunity  offered;  this  is  a  question  of  fact  for  your  con- 
sideration ;  and  although  I  am  of  opinion  that  it  will  make  no  differ- 
ence as  to  the  verdict,  it  will  give  the  party  an  opportunity  of  making 
the  distinction.  The  general  rule  is,  that  if  a  man  buy  goods,  or  take 
them  on  pledge,  and  they  turn  out  to  be  the  property  of  another,  the 
owner  has  a  right  to  take  them  out  of  the  hands  of  the  purchaser ; 
except,  indeed,  in  the  case  of  a  sale  in  market  overt.  With  that 
exception,  it  is  incumbent  on  the  purchaser  to  see  that  the  vendor 
has  a  good  title.  And  I  am  of  opinion  that  if  goods  be  let  on  hire, 
although  the  person  who  hires  them  has  the  possession  of  them,  for 
the  special  purpose  for  which  they  are  lent,  yet,  if  he  send  them 
to  an  auctioneer  to  be  sold,  he  is  guilty  of  a  conversion  of  the  goods; 
and  that  if  the  auctioneer  afterwards  refuse  to  deliver  them  to  the 
owner,  unless  he  will  pay  a  sum  of  money  which  he  claims,  he  is  also 
guilty  of  a  conversion. 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  525 

The  jury  found  that  the  smaller  piano  had  been  sent  to  Brown  for 
the  purpose  of  a  sale,  and  the  plaintiff  had  a  verdict  for  the  value  of 
both  the  pianos. 

Leave  was  given  to  Marryatt,  for  the  defendant,  to  move  the 
point.'^° 


GENEVA  WAGON  CO.  v.  SMITH. 

(Supreme  Judicial  Court  of  Massachusetts,  1905.    1S8  Mass.  202,  74  N.  B.  299.) 

The  Geneva  Wagon  Company  sued  Ida  Smith  for  conversion  of 
certain  wagons.  The  court  found  for  tlie  plaintiff,  and  the  defend- 
ant excepted. 

Hammond,  J.  The  evidence  warranted  a  finding  that  the  title  to 
the  wagons  was  to  remain  in  the  plaintiff  until  paid  for  in  money,  and 
that  they  never  were  so  paid  for;  and  therefore  that  the  title  never 
passed  to  the  Hendersons.  Upon  the  uncontradicted  evidence,  the 
wagons  Vv^ere  included  in  the  mortgage.  The  language  of  the  mort- 
gage included  them,  and  Henderson,  both  as  mortgagor  and  as  agent 
for  the  defendant,  the  mortgagee,  intended  that  they  should  be  in- 
cluded. After  the  mortgage,  Henderson  had  the  key  to  the  building 
in  which  the  wagons  were  kept,  and  the  court  could  properly  find 
upon  the  evidence  that  he  acted  as  agent  for  the  defendant,  so  far 
as  respected  her  supposed  rights  as  mortgagee,  and  kept  them  for  her 
under  a  claim  of  right  inconsistent  with  the  rights  of  the  plaintiff. 
This  was  a  tortious  act  on  the  part  of  the  defendant,  and  no  demand 
was  necessary  before  bringing  the  suit.  Baker  v.  Lothrop,  155  Mass. 
376,  29  N.  E.  643,  and  cases  cited.  We  see  no  error  in  the  rulings 
given  by  the  court. 

Exceptions  overruled. 

7  0  "In  Loeschman  v.  Machin,  p.  687,  a  sound  and  important  rule  is  laid 
down  perhaps  fur  the  first  time  in  a  civil  action  (it  is  really  identical  with 
the  doctrine  of  'breaking  bulk'  in  the  law  of  larceny,  which  dates  fi'om  the 
fifteenth  century),  but  the  reasons  are  not  given.  These  are  supplied  in  sev- 
eral later  cases,  and  especially  by  the  judgment  of  Parke,  B.,  in  Fenn  v.  Bittles- 
ton  (18.51)  7  Ex.  152,  21  L.  J.  Ex.  41.  The  latest  reported  application  of  the 
principle  appears  to  be  in  Nyberg  v.  Handelaar  (1892)  2  Q.  B.  202,  61  L.  J. 
Q.  B.  709.  Although  the  bailee  has  lawful  possession  and  the  immediate 
right  to  possess,  he  destroys  that  right  by  parting  with  the  possession  in  a 
manner  wholly  unauthorized  by  the  terms  of  the  bailment,  and  at  common 
law,  therefore,  not  only  is  guilty  of  a  conversion,  but  confers  no  right  to 
possession  as  against  the  bailor,  not  even  a  qualified  one,  on  a  person  who 
receives  the  chattel  from  him,  however  innocently."  Per  Sir  Frederick  Pol- 
lock, in  preface  to  Vol.  XX  of  Rev.  Rep.  p.  vi. 


526  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 


DEVEREUX  V.  BARCLAY. 

(Court  of  King's  Bench,  1S19.     2  Bam.  &  Aid.  702,  106  Reprint,  521, 

21  R.  K.  457.) 

Trover  for  oil ;  plea  not  guilty.  At  the  trial,  before  Abbott,  C.  J., 
the  plaintiffs  proved  a  purchase  of  four  tuns  of  sperm  oil,  then  lying 
in  the  defendants'  warehouses,  from  a  person  of  the  name  of  Collin- 
son.  The  following  delivery  order  was  given,  dated  13th  February, 
1818: 

"To  Messrs.  A.  and  "W.  Barclay,  Leicester  Square. 

"Please  to  deliver  to  the  order  of  ^Messrs.  Devereux  and  Lambert,  the  un- 
der-mentioned goods  (enumerating  them).  Charges  from  27th  February,  to 
be  paid  by  Messrs.  Devereux  &  Co.  Edward  Collison." 

Soon  after  this  transaction,  Collinson,  who  had  in  the  meantime 
purchased  from  Mr.  Gamon,  a  broker,  without  the  defendants'  knowl- 
edge, some  dark  sperm  oil  of  inferior  value,  then  also  lying  at  the 
defendants'  warehouse,  sold  this  latter  quantity,  about  three  tuns, 
to  a  third  person,  and  gave  the  following  delivery  order,  dated  3d 
March,  1818: 

"To  Messrs.  A.  and  W.  Barclay. 

"Please  to  deliver  to  Mr.  Dale's  carts  my  dark  sperm  oil." 

The  defendants,  not  being  aware  that  the  two  parcels  of  oil  both 
belonged  to  Collinson,  by  mistake,  delivered  the  first  parcel  of  oil  to 
the  second  delivery  order,  the  first  delivery  order  not  having  been 
at  the  time  presented  to  them  by  the  plaintiffs.  The  plaintiff's,  on  the 
28th  of  Alarch,  presented  their  delivery  order,  and  demanded  the  oil. 
Abbott,  C.  J.,  being  of  opinion  that  this  misdelivery,  by  mistake,  did 
not  amount  to  a  conversion,  so  as  to  entitle  the  plaintiffs  to  maintain 
trover,  directed  a  nonsuit.  A  rule  nisi  for  a  new  trial  having  been 
obtained, 

Scarlett  and  Manning  now  shewed  cause:  The  mistake  which  has 
occurred  is  solely  imputable  to  the  negligence  of  the  plaintiff's,  in 
not  sooner  sending  their  delivery  order  to  the  defendants.  The  con- 
version must  be  an  injurious  act.  A  mere  mis-delivery  by  mistake 
will  not  do.     *     *     * 

Abbott,  C.  J.  What  eff'ect  the  production  of  further  evidence  may 
have,  the  Court  cannot  anticipate  at  present;  it  is  quite  sufficient  to 
say  that  this  cause  having  been  stopped  too  soon,  the  plaintiffs  are  en- 
titled to  a  new  trial.  This  is  not  the  case  of  an  innocent  delivery,  for 
it  is  one  contrary  to  the  knowledge  which,  in  point  of  law,  the  de- 
fendants ought  to  have  had.  There  is  a  great  distinction  between 
an  omission  and  an  act  done.  In  the  case  cited  from  Burrow  [Ross 
v.  Johnson  (1772)  5  Burr.  2825]  no  act  was  done,  and  Lord  ^Mansfield 
expressly  said  that  it  was  a  mere  omission.  But  here  there  is  an 
act  done  by  the  defendants,  which,  in  its  consequences,  is  injurious 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  527 

to  the  plaintiff.  Upon  this  evidence  therefore,  I  am  now  of  opin- 
ion that  trover  may  be  maintained. 

Bayley,  J.  The  case  of  Yoiil  v.  Harbottle  [1791]  1  Peake,  N.  P. 
49,  shews  that  a  carrier  is  Hable  in  trover  for  a  mis-delivery. 

Rule  absolute.^^ 


POGGI  V.  SCOTT. 

(Supreme  Court  of  California,  1914.     167  Cal.  372,  139  Pac.  815, 

51  L.  R.  A.  [N.   S.]  925.) 

Action  by  Poggi  to  recover  $2,000  damages  for  an  alleged  conversion 
by  Scott,  the  sole  defendant,  of  some  210  barrels  of  wine,  stored  in  a 
room  in  the  cellar  of  a  business  building  in  San  Diego.  This  building 
was  rented  to  a  Laundry  Company,  who  sub-rented  the  cellar-room 
to  Poggi  at  $2  a  month.  The  full  barrels  were  in  tiers  along  the  wall. 
Near  the  door  were  empty  barrels.  Poggi,  who  lived  15  miles  from 
San  Diego,  kept  the  door  of  this  room  locked,  but  came  to  San  Diego 
about  twice  a  month,  and  on  each  visit  looked  after  his  wine.  Once  a 
year  he  racked  it  off. 

Before  the  tenancy  of  the  Laundry  Company  had  expired,  the 
owner  of  the  building  sold  it  to  Scott.  In  due  course  the  Laundry 
Company  moved  out,  but  Poggi's  wine  was  left  where  it  was.  Know- 
ing nothing  of  the-  change  of  ownership,  Poggi  supposed  that  he 
should  pay  his  rent  to  the  former  ov.-ner  of  the  building.  In  this  state 
of  things,  two  Italians,  Bernardini  and  Ricci,  called  upon  Scott  and 
told  him  that  there  were  some  empty  barrels  in  the  cellar  of  his  laun- 
dry building  which  they  desired  to  buy.  Scott  replied  that  he  did  not 
know  that  there  were  any  barrels  there,  and  made  an  appointment  with 
them  to  visit  the  place  the  next  day.  He  did  so,  meeting  Bernardini 
alone.  Bernardini  took  him  to  where  the  barrels  were  stored.  There 
was  no  lock  on  the  door,  and  exposed  to  view  were  some  broken  bar- 
rels. Further  back,  as  Scott  subsequently  testified  in  criminal  pro- 
ceedings against  Bernardini  and  Ricci,  there  were  more  barrels,  appar- 
ently whole.  "I  went  back  and  tapped  them,  and  so  far  as  I  could 
discover  they  were  empty."  He  told  Bernardini  that  he  knew  nothing 
of  the  value  of  the  barrels,  and  asked  what  they  were  worth.  Ber- 
nardini said  they  were  worth  $10  or  $15.  Scott  regarded  the  barrels 
as  old  junk,  and  offered  Bernardini  to  sell  them  for  $15,  provided 
Bernardini  would  clean  the  whole  cellar  out.  This  offer  being  ac- 
cepted, Bernardini  and  his  companions  carted  off  the  wine  in  barrels 
and  shipped  it  away.  They  were  subsequently  arrested  and  tried  for 
the  fraud  and  theft. 

71  rart  of  the  argument  of  counsel  is  omitted.  Holroyd  and  Best,  J.T., 
concurred. 


528  TORTS   THROUGH  ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

In  the  light  of  these  facts,  the  trial  court,  in  Poggi's  action  for  con- 
version, granted  a  nonsuit.  From  the  judgment  which  followed,  the 
plaintiff  appealed.''^ 

In  support  of  the  non-suit  the  respondent  argued  that  as  Scott 
thought  that  he  was  disposing  of  so  much  junk  or  rubbish  in  the  form 
of  barrels,  he  could  not  be  held  for  the  conversion  of  full  barrels  of 
wine,  or  for  the  value  of  wine  in  barrels.  It  was  further  argued  that 
the  asportation  of  the  wine  could  not  be  charged  to  any  act  of  Scott. 

Henshaw,  J.  (after  stating  the  facts).  The  foundation  for  the  ac- 
tion of  conversion  rests  neither  in  the  knowledge  nor  the  intent  of  the 
defendant.  It  rests  upon  the  unwarranted  interference  by  defendant 
with  the  dominion  over  the  property  of  the  plaintiff  from  which  in- 
jury to  the  latter  results.  Therefore  neither  good  nor  bad  faith, 
neither  care  nor  negligence,  neither  knowledge  nor  ignorance,  are  of 
the  gist  of  the  action.  "The  plaintiff's  right  of  redress  no  longer  de- 
pends upon  his  showing,  in  any  way,  that  the  defendant  did  the  act  in 
question  from  wrongful  motives,  or,  generally  speaking,  even  inten- 
tionally; and  hence  the  want  of  such  motives,  or  of  intention,  is  no 
defense.  Nor,  indeed,  is  negligence  any  necessary  part  of  the  case. 
Here,  then,  is  a  class  of  cases  in  which  the  tort  consists  in  the  breach 
of  what  may  be  called  an  absolute  duty ;  the  act  itself  (in  some  cases 
it  must  have  caused  damage)  is  unlawful  and  redressable  as  a  tort. 
1  Bigelow  on  Torts,  p.  6.  And  says  Judge  Cooley  (Cubit  v.  O'Dett,  51 
Mich.  347,  16  N.  W.  679):  "Absence  of  bad  faith  can  never /excuse  a 
trespass,  though  the  existence  of  bad  faith  may  sometimes  aggravate 
it.  Every  one  must  be  sure  of  his  legal  right  when  he  invades  the  pos- 
session of  another."  And  without  further  quotation,  reference  may  be 
made  to  1  Street  on  Foundations  of  Legal  Liability,  pp.  231,  et  scq. ; 
38  Cyc.  p.  2015;  Horton  v.  Jack,  4  Cal.  Unrep.  Cas.  758,  Z7  Pac. 
653 ;  's.  c,  126  Cal.  526,  58  Pac.  1051 ;  Budd  v.  Multnomah  Co.,  12  Or. 
271,  7  Pac.  99,  53  Am.  Rep.  355;  Boiling  v.  Kirby,  24  Am.  St.  Rep. 
795,  Prof.  Freeman's  note;  Isle  Royal  Mining  Co.  v.  Hertin,  37  Mich. 
332,  26  Am.  Rep.  520;  Galvin  v.  Bacon,  11  Me.  28,  25  Am.  Dec.  258; 
Donahue  v.  Shippee,  15  R.  I.  453,  8  Atl.  541 ;  Hobart  v.  Hagget,  12 
Me.  67,  28  Am.  Dec.  159;  Davis  v.  Tacoma  Ry.  &  Power  Co.,  35 
Wash.  203,  77  Pac.  209,  66  L.  R.  A.  802 ;  Cook  v.  Monroe,  45  Neb. 
349,  63  N.  W.  800;   Gibbs  v.  Chase,  10  Mass.  128. 

In  consonance  with  the  principles  of  law  thus  declared,  no  question 
can  arise  of  the  defendant's  responsibility  under  the  evidence.  Con- 
ceding all  that  may  be  argued  as  to  the  absence  of  improper  motives 
on  the  part  of  the  defendant,  the  all-important  fact  yet  remains,  under 
his  own  testimony,  that  he  sold  barrels  that  did  not  belong  to  him,  and 
which  did  with  their  contents  belong  to  the  plaintiff.  That  he  did  not 
know  that  the  barrels  contained  wine  did  not  excuse  his  conduct.  He 
had  no  legal  right  to  sell  the  barrels  whether  or  not  they  contained 

T2  The  statement  of  the  case  is  much  abridged. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  529 

wine.  He  was  exercising  an  unjustifiable  and  unwarranted  dominion 
and  control  over  the  property  of  another,  and  from  his  acts  great  loss 
resulted  to  that  other.     *     *     * 

An  appellate  court  is  always  reluctant  to  review  evidence  the  pri- 
mary duty  of  weighing  which  rests  with  a  jury.  It  does  so  only,  as 
here,  under  compulsion.  The  views  which  it  is  forced  to  express  are 
not  to  be  taken  as  conveying  anything  beyond  what  the  necessities  of 
the  consideration  require.  So  here,  those  views  are  to  be  considered 
as  expressing  merely  this  court's  conviction  that  the  evidence  offered 
by  plaintiff  demanded  the  consideration  of  the  case  by  the  jury,  and 
that  the  trial  court  was  therefore  in  error  in  withholding  that  consid- 
eration from  the  jury  and  in  granting  a  nonsuit. 

The  judgment  appealed  from  is  therefore  reversed/* 

We  concur:    ]\Ie;lvin,  J. ;   Lorigan,  J. 


CERNAHAN  v.  CHRISLER. 
(Supreme  Court  of  Wisconsin,  1900.     107  Wis.  645.  83  N.  W.  778.) 

This  action  was  brought  in  justice  court  to  recover  for  the  con- 
version by  defendant  of  a  horse,  buggy,  and  harness.  The  trial  re- 
sulted in  a  judgment  for  plaintiff  for  six  cents  damages  and  costs.  The 
case  was  appealed  to  the  circuit  court,  and  was  tried  and  disposed  of 
upon  the  justice's  return  of  testimony.  The  judgment  of  the  court  be- 
low was  affirmed.  The  defendant  brings  this  appeal.  The  following 
facts  are  shown  by  the  record : 

Plaintiff  purcliased  tlie  property  of  Mrs.  Lowe,  a  widow,  who  at  his 
direction  left  it  at  a  livery  stable  in  the  city  of  Eau  Claire.  Mrs.  Lowe 
eloped,  leaving  several  children.  Williaju  Lowe,  a  brother  of  her  deceased 
husband,  took  charge  of  the  children.  He  came  to  Eau  Claire  to  look  up 
any  property  she  may  have  left,  and  at  his  reciuest  the  defendant,  who  was 
undersheriff,  assisted  liim.  The  defendant  found  the  property  at  the  livery 
stable,  and  directed  the  persons  in  charge  not  to  let  any  one  have  it.  He 
i-eturned  soon  afterwards  with  Mr.  Lowe,  and  directed  the  livery  stable 
keeper  to  deliver  the  property  to  him,  and  it  was  taken  away.  He  acted  on 
the  supposition  that  it  belonged  to  Mrs.  Lowe.  The  following  day  he  was 
infoi-med  by  plaintiff  that  he  owned  the  property.  He  replied  that  he  had 
acted  a  little  too  quick  in  the  matter,  and  that  he  would  have  the  horse 
brought  in  the  next  day.  After  the  suit  had  been  connuenced,  and  before 
trial,  Lowe  brought  the  property  back  to  the  stable,  and  made  claim  for 
keeping  of  the  horse.  Plaintiff  declined  to  pay,  and  took  the  property  and 
sent  it  to  his  farm. 

Bardeen,  J.  Two  questions  are  suggested  by  the  record :  (1)  Does 
the  evidence  show  that  defendant  was  guilty  of  a  conversion  of  the 

7  3  Only  so  much  of  the  opinion  is  given  as  relates  to  the  one  point.  In 
the  testimony  there  were  facts  which  tended  to  show  that  the  defendant  had 
some  knowledge  of  the  plaintiff's  tenancy,  and  a  suspicion  that  the  barrels 
were  not  empty. 

Hepb  .  Torts — 34 


530  TORTS  THROUGH  ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

property  sued  for?     (2)  Was  the  taking  of  the  property  by  plaintiff 
pending  the  suit  a  waiver  of  his  cause  of  action  for  conversion  ? 

1.  We  will  first  inquire  what  acts  of  a  party  constitute  a  conver- 
sion. Perhaps  as  terse  a  definition  as  can  be  found  in  the  books  is 
given  in  Cooley,  Torts  (2d  Ed.)  524.  The  learned  author  says :  "Any 
distinct  act  of  dominion  wrongfully  exercised  over  one's  property  in 
denial  of  his  right,  or  inconsistent  with  it,  is  a  conversion."  It  is  not 
necessary  that  there  should  be  a  manual  taking,  or  that  it  should  be 
shown  that  he  applied  it  to  his  own  use.  The  test  is,  does  he  exercise 
a  dominion  over  it  in  exclusion  or  in  defiance  of  the  plaintiff's  rights? 
If  he  does,  that,  in  law,  is  conversion,  be  it  for  his  own  or  another  per- 
son's use.  Neither  is  it  any  defense  to  say  that  he  acted  as  agent. 
"But  one  who  assists  in  a  wrongful  taking  of  goods  is  liable,  though 
he  acted  as  agent  merely,  for  agency  cannot  be  recognized  as  a  protec- 
tion in  wrongs."  Id.  529.  Neither  is  the  motive  which  controlled  the 
party  available  as  a  defense,  except,  in  cases  where  exemplary  damages 
are  claimed,  it  may  be  shown  in  mitigation.  Railroad  Co.  v.  O'Don- 
nell,  49  Ohio  St.  489,  32  N.  E.  476,  21  L.  R.  A.  117,  34  Am.  St.  Rep. 
579;  Tobin  v.  Deal,  60  Wis.  87,  18  N.  W.  634,  50  Am.  Rep.  345. 
In  view  of  these  rules,  it  seems  entirely  unnecessary  to  discuss  the  evi- 
dence. The  defendant  clearly  exercised  dominion  over  the  plaintiff's 
property  in  defiance  of  his  rights.  It  does  not  serve  to  excuse  him 
that  he  was  ignorant  of  plaintift"'s  title,  or  supposed  title  was  in  Mrs. 
Lowe,  or  that  he  was  acting  in  the  interest  of  Mr.  Lowe.  We  say, 
therefore,  that  there  is  evidence  to  support  the  plaintiff's  cause  of  ac- 
tion. 

2.  After  this  suit  was  commenced  the  plaintiff  took  possession  of  the 
property,  and  it  is  now  claimed  by  defendant  that  he  waived  his  right 
to  furtlier  prosecute  his  action.  We  are  referred  to  Collins  v.  Lowry, 
78  Wis.  329,  47  N.  W.  612,  as  an  authority  sustaining  that  proposition. 
This  was  an  action  for  the  conversion  of  certain  shares  of  stock. 
Pending  the  action  the  defendant  brought  such  shares  into  court  and 
tendered  them  to  plaintiff.  At  the  trial  plaintiff  announced  his  readi- 
ness to  accept  the  stock,  and  thereupon  introduced  the  stock  certificate 
in  evidence.  Pie  claimed  also  the  right  to  recover  damages  for  his 
time,  trouble,  and  expense  in  attempting  to  secure  a  return  of  the 
stock.  The  court  directed  a  verdict  for  nominal  damages.  The  recov- 
ery being  less  than  $50,  judgment  for  costs  was  entered  for  defend- 
ant. In  this  court  the  plaintiff'  insisted  that  he  was  entitled  to  recover 
for  his  expenses,  etc.  In  denying  a  recovery  under  the  circumstances, 
the  following  language  was  used : 

"The  theory  of  the  case  is  that  the  defendant  is  only  answerable  for  the 
value  of  the  proi^erty,  and  that  he  or  his  vendee  or  transferee  is  to  be  re- 
?;arded  as  the  owner.  Such  being  the  nature  of  the  action,  a  verdict  for 
the  value  of  the  jjroperty  converted  necessarily  covers  and  inchuU's  the 
damages  for  such  conversion,  and  the  acceidance  by  the  plaintiff  of  the 
thing  converted  necessarily  covers  and  includes  its  value,  and  hence  such 
acceptance    extinguishes   the   alleged   cause   of   action    for   such    value,     in 


Ch.  2)  ABSOLUTE    TORTS  OTHER  THAN  TRESPASSES  531 

Other  words,  the  plaintiff  pending  such  action,  cannot  waive  the  alleged 
tortious  conversion  by  taking  back  the  property,  and  at  the  same  time 
continue  the  action  and  recover  the  full  or  partial  value  of  the  thing  con- 
\erted,  not  even  to  recover  costs." 

It  will  be  observed  that  no  cases  are  cited  to  sustain  this  proposition. 
It  is  true  that  in  actions  for  conversion  of  property  the  measure  of 
damages  is  generally  the  value  of  the  property  at  the  time  and  place  of 
the  conversion,  with  interest ;  but,  when  the  circumstances  show  special 
damage  over  and  above  the  value  of  the  property,  the  almost  universal 
current  of  authority  is  that  such  damage  may  be  recovered  in  such 
action.  This  rule  was  recognized  in  Churchill  v.  \\'elsh,  47  Wis.  39, 
1  N.  W.  398,  is  incidentally  referred  to  in  Ingram  v.  Rankin,  47  Wis. 
406,  2  N.  W.  755,  32  Am.  Rep.  762,  and  is  expresslv  stated  in  Parro- 
ski  V.  Goldberg,  80  Wis.  339,  50  N.  W.  191.  In  Churchill  v.  Welsh. 
47  Wis.  39,  1  N.  W.  398,  and  again  in  Warder  v.  Baldwin,  51  Wis.  450, 
8  N.  W.  257,  this  court  discussed  the  circumstances  under  which  there 
may  be  a  return  of  the  property  converted,  in  mitigation  of  damages, 
pending  the  suit.  The  conclusion  arrived  at  was  that  in  case  of  such 
return,  and  in  the  absence  of  evidence  showing  special  damage,  the 
recovery  should  be  limited  to  nominal  damages.  In  Farr  v.  Bank,  87 
Wis.  223,  58  N.  W.  Z77 ,  41  Am.  St.  Rep.  40,  the  rule  is  again  re- 
ferred to  and  affirmed.  It  is  there  distinctly  said  that  unless  the  plain- 
tiff has  suffered  special  damages,  apart  from  the  value  of  the  property, 
the  recovery  must  be  limited  to  liominal  damages,  although  in  that 
case  the  return  was  made  before  the  action  was  brought.  It  will  be 
observed  that  the  court  speaks  of  the  return  of  the  property  as  being 
in  mitigation  of  damages,  and  not  in  extinguishment  of  the  cause  of 
action. 

This  seems  to  be  the  rule  everywhere,  as  will  be  seen  by  reference 
to  the  following  authorities :  Coolev,  Torts  (2d  Ed.)  535,  note  1 ;  2 
Add.  Torts,  p.  513,  534;  2  Jag.  Torts,  720;  Walker  v.  Fuller,  29 
Ark.  448  (where  it  is  explicitly  stated  that,  although  the  plaintiff  could 
not  recover  the  full  value  of  the  goods  after  retaking  them,  yet  the 
receipt  back  of  the  goods  alone  would  not  bar  the  action ;  the  fact 
should  have  gone  in  mitigation  of  damages) ;  Bank  v.  Leavitt,  17 
Pick.  1  (where  it  is  said,  "It  is  also  well  settled  that,  if  the  property 
for  which  the  action  is  brought  be  returned  to  and  received  by  the 
plaintiff",  it  shall  go  in  mitigation  of  damages");  s.  c.  28' Am.  Dec. 
268,  and  note.  The  case  of  Bigelow  Co.  v.  Heintze,  53  N.  J.  Law, 
69,  21  Atl.  109,  contains  an  extended  discussion  of  this  question.  The 
court  there  says :  "In  trover  the  cause  of  action  is  complete  upon  proof 
of  the  conversion.  The  return  of  the  property  is  no  bar  to  the  action, 
but  is  admissible  in  mitigation  of  damages."  Many  other  cases  might 
be  cited,  but  to  do  so  would  incumber  the  record.  The  rule  is  uni- 
versal, and  rests  upon  the  ground  that  the  return  of  the  property  does 
not  extinguish  the  cause  of  action,  but  simply  goes  in  mitigation  of 
the  damages. 


532  TORTS  THROUGH  ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

It  being  established  in  this  state  that  special  damages  may  be 
recovered  in  actions  of  this  kind,  the  infirmity  of  the  rule  stated 
in  Collins  v.  Lowry  becomes  apparent.  The  theory  of  the  case 
is  not  that  "the  defendant  is  only  answerable  for  the  value  of  the 
property."  He  is  answerable,  not  only  for  the  value  of  the  prop- 
erty, but  for  any  special  damage  the  plaintiff  has  sustained.  Hence 
a  return  or  retaking  of  the  property  goes  only  to  mitigate  the 
damages,  and  not  in  bar  of  the  action.  In  the  case  at  bar,  how- 
ever, no  special  damages  are  shown.  In  Hiort  v.  Railway  Co.,  4 
Exch.  Div.  188,  195,  Bromwell,  L.  J.,  said :  "A  conversion  cannot 
be  purged,  and  if  a  defendant  is  guilty  of  conversion  he  must  pay 
some  damages.  A  return  of  the  goods  undoubtedly  might  be  shown,  to 
reduce  the  damages,  in  the  case  of  conversion,  not  only  when  the  owner 
voluntarily  received  back  the  goods,  but  v.hen  he  took  them  back 
against  his  will.  In  an  action  of  trover  and  conversion,  the  practice  was 
for  a  defendant  to  apply  to  the  court  for  a  stay  of  proceedings  on  a 
delivery  up  of  the  goods,  and  on  payment  of  nominal  damages  and 
costs;  but  if  the  plaintiff  refused  to  accept  delivery,  and  insisted  on 
proceeding  with  his  action  for  substantial  damages,  he  did  so  at  his 
peril,  and  if  he  failed  to  get  substantial  damages  he  was  made  to  pay 
the  costs  of  the  action.  It  is  clear,  therefore,  that  on  a  return  of  the 
goods  the  plaintiff  would  recover,  not  their  value,  but  the  damages  he 
had  sustained  by  the  wrongful  act,  which  was  called  the  conversion." 

The  rule  above  suggested,  when  a  return  of  the  property  had  been 
had,  of  applying  to  the  court  to  stay  or  dismiss  the  action  upon  tender 
or  payment  of  nominal  damages  and  costs,  was  referred  to  and  ap- 
proved in  Bigelow  Co.  v.  Heintze,  supra,  and  is  one  that  furnishes 
ample  protection  to-  the  defendant.  It  is  certainly  against  the  policy 
of  the  law  to  permit  parties  to  carry  on  litigation  when  only  the  ques- 
tion of  costs  is  involved.  The  case  of  i\Iachine  Co.  v.  Smith,  36  Wis. 
295,  17  Am.  Rep.  494,  however,  does  not  quite  strike  the  situation  here 
presented.  There  the  payment  of  the  note  in  suit  extinguished  the 
entire  cause  of  action,  and  the  court  held  there  could  be  no  judgment 
for  costs  without  a  judgment  for  damages.  Here  the  plaintiff  was  en- 
titled, at  least,  to  a  judgment  for  nominal  damages,  which  was  a  suffi- 
cient foundation  to  carry  costs.  The  defendant  might  easily  have 
protected  himself  by  setting  up  tlie  facts  in  his  answer,  and  tendering 
payment  of  nominal  damages  and  costs,  as  hereinbefore  suggested. 
The  judgment  of  the  circuit  court  is  affirmed. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  533 


IV.  Seduction  and  Loss  of  Service  ''* 

Actions  for  loss  of  service  are  of  great  antiquity  and  had  their  origin 
in  a  state  of  society  when  service  as  a  rule  was  a  matter  not  of  contract 
but  of  status.  At  common  law  if  A.  took  the  servant  of  B.,  he  took 
w^hat  originally  af  any  rate  was  regarded  as  the  chattel  of  B.,  and 
thereby  he  committed  a  trespass.  So  if  a  servant  was  beaten  this  was 
a  trespass  on  the  property  of  the  master.  It  was  early  settled,  how- 
ever, that  such  a  trespass  was  not  actionable  per  se,  but  that  it  was 
necessary  to  allege,  with  a  per  quod,'^  actual  damage  by  reason  of  the 
loss  of  service.  The  action,  therefore,  though  founded  on  a  notion 
of  trespass,  was  in  substance  for  the  consequential  damage,  and  there 
was  considerable  fluctuation  of  opinion  as  to  its  proper  form."^  It 
was,  however,  finally  settled  that  the  plaintiff  might  declare  either  in 
trespass  or  case. 

Clerk  &  Lindsell,  Torts,  220  (1906). 

7  4  The  torts  wliicli  at  the  outset  were  characteristically  of  this  class  have 
developed  under  several  distinctive  heads.  An  important  part  of  the  law 
of  domestic  relations,  including  Master  and  Servant,  Parent  and  Child, 
Husband  and  Wife,  began  in  actions  for  injuries  to'  a  proprietary  interest 
in  the  service  of  another.  These  early  actions  are  also  the  starting  point 
of  the  modern  doctrine  of  tort  liability  for  inducing  a  third  person  to 
break  his  contractual  relation  with  the  plaintiff. 

Cases  on  this  latter  doctrine  will  be  given  in  Part  III  of  this  volume,  un- 
der the  subject  Torts  through  Malice.  The  earlier  aspects  of  torts  through 
loss  of  service  will  be  given  here,  but  briefly,  with  reference  only  to  their 
bearings  on  the  general  doctrine  of  torts. — [Ed. 

7  5  "Per  quod  servitium  amisit."  The  clause  was  characteristic  of  and 
essential  to  the  cause.  Compare  Robert  Mai-js'  Case  (1613)  9  Co.  Rep.  113a : 
"If  my  servant  is  beat,  the  master  shall  not  have  an  action  for  this  battery, 
unless  the  battery  is  so  great  that  by  reason  thereof  he  loses  the  service  of 
his  servant,  but  the  servant  himself  for  every  small  battery  shall  have  an 
action ;  and  the  reason  of  the  difference  is,  that  the  master  has  not  any 
damage  by  the  personal  beating  of  his  servant,  but  by  reason  of  a  'per  quod,' 
viz.  'per  quod  servitium  &c.  amisit;'  so  that  the  original  act  is  not  the 
cause  of  his  action,  but  the  consequent  upon  it,  viz.,  the  loss  of  his  service  is 
the  cause  of  his  action ;  for  be  the  liattery  greater  or  less,  if  the  master 
doth  not  lose  the  .service  of  his  sen'ant,  he  shall  not  have  an  action." 

76  "The  action  was  generally  on  the  case,  but  it  might  be  trespass;  e.  g., 
Tullidge  V.  Wade  (1769)  3  Wils.  18,  an  action  for  seducing  the  plaintiff's 
daughter,  where  the  declaration  was  in  trespass  vi  et  armis.  How  this 
can  be  accounted  for  on  principle  I  know  not,  short  of  regarding  the 
servant  as  a  quasi  chattel.  The  difficulty  was  felt  by  Sir  James  Mansfield, 
Woodward  v.  Walton  (1807)  2  B.  &  P.  N.  R.  476,  482.  For  a  time  it  seemed 
the  better  opinion,  however,  that  trespass  was  the  only  proper  form. 
Ibid.;  Ditcham  v.  Bond  (1814)  2  M.  &  S.  436.  See  14  R.  R.  836,  note.  It 
was  formally  decided  as  late  as  18.39  (without  giWng  any  other  reason  than 
the  constant  practice)  that  trespass  or  case  might  be  used  at  the  pleader's 
option.  Chamberlain  v.  Hazelwood  (1839)  5  M.  &  W.  515,  9  L.  J.  Ex.  87.  The 
only  conclusion  which  can  or  need  at  this  day  be  drav>n  from  such  fluctua- 
tions is  that  the  old  system  of  pleading  did  not  succeed  in  its  professed 
object  of  maintaining  clear  logical  distinctions  between  different  causes  of 
action."     Pollock,  Torts  (7th  Ed.)  225,  note. 


534  TORTS  THROUGH  ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

The  offences  created  by  the  series  of  Labour  statutes  and  ordinances 
which  followed  on  the  occurrence  of  the  Black  Death  and  the  Peas- 
ants' Revolt,  have  left  a  permanent  mark  on  our  law/'^  It  was  part 
of  the  policy  of  that  code  to  compel  all  persons  under  a  certain  rank 
to  serve  any  one  who  was  willing  to  employ  them,  at  the  statutory  rate 
of  wages ;  and  severe  penalties  were  imposed  upon  a  servant  who  re- 
fused to  serve  or  departed  from  his  service.  Naturally,  the  Courts 
regarded  any  attempt  to  seduce  a  servant  from  his  employment  as  vio- 
lating the  spirit  of  the  Acts ;  and,  accordingly,  the  action  of  Case  for 
seduction  or  harbouring  of  a  servant  made  its  way  into  the  books. 
The  form  of  the  writ  is  given  by  Fitzherbert,  who  expressly  bases  it 
on  the  statute  of  1349,  and  says  that  it  lies  against  both  enticer  aiid 
servant.  By  a  well-meaning,  but  rather  clumsy  analogy,  this  action 
was,  later  on,  extended  to  cover  the  case  of  debauching  a  woman ;  but 
the  many  anomalies  of  that  form  of  action  show  how  ill  fitted  is  the 
machinery  to  achieve  its  object. 

Edward  Jenks,  Short   Hist.  Eng.  Law,   147. 


The  much  abused  English  action  for  seduction  is  quite  in  harmony 
with  legal  principles.  The  person  wronged  is  not  the  girl  herself,  who 
ex  hypothesi  has  consented  to  the  act,  but  her  parent,  or  other  person 
entitled  to  her  services,  who  is  damnified  by  its  results.  It  is  true  that 
English  law  has,  on  grounds  of  policy,  allowed  damages  to  be  recov- 
ered in  this  action  far  in  excess  of  the  value  of  the  lost  service. 

Holland,  Elements  of  Jurisprudence  (10th  Ed.)   173. 

7  7  "I  come  then  to  the  Statute  of  Labourers  (23  Edw.  Ill) ;  and  my  ob- 
ject now  is  to  show  that  nothing  in  the  provisions  or  policy  of  that  statute  will 
warrant  the  action  under  the  circumstances  of  this  case;  and  that  the  older 
authorities  are  decidedly  against  it.  As  we  learn  from  the  preamble,  it 
was  enacted  in  consequence  of  the  great  mortality  among  the  lower  classes, 
especially  workmen  and  servants,  in  a  pestilence  which  had  prevailed  in 
1348-49.  This  pestilence  will  be  found  mentioned  in  our  historians.  And  in 
the  preamble  it  is  said:  'Many  seeing  the  necessity  of  masters,  and  great 
scarcity  of  servants,  will  not  serve  unless  they  may  receive  excessive  wages, 
and  some  rather  willing  to  beg  in  idleness,  than  by  labour  to  get  their 
living ;  we  considering  the  grievous  incommodities,  which  of  the  lack  es- 
pecially of  ploughmen  and  such  labourers  may  hereafter  come,  have'  &c. 
'ordained.'  This  preamble  is  followed  by  an  enactment,  that  every  person 
of  whatever  condition,  free  or  bond,  able  in  body,  and  under  the  age 
of  sixty,  not  living  by  mei'chandise  nor  having  any  certain  craft,  nor  having 
of  his  own  wherewith  to  live,  nor  land  of  his  own  on  the  cultivation  ot 
which  he  may  occupy  himself,  and  not  being  in  service,  shall  be  compelled 
to  enter  into  service  when  required  on  customary  wages.  By  the  second 
section  it  is  made  penal  by  imprisonment  for  any  mower,  reaper,  or  other 
labourer  or  servant  of  whatsoever  state  or  condition  he  shall  be,  to  depart 
from  service  before  the  expiration  of  the  term  agreed  on;  and  no  one  is  tio 
receive  or  retain  such  offender  in  his  service  under  like  pain  of  imprison- 
ment. This  ordinance  is  the  foundation  of  the  action  for  the  seduction  of  a 
hired  servant."  Colendge,  J.,  dissenting  in  Lumley  v.  Gye  (1S53)  2  El. 
&  Bl.  216,  261,  95  E.'R.  531. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  535 

This  action  [of  trespass  vi  et  armis,  de  uxore  rapta  et  abducta]  lay 
at  common  law ;  and  thereby  the  husband  shall  recover,  not  the  pos- 
session of  his  wife,  but  damages  for  taking  her  away ;  and  by  statute 
Westm.  I,  3  Edw.  I,  c.  13,  the  offender  shall  also  be  imprisoned  two 
years,  and  be  fined  at  the  pleasure  of  the  king.  Both  the  king  and  the 
husband  may  therefore  have  this  action;  and  the  husband  is  also  en- 
titled to  recover  damages  in  an  action  on  the  case  against  such  as  per- 
suade and  entice  the  wife  to  live  separate  from  him  without  a  sufficient 
cause. 

Blackstone,  3  Com.  139J» 


HART  V.  ALDRIDGE. 
(Court  of  King's  Bench,  1774.     1  Cowp.  54,  98  Reprint,  964.) 

This  came  before  the  Court  on  a  case  reserved  upon  the  following 
question :  Whether  under  the  circumstances  of  this  case  the  plaintiff 
was  entitled  to  recover?  It  was  an  action  of  trespass  on  the  case  for 
enticing  away  several  of  the  plaintiff's  servants  who  used  to  work  for 
him  in  the  capacity  of  journeymen  shoemakers.  The  jury  found  that 
Martin  and  Clayton  were  employed  as  journeymen  shoemakers  by  the 
plaintiff',  but  for  no  determinate  time  but  only  by  the  piece,  and  had 
at  the  time  of  the  trespass  laid  each  of  them  a  pair  of  shoes  unfin- 
ished ;  that  the  defendant  persuaded  them  to  enter  into  his  service  and 
to  leave  these  shoes  unfinished,  which  they  accordingly  did. 

Mr.  Darell,  for  the  plaintiff,  stated  it  to  be  a  question  of  common 
law,  and  that  the  only  point  for  the  opinion  of  the  Court  was,  "whether 
a  journeyman  was  such  a  servant  as  the  law  takes  notice  of?"  In  sup- 
port of  which  proposition  he  insisted  that  a  journeyman  is  as  much  a 
servant  as  any  other  person  who  works  for  hire  or  wages  ;  that  neither 
in  reason  nor  at  common  law  is  there  any  distinction  between  a  serv- 
ant in  one  capacity  or  another,  and  that  the  injury  of  seduction  is  in 
all  cases  the  same,  though  the  recompence  in  damages  may  be  different. 
To  shew  that  an  action  lay  at  common  law  for  taking  a  servant  out  of 
his  master's  service,  he  cited  Brooke,  Abr.  tit.  Action  sur  le  Case,  pi. 
38;  11  Hen.  IV,  23,  pi.  46.  In  Fitzherbert,  168,  D,  it  is  laid  down, 
that  "if  a  man  take  an  infant  or  other  out  of  another's  service,  he  shall 
be  punished,  although  the  infant  or  other  were  not  retained."  In 
Brooke,  tit.  Lab.  p.  21,  a  distinction  is  taken  between  the  taking  a  serv- 
ant out  of  his  master's  service,  and  the  procuring  him  to  depart  or 
retaining  him  after  a  voluntary  departure,  being  apprised  of  his  first 
retainer :    in  the  two  last  of  which  cases,  an  action  on  the  case  is  the 

7  8  See    Winsmore    v.    Greenbanlt    (1745)    Willes,    577,    125    Reprint,    1330. 
Compare  Macfadzen  v.  Olivant  (1S0.5)  6  East,  387,  102  Ropiint,  VMio. 
And  see  21  Cyc.  1G17 ;    16  Halsbury's  Laws  of  England,  318  (1911). 


536  TORTS  THROUGH  ACTS  OF    ABSOLUTE  LIABILITY  (Parti 

proper  remedy;  in  the  former,  trespass,  at  common  law.  But  he  in- 
sisted that  in  no  case  liad  there  ever  been  a  distinction  taken  with  re- 
spect to  the  time  for  which  a  servant  might  be  hired ;  nor  indeed  be- 
fore the  Stat.  5  Ehz.  c.  4,  was  any  precise  time  necessary;  the  object 
of  which  statute  was  very  different  from  the  question  before  the 
Court.  He  pressed  the  argument  ab  inconvenienti,  stating  that  it 
would  be  of  great  detriment  to  the  town,  where  the  whole  trade  was  in 
a  great  measure  carried  on  by  this  sort  of  servant.  That  the  verdict 
had  found  the  defendant  to  be  apprised  of  the  retainer  of  the  serv- 
ants, it  being  in  proof  that  he  had  desired  them  to  leave  their  work 
then  in  hand  unfinished. 

Mr.  Willes,  contra.  The  single  question  is,  whether  the  enticing 
away  a  journeyman  shoemaker,  who  is  hired  to  make  a  single  pair 
of  shoes,  is  such  an  injury  to  his  master  as  that  an  action  will  lie  for 
it?  Now  the  jury  have  found  that  there  was  no  hiring  for  any  deter- 
minate time,  but  only  by  the  piece:  if  so,  they  could  not  be  the  plain- 
tiff's servants;  for  the  term  "journeyman"  does  not  import  that  they 
belong  to  any  particular  master. 

Lord  Mansfield  interrupted  him.  The  question  is,  whether  say- 
ing that  such  a  one  is  a  man's  journeyman,  is  as  much  as  to  say,  that 
he  is  such  a  man's  servant;  that  is,  whether  the  jury  by  finding  him  to 
be  the  plaintiff's  journeyman  do  not  ex  vi  termini  find  him  to  be  his 
servant?  A  journeyman  is  a  servant  by  the  day;  and  it  makes  no 
difference  whether  the  work  is  done  by  the  day  or  by  the  piece.  He 
was  certainly  retained  to  finish  the  work  he  had  undertaken,  and  the 
defendant  knowingly  enticed  him  tO'  leave  it  unfinished. 

What  is  the  gist  of  the  action?  That  the  defendant  has  enticed  a 
man  away  who  stood  in  the  relation  of  servant  to  the  plaintiff,  and  by 
whom  he  was  to  be  benefited.  I  think  the  point  turns  upon  the  jury 
finding  that  the  persons  enticed  away  were  employed  by  the  plaintiff 
as  his  journeymen.  It  might  perhaps  have  been  different  if  the  men 
had  taken  work  for  everybody,  and  after  the  plaintiff  had  employed 
them  the  defendant  had  applied  to  them,  and  they  had  given  the  pref- 
erence to  him  in  point  of  time.  For  if  a  man  lived  in  his  own  house 
and  took  in  work  for  different  people,  it  would  be  a  strong  ground  to 
say  that  he  was  not  the  journeyman  of  any  particular  master:  but  the 
gist  of  the  present  action  is,  that  they  were  attached  to  this  particular 
master. 

Aston,  Justice.  It  is  clear  tliat  a  master  may  maintain  an  action 
against  any  one  for  taking  and  enticing  away  his  servant  upon  the 
ground  of  the  interest  which  he  has  in  his  service  and  labour.  And 
even  supposing,  as  my  Lord  has  stated,  that  the  servant  did  live  in  his 
own  house,  if  he  were  employed  to  finish  a  certain  number  of  shoes 
for  a  particular  person  by  a  fixed  time,  and  a  third  person  enticed  him 
away,  I  think  an  action  would  lie.  If  not,  it  might  be  a  very  bad  con- 
sequence in  trade.    He  is  a  servant  quoad  hoc,  and  though  the  seducer 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  537 

and  enticer  is  much  the  worse,  yet  the  law  inflicts  a  penalty  upon 
workmen  leaving  their  work  undone. 

Mr.  Justice  WillES  and  Mr.  Justice  Ashhurst  concurred. 

Per  Cur.    Let  the  postea  be  delivered  to  the  plaintiff.''* 


BLAKE  V.  LANYON. 

(Court  of  King's  Bench,  1795.    6  Term  R.  221,  101  Reprint,  521,  3  R.  R.  162.) 

The  first  count  in  the  declaration  stated  that  the  plaintiff,  who  was 
a  currier,  had  hired  and  retained  W.  Hobbs  to  be  his  servant  and  jour- 
neyman, &c.  and  that  the  defendant  persuaded  and  enticed  Hobbs  to 
leave  his  service,  &c.  In  the  second  count  it  was  alleged  that  Hobbs, 
while  he  was  so  hired  and  employed  by  the  plaintiff  in  his  trade  as 
such  servant,  &c.  wilfully  and  without  the  leave  or  license  and  against 
the  will  of  the  plaintiff  departed  and  absented  himself  from  and  left 
the  service  of  the  plaintiff,  &c.  and  then  and  there  went  to  the  defend- 
ant; yet  the  defendant  well  knowing  Hobbs  to  be  the  servant  of  the 
plaintiff,  and  to  have  been  and  to  be  so  retained,  hired,  and  employed 
by  the  plaintiff,  &c.  but  contriving,  &c.  did  then  and  there  receive 
and  harbour  the  said  W.  Hobbs,  and  did  then  and  there  retain,  keep, 
and  employ  the  said  Hobbs  in  his  (defendant's)  said  service,  and 
wholly  refused  to  deliver  him  to  the  plaintiff  his  master,  although  re- 
quested, &c.  and  unlawfully  detained,  entertained,  and  kept  the  said 

79  Accord:  Hartley  v.  Cummings  (1847)  5  C.  B.  247,  136  Reprint,  871, 
75  R.  R.  722:  (Action  "upon  tlie  case  against  tlie  defendant  for  seducing 
workmen  from  tlie  service  of  the  plaintiff,  a  glass  and  alkali  manufacturer." 
It  appeared  that  "the  defendant  had  seduced  from  the  plaintiff's  seiTice 
several  workmen,  who  were  in  his  service  under  agreements  as  follows." 
These  agreements,  one  of  which  is  set  forth  in  full  in  the  report,  were  to  this 
effect :  "A.  contracted  to  serve  B.  and  his  partner  or  partners  for  the 
time  being,  for  seven  years,  in  his  business  of  a  glass  and  alkali  manufacturer, 
and  at  all  times  during  the  term  to  do  his  best  endeavours,  and  use  his 
utmost  care  and  diligence  in  the  works;  and,  further,  that  he  would  not, 
at  any  time  during  the  term,  neglect  or  absent  himself  from  the  said  service, 
without  the  consent  in  writing  of  B.  or  his  partner  or  partners  for  the 
time  being,  or  either  or  such  of  them  as  should  carry  on  the  business ; 
nor  would  work;  for  or  serve  any  other  person  or  persons,  without  such 
consent :  in  consideration  of  which  service,  B.  agreed  to  pay  A.  24s.  per 
week  for  a  certain  amount  of  work,  and  to  find  him  some  other  description 
of  work,  provided  he  should  not  re(iuire  that  quantity  of  the  specified  work, 
so  that  A.'s  wages  should  not  be  less  than  24s.  per  week,  except  when  a 
furnace  should  be  out,  when  A.  agreed  to  work  for  21s.  per  week :  and  it  was 
agreed,  that,  if  A.  should  be  sick  or  otherwise  incapacitated  from  performing 
the  sen'ice,  or  in  case  of  misconduct,  or  if  B.,  or  his  partner  or  partners 
for  the  time  being,  or  either  or  such  of  them  as  should  carry  on  the  trade, 
should  discontinue  the  trade  during  the  tenu,  in  either  of  such  cases,  B. 
or  his  partners  should  be  at  liberty  to  retain  or  employ  any  other  person 
in  the  room  or  stead  of  A.,  without  being  obliged  to  pay  him  any  wages  or 
satisfaction." 


538  TORTS  THROUGH   ACTS  OF   ABSOLUTE  LIABILITY  (Part  1 

Hobbs,  so  then  being  the  servant  and  journeyman  of  the  plaintiff,  in 
his  (the  defendant's)  service,  &c.,  whereby,^"   etc. 

At  the  trial  at  the  last  Launceston  assizes  it  appeared  that  Hobbs, 
who  was  retained  by  the  plaintiff  to  work  by  the  piece,  left  the  plain- 
tiff's service  on  a  dispute  between  them,  the  plaintiff'  having  beaten 
him ;  that  at  the  time  of  his  departure  he  had  some  work  in  hand  ; 
that  he  then  applied  for  work  to  the  defendant,  who  was  also  a  cur- 
rier, and  who  employed  him,  not  knowing  of  his  engagement  with  the 
plaintiff";  but  that  in  the  course  of  a  few  days  afterwards  the  defend- 
ant, having  been  apprised  by  the  plaintiff  that  Hobbs  was  his  servant, 
and  had  left  his  work  unfinished,  and  being  threatened  with  an  action 
in  case  he  continued  to  employ  Hobbs,  requested  the  servant  to  return 
to  his  former  master  and  finish  his  work:  this  Hobbs  refused,  and 
the  defendant  continued  him  in  his  service.  No  evidence  being  given 
in  support  of  the  first  count;  it  was  objected  on  behalf  of  the  defendant 
that  the  action  could  not  be  supported  on  the  second  count,  because  it 
either  imported  that  the  defendant  had  retained  Hobbs  in  his  service, 
knowing  him  to  be  the  servant  of  the  plaintiff",  which  was  not  estab- 
lished in  proof,  or  that  he  merely  continued  Hobbs  in  his  service  after 
he  had  notice  of  Hobb's  engagement  with  the  plaintiff,  for  which  no 
action  could  be  maintained,  it  appearing  that  the  defendant  did  not 
know  that  Hobbs  was  the  plaintift"s  servant,  at  the  time  he  first  em- 
ployed him.  But  Mr.  J.  Lawrence,  before  whom  the  case  was  tried, 
over-ruled  the  objection,  saying  that  the  plaintiff"  might  recover  upon 
the  second  count,  if  the  jury  were  of  opinion  that  the  defendant  con- 
tinued to  employ  Hobbs  after  he  knew  that  Hobbs  was  the  plaintiff's 
servant.     The  jury  having  given  a  verdict  for  the  plaintiff": 

Gibbs  now  renewed  his  objection,  and  moved  either  to  enter  a  non- 
suit, or  to  arrest  the  judgment;  stating  that  great  inconveniences 
would  result  from  a  determination  against  the  defendant,  for  that  in 
such  a  case  a  person  engaged  in  a  great  manufacture  might  be  de- 
prived of  the  benefit  of  the  service  of  a  journeyman  whom  he  had  re- 
tained to  do  a  particular  piece  of  work,  not  knowing  at  the  time  of 

so  "The  old  forms  of  pleading  in  actions  for  enticing:  away  or  liarliouring 
servants,  besides  alleging  Isnowledge  of  the  service,  always  alleged  that  the 
defendant  did  the  act  complained  of,  'contriAing  and  intending  to  injure 
the  plaintiff.'  Whether  the  latter  averment  was  regarded  as  material  and 
traversable  was  not  very  clear.  No  doubt  in  the  majority  of  cases  the 
fact  of  knowledge  is  practically  conclusive  of  malice.  But  there  may  be 
cases  in  which  the  defendant  bona  fide,  in  the  servant's  own  interest,  advises 
him  to  break  his  contract.  It  was  at  one  time  thought  that  in  such  cases 
action  would  not  lie,  but  in  view  of  the  decision  of  the  House  of  Lords 
in  the  case  of  the  South  AVales  Miners'  Federation  v.  Glamorgan  Coal  Co., 
[1905]  A.  C.  239,  this  presumption  is  no  longer  tenable.  Nor  is  it  in  all 
c.ises  essential  that  the  defendant  should  have  been  actuated  by  a  desire 
either  to  injure  the  plaintiff  or  to  benefit  himself  at  tlie  plaintiff's  expense. 
The  old  theory  that  tlie  whole  gist  of  tlie  right  of  action  lies  in  the  ma- 
licious intent,  and  that  only  where  this  is  made  out  to  the  satisfaction  of 
the  Court  is  the  aggi-ieved  party  entitled  to  damages  against  the  defendant, 
in  the  light  of  recent  decisions,  being  no  longer  a  coiTcct  exposition  of  tlie 
law."     Clerk   &   Lindsell,   Torts,    222    (190G). 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  539 

hiring  that  the  journeyman  was  under  any  engagement  with  any  other 
master,  before  the  servant  had  finished  his  work,  and  at  a  moment 
when  the  materials  then  in  work  might  be  totally  spoiled  if  left  in  an 
unfinished  state.  And  he  cited  Adams  v.  Bafeald,  1  Leon.  240,  where 
it  was  held  by  Tansfield,  J.,  and  Fenner,  J.,  against  the  opinion  of 
Gawdy,  ].,  that  an  action  does  not  lie  for  retaining  the  servant  of  an- 
other, unless  he  procure  the  servant  to  leave  his  first  master. 

Sed  PER  Curiam.  An  action  will  lie  for  receiving  or  continuing  to 
employ  the  servant  of  another  after  notice,  without  enticing  him  away. 
Here  no  fault  could  be  imputed  to  the  defendant,  for  taking  Hobbs 
into  his  service  in  the  first  instance,  because  then  he  had  no  notice  of 
Hobb's  prior  engagement  with  the  plaintiff:  but  as  soon  as  he  had 
notice  of  that  fact,  he  ought  to  have  discharged  him.  A  person  who 
contracts  with  another  to  do  certain  work  for  him  is  the  servant  of 
that  other  till  the  work  is  finished,  and  no  other  person  can  employ 
such  servant  to  the  prejudice  of  the  first  master;  the  very  act  of  giv- 
ing him  employment  is  affording  him  the  means  of  keeping  out  of  his 
former  service. ^^ 

Rule  refused. 


BUTTERFIELD  v.  ASHLEY. 
(Supreme   Judicial  Court  of  Massachusetts,   1850.     6  Cush.  249.) 

This  was  an  action  of  trespass  on  the  case,  for  enticing  away  the 
plaintiff's  son  and  servant  from  his  employment.  The  action  was  tried 
in  the  court  of  common  pleas,  before  Perkins,  J.,  and  came  into  this 
court  upon  exceptions  to  the  judge's  instructions  to  the  jury. 

Metcalf,  J.  The  question  now  to  be  decided  is,  whether  the  in- 
structions given  to  the  jury,  upon  the  evidence  introduced  at  the 
trial,  were  warranted  by  the  law  of  the  case. 

The  declaration  contains  a  single  count,  in  which  it  is  alleged  that 
the  defendants,  knowing  that  the  plaintiff's  son  was  in  his  employ- 
ment and  service,  enticed  him  into  their  employment,  put  him  on 
board  a  vessel,  and  sent  him  to  sea  on  a  whaling  voyage.  The  evi- 
dence was,  that  the  son  left  his  father's  house  in  New  Hampshire, 
without  his  father's  consent,  and  went  to  New  Bedford ;  that  he  there 
applied  to  the  defendants  to  employ  him  in  a  whaling  vessel;  that 
they,  knowing  him  to  be  a  minor  at  first  refused  to  employ  him; 
but  that,  at  his  urgent  solicitation  and  upon  his  representation  that 
he  had  his  father's  consent  to  go  on  a  voyage,  they  took  him  into 
their  employment  and  sent  him  to  sea.  Upon  this  evidence,  the  jury 
were  instructed  that  the  defendants  were  liable  in  this  action,  if  the 

81  Accord:  Fawcet  v.  Blavres  (1684)  2  Lev.  63,  83  Reprint,  451;  Milburne 
V.  Byrne  (1S05)  1  Cranch,  C.  C.  289,  Fed.  Cas.  No.  9,542,  wliere  the  fact  of 
employment  by  the  defendant,  \Alio  knew  that  the  servant  had  left  his 
ma.ster,  was  held  presumptive  evidence  of  the  enticement. 


540  TORTS  THROUGH  ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

plaintiff  never  assented  to  his  son's  being  employed  by  them,  although 
they  honestly  believed  that  he  had  given  his  full  consent.  And  we 
are  of  opinion  that  these  instructions  were  wrong. 

A  master  may  maintain  an  action  on  the  case  against  one  who, 
knowing  that  another  is  his  servant,  entices  him  away  from  his  serv- 
ice, or  retains  and  employs  him,  after  he  has  wrongfully  left  that 
service  without  being  enticed  away;  and  also  against  one  who  con- 
tinues to  employ  his  servant,  after  notice  that  he  is  such,  though  the 
defendant,  at  the  time  of  retaining  or  employing  him,  did  not  know 
him  to  be  a  servant;  and  a  father  is  the  master  of  his  minor  child, 
within  these  rules  of  law.  The  books  of  entries  contain  forms  of 
declarations  adapted  to  these  three  distinct  causes  of  action.  And 
a  plaintiff  generally  inserts  at  least  two  counts  in  his  declaration; 
one  for  enticing,  and  another  for  employing  or  harboring;  so  that 
he  may  succeed  on  the  latter,  though  he  may  fail  to  support  the  former. 
But  in  either  form  of  declaring,  it  is  a  material  and  necessary  alle- 
gation, that  the  defendant  knew,  at  the  time  of  enticing,  employing, 
or  harboring,  that  the  party  enticed  away,  employed,  or  harbored,  was 
the  servant  of  the  plaintiff",  or  that  he  afterwards  had  notice  there- 
of, and  continued  to  employ  or  harbor  the  servant,  after  such  notice. 
And  such  knowledge  or  notice  must  be  proved,  in  order  to  support 
the  action.  See  Wentw.  PI.  438;  2  Chit.  PI.  (6th  Amer.  Ed.)  645, 
646;  1  Bl.  Com.  429;  3  ib.  142;  Fawcet  v.  Beavres,  2  Lev.  63; 
Blake  v.  Lanyon,  6  T.  R.  221 ;  Reeve's  Dom.  Rel.  291 ;  Sherwood  v. 
Hall,  3  Sumner,  127,  Fed.  Cas.  No.  12,777;  Ferguson  v.  Tucker, 
2  Har.  &  Gill  (Md.)  182 ;  Conant  v.  Raymond,  2  Aik.  243 ;  Fores 
V.  Wilson,  Peake's  Cas.  55. 

The  gist  of  an  action  like  that  now  before  us  is,  says  Lord  Mans- 
field, "that  the  defendant  has  enticed  away  a  man  who  stood  in  the 
relation  of  servant  to  the  plaintiff."  Hart  v.  Aldridge,  Cowp.  54,  56. 
And  the  enticing  must  be  proved.  3  Stark.  Ev.  1310;  Stuart  v. 
Simpson,  1  Wend.  (N.  Y.)  376.  Now  what  is  meant  by  "enticing 
away  from  the  service"  of  another?  So  far  as  we  know,  the  word 
"entice"  has  no  technical  meaning.  But,  in  a  declaration  like  that 
in  this  case,  it  must  mean  something  quite  different  from  a  reluctant 
employment  of  another's  servant,  under  a  belief  that  the  master  has 
consented  to  that  employment.  The  word  is  often  joined,  in  the 
precedents  of  forms,  with  the  words  "solicit,  seduce,  persuade,  and 
procure" ;  and  it  evidently  imports  an  active  and  wrongful  effort  to 
detach  a  servant  from  his  master's  service,  by  offering  inducements 
adapted  to  that  end.  In  Keane  v.  Boycott,  2  H.  Bl.  511,  Eyre,  C. 
J.,  describes  enticement  and  its  effect  as  a  dissolution  of  the  relation 
of  master  and  servant  "officiously."  We  see  no  evidence  of  entice- 
ment, in  the  present  case.  The  son  had  wrongfully  left  his  father's 
service,  before  he  was  employed  by  the  defendants;  so  that  the  plain- 
tiff's declaration  is  not  sustained  by  the  proof.     If  evidence  of  the 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  541 

mere  employment  of  another's  servant,  knowing  him  to  be  such, 
would  support  a  declaration  for  enticing  him  from  his  master,  there 
would  be  no  necessity  for  a  count  which  omits  the  allegation  of  en- 
ticement, and  charges  only  a  retaining,  employing,  or  harboring. 

Besides,  if,  in  the  opinion  of  the  jury,  the  defendants  believed  that 
the  plaintiff  had  fully  consented  to  their  employing  his  son,  then  the 
material  averment  in  the  declaration,  that  they  well  knew  that  he  was 
in  the  plaintiff's  service,  was  not  proved,  but  was  disproved.  For 
it  is  impossible  that  they  should  know  him  to  be  in  the  service  of  one 
whom  they  believed  to  have  dispensed  with  his  service.  New  trial 
ordered. 


NICHOL  et  al.  v.  MARTYN. 
(At  Nisi   Prius,    Sittings   after  Term   at  Guildliall,   1799.     2   Eep.   732.) 

This  was  a  special  action  on  the  case,  against  the  defendant,  for 
seducing  the  plaintiffs'  customers. 

The  plaintiff's  were  wholesale  ironmongers,  who  carried  on  a  very 
extensive  business;  the  defendant  had  been  employed  by  them  as 
their  rider  or  traveller,  to  get  orders  in  the  course  of  their  business ; 
and  the  foundation  of  the  action  was,  that  the  defendant,  who  at  the 
time  of  bringing  the  action  was  in  the  same  line  of  business  with  the 
plaintiffs,  had,  during  the  time  that  he  was  in  their  employment,  en- 
deavoured to  seduce  the  several  country  shopkeepers  who  were  in  the 
habits  of  dealing  with  the  plaintiff's,  to  leave  off  dealing  with  them, 
and  to  transfer  their  business  to  the  defendant. 

To  prove  the  plaintiffs'  case,  they  called  some  of  those  country 
shopkeepers.  Their  evidence  proved  that  the  defendant  on  his  last 
coming  to  their  shops  as  rider  to  the  plaintiffs,  and  on  their  business, 
had  told  them  that  he  was  himself  going  into  the  same  business  with 
the  plaintiffs  after  Christmas,  and  would  then  be  obliged  to  them 
for  an  order  on  his  own  account. 

It  appeared,  however,  on  the  cross-examination  of  those  witnesses, 
that  he  took  the  orders  regularly  for  the  plaintiffs  on  that  journey, 
and  that  they  were  executed  on  the  plaintiffs'  account;  and  that  no 
solicitation  was  used  by  the  defendant  for  any  order  at  that  time, 
which  might  have  been  supplied  by  the  plaintiffs. 

It  was  also  admitted,  that  in  fact,  the  time  of  the  defendant's  en- 
gagement to  serve  the  plaintiffs,  expired  at  the  beginning  of  the  year ; 
so  that,  in  truth,  in  the  month  of  March  he  would  have  been  com- 
pletely his  own  master. 

Lord  Kenyon,  Chief  Justice.  The  conduct  of  the  defendant  in 
this  case,  may  perhaps  be  accounted  not  handsome,  but  I  cannot  say 
that  it  is  contrary  to  law.  The  relation  in  which  he  stood  to  the  plain- 
tiffs, as  their  servant,  imposed  on  him  a  duty  which  is  called  of  imper- 
fect obligation,  but  no  such  as  can  enable  the  plaintiffs  to  maintain 


542  TORTS  THROUGH  ACTS  OF   ABSOLUTE  LIABILITY  (Part  1 

an  action.  A  servant  while  engaged  in  the  service  of  his  master,  has 
no  right  to  do  any  act  which  may  injure  his  trade,  or  undermine  his 
business ;  but  every  one  has  a  right,  if  he  can,  to  better  his  situation 
in  the  world ;  and  if  he  does  it  by  means  not  contrary  to  law,  though 
the  master  may  be  eventually  injured,  it  is  damnum  abs.  injuria. 
There  is  nothing  morally  bad,  or  very  improper  in  a  servant,  who 
has  it  in  contemplation  at  a  future  period  to  set  up  for  himself,  to 
endeavour  to  conciliate  the  regard  of  his  master's  customers,  and  to 
recommend  himself  to  them,  so  as  to  procure  some  business  from 
them  as  well  as  others.  In  the  present  case,  the  defendant  did  not 
solicit  the  present  orders  of  the  customers :  on  the  contrary,  he  took 
for  the  plaintiffs  all  those  he  could  obtain :  his  request  of  business  for 
himself  was  prospective,  and  for  a  time  when  the  relation  of  master 
and  servant  between  him  and  the  plaintiff's  would  be  at  an  end. 

It  was  suggested  in  the  course  of  the  cause,  that  the  defendant 
had  seduced  some  of  the  servants  of  the  plaintiffs  to  quit  their  serv- 
ice and  to  enter  into  his  when  he  went  into  business. 

Upon  that  point  Lord  Kbnyon  said,  that  seducing  a  servant,  and 
enticing  him  to  leave  his  master  while  the  master  by  the  contract  had 
a  right  to  his  services,  was  certainly  actionable;  but  that  to  induce 
a  servant  to  leave  his  master's  service  at  the  expiration  of  the  time 
for  which  the  servant  had  hired  himself,  although  the  servant  had  no 
intention  at  the  time  of  quitting  his  master's  service,  was  not  the 
subject  of  an  action. 

The  plaintiffs  were  nonsuited. 


DEAN  v.  PEEL. 

(Court  of  King's   Bench,  1S04.     5  East,  45,  102  Reprint,  986,  7  R.  R.  653.) 

This  was  an  action  on  the  case  for  debauching  and  getting  with 
child  the  plaintiff's  daughter.  The  declaration  stated  that  the  defend- 
ant, wrongfully  intending  to  injure  the  plaintiff,  debauched  and  car- 
nally knew  E.  D.  then  being  the  daughter  and  servant  of  the  plain- 
tiff, whereby  she  became  pregnant,  &c.  and  diseased,  &c.  by  means 
whereof  the  said  E.  D.  was  rendered  unable  to  perform  the  necessary 
affairs  and  business  of  her  said  father  and  master,  during  all  which 
time  he  was  deprived  of  her  service,  and  was  obliged  to  expend  so 
much  in  nursing  and  taking  care  of  her.  The  cause  was  tried  before 
Chambre,  J.,  at  the  last  assizes  at  Lancaster;  when  the  facts  appeared 
to  be  that  the  daughter,  who  was  19  years  of  age  when  she  was  se- 
duced, was  then  living  in  the  house  of  one  Taylor,  who  had  before 
married  her  sister,  a  few  doors  from  her  father's  house  in  Manchester. 
Taylor  kept  a  public  house;  and  his  wife  having  then  lately  died, 
the  plaintiff's  daughter  acted  as  his  housekeeper,  and  had  the  care 
of  the  bar :    but  no  contract  was  made  with  her  brother-in-law  for 


Ch.  2)        ABSOLrTE  TORTS  OTHER  THAN  TRESPASSES  543 

wages,  either  by  herself  or  the  plaintiff  her  father,  nor  did  she  in 
fact  receive  any :  and  she  might  have  left  him  when  she  pleased : 
but  while  her  sister  lay  dead  in  the  house  Taylor  told  her  that  she 
might  take  what  money  she  wanted.  Finding  herself  with  child  she 
returned  to  her  father's  house  and  afterwards  lay  in  there  at  his 
expense :  and  after  her  removal  thither  she  applied  to  Taylor  for 
wages,  who  refused  to  pay  any.  The  daughter,  by  whom  the  above 
facts  were  proved,  added,  upon  her  examination,  that  if  this  misfor- 
tune had  not  befallen  her  she  had  determined  not  to  return  to  her 
father's  house.  On  this  evidence  the  learned  Judge  nonsuited  the 
plaintiff,  on  the  ground  that  there  was  no  service  proved  to  the  father 
at  the  time  of  the  seduction  and  getting  with  child :  and  that  the 
daughter  being  under  age  at  the  time  (which  was  pressed  upon  him  as 
distinguishing  this  from  former  cases)  made  no  dift'erence,  particu- 
larly as  she  had  no  animus  revertendi  to  her  father's  family. 

Topping  now  moved  to  set  aside  the  nonsuit  and  for  a  new  trial, 
on  the  distinction  before  taken.     *     *     * 

Lord  Ellenborough,  C.  J-  T^n  those  cases  ®^  the  implied  relation- 
ship of  master  and  servant  continued.  But  here  there  was  no  animus 
revertendi :  the  daughter  declared  on  her  examination  that  she  had 
no  intention  of  returning  to  her  father's  house  before  this  misfor- 
tune ;  and  she  was  actually  in  the  service  of  another  person.  I  think 
therefore  that  the  opinion  of  the  learned  Judge  who  tried  the  cause 
was  correct. 

Per  Curiam.    Rule  refused. 


CARR  v.  CLARKE. 
(Court  of  King's  Bench,   1818.     2  Chitty,  260,  23  R.  H.  74S.) 

This  was  an  action  for  debauching  the  plaintiff's  daughter;  and 
at  the  trial  before  Mr.  Baron  Wood,  the  plaintiff  was  nonsuited,  on 
the  ground  that  the  daughter  was  not  proved  to  be  the  plaintiff's  serv- 
ant. It  appeared  that  she  was  sixteen  years  of  age,  and  that  the 
plaintiff  her  father,  on  removing  from  his  residence,  had  left  her 
behind  with  a  relation,  a  Mrs.  Shapert,  in  whose  employment  she  was 
at  the  time  of  the  seduction.  The  father,  however,  received  from  his 
daughter  a  part  of  the  wages.  Scarlett  now  moved  to  set  aside  the 
nonsuit  and  have  a  new  trial.  He  contended  that  there  was  in  this 
case  an  animus  revertendi  on  the  part  of  the  daughter;  and  that  her 
father  receiving  part  of  the  wages  and  she  herself  being  under  age, 

82  The  reference  Is  to  two  cases  referred  to  by  Topping,  in  which  Wilson. 
J.,  at  nisi  prius  had  given  it  as  his  opinion  that  "if  the  daughter  were 
under  age  the  action  was  maintainable  for  her  seduction  tliough  she  was 
not  living  with  her  father  at  the  time.'' 

And  see  Hedges  v.  Tagg  (1872)  L.  R.  7  Ex.  283 ;  Whitbourne  v.  Williams 
[1901]  2  K.  B.  722. 


544  TORTS  THROUGH  ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

there  was  sufficient  evidence  of  service  to  maintain  the  action.  Dean 
V.  Peel,  5  East,  45,  and  other  cases  cited,  were  contended  to  be  dis- 
tinguishable ;  the  daughter,  although  under  age,  being  actually  in 
the  service  of  another  person,  and  having  no  intention  of  returning. 
In  Postlethwaite  v.  Parkes,  3  Burr.  1878,  the  daughter  was  in  another 
service,  and  of  full  age  at  the  time  of  the  seduction.  Bennett  v.  All- 
cott,  2  T.  R.  168.  "The  rule  that  there  must  be  a  contract  for  serv- 
ice, is  too  narrow  for  the  liberal  sentiments  of  the  present  time.  The 
slightest  service  has  been  held  sufficient." 

Abbott,  C.  J.  Even  making  tea  has  been  said  to  be  an  act  of  serv- 
ice. But  here  there  was  in  fact  a  service  with  another  person,  who 
could  undoubtedly  have  brought  the  action;  and  then  there  might  be 
two  actions.  The  declaration  states  that  the  injury  was  committed, 
"the  party  then  being  the  daughter  and  servant  of  the  plaintiff." 

Bayley,  J.,  mentioned  Fores  v.  Wilson,  1  Peake,  77 .  The  cases  go 
upon  the  express  ground,  that  the  relation  of  master  and  servant 
must  exist;  but  the  evidence  may  be  very  slight.  The  parties  must 
stand  in  the  relation  of  master  and  servant,  although  a  temporary  ab- 
sence may  not  be  sufficient  to  destroy  that  relation.  If  it  had  been 
established  that  Mrs.  Shapert  had  paid  the  father  the  wages,  perhaps 
the  plaintiff'  might  have  succeeded. 

Abbott,  C.  J.  This  action  is  founded  on  the  situation  of  master 
and  servant,  not  upon  that  of  parent  and  child.  When  the  father  is 
in  a  condition  to  bring  the  action,  and  the  child  is  his  servant,  that 
circumstance  may  increase  the  damages ;  but  we  can  go  no  farther. 
in  this  case,  the  allegation  that  the  child  is  the  servant  of  the  plain- 
tiff is  not  proved.     She  was  the  servant  of  another  person. 

Bayle;y,  J.,  was  of  the  same  opinion,  and  referred  to  Satterthwaite 
V.  Duerst,  5  East,  47.  The  action  is  supported  by  the  evidence  of 
one  of  the  criminal  parties,  and  therefore  should  be  kept  within  close 
bounds.  The  declaration  must  state  that  the  girl  was  the  servant  of 
the  plaintiff.  Lord  Mansfield,  in  the  case  referred  to,  after  looking 
into  the  cases  said,  that  the  action  would  not  lie,  unless  it  was  laid  per 
quod  servitum  amisit. 

Scarlett  then  observed,  that  Wood,  B.,  was  anxious  that  the  motion 
should  be  brought  before  the  Court.     And, 

Abbott,  C.  J.,  observed,  that  it  was  very  natural  that  any  person 
should  feel  anxious  that  the  law  upon  this  subject  was  rather  differ- 
ent from  what  it  is. 

Rule  refused. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  545 


MANVELL  V.  THO^ISON. 

(At  Nisi  Prius,  Adjourned  Sittings  at  Guildliall,  1826.    2  Car.  &  P.  303, 

31  R.  R.  666.) 

Trespass  for  seducing  the  plaintiff's  niece  and  servant. 

The  plaintiff'  was  a  ticket  porter,  and  his  niece,  the  subject  of 
the  action,  was  a  girl  of  about  sixteen  years  of  age,  whose  parents 
had  been  dead  some  years.  A  sum  of  nearly  £500  apiece  was  left  by 
her  parents  to  herself  and  her  brothers  and  sisters,  which  was  de- 
posited in  the  Bank  till  they  should  come  of  age.  She  was  brought 
up  at  her  uncle's  and  was  for  some  time  out  at  service,  but  returned 
to  her  uncle's  house  previously  to  the  time  when  she  was  debauched 
by  the  defendant.  It  appeared  that  while  she  was  at  her  uncle's,  who 
had  several  children,  she  assisted  them  in  the  domestic  business  of 
the  house,  as  they  kept  no  regular  servant. 

Denman,  for  the  defendant.  The  action  is  not  maintainable ;  the 
evidence  of  service  is  too  slight.  The  presumption  of  her  being  a 
servant  to  her  uncle,  is  rebutted  by  the  fact  of  her  having  so  large  a 
sum  of  money;  and  the  relation  of  uncle  and  niece  is  not  of  itself 
sufficient. 

Abbott,  C.  J.  Certainly  the  relation  of  uncle  and  niece  of  itself 
will  not  do ;  but  I  think  there  is  enough  in  the  evidence  to  constitute 
the  relation  of  master  and  servant.  Suppose  a  son  has  money  enough 
to  find  himself  in  clothes,  the  relation  of  father  and  son  is  not  de- 
stroyed by  that  circumstance.  In  this  case,  the  uncle  is  in  loco  paren- 
tis. The  smallest  degree  of  service  will  do.  It  seems  there  was  no 
servant  kept;  and  it  is  reasonable  to  conclude,  that  all  the  members 
of  the  family  assisted  in  turn  in  the  performance  of  the  household 
work. 

The  cousin  of  the  girl,  and  a  surgeon,  proved,  that  when  she  re- 
turned to  her  uncle's  house,  after  she  had  been  seduced  and  abandon- 
ed by  the  defendant,  she  was  in  a  state  of  very  great  agitation,  and 
continued  so  for  some  time ;  that  she  received  medical  attendance,  and 
was  obliged  to  be  watched,  lest  she  should  do  herself  some  injury. 
This  was  taken  as  evidence  raising  the  presumption  of  loss  of  service 
by  the  tmcle ;  and  he  had  a 

Verdict — damages  i400. 


MURRAY  v.  FITZGERALD. 

(King'.s  Bench  Division  of  the  High  Court  of  Justice  in  Ireland,  Nov.,  1905; 
Court  of  Appeal,  Feb.,  3906.     [19061  2  I.  R.  254.) 

Action  by  Michael  Murray  against  William  FitzGerald  for  dam- 
ages for  seduction  by  the  defendant  of  Bridget  Murray,  the  sister  and 
servant  of  the  plaintiff. 
Hepb. Torts — 35 


546  TORTS   THROUGH   ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

The  following  facts  were  proved :  Bridget  IMurray  lived  with  her 
brothers  Alichael  and  Pat  on  a  farm  at  Clashmore,  in  the  county  of 
\\'aterford.  Their  father  had  owned  the  farm.  He  died  over  twenty- 
eight  years  before  the  action,  leaving  a  widow  and  the  three  children. 
Me  left  a  will,  which  had  not  been  proved.  After  his  death  the  mother 
managed  the  farm  until  her  death  about  twenty  years  ago.  At  the  time 
of  the  mother's  death  Bridget  Murray,  who  was  the  only  one  adult, 
managed  the  farm  and  paid  the  rent,  and  got  the  receipts  in  the  name 
of  the  representatives  of  Murray,  and  also  did  the  work  which  an 
indoor  servant  would  have  done  (no  servant  being  kept)  doing  both 
outside  and  inside  work.  The  money  produced  by  the  farm  went 
to  pay  the  bills  and  the  rent.  The  rate  receipts  were  in  the  name  of 
Michael.  When  Michael  grew  up.  he  took  up  the  housework;  there 
was  no  inside  servant  kept.  During  the  time  that  Bridget  was  ill, 
Michael  paid  for  the  nurse  to  attend  to  her.  It  was  stated  that  there 
was  an  arrangement  that  if  Bridget  married,  she  was  to  have  £100. 

The  jury  found  that  at  the  times  of  the  seduction  and  birth  of  the 
child,  Bridget  Murray  was  the  servant  of  the  plaintifif,  and  they  found 
a  verdict  for  £100. 

The  defendant  moved  to  set  aside  the  verdict  and  judgment  for 
the  plaintiff,  and  that  judgment  should  be  entered  for  the  defendant, 
on  the  ground  that  there  was  no  evidence  to  sustain  the  finding  of 
the  jury  that  the  relation  of  master  and  servant  existed  between  the 
plaintiff  and  Bridget  Murray. 

In  the  King's  Bench  Division  it  was  held  by  Andrews  and  Boyd, 
JJ.,  Gibson,  J.,  dissenting,  that  there  was  evidence  upon  which  the 
verdict  in  favour  of  the  plaintiff  could  be  sustained.  The  defendant 
appealed.^^ 

In  the  Court  of  Appeal. 

FiTzGiBBON,  L.  J.  I  find  it  impossible  to  question  the  verdict  in  this 
case  without  disturbing  the  settled  law  as  to  the  action  for  seduction. 
The  judgments  of  Andrews,  J.,  and  Boyd,  J.,  appear  to  me  to  put  the 
plaintiff's  right  on  its  proper  foundation.  The  judgment  of  Gibson, 
J.,  is  rather  a  doubting  than  a  dissenting  judgment.  He  truly  says  that 
it  is  a  hard  case;  but  I  cannot  agree  with  him  that  "the  action  is  so 
far  founded  on  fiction  that  sometimes  it  is  impossible  to  reconcile  the 
view  of  the  Court  with  common  sense  or  reality." 

I  am  unable  to  disturb  the  verdict,  because  I  cannot  hold  that  a 
reasonable  jviry  could  not  find,  on  the  evidence,  that  the  relation  of 
master  and  servant — as  legally  understood  for  the  purposes  of  such  an 
action — existed  between  the  plaintiff  and  his  sister,  and  that  a  loss 
of  her  service  was  caused  to  the  plaintiff  by  her  seduction. 

88  The  opinions  of  Andrews,  Ro.vd,  and  Gibson,  JJ.,  in  tlie  Kiuc;'.s  Bench 
Division,  the  opinion  of  Walker,  C,  in  the  Court  of  Appeal,  who  conciUTed 
with  FitzUibhon,  L.  J.,  portions  of  the  opinions  by  FitzGil)bou  and  Holmes,  L. 
JJ.,  and  the  argniments  of  counsel  are  omitted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  547 

The  "fiction"'  which  Gibson,  J.,  regarded  as  irreconcilable  with 
common  sense  or  reality,  can  be  defined.  It  is  the  fiction  of  "actual 
service" ;  but  the  word  "service"  is  ambiguous,  and  Sir  Frederick  Pol- 
lock says,  of  "the  relation  of  master  and  servant,"  that  in  modern 
law  it  is  "created  by  contract,  but  for  some  purposes"  (including  that 
of  supporting  the  action  of  seduction)  it  "is  still  regarded  as  belonging 
to  the  permanent  organism  of  the  family,  and  having  the  nature  of 
status."  The  "difficulty  in  fixing  the  boundary  where  the  sphere  of 
domestic  relation  ends  and  that  of  pure  contract  begins,  is  only  a 
difficulty   of    degree." 

We  have  here,  in  my  opinion,  ample  evidence  to  establish  "the  do- 
mestic relation"  of  master  and  servant,  and  that  relation  is  quite 
enough  to  sustain  the  action.  "Service"  is  the  test  word.  In  the  Im- 
perial Dictionary  I  find  the  following  definitions  of  it:  "Labor  per- 
formed in  the  interest  of  others ;"  "any  work  done  for  the  benefit  of 
another ;"  "the  act  of  helping  another  or  of  promoting  his  interests  in 
any  way."  In  these  senses  it  means  little  more  than  assistance.  It  also 
includes  "the  w^ork  of  a  person  in  any  way  held  to  obedience  or  duty," 
and  "the  official  duty  or  work  required  of  one."  The  so-called  fiction 
only  imports  obligation  into  the  relation  which  supports  the  action 
of  seduction,  and  as  to  that  Sir  Frederick  Pollock  says :  "The  test  of 
the  plaintifif's  right  has  come  to  be,  not  whether  he  has  been  in- 
jured as  the  head  of  the  family,  but  whether  he  can  make  out  a  con- 
structive loss  of  service."     [Pollock  on  Torts,  p.  223.] 

It  is  clearly  settled  that  seduction  can  be  maintained  w^here  there  is 
no  servitude — no  actual  obligation  to  serve.  The  domestic  relation- 
ship does  not  necessarily  depend  on  blood  relationship — it  is  not  con- 
fined to  parent  and  child.  A  lady  has  maintained  the  action  for  the 
seduction  of  even  an  unpaid  companion.  It  is  sufficient  if  help  of 
appreciable  value  is  rendered  by  one  member  of  a  household  to  another 
member  of  the  same  household,  who  is  "head  of  the  house."  The 
defendant's  counsel  asked  Bridget  Murray,  "Weren't  you  the  head  of 
the  house?"  and  she  answered,  "Yes."  But  Johnson,  J.,  asked  her, 
"Who  is  the  man  of  the  house  at  the  farm?"  and  she  answered,  "Aly 
brother  Michael  is."  I  think  the  fair  meaning  of  these  answers  is,  that 
she  was  the  housekeeper,  and  he  was  the  head  of  the  family.  If 
reasonable  men  could  accept  that  evidence,  we  cannot  disturb  the  ver- 
dict. 

What  are  the  facts?  We  have  to  deal  with  the  family  of  a  farmer, 
who  at  his  death  left  a  widow  and  daughter  and  two  sons  surviving 
him.  The  widow  afterwards  died.  There  is  some  confusion  as  to  the 
ages  of  the  children  at  the  dates  of  the  deaths  of  the  father  and  moth- 
er; but  we  cannot  set  aside  a  verdict  because  the  dates  are  vague. 
When  the  father  died,  the  youngest  son  must  have  been  very  young. 
The  daughter  was  the  eldest  of  the  three.  The  mother  survived  the  fa- 
ther for  some  time,  and  she  died  about  20  years  ago.    At  that  time  the 


548  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

daughter  only  was  adult.  While  the  widow  lived,  she  certainly  was 
the  head  of  the  house.  The  widow  managed  the  fami  and  household 
until  her  death.  She  certainly  could  have  maintained  the  action  if  her 
daughter  had  been  seduced  during  her  life.  While  she  managed  the 
place,  her  position  in  respect  of  ownership,  as  the  widow  of  the  de- 
ceased tenant,  seems  to  me  to  have  been  exactly  the  same,  both  in  law 
and  in  fact,  towards  her  daughter,  as  that  which  was  taken  up  by 
the  elder  son,  as  soon  as  he  became  old  enough  to  undertake  the  man- 
agement. Until  then  the  rent  was  paid  by  the  daughter,  but  in  the 
name  of  her  father's  representatives;  but  from  the  time  when  the 
plaintiff  took  up  the  management,  he  paid  the  rates,  he  employed  all 
the  farm  servants,  and  the  rent  was  paid  out  of  the  produce  of  the 
farm,  still  in  the  name  of  the  father's  representatives.  The  ordinary 
house-work  of  the  family — all  the  work  of  a  female  domestic  servant 
— was  done  by  the  sister.  The  younger  brother  may  be  left  out  of 
consideration,  for  he  was  not  old  enough  to  take  any  part  in  the  man- 
agement, and  if  his  sister  rendered  any  "service"  to  him  she  did  so 
for  her  elder  brother  too.  Not  only  did  she  perform  all  the  neces- 
sary domestic  service  of  the  household,  but  when  she  was  incapacitat- 
ed, the  elder  brother  had  to  employ  and  pay  some  one  else  to  do  her 
work,  and  if  she  had  not  been  there  he  would  have  had  to  pay  a  do- 
mestic servant.  He  paid  the  nurse  who  attended  his  sister  when  she 
was  ill.  Under  these  circumstances — as  the  law  stands — I  think  the 
jury  was  not  only  justified,  but  was  right,  in  finding  that,  at  the 
times  of  the  seduction  and  birth  of  the  child,  Bridget  IMurray  was  the 
servant  of  the  plaintiff. 

My  view  of  the  law  is  put  by  Sir  Frederick  Pollock  so  clearly  that  I 
take  the  liberty  of  adopting  the  following  passages  from  his  book 
(Pollock  on  Torts  [7th  Ed.]  p.  226),  and  incorporating  his  language 
with  my  judgment: 

"In  this  kind  of  action  it  is  not  necessary  to  prove  the  existence  of 
a  binding  contract  of  service  between  the  plaintiff  and  the  person 
seduced.  The  presence  *  *  *  Qf  seduction  *  *  *  is  not  a 
necessary  part  of  the  cause  of  action,  but  only  a  circumstance  of 
aggravation.  Whether  that  element  be  present  or  absent,  proof  of 
a  de  facto  relation  of  service  is  enough  *  *  *  when  once  the  rela- 
tion of  master  and  servant,  at  the  time  of  the  acts  complained  of  is 
established.  *  *  *  Some  evidence  of  such  a  relation  there  must 
be,  but  very  little  will  serve.  *  *  *  The  fact  of  a  child  living  with 
a  parent,  or  any  other  person  in  loco  parentis,  as  a  member  of  the 
family  of  which  that  person  is  the  head,  is  deemed  enough  to  support 
the  inference  that  the  relation  of  master  and  servant,  determinable  at 
the  will  of  either  party,  exists  between  them. 

"Partial  attendance  in  the  parents'  house  is  enough  to  constitute 
service,  as  where  a  daughter  employed  elsewhere  in  the  daytime  is, 
without  consulting  her  employer,  free  to  assist  and  does  assist,  in  the 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  549 

household  when  she  comes  home  in  the  evening.  Some  loss  of  service, 
or  possibility  of  service,  must  be  shown  as  consequent  on  the  seduc- 
tion, since  that  is,  in  theory,  the  ground  of  action ;  but  when  that  con- 
dition is  once  satisfied,  the  damages  that  may  be  given  are  by  no 
means  limited  to  an  amount  commensurate  with  the  actual  loss  of 
service  proved  or  inferred.  The  awarding  of  exemplary  damages  is 
indeed  rather  encouraged  than  otherwise.  It  is  immaterial  whether 
the  plaintiff  be  a  parent  or  kinsman,  or  a  stranger  in  blood,  who  has 
adopted  the  person  seduced.^* 

"On  the  same  principle  or  fiction  of  law  a  parent  can  sue  in  his  own 
name  for  any  injury  done  to  a  child  living  under  his  care  and  control, 
provided  the  child  is  old  enough  to  be  capable  of  rendering  service; 
otherwise  not,  for  the  gist  of  the  action  depends  upon  the  capacity  of 
the  child  to  perform  acts  of  service."     *     *     * 

This  being  so,  I  am  clearly  of  opinion  that  the  case  is  brought  well 
within  the  authorities,  and  that  there  is  ample  evidence  of  the  exist- 
ence of  the  relationship  necessary  to  entitle  the  plaintiff  to  maintain  the 
action. 

Holmes,  L.  J.  *  *  *  The  action  of  seduction  is  founded  on 
the  wrong  done  to  a  person  who  is  entitled  to,  or  enjoys,  the  benefit 
of  the  sen'ices  of  the  person  seduced.  It  cannot  be  maintained  with- 
out some  proof  of  service  or  liability  to  service,  although  such  proof 
is  often  very  slight,  and  the  service  purely  conventional.  No  difficulty 
arises  where  there  is  a  contract  to  serve,  express  or  implied.  The  mas- 
ter in  such  a  case  can  always  sue ;  and  an  implied  contract  may  be 
inferred  from  very  trifling  circumstances.  For  example,  a  lady  taken 
as  a  companion  by  another  lady,  without  salary,  and  from  motives  of 
friendship,  might  be  regarded  in  an  action  of  this  kind  as  the  latter's 
servant,  if  she  makes  herself  useful  in  the  house.  It  would  be  a  rea- 
sonable inference  that  she  gives  this  assistance  in  return  for,  and  in 
consideration  of,  the  comforts  of  a  home. 

I  think  that  at  least  one  of  the  Judges  of  the  Divisional  Court  held 
that  in  the  present  case  the  jury  were  at  liberty  to  infer  from  the 
facts  a  contract  of  service.  I  am  of  opinion  that  there  is  no  evidence 
from  which  such  an  inference  can  be  drawn.  What  was  the  consid- 
eration given  by  the  plaintiff"  for  such  a  contract?  No  doubt  Bridget 
did  the  indoor  work,  thus  saving  the  wages  of  a  servant,  just  as  her 
brothers,  by  their  labour  on  the  farm,  reduced  the  need  of  hired  help ; 
but  the  sister  was  no  more  serving  them  than  they  were  serving  her. 
Their  position  might  be  compared  to  the  case  of  three  ladies  carrying 
on  a  trading  establishment  as  partners,  each  superintending  a  different 
department  of  the  business.  If  one  becomes  temporarily  incapacitated 
for  work,  the  loss  is  felt  by  all ;    but  it  would  be,  I  think,  absurd  to 

84  On  the  general  principle  here,  see  Tittlebaum  v.  Boehmcke  (1911)  81  N. 
J.  Law,  607,  SO  Atl.  32.3,  35  L.  R.  A.  (N.  S.)  10G2,  Ann.  Cas.  1912D,  298,  and 
35   Cyc.  1303,   notes,  64,   65,   66. 


550  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

suggest  that,  if  such  incapacity  arose  from  pregnancy,  the  others 
would  have  a  cause  of  action  against  the  seducer.  It  would  only 
intensify  the  absurdity,  if  the  two  other  partners  were  in  turn  seduced, 
to  assert  that  an  action  lay  at  the  suit  of  the  partner  who  had  already 
yielded  to  temptation. 

I  have  thus  far  considered  the  case  on  the  basis  of  implied  contract, 
which  was,  I  think,  the  ground  taken  by  the  majority  of  the  Divisional 
Court.  I  do  not,  however,  forget  that  there  is  a  kind  of  service  wholly 
unconnected  with  contract  that  will  support  an  action  of  this  kind.  It 
has  always  been  held  that  where  a  daughter,  living  with  a  parent,  is 
seduced,  the  parent  is  entitled  to  sue  the  wrongdoer,  upon  showing 
that  the  girl  has  rendered  the  slightest  service  in  the  family.  I  have 
no  doubt  that  this  rule  of  law  arose  from  the  idea  that  she  is  under 
a  moral  obligation  to  carry  out  the  wishes  of,  and  to  make  herself  use- 
ful to,  a  parent,  under  whose  protection  and  guidance  she  is  living. 
This  principle  has  been  extended  in  two  directions.  It  has  been  held 
to  apply  in  a  few  exceptional  cases  where,  at  the  time  of  the  seduc- 
tion, the  daughter  is  not  actually  living,  at  least  permanently  living, 
with  the  parent.  It  has  also  been  held  to  apply  to  cases  where  the 
nominal  services  are  rendered,  not  to  a  parent  but  to  a  person  in  loco 
parentis.  It  is  unnecessary  for  me  to  examine  the  authorities  on  those 
branches  of  the  rule ;  for  in  the  first  the  parent  is  always  the  plaintiff ; 
and  as  to  the  second,  no  one  could  suggest  that  Michael  Murray  was 
in  loco  parentis  to  a  sister,  ten  or  thirteen  years  older  than  himself, 
who  managed  the  money  of  the  family,  who  gave  card-parties  and 
other  entertainments,  and  who  was,  as  she  said  in  her  evidence,  the 
head  of  the  house. 

For  these  reasons  I  concur  in  the  opinion  of  GinsON,  J.,  that  the 
defendant  was  entitled  to  a  direction  in  his  favour  at  the  close  of  the 
plaintiff's  case.^^ 

85  In  his  opinion  Mr.  Justice  Gibson  had  said:  "I  fear  the  evidence  is  at 
least  as  consistent  with  the  work  having  been  done  for  the  brothers  as 
piirtners;  and  if  that  were  so,  the  action  conld  not  be  maintained.  It  is  a 
difflcuit  case,  as  is  apparent  from  what  my  Brother  Andrews  has  said.  The 
action  is  so  far  founded  on  fiction  that  sometimes  it  is  impossible  to  recon- 
cile the  view  of  the  Court  with  counnon  sense  or  reality.  On  the  whole, 
I  think  that  the  onus  of  proof  which  the  plaintiff  must  establish  is  not 
supported.  The  case  is  remarkable  in  this,  that  there  is  no  other  master  in 
existence,  and  that  there  has  been  a  real  pecuniary  loss  imposed  on  the 
brothers  by  the  act  of  the  defendant.  If  the  view  of  my  Brother  Andrews 
is  correct,  that  wherever  there  is  interference  with  services  rendered  to 
the  prejudice  of  the  person  enjoying  such  services  that  is  sufficient  to  give 
a  cause  of  action,  the  plaintiff  must  succeed  ;  but  I  think  the  law  requires 
something  further:  the  services  must  be  rendered  to  someone  entitled  to 
them  as  master.  In  cases  where  there  is  a  real  contract,  as  in  the  ordi- 
nary case  of  master  and  servant,  there  is  no  difficulty;  it  is  only  where 
service  is  attributetl  to  some  moral  duty  that  a  question  arises.  Here  the 
parties  were  co-owners ;  and  it  being  legitimate  to  refer  the  services  ren- 
dered to  that  relationship,  my  view  is  in  favour  of  the  defendant." 


Ch.  2)  ABSOLUTE    TOUTS   OTHER   THAN   TRESPASSES  551 

TAYLOR  V.  DANIEL. 
(Court  of   Appeals   of   Kentucky,    1907.     98    S.    W.   9S6.) 

Lassing,  J.  Matilda  Taylor  filed  her  suit  in  the  Bell  circuit  court 
against  White  Daniel  seeking  to  recover  damages  for  the  seduction  of 
her  illegitimate  daughter,  Annie  Belle  Howard.  A  demurrer  was  filed 
to  the  petition  and  sustained,  and  an  amended  petition  filed,  and  a  de- 
murrer being  sustained  to  the  petition  as  amended,  and  plaintiff  declin- 
ing to  plead  further,  her  petition  was  dismissed,  with  judgment  for 
costs,  and  she  appeals. 

The  petition  as  amended  fails  to  state  that  the  daughter,  Annie 
Belle  Howard,  was,  at  the  date  of  the  acts  complained  of.  under  21 
years  of  age,  or  that  she  was  in  the  service  of  her  mother,  Matilda 
Taylor.  In  the  case  of  Woodward  v.  Anderson,  9  Bush,  624,  this  court 
said:  "At  common  law  actions  for  seduction  are  based  solely  upon  the 
relation  of  master  and  servant,  and  no  one  but  those  entitled  to  the 
services  of  the  female  could  maintain  it.  The  action  is  usually  insti- 
tuted by  the  parent,  and  the  allegation  and  proof  of  loss  of  service 
was  at  common  law,  indispensable  to  a  recovery."  Section  2  of  the 
Kentucky  Statutes  of  1903  has  modified  the  common-law  rule  to  the 
extent  that  actions  for  seduction  may  now  be  maintained  without  any 
allegation  or  proof  of  the  loss  of  service  of  the  female  by  reason  of 
the  wrongful  act  of  the  defendant.  But,  as  said  in  the  case  of  Wood- 
ward V.  Anderson,  supra :  "This  statute  does  not  give  the  right  of 
action  to  any  other  persons  than  those  who  could  maintain  it  at  com- 
mon law."  The  statute  being  silent  on  the  question  as  to  who  may 
bring  such  an  action,  the  common-law  rule  upon  this  question  is,  there- 
fore, in  full  force,  and  the  relation  of  master  and  servant,  or  parent 
and  child,  must  still  appear  in  the  pleading.  This  being  the  case,  and 
the  plaintiff  in  her  petition  having  failed  to  allege  that  her  daughter 
was  under  21  years  of  age,  or  was  in  her  service,  or  that'  she  was 
entitled  to  her  service,  we  are  of  opinion  that  the  petition  failed  to 
state  a  cause  of  action  for  seduction. 

The  judgment  is  affirmed.**^ 

8  0  Ou  the  change  eflfected  in  the  doctrine  by  statute,  see  35  Cyc.  1298,  and 
cases  cited  in  notes  29,  30,  31 ;  48  Cent.  Dig.  "Seduction,"  §§  9,  16 ;  Key-No. 
^Seduction,"  §  8.  See  also  the  remarks  of  Daniel,  J.,  in  Lee  v.  Hodges 
(1857)  13  Grat  (Va.)  726,  734,  and  the  remarks  of  Campbell,  .T.,  in  Stondt 
V.  Shepherd  (18S9)  73  :Mich.  588,  41  N.  W.  G96.  Compare  Tittlebaum  v. 
Koehmcke  (1911)  81  N.  .7.  Law,  697,  80  Atl.  323,  35  L.  R.  A.  (N.  S.)  1062, 
and  note,  Ann.  Cas.  1912D,  298. 


553  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

PETERS  V.  JONES. 

(High  Court  of  Justice,  King's  Bench  Division.    [1914]  2  K.  B.  781.) 

The  action  was  brought  to  recover  damages  for  the  seduction  of 
a  girl  aged  twenty-two,  the  adopted  daughter  of  the  plaintiff,  a  mar- 
ried woman. 

The  statement  of  claim  originally  alleged  that  the  girl  who  had 
been  seduced  was  the  sister  and  servant  of  the  plaintiff".  At  the  trial 
this  description  was  amended  and  she  was  described  as  the  adopted 
daughter  and  servant  of  the  plaintiff. 

The  plaintiff,  Mrs.  Peters,  lived  with  her  husband.  She  adopted 
the  girl  in  1906.  The  girl  lived  in  the  house  with  the  plaintiff  and 
her  husband,  and  without  any  specific  contract  of  service  either  with 
the  plaintiff'  or  her  husband  performed  there  the  ordinary  domestic 
services  of  the  household.  She  was  given  by  the  plaintiff  about  5s. 
a  week  for  pocket-money.  Her  clothes  also  were  provided  for  her. 
The  clothes  and  pocket-money  were  provided  out  of  the  husband's 
money.  The  plaintiff  had  no  separate  estate.  The  action  was  tried 
at  Cardiff'  Assizes,  before  Avory,  J.,  and  a  special  jury,  when  evi- 
dence of  the  facts  stated  above  was  given,  and  that  the  defendant 
had  seduced  the  girl.  The  jury  having  found  a  verdict  for  the  plain- 
tiff for  £25.  the  case  was  adjourned  to  London  for  further  consid- 
eration as  to  whether  the  action  would  lie  at  the  suit  of  the  plaintiff. 

Wilfred  Lewis,  for  the  plaintiff.  The  girl  who  was  seduced  was  not 
a  servant  of  the  plaintiff  in  the  strict  sense.  She  was  the  adopted 
daughter  of  the  plaintiff.  The  plaintiff  therefore  stood  in  loco  paren- 
tis to  the  girl.  As  the  adopted  daughter  the  girl  owed  a  duty  to  her 
adopted  parent.  Any  one  in  loco  parentis  is  entitled  to  maintain  an 
action  in  respect  of  the  seduction  of  his  or  her  daughter:  Irwin  v. 
Dearman  (1809)  11  East,  23.     *     *     * 

Avory,  j_  *  *  *  Xhe  plaintiff  is  the  wife  of  Ebenezer  Peters, 
and  the  question  for  decision  is  whether  Mrs.  Peters  is  entitled  to 
maintain  this  action  for  the  seduction  of  the  girl,  who  for  the  pur- 
poses of  this  action  may  be  treated  as  the  adopted  daughter  of  the 
plaintiff.  On  behalf  of  the  plaintiff  it  has  been  contended  that  in- 
asmuch as  that  fact  is  admitted  or  established,  and  as  she  in  fact 
rendered  services  in  the  house,  both  at  the  time  of  the  seduction  and 
also  at  the  time  of  the  confinement,  there  is  sufficient  to  entitle  Mrs. 
Peters  to  sue,  and  that  it  is  only  a  person  who  stands  in  loco  parentis 
who  can  sue  for  damages  for  ^seduction.  Now,  that  contention  ap- 
pears to  me  to  be  a  violation  of  the  real  principle  upon  which  this 
action  can  be  maintained.  I  shall  refer  in  a  moment  to  the  judg- 
ments in  Hamilton  v.  Long,  [1903]  2  I.  R.  407.  But  I  wish  to  say 
for  myself  that  the  principle  on  which  an  action  for  seduction  can 
be  maintained  is  not,  as  the  argument  on  behalf  of  the  plaintiff  sug- 
gests, that  there  must  be  the  relationship  of  parent  and  child,  or  any 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  553 

quasi-relationship  of  parent  and  child,  but  that  the  relationship  nec- 
essary is  merely  that  of  master  and  servant.  And  when  one  looks 
at  the  authorities  in  which  it  has  been  decided  that  a  father  may 
maintain  the  action  in  respect  of  a  daughter  who  is  under  twenty- 
one  years  of  age  w^ithout  proving  any  actual  services  rendered,  but 
that  if  she  is  over  twenty-one  years  of  age  he  must  give  evidence  of 
actual  services  rendered  by  the  daughter,  I  think  it  is  plain  that  the 
foundation  of  the  action  is  not  the  relationship  of  parent  and  child 
but  that  of  master  and  servant. 

If  I  had  had  any  doubt  about  that  being  the  true  principle  I  should 
turn  to  Hamilton  v.  Long,  [1903]  2  I.  R.  407,  where  the  facts  in 
my  judgment  gave  rise  to  the  very  question  of  law  that  has  to  be 
determined  in  this  case.  In  that  case  a  daughter  w^as  seduced  while 
her  father  and  mother  were  alive  and  while  she  was  living  in  their 
house.  A  child  was  born  after  the  father's  death,  and  the  daughter 
continued  to  live  with  the  widow.  It  was  found  as  a  fact  that  the 
daughter  rendered  ordinary  household  services  to  her  mother  after 
her  father's  death.  In  these  circumstances  it  was  held  that  an  action 
could  not  be  maintained  by  the  wddow  either  by  virtue  of  the  common 
law  or  the  ^Married  Women's  Property  Acts.  Now  it  is  admitted  to 
be  the  law  that  the  relationship  which  justifies  the  maintenance  of 
the  action  must  exist  at  the  time  of  the  seduction  and  also  at  the  time 
of  the  illness  consequent  upon  it  that  deprives  the  plaintiff  of  the 
girl's  services.  That  being  so,  the  Court  in  Hamilton  v.  Long,  [1903] 
2  I.  R.  407,  had  to  determine  whether,  if  the  services  were  rendered 
to  the  mother  at  the  time  of  the  illness,  it  could  in  that  case  be  said 
that  the  services  were  also  being  rendered  to  the  mother  at  the  time 
of  the  seduction,  and,  if  they  were,  whether  the  mother  could  main- 
tain the  action.  The  effect  of  the  judgment  w^as  that  as  the  father 
^vas  alive  and  the  daughter  living  in  his  house  at  the  time  of  the  se- 
duction, he  alone  was  the  person  who  could  have  maintained  the 
action,  and  that  the  mother  could  not,  because  at  the  time  of  the 
seduction  the  services  were  rendered  to  the  father  and  not  to  the 
mother.  If  I  had  had  any  doubt  upon  the  point,  I  should  have  will- 
ingly followed  this  decision  of  Lord  O'Brien,  C.  J.,  Gibson,  J.,  and 
Madden,  J.,  for  although  the  decision  is  not  binding  upon  me  it  is  of 
great  authority. 

Lord  O'Brien,  C.  J.,  said :  "Now,  at  common  law  the  action  would 
not,  in  my  opinion,  be  maintainable  for  this  reason,  namely,  that  to 
sustain  an  action  of  seduction  it  must  be  shewn  that  the  act  of  seduc- 
tion took  place  while  the  relation  of  master  and  servant  existed,  and 
that  relation  in  the  father's  lifetime  existed  exclusively  between  the 
father  as  head  of  the  family,  and  the  daughter  as  his  child,  and  one 
of  the  family  and  one  of  the  household  which  he  maintained."  He 
then  deals  with  the  Married  Women's  Property  Acts  and  finds  that 
there  is  nothing  in  those  Acts  which  alters  the  position  which   the 


554  TOUTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

wife  occupies  at  common  law  in  respect  of  this  matter.  Gibson,  J., 
said:  "'The  action  is  founded  on  a  wrongful  interference,  to  the 
master's  injury,  with  a  subsisting  relationship  of  master  and  servant. 
Such  relationship  is  supported  by  acts  of  service  voluntarily  rendered 
without  any  enforceable  contract,  but  the  service  must  be  to  some 
one  whom  the  law  recognizes  as  master.  The  question  here  is  who 
was  the  master?  At  common  law  certainly  it  was  the  father.  He 
and  his  wife  were  one.  As  head  of  the  family  he  was  guardian  of 
his  daughter  during  minority,  and  when  she  became  adult,  so  long 
as  she  resided  under  his  protection  in  the  family  home,  he  was  re- 
garded as  master  in  respect  of  all  services  yielded  to  or  for  him  in  the 
course  of  family  duty.  There  is  no  trace  of  suggestion  in  the  English 
law  books  that  a  mother  during  the  father's  lifetime  could  be  regard- 
ed at  common  law  as  mistress"  (that  means  mistress  of  the  servant) 
"jointly  with  her  husband  or  separately.  She  was  merged  in  her 
husband."  Madden,  J.,  said:  "So  long  as  the  plaintiff's  daughter 
was  an  infant  living  under  the  dominion  of  her  father,  he  was  in 
law  entitled  to  her  services.  After  she  became  sui  juris  some  evi- 
dence of  actual  services  rendered  in  the  household  became  necessary 
in  order  to  give  rise  to  the  legal  fiction  of  the  existence  between 
parent  and  child  of  the  contractual  relation  of  master  and  servant 
upon  which  the  action  of  seduction  is  founded."  That  decision  was 
approved  in  the  Irish  Court  of  Appeal,  [1905]  2  I.  R.  552,  by  Lord 
Ashbourne,  L.  C,  and  FitzGibbon,  Walker,  and  Holmes,  L.  J  J.  I 
hold  exactly  the  same  view  as  was  expressed  in  that  case.  In  my 
judgment  the  action  can  only  be  maintained  by  proof  of  an  actual 
or  implied  contract  of  service.  The  relationship  of  parent  and  child 
gives  rise  to  the  legal  fiction  that  there  is  a  contract  of  service.  The 
legal  relationship  of  father  and  child  does  not  by  itself  justify  the 
maintenance  of  the  action.  The  maintenance  of  the  action  is  only 
justified  by  the  legal  fiction  that  a  child  living  with  the  parent  is  a 
servant,  and  the  action  is  maintainable  where  the  daughter  is  under 
twenty-one  years  of  age  without  any  proof  of  actual  services  ren- 
dered, but  after  that  age  is  passed  there  must  be  proof  of  actual 
services. 

That  being  the  principle,  the  question  in  this  case  is  between  whom 
did  the  relationship  of  master  and  servant  exist.  On  behalf  of  the 
]>laintiff  it  has  been  contended  that  because  Mrs.  Peters  stood  in  loco 
parentis  she  alone  was  the  person  who  could  maintain  this  action,  and 
that  the  husband  would  not  have  been  entitled  to  sue;  that  as  there 
was  no  actual  contract  of  service,  such  services  as  were  rendered  nnist 
be  deemed  to  have  been  rendered  to  the  plaintitt,  Mrs.  Peters.  But 
the  passages  I  have  read  from  the  judgments  in  the  Irish  case  of 
Hamilton  v.  Long,  [1903  J  2  1.  R.  407,  shew  that  while  Mrs.  Peters 
was  living  with  her  husband  any  ordinary  domestic  servant  employed 
in  the   house  was  the  servant  of   Mr.    Peters   and   not   of   his   wife. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  555 

Whether  such  a  servant  was  paid  wages  or  whether  she  was  re- 
munerated by  gifts  of  clothes  or  pocket-money  is,  I  think,  immaterial. 
The  moment  that  one  appreciates  that  the  action  is  based  on  the 
relationship  of  master  and  servant  and  not  on  that  of  parent  and 
child  one  sees  that  the  only  question  for  determination  is,  who  was 
the  girl's  master  at  the  material  times?  There  is  only  one  answer 
to  that  question.  Mr.  Peters  was  the  master;  Mrs.  Peters  was  not 
the  mistress  of  the  servant,  and  so  she  was  not  entitled  to  bring 
this  action  and,  being  a  person  admittedly  without  any  separate  prop- 
erty of  her  own,  cannot  be  rendered  liable  for  the  costs  of  it.  No 
application  was  made  to  me  to  add  Mr.  Peters  as  a  plaintiff.  In  my 
opinion  the  plaintiff  was  not  entitled  to  maintain  this  action,  and  there 
must  be  judgment  for  the  defendant. 
Judgment  for  defendant.^'' 


V.  Defamation 

(A)   Origin  of  the  Tort,  and  the  Kinds  of  Defamation 

(a)  Its  Recognition  in  the  Courts  of  Law 

The  king's  court  [in  the  thirteenth  century]  gave  no  action  for 
defamation.  This  in  our  eyes  will  seem  both  a  serious  and  a  curious 
defect  in  the  justice  that  it  administered.  What  is  usually  accounted 
the  first  known  instance  of  such  an  action  comes  from  the  year 
1356,  and  even  in  that  instance  the  slander  was  complicated  with 
contempt  of  court.  In  1295  a  picturesque  dispute  between  two  Irish 
magnates  had  been  removed  to  Westminster,  and  Edward  I's  court 
declared  in  solemn  fashion  that  it  would  not  entertain  pleas  of  defa- 
mation; in  the  Irish  court  battle  had  been  waged.  At  the  end  of 
the  Middle  Ages  we  may  see  the  royal  justices  beginning  to  recon- 
sider their  doctrine  and  to  foster  an  "action  on  the  case  for  words" ; 
but  they  were  by  this  time  hampered  by  the  rival  pretensions  of  the 
courts  Christian.  The  tribunals  of  the  church  had  been  allowed  to 
punish  defamation  as  a  sin,  and  the  province  which  had  thus  been 
appropriated  by  the  canonists  was  not  very  easily  recovered  from  them 
until  the  Protestant  Reformation  had  weakened  their  hands. 

We  should  be  much  mistaken,  however,  if  we  believed  that  the 
temporal  law  of  the  Middle  Ages  gave  no  action  to  the  defamed. 
Nothing  could  be  less  true  than  that  our  ancestors  in  the  days  of  their 
barbarism  could  only  feel  blows  and  treated  hard  words  as  of  no 
account.  Even  the  rude  Lex  Salica  decrees  that  if  one  calls  a  man 
"wolf"  or  "hare"  one  must  pay  him  three  shillings,  while  if  one 
calls  a  woman   "harlot"   and   cannot  prove   the  truth  of  the  charge, 

8T  Part  of  the  .«;tateiiient  of  facts  and  part  of  the  opinion  are  omitted. 


556  TORTS  THROUGH  ACTS  OF    ABSOLUTE  LIABILITY  (Part  1 

one  must  pay  her  forty-five  shillings.  The  oldest  English  laws  exact 
bot  and  wite  if  one  gives  another  bad  names.  In  the  Norman  Cus- 
tumal  it  is  written  that  the  man  who  falsely  calls  another  "thief"  or 
"manslayer"  must  pay  damages,  and,  holding  his  nose  with  his  fin- 
gers, must  publicly  confess  himself  a  liar.  Shame  was  keenly  felt. 
In  almost  every  action  before  an  English  local  court  of  the  thirteenth 
century  the  plaintiff  will  claim  compensation  not  only  for  the  dam- 
age (damnum)  but  also  for  the  shame  (huntage,  hontage,  dedecus, 
pudor,  vituperium)  that  had  been  done  him,  and  we  may  suspect  that 
in  the  king's  court  this  element  was  not  neglected  when  compen- 
sation was  awarded.  But  further,  we  find  that  in  the  local  courts, 
not  only  were  bad  words  punished  upon  presentment  in  a  summary 
way,  but  regular  actions  for  defamation  were  common.  We  may 
gather  that  in  such  an  action  the  defendant  might  allege  that  his 
words  were  true;  Veritas  non  est  defamatio.  We  may  gather  that 
the  English  for  "meretrix"  was  actionable,  though  an  interchange 
of  this  against  the  English  for  "latro"  left  one  shilling  due  to  the 
man.  We  already  hear  that  a  slander  was  uttered  "of  malice  afore- 
thought" and  sometimes  a  plaintitT  alleges  "special  damage."  But 
until  further  researches  have  been  made  among  the  records  of  our 
manorial  courts,  we  shall  know  little  of  the  mediaeval  law  of  defa- 
mation. Probably  in  this  matter  those  courts  did  good  enough  jus- 
tice, and  for  this  reason  it  was  that  no  royal  writ  was  devised  for 
the  relief  of  the  slandered.  In  later  days,  when  the  old  moots  were 
decaying,  the  ecclesiastical  procedure  against  the  sin  of  defamation 
seems  to  have  been  regarded  as  the  usual,  if  not  the  only,  engine 
v/hich  could  be  brought  to  bear  upon  cases  of  libel  and  slander,  and 
in  yet  later  days  the  king's  court  had  some  difficulty  in  asserting  its 
claims  over  a  tract  of  law  that  it  had  once  despised. 

Pollock  and  Maitland,  Hist.  Eng.  Law  (2d  Ed.)  Vol.  2,  p.  536. 


The  jurisdiction  of  the  ecclesiastical  courts  was  recognized  both  by 
the  legislature  and  the  judges.  But  it  was  soon  seen  that  an  unlimited 
jurisdiction  over  cases  of  defamation  might  be  used,  as  an  unlimited 
jurisdiction  over  breaches  of  faith  was  used,  to  get  indirectly  control 
over  cases  which  ought  to  have  gone  to  the  king's  court.  Thus  persons 
indicted  and  acquitted  had  a  habit  of  suing  the  indictors  for  defamation 
in  the  ecclesiastical  courts.  It  was  enacted  that  in  such  cases  a  pro- 
hibition should  lie.  In  Edward  IV's  reign  we  get  an  odd  tale  of  a 
similar  perversion  of  the  action  for  defamation,  told  of  no  less  a  per- 
son than  the  Abbot  of  St.  Albans.  He  had  sent  for  a  certain  married 
woman,  detained  her  in  his  chamber,  and  solicited  her  chastity  without 
success.  Her  husband  then  sued  the  abbot  for  the  imprisonment  of 
his  wife.     The  abbot  thereupon  sued  him  for  defamation  before  the 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  557 

ecclesiastical  court.  In  such  a  case  the  court  found  no  difficulty  in 
awarding  a  prohibition  to  the  ecclesiastical  court  and  declining  to 
grant  a  writ  of  consultation.  In  self-defence,  then,  the  courts  of 
common  law  would  prohibit  certain  actions  for  defamation.  But,  in 
spite  of  one  doubtful  case  to  the  contrar}^,  it  is  clear  that  all  through 
this  period  they  declined  to  entertain  actions  merely  for  defamation. 
It  is  not  until  Henry  VIII's  reign,  in  the  very  last  of  the  Year 
Books,  that  we  have  any  hint  that  the  courts  are  beginning  to  think 
of  claiming  some  share  in  this  jurisdiction.  Here,  as  in  other  branches 
of  the  law  of  crime  and  tort,  the  decline  of  the  ecclesiastical  courts  and 
the  competition  of  the  Court  of  Star  Chamber  led  to  important  devel- 
ooments  in  the  common  law. 
^V.  S.  Holdsworth,  Hist.  Eng.  Law,  Vol.  Ill,  pp.  316,  317  (1909). 


Early  in  the  Middle  Ages  reputation  was  amply  protected  in  Eng- 
land by  the  combined  secular  and  spiritual  authorities.  In  the  course 
of  the  nationalization  of  justice  by  the  king's  judges  the  jurisdiction 
of  the  seignorial  courts  fell  into  decay;  and,  after  a  long  and  bitter 
struggle,  the  jurisdiction  of  the  ecclesiastical  courts  was  also  absorbed 
by  the  royal  tribunals.  When,  however,  the  king's  courts  acquired 
jurisdiction  over  defamation,  during  the  latter  half  of  the  sixteenth 
century,  various  social  and  political  conditions  combined  to  contract 
the  actionable  right,  or  remedy.  The  king's  courts  granted  only  a 
limited  remedy,  the  selection  being  based  partly  upon  the  character 
of  the  imputation,  partly  upon  the  consequences  resulting  therefrom; 
moreover,  even  this  limited  remedy  was  little  concerned  in  theory 
with  the  right  to  reputation  as  such.  By  reason  of  its  growth  in  this 
way  the  early  common  law  of  defamation  consisted  merely  of  a  series 
of  exceptions  to  entire  license  of  speech.  When,  at  length,  early  in 
the  seventeenth  century,  the  potentialities  of  the  printing  press  dawned 
upon  the  absolute  monarchy,  the  emergency  was  met,  not  by  further 
additions  to  the  list  of  actionable  imputations,  but  by  a  direct  impor- 
tation of  the  Roman  law,  without  regard  to  Roman  limitations,  and 
with  certain  additions  adapted  to  the  purpose  in  hand.  This  special 
provision  for  written  or  printed  defamation,  first  adopted  in  the 
criminal  law,  eventually  became  also  a  principle  of  civil  judicature. 
In  this  way  a  new  principle  of  actionable  defamation,  based  upon 
mere  form,  was  introduced  in  the  law.  The  original  common  law 
doctrine  of  defamation,  based  upon  the  nature  of  the  imputation, 
became  stereotyped  as  the  law  of  spoken  defamation,  or  slander;  the 
doctrine  inherited  from  the  Roman  law,  through  the  Star  Chamber, 
became  the  law  of  written  and  printed  defamation,  or  libel.  The 
English  law  of  defamation,  therefore,  was  first  limited  by  a  process  of 
selection,  and   then   confused  by   a   formal   distinction   which    is   not 


558  TORTS  THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

only  unknown  in  other  systems  of  law,  but  is  also  wholly  accidental 
in  origin  and  irrational  in  principle. 

A'an  Vechlen  Veeder,  "The  History  and  Theory  of  the  Law  of 
Defamation."  ^* 


(b)  Slander 
(aa)  Limitations  "because  of  the  Ecclesiastical  Jurisdiction 

PALMER  V.  THORPE. 

(Court    of    King's    Bench,    1583.      4    Coke,    Rep.    20a,    70    Reprint.    909.) 

Touching  defamation  determinable  in  the  Ecclesiastical  Court,  it 
was  resolved,  that  such  defamation  ought  to  have  three  incidents:  \. 
That  it  concerns  matter  merely  spiritual  and  determinable  in  the 
Ecclesiastical  Court,  as  for  calling  him  "heretic,  schismatic,  adulterer, 
fornicator,  &c."  2.  It  ought  to  concern  matter  merely  spiritual  only ; 
for  if  such  defamation  touches  or  concerns  anything  determinable  at 
the  common  law,  the  Ecclesiastical  Judge  shall  not  have  cognizance  of 
it.  3.  Although  such  defamation  is  merely  spiritual,  and  only  spiritual ; 
yet  he  who  is  defamed  cannot  sue  there  for  amends  or  damages,  but 
the  suit  ought  to  be  only  for  the  punishment  of  the  sin,  pro  salute 
animse.     *     *     * 


GRAVES  v.  BLANCHET. 

(Court   of  Queen's   Bencli,   1705.     2   Salk.   G96,  91   Reprint.   5S9.) 

Action  for  these  words,  "She  is  a  whore,  and  had  a  bastard  by  her 
father's  apprentice;"  judgment  was  arrested.  The  Court  said  they 
could  not  overthrow  so  many  authorities.  The  reason  of  the  law  is, 
that  fornication  is  a  spiritual  offence ;  and  no  action  lay  at  common 
law  for  what  the  common  law  took  no  notice  of,  without  special  dam- 
age."® 

8  8  This  interesting  article  by  Judge  Veeder  was  published  in  the  Columbia 
Law  Review,  vo).  3,  pp.  540-573  (190;!),  and  vol.  4,  pj).  .33-50  (1904).  The 
first  part,  on  the  history  of  defamation,  was  republished,  in  1909,  in  Select 
Essays  in  Anglo-American  Legal  History,  vol.  3,  pp.  446-473.  The  second 
part,  on  the  theory  of  the  present  law  of  defamation,  does  not  apjx'ar  in  the 
Ix^gal   Essays,    hut   should   be   consulted   in   the  Ctihiiiihia    I-aw    Review. 

See  also  3  Iloldsworth.  Hist.  Eng.  Law,  315-317  (1909),  nnd  for  certain 
historical  bearings  of  the  doctrine  of  defamation  see  the  opinion  of  Holmes,  C. 
J.,  in  Rutherford  v.  Paddock  (1902)  180  Mass.  289,  62  N.  E.  381,  91  Am.  St. 
Rep.  282. 

80  "Holt,  C.  J.,  said  that  to  say  of  a  young  woman  that  'she  had  a  bastard' 
is  a  very  great  scandal,  and  for  wliich,  if  he  could,  lie  would  encourage  an 
action;  but  it  is  not  actionable,  l>ecause  it  is  a  sjiirituiil  defain.ation.  i)un- 
Ishahle  in  the  Spiritual  Court.  So  it  is  to  call  a  man  a  'herctick.'  "  Dictum 
in  Ogden  v.  Turner   (1703)  6  Mod.  104. 

Comiiare  Chaucer's   reference,   in   the   Friar's  Tale,   to  the  vigorously  ex- 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  559 

(bb)  Oral  Defamation  Now  icithin  the  Jurisdiction  of  the  Courts  of  Law 

(1)  Slander  Per  Se 
(i)  Words  Imputing  Crime 

ANONYMOUS. 

(Court  of  King's  Bench,  1536.     1  Dyer,   19a,  73  Reprint,  40.) 

An  action  upon  the  case  was  brought  by  two,  for  that  the  defend- 
ant called  them  "two  false  knaves  and  thieves,"  and  shewed  in  proof 
of  it,  &c.  And  Mountague  intended  to  demur  in  law  upon  the  writ, 
because  the  tort  which  one  has  by  the  words  spoken  is  not  the  tort 
which  the  other  has ;  therefore  they  ought  to  sever  in  their  actions, 
as  of  false  imprisonment;   and  of  that  opinion  was  the  Court,  &c.^'* 


EATON  V.  ALLEN. 

(Court  of  Common  Pleas,  1.508.    4  Coke,  Rep.  16b.  76  Reprint.  896.) 

The  defendant  said  of  the  plaintiff,  "he  is  a  brabler  and  a  quar- 
reller,  for  he  gave  his  champion  counsel  to  make  a  deed  of  gift 
of  his  goods  to  kill  me,  and  then  to  fly  out  of  the  country,  but  God 
preserved  me."  And  it  was  strongly  urged  that  the  action  should 
be  maintainable,  and  divers  cases  cited.  *  *  *  But  upon  great 
consideration  and  advisement  it  was  adjudged  that  in  the  principal 
case  the  words  were  not  actionable :  for  the  purpose  or  intent  of  a 
man  without  act,  is  not  punishable  by  law,  et  ubi  non  est  lex,  ibi  non 
est  transgressio  quoad  mundum.  And  although  for  such  conspiracy 
he  might  be  punished  in  the  Star  Chamber,  that  is  by  the  absolute 
power  of  the  Court,  and  not  by  the  ordinary  course  of  the  law.  Nota 
bene,  this  case,  and  the  cause  and  reason  of  this  judgment.®^ 

ercised  jurisdiction  of  the  archdeacon  "in  punyschj'ng  of  forrdcaeioun,  of 
wicche-craft,  and  eek  of  bauderye,  of  diffamacioun,  and  avoutrie."  1  Holds- 
worth's  Hist,  of  Eng.  Law,  352,  387,  2  Legal  Essays,  2.55,  295. 

so  It  is  not  until  after  the  crucial  years  of  the  Reformation,  viz.  in  the 
year  1536,  that  we  find  an  action  of  slander  reported  in  the  King's  Courts." 
Edward  Jenks'  Short  History  of  English  Law,  1^5. 

91  Part  of  the  opinion  is  omitted.  Accord:  Bays  v.  Hunt  (1882)  60  Iowa, 
251,  2.52,  14  N.  W.  785:  (Tlie  words  were:  "Bays  will  steal.")  Fanning  v. 
Chaoe  (1891)  17  R.  I.  388,  22  Atl.  275,  13  L.  R.  A.  134,  .33  Am.  St.  Rep.  878: 
(The  words  were:    "He  is  going  to  start  a  house  of  ill  fame.") 

Compare  Cornelius  v.  Van  Slyck  (18.39)  21  Wend.  (N.  Y.)  70:  (Here  tlie 
words  "He  will  steal  and  I  can  prove  it,"  were  held  to  import  a  charge 
that  the  plaintiff  had  stolen.) 

And  see  Browning  v.  Commonwealth  (1903)  116  Ky.  282,  76  S.  W.  1!>: 
(The  defendant  in  a  letter  to  one  Newman  had  written  "Beard  will  purloin 
all  the  fprintingl  outfit  if  be  lias  a  chance  at  it;  so  I  will  hK)k  to  you  to  pro- 
tect it  for  the  present."  Held  sufficient  to  support  an  indictment  for  criminal 
libel.) 


560  TORTS  THROUGH  ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

IMARSHAL  V.  STEWARD. 

(Court  of  Common   Pleas,   1615.     1   Browu.   &  G.   8,  123   Reprint,   G31.) 

Action  upon  the  case,  reciting  the  Statute  of  1  Jac.  against  invoca- 
tion, &c.,  for  these  words,  "The  devil  appeareth  to  thee  every  night  in 
the  Hkeness  of  a  blackman,  riding  on  a  black  horse,  and  thou  conferrest 
with  him,  and  whatsoever  thou  dost  ask,  he  doth  give  it  thee,  and  that 
is  the  reason  thou  hast  so  much  money,  and  this  I  will  justife."  Judg- 
ment for  the  plaintiff.^^ 


BROOKER  v.  COFFIN. 

(Supreme  Court  of  Judicature  of  New  Yorlv,  1S09.     5  Jolins.  ISS, 

4  Am.  Dec.  337.) 

Action  for  slander,  with  a  declaration  in  two  counts.  There  was  a 
general  demurrer  to  the  first  count. ^^ 

SpEncKr,  J.  The  first  count  is  for  these  words :  "vShe  is  a  common 
prostitute,  and  I  can  prove  it ;"  and  the  question  arises,  whether  speak- 
ing these  words  gives  an  action,  without  alleging  special  damages.  By 
the  statute  (1  R.  L.  124)  common  prostitutes  are  adjudged  disorderly 
persons,  and  are  liable  to  commitment,  by  any  justice  of  the  peace, 
upon  conviction,  to  the  Bridewell  or  House  of  Correction,  to  be  kept 
at  hard  labor  for  a  period  not  exceeding  60  days,  or  until  the  next 
General  Sessions  of  the  Peace.  It  has  been  supposed  that,  therefore, 
to  charge  a  woman  with  being  a  common  prostitute,  was  charging  her 
with  such  an  offense  as  would  give  an  action  for  slander. 

The  same  statute  which  authorizes  the  infliction  of  imprisonment 
on  common  prostitutes  or  disorderly  persons,  inflicts  the  same  punish- 
ment for  a  great  variety  of  acts,  the  commission  of  which  renders  the 
persons  liable  to  be  considered  disorderly ;  and  to  sustain  this  action 
would  be  going  the  whole  length  of  saying,  that  every  one  charged 
with  any  of  the  acts  prohibited  by  that  statute,  would  be  entitled  to 
maintain  an  action  for  defamation.  Among  others,  to  charge  a  person 
with  pretending  to  have  skill  in  physiognomy,  palmistry,  or  pretending 
to  tell  fortunes,  would,  if  this  action  is  sustained,  be  actionable.  Upon 
the  fullest  consideration  we  are  inclined  to  adopt  this  as  the  safest  rule, 
and  one  which,  as  we  think,  is  warranted  by  the  cases.  In  case  the 
charge,  if  true,  will  subject  the  party  charged  to  an  indictment  for  a 

92  See  Statute  1  .Tac.  I,  c.  12:  An  act  against  conjuration,  witchcraft,  and 
dealing  with  evil  and  wicked  spirits  (1G04).    liepealed,  9  Geo.  II,  c.  5  (173G). 

And  see  Hughs  v.  Farrer  (1G2U)  Cro.  Car.  Ill  :  ("Thou  art  a  witch  and  didst 
bewitch  my  master's  drink."  Held  actionable.)  George  v.  Ilarvy  (l()o4), 
Cro.  Car.  324:  ("You  are  a  witch  and  a  strong  witch."  Finally  held  no 
slander  within  the  statute,  because  no  act  of  witchcraft  alleged.) 

03  The  statement  of  the  case  is  abridged,  the  arguments  of  counsel  are 
omitted,  and  only  so  much  of  the  opinion  is  given  as  relates  to  the  first  count 


Ch.  2)  ABSOLUTE    TORTS   OTHER   THAN   TRESPASSES  5G1 

crime  involving  moral  turpitude,  or  subject  him  to  an  infamous  pun- 
ishment, then  the  words  will  be  in  themselves  actionable;  and  Baron 
Comyns  considers  the  test  to  be,  whether  the  crime  is  indictable  or 
not.  1  Com.  tit.  Action  on  the  Case  for  Defamation,  F,  20.  There 
is  not,  perhaps,  so  much  uncertainty  in  the  law  upon  any  subject,  as 
when  words  shall  be  in  themselves  actionable.^*  From  the  contradic- 
tion of  cases,  and  the  uncertainty  prevailing  on  this  head,  the  court 
think  they  may,  without  overleaping  the  bounds  of  their  duty,  lay 
down  a  rule  which  will  conduce  to  certainty,  and  they,  therefore,  adopt 
the  rule  I  have  mentioned  as  the  criterion. ''■''  In  our  opinion,  there- 
fore, the  first  count  in  the  declaration  is  defective.  *  *  * 
The  defendant  must,  therefore,  have  judgment. 


WEBB  v.  BEAVAN. 

(Queen's   Bench   Division,    1SS.3.     11    Q.    B.    Div.    609.) 

The  statement  of  claim  alleged  that  the  defendant  falsely  and  ma- 
liciously spoke  and  published  of  the  plaintiff  the  words  following : 

"I  will  lock  you"  (meaning  the  plaintiff)  "up  in  Gloucester  Gaol  next  week. 
I  know  enough  to  put  you"  (meaning  the  plaintiff)  "there"  (meaning  thereby 
that  the  plaintiff  had  been  and  was  guilty  of  having  committed  some  criminal 
offence  or  offences). 

The  defendant  demurred  on  the  ground  that  no  cause  of  action  was 
disclosed.     Joinder  in  demurrer.''^ 

W.  H.  Nash,  in  support  of  the  demurrer,  contended  that,  in  order  to 
make  the  words  actionable,  the  innuendo  should  have  alleged  that  they 
imputed  an  ofifence  for  which  the  plaintiff  could  have  been  indicted, 
and  that  it  was  not  sufficient  to  allege  that  they  imputed  a  criminal 
offence  merely. 

Pollock,  B.  I  am  of  the  opinion  that  the  demurrer  should  be  over- 
ruled. The  expression  "indictable  offence"  seems  to  have  crept  into 
the  text  books,  but  I  think  the  passages  in  Comyns'  Digest  are  conclu- 
sive to  shew"  that  words  which  impute  any  criminal  offence  are  action- 
able per  se.  The  distinction  seems  a  natural  one,  that  words  imputing 
that  the  plaintiff'  has  rendered  himself  liable  to  the  mere  infliction  of  a 

8  4  On  the  diversity  of  doctrine  in  America  as  to  what  words  imputing 
the  commission  of  a  crime  are  actionable  per  se,  see  25  Cyc.  273 ;  Burdick 
on  Torts  (3d  Ed.)  352. 

0  5  The  rule  adopted  in  1809  in  Brooker  v.  Coffin  has  had  a  very  extensive 
following  in  America.  The  cases  are  grouped  by  states  in  25  Cyc.  270, 
note  34.  See  also  the  remarks  of  Mr.  Justice  Clifford  in  i'olhu-d  v.  Lyon 
(1875)  91  U.  S.  225,  230,  23  L.  Ed.  308,  and  Cooley  on  Torts  (Student's  Ed.) 
20L  On  moral  turpitude  as  an  element  in  the  tort,  see  Sipp  v.  Coleman 
(1^0,  C.  C.)  179  Fed.  997,  and  25  Cyc.  272.  note  43. 

8  6  The  statement  of  the  case  is  abridged,  and  part  of  the  argument  of 
counsel  is  omitted. 

Hepb.Tobts— 36 


562  TORTS  THROUGH  ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

fine  are  not  slanderous,  but  that  it  is  slanderous  to  say  that  he  has 
done  something  for  which  he  can  be  made  to  suffer  corporally. 

LopES,  J,  I  am  of  the  same  opinion.  I  think  it  is  enough  to  allege 
that  the  words  complained  of  impute  a  criminal  offence.  A  great 
number  of  oft'ences  which  were  dealt  with  by  indictment  twenty  years 
ago  are  now  disposed  of  summarily,  but  the  effect  cannot  be  to  alter 
the  law  with  respect  to  actions  for  slander.®^ 

Demurrer  overruled. 


KREBS  V.  OLIVER. 

(Supreme  Judicial  Court  of  Massachusetts,  1858.     12  Cray,  239.) 

Tort  for  slander,  in  accusing  the  plaintiff  of  the  crime  of  larceny,  by 
words  in  substance  as  follows :  ''Dr.  Krebs  was  imprisoned  many 
years  in  a  penitentiary  in  Germany  for  larceny."  Verdict  for  the 
plaintiff.     Tlie  defendant  alleged  exceptions.^® 

BiGELOw,  J.  We  cannot  doubt  that  the  words  alleged  in  the  dec- 
laration are  actionable.  It  is  not  necessary  that  the  language  used,  in 
order  to  be  slanderous,  should  be  so  spoken,  as,  if  true,  to  expose  the 
person  concerning  whom  it  is  uttered  to  a  criminal  prosecution.  That 
is  one  of  the  tests  by  which  to  determine  whether  it  constitutes  a  good 
cause  of  action,  but  it  is  not  the  only  one.  The  other  is  that  it  im- 
putes to  a  person  a  species  of  misconduct  to  which  the  law  attaches  a 
criminal  punishment,  and  thereby  he  is  subjected  to  obloquy  and  social 
degradation  and  disrepute.  The  imputation  of  crime  is  essential  as 
a  test  whether  the  words  used  do  amount  to  a  legal  slander;   but  it 

9  7  Compare:  Hellwig  v.  Mitchell  [1910]  1  K.  B.  609,  61.3:  (Slander  for  words 
which  imputed  that  P.  had  been  guilty  of  a  criminal  offence  punishable 
by  tine  only,  but  involving  a  liability  to  summary  arrest.  Bray,  J.,  remarks: 
"It  was  contended  that  the  words  are  capalile  of  bearing  the  meaning  al- 
leged, namely,  that  the  plaintiff  had  been  guilty  of  disorderly  conduct  and 
of  committing  breaches  of  the  peace,  and  it  was  said  that  a  person  who 
commits  a  breach  of  the  peace  may  be  arrested  either  by  a  private  individual 
or  by  a  constable.  That  is  true,  but  the  offence  is  not  punishable  by  imprison- 
ment. It  was  contended,  however,  that  the  rule  does  not  require  that  the 
criminal  offence  should  be  one  punisliable  by  imprisonment,  and  that  it  is 
sullicient  if  the  offence  be  one  wliich  renders  the  oft'eiider  liable  to  summary 
arrest  and  detention.  This  is  not  a  question  of  principle,  but  of  judge-made 
law,  and  therefore  I  must  look  at  the  authorities  to  see  how  far  they  support 
this  contention.  *  *  *  i  cannot  find  in  the  books  a  trace  of  authority 
for  saj'ing  that  words  imputing  that  the  plaintiff  has  done  an  act  for  wliich 
lie  may  be  arrested,  but  which  is  only  punishable  by  a  line,  are  actionable 
without  proof  of  special  damage,  or  that  a  mere  liatiility  to  arrest  is  .suffi 
ciont  to  make  the  crime  one  for  which  the  offender  can  be  said  to  suffer 
corporally.  Strictly  speaking,  it  is  incorrect  to  say  that  a  person  who  com- 
mits a  breach  of  the  peace,  can  be  made  to  suffer  corporally.  The  ari-est 
in  that  case  is  not  a  punishment;  it  is  merely  a  method  of  preventing  the 
continuing  of  the  offence.")  And  see  18  Ilalsbury,  Laws  of  England,  flSsT, 
notes  (m)  and  (n). 

»«  Only  so  umch  of  the  case  is  given  as  relates  to  the  one  point.  The  state- 
ment is  slightly  abx-idged,  and  the  ai'gument  of  counsel  is  omitted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  5G3 

does  not  take  away  their  actionable  qualities,  that  they  are  so  spoken 
as  to  indicate  that  the  party  has  suffered  the  penalty  of  law  or  is  no 
longer  exposed  to  danger  of  punishment.  In  Van  Ankin  v.  Westfall, 
14  Johns.  (N.  Y.)  234,  the  court  say :  "The  right  of  the  plaintiff  to  sus- 
tain the  action  does  not  depend  upon  the  question  whether  he  was  lia- 
ble to  be  prosecuted  and  punished  for  the  crime  charged  against  him." 
And  in  a  more  recent  case,  where  the  words  spoken  were,  "He  is  a 
returned  convict,"  it  was  held  that  they  were  actionable.  Lord  Denman 
saying:  "They  import,  to  be  sure,  that  the  punishment  has  been  suf- 
fered, but  the  obloquy  remains."  *  *  *  99 
Exceptions  overruled. ^°° 

99  Referring  to  Fowler  v.  Dowdney  (1838)  2  M.  &  Rob.  119;  Carpenter 
V.  Tarrant  (1736)  Cas.  temp.  Hardwicke,  339;  Gaiuford  v.  Tuke  (1619)  Cro. 
Jac.  536 ;  Boston  v.  Tatam  (1621)  Cro.  Jac.  623 ;  Cuddiugton  v.  Wilkins, 
Hob.  81;  Smith  v.  Stewart  (1847)  5  Pa.  372;  Shipp  v.  McCraw  (1S17)  7 
N.  C.  463,  9  Am.  Dec.  611. 

100  Compare:  Wiley  v.  Campbell  (1827),  5  T.  B.  Mon.  (Ky.)  396:  (Slander. 
The  words  laid  in  the  declaration  were :  "You  have  been  cropi>ed  for  felony.) 
Smith  V.  Stewart  (1847)  5  Pa.  372 :  (Slander  for  words  charging  the  plaintiff 
with  having  been  a  convict  in  another  state.)  Stewart  v.  Ho^^■e  (1855)  17 
111.  71:  (Slander.  The  words  were:  "She  [the  plaintiff]  stole  $90;  she  is 
a  smart  little  thief."  It  appeared  that  the  plaintiff  was  under  ten  years 
of  age ;  and  by  an  Illinois  statute  then  in  force,  no  child  under  ten  years 
could  be  punished  for  larceny.)  Klumph  v.  Dunn  (1871)  66  Pa.  141,  5  Am. 
Rep.  355:  (Slander.  The  words,  spoken  in  Pennsylvania,  charged  the 
plaintiff  with  adultery  in  Georgia.) 

"Nothing  seems  to  be  better  settled  than  that  liability  to  prosecution  or 
punishment  is  not  the  criterion.  Both  ancient  and  modern  cases  agree  in  this. 
*  *  *  What  then  is  the  criterion?  ]Mr.  Starkie,  after  an  elaborate  reWew 
of  the  cases,  comes  to  tbe  conclusion  that,  as  it  is  necessary  to  have  some 
clear  and  certain  rule  by  which  the  line  of  demarcation  between  actionable 
and  non-actionable  words  can  be  drawn,  none  could  be  adopted  more  con- 
venient than  that  which  refers  the  question  to  the  criminal  law,  and  confirms 
the  action  to  imputations  of  offences  of  moral  turpitude,  punisbable  in  the 
temporal  courts.  1  Sbirkie  on  Slander,  27.  But  to  what  law  are  the  courts 
to  refer  to  ascertain  whether  the  offence  charged  is  of  this  character?  Upon 
every  principle  of  reason  and  ]wlioy  the  answer  seems  to  be  the  law  of  the 
countiy  where  the  words  are  spoken.  That  law  is  the  exponent  of  the 
moral  sense  of  that  community- — of  the  estimation  in  which  they  hold  offences 
against  the  moral  law,  and  words  which  accuse  a  man  of  any  crime,  con- 
demned and  subjected  to  infamous  punishment  by  that  law,  expose  him 
In  that  community  to  obloquy  and  contempt.  The  moral  character  of  the 
act  canot  be  affected  by  the  place  where  it  is  committed.  What  matters 
it  to  those  to  whom  the  words  are  addressed,  or  in  whose  hearing  they  are 
spoken,  that  the  crime  is  charged  to  have  been  committed  in  a  state  or 
country  where  such  actions  are  not  subject  to  punishment?  Even  if  they 
are  to  be  presumed  to  know  that  the  act  was  not  a  crime  punishable  by 
the  law  of  the  country  where  it  was  alleged  to  have  been  committed,  would 
it  any  the  less  injure  the  moral  character  and  standing  of  the  party  charged? 
Is  it  possible  that  a  man  living  in  Pennsylvania  can  be  accused  of  having 
committed  the  crime  inter  Christianos  non  nominandum  upon  some  unin- 
habited coast  or  island  where  there  is  no  government  and  no  law,  or  among 
some  barbarous  people  where  such  practices  may  be,  as  they  have  been, 
tolerated?  Is  such  a  plaintiff  to  be  turned  out  of  court  unless  he  can  prove 
some  special  damage?  This  may  be  an  extreme  case,  but  nevertheless  it 
tests  the  principle.  If  the  criminal  code  laid  its  heavy  hand  upon  such 
calumniators,  tliere  might  be  some  good  reason  for  requiring  special  damage 
to  be  shown  in  all  actions  of  slander,  but  we  know  that  it  does  not,  and 


564  TORTS   THROUGH  ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

(ii)  Words  Imputing  Disease 
TAYLOR  V.  PERKINS. 

(Court  of  King's   Beucli,   1607.     Cro.   Jac.   144,   79  Eeprint,  126.) 

Action  for  these  words :  "Thou  art  a  leprous  knave."  It  was  de- 
murred upon  the  declaration,  because  the  defendant  conceived  an  ac- 
tion lay  not  for  these  words.  But  upon  the  first  motion  all  the  Court 
held,  that  the  action  well  lay ;  for  they  are  as  well  actionable  as  if  he 
had  said,  "Thou  wast  laid  of  the  pox."  Wherefore,  without  argu- 
ment, it  was  adjudged  for  the  plaintiff.^ 


COUNT  JOANNES  v.  BURT. 

(Supreme  Judicial  Court  of  Massacliusetts,  1863.     6  Allen,  236,  83  Am.  Dec. 

625.) 

Tort  brought  in  the  name  of  "George,  the  Count  Joannes,"  seeking 
to  recover  damages  for  slander.  The  defendant  demurred  to  the  dec- 
laration as  not  setting  forth  any  legal  cause  of  action. 

Hoar,  J,  *  *  *  f  |-,g  declaration  is  in  tort  for  slander,  by  orally 
imputing  insanity  to  the  plaintiff.  We  are  aware  of  no  authority  for 
maintaining  such  an  action,  without  the  averment  of  special  damage. 
The  authorities  upon  which  the  plaintiff  relies  are  both  cases  of  libel. 
The  King  v.  Harvey,  2  B.  &  C.  257 ;  Southwick  v.  Stevens,  10  Johns. 
(N.  Y.)  443.  An  action  for  oral  slander,  in  charging  the  plaintiff'  with 
disease,  has  been  confined  to  the  imputation  of  such  loathsome  and 
infectious  maladies  as  would  make  him  an  object  of  disgust  and  aver- 

unless  the  lash  is  placed  in  the  hands  of  tlie  injured  party  they  must  sro 
'unwhipped  of  justice.' "  Per  Sharswood,  J.,  in  Klumph  v.  Dunn  (1870) 
66  Pa.  141,  145,  5  Am.  Rep.  3-55. 

1  Compare  Simpson  v.  Press  Pub.  Co.  (190O)  33  Misc.  Rep.  228,  67  N.  Y. 
Supp.  401,  a  case  of  liliel  in  which  Gaynor,  J.,  remarked:  "The  defendant 
contends  that  it  is  now  scientifically  established  that  leprosy  is  not  in- 
fectious or  oontasious,  l)ut  only  hereditary,  jind  that  therefore  it  is  no  lonuer 
within  the  definition  of  slander.  When  an  indictable  crime  ceases  to  be  such 
it  is  no  loniier  slander  to  charge  one  with  it  When  the  penal  statutes 
against  Catholics  and  witchcraft  existed  in  England  it  was  slander  to  say 
of  one  that  he  was  a  Papist,  or  went  to  mass,  or  tliat  he  was  a  witch,  or 
used  witchcraft.  Walden  v.  :MitcheIl  (l(i!»0)  2  Vent.  265;  Smith  v.  Flynt 
(1G12)  Cro.  Jac.  300;  Rogers  v.  Gravat  (1.597)  Cro.  Eliz.  571;  Dacy  v. 
Clinch  (1G62)  1  Sid.  53.  But  I  do  not  think  it  is  a  parallel  case  if  the 
progress  of  science  has  revealed  that  lepi-osy  was  erroneously  classed  as  in- 
fectious or  contagious.  It  remains  a  term  of  slander  imtil  the  law  is  changed. 
To  say  of  one  that  he  went  to  mass  or  practiced  witchcraft  might  still 
be  slander  if  the  law  liad  not  been  changed,  even  though  the  progress  of  en- 
lightenment had  revealed  to  most  people  tliat  to  hear  mass  was  not  bad, 
or  that  tliere  was  no  such  thing  as  a  witch.  Besitles,  the  bane  in  the  charge 
of  leprosy  which  made  the  courts  classify  it  as  slanderous  was  it.s  tendency 
to  cause  one  to  be  shunned  and  excluded  from  society,  and  that  still  exists." 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  565 

sion,  and  banish  him  from  human  society.     We  believe  the  only  ex- 
amples which  adjudged  cases  furnish  are  of  the  plague,  leprosy,  and 
venereal  disorders.     *     *     *  2 
Appeal  dismissed. 


SMITH'S  CASE. 

(Court  of  Common  Pleas,  1604.     Noy,  151,  74  Reprint,  1112.) 

An  action  upon  the  case  for  words,  "Thou  hast  had  the  French  pox." 
And  upon  issue  not  guilty,  it  is  found  for  the  plaintiff.  It  was  now 
moved  in  arrest  of  judgment.  Because  the  words  are  in  the  preter- 
perfect  tense,  and  the  party  it  may  be  now  is  well,  and  sound,  and  no 
scandal.  To  which  all  the  Court  agreed,  and  judgment  arrested. 
Cooke,  Chief  Justice,  took  this  dift'erence  of  such  a  slander,  de  tem- 
pore prseterito.  when  it  touches  the  mind,  and  when  it  touches  the 
body.  If  it  be  a  scandal  to  the  mind,  and  the  affections,  as  perjury, 
felony,  &c.  there  the  mind  that  remains  is  slander.  But  if  it  be  of  an 
accidental  infirmity,  or  disease  of  the  body,  otherwise  it  is.  For  none 
now  will  forbear  his  company,  although  he  had  the  plague  in  times 
past.^ 

2  Parts  of  the  opinion  are  omitted. 

See  Bac.  Abr.  "Slander,"  B,  2:  "Man  being  formed  for  society,  and  standing 
in  almost  constant  need  of  the  advice,  comfort,  and  assistance  of  his  fellow 
creatures,  it  is  highly  reasonable  that  any  words,  which  import  the  charge 
of  having  a  contagious  distemper,  should  be  in  themselves  actionable ;  be- 
cause all  prudent  i")ersons  will  avoid  the  company  of  a  person  having  such 
distemper.  It  makes  no  difference,  whether  the  distemper  be  owing  to  the 
visitation  of  God,  to  accident,  or  to  the  indiscretion  of  the  party  therewith 
afflict.ed,  for,  in  every  one  of  the  cases,  the  being  avoided,  from  whence  the 
damage  arises,  is  the  consequence."  But  the  only  instances  cited  by  Bacon 
are  leprosy  and  venereal  disease. 

Compare  IS  Halsbury's  Laws  of  England,  62.5  (1911):  "The  imputation  of 
a  present  infectious  or  contagious  disease  is  not  defamatory,  if  the  imjiuta- 
tion  is  not  calculated  to  bring  the  person  to  whom  it  is  imputed  into  hatred, 
contempt,  or  ridicule,  although  the  imputation  tends  to  exclude  him  from 
society.  It  does  not  lower  the  reputation  of  any  one  to  impute  that  he  is 
suffering  from  scarlet  fever  or  influenza  ;  it  is  otherwise  to  say  that  he  has 
and  (probably)  to  say  that  he  has  had.  a  verminous  disease." 

See,  also,  McDonald  v.  Nugent  a904)  122  Iowa,  651,  98  N.  W.  .506:  P. 
charged  D.  with  saying  of  him  that  he  (P.)  had  a  venereal  disease.  The  trial 
court  instructed  the  jury  that  a  charge  that  the  plaintiff  was  affected  witli 
a  venereal  disease  was  not  slanderous  per  se.  Held,  that  the  charge  was 
erroneous.  "From  an  early  date  in  the  development  of  the  common  law  of 
slander  and  libel,"  said  Weaver,  J.,  delivering  the  opinion,  "a  charge  made  by 
one  person  that  another  is  infected  with  a  venereal  disease  has  been  lield 
to  constitute  one  of  the  few  exceptions  to  the  general  rule  applicable  to  oral 
slander — that,  to  be  actionable  per  se,  the  ^^"ords  must  impute  some  crime 
to  the  person  defamed." 

3  Accord  :  Taylor  v.  Hall  (174.3)  2  Str.  11S9,  Reprint;  Carslake  v.  Maple- 
doram  (17S8)  2  T.  R.  474,  475.  100  litT-rint,  255,  256,  where  Ashhurst.  J., 
remarks:  "Charging  a  person  with  having  committed  a  crime  is  actionable, 
because  tlie  person  charged  may  still  be  punished  ;  it  affects  him  in  his  lib- 
erty.    But  charging  another  with  having  had  a  contagious  disorder  is  not 


5GG  TOKTS  THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

(Hi)  Words  Disparaging  in  Trade,  Profession,  or  Office 
STANLEY  V.  OSBASTON. 

(Court  of  King's  Bench,  1592.    Cro.  Eliz.  2G8,  78  Reprint,  534.) 

Action  for  these  words :  "He  was  a  bankrupt ;"  and  alleged  he  was 
a  shoemaker,  and  used  buying  and  selling  of  leather.  And  it  was  ad- 
judged that  the  action  did  lie,  although  the  plaintiff  was  not  a  mer- 
chant, but  he  got  his  living  by  buying  and  selling. 


COLLIS  V.  MALIN. 

(Court  of  King's  Bench,   1633.     Cro.  Car.  282,   79  Reprint,  847.) 

Action  for  words.  Whereas  the  plaintiff  had  used  per  magnum  tcm- 
pus  the  trade  of  buying  and  selling  of  cattle,  and  divers  times  bought 
upon  his  credit ;  that  the  defendant  said  of  him,  "Thou  art  a  bank- 
rupt." The  defendant  pleaded  not  guilty ;  and  found  against  him. 
And  because  he  did  not  say,  that  he  used  the  trade  at  the  time  of 
speaking  the  words,  but  per  magnum  tempus  usus  fuit,  which  may  be 
divers  years  before,  and  the  action  lies  not,  unless  at  the  time  of  speak- 
ing the  words  he  used  the  trade  of  buying  and  selling  of  cattle,  there- 
fore it  was  adjudged  for  the  defendant.* 


DAY  V.  BULLER. 

(Court   of   Common    Pleas,    1770.     3    Wils.   59,    95    Reprint,   932.) 

Action  for  slandering  the  plaintiff  in  his  profession  of  an  attorney, 
by  saying  of  him  these  words :  "What,  does  he  pretend  to  be  a  law- 
yer? He  is  no  more  a  lawyer  than  the  devil!"  Verdict  for  the  plain- 
tiff. 

And  now  Serjeant  Davy  moved  an  arrest  of  judgment;  alledging, 
that  it  was  not  actionable  to  say  of  an  attorney  he  was  no  lawyer,  any 
more  than  to  say  of  an  apothecary  that  he  was  no  physician ;  that  it 
was  no  more  necessary  for  an  attorney  to  be  a  lawyer,  than  for  an 
apothecary  to  be  a  physician. 

actionable ;  for  unless  the  words  impute  a  continuance  of  the  disorder  at 
the  time  of  speaking  them,  the  gist  of  the  action  fails ;  for  such  a  charge 
cannot  produce  the  effect  which  makes  it  the  subject  of  an  action,  namely, 
his  being  avoided  by  society.  Therefore,  unless  some  special  damage  be  al- 
leged in  consequence  of  that  kind  of  charge,  the  words  are  not  actionable." 
Nichols  V.  Guy  (IS.IO)  2  Ind.  82:  (The  declaration,  in  two  counts,  laid  the 
words,  first,  as  "Silas  Guy  had  the  clap;"  secondly,  "Silas  Guy  has  the 
clap.") 

■»  Compare  Allen  v.  Ilillman  (1831)  12  Pick.  (Mass.)  101,  where  the  words 
imputed  misconduct  in  an  office  which  had  ceased  to  exist. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  567 

But  PKR  Curiam,  to  say  of  an  attorney  he  is  no  lawyer,  is  a  great 
reflection  upon  him,  and  means  that  he  does  not  understand  his  busi- 
ness ;  besides,  (they  said)  an  attorney  must  have  a  competent  knowl- 
edge of  the  law,  or  he  cannot  draw  a  common  writ  or  declaration. 

And  per  YaTES  Justice,  the  words  are  as  great  a  slander  upon  the 
plaintiff,  and  as  injurious  to  him,  as  any  words  possibly  can  be. 

So  the  Serjeant  took  nothing  by  his  motion,  and  the  plaintiff  had 
judgment.' 


DOYLEY  V.  ROBERTS. 

(Court  of  Common  Pleas,  1S37.    3  Bing.  N.  C.  835,  132  Reprint,  632, 

43   R.  R.  810.) 

Slander.  The  plaintiff  declared  that  he  was  an  attorney,  and  that 
the  defendant  had  falsely  and  maliciously  spoken  and  published  of  the 
plaintiff,  and  of  and  concerning  him  in  the  way  of  his  business  or  pro- 
fession, that  "he  had  defrauded  his  creditors,  and  had  been  horsewhip- 
ped off  the  course  at  Doncaster."  Special  damage,  that  one  H.  Gyde, 
had,  in  consequence,  declined  to  employ  the  plaintiff. 

At  the  trial  before  Parke,  B.,  last  Worcester  Assizes,  the  words 

were  proved  to  have  been  spoken  by  the  defendant,  of  the  plaintiff, 

who  was  more  engaged  on  the  turf  than  in  law,  and  had  had  creditors 

in  sporting  transactions ;    and  the  jury  found,  in  answer  to  questions 

put  to  them  by  the  learned  Baron : 

That  the  words  were  spoken  of  and  concerning  the  plaintiff ;  that  they 
were  not  spoken  of  him  in  his  business  of  an  attorney;  thati  they  had  a 
tendency  to  injure  him  morally  and  professionally;  but,  tliat  H.  Gyde  did 
not  in  consequence  of  them  decline  to  employ  the  plaintiff. 

A  verdict  was  given  for  the  plaintiff,  with  £50.  damages ;  but  the 
defendant  had  leave  to  move  to  enter  a  nonsuit  instead,  if  the  Court 
should  be  of  opinion  that  the  words  were  not  actionable  unless  spoken 
of  the  plaintiff  in  the  way  of  his  business  as  an  attorney.® 

TixDAL,  C.  J.  *  *  *  The  case  will  stand  thus :  The  plaintiff' 
is  an  attorney,  and  carries  on  business  as  such,  but  appears  to  have  had 
creditors  in  certain  sporting  transactions;    the  defendant  says  of  him 

6  Compare  Oakley  v.  Farrington  (1799)  1  Johns.  Cas.  (N.  Y.)  129,  1  Am. 
Dec.  107 :  (D.  said  of  P.,  a  justice  of  the  peace,  who  was  usually  called 
"Squire  Oakley,"  to  distinguish  him  from  others  of  the  same  name:  "Squire 
Oakley  is  a  damned  rogue.") 

Spears  v.  McCoy  (1913)  155  Ky.  1,  159  S.  W.  610,  49  L.  R.  A.  (X.  S.)  1033: 
(D.  said  of  P.,  a  public  school  teacher:  "I  do  not  want  .such  a  teacher  because 
he  is  all  the  time  courting  the  girls,  and  did  court  them  hist  year  in  the 
school.  He  would  dismiss  the  boys  last  year  in  school  and  keep  the  girls 
in  and  give  them  candy  and  court  them.") 

6  The  argument  of  counsel,  part  of  the  opinion  of  Tindal,  C.  .T.,  and  the 
opinions  of  I'ark,  Vaughau,  and  Collnian,  JJ,,  concurring  with  the  Chief 
Justice,  are  omitted. 


568  TORTS   THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

generally,  that  he  has  defrauded  his  creditors,  and  the  jury  find  that 
these  words  were  not  spoken  of  him  in  his  business  of  attorney.  Xow 
in  Comyns'  Digest,  Action  on  the  Case  for  Defamation,  it  is  laid  down, 

D,  27,  that  "words,  not  actionable  in  themselves,  are  not  actionable 
when  spoken  of  one  in  an  ofifice,  profession,  or  trade,  unless  they  touch 
him  in  his  office ;"  and  these  words,  though  spoken  of  an  attorney, 
do  not  touch  him  in  his  profession,  any  more  than  they  would  touch  a 
person  in  any  other  trade  or  profession.  It  is  found,  indeed,  that  the 
words  have  a  tendency  to  injure  him  morally  and  professionally;  and 
that  is  true;  but  it  applies  equally  to  all  other  professions,  for  a  per- 
son cannot  say  any  thing  disparagingly  of  another,  that  has  not  that 
tendency :    upon  that  subject  the  authority  of  Ayre  v.  Craven,  2  A.  & 

E.  2,  is  conclusive ;  and  a  rule  for  arresting  judgment  in  this  case  must 
therefore  be  made  absolute. 

Rule  absolute. 


FOULGER  V.  NEWCOMB. 

(Court  of  Exchequer,  1S67.     L.  R.  2  Exch.  327.) 

Tlie  declaration  was  in  two  counts,  to  both  of  which  the  defendant 
demurred.    The  first  count  alleged : 

That  the  plaintiff  was  a  warrener,  gamekeeper,  horse-slaughterer,  and 
grease  manufacturer;  that  he  carried  on  these  businesses  in  the  neiglihour- 
hood  of  Ridler's  Wood,  and  that  he  was  accustomed  to  be  employed  iii  his 
business  of  gamekeeper  by  occupiers  of  land  in  that  neighbourhood ;  that 
many  of  the  persons  who  so  employed  him  were  accustomed  to  hunt  foxes, 
and  it  was  considered  by  them  a  very  improper  act  to  kill  or  destroy  foxes 
in  the  neighbourhood,  and  a  person  who  should  be  guilty  of  so  killing  and 
destroying  foxes  would  be  looked  upon  by  them  with  disfavour  and  suspicion, 
and  would  not  be  employed  by  them,  and  the  plaintiff  was  always  employed 
as  such  warrener  and  gamekeeper  upon  the  terms  and  understanding  that 
he  should  not  nor  would  kill  foxes  in  the  neighbourhood ;  that  tlie  plaintiff 
had  been  employed  as  such  warrener  and  gamekeeper  upon  the  terms 
aforesaid  by  one  of  the  said  occupiers,  and  had  by  reason  of  such  employment 
to  perform  his  calling  in  Ridler's  Wood,  but  not  to  kill  foxes  there,  and  it 
would  have  been  a  gross  breach  of  his  duties  as  such  warrener  and  game- 
keeper, and  in  his  said  employment,  had  he  killed  foxes  in  the  wood,  of  all 
which  premises  the  defendant  at  the  time,  &c.  had  notice;  yet  the  defendant 
falsely  and  maliciously  sj>oke  and  published  of  the  plaintiff,  and  of  him 
as  such  warrener  and  gamekeeper,  and  of  his  conduct  whilst  he  was  so 
employed,  the  words  following:  "It  is  no  wonder  we  did  not  find  any  foxes 
in  Ridler's  Wood  because  Foulger  trapped  three  foxes.  I  can  prove  it  my- 
self;" meaning  thereby  that  the  plaintiff',  whilst  he  was  so  employed  as 
aforesaid,  in  breach  of  his  duty,  killed  and  destroyed  three  foxes  in  tlie 
said  wootl ;  whereby  the  plaintiff  has  been  greatly  injured  in  his  credit, 
reputation,  and  circumstances,  and  in  his  said  occupations  and  businesses 
of  a  gamekeeper,  warrener,  horse-slaughterer,  and  grease  manufacturer. 

Special  damage  was  alleged  from  the  refusal  of  occupiers  of  the 
land  to  employ  the  plaintiff  in  the  way  of  his  occupations. 

CuANNELL,  B.  These  are  demurrers  to  a  declaration  for  slander 
containing  two  counts.    The  words  complained  of  charge  the  plaintiff 


Ch.  2)  ABSOLUTE    TORTS   OTHER   THAN   TRESPASSES  569 

with  trapping  foxes.  To  say  simply  of  a  man  that  he  trapped  foxes 
would  not,  we  think,  be  actionable.  There  are,  however,  various  cir- 
cumstances set  out  in  this  declaration,  which  it  is  asserted  show  that 
there  is  a  good  cause  of  action. 

The  form  of  the  declaration,  and  the  somewhat  peculiar  circum- 
stances of  the  case,  gave  rise  to  some  little  confusion  on  the  argument 
of  the  case  as  to  the  principle  on  which  an  action  for  defamation  is 
maintainable ;  and  the  apparent  novelty  of  some  of  the  points  raised 
induced  us  to  reserve  our  judgment.  One  essential  ingredient  of  a 
good  cause  of  action  for  defamation  is  damage.  The  rules  as  to  the 
damage  necessary  to  constitute  a  good  cause  of  action,  and  as  to  the 
cases  in  which  such  damage  is  implied  by  law,  are  somewhat  arbitrary ; 
but  the  more  important  principles  of  them  are  now  clearly  defined. 
The  two  rules  which  we  have  to  consider  and  apply  to  the  facts  of  the 
present  case  are,  first,  that  from  spoken  words  which  impute  miscon- 
duct in  an  office,  trade,  profession,  or  business,  the  law  implies  action- 
able damage ;  secondly,  that  where  words  are  spoken  which  are  of  a 
defamatory  nature  yet  such  that  the  law  will  not  imply  damage  from 
them,  still  they  are  actionable  if  they  are  shown  actually  to  cause  (as 
their  legal  and  natural  consequence)  damage  of  a  character  which  the 
law  will  recognise.  In  order  that  the  rule  as  to  slander  of  a  man  in 
his  business  may  apply,  it  is  necessary  that  the  words  (being  capable 
of  having  reference  to  the  business)  should  in  fact  be  spoken  of  him  in 
respect  of  his  business.  This  is  alleged  in  the  present  case,  and  for  the 
present  purpose  the  allegation  must  be  taken  to  be  true.  Next,  it  must 
appear  that  they  tend  to  prejudice  him  in  that  business.  This,  as  well 
as  whether  the  words  are  capable  of  having  reference  to  the  business, 
must  of  course  depend  upon  the  nature  of  the  business. 

Now,  we  think  that  the  rule  as  to  words  spoken  of  a  man  in  his 
office  or  trade  is  not  necessarily  confined  to  offices  and  trades,  of  the 
nature  and  duties  of  which  the  Court  can  take  judicial  notice.  The 
only  limitation  of  which  we  are  aware  is,  that  it  does  not  apply  to  ille- 
gal callings ;  as,  for  instance,  to  the  keeping  open  rooms  for  pugilistic 
encounters,  as  in  Hunt  v.  Bell,  1  Bing.  1 ;  see  also  Morris  v.  Lang- 
dale,  2  B.  &  P.  284,  a  case  relating  to  stock-jobbers,  in  which  the  deci- 
sion proceeded  on  the  ground  that  stock-jobbers  were  at  that  time  of 
two  classes,  one  honest,  the  other  practising  what  the  legislature  by 
the  statute  then  in  force  called  "the  infamous  practice  of  stock-job- 
bing ;"  and  that  there  was  not  in  the  declaration  any  averment  of 
which  business  the  plaintiff  carried  on,  or  whether  the  contracts  he 
was  unable,  or  said  to  be  unable,  to  carry  out,  were  legal  or  illegal  con- 
tracts. On  the  same  principle,  that  words  having  a  particular  meaning 
in  a  particular  trade,  or  a  particular  locality,  may  be  explained  by 
averment  and  innuendo  in  the  declaration,  we  think  that  the  nature 
and  duties  of  the  trade  or  business  may  be  explained  by  averment  in 
the  declaration,  so  as  to  show  how  the  words  spoken  afifect  the  busi- 
ness. 


570  TOKTS  THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

In  the  present  case  we  could  not,  we  think,  take  judicial  notice  that 
it  could  be  the  duty  of  a  gamekeeper  not  to  trap  foxes,  or  that  it  would 
be  a  disparaging-  thing  to  say  of  him  that  he  trapped  foxes.  It  is, 
however,  alleged,  not  only  that  the  plaintifif  was  a  gamekeeper,  but  that 
it  was  his  duty  as  such  gamekeeper  not  to  kill  foxes ;  that  he  was  en> 
ployed  on  the  terms  of  his  not  doing  so;  and  that  the  defendant  knew 
all  this. 

So  far,  then,  it  is  clear  that,  this  being  the  true  nature  of  the  plain- 
tiff's business  and  employment,  to  hear  that  he  trapped  foxes  would 
prejudice  him  with  respect  to  his  business,  at  all  events,  with  all  per- 
sons who  knew  the  real  nature  of  his  employment.  It  is  not,  however, 
quite  clear  that,  wdiere  the  nature  of  the  business  would  not  be  gen- 
erally understood,  it  might  not  be  necessary  to  show  that  the  hearers 
were  aware  of  the  facts  necessary  to  give  the  words  their  defamatory 
sense.  Here  the  declaration  does  not  appear  to  contain  a  distinct  alle- 
gation that  the  hearers  knew  that  the  plaintiff's  duty  was  not  to  kill 
foxes.  It  does  set  forth  something  as  to  what  the  people  of  the  neigh- 
bourhood knew  and  thought,  but  it  does  not  state  that  the  slander  was 
uttered  to  people  of  the  neighbourhood.  It  does,  however,  contain  an 
innuendo  that  the  words  imputed  a  breach  of  duty.  We  think  that  this 
may  be  taken  to  be  equivalent  to  an  allegation  that  the  words  would 
convey  that  meaning  to  the  hearers,  and,  taking  it  with  the  rest  of  the 
declaration,  we  think  it  is  sufficient  to  make  the  declaration  good  with- 
out special  damage. 

In  Ayre  v.  Craven,  the  physician's  case,  which  was  the  principal  au- 
thority relied  on  in  support  of  the  demurrers,  the  decision  proceeded 
on  the  ground  that  the  declaration  did  not  set  forth  in  what  manner 
the  misconduct  was  connected  with  the  plaintiff's  profession. '^  Here 
the  declaration  does  set  forth  that  it  was  the  duty  of  the  plaintiff",  in 
his  employment,  not  to  do  that  which  the  words  complained  of  charged 
him  with  doing.  Therefore  the  objection  which  was  successful  there 
does  not  arise  here.    On  the  whole,  therefore,  we  think  that  the  pres- 

7  In  Ayre  v.  Craven  (lS:5-4)  2  A.  &  E.  2,  111  Reprint,  1,  41  R.  R.  359,  a  dec- 
laration for  slander  alleged  that  the  defendant  used  words  imputing  adultery 
to  the  plaintiff,  a  phy.sieian,  and  the  words  were  laid  to  have  been  spoken 
"of  him  in  his  profession;"  no  special  damage  was  laid,  and  after  verdict 
for  the  plaintiff,  judgment  was  arrested,  the  court  holding  that  such  words, 
merely  laid  to  be  spolcen  of  a  physician,  were  not  actionable  without  special 
damage,  and  that  if  they  were  so  spoken  as  to  convey  an  imputation  upon 
his  conduct  in  his  profession,  the  declaration  ought  to  have  shewn  how  the 
speaker  connected  the  imputation  with  tlie  pi-ofessional  conduct.  Lord 
Denman,  C.  J.,  remarked:  "Some  of  the  cases  have  proceeded  to  a  length 
which  can  hardly  fail  to  e.xcite  surprise;  a  clergyman  having  failed  to 
obtain  redress  for  the  imputation  of  adultery,  Parret  v.  Carpenter,  Noy, 
64;  S.  C.  (1597)  Cro.  Miz.  502,  and  a  school  mistress  having  been  declared 
incompetent  to  maintjiin  an  action  for  a  charge  of  prostitution,  Wharton 
v.  r.rook  (10()9)  1  Ventr.  21.  Such  words  were  undeniably  calculated  to 
injure  the  success  of  the  plaintiffs  in  their  several  professions ;  but  not 
lieing  applicable  to  their  conduct  therein,  no  action  lay." 

See  the  connnent  on  Ayre  v.  Craven,  by  C.  Allen,  J.,  in  Morasse  v.  Brochu 
(1.S90)  151  Mass.  5G7,  25  N.  E.  74,  S  L.  R.  A.  524,  21  Am.  St.  Kep.  474. 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN   TRESPASSES  571 

ent  declaration  shows  a  good  cause  of  action,  independently  of  special 
damage. 

It  is,  however,  clearly  shown  on  the  declaration  that  the  words  are 
capable  of  bearing  a  defamatory  sense,  viz.,  the  imputing  a  breach  of 
duty  to  the  plaintiff,  and  it  is  alleged  that  the  defendant,  knowing  the 
circumstances  that  made  the  words  defamatory,  falsely  and  malicious- 
ly used  them  in  the  defamatory  sense.  That  being  so,  even  if  the  law 
will  not  imply  damage  under  the  circumstances,  still  the  words  are 
actionable,  and  the  defendant  is  responsible  if  they  cause,  as  their  le- 
gal and  natural  consequence,  actual  damage.  Here  actual  pecuniary 
damage  in  the  plaintiff's  business  or  employment  generally  is  alleged, 
and  we  think  that  this  allegation  at  all  events  makes  the  declaration 
good.  Of  course  if  the  plaintiff  should  only  prove  damage  in  the  horse 
slaughtering  or  grease  manufacturing  departments  of  his  trade,  that 
would  not  help  his  case ;  but,  as  it  is  alleged  in  his  business  as  a 
whole,  we  must  take  it  that  he  means  to  prove  damage  in  the  other 
branch  of  his  business,  in  which  case  it  may  well  be  the  legal  and  nat- 
ural consequence  of  the  words. 

There  is  a  second  count  alleging  that  the  words  imputed  a  trespass 
as  well  as  a  breach  of  duty;  this  does  not  appear  to  differ  substan- 
tially from  the  other. 


MILLER  v.  DAVID. 

(Court  of  Common  Pleas,   1S74.     L.  R.  9  C.  P.   IIS.) 

The  declaration,  framed  in  several  counts,  alleged  that  the  plaintiff 
was  a  working  stone  mason  residing  at  Llanelly  and  earning  his  living 
as  such  in  Llanelly  and  its  neighborhood,  and  that  the  defendant  false- 
ly and  maliciously  spoke  and  published  of  him  the  words  following: 

"He  was  the  ringleader  of  the  uine-hour  system."  "lie  has  ruined  the 
town  by  bringing  aljout  the  nine-hour  system,  and  he  has  stopped  several 
good  jobs  from  being  carried  out,  by  being  the  ringleader  of  the  system 
at  Llanelly" 

— w^hereby  the  plaintiff  was  prevented  from  obtaining  employment  in 
his  trade  at  Llanelly. 

Demurrer,  on  the  ground  that  the  words  were  not  in  themselves  de- 
famatory, and  that  special  damage  consequent  thereon,  therefore,  gave 
no  action.     Joinder  in  demurrer. 

Bray,  in  support  of  the  demurrer.  *  *  *  That  the  words  v/ere 
spoken  of  the  plaintiff  in  the  way  of  his  trade  of  a  mason,  is  matter 
of  law  to  be  inferred  from  the  circumstances.  (Lord  Coleridge,  C. 
J.  That  might  and  ought  to  have  been  averred,  but  it  is  not.)  Nobody 
can  doubt  that  the  word  "ringleader"  is  one  which  is  capable  of  being 
used  in  a  defamatory  and  injurious  sense:  and  whether  or  not  it  is 
so  used  is  a  question  for  a  jury,  not  for  the  Court.    Jenner  v.  A'iieck- 


572  TORTS  THROUGH  ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

ett,  Law  Rep.  7  Q.  B.  11.  (De;nman,  J.  In  that  case  there  was  an 
innuendo  giving  the  words  a  defamatory  sense.)  * 

Cur.  adv.  vult. 

Lord  ColeivIdge:,  C.  J.  In  this  case  time  was  taken  to  consider  our 
judgment,  from  the  wish  entertained  by  at  least  one  member  of  the 
Court  to  hold,  if  there  were  authority  for  the  proposition,  that  a  state- 
ment false  and  malicious  made  by  one  person  in  regard  to  another 
whereby  that  other  might  probably,  under  some  circumstances,  and  at 
the  hands  of  some  persons,  suffer  damage,  would,  if  the  damage  re- 
sulted in  fact,  support  an  action  for  defamation.  No  proposition  less 
wide  in  its  terms  than  this  would  support  the  present  declaration ;  for 
to  call  a  man  "the  ringleader  of  the  nine-hours  system,"  and  to  say 
of  him  that  he  "had  ruined  a  place  by  bringing  about  that  system," 
could  not  under  many  circumstances  and  at  the  hands  of  many  people 
do  the  subject  of  such  statements  any  damage  at  all.  But  we  are  un- 
able to  find  any  authority  for  a  proposition  so  wide  and  general  in  its 
terms  as  would  alone  support  this  action. 

The  rule,  as  laid  down  by  De  Grey,  C.  J.,  in  Onslow  v.  Horne,^  that 
words  are  actionable  if  they  be  of  probable  ill  consequence  to  a  person 
in  a  trade  or  profession  or  an  office,  is  expressly  disapproved  of  by 
the  Court  of  Exchequer  in  Lumby  v.  Allday.^"  Bayley,  B.,  there  says : 
"Every  authority  which  I  have  been  able  to  find  either  shews  the  want 
of  some  general  requisite,  as,  honesty,  capacity,  fidelity,  or  the  like; 
or  connects  the  imputation  with  the  plaintiff's  office,  trade,  or  busi- 
ness." In  that  case,  the  words  proved  were  a  very  strong  imputation 
on  the  morality  of  the  plaintiff,  who  was  a  clerk  to  a  gas  company. 
But  the  Court  held  them  not  actionable,  because  the  imputation  con- 
veyed by  them  did  not  imply  the  want  of  any  of  those  qualities  which 
a  clerk  ought  to  possess,  and  because  the  imputation  had  no  reference 
to  his  conduct  as  clerk.  That  case  and  the  language  of  Bayley,  B.,  in 
delivering  the  judgment  of  the  Court,  have  since  been  repeatedly  ap- 
proved of,  and  are  really  decisive  of  this  case. 

The  words  before  us  are  not  actionable  in  themselves.  No  expres- 
sion in  them  was  argued  to  be  so  except  the  word  "ringleader" :   and, 

8  The  statement  of  the  case  is  abridged,  and  the  argument  of  counsel  is 
for  the  most  part  omitted. 

0  (1771)  3  Wils.  177,  186,  2  W.  Bl.  753. 

10  (1S31)  1  Cr.  &  J.  305,  35  R.  R.  715:  (The  declaration  stated  that  P. 
was  clerk  of  a  gas  company,  and  that  D.  s])oke  of  P.  these  words :  "You 
are  a  fellow,  a  disgrace  to  the  town,  unfit  to  hold  your  situation  for  your 
conduct  mth  whores.") 

Accord :  Hogg  v.  Dorrah  (1835)  2  Porter  (Ala.)  212,  Oram  v.  Franklin  (1S3S) 
5  Blackf.  (Ind.)  42. 

Compare:  Stannard  v.  Wilcox  &  Gibbs  Sewing  Machine  Co.  (1912)  118 
Md.  151,  84  Atl.  335,  42  L.  R.  A.  (N.  S.)  515,  Ann.  Cas.  lDi4B,  709;  Nicholas 
V.  Daily  Reporter  Co.  (1905)  30  Utah,  74,  83  Pac.  573,  3  L.  R.  A.  (N.  S.)  330, 
110  Am.  St.  Rep.  79(5,  8  Ann.  Cas.  841,  and  the  remarks  of  Lord  Ilerschell 
in  Alexander  v.  Jenkins.  L1S92J  1  Q.  B.  797,  800,  0.  A.  See  also  18  Halsbury'a 
Laws  of  England,  621,  622. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  573 

as  to  that,  it  is  sufficient  perhaps  to  say  that  Dr.  Johnson  points  out 
the  mistake  of  supposing  that  the  word  is  by  any  means  necessarily  a 
word  of  bad  import ;  for,  amongst  other  authorities,  he  cites  Barrow 
as  caUing  St.  Peter  the  "ringleader"  of  the  Apostles.  Neither  are  the 
words  connected  with  the  trade  or  profession  of  the  plaintiff,  either 
by  averment  or  by  implication ;  so  that,  on  neither  ground  can  the 
declaration  be  supported.  There  is  no  averment  here  that  the  conse- 
quence which  followed  was  intended  by  the  defendant  as  the  result  of 
his  words ;  and  therefore  it  is  not  necessary  to  consider  the  question 
which  was  suggested  on  the  argument,  whether  words  not  in  them- 
selves actionable  or  defamatory  spoken  under  circumstances  and  to 
persons  likely  to  create  damage  to  the  subject  of  the  words,  are,  when 
the  damage  follows,  ground  of  action.  The  judgment  of  Lord  Wen- 
sleydale  in  Lynch  v.  Knight.  9  H.  L.  C.  at  p.  600,  appears  in  favour 
of  the  affirmative  of  this  question.  But  it  is  not  necessary  for  us,  for 
the  reasons  given,  to  express  any  opinion  upon  it;  and  upon  this  de- 
murrer there  must  be  judgment  for  the  defendant. 
Judgment  for  the  defendant. 


REILLY  V.  CURTISS. 
(Supreme  Court  of  New  Jersey,  1912.     83  N.  J.   Law,  77,  84  Atl.   199.) 

Reilly  sued  Curtiss  for  slander,  and  obtained  a  judgment  below. 
The  defendant  appealed. 

Trp:n'CHard,  J.  In  this  action  for  slander,  the  judge  of  the  district 
court,  sitting  without  a  jury,  gave  the  plaintiff  a  judgment  for  $50. 

The  state  of  demand  averred  in  eff'ect,  and  the  proof  showed,  that 
the  defendant,  in  a  certain  discourse,  falsely  said  that  the  election 
boaVd  of  the  Fourth  district  of  the  Eighth  ward  of  the  city  of  Eliza- 
beth was  drunk  while  on  duty  on  registration  day,  and  was  totally  un- 
fit to  receive  names  for  registry.  It  was  also  averred  and  admitted 
that  the  plaintiff  was  a  member  of  that  board. 

The  sole  contention  of  the  defendant  on  this  appeal  is  that  the  judge 
erred  in  not  limiting  the  judgment  to  nominal  damages.  We  are  of 
opinion  that  there  is  no  merit  in  the  contention. 

Every  district  board  of  registry  and  election  is  composed  of  four 
members.  P.  L.  1911,  p.  277,  §  4.  A  sweeping  charge  of  misconduct, 
leveled  against  a  public  board  without  exception,  necessarily  points 
the  finger  of  condemnation  at  every  member  thereof,  though  none  are 
named ;  and  every  member  of  the  board  may  maintain  an  action  there- 
for. Levert  v.  Daily  States  Pub.  Co.,  123  La.  594,  49  South.  206,  23 
L.  R.  A.  (N.  S.)  '726,  131  Am.  St.  Rep.  356;  25  Cyc.  352,  362,  363. 

The  office  of  member  of  a  district  board  of  registry  and  election  is 
one  of  profit  (P.  L.  1911,  p.  283,  §  11) ;  and,  under  section  9,  a  member 
is  subject  to  removal,  if  shown  to  be  disqualified.    Words  spoken  false- 


574  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

ly,  imputing  drunkenness  while  on  duty,  and  unfitness  for  duty,  to  a 
member  of  such  board  reflect  upon  his  capacity,  and  tend  to  work  a 
detriment,  from  a  pecuniary  point  of  view,  by  rendering  his  tenure 
precarious,  and  are  actionable  per  se.  25  Cyc.  346;  Heller  v.  Duff, 
62  N.  J.  Law,  101,  40  Atl.  691. 

When  words  spoken  are  actionable  per  se,  plaintiff  is  not  required 
to  introduce  evidence  of  actual  damage  to  entitle  him  to  substantial 
damages,  since,  in  the  absence  of  any  evidence  of  damage,  the  law  pre- 
sumes damage.    25  Cyc.  531. 

The  case  of  Alexander  v.  Jenkins  [1892]  1  Q.  B.  797,  cited  by  the 
defendant,  is  not  in  point.  There  the  office  for  which  the  plaintiff  was 
said  to  be  unfit  was  not  an  office  of  profit,  and  the  distinction  was  there 
carefully  drawn. 

The  award  ^^  of  substantial  damages  in  the  case  at  bar  being  justi- 
fied, the  judgment  of  the  court  below  will  be  affirmed. 


(2)  Slmulcr  through  Special  Damage 

Now,  if  tliere  was  no  special  damage,  on  what  grounds  are  the 
words  actionable  ?  They  do  not  allege  any  crime ;  they  do  not  allege 
a  particular  kind  of  infectious  disease;   they  do  not  allege  any  other 

11  In  Alexander  v.  .Tenkins,  riS92]  1  Q.  B.  797,  the  charge  was:  "Alexander 
is  never  sober,  and  is  not  a  fit  man  for  the  [town]  council.  On  the  night 
of  the  election  he  was  so  drunk  that  he  had  to  be  carried  home."  In  holding 
that  the  action  would  not  lie,  Ix)rd  Herschell,  in  the  Court  of  Appeal,  said: 
"There  is  no  case  in  which  an  action  of  slander  has  been  held  to  lie  for  an 
imputation  that  a  man  by  reason  of  his  conduct  is  unfit  for  an  office,  except 
where,  by  reason  of  that  misconduct,  if  it  existed,  he  could  have  been  de- 
prived of  the  office.  In  Mr.  Stiirkie's  work,  this  liability — this  danger  of 
exclusion  from  office — is  said  to  be  that  which  gives  rise  to  the  action; 
and,  at  all  events,  there  is  there  an  intelligible  ground  upon  which  these  ac- 
tions may  be  rested,  even  if  it  be  not  altogether  a  satisfactory  one.  But 
we  are  asked  today  to  make  an  extension,  and  to  say  that  an  action  will 
lie  where  a  person  is  charged  with  being  unfit  for  his  office,  although  he  could 
not — however  true  the  charge — be  excluded  for  that  rea.son  from  the  office. 
That  would  be  a  step  in  advance,  and  I  do  not  think  it  is  a  step  in  advance 
which  we  are  justified  in  taking.  It  is  on  that  ground  exclusively  that  I 
desire  to  rest  my  judgment;  I  will  put  it  shortly  thus :  That  where  the 
imputation  is  an  imputation  not  of  miseonduct  in  an  office,  but  of  unfitness 
for  an  office,  and  the  office  for  which  the  person  is  said  to  be  unfit  is  not 
an  otfice  of  profit,  but  one  mei-ely  of  what  has  been  called  honour  or  creilit, 
the  action  will  not  lie,  unless  the  conduct  charged  be  such  as  would  enable 
him  to  be  removed  from  or  deprived  of  that  ofiice." 

Compare  the  remarks  of  Loi)es,  L.  J.,  in  Booth  v.  Arnold  (ISO-")  1  Q.  B. 
571,  570 :  "In  my  judgment,  words  imputing  want  of  integrity,  dishonesty, 
or  malversation  to  any  one  holding  a  public  office  of  confidence  or  trust, 
whether  an  ofiice  of  profit  or  not,  are  actionable  per  se.  On  the  other  hand, 
when  the  woi'ds  merely  impute  unsuitableness  for  the  office,  incompetency, 
or  want  of  ability,  without  ascribing  any  misconduct  touching  the  ofiice, 
then,  according  to  the  decision  in  Alexander  v.  Jenkins,  [1S92J  1  Q.  B.  797, 
no  action  lies,  where  the  otfice  is  honorary,  without  proof  of  special  diimage. 
It  Is  said  that  this  view  is  contrary  to  the  recent  case  of  Alexander  v. 
Jenkins,  [1892]  1  Q.  B.  797;  but  a  careful  perusal  of  that  case  leads  me  to 
a  different  conclusion." 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  575 

of  the  peculiar  matters  for  which  slander  may  be  actionable  without 
special  damage,  unless  they  ought  to  be  construed  as  impugning  the 
capacity  or  conduct  of  the  plaintiff  in  the  way  of  his  profession  as  a 
solicitor. 

Wright,  J.,  in  Dauncey  v.  Holloway.^^ 


When  our  ancestors  years  ago  drew  the  distinction  between  libel 
and  slander  they  exercised  that  kind  of  wise  discretion  which  they 
always  exercised  over  the  whole  field  of  common  law.  It  would,  to 
my  mind,  be  very  dangerous  for  us  nowadays  to  relax  in  any  way  the 
rule  of  law  which  confines  actions  for  spoken  words,  in  the  absence 
of  proof  of  special  damage,  to  a  very  limited  number  of  cases. 

Vaughan  Williams,  L.  J.,  in  Dauncey  v.  Holloway.^^ 


AIATTHEW  V.  CRASS. 

(Court   of  King's  Bench,   1G14.     Cro.   Jac.   o23,   79   Eeprint.   276.) 

Action  for  these  words,  "Thou  art  a  whoremaster,  for  thou  hast 
Iain  with  Brown's  wife,"  by  reason  of  which  words  he  lost  his  mar- 
riage, ad  damnum  &c. 

After  verdict  for  the  plaintiff,  it  was  moved  in  arrest  of  judgment, 
that  the  words  were  not  actionable,  but  examinable  only  in  the  Spirit- 
ual Court;  and  that  this  was  the  first  precedent  where  loss  of  marriage 
was  ever  laid  for  words  spoken  of  a  man;  and  so  not  like  to  Anne 
Davies'  Case,  4  Co.  16. 

But  it  was  conceived  by  the  Court  that  there  was  not  any  differ- 
ence betwixt  the  cases,  as  to  the  hinderance  of  marriage  either  of 
a  man  or  of  a  woman ;  which  being  alleged  in  this  case,  and  a  tem- 
poral loss  and  damage  to  ensue  thereby,  though  the  crime  is  to  be 
punished  in  the  Ecclesiastical  Court,  yet  these  words  give  the  Tem- 
poral Court  jurisdiction,  and  make  them  here  actionable.  So  the 
calling  of  one  "bastard"  is  triable  and  determinable  in  the  Spiritual 
Court;  yet  when  matter  subsecjuent  is  laid  which  is  triable  in  a 
Temporal  Court  (as  to  entitle  himself  to  be  heir,  or  where  he  shews 

12  Dauncey  v.  Holloway,  [1901]  2  K.  B.  441,  was  .an  action  for  slander. 
The  plaintiff  was  a  solicitor  in  active  practice.  The  words  spoken  of  him 
were:  "Have  you  heard  about  our  neighbor  (meaning  tlie  plaiutift)  along 
here?  They  tell  me  he  has  gone  for  tliousands  instead  of  hundreds  this 
time;"  and,  upon  another  occasion:  "Have  you  heard  anything  about  Mr. 
Dauncey.  It  seems  to  be  a  worse  .job  than  the  other  was.  Miss  Allen  told 
me  Mr.  Dauncey  has  lost  thousands."  No '  special ;  damage  was  shown.  It 
was  held  by  Wright,  J.,  in  the  King's  Bench  Division,  and  by  A.  L.  Smith.  .M. 
K.,  and  \aughan  Williams  and  Romer,  L.  .IJ.,  in  the  Court  of  A])i»eal,  that 
in  the  absence  of  special  damage  the  words  were  not  actionable,  as  tlu-y 
were  not  reasonably  capable  of  being  construed  as  conveying  an  imputatiou 
on  the  plaintiff  in  his  business  as  a  solicitor. 


576  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

some  possibility  of  being  heir),  this  maketh  the  calhng  of  him  "bas- 
tard" to  be  actionable  at  the  common  law :  so  here,  by  reason  of  the 
allegation  of  his  loss  of  marriage  by  these  words  spoken,  the  action 
is  maintainable;    and  judgment  was  given  for  the  plaintiff. 


SELL  V.  FACY. 

(Court  of  King's  Bench,   1615.     2  Bulst.   276,  80  Reprint,   1119.) 

In  an  action  upon  the  case  for  scandalous  words,  upon  non  culp. 
pleaded,  a  verdict  was  found  for  the  plaintiff:  it  was  moved  for 
the  defendant  in  arrest  of  judgment,  that  the  declaration  here  is  not 
good,  in  regard  that  he  lays  for  the  ground  of  his  action,  a  loss  of 
his  marriage,  by  reason  of  the  speaking  of  the  words ;  he  lays  the 
same  in  this  manner,  quod  intendebat  &  conatus  fuit,  to  have  such 
a  woman  in  marriage,  and  that  by  reason  of  the  words  spoken  of  him, 
recusavit,  she  did  refuse  to  have  him ;  intendebat,  this  is  but  onely 
to  shew  what  his  intention  was ;  he  lays  no  communication  of  mar- 
riage, and  therefore  the  declaration  is  not  good,  for  that  he  ought  to 
have  laid,  quod  colloquium  habitum  fuit  de  matrimonio,  but  it  is  not 
so,  and  therefore  not  good. 

Croke;,  Justice.  The  words  here  are  scandalous  (being  that  he  had 
a  bastard,  or  such  like  words),  if  he  had  said,  quod  recusavit,  and  had 
laid  the  motion  of  marriage  to  her,  this  had  been  good,  but  not  as 
it  is  here  laid,  with  a  conatus  fuit,  this  is  not  good. 

Haughton,  J.  If  all  the  women  in  this  town  should  say,  hearing 
of  these  words,  spoken  of  him,  that  they  would  not  have  him  for 
a  husband,  shall  this  be  sufficient  to  give  him  cause  of  action,  by 
no  means  it  shall  not,  but  he  ought  to  lay  specially  in  his  declaration, 
that  there  was  a  motion  of  marriage  for  him,  and  this  ought  to  be 
certainly  laid,  and  not  by  intendment,  as  here  he  hath  laid  the  same 
to  be,  and  then  also  to  lay  a  refusal  for  this,  and  so  a  breaking  off 
by  reason  of  the  words  thus  spoken  of  him,  and  being  thus  laid,  the 
declaration  would  then  have  been  good,  and  the  words  actionable,  but 
here  this  declaration  is  not  good,  and  so  the  plaintiff  ought  not  to  have 
his  judgment. ^^ 

13  The  concurring  opinions  of  Coke,  C.  J.,  and  Dodderidge  and  Crolve,  JJ., 
are  omitted.  "Tlie  court  was  all  clear  of  opinion  against  the  plaintilTe, 
that  the  declaration  here  was  not  good;  and  therefore  they  advised  liiui,  to 
begin  his  sute  again,  and  to  lay  in  his  declaration,  an  express  collOLiuiuni  de 
matrimonio;  and  a  breach,  or  falling  off,  by  reason  of  these  words;  but 
this  declaration,  as  it  is,  is  too  short,  and  not  good,  and  so  judgment  ought 
to  be  given  against  the  plaintiffe,  and  accordingly  the  rule  'of  the  Court  was, 
quod  querens  nil  capiat  per  billam." 

Compare  Rade  v.  Press  I'ub.  Co.  (1002)  37  Misc.  Rep.  254,  75  N.  Y.  Supp. 
298.  The  charge  was  that  the  defendant  had  falsely  published  of  the 
plaintiff  tliat  he  had  consuiiiplion.  As  special  damage  the  complaint  alleged, 
inter   alia,  "that  the  young  lady  witli  wlium  he  liept  company  avoids  him." 


Ch.  2)  ABSOLUTE    TORTS   OTUER  THAN  TRESPASSES  577 

BARNES  V.  BRUDDEIv. 
(Court  of  King's  Bench,  1668-69.     1   Lev.  261,  83  Reprint,  397.) 

Case  for  saying  of  her,  being  a  virgin  of  good  fame,  "She  was 
with  child  by  Simons ;"  whereby  she  was  in  her  parents'  displeasure, 
and  in  danger  of  being  put  out  of  their  house;  afterwards  judgment 
was  stayed,  for  that  the  words  were  not  actionable,  there  being  no  loss 
of  marriage,  which  was  the  sole  reason  of  Anne  Davies's  case : 
and  the  case  in  1  Roll.  35.  An  action  for  saying,  "She  was  with 
child,"  whereby  she  lost  the  society  of  her  neighbours,  held  not  to 
be  law ;  but  that  3  Cro.  639,  "She  had  a  child,  and  if  she  have  not 
a  child  she  has  made  it  away,"  may  be  law,  because  it  imports  felony. 

But  note,  in  that  case  loss  of  marriage  is  laid  also. 


MOORE,  Gent.,  v.  MEAGHER. 

(In  the  Exchequer  Chamber,  1807.    1  Taunt.  39,  9  R.  R.  702,  127  Reprint,  745.) 

This  was  a  writ  of  error  from  a  judgment  of  the  Court  of  King's 

Bench  in  an  action  on  the  case  for  defamation.     The  plaintiff  below, 

in  her  declaration,  alleged     *     *     *     ^y^^^  ^^^^  defendant  spoke  and 

published  the  defamatory  words  complained  of  (imputing  incontinence 

to  the  plaintiff),  by  means  of  the  speaking  of  which — 

the  plaintiff  had  been  and  was  greatly  in.1ured  in  her  credit  and  reputation, 
and  brought  into  public  scandal,  &c.  and  her  friends  and  neighbours,  and 
especially  the  several  persons  herein-before  in  that  behalf  named,  had 
wholly  refused  to  hold  or  permit  any  intercourse  or  society  with  her,  or  to 
receive  and  admit  her  into  their  respective  houses  or  comjiany,  or  to  find 
or  provide  for  her  meat,  drink,  or  any  other  benefits  and  advantages  in  any 
mamier  whatsoever,  as  they  before  that  time  had  done,  and  other- 
wise would  have  continued  to  do;  whereby  the  plaintiff  had  lost 
all  those  valuable  benefits  and  advantages,  being  to  her  theretofore  of 
great  value,  to  wit,  of  the  value  of  £100,  and  had  been  and  was  greatly 
reduced  and  prejudiced  in  her  fortunes  and  pecuniary  cii'cumstances,  and 
obliged  to  incur  a  much  greater  expense  in  her  necessary  living  and  support- 
ing herself,  to  a  large  amount,  to  wit,  the  annual  amount  of  £100,  than  she 
theretofore  had  done,  and  otherwise  would  have  continued  to  do,  and  had 
been  and  was  greatly  impoverished,  and  all  her  friends  had  wholly  with- 
drawn their  friendship,  &c. 

A  verdict  was  found  for  the  plaintiff"  for  £1(X)  damages,  and  judg- 
ment was  entered  accordingly.  The  errors  assigned  were  that  none 
of  the  words  alleged  in  the  declaration  were  in  themselves  actionable, 
(which  was  admitted  by  the  defendant  in  error,)  and  that  no  sub- 
stantial or  real  specific  damage,   or  legal  or  specific  injury,  was  al- 

This  ^aid  jGoiynor,  J.,  "is  no  allegation  of  special  damage  by  the  loss  of 
marriage.  *  *  *  Not  only  are  the  names  and  particulars  not  given,  but 
there  is  not  even  any  allegation  tliat  there  existed  any  contract,  purpose  or 
intention  of  marriage." 

IIepb.Tobts — 37 


578  TORTS  THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

leged  to  have  been  sustained  in  consequence  of  the  words  so  spoken 
and  pubHshed. 

Richardson,  for  the  defendant  in  error.  The  declaration  has  not 
been  sufficiently  stated  in  the  plaintiff's  argument.  It  alleges  that 
the  persons  named  gratuitously  received  the  defendant  in  error  into 
their  houses,  and  provided  her  with  meat  and  drink  to  the  great  re- 
duction of  her  expenses,  and  increase  of  her  riches.  The  defendant 
below  demurred  specially,  and  assigned  for  cause  that  this  was  not 
a  temporal  damage;  but  the  court  on  argument  held,  that  the  ques- 
tion whether  this  were  a  temporal  damage  or  not,  was  a  matter  of 
fact,  and  not  a  matter  of  law,  and  that  if  the  provisions  furnished 
to  the  plaintiff  by  her  friends  were  of  the  annual  value  of  ilOO,  as 
the  declaration  alleged,  the  loss  of  them  was  a  real  damage,  and  di- 
rected the  defendant  to  withdraw  the  demurrer  and  plead  to  the 
action.  The  jury  have  found  tlie  damages  to  be  £100.  And  it  is  now 
contended,  that  this  cannot  be  a  special  damage.  The  plaintiff  be- 
low receives  real  benefit  from  the  assistance  of  her  friends ;  the 
defendant  for  malicious  purposes  speaks  these  words,  by  which  she 
loses  that  assistance.  It  is  admitted,  that  if  the  least' pecuniary  salary 
were  lost,  an  action  would  lie :  how  can  it  be  otherwise  upon  the  loss 
of  that  which  is  equivalent  in  value  to  money?  Com.  Rep.  7  Ld. 
Raym.  266,  and  other  authorities  show,  that,  as  against  a  wrong- 
doer, a  possessory  title  is  sufficient.  It  is  urged  that  these  persons 
were  not  bound  to  provide  her  entertainment:  but  they  did  in  fact 
entertain  her,  and  would  have  continued  to  entertain  her,  as  the  jury 
have  found;  whose  verdict  cannot  now  be  controverted.  Words 
spoken  of  a  tradesman,  are  actionable,  if  spoken  with  reference  to 
his  trade :  but  words  spoken  of  him,  though  not  referring  to  his 
trade,  are  acti(5nable  if  he  thereby  loses  a  customer.  1  Lev.  140.  Yet 
no  individual  customer  is  bound  to  frequent  any  particular  shop ; 
but  it  is  sufficient  if  he  would  in  fact  have  come,  except  for  the  ma- 
licious interference  of  a  stranger.  The  case  of  Hartly  v.  Herring, 
8  Term  Rep.  130,  was  an  action  brought  by  a  preacher,  for  words 
imputing  incontinence,  per  quod  persons  frequenting  the  chapel  dis- 
continued giving  him  the  gains  and  profits  which  they  had  usually 
given.  Tlnere  the  court  held  there  was  no  objection  to  the  declara- 
tion; and  Lord  Kenyon  said  it  was  sufficient  if  the  plaintiff  lost  his 
occasional  employment.     *     *     * 

Curwood,  in  reply.  All  the  cases  cited  are  cases  of  legal  damage. 
The  value  of  customers  to  a  tradesman  is  fully  recognized  by  the  law : 
so  is  slander  of  title.  If  this  action  lies,  no  words  are  not  actionable 
with  the  aid  of  an  ingenious  special  pleader.  (Heath,  J.  Undoubt- 
edly all  words  are  actionable,  if  a  special  damage  follows.) 

Mansfield,  C.  J.  This  case  is  not  distinguishal)le  from  that  of 
Hartly  v.  Herring.  We  do  not  know  how  to  say  that  this  is  not  a 
special  damage,  sustained  in  consequence  of  words  imputing  infamy. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  579 

They  have  deprived  this  lady  of  an  income  derived  from  the  bounty 
of   others,  which  now,  after  verdict,   we  must  assume,   would  have 
continued,  if  the  defendant  had  not  spoken  these  words.    We  cannot 
say  the  action  will  not  lie. 
Judgment  affirmed.^* 


POLLARD  V.  LYON. 

(Supreme  Court  of  the  United  States,  1875.    91  U.  S.  225,  23  L.  Ed.  308.) 

Mr.  Justice  Clifford  delivered  the  opinion  of  the  court: 
Words  both  false  and  slanderous,  it  is  alleged,  were  spoken  by 
the  defendant  of  the  plaintiff:  and  she  sues  in  an  action  on  the  case 
for  slander  to  recover  damages  for  the  injury  to  her  name  and  fame. 
Controversies  of  this  kind,  in  their  legal  aspect,  require  pretty 
careful  examination;  and,  in  view  of  that  consideration,  it  is  deem- 
ed proper  to  give  the  entire  declaration  exhibited  in  the  transcript, 
which  is  as  follows : 

"That  the  defendant,  on  a  day  named,  speaking  of  the  plaintiff,  falsely 
and  maliciously  said,  spoke  and  published  of  the  plaintiff  the  words  fol- 
lowing: 'I  saw  her  in  bed  with  Captain  Denty.'  That  at  another  time,  to 
wit,  on  the  same  day,  the  defendant  falsely  and  maliciously  spoke  and  pub- 
lished of  the  plaintiff  the  words  following:  'I  looked  over  the  transom-light 
and  saw  ^Irs.  Pollard.'  meaning  the  plaintiff,  'in  bed  ■n'ith  Captain  Denty" — 
whereby  the  plaintiff  has  been  damaged  and  injured  in  her  name  and  fame, 
and  she  claims  damages  therefor  in  the  sum  of  $10,000." 

Whether  the  plaintiff  and  defendant  are  married  or  single  persons 
does  not  appear;  nor  is  it  alleged  that  they  are  not  husband  and 
wife,  nor  in  what  respect  the  plaintifT  has  suffered  loss  beyond  what 
may  be  inferred  from  the  general  averment  that  she  had  been  dam- 
aged and  injured  in  her  name  and  fame. 

Service  was  made,  and  the  defendant  appeared  and  pleaded  the 
general  issue;  which  being  joined,  the  parties  went  to  trial;  and  the 
jury,  under  the  instructions  of  the  court,  found  a  verdict  in  favor 
of  the  plaintiff  for  the  whole  amount  claimed  in  the  declaration. 
None  of  the  other  proceedings  in  the  case,  at  the  special  term,  re- 
quire any  notice,  except  to  say  that  the  defendant  filed  a  motion  in 

i*The  statement  of  facts  is  abridged. 

Accord:  Davies  v.  Solomon  (1S71)  L.  R.  7  Q.  B.  112:  (The  declaration,  by 
Davies  and  Isabella,  his  wife,  charged  that  the  defendant  had  published  a 
defamatory  statement  concerning  Mrs.  Davies,  and  that  thereby  the  plaintiff 
Isabella  was  injured  in  her  character  and  reputation,  and  became  alienated 
from  and  deprived  of  the  cohabitation  of  her  husband,  and  lost  and  was 
deprived  of  the  companionship  and  ceased  to  receive  the  hospitality  of  divers 
friends,  and  especially  of  her  husband,  .John  Davies,  "and  one  M.  D.  and  one 
G.  H.  T.  and  one  A.  J.  M.,"  who  have  by  reason  of  the  premises  witlidrawn 
from  the  companionship  and  ceased  to  be  hospitable  to  or  friendly  with 
the  plaintiff  Isabella.  The  defendant  demurred,  insisting  that  the  special 
damage  alleged  was  too  remote.) 


580  TORTS   THROUGH   ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

arrest  of  judgment,  on  the  ground  that  the  words  set  forth  in  the 
declaration  are  not  actionable,  and  because  the  declaration  does  not 
state  a  cause  of  action  which  entitles  the  plaintiff  to  recover;  and 
the  record  shows  that  the  court  ordered  that  the  motion  be  heard  at 
general  term  in  the  first  instance.  Both  parties  appeared  at  the  gen- 
eral term  and  were  fully  heard;  and  the  court  sustained  the  motion 
in  arrest  of  judgment,  and  decided  that  the  declaration  was  bad  in 
substance.  Judgment  was  subsequently  rendered  for  the  defendant, 
and  the  plaintiff  sued  out  the  present  writ  of  error.     *     *     * 

Examined  in  the  light  of  these  suggestions,^^  and  the  authorities 
cited  in  their  support,  it  is  clear  that  the  proposition  of  the  plaintiff, 
that  the  words  alleged  are  in  themselves  actionable,  cannot  be  sus- 
tained. 

Concede  all  that,  and  still  the  plaintiff  suggests  that  she  alleges  in 
the  second  paragraph  of  her  declaration  that  "she  has  been  damaged 
and  injured  in  her  name  and  fame,"  and  she  contends  that  the  aver- 
ment is  sufficient,  in  connection  with  the  words  charged,  to  entitle 
her  to  recover  as  in  an  action  of  slander  for  defamatory  words  with 
averment  of  special  damage. 

Special  damage  is  a  term  which  denotes  a  claim  for  the  natural  and 
proximate  consequences  of  a  wrongful  act;  and  it  is  undoubtedly 
true  that  the  plaintiff  in  such  a  case  may  recover  for  defamatory 
words  spoken  of  him  or  her  by^  the  defendant,  even  though  the  words 
are  not  in  themselves  actionable,  if  the  declaration  sets  forth  such  a 
claim  in  due  form,  and  the  allegation  is  sustained  by  sufficient  evi- 
dence; but  the  claim  must  be  specifically  set  forth,  in  order  that  the 
defendant  may  be  duly  notified  of  its  nature,  and  that  the  court  may 
have  the  means  to  determine  whether  the  alleged  special  damage  is 
the  natural  and  proximate  consequence  of  the  defamatory  words 
alleged  to  have  been  spoken  by  the  defendant.  Haddan  v.  Lott,  15 
C.  B.  429. 

Whenever  proof  of  special  damage  is  necessary  to  maintain  an 
action  of  slander,  the  claim  for  the  same  must  be  set  forth  in  the 
declaration,  and  it  must  appear  that  the  special  damage  is  the  natural 
and  proximate  consequence  of  the  words  spoken,  else  the  allegation 
will  not  entitle  the  plaintiff  to  recover.  Vicars  v.  Wilcocks,  8  East, 
3 ;  Knight  v.  Gibbs,  1  Ad.  &  Ell.  46 ;  Ayre  v.  Craven,  2  Ad.  &  Ell. 
8;   Roberts  v.  Roberts,  supra  [5  B.  &  S.  389]. 

When  special  damage  is  claimed,  the  nature  of  the  special  loss  or 
injury  must  be  particularly  set  forth,  to  support  such  an  action   for 

15  In  the  omitted  passage,  Rrr.  Justice  Clifford,  after  an  elaborate  con- 
sideration of  the  questions  involved,  reached  these  conclusions:  First,  that 
the  plaintiff  had  failed  to  show  that  the  words  alleged  imputed  any  criuiiual 
offence  for  which,  under  the  law  of  the  District  of  Columbia,  she  could  be 
indicted  and  punished ;  secondly,  that  although  the  words  spoken  imputed 
misconduct  which  was  derogatory  to  the  character  of  the  plaintiff,  and 
highly  injurious  to  her  social  stiinding.  still  they  were  not  actionable  at  com- 
mon law  unless  special  damage  was  alleged  and  proven. 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  581 

words  not  in  themselves  actionable;  and,  if  it  is  not,  the  defendant 
may  demur.  He  did  demur  in  the  case  last  cited ;  and  Cockburn, 
C.  ].,  remarked  that  such  an  action  is  not  maintainable,  unless  it  be 
shown  that  the  loss  of  some  substantial  or  material  advantage  has 
resulted  from  the  speaking  of  the  words.  Add.  Torts  (3d  Ed.)  805 ; 
Wilby  V.  Elston,  supra  [8  .M.,G.  &  S.  142]. 

Where  the  words  are  not  in  themselves  actionable,  because  the 
offense  imputed  involves  neither  moral  turpitude  nor  subjects  the 
offender  to  an  infamous  punishment,  special  damage  must  be  alleged 
and  proved  in  order  to  maintain  the  action.  Hoag  v.  Hatch,  23  Conn. 
590;  Andres  v.  Koppenheafer,  supra  [3  Serg.  &  R.  255,  8  Am.  Dec. 
647]  ;  Buys  v.  Gillespie,  2  Johns.  (N.  Y.)  117,  3  Am.  Dec.  404. 
■  In  such  a  case,  it  is  necessary  that  the  declaration  should  set  forth 
precisely  in  what  way  the  special  damage  resulted  from  the  speaking 
of  the  words.  It  is  not  sufficient  to  allege  generally  that  the  plaintiff 
has  suffered  special  damages,  or  that  the  party  has  been  put  to  great 
costs  and  expenses.     Cook  v.  Cook,  100  Mass.  194.^"^ 

By  special  damage  in  such  a  case  is  meant  pecuniary  loss ;  but 
it  is  well  settled  that  the  term  may  also  include  the  loss  of  substan- 
tial hospitality  of  friends.  Aloore  v.  ^leagher,  1  Taunt.  42;  Wil- 
liams v.'Hill,  19  W^end.  (N.  Y.)  306. 

Illustrative  examples  are  given  by  the  text  writers  in  great  numbers, 
among  which  are  loss  of  marriage,  loss  of  profitable  employment,  or 
of  emoluments,  profits  or  customers ;  and  it  was  ver}'  early  settled 
that  a  charge  of  incontinence  against  an  unmarried  female,  where- 
by she  lost  her  marriage,  was  actionable  by  reason  of  the  special  dam- 
age alleged  and  proved.  Davis  v.  Gardiner,  4  Co.  16  b,  pi.  11;  Res- 
ton  V.  Pomfreict,  Cro.  Eliz.  639. 

Doubt  upon  that  subject  cannot  be  entertained ;  but  the  special  dam- 
age must  be  alleged  in  the  declaration,  and  proved;    and  it  is  not  suf- 

16  Accord:  Chamberlain  v.  Boyd  (1S83)  11  Q.  B.  D.  407:  The  words  were: 
"The  conduct  of  the  Messrs.  Chamberlain  was  so  bad  at  a  club  in  Melbourne 
that  a  round  robin  was  signed  urging  the  committee  to  expel  them.  As, 
however,  they  were  there  only  for  a  short  time,  the  committee  did  not 
proceed  further."  The  defendant's  demurrer  was  overruled  by  the  trial 
court.  The  Court  of  Appeal  gave  judgment  for  the  defendant,  "it  is  not  al- 
leged," said  Bowen,  L.  .J.,  "that  the  defendant's  words  prevented  the  election 
of  the  plaintiff,  and  that  is  the  fatal  blot  in  the  plaintiff's  ease." 

Accord:  Ford  v.  Lamb  (1002)  116  Ga.  655,  42  S.  E.  998:  The  defendant  had 
falsely  said  of  the  plaintiff  (Lamb)  to  one  Bass,  with  whom  the  plaintiff 
was  negotiating  a  ti'ade :  "Don't  sell  Lamb  anything.  He  is  no  good.  He 
will  not  pay  for  anything  he  gets."  The  j)etition  set  out  this  statement,  and 
alleged  that  because  of  it  Bass  broke  off  the  trade,  "greatly  to  petitioner's 
worry  and  mortification,"  that  the  words  spoken  were  false  and  malicious, 
and  that  they  had  injured  the  plaintiff  in  the  sum  of  $3,000.  There  was  no 
allegation  as  to  the  character  of  the  plaintiff's  business,  or  that  he  had 
any   business,   office,   or    occupation. 

Compare  the  analogous  principle  in  the  libel  case  of  Reporters'  Association 
V.  Sun  Printing  &  Publishing  Company  (1900),  before  the  Appellate  Division 
of  the  New  York  Supreme  Court,  112  App.  Div.  246,  OS  N.  Y.  Supp.  294, 
and  the  Court  of  Appeals,  186  N.  Y.  437,  79  N.  E.  710. 


582  TORTS  THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

ficient  to  allege  that  the  plaintiff  "has  been  damaged  and  injured  in 
her  name  and  fame,"  which  is  all  that  is  alleged  in  that  regard  in 
the  case  before  the  court.  Hartley  v.  Herring,  8  T.  R.  133 ;  Add. 
Torts,  805 ;  Hill.  Torts  (2d  Ed.)  622 ;  Beach  v.  Ranney,  2  Hill  (N. 
Y.)  309. 

Tested  by  these  considerations,  it  is  clear  that  the  decision  of  the 
court  below,  that  the  declaration  is  bad  in  substance,  is  correct. 

Judgment  affirmed. 


SPEAKE  V.  HUGHES. 
(In  the  Court  of  Appeal.     [1904]  1  K.  B.  138.) 

The  action  was  for  slander.  It  was  tried  before  the  assessor  of  the 
Court  of  Passage  at  Liverpool,  who  nonsuited  the  plaintiff'. 

Collins,  M.  R.  This  is  an  appeal  from  a  decision  of  the  learned 
assessor  of  the  Passage  Court  at  Liverpool.  The  action  is  brought 
in  respect  of  spoken  words  which,  in  any  point  of  view,  cannot,  in  my 
opinion,  be  actionable  in  the  absence  of  special  damage  resulting  from 
them.  The  words  alleged  to  have  been  spoken  were  these :  "You 
have  a  barman  in  your  employ,  named  Speake,  who  has  removed  from 
his  landlord's  house,  leaving  £2  owing  for  a  month's  rent,  and  I  cannot 
get  the  money  from  him."  The  plaintiff'  alleges  that  special  damage 
resulted  from  these  words  having  been  spoken  by  the  defendant  to  a 
person,  who,  at  the  defendant's  request,  repeated  them  to  the  plain- 
tiff's employers,  the  damage  so  alleged  being  that  they  thereupon  dis- 
missed the  plaintiff  from  their  service.  It  is  a  question  of  law  whether 
such  damage  can,  in  point  of  law,  be  reasonably  looked  upon  as  a  con- 
sequence of  the  words  alleged  to  have  been  spoken  by  the  defendant. 
The  defendant  might,  I  think,  fairly  be  taken  to  have  contemplated 
that,  as  a  result  of  those  words,  the  plaintiff's  employers  would  exercise 
some  pressure  upon  him  to  make  him  pay  the  rent  owing  to  the  defend- 
ant ;  but  that,  instead  of  doing  that,  the  plaintiff''s  employers  should, 
on  the  words  being  repeated  to  them,  thereupon  proceed  to  dismiss 
him,  does  not  appear  to  me,  in  point  of  law,  to  be  a  natural  consequence 
of  the  words  spoken,  or  one  which  the  defendant  can  reasonably  be 
taken  to  have  contemplated  when  he  spoke  them.  That  being  so,  I 
think  the  chain  of  causality  between  the  words  spoken  and  the  alleged 
damage  breaks  down,  and  there  is  therefore  no  special  damage  upon 
which  the  plaintiff  can  rely  in  order  to  establish  a  cause  of  action.  On 
these  grounds  I  think  the  appeal  fails. 

Mathew,  L.  J.  I  agree.  It  cannot,  I  think,  be  contended  that  the 
words  alleged  to  have  been  spoken  in  this  case  can  be  actionable  per 
se:  and  the  special  damage  alleged  is  not  such  as,  in  my  opinion,  can 
be  regarded  as  a  natural  consequence  of  the  words  spoken.  The  de- 
fendant might  reasonably  be  supposed  to  have  contemplated,  when  he 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN   TRESPASSES  583 

spoke  the  words,  that  the  plaintiff's  employers  would  remonstrate  with 
him  on  the  subject,  but  not  that  they  would  dismiss  him  from  their 
service.^'' 

Appeal  dismissed.  - 

(c)  Libel 

In  spite  of  the  dictum  of  Fletcher  Moulton,  L.  J.,  in  Jones  v.  Hulton, 
[1909]  2  K.  B.,  at  page  458,  it  cannot  be  admitted  that  "the  action  of 
libel"  (or,  indeed,  any  form  of  defamation  except  the  anomalous  statu- 
tory scandalum  magnatum  ^^)  "is  a  very  ancient  action  for  a  tort  at 
common  law."  On  the  contrary,  in  spite  of  the  fact  that  there  had 
been  three  attempts  in  the  year  1493  to  bring  cases  of  slander  before 
the  Star  Chainber  (Selden  Soc.  "Star  Chamber,"  pp.  28-45),  it  was 
fully  admitted,  by  the  three  judges,  in  an  important  case  which  came 
before  the  King's  Bench  at  the  end  of  the  fifteenth  century  (Y.  B.  12 
Hen.  VII  (1498)  Tr.  pi.  2,  fo.  22a)  that  slanderous  words  were  then 
matter  for  the  ecclesiastical  courts ;  though  it  is  clear,  from  other  evi- 
dence, that  actions  for  slander  had  long  been  familiar  in  the  local 
courts  of  the  manor  and  borough. ^^  More  than  a  hundred  years  later, 
in  the  Court  of  Star  Chamber,  libel,  so  far  as  the  King's  Courts  were 
concerned,  was  treated  as  a  purely  criminal  matter;  whether  it  was 
directed  against  a  private  person  or  against  a  magistrate.^"  The  proce- 
dure is  in  that  case  said  to  be  (a)  indictment  at  the  common  law,  or  (b) 
bill  or  confession  in  the  Star  Chamber;  and  the  purely  criminal  char- 
acter of  the  offence  is  emphasized  by  the  statement,  made  without  any 
qualification,  tliat  the  truth  of  the  libel  and  the  character  of  the  party 
libelled,  are  immaterial.  Between  1498  and  1605,  however,  the  action 
of  Case  for  slanderous  words  had  been  adopted  by  the  King's  Courts ; 
and  there  are  several  reported  decisions  of  the  sixteenth  century,  the 
first  being,  apparently,  in  the  year  1536  (Anon.,  Dyer,  19a),  when  it 
was  held  by  the  Court  of  Common  Bench,  that  two  plaintiffs  who  had 
been  called  by  the  defendant  "two  false  knaves  and  thieves"  could  not 
join  in  one  action  against  him.  In  the  following  year,  in  Russell's 
Case  (1537)  Dyer,  26b,  the  principle  that  words  imputing  crime  are 
actionable  per  se,  was  clearly  adopted  by  the  same  Court  on  a  plea  of 
non  damnificatus;  and  thereafter  the  action  of  Case  for  spoken  words 
becomes  common  in  the  reports  of  Dyer,  Godbolt  and  Jenkins,  though 

17  The  reporter's  stateruent  of  the  case  and  the  arsiiment  of  counsel  for 
the  plaintiff  are  omitted.  It  is  remarked  by  the  reporter  that  "it  does  not 
appear  to  have  been  suggested  that  any  evidence  could  have  been  called 
of  any  special  circumstances  known  to  the  defendant  tending  to  shew  that  he 
contemplated  the  dismissal  of  the  plaintiff  as  a  probable  consequence  of  the 
statement  made  by  him.  See  Odsers  on  Libel  and  Shmder  (;Jd  Kd.)  c.  5,  § 
5,  p.  168,  and  chapter  12,  §  G,  p.  371."    As  to  this  see  infra.  Part  III. 

18  See  3  Holdsworth's  History  of  Eng.  Law,  315. — Ed. 

19  S.  S.  Select  Pleas  in  Manorial  Courts,  pp.  36,  82,  95,  &c.;  Id.  The  Court 
Baron,  &c.,  pp.  133,  1.3(i. 

2  0  Case  of  Scandalous  Libels  (1605)  5  Rep.  125a. 


584  TORTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

the  other  sixteenth  century  reporters  apparently  ignore  it.  In  the  year 
1586,  we  get  the  interesting  decision,  that  the  allegation  of  malice  in  a 
declaration  of  slander  is  only  formal,  and  that  its  omission  is  not  fatal 
(Alercer's  Case,  Jenk.  268). 

On  the  other  hand,  though  the  introduction  of  the  printing  press 
would  seem  to  have  rendered  such  a  remedy  essential,  the  action  of 
Case  for  libel  does  not  make  its  way  into  the  books  until  the  seven- 
teenth century,  when  it  begins  to  be  regarded  as  an  alternative  of  a 
bill  in  the  Star  Chamber  (Lake  v.  Hatton  (1618)  Hob.  252) ;  and  it  is 
then  admitted  by  the  reporter  that  to  the  action  of  Case,  as  dis- 
tinguished from  a  bill  or  indictment,  a  plea  of  truth  is  a  good  answer. 
Another  difference  early  taken  was  that,  while  communication  to  a 
party  libelled  may  be  a  sufficient  publication  for  a  criminal  prosecution, 
it  is  insufficient  for  an  action  of  Case.     *     *     *  21 

The  jurisdiction  of  the  ecclesiastical  courts  in  Defamation  was  not 
abolished  until  1855  (18  &  19  Vict.  c.  41);  but  as,  long  before  that 
time  (Palmer's  and  Thorpe's  Case  (1583)  4  Rep.  20),  the  King's  Courts 
had  adopted  the  rule  of  prohibiting  suits  in  the  ecclesiastical  courts 
where  the  plaintiff  had  a  remedy  at  law,  and  as  the  ecclesiastical  courts 
themselves  would  only  entertain  suits  in  respect  of  words  imputing  an 
ecclesiastical  offence  (Harris  v.  Butler  (1798)  1  Hagg.  463n),  the  scope 
of  the  jurisdiction  must  have  been  small.  It  seems  to  have  been  chiefly 
resorted  to  in  the  case  of  spoken  words  imputing  unchastity,  which, 
until  the  passing  of  the  Slander  of  Women  Act,  1891,  were  not  ac- 
tionable per  se  in  the  common  law  courts,  and  are  now  so  actionable 
only  when  spoken  of  a  woman. 

It  seems,  therefore,  that,  while  the  common  law  action  of  slander 
may  be  as  old  as  1535,  the  common  law  action  of  libel  only  dates  from 
the  commencement  of  the  seventeenth  century. 

J.  C.  Miles,  Digest  Eng.  Civ.  Law,  501. 


VILLERS  v.  MONSLEY. 

(Court  of  Common   Pleas,  17G9.     2  Wils.  403,   95  Reprint,  8S6.) 

Action  upon  the  case  *  *  *  for  a  libel  upon  the  plaintiff,  in 
the  words  following: 

"Old  Villers,  so  strong  of  brimstone  you  smell, 

As  if  not  long  since  you  had  got  out  of  bell, 

But  tbis  damnable  smell  I  no  longer  can  bear, 

Therefore  I  desire  you  would  come  no  more  here; 

You  old  stinking,  old  nasty,   old  itchy  old  toad, 

If  you  come  any  more  you  shall  pay  for  your  board." 

*  *  *  The  defendant  pleaded  not  guilty:  a  verdict  was  found 
for   the  plaintiff  and  sixpence  damages,   at  the  last   assizes   for  the 

21  Edwardes  v.  ^yootton  (1G07)  reported  in  Ilawarde's  Cases  in  the  Star 
Chamber,  Ed.  Baildon,  pp.  343,  341;  Barrow';  v.  Lewellin  (1G16)  Hob.  (j2 ; 
Hick's  Case  (1619)  Id.  215. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  585 

county  of  Warwick.  And  now  it  was  moved  by  Sergeant  Burland,  in 
arrest  of  judgment,  that  this  was  not  such  a  Hbel  for  which  action 
would  lie ;  that  the  itch  is  a  distemper  to  which  every  family  is  liable ; 
to  have  it  is  no  crime,  nor  does  it  bring  any  disgrace  upon  a  man, 
for  it  may  be  innocently  caught  or  taken  by  infection ;  the  small- 
pox, or  a  putrid  fever  are  much  worse  distempers ;  the  itch  is  not  so 
detestable  or  so  contagious  as  either  of  them,  for  it  is  not  communi- 
cated by  the  air,  but  by  contact  or  putting  on  a  glove,  or  the  clothes  of 
one  who  has  the  itch,  and  although  it  be  an  infectious  distemper,  yet 
it  implies  no  offence  in  the  person  having  it,  and  therefore  no  action 
will  lie  for  saying  or  writing  that  a  man  has  got  the  itch.  It  is  not 
like  saying  or  writing  that  a  man  has  got  the  leprosy,  or  is  a  leper,  for 
which  an  action  upon  the  case  wall  lie,  because  a  leper  shall  be  re- 
moved from  the  society  of  men  by  the  writ  of  de  leproso  amovendo 
(1  Roll.  Abr.  44;  Cro.  Jac.  144;  Hob.  219),  although  it  be  a  natural 
infirmity. 

Bathurst,  J.  I  wish  this  matter  was  thoroughly  gone  into,  and 
more  solemnly  determined ;  however,  I  have  no  doubt  at  present,  but 
that  the  w^riting  and  publishing  anything  which  renders  a  man  ridicu- 
lous is  actionable ;  and  whether  the  itch  be  occasioned  by  a  man's 
fault  or  misfortune,  it  is  a  cruel  charge,  and  renders  him  both  ridicu- 
lous and  miserable,  by  being  kept  out  of  all  company:  I  repeat  it, 
that  I  wish  there  was  some  more  solemn  determination,  that  the  Avrit- 
ing  and  publishing  anything  which  tends  to  make  a  man  ridiculous  " 

22  Compare:  Cook  v.  Ward  (1S30)  6  Biiig.  409,  130  Reprint,  1338:  (To 
entertain  a  party  of  friends,  P.  told  as  a  joke  on  himself  that  he  had  at- 
tended a  murder  trial  and  been  addressed  there  as  the  hangman;  D. 
printed  the  story  as  a  fact  in  his  new.spaper.)  McBride  v.  Ellis  (1856)  9 
Kich.  (S.  C.)  313:  (D.  caused  the  publication  in  a  local  newspaper  of  an 
obituary  notice  of  P.,  a  lady.  "The  residence  and  name  were  truly  given, 
though  the  age  was  greatly  exaggerated.")  Funston  v.  Pearson,  in  the  King's 
Bench  Division  (London  Times,  March  12,  1915):  (D.,  the  proprietor  of  cer- 
tain dental  surgeries,  advertised  them  on  a  theater  curtain.  The  advertise- 
ment had  these  features:  On  one  side  of  the  curtain  \^■as  the  photograph 
of  a  lady  absolutely-  without  teeth.  On  the  (Other  side  was  a  photograph 
of  the  same  lady  with  a  full  set  of  teeth.  Under  the  first  picture  wasA^rit- 
ten  "Before,"  and  under  the  other  "After."  The  photographs  were  both 
those  of  P.,  an  actress,  performing  in  London.  Underneath  the  pictures 
appeared  the  following  lines : 

"Laugh  and  the  world  laughs  with  you, 
But  not  when  your  teeth  are  bad, 
So  hustle  and  pay  us  a  visit, 

And  get  the  laugh  that's  glad." 

In  P.'s  action  for  libel,  it  was  submitted,  for  the  defendant,  that  the  mat- 
ter complained  of  was  not  reasonably  susceptible  of  a  defamatory  meaning. 
Said  Scrutton,  J. :  "Not  to  show  a  young  and  good-looking  person  with  all 
her  teeth  out?  I  am  entirely  against  you."  Verdict  for  the  plaintiff  with 
£30  damages,  and  judgment  thereon.) 

But  see  Cohen  v.  New  York  Times  Co.  (1912)  153  App.  Div.  242,  138  N.  T. 
Supp.  206,  210:  ("The  question,  then,  whether  this  publication  [of  an 
obituary  notice  of  the  plaintiff!  could  be  a  libel  per  se,  involves  the  inquiry 
whether  it  could  have  injured  the  reputation  of  the  plaintiff.  Here  is  a 
bare  item  of  news  in  a  newspaper.    The  item  states  that  an  event  has  come 


586  TORTS  THROUGH  ACTS  OF   ABSOLUTE  LIABILITY  (Part  1 

or  infamous  ought  to  be  punished ;  for  sayings:  a  man  has  the  itch, 
without  more,  perhaps  an  action  would  not  lie  without  other  malevolent 
circumstances.  I  am  of  the  same  opinion  that  judgment  must  be  for 
the  plaintiff. 

Gould,  J.  What  my  Brother  BaThurst  has  said  is  very  material ; 
there  is  a  distinction  between  libels  and  words ;  a  libel  is  punishable 
both  criminally  and  by  action,  when  speaking  the  words  would  not  be 
punishable  in  either  way ;  for  speaking  the  words  "rogue"  and 
"rascal"'  of  anyone,  an  action  will  not  lie;  but  if  these  words  were 
written  and  published  of  any  one,  I  doubt  not  an  action  would  lie.  If 
one  man  should  say  of  another  that  he  has  the  itch,  without  more,  an 
action  would  not  lie ;  but  if  he  should  write  those  words  of  another, 
and  publish  them  maliciously,  as  in  the  present  case,  I  have  no  doubt 
at  all  but  the  action  well  lies.  What  is  the  reason  why  saying  a  man 
has  the  leprosy  or  the  plague  is  actionable  ?  It  is  because  the  having  of 
either  cuts  a  man  off  from  society ;  so  the  writing  and  publishing 
maliciously  that  a  man  has  the  itch  and  stinks  of  brimstone,  cuts  him 
off  from  society.  I  think  the  publishing  anything  of  a  man  that  renders 
him  ridiculous  is  a  libel  and  actionable,  and  in  the  present  case  am  of 
opinion  for  the  plaintiff. 

Judgment  for  the  plaintiff  PER  ToT.  Cur.  without  granting  any  rule 
to  shew  cause. 


THORLEY  V.  LORD  KERRY. 

(In  the   Exchequer   Chamber,    1812.     4  Taunt.   8.54,    13   R.    R.   62G.) 

This  was  a  writ  of  error  brought  to  reverse  a  judgment  of  the 
King's  Bench,  in  an  action  on  a  libel  in  a  letter  written  by  the  defend- 
ant. The  defamation  was  found  in  this  passage  in  the  letter,  which 
was  set  out  in  the  declaration : 

"I  sincerely  pity  the  man  (meaning  the  plaintiff)  that  can  so  far  forget 
\^-)hat  is  clue,  not  only  to  himself  bvU:  to  others,  who.  under  the  cloak  of 
religious  and  spiritual  reform,  hypocritically,  and  with  the  grossest  impurity, 
deals  out  his  malice,  uncharitableness,  and  falsehoods." 


to  i)ass  which  is  looked  for  in  the  history  of  every  man,  is  regarded  as 
beyond  his  control,  and  therefore  does  not  permit  the  inference  that  the 
man  has  done  any  act  or  suffered  any  act  which  he  could  not  have  done 
or  which  he  need  not  have  suffered.  Prematurity  is  the  sole  peculiarity. 
How  can  tlie  imblication  of  such  an  event,  merely  as  a  matter  of  news, 
hold  up  the  subject  to  scorn,  to  hatred,  to  contempt,  or  to  ridicule,  so  that 
his  reputation  is  impaired?  Such  pulilication  may  be  unpleasant;  it  may 
annoy  or  irk  the  subject  thereof;  it  may  subject  him  to  joke  or  to  jest  or 
banter  from  those  who  knew  him  or  knew  of  him,  even  to  the  e.xtent  of 
affecting  his  feelings;  but  this  in  itself  is  not  enough.  Samuels  v.  KtsxMiing 
Mail  Association  [18751  <'  liun,  5;  Lombard  v.  Lennox  [1891]  105  iSIass.  70, 
28  N.  E.  1125,  31  Am.  St.  Rep.  528;  Duvivier  v.  French  [lOUOl  104  Fed.  278, 
43  C.  C  A.  529.  The  question  is,  as  we  have  seen,  whether  the  publication 
'tends  to  lower  him  in  the  opinion  of  men  wliose  standard  of  opinion  the 
court  can  prop(>rly  recognize  or  to  induce  them  to  entertain  an  ill  opinion 
of  him.'     Lord  Ualsbury's  Laws  of  England,  vol.  18,  p.  019."     I'er  Jenks,  I'.  J.) 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  587 

Upon  not  guilty  pleaded,  the  writing  of  the  letter  by  the  defendant 
was  proved,  and  that  he  delivered  it  unsealed  to  a  servant  to  carry, 
who  opened  and  read  it :  a  verdict  was  found  for  the  plaintiff  with 
£20  damages,  and  judgment  was  passed  for  the  plaintiff  without  argu- 
ment in  the  Court  below.  The  plaintiff  in  error  assigned  the  general 
errors. 

Barnewall  for  the  plaintiff  in  error,  argued  that  there  were  no  words 
in  this  case,  for  which,  if  spoken,  the  action  would  bo  maintainable, 
and  he  denied  that  there  was  any  solid  ground,  either  in  authority  or 
principle,  for  the  distinction  supposed  to  have  prevailed  in  some  cases, 
that  certain  words  are  actionable  when  written,  which  are  not  action- 
able when  spoken.  He  contended  that  all  actionable  words  were  re- 
ducible to  three  classes:  (1)  Where  they  impute  a  punishable  crime; 
(2)  where  they  impute  an  infectious  disorder ;  (3)  where  they  tend  to 
injure  a  person  in  his  office,  trade,  or  profession,  or  tend  to  his  dis- 
herison, or  produce  special  pecuniary  damages.  1  Ro.  Ab.  Action 
sur  case  pur  parols,  passim ;  Co.  Dig.  Action  upon  the  Case  for 
Defamation,  passim.  And  these  words  do  not  come  within  either  of 
those  classes.  Neither  of  those  books  recognize  the  distinction  be- 
tween written  and  unwritten  slander.  All  the  older  cases  treat  them 
on  the  same  footing.  *  *  *  'phe  reason  assigned,  that  the  print- 
ing or  writing  indicated  a  greater  degree  of  malice  than  mere  speak- 
ing, is  a  bad  one ;  for  it  is  not  the  object  of  an  action  at  law  to  punish 
moral  turpitude,  but  to  compensate  a  civil  injury:  the  compensation 
must  be  proportionate  to  the  measure  of  the  damage  sustained ;  but  it 
cannot  be  said  that  the  publication  of  written  slander  is  in  all  cases 
attended  with  a  greater  damage  than  spoken  slander,  for  if  a  defend- 
ant speaks  words  to  a  hundred  persons  assembled,  he  disseminates 
the  slander  and  increases  the  damage  an  hundred  fold,  as  much  as  if 
he  only  wrote  it  in  a  letter  to  one.^* 

Mansfield,  C.  J.  *  *  *  The  words,  if  merely  spoken  would 
not  be  of  themselves  sufficient  to  support  an  action.  But  the  question 
now  is,  whether  an  action  will  lie  for  these  words  so  written,  not- 
withstanding that  such  an  action  would  not  lie  for  them  if  spoken; 
and  I  am  very  sorry  it  was  not  discussed  in  the  Court  of  King's  Bench, 
that  we  might  have  had  the  opinion  of  all  the  twelve  Judges  on  the 
point,  whether  there  be  any  distinction  as  to  the  right  of  action,  be- 
tween written  and  parol  scandal ;  for  myself,  after  having  heard  it 
extremely  well  argued,  and  especially,  in  this  case  by  Mr.  Barnewall, 
I  cannot,  upon  principle,  make  any  difference  between  words  written 
and  words  spoken,  as  to  the  right  which  arises  on  them  of  bringing  an 
action. 

For  the  plaintiff  in  error  it  has  been  truly  urged,  that  in  the  old 
books  and  abridgments  no  distinction  is  taken  between  words  written 

23  The  statement  of  the  case  has  been  abridged.  Part  of  Barnewall's 
argument,  all  of  Dampier's  argument,  and  part  of  Chief  Justice  MaiLsfield's 
opinion  are  omitted. 


588  TORTS  THROUGH  ACTS  OF    ABSOLUTE  LIABILITY  (Part  1 

and  words  spoken.  But  the  distinction  has  been  made  between  writ- 
ten and  spoken  slander  as  far  back  as  Charles  the  Second's  time,  and 
the  difference  has  been  recognized  by  the  Courts  for  at  least  a  century 
back.  It  does  not  appear  to  me  that  the  rights  of  parties  to  a  good 
character  are  insufficiently  defended  by  the  criminal  remedies  which 
the  law  gives,  and  the  law  gives  a  very  ample  field  for  retribution  by 
action  for  words  spoken  in  the  cases  of  special  damage,  of  words 
spoken  of  a  man  in  his  trade  or  profession,  of  a  man  in  office,  of  a 
magistrate  or  officer;  for  all  these  an  action  lies.  But  for  mere  gen- 
eral abuse  spoken,  no  action  lies.  In  the  arguments  both  of  the  judges 
and  counsel,  in  almost  all  the  cases  in  which  the  question  has  been, 
whether  what  is  contained  in  writing  is  the  subject  of  an  action  or  not, 
it  has  been  considered,  whether  the  words,  if  spoken,  would  maintain 
an  action.  It  is  curious  that  they  have  also  adverted  to  the  question, 
whether  it  tends  to  produce  a  breach  of  the  peace :  but  that  is  wholly 
irrelevant,  and  is  no  ground  for  recovering  damages.  So  it  has  been 
argued  that  writing  shews  more  deliberate  malignity;  but  the  same 
answer  suffices,  that  the  action  is  not  maintainable  upon  the  ground  of 
the  malignity,  but  for  the  damage  sustained.  So,  it  is  argued  that 
written  scandal  is  more  generally  diffused  than  words  spoken,  and  is 
therefore  actionable,  but  an  assertion  made  in  a  public  place,  as  upon 
the  Royal  Exchange,  concerning  a  merchant  in  London,  may  be  much 
more  extensively  diffused  than  a  few  printed  papers  dispersed,  or  a 
private  letter :  it  is  true  that  a  newspaper  may  be  very  generally  read, 
but  that  is  all  casual. 

These  are  the  arguments  which  prevail  on  my  mind  to  repudiate 
the  distinction  between  written  and  spoken  scandal ;  but  that  distinc- 
tion has  been  established  by  some  of  the  greatest  names  known  to  the 
law.  Lord  Hardwicke,  Hale,  I  believe,  Holt,  C.  J.,  and  others.  Lord 
Hardwicke,  C.  J.,  especially  has  laid  it  down  that  an  action  for  libel 
may  be  brought  on  words  written,  when  the  words,  if  spoken,  would 
not  sustain  it.  Co.  Dig.  tit.  Libel,  referring  to  the  case  in  Fitzg.  122, 
253,  says  there  is  a  distinction  between  written  and  spoken  scandal, 
by  his  putting  it  down  there  as  he  does,  as  being  the  law,  without  mak- 
ing any  query  or  doubt  upon  it,  we  are  led  to  suppose  that  he  was  of 
the  same  opinion.  I  do  not  now  recapitulate  the  cases,  but  we  cannot, 
in  opposition  to  them,  venture  to  lay  down  at  this  day  that  no  action 
can  be  maintained  for  any  words  written,  for  which  an  action  could 
not  be  maintained  if  they  were  spoken :  upon  these  grounds  we  think 
the  judgment  of  the  Court  of  King's  Bench  must  be  affirmed. 

The  purpose  of  this  action  is  to  recover  a  compensation  for  some 
damage  supposed  to  be  sustained  by  the  plaintiff  by  reason  of  the  libel. 
The  tendency  of  the  libel  to  provoke  a  breach  of  the  peace,  or  the  de- 
gree of  malignity  which  actuates  the  writer,  has  nothing  to  do  with 
the  question.  If  the  matter  were  for  the  first  time  to  be  decided  at 
this  day,  I  should  have  no  hesitation  in  saying,  that  no  action  could  be 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  589 

maintained   for  written  scandal  which  could  not  be  maintained  for 
the  words  if  they  had  been  spoken.-* 
Judgment  affirmed. 


TRIGGS  V.  SUN  PRINTING  &  PUBLISHING  ASS'N. 

(Court  of  Appeals  of  New  York,  1904.    179  N.  Y.  144,  71  N.  E.  739,  66  L.  R.  A. 
612,  103  Am.   St.   Rep.   841,  1  Ann.  Cas.  326.) 

Appeal  taken  in  pursuance  of  leave  granted  by  the  Appellate  Di- 
vision of  the  Supreme  Court,  which  certified  that  a  question  of  law 
had  arisen  which,  in  its  opinion,  ought  to  be  reviewed  by  the  Court 
of  Appeals.  This  question  was  stated  as  follows :  Does  the  com- 
plaint state  facts  sufficient  to  constitute  a  cause  of  action? 

The  complaint,  without  alleging  special  damage,  set  forth  three 
articles  which  had  been  published  in  the  defendant's  newspaper,  al- 
leged that  the  plaintiff  was  and  for  seven  years  had  been  engaged  in 
teaching  in  the  Department  of  English  at  the  University  of  Chicago, 
and  in  writing  on  subjects  connected  with  English  literature,  and 
prayed  judgment  in  damages  for  a  libel. 

The  character  of  these  articles  is  indicated  in  the  following  ex- 
tract : 

"We  cannot  boast  of  having  discovered  Triggs,  for  he  was  born  great, 
discovered  himself  earlj',  and  has  a  just  appreciation  of  the  value  of  this 
discovery.  But  in  our  humble  way  we  have  helped  commvmicate  him  to 
the  world,  assisted  in  his  effusion  and  diffusion,  and  beckoned  reverent 
millions  to  his  shrine.  We  have  joyed  to  see  him  perform  three  heroic 
labors,    viz.: 

"1.  'Knock  out'  old  Whittier  and  Longfellow. 

"2.  'Do    up'    the  hymn    writers. 

"3.  Name  his  baby  at  the  end  of  a  year  of  solemn  consultation. 

"But  these  achievements  are  only  the  bright  beginning  of  a  long  course  of 
halcyon   and    vociferous   proceedings.     As   yet,    Prof.   Triggs    is   but   in  the 

2  4  "It  is  not  easy  to  perceive  why  any  distinction  should  be  made  between 
written  and  oral  slander,  but  the  case  referred  to,  Thorley  v.  Lord  Kerry, 
has  established  it  too  firmly  to  be  shaken."  Best,  C.  J.,  in  Archbishop  of 
Tuam  V.  Robeson  (1S28)  5  Bing.  17,  21,  30  R.  R.  530,  533. 

"The  civil  doctrine  of  libel  was  first  announced  by  Lord  Chief  Baron 
Hale  in  King  v.  Lake  in  the  Exchequer,  in  1670,  Hardres,  470.  There  are 
a  few  earlier  cases  in  which  the  defamation  was  in  writing,  but  on  no 
occasion  was  this  regarded  as  a  title  to  a  remedy  if  the  matter  written  did 
not  come  within  recognized  exceptions.  King  was  a  barrister  who  claimed 
to  have  been  damnified  in  his  good  name  and  credit  and  profession  by  reason 
of  the  fact  that  Sir  Edward  Lake  had  written  of  a  petition  to  Parliament 
drawn  up  by  King  that  it  was  stuffed  with  illegal  assertions,  ineptitudes 
and  imperfections,  and  clogged  with  gross  ignorances,  absurdities,  and 
solecisms.  Hale  held  that  'although  such  general  words  spoken  once  without 
writing  or  publishing  them  would  not  be  actionable,  yet  here,  they  being 
writ  and  published,  which  contains  more  malice  than  if  they  had  been 
once  spoken,  they  are  actionable.'  *  *  *  The  matter  may  be  said  to  have 
been  finally  determined  by  the  judgment  of  the  Exchequer  Chamber  in  the 
case  of  Thorley  v.  Lord  Kerry,  in  1812,  4  Taunton,  355."  Van  Vechten  Veeder, 
"History  of  the  Law  of  Defamation,"  3  Col.  Law  Rev.  569,  3  liCgal  Essays, 
471-473. 


590  TORTS  THROUGH  ACTS  OF   ABSOLUTE  LIABILITY  (Part  1 

bud.  He  came  near  blossoming  the  other  day,  and  the  English  drama  would 
have  blossomed  with  him.  A  firm  wliieh  is  to  T)roduce  'Rxjmeo  and  Juliet' 
offered  him  !f700  a  week  to  be  the  'advance  agent'  of  the  show  and  to 
'work  up  enthusiasm  by  lecturing.'  Prof.  Triggs  was  compelled  to  decline 
the  offer,  but  the  terms  of  his  refusal  show  that  it  is  not  absohite,  and 
that  'some  day,'  as  the  melodramas  cry,  he  will  illuminate  Shakespeare, 
dramatic  literature,  and  the  public  mind.  *  *  *  if  tliese  plays  are  to 
be  put  upon  the  stage,  they  must  be  rewritten;  and  Prof.  Triggs  is  the 
destined  rewriter,  amender,  and  reviser.  The  sapless,  old-fashioned  rhetoric 
must  be  cut  down.  The  fresh  and  natural  contemporary  tongue,  pure 
Triggsian,  must  be  substituted.  For  example,  who  can  read  with  i^atieuce 
these  tinsel  lines? 

"  'Madam,  an  hour  before  the  worshipped  sun 
'Peered  forth  the  golden  window  of  the  east, 
'A  troubled  mind  drave  me  to  walk  abroad.' 
"This  must  be  translated  into  Triggsian,  somewhat  like  this: 
"  'Say,  lady,  an  hour  before  sunup  I  was  feeling  wormy,  and  took  a  walk 
around  the  block." 
"Here  is  more   Shakesperian  rubbish: 
" 'O,  she  doth  teach  the  torches  to  burn  bright! 
'Her  beauty  hangs  upon  the  cheek  of  night, 
'As  a  rich  jewel  in  an  Ethiop's  ear.' 
"How  much  more  forcible  in  clear  concise  Triggsian: 

"'Say,  she's  a  peach!  a  bird!' 
"Hear  'Pop'  Capulet  drivel: 
"  'Go  to,  go  to, 
'You  are  a  saucy  boy.' 
"In  the  Oscar  dialect  this  is  this: 

"  'Come  off,  kid  !    You're  too  fresh.' 
"Compare  the  dropsical  hifalutin: 

"  'Night's  candles  are  burnt  out,  and  jocund  day, 
'Stands  tiptoe  on  the  misty  mountain's  tops.' 
— with  the  time-saving  Triggsian  version: 
"  'I  hear  the  milkman.'  " 

To  the  complaint  the  defendant  demurred  upon  the  ground  that  it 
did  not  state  facts  sufficient  to  constitute  a  cause  of  action.  The 
issue  of  law  thus  raised  was  tried  at  the  Special  Term,  and  the  court 
found  (1)  that  the  complaint  states  facts  sufficient  to  constitute  a 
cause  of  action ;  and  (2)  that  the  statements  complained  of  are  libel- 
ous per  se.  It  thereupon  directed  an  interlocutory  judgment  over- 
ruling the  demurrer,  with  costs,  with  leave  to  the  defendant  to  answer 
within  20  days  upon  payment  of  costs,  and,  in  default,  that  final 
judgment  should  be  entered.  The  defendant  appealed  from  such  in- 
terlocutory judgment  to  the  Appellate  Division,  where  it  was  revers- 
ed, and  the  demurrer  of  the  defendant  sustained,  with  costs,  with 
leave  to  the  plaintiff  to  amend  his  complaint.  Thereupon  he  appealed 
from  the  order  of  the  Appellate  Division  by  permission  of  that  court.^^ 

Martin,  J.  (after  stating  the  facts).  This  action  was  for  libel.  The 
defendant  demurred  to  the  complaint  upon  the  ground  that  it  did  not 
state  facts  sufficient  to  constitute  a  cause  of  action.  By  interposing 
a  demurrer  upon  that  ground,  all  the  facts  alleged  in  the  complaint, 

2  0  The  statement  of  the  case  Is  abridged. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  501 

or  which  can  by  reasonable  and  fair  intendment  be  implied  from  the 
allegations  thereof,  are  deemed  admitted.  Marie  v.  Garrison,  83  N. 
Y.  14;  Sanders  v.  Soutter,  126  N.  Y.  193,  195,  27  N.  E.  263;  Ahrens 
v.  Jones,  169  N.  Y.  555,  559,  62  N.  E.  666,  88  Am.  St.  Rep.  620. 
A  written  or  printed  statement  or  article  published  of  or  concern- 
ing another  which  is  false,  and  tends  to  injure  his  reputation,  and 
thereby  expose  him  to  public  hatred,  contempt,  scorn,  obloquy,  or 
shame,  is  libelous  per  se.  Riggs  v.  Denniston,  3  Johns.  Cas.  198,  2 
Am.  Dec.  145;  Steele  v.  Southwick,  9  Johns.  214;  Van  Ness  v.  Ham- 
ilton, 19  Johns.  349,  367;  Root  v.  King,  7  Cow.  613;  Cooper  v. 
Greeley,  1  Denio,  347;  Shelby  v.  Sun  Printing  &  P.  Ass'n,  38  Hun, 
474,  affirmed  109  N.  Y.  611,  15  N.  E.  895;  IMcFadden  v.  Morning 
Journal  Ass'n,  28  App.  Div.  508,  51  N.  Y.  Supp.  275;  Bergmann  v. 
Jones,  94  N.  Y.  51,  64;  ]\loore  v.  Francis,  121  N.  Y.  199,  23  N. 
E.  1127,  8  L.  R.  A.  214,  18  Am.  St.  Rep.  810;  Morey  v.  Morning 
Journal  Ass'n,  123  N.  Y.  207,  25  N.  E.  161,  9  L.  R.  A.  621,  20  Am. 
St.  Rep.  730;  Mattice  v.  Wilcox,  147  N.  Y.  624,  42  N.  E.  270; 
Gates  V.  N.  Y.  Recorder  Co.,  155  N.  Y.  228,  49  N.  E.  769;  Morrison 
V.  Smith,  177  X.  Y.  366,  69  N.  E.  725.^-^ 

When  the  articles  published  by  the  defendant  of  and  concerning  the 
plaintiff  are  read  in  the  light  of  the  foregoing  principles  of  law,  it 
becomes  obvious,  we  think,  that  they  were  libelous  per  se.  It  seems 
impossible  for  any  fair-minded  person  to  read  the  articles  alleged  in 
the  complaint  without  reaching  the  conclusion  that  they  were  not  only 
intended,  but  necessarily  calculated,  to  injure  the  plaintiff's  reputation, 
and  to  expose  him  to  public  contempt,  ridicule,  or  shame.     *     *     *  -' 

The  order  of  the  Appellate  Division  should  be  reversed,  the  judg- 
ment of  the  Special  Term  affirmed,  and  the  question  certified  answer- 
ed in  the  affirmative. 


PECK  V.  TRIBUNE  CO. 

(Circuit  Court  of  Appeals,  Seventh  Circuit,  1907.    83  C.  C.  A.  202, 154  Fed.  3.30. 

Supreme  Court  of  United  States,  1909.    214  U.  S.  185,  29  Sup.  Ct.  554, 

53  L.  Ed.  9G0,  16  Ann.  Cas.  1075.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern 
Division  of  the  Northern  District  of  Illinois. 

The  case  in  the  court  below  was  an  action  at  law  by  plaintiff  in 
error,  a  citizen  of  Iowa,  against  defendant  in  error,  a  corporation  or- 
ganized under  the  laws  of  Illinois,  to  recover  damages  for  the  print- 
mg  in  its  newspaper  by  defendant  in  error  of  the  advertisement  given 
on  the  following  page. 

2  6  See,  also,  Holm  v.  Holm  (1911)   140  App.  Div.  75,  1.30  N.  Y.  Supp.  670, 
and  cases  in  "Libel  and  Slander,"  Cent.  Dig.  §§  1-9 ;    Dec.  Dig.  §  16. 
-~  For  the  remainder  of  the  opinion,  see  infra,  under  Fair  Comment 


593 


TORTS  THROUGH   ACTS  OP    ABSOLUTE   LIABILITY 


(Part  1 


Nurse  and  Patients 

Praise  Duffy's 

Mr*.  A.  Schuman,  Ono  of  Chicago's  Most  Capable  and   GxperlenceJ 
Nurses,  Pays  an  Eloquent  Tribute  to  the  Great  Invigor- 
ating, Life-Qiving  and  Curative  Properties  of 
DUFFY'S  PURE  MALT  WlilSKEY. 

I        "  For  that  weak,  run-down  and  gone  feeling,  it  is  tbe  best  (OOlC  tod  lUn* 
uUnt  in  tlie  world." 


MRS.  A.  SCHUMAN. 
"After  y«ftr«  of  constant  use  of  your  Pure  Malt  WhUfcay  both  by  tnV*elf  lifi*  •* 
Riven  to  patienla  in  my  capacity  as  nurso.  I  have  no  hesitation  In  recommenflihg  u,a* 
the  very  best  tonic  and  stimulant  for  nil  weak  and  run  down  conditions.  'At  Unjt 
twenty-rivo  families  use  It  in  my  own  neighborhood,  and  when  I  go  out  nursing^ patient* 
ask  me  what  to  take  for  that  gone  feeling.'  and  once  that  Duffy's  U  within  tbelr  tcaob 
It  Is  used  always." — Sin.  A.  Soliamaa,  1678  Mozart  St,  Chloago,  111.  ^^ 

Duffy's  Pure  Malt  Whiskey 

•  For  more  than  fifty  y«ars  Duffy's  Purs  MalfWliIskcy  haa  been  prescribed  by  diO.' 
tors  and  used  In  over  two  thousand  leading:  hospitals  as  the  purest  and  most  powt»rful 
tonlc-stlmulant.  Invlgorator  and  heaittj-bulldcr  known  to  the  medical  science.  It  Is 
endorsed  by  the  clergy  and  profesiilonal  nurses  and  recommended  by  all  schools  of 
medicine  as.  a  positive  cure  for  pneumonia,  consumption,  grip,  dyspepsia,  Indlgeutlon, 
nervous  prostration,  all  diseases  of  the  throat  and  lungs,  and  every  form  of  stomach 
troubler  i{ialar!a.  chills,  fever,  and  all  run-down,  weakened,  diseased  conditions  of  th» 
body,  brain,  mind  and  muscle.  It  Is  a  heart  tonic,  blood  purifier  and  promoter  of  hea".:i 
and  long  llfo:  makes  the  old  hearty  apd  young,  and  keeps  the  young  vigorous  ani 
strong.  Duffy's  Pure  Walt  Whiskey  contains  no  fusel  oil,  «nd  is  the  onlT  whlsltcy 
recognized  by  the  government  as  medicine.  *  ^ 

Tliere  is  but  ono  Duffy's  Pure  Malt 
Whiskey.  Insist  on  having  the  genuine 
and  refuse  cheap  substitutes  and  imi- 
tatlons  offered  by  unscrupulous  dealers, 
which  are  placed  on  tho  market  for 
profit  only  and  which  are  positively 
harmful  to  both  body  and  brain.  Look  for 
tho  trade-mark,  the  "Old  Chemist,"  on 
the  label,  and  be  sure  the  seal  on  the 
bottle  is  unbroken.  Sold  in  sealed  bot« 
ties  only;  nevf  r  In  bulk. 

All  reliable  druggists  and  grocer*,  or  direct.  11.00  a  bottle. 
booklet  free.    Duffy's  Malt  Whjikey  Co.,  Rochester,  N,  T. 


Advice  and  medlen 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  593 

The  first  two  counts  of  the  declaration  proceeded  as  for  Ubel,  and 
alleged  that  the  plaintiff  was  not  Mrs.  Schuman,  was  not  a  nurse,  and 
was  a  total  abstainer  from  whisky  and  all  spirituous  liquors.  There 
was  also  a  count  for  publishing  the  plaintiff's  likeness  without  leave. 
The  defendant  pleaded  not  guilty.  At  the  trial,  subject  to  exceptions, 
the  judge  excluded  the  plaintiff's  testimony  in  support  of  her  allega- 
tions just  stated,  and  directed  a  verdict  for  the  defendant.-® 

In  the  Circuit  Court  of  Appeals. 

Grosscup,  Circuit  Judge.  The  plaintiff  in  error  indisputably  has 
suffered  a  wrong,  the  gist  of  which  is  that  by  the  publication  of  her 
picture  in  connection  with  a  patent  medicine  advertisement,  people 
who  recognize  the  portrait  will  be  led  to  think  that  she  has  loaned  her 
face,  and  perhaps  her  name,  in  a  way  that  a  self-respecting  person 
would  not  have  consented  to.  Were  the  case  under  review  an  appli- 
cation for  an  injunction  to  restrain  future  publications,  or  were  it 
an  action  at  law  against  the  parties  consciously  responsible  for  the 
make-up  of  the  advertisement,  a  question  wholly  different  from  the 
one  presented  by  this  record  would  be  involved. 

The  first  question  presented  here  is,  whether  the  plaintiff  in  error 
made  out  a  case  of  libel  in  her  declaration  and  proof — the  gravamen 
of  the  action,  as  set  forth  in  the  declaration,  being,  that  whereas  plain- 
tiff in  error  was  not  a  nurse,  and  did  not  either  for  herself,  or  as 
imrse,  use  Duffy's  Malt  Whiskej'-  as  a  tonic,  the  advertisement  was 
calculated  to  convey  the  impression  that  she  was  a  nurse,  and  that 
both  for  herself,  and  as  nurse,  she  had  used  Duffy's  Malt  Whiskey 
as  a  tonic.  This  being  the  whole  of  the  libel  charged,  and  there  being- 
no  averment  of  special  damages,  the  question  is :  Is  such  a  publica- 
tion libelous  per  se  ?  We  think  not.  It  is  not,  in  our  opinion,  libelous, 
per  se,  to  say  of  a  person  that  she  is  a  nurse,  or  that  she  has  used 
as  a  tonic  Duffy's  Pure  Malt  Whiskey,  or  has  recommended  its  use. 
Nor  do  we  think  that  these  things  said  of  a  person,  independently  of 
other  averments  or  circumstances,  make  out  a  case  to  go  to  a  jury 
for  determination.  Doubtless  there  are  people,  by  whom  the  use 
of  whiskey  as  a  tonic  is  considered  wrong;  and  there  may  be  people 
among  whom  to  be  a  nurse,  is  considered  something  less  desirable 
than  not  to  be  a  nurse.  But  the  world  has  not  yet  arrived  at 
a  concensus  of  opinion  on  these  matters,  that  to  say  these  things 
of  a  person  is,  independently  of  all  other  considerations,  to  libel 
him.     *     *     *  ^® 

2  8  The  stitement  of  the  case  is  abridgecl,  and  the  opinions  of  Judge 
Grosscup  In  the  Circuit  Court  of  Appeals  and  of  Mr.  Justice  Holmes  in  the 
Supreme  Court  are  given  only  so  far  as  tliey  bear  upon  tlie  one  point. 

The  third  count,  framed  on  the  theory  of  a  right  of  privacy,  was  held 
defective,  there  being  no  showing  of  substantial  damage. 

Hepb.  Torts — 38 


594  TORTS  THROUGH  ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 


In  the  Supreme  Court  of  the  United  States. 

On  a  Writ  of  Certiorari  to  the  Circuit  Court  of  Appeals  for  the 
Seventh  Circuit. 

Mr.  Justice  Holmes  deHvered  the  opinion  of  the  Court.  *  *  * 
The  question  then  is  whether  the  pubHcation  was  a  Hbel.  It  was 
held  by  the  Circuit  Court  of  Appeals  not  to  be,  or  at  most  to  entitle 
the  plaintiff  only  to  nominal  damages,  no  special  damage  being  al- 
leged. It  was  pointed  out  that  there  was  no  general  concensus  of 
opinion  that  to  drink  whisky  is  wrong,  or  that  to  be  a  nurse  is  dis- 
creditable. It  might  have  been  added  that  very  possibly  giving  a  cer- 
tificate and  the  use  of  one's  portrait  in  aid  of  an  advertisement  would 
be  regarded  with  irony,  or  a  stronger  feeling,  only  by  a  few.  But  it 
appears  to  us  that  such  inquiries  are  beside  the  point.  It  may  be 
that  the  action  for  libel  is  of  little  use,  but,  while  it  is  maintained, 
it  should  be  governed  by  the  general  principles  of  tort.  If  the  adver- 
tisement obviously  would  hurt  the  plaintiff  in  the  estimation  of  an 
important  and  respectable  part  of  the  community,  liability  is  not  a 
question  of  a  majority  vote. 

We  know  of  no  decision  in  which  this  matter  is  discussed  upon  prin- 
ciple. But  obviously  an  unprivileged  falsehood  need  not  entail  uni- 
versal hatred  to  constitute  a  cause  of  action.  No  falsehood  is  thought 
about  or  even  known  by  all  the  world.  No  conduct  is  hated  by  all. 
That  it  will  be  known  by  a  large  number,  and  will  lead  an  appreciable 
fraction  of  that  number  to  regard  the  plaintiff"  with  contempt,  is 
enough  to  do  her  practical  harm.  Thus,  if  a  doctor  were  represented 
as  advertising,  the  fact  that  it  would  affect  his  standing  with  others 
of  his  profession  might  make  the  representation  actionable,  although 
advertising  is  not  reputed  dishonest,  and  even  seems  to  be  regarded 
by  many  with  pride.  See  Martin  v.  The  Picayune  (Martin  v.  Nichol- 
son Pub.  Co.)  115  La.  979,  4  L.  R.  A.  (N.  S.)  861,  40  So.  376.  It 
seems  to  us  impossible  to  say  that  the  obvious  tendency  of  what  is 
imputed  to  the  plaintiff  by  this  advertisement  is  not  seriously  to  hurt 
her  standing  with  a  considerable  and  respectable  class  in  the  com- 
munity."® Therefore  it  was  the  plaintiff's  right  to  prove  her  case 
and  go  to  the  jury,  and  the  defendant  would  have  got  all  that  it  could 
ask  if  it  had  been  permitted  to  persuade  them,  if  it  could,  to  take 

20  Compare  D'Altomonte  v.  New  York  Herald  Co.  (1913)  154  App.  Div.  453. 
139  X.  Y.  Supp.  200:  (A  sensational  article,  under  a  half  jiaffe  illustration 
and  the  heading,  "Stopping  a  Congo  cannibal  Feast,"  was  published  in  the 
defendant's  newspaper.  In  a  sul)heading  it  named  the  plaiutirt",  a  distinguish- 
ed traveller  and  writer,  as  its  author,  gave  a  short  biographical  sketch  of 
him,  and  represented  him  as  describing  himself  in  the  act  of  rescuing  a 
young  and  courageous  American  "just  as  he  was  about  to  be  killed  and 
eaten  by  savages."  The  article  was  a  fabrication  by  some  person  unknown 
1o  plaintiff.  It  was  "not  avowcilly  written  in  Jest  with  a  view  to  amusing 
the  readers  of  the  newspaper,"  but  was  apparently  written  "in  a  perfectly 
serious  vein.") 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  595 

a  contrary  view.  Culmer  v.  Canby,  41  C.  C.  A.  302,  101  Fed.  195, 
197 ;  Twombly  v.  Monroe,  136  ]\Iass.  464,  469.  See  Gates  v.  New 
York  Recorder  Co.,  155  N.  Y.  228,  49  N.  E.  769. 

It  is  unnecessary  to  consider  the  question  whether  the  publication 
of  the  plaintiff's  Hkeness  was  a  tort  per  se.  It  is  enough  for  the  pres- 
ent case  that  the  law  should  at  least  be  prompt  to  recognize  the  in- 
juries that  may  arise  from  an  unauthorized  use  in  connection  with 
other  facts,  even  if  more  subtlety  is  needed  to  state  the  wrong  than 
is  needed  here.     In  this  instance  we  feel  no  doubt. 

Judgment  reversed. 


(B)  Elements  of  the  Prima  Facie  Cause  in  Defamation 

(a)  Nature  of  the  Charge, 
(aa)  Defamatory 
KELLY  V.  PARTINGTON. 

(Court  of  King's  Bench,  1833.     5  Barn.  &  Adol.  645,  110  Reprint.  929.-) 

The  declaration  in  its  second  count  stated  that  the  defendant, 
falsely  and  maliciously  spoke  and  published  of  and  concerning  the 
plaintiff  as  a  shopwoman  and  servant,  these  defamatory  words :  "She 
(meaning  the  plaintiff)  secreted  Is.  6d.  under  the  till ;  stating,  these 
are  not  times  to  be  robbed."  The  declaration  concluded  with  an 
allegation  of  special  damage,  that  one  Stenning,  by  reason  of  the 
speaking  of  the  words,  refused  to  take  the  plaintiff  into  his  service. 
The  jury  found  a  general  verdict  for  the  plaintiff'. 

Sir  James  Scarlett  obtained  a  rule  nisi  for  arresting  the  judgment, 
on  the  ground  that  the  words  in  the  second  count,  taken  in  their 
grammatical  sense,  were  not  disparaging  to  the  plaintiff;  and  there- 
fore that  no  special  damage  could  result  from  them. 

The  Solicitor-General  shewed  cause.  The  words  in  the  second 
count  (as  the  Court  has  already  decided)  are  not  actionable  without 
special  damage.  The  question  is,  whether  they  are  actionable  even 
with  special  damage.  (Den man,  C.  J.  It  is  contended  that  the  words 
import  that  the  plaintiff  secreted  her  own  money  from  excessive 
caution.)  The  words  may  not  be  actionable  of  themselves,  but  such 
words,  if  a  jury  find  them  to  have  been  spoken  with  a  malicious  in- 
tent to  injure  the  plaintiff,  as  charged  in  this  declaration,  are  ac- 
tionable by  reason  of  special  damage.  Comyns,  C.  B.,  in  his  Digest, 
tit.  Action  on  the  Case  for  Defamation,  D,  30,  after  having  stated, 
under  the  previous  heads,  many  instances  of  words  actionable  in 
themselves,  says,  that  an  action  may  be  maintained  "for  any  words 
by  which  the  party  has  a  special  damage."  Even,  therefore,  if  the 
words  in  question,  bore  the  sense  ascribed  to  them,  yet  being  spoken 


596  TORTS  THROUGH  ACTS  OF    ABSOLUTE  LIABILITY  (Part  1 

falsely  and  maliciously  with  intent  to  injure,  and  followed  by  special 
damage,  they  are  actionable.  And  these  were  in  fact  not  innocent, 
but  disparaging  words,  or  at  all  events,  equivocal ;  and  it  was  for 
the  jury  to  find  in  what  sense  they  were  used.  The  word  "secreted" 
is  used  in  a  bad  sense,  it  usually  imputes  some  bad  motive.  If  the 
words  "stating,  these  are  not  times  to  be  robbed,"  apply  to  the  plain- 
tiff, they  are  ambiguous,  they  may  have  been  used  by  her  as  a  pre- 
tence for  secreting  money  belonging  to  another,  and  that  question 
was  for  the  jury.  (LittlEdalE,  J.  Suppose  a  man  had  a  relation 
of  a  penurious  disposition,  and  a  third  person,  knowing  that  it  would 
injure  him  in  the  opinion  of  that  relation,  tells  the  latter  a  gen- 
erous act  which  the  first  has  done,  by  which  he  induces  the  relation 
not  to  leave  him  money,  would  that  be  actionable?)  If  the  words 
were  spoken  falsely  with  intent  to  injure,  they  would  be  actionable. 
At  all  events,  if  the  words  were  not  laudatory  but  would  bear  a  bad 
sense,  and  a  jury  might  find  (as  they  did  here)  that  they  were  used 
in  that  sense,  and  an  injury  is  stated  to  have  ensued  in  consequence, 
they  are  actionable.^" 

LiTTlEdalE,  J.  I  cannot  agree  that  words  laudatory  of  a  party's 
conduct  would  be  the  subject  of  an  action  if  they  were  followed  by 
special  damage.  They  must  be  defamatory  or  injurious  in  their 
nature.  In  Comyn's  Dig.,  tit.  Action  on  the  Case  for  Defamation 
(D),  30,  it  is  said  generally,  that  any  words  are  actionable  by  which 
the  party  has  a  special  damage,  but  all'  the  examples  given  in  illus- 
tration of  that  rule  are  of  words  defamatory  in  themselves,  but  not 
actionable,  because  they  do  not  subject  the  party  to  a  temporal  pun- 
ishment. In  all  the  instances  put,  the  words  are  injurious  to  the 
reputation  of  the  person  of  whom  they  are  spoken.  The  words  here 
are  extraordinary;  if  they  had  stood  merely,  "She  secreted  Is.  6d. 
under  the  till,"  they  might  perhaps  have  been  actionable,^ ^  but  coupled 
with  the  subsequent  words,  which  appear  only  to  import  great  cau- 
tion on  the  part  of  the  plaintiff,  I  think  we  cannot  say  that  they 
impute  anything  injurious  to  the  plaintift".^^ 

Rule  absolute. 

3  0  The  statement  of  facts  has  been  abridged,  and  the  opinions  of  Denman, 
C.  J.,  and  Taunton,  J.,   are  omitted. 

31  It  api>ear.s  that  the  words  in  the  second  count,  "stating  these  are  not 
times  to  be  robbed,"  were  in  fact  part  of  the  expressions  supposed  to  have 
been  used  by  the  defendant  himself,  but  liad  by  mistalie  been  inserted  in 
this  count  as  if  spoken  by  the  plaintiff. 

32  Whether  words  which  are  not  dofniiiafory  may  be  actionable  as  a 
tort  of  some  other  description,  see  infra,  I'ait  III. 

On  the  extension  of  Slander  and  Libel  to  include  nondefamatory  state- 
ments affecting  the  plaintiff  in  his  business,  see  infra. 

Compare:  Knight  v.  I'.hukford  (18S4)  14  D.  C.  177,  51  Am.  Rep.  772:  (D. 
falsely  stated  to  S.  that  P.,  a  clerk  in  the  employ  of  the  government,  had 
spoken  disrespectfully  of  his  chief,  tliis  report  came  to  the  knowledge  of 
the  latter,  and  he  discharged  P.) 

Loml)ard  v.  Lennox  (1S91)  155  IMass.  70,  28  N.  E.  1125,  31  Am.  St.  Rep. 
52S:    (P.  was  in  the  employ  of  S.,  a  manufacturer,  as  an  apprentice.    D.,  also 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  597 

ARNE  V.  JOHNSON. 
(Court  of  King's  Bench,  1712.     10  Mod.  Ill,  88  Reprint,  651.) 

An  action  was  brought  for  these  words  spoken  of  an  upholster : 

"You  are  a  .soldier,  I  saw  you  in  your  red  coat  doing  duty :    your  word 
is  not  to  be  taken." 

The  words  were  ruled  to  be  actionable ;  because  it  is  known  to  be 
a  common  practice  for  tradesmen  to  protect  themselves  against  their 
creditors  by  a  counterfeit  listing;  nor  can  it  be  worth  a  tradesman's  • 
while  for  any  other  purpose,  but  to  defraud  his  creditors,  by  subjecting 
himself  to  the  power  of  an  officer.  A  soldier  has  by  Act  of  Parlia- 
ment, which  the  Court  must  take  notice  of,  the  privilege  of  not  being 
held  to  special  bail;  and  those  words,  "your  word  is  not  to  be  taken," 
are  plainly  an  inference  from  the  former. 


BOYDELL  V.  JONES. 

(Court  of  Exchequer,  1838.     4  Mees.  &  W.  446,  51  R.  R.  676.) 

Libel.  The  declaration  stated,  that  whereas  the  plaintiff,  for  a  long 
time  before  and  at  the  time  of  the  committing  of  the  grievances  by  the 
defendant  as  hereinafter  mentioned,  resided  and  still  does  reside  in 
Devonshire  Street,  Queen  Square,  London,  and  had  been  and  was  and 
still  is  an  attorney  of  the  Court  of  our  Lady  the  Queen  before  the 
Queen  herself,  and  had  used,  exercised  and  carried  on  the  profession  / 
and  business  of  attorney-at-law,  with  great  credit  and  reputation,  and 
whereas  before  the  time  of  the  committing  of  the  grievances  by  the 
defendant  as  hereinafter  mentioned,  certain  orders  had  been  made  by 
one  of  the  Judges  of  the  said  Court  of  our  Lady  the  Queen  before  the 
Queen  herself,  for  setting  aside  with  costs  certain  proceedings  in  a 
certain  action  then  pending  in  the  said  last  mentioned  court,  in  which 
action  the  now  defendant  was  the  attorney  of  the  then  plaintiff,  and 
the  now  plaintiff  was  the  attorney  of  the  then  defendant ;  and  before 
the  time  of  the  committing  of  the  grievances  by  the  now  defendant  as 
hereinafter  mentioned,  the  said  costs  had  been  and  were  ascertained 
and  taxed  by  one  of  the  Masters  of  the  said  Court;  and  whereas 
before  and  at  the  time  of  the  committing  of  the  grievances  by  the  now 
defendant  as  hereinafter  mentioned,  sharp  practice  in  the  profession 
of  an  attorney  was  and  is,  and  was  and  is  considered  to  be  and  to  im- 
port, disreputable  practice,  and  practice  discreditable  to  the  attorney 

a   manufacturer,    believing   P.   to  be  an    apprentice   of  his.    so    informed   S., 
who  thereupon    discharged   P.     In   fact,   P.   had   been  an   apprentice  of   D., 
but  was  not  .so  at  the  time.) 
See,   also,   25   Cyc.   353-354. 


598  TORTS  THROUGH  ACTS  OP    ABSOLUTE   LIABILITY  (Part  1 

adopting  or  pursuing  the  same ;  whereof  the  now  defendant  then  had 
notice :  yet  the  now  defendant,  well  knowing  the  premises,  but  contriv- 
ing and  falsely  and  maliciously  intending  to  injure  the  now  plaintiff 
in  his  good  name,  fame,  and  credit,  and  also  in  his  said  profession  and 
business  of  an  attorney-at-law,  and  to  cause  it  to  be  suspected  and  be- 
lieved that  the  now  plaintiff  had  been  guilty  of  such  sharp  practice  as 
aforesaid  in  the  said  action,  and  that  he  the  now  plaintiff  had  been 
reprimanded  by  the  said  Master  for  such  practice  as  aforesaid  in  the 
said  action,  &c.,  heretofore,  to  wit,  on  &c.,  wrongfully,  maliciously, 
and  injuriously  composed  and  published  a  certain  ironical,  false, 
scandalous,  malicious,  and  defamatory  libel  of  and  concerning  the 
now  plaintiff',  and  of  and  concerning  him  in  the  way  of  and  in  respect 
of  his  said  profession  and  business  of  attorney-at-law,  and  of  and 
concerning  the  said  action,  and  of  and  concerning  the  practice  of  the 
now  plaintiff  as  such  attorney  with  respect  to  the  aforesaid  orders, 
then  wrongfully  supposed  by  the  now  defendant  to  be  such  sharp  prac- 
tice as  aforesaid,  and  of  and  concerning  the  said  Master,  containing 
therein  the  ironical,  false,  &c.,  matter  following,  of  and  concerning  the 
now  plaintiff,  &c.  &c.,  (that  is  to  say) : 

"An  honest  lawyer  (thereby  meaning  the  now  plaintiff,  and  intending  to 
represent  that  he  was  not  an  honest  lawyer),  a  person  by  the  name  of 
Charles  Boydell  (meaning  the  now  plaintiff),  an  attorney  in  Devonshire 
Street,  Queen  Square,  was  severely  reprimanded  by  one  of  the  Masters 
of  the  Queen's  Bench  (meaning  the  aforesaid  Master)  the  other  day,  for 
what  is  called  sharp  practice  in  his  profession"  (meaning  and  alluding  to 
the  now  plaintiff's  practice  with  respect  to  the  aforesaid  orders  in  the 
said  action,  and  that  such  practice  had  been  and  was  sharp  practice  as 
aforesaid).     By  means  of  which,  &c. 

The  questions  argued  were  (inter  alia)  whether  the  declaration 
showed  a  good  cause  of  action.  Upon  this  question,  after  hearing 
argument  for  the  defendant,  judgment  was  given  as  follows: 

ParkU,  B.  Suppose  he  had  ceased  to  practice  as  an  attorney — this 
is  not  an  action  for  words  but  for  a  libel.  This  is  a  libel  on  him  as 
a  man.  Suppose  he  had  retired  from  his  profession,  and  taken  his 
name  off  the  roll,  to  write  of  him  that  whilst  he  was  an  attorney,  he 
had  been  guilty  of  sharp  practice,  would  be  a  libel  upon  him.  With 
respect  to  the  other  point,  I  think  it  was  a  sufficient  prefatory  aver- 
ment, that  the  liliel  was  ironical.     *     *     * 

The  rest  of  the  Court  concurred. 

Judgment  for  the  plaintiff.^^ 

88  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  599 


DOOLING  V.  BUDGET  PUB.  CO. 

(Supreme  Judicial  Court  of  Massacliusetts,  1887.    144  Mass.  258,  10  N.  E.  809, 

59  Am.  Rep.  S3.) 

Tort,  for  an  alleged  libel,  contained  in  the  following  words : 

"Probably  never  in  the  history  of  the  Ancient  and  Honorable  Artillery 
Company  was  a  more  unsatisfactoiy  dinner  served  than  that  of  Monday 
hist.  One  would  suppose,  from  the  elaborate  bill  of  fare,  that  a  sumptuous 
dinner  would  be  furnished  by  the  caterer,  Dooling ;  but  instead,  a  wretched 
dinner  was  served,  and  in  such  a  way  that  even  hungry  barbarians  might 
justly  object.    The  cigars  were  simply  vile,  and  the  wines  not  much  better." 

At  the  trial  in  the  Superior  Court,  before  Pitman,  J.,  the  publica- 
tion of  the  words  by  the  defendant  was  admitted. 

The  plaintiff's  counsel,  in  opening  the  case  to  the  jury,  stated  that 
the  plaintiff'  was  a  caterer  in  the  city  of  Boston  with  a  very  large  busi- 
ness, and  acted  as  caterer  upon  the  occasion  referred  to.  Upon  the 
statement  of  the  plaintiff's  counsel  that  he  should  offer  no  evidence 
of  special  damage,  the  judge  ruled,  without  reference  to  any  question 
of  privilege  that  might  be  involved  in  the  case,  that  the  words  set  forth 
were  not  actionable  per  se,  and  that  the  plaintiff  could  not  maintain 
his  action  without  proof  of  special  damage ;  and,  the  plaintiff's  counsel 
still  stating  that  he  should  off'er  no  evidence  of  special  damage,  directed 
a  verdict  for  the  defendant;  and  reported  the  case  for  the  determina- 
tion of  this  court. 

If  the  ruling  was  correct,  judgment  was  to  be  entered  on  the  verdict ; 
otherwise,  the  case  to  stand  for  a  new  trial. 

C.  AlIvEn,  J.  The  question  is,  whether  the  language  used  imports 
any  personal  reflection  upon  the  plaintiff  in  the  conduct  of  his  busi- 
ness, or  whether  it  is  merely  in  disparagement  of  the  dinner  which  he 
provided.  Words  relating  merely  tO'  the  quality  of  articles  made,  pro- 
duced, furnished,  or  sold  by  a  person,  though  false  and  malicious,  are 
not  actionable  without  special  damage.  For  example,  the  condemna- 
tion of  books,  paintings,  and  other  works  of  art,  music,  architecture, 
and  generally  of  the  product  of  one's  labor,  skill,  or  genius,  may  be 
unsparing,  but  it  is  not  actionable  without  the  averment  and  proof  of 
special  damage,  unless  it  goes  further,  and  attacks  the  individual. 
Gott  V.  Pulsifer,  122  Mass.  235,  23  Am.  Rep.  322 ;  Swan  v.  Tappan,  5 
Cush.  104;  Tobias  v.  Harland,  4  Wend.  (N.  Y.)  537;  Western  Coun- 
ties Manure  Co.  v.  Lawes  Chemical  Manure  Co.,  L.  R.  9  Ex.  218; 
Young  V.  Macrae,  3  B.  &  S.  264;  Ingram  v.  Lawson,  6  Bing.  N.  C. 
212.  Disparagement  of  property  may  involve  an  imputation  on  per- 
sonal character  or  conduct,  and  the  question  may  be  nice,  in  a  particu- 
lar case,  whether  or  not  the  words  extend  so  far  as  to  be  libellous,  as 
in  Bignell  v.  Buzzard,  3  H.  &  N.  217. 

The  old  case  of  Fen  v.  Dixe,  W.  Jones,  444,  is  much  in  point.  The 
plaintiff  there  was  a  brewer,  and  the  defendant  spoke  of  his  beer  in 


./ 


600  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

terms  of  disparagement  at  least  as  strong-  as  those  used  by  the  pres- 
ent defendant  in  respect  of  the  plaintiff's  dinner,  wines,  and  cigars ; 
but  the  action  failed  for  want  of  proof  of  special  damage. 

In  Evans  v.  Harlow,  5  Q.  B.  624,  631,  Lord  Denman,  C.  J.,  said: 
"A  tradesman  offering  goods  for  sale  exposes  himself  to  obser\'ations 
of  this  kind;  and  it  is  not  by  averring  them  to  be  'false,  scandalous, 
malicious,  and  defamatory,'  that  the  plaintiff  can  found  a  charge  of 
libel  upon  them." 

In  the  present  case  there  was  no  libel  on  the  plaintiff,  in  the  way  of 
his  business.  Though  the  language  used  was  somewhat  strong,  it 
amounts  only  to  a  condemnation  of  the  dinner  and  its  accompaniments. 
No  lack  of  good  faith,  no  violation  of  agreement,  no  promise  that  the 
dinner  should  be  of  a  particular  quality,  no  habit  of  providing  dinners 
which  the  plaintiff  knew  to  be  bad,  is  charged,  nor  even  an  excess  of 
price  beyond  what  the  dinner  was  worth ;  but  the  charge  was,  in  eft'ect, 
simply  that  the  plaintiff,  being  a  caterer,  on  a  single  occasion,  provided 
a  very  poor  dinner,  vile  cigars,  and  bad  wines.  Such  a  charge  is 
not  actionable,  without  proof  of  special  damage.^* 

Judgment  on  the  verdict. 

34  Accord :  Tobias  v.  Harland  (1S30)  4  Weiid.  (N.  Y.)  537 :  (D.  said  of  P., 
a  watch  maker:  "His  watches  are  bad.")  Kennedy  v.  Press  Publishing  Co. 
(1886)  41  Hun  (N.  Y.)  422 :  (P.  was  the  proprietor  of  a  Coney  Island  saloon. 
D.'s  newspaper  published  an  article  which  charged  that  Coney  Island  saloons 
were  the  resort  of  improper  characters.)  Victor  Safe  &  Lock  Co.  v.  Deright 
(lUUU)  147  1^'ed.  211,  77  C.  G.  A.  437,  8  Ann.  Cas.  809,  and  note:  (The  plaintiff 
was  a  corporation  engaged  in  making  the  "Victor"  safe.  The  defendant, 
engaged  in  selling  other  safes,  wrote  to  a  purchnser  of  a  "Victor"  safe  that 
"the  Victor  plate  safe  is  very  cheaply  constructed  and  can  be  easily  bur- 
glarized ;  the  Victor  so-called  'manganese  steel  safe'  is  weaker  still,  and 
can  be  opened  inside  of  a  vault  or  any  where  else  in  a  few  moments 
time.")  Dust  Sprayer  :Mfg.  Co.  v.  Western  Fruit  Grower  (1907)  126  Mo.  App. 
lo9,  103  !S.  \V.  566:  (D.  published  a  letter  in  a  fruit  growers'  magazine, 
stating  that  he  had  used  P.'s  remedy  for  brown  rot  on  peach  trees,  and  had 
found  it  disastrous.)  Hopkins  Chemical  Co.  v.  Read  Drug  &  Chemical  Co. 
(1914)  124  Md.  210,  92  Atl.  478:  (D.  stated  that  a  certain  tooth  paste  was 
"nothing  else  but  grit,  was  very  harmful  to  the  gums,  and  would  take  the 
enamel  off  your  teeth."     P.  was  the  sole  manufacturer  of  this  tooth  paste.) 

Compare  the  remark  of  Cullen,  J.,  in  Kennedy  v.  Press  Publishing  Co. 
(1886)  41  Hun  (N.  Y.)  423:  "A  libel  on  a  thing  may  constitute  a  libel  on  a 
person.  Thus,  to  say  of  a  brewer  that  he  adultei'ates  his  beer  would  be  a 
libel  upon  him  in  his  trade,  not  because  of  the  allegatum  that  the  beer 
was  bad,  but  because  the  language  would  import  deceit  and  malpractice 
on  the  part  of  the  brewer.  It  is,  therefore,  at  times  dilhcult  to  determine 
whether  the  publication  attacks  the  person  or  merely  the  thing,  and  any 
apparent  conflict  in  the  authorities  arises  out  of  this  difficulty."  And  see 
infra. 


Ch.  2)  ABSOLUTE    TORTS  OTHER  THAN  TRESPASSES  601 


MERLE  V.  SOCIOLOGICAL  RESEARCH  FILM 
CORPORATION. 

(Supreme  Court  of  New  York,  Appellate  Division,  First  Department,  1915. 

152   N.   Y.   Supp.   S29.) 

The  action  was  against  the  Sociological  Research  Film  Corporation. 
To  the  complaint,  setting  forth  two  causes  of  action,  the  defendant 
demurred.     The  facts  appear  in  the  opinion  of  the  court  below,  by     y 
Lehman,  J.,  which  was  as  follows : 

The  plaintiff  in  Ms  complaint  attempts  to  set  forth  two  causes  of  action, 
both  based  upon  the  production  of  a  moving  picture  film  or  play  entitled, 
"The  Inside  of  the  White  Slave  Traffic,"  in  which  the  producer  depicts  a 
facto i-y  and  building  bearing  the  plaintiff's  firm  name  of  August  G.  Merle 
&  Co.  The  defendant  has  demurred  to  both  causes  of  action.  The  first 
cause  of  action  is  for  libel,  and  the  only  allegations  which  are,  in  my  opinion, 
possibly  material  to  a  personal  action  for  libel  as  distinguished  from  an 
action  for  libel  of  the  plaintiff's  business,  are:  That  tlie  plaintiff  does 
business  under  the  fii-m  name  of  August  G.  Merle  &  Co.,  has  an  excellent 
name  and  reputation,  and  that  he  employs  a  large  number  of  hands;  that 
the  defendants  have  produced  and  exhibited  a  moving  picture  film  or  play 
called  "The  Inside  of  the  White  Slave  Traffic,"  wherein  they  purported  to 
portray  the  life  of  those  engaged  or  associated  in  the  said  white  slave  traffic, 
wherever  possible  showing  the  ac-tual  places  where  the  traffickers  operate ; 
and  that  in  said  play  they  showed  the  building  wherein  the  plaintiff's  business 
is  located,  and  prominently  displayed  thereon  and  as  part  thereof  the 
plaiutift''s  name  and  his  business  sign,  "August  G.  Merle  &  Co.,  Infants'  and 
Children's  Headwear,"  and  also  showed  a  factory  purporting  to  be  located 
in  said  building  and  to  be  plaintiff's  said  establishment  and  factory  as 
places  where  the  said  cadets  and  traffickers  plied  their  vicious  trade  and 
obtained  victims  from  among  the  girls  employed  in  said  building  and  es- 
tablishment, and  as  places  used  by  said  cadets  and  traffickers  as  rendezvous 
between  them  and  the  unfortunate  victims  whom  they  succeeded  in  obtaining 
or  procuring  in  said  building  and  factory;  "that  the  defendants  thereby 
falsely,  untruthfully,  and  maliciously  charged,  and  intended  to  charge,  the 
plaintiff  with  being  in  some  way  identified  or  connected  with  or  related  to 
the  said  white  slave  traffic  or  system  or  w^th  said  cadets  or  traffickers,  with 
allowing  or  permitting  the  said  trafficking  in  his  establishment  or  in  and 
around  the  building  wherein  his  place  of  business  was  located,  either  for 
gain  or  otherwise,  and  that  in  the  said  building  and  in  the  plaintiff's  said 
establishment  there  was  grave  and  serious  danger  for  the  girls  and  women 
and  for  the  young  men  employed  therein  that  they  might  be  approached 
or  enticed  or  seduced  or  molested  by  these  cadets  or  white  slave  traffickers 
and  induced,  corrupted,  enticed,  or  forced  into  a  life  of  vice,  crime,  shame, 
and  prostitution,  and  that  in  some  way  the  plaintiff  had  knowledge  or  notice 
of  this  condition  of  affairs,  and  that  he  participated  therein,  or  at  least 
acquiesced  in  or  countenanced  the  same." 

A  suit  for  libel  based  upon  a  moving  picture  production  is  a  somewliat 
novel  proceeding,  but  there  is  no  doubt  that  if  the  production  tends  to 
bring  a  person  into  disrepute  it  may  give  rise  to  such  an  action.  The  serious 
question  in  this  case  is,  however,  whether  the  alleged  libel  is  a  libel  directed 
against  the  plaintiff's  business  or  a  libel  against  himself  personally,  for 
concededly  the  complaint  does  not  contain  allegations  of  si)ecial  damage 
sufficient  to  state  a  cause  of  action  if  the  libel  is  directed  only  against  his 
business.  The  distinction  between  the  two  classes  of  cases  is  pointed  out 
in  the  case  of  Marlin  Fire  Ins.  Co.  v.  Shields,  171  N.  Y.  3&4,  390,  64  N.  E.  163, 
59  L.  R.  A.  .•',10.  The  rule  seems  to  be  that  words  spoken  or  written  primarily 
against  a  man's  business  cannot  give  rise  to  an  action  for  damages  without 
special  damage  unless  they  also  directly  charge  the  plaintiff  with  a  personal 
wrong. 


602  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

Whether  the  picture  used  in  this  case  does  charge  the  plaintiff  personally 
with  any  wrongdoing  must  be  determined  from  the  description  of  the 
picture  itself,  and,  though  upou  this  motion  tlie  description  of  tlie  picture 
must  be  taken  as  true,  the  reasonable  inferences  which  can  be  drawn  from 
that  picture  cannot  be  extended  Ity  innuendo.  It  seems  to  me  that  the  only 
fair  inference  to  be  drawn  from  that  picture  is  that  it  contains  a  charge  that 
the  plaiutift's  place  of  business  is  a  place  where  cadets  and  white  slave  traf- 
fickers ply  their  vicinus  trade  and  obtain  victims  and  is  used  as  a  rendezvous 
between  them  and  their  victims,  and  so  far  supports  at  least  the  innuendo 
that  the  plaintiff  permits  the  trallic  to  proceed  upou  his  premises.  It  does 
not,  however,  charge  the  plaintifl'  with  actual  knowledge  of  such  traffic.  The 
case  therefore  seems  to  me  to  come  directly  down  to  the  question :  Does  a 
charge  that  a  place  of  business  where  many  girls  are  employed  is  used  as  a 
place  where  the  white  slave  trade  may  be  recruited  and  as  a  rendezvous 
for  cadets  and  their  victims  reasonably  imply  such  moral  wrong  against  the 
owner  of  the  place  of  business  as  would  bring  him  personally  into  general 
disrepute? 

It  seems  to  me  quite  clear  that,  even  if  we  may  assume  that  the  owner  of 
the  place  of  business  is  ignorant  of  such  conditions,  yet  public  opinion  would 
hold  him  in  abhorrence  for  being  so  careless  of  the  conditions  surrounding  the 
place  where  his  women  employes  work  tliat  evil  men  can  use  the  place  to  en- 
tice them  into  vice.  Moreover,  it  would  seem  that  a  charge  that  a  business 
is  being  carried  on  in  a  vicioiis  manner  might  well  reasonably  imply  that 
the  owner  of  the  business  is  morally  responsible  therefor. 

The  defendant,  however,  relies  upon  the  case  of  Kennedy  v.  Press  Publish- 
ing Co.,  41  Ilun.  422,  in  which  it  was  held  that  a  charge  that  the  plaintiffs 
saloon  was  the  resort  of  improper  characters,  and  that  the  influence  of  as- 
sociation had  there  was  bad,  was  held  not  to  be  a  libel  on  the  plaintiff  per- 
sonally, and  on  the  case  of  Bosi  v.  N.  Y.  Herald  Co.,  33  Misc.  Rep.  G22,  68 
X.  Y.  Supp.  S98,  affirmed  on  opinion  below,  58  App.  Div.  619,  68  N.  Y.  Supp. 
1134,  where  a  similar  construction  was  given  to  an  article  charging  that 
the  plaintiff's  restaurant  was  a  resort  favored  by  anarchists.  Both  these 
cases  seem  to  rest  upon  the  principle  that  a  restaurant  or  saloon  keeper  is 
not  personally  responsible  for  the  character  of  his  guests,  and  that  therefore 
the  articles  affect  the  plaintiff  only  in  his  business ;  but,  whatever  may  be 
the  moral  responsibility  of  a  saloon  or  restaurant  owner  to  keep  out  vicious 
guests,  tlie  measure  of  responsibility  resting  upon  a  factory  owner,  who  has 
complete  control  of  his  premises  and  can  restrict  visitors  there  in  any  way 
he  sees  tit,  is  obviously  governed  by  different  considerations. 

It  follows  that  the  demurrers  to  the  lirst  cause  of  action  are  over- 
ruled.    *     *     *  35 

Per  Curiam.  Order  affirmed,  on  the  opinion  of  Lehman,  J.,  with 
leave  to  defendant  to  withdraw  demurrer  and  answer  on  payment  of 
costs. 


MOORE  V.  FRANCIS  et  al. 

(Court  of  Appeals  of  New  York,  1890.     121  N.  Y.   199,  23  N.  E.   1127, 
8  L.  R.  A.  214,  18  Am.  St.  Rep.  810.) 

The  action  was  for  Hbel.  There  was  a  verdict  for  the  defendants, 
with  judgment  thereon.  From  a  judgment  of  the  General  Term  of 
the  Supreme  Court,  affirming  the  judgment  below,  and  an  order  deny- 
ing a  motion  for  a  new  trial,  the  plaintiff  appealed. 

Andrews,  J.  The  alleged  libelous  publication  which  is  the  subject 
of  this  action  was  contained  in  the  "Troy  Times"  of  September  15, 

85  The  second  cause  of  action  is  omitted.    The  demurrer  to  it  was  sustained. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  603 

1882,  in  an  article  written  on  the  occasion  of  rumors  of  trouble  in 
the  financial  condition  of  the  Manufacturers'  National  Bank  of  Troy, 
of  which  the  plaintiff  was,  at  the  time  of  the  publication,  and  for 
eighteen  years  prior  thereto  had  been,  teller.  The  rumors  referred 
to  had  caused  a  "run"  upon  the  bank,  and  it  is  claimed  by  the  defend- 
ants, and  it  is  the  fair  conclusion  from  the  evidence,  that  the  primary 
motive  of  the  article  was  to  allay  public  e>:citement  on  the  subject. 
That  part  of  the  publication  charged  to  be  libellous  is  as  follows : 

"Several  weeks  ago  it  was  rumored  that  Ainasa  Moore,  the  teller  of  the 
bank,  had  tendered  his  resignation.  Rumors  at  once  began  to  circulate. 
A  reporter  inquired  of  Cashier  Wellington  if  it  was  true  that  the  teller 
had  resigned,  and  received  in  reply  the  answer  that  Mr.  ^Sloore  was  on  his 
vacation.  More  than  this  the  cashier  would  not  say.  A  rumor  was  cir- 
culated that  Mr.  Moore  was  suffering  from  overwork,  and  that  his  mental 
condition  was  not  entirely  good.  Next  came  reports  that  Cashier  Wellington 
was  financially  involved,  and  that  the  bank  \^-as  in  trouble.  A  Times  re- 
porter at  once  sought  an  interview  with  President  Weed  of  the  bank,  and 
found  him  and  Directors  Morrison,  Cowee,  Bradwell  and  others  in  con- 
sultation. They  said  that  the  hank  was  entirely  sound,  with  a  clear  surplus 
of  $100.000 :  that  there  had  been  a  little  trouble  in  its  affairs  occasioned 
by  the  mental  derangement  of  Teller  Moore,  and  that  the  latter's  statements, 
when  he  was  probably  not  responsible  for  what  he  said,  had  caused  some 
bad   rumors." 

The  complaint  is  in  the  usual  form,  and  charges  that  the  publication 
was  false  and  malicious,  made  with  intent  to  injure  the  plaintiff'  in  his 
good  name  and  credit  in  his  occupation  as  bank  teller,  and  to  cause  it 
to  be  believed  that  by  reason  of  mental  derangement  he  had  become 
incompetent  to  discharge  his  duties,  and  had  caused  injury  to  the 
bank,  etc. 

The  court  on  the  trial  was  requested  by  the  plaintiff's  counsel  to 
rule  as  a  question  of  law  that  the  publication  was  libellous.  The  court 
refused,  but  submitted  the  question  to  the  jury.  The  jury  found  a 
verdict  for  the  defendants,  and  as  the  verdict  may  have  proceeded 
upon  the  finding  that  the  article  was  not  libellous,  the  question  is  pre- 
sented whether  it  was  per  se  libellous.  If  it  was,  the  court  erred  in 
leaving  the  question  to  the  jury.  It  is  the  settled  law  of  this  state  that 
in  a  civil  action  for  libel,  where  the  publication  is  admitted  and  the 
words  are  unambiguous  and  admit  of  but  one  sense,  the  question  of 
libel  or  no  libel  is  one  of  law  which  the  court  must  decide.  Snyder  v. 
Andrews,  6  Barb.  43;  ^Matthews  v.  Beach,  5  Sandf.  256;  Hunt  v. 
Bennett,  19  N.  Y.  173;  Lewis  v.  Chapman,  16  N.  Y.  369;  Kingsbury 
v.  Bradstreet  Co.,  116  N.  Y.  211,  22  N.  E.  365.  Of  course  an  error 
in  submitting  the  question  to  the  jury  would  be  harmless  if  their  find- 
ing that  the  publication  was  not  libellous  was  in  accordance  with  its 
legal  character.  The  import  of  the  article,  so  far  as  it  bears  upon  the 
plaintiff,  is  plain  and  unequivocal.  The  words  amount  to  a  distinct 
affirmation:  first,  that  the  plaintiff  was  teller  of  the  bank;  second, 
that  while  acting  in  this  capacity  he  became  mentally  deranged ;  third, 
that  the  derangement  was  caused  by  overwork;  fourth,  that  while 
•  teller,  and  suffering  from  this  mental  alienation,  he  made  injurious 


604  TORTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Parti 

statements  in  respect  to  the  bank's  affairs,  which  occasioned  it  trouble. 

The  cases  of  actionable  slander  were  defined  by  Chief  Justice  De 
Grey,  in  the  leading  case  of  Onslow  v.  Horne,  3  Wilson,  177,  and 
the  classification  made  in  that  case  has  been  generally  followed  in 
England  and  this  country.  According  to  this  classification,  slander- 
ous words  are  those  which  (1)  import  a  charge  of  some  punishable 
crime ;  or  (2)  impute  some  offensive  disease  which  would  tend  to 
deprive  a  person  of  society;  or  (3)  which  tend  to  injure  a  party  in  his 
trade,  occupation  or  business;  or  (4)  which  have  produced  some 
special  damage. 

Defamatory  words,  in  common  parlance,  are  such  as  impute  some 
moral  delinquency  or  some  disreputable  conduct  to  the  person  of  whom 
they  are  spoken.  Actions  of  slander  for  the  most  part  are  founded 
upon  such  imputations ;  but  the  action  lies  in  some  cases  where  the 
words  impute  no  criminal  offense,  where  no  attack  is  made  upon  the 
moral  character,  nor  any  charge  of  personal  dishonor.  The  first  and 
larger  class  of  actions  are  those  brought  for  the  vindication  of  reputa- 
tion, in  its  strict  sense,  against  damaging  and  calumnious  aspersions. 
The  other  class  fall,  for  the  most  part,  at  least  within  the  third  specifi- 
cation in  the  opinion  of  Chief  Justice  De  Grey,  of  words  which  tend 
to  injure  one  in  his  trade  or  occupation.  The  case  of  words  affecting 
the  credit  of  a  trader,  such  as  imputing  bankruptcy  or  insolvency,  is 
an  illustration.  The  action  is  maintainable  in  such  a  case,  although 
no  fraud  or  dishonesty  is  charged,  and  although  the  words  were 
spoken  without  actual  malice.  The  law  allows  this  form  of  action, 
not  only  to  protect  a  man's  character  as  such,  but  to  protect  him  in 
his  occupation  also  against  injurious  imputations.  It  recognizes  the 
right  of  a  man  to  live,  and  the  necessity  of  labor,  and  will  not  permit 
one  to  assail  by  words  the  pecuniary  credit  of  another  except  at  the 
peril,  in  case  they  are  untrue,  of  answering  in  damages.  The  prin- 
ciple is  clearly  stated  by  Bayley,  J.,  in  Whittaker  v.  Bradley,  7  D.  & 
R.  649 :  "Whatever  words  have  a  tendency  to  hurt,  or  are  calculated 
to  prejudice  a  man  who  seeks  his  livelihood  by  any  trade  or  business, 
are  actionable."  When  proved  to  have  been  spoken  in  relation  thereto, 
the  action  is  supported,  and  unless  the  defendant  shows  a  lawful  ex- 
cuse, the  plaintiff  is  entitled  to  recover  without  allegation  or  proof  of 
special  damage,  because  both  the  falsity  of  the  words  and  resulting 
damage  are  presumed.    1  Saund.  243,  note ;   1  Am.  Ldg.  Cas.  135. 

The  authorities  tend  to  support  the  proposition  that  spoken  words 
imputing  insanity  are  actionable,  per  se,  when  spoken  of  one  in  his 
trade  or  occupation,  but  not  otherwise,  without  proof  of  special  dam- 
age. Morgan  v.  Lingen,  8  L.  T.  Rep.  800;  Joannes  v.  Burt,  6  Allen 
(Mass.)  236,  83  Am.  Dec.  625.  The  imputation  of  insanity  in  a  writ- 
ten or  printed  publication  is  a  fortiori  libellous  where  it  would  con- 
stitute slander,  if  the  words  were  spoken.  Written  words  are  libellous 
in  all  cases  where,  if  spoken,  they  would  be  actionable,  but  they  may 
be  libellous  where  they  would  not  support  an  action  for  oral  slander. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  605 

There  are  many  definitions  of  libel.  The  one  by  Hamilton,  in  his  argu- 
ment in  People  v.  Croswell,  3  Johns.  Cas.  337,  append.,  viz. :  "A  cen- 
sorious or  ridiculing  writing,  picture  or  sign,  made  with  malicious 
intent  towards  government,  magistrates  or  individuals,"  has  been 
often  referred  to  with  approval ;  but,  unless  the  word  censorious  is 
given  a  much  broader  signification  than  strictly  belongs  to  it,  the 
definition  would  not  seem  to  comprehend  all  cases  of  libellous  words. 
The  word  "libel,"  as  expounded  in  the  cases,  is  not  limited  to  written 
or  printed  words  which  defame  a  man,  in  the  ordinary  sense,  or 
which  impute  blame  or  moral  turpitude,  or  which  criticise  or  censure 
him.  In  the  case  before  referred  to,  words  aflfecting  a  man  injuriously 
in  his  trade  or  occupation,  may  be  libellous,  although  they  convey  no 
imputation  upon  his  character.  Words,  says  Starkie,  are  libellous  if 
they  afiect  a  person  in  his  profession,  trade  or  business,  "by  imputing 
to  him  any  kind  of  fraud,  dishonesty,  misconduct,  incapacity,  unfitness 
or  want  of  any  necessary^  qualification  in  the  exercise  thereof."  Starkie 
on  Slander,  §  188.     *     *     * 

■The  publication  now  in  question  is  not  simply  an  assertion  that  the 
plaintiff  is  or  has  been  affected  with  "mental  derangement,"  discon- 
nected with  any  special  circumstances.  The  assertion  was  made  to  ac- 
count for  the  trouble  to  which  the  bank  had  been  subjected  by  reason 
of  injurious  statements  made  by  the  plaintiff'  while  in  its  employment. 
Words  to  be  actionable  on  the  ground  that  they  affect  a  man  in  his 
trade  or  occupation,  must,  as  is  said,  touch  him  in  such  trade  or  occu- 
pation ;  that  is,  they  must  be  shown,  directly  or  by  inference,  to  have 
been  spoken  of  him  in  relation  thereto  and  to  be  such  as  would  tend 
to  prejudice  him  therein.  Sanderson  v.  Caldwell,  45  N.  Y.  405,  6  Am. 
Rep.  105.  The  publication  did,  we  think,  touch  the  plaintiff  in  re- 
spect to  his  occupation  as  bank  teller.  It  imputed  mental  derangement 
while  engaged  in  his  business  as  teller,  which  affected  him  in  the  dis- 
charge of  his  duties.  The  words  conveyed  no  imputation  upon  the 
plaintiff's  honesty,  fidelity  or  general  capacity.  They  attributed  to  him 
a  misfortune,  brought  upon  him  by  an  over-zealous  application  in  his 
employment.  While  the  statement  was  calculated  to  excite  sympathy, 
and  even  respect  for  the  plaintiff,  it  nevertheless  was  calculated  also 
to  injure  him  in  his  character  and  employment  as  a  teller.  On  com- 
mon understanding,  mental  derangement  has  usually  a  much  more 
serious  significance  than  mere  physical  disease.  There  can  be  no 
doubt  that  the  imputation  of  insanity  against  a  man  employed  in  a 
position  of  trust  and  confidence  such  as  that  of  a  bank  teller,  whether 
the  insanity  is  temporary  or  not,  although  accompanied  by  the  ex- 
planation that  it  was  induced  by  overwork,  is  calculated  to  injure  and 
prejudice  him  in  that  employment,  and  especially  where  the  statement 
is  added  that  in  consequence  of  his  conduct  in  that  condition  the  bank 
had  been  involved  in  trouble.  The  directors  of  a  bank  would  naturally 
hesitate  to  employ  a  person  as  teller,  whose  mind  had  once  given 
away  under  stress  of  similar  duties,  and  run  the  risk  of  a  recurrence 


GOG  TORTS  THROUGH  ACTS  OF   ABSOLUTE  LIABILITY  (Part  1 

of  the  malady.  The  pubhcation  was,  we  think,  defamatory  in  a  legal 
sense,  although  it  imputed  no  crime  and  subjected  the  plaintiff  to  no 
disgrace,  reproach  or  obloquy,  for  the  reason  that  its  tendency  was 
to  subject  the  plaintiff  to  temporal  loss  and  deprive  him  of  those  ad- 
vantages and  opportunities,  as  a  member  of  the  community,  which  are 
open  to  those  who  have  both  a  sound  mind  and  a  sound  body.  The 
trial  judge,  therefore,  erred  in  not  ruling  the  question  of  libel  as  one 
of  law.  The  evidence  renders  it  clear  that  no  actual  injury  to  the 
plaintiff  was  intended  by  the  defendants,  but  it  is  not  a  legal  excuse 
that  defamatory  matter  was  published  accidentally  or  inadvertently, 
or  with  good  motives  and  in  an  honest  belief  in  its  truth. 

The  judgment  should  be  reversed  and  a  new  trial  granted.  All 
concur. 

Judgment  reversed.^' 


SHEPHEARD  v.  WHITAKER. 

(Court  of  Common  Pleas,  1875.     L.  R.  10  C.  P.  502.') 

The  declaration  stated  that  the  defendant  falsely  and  maliciously 
printed  and  published  in  a  certain  newspaper  called  The  Bookseller, 
the  words  following,  that  is  to  say: 

"The  Gazette.  First  meeting  under  the  new  Bankruptcy  Act.  Shepheard, 
Shepheard,  and  Yeomans,  Garrick  Street  and  Cheapside,  under  the  firm 
of  British  and  Foreign  Stationery  Company,  stationers,  printers,  and  book- 
sellers, as  regards  Charles  Yeomans," 

the  defendant  meaning  thereby  that  the  plaintiff's  firm  had  been  bank- 
rupt, or  had  taken  proceedings  in  liquidation  or  for  composition,  and 
that  a  first  meeting  of  creditors  under  their  bankruptcy  or  proceedings 
in  liquidation  or  for  composition  was  about  to  be  held.  Plea,  not 
guilty.     Issue  thereon. 

At  the  trial,  it  appeared  that,  through  the  negligence  of  persons  in 
the  defendant's  employ,  instead  of  announcing,  in  the  extracts  from 
the  London  Gazette  inserted  in  their  newspaper  called  The  Bookseller, 
published  on  the  1st  of  January,  1875,  that  there  had  been  a  dissolu- 
tion of  the  partnership  of  their  firm,  the  advertisement  announcing  it 
was  inserted  amongst  the  first  meetings  under  the  Bankruptcy  Act. 
Upon  the  discovery  of  the  mistake,  the  defendant,  whose  publication 
appeared  monthly,  printed  and  circulated  amongst  the  trade  4000  cop- 
ies of  the  Bookseller's  Circular  explaining  the  blunder,  and  inserted 
an  ample  apology  in  his  next  issue,  on  the  1st  of  February,  and  also 
in  the  Stationers'  Circular  of  the  5th. 

The  learned  judge  left  it  to  the  jury  to  say  whether  or  not  the  pub- 
lication was  libellous,  telling  them  that  at  all  events  it  was  not  a  case 
for  serious  damages.  The  jury  returned  a  verdict  for  the  plaintiff, 
damages  £50. 

8  8  Part  of  the  opinion  is  omitted. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  607 

Weatherfield  moved  for  a  new  trial  on  the  grounds  of  misdirection 
and  that  the  damages  were  excessive :  he  also  moved  to  arrest  the 
judgment,  on  the  ground  that  the  declaration  disclosed  no  cause  of  ac- 
tion. He  submitted  that  the  form  in  which  the  announcement  appeared 
was  such  that  no  person  of  ordinary  intelligence  could  have  been  mis- 
led by  it;  that  the  learned  judge  ought  not  to  have  left  the  case  to  the 
jury;  that,  if  anybody  was  likely  to  be  affected  by  the  publication,  it 
was  Yeomans  only;  and  that,  at  all  events,  the  damages  were  unjusti- 
fiably large.  ^'' 

Brett,  J.  Whether  a  publication  amounts  to  a  libel  or  not  is  a  ques- 
tion for  the  jury ;  and,  as  it  is  impossible  for  us  to  say  that  the  words 
could  not  by  possibility  amount  to  a  libel,  the  judgment  cannot  be  ar- 
rested. The  damages  doubtless  are  somewhat  high,  seeing  that  no 
malice  is  suggested.  But  it  is  not  surprising  that  a  jury  should  give 
large  damages  where  bankruptcy  is  imputed  to  a  trader. 

Rule  refused.^  ^ 


(bh)  Of  and  Concerning  the  Plaintiff 
JOHNSON  v.  SIR  JOHN  AYLMER. 

(Court  of  King's  Bench,    1605.     Cro.   Jac.  126,   79   Reprint,  100.) 

Action ;  for  that  the  defendant  "hsec  falsa  et  scandalosa  verba  se- 
quentia  dixit  et  publicavit" : 

"Mr.  Price,  you  do  my  Lord  Burleigh  wrong,  that  you  do  not  apprehend 
Jeremy  Jolinson"  (innuendo  the  plaintiffi  "for  a  felon,  and  seize  his  goods: 
for  he"  (innuendo  the  plaintiff)  "hath  stolen  a  sheep  from  Wright,  of  Rirsby" 
(innuendo  John  Wright). 

37  The  statement  of  the  case  is  abridged,  and  an  opinion  by  Lord  Coleridge, 
C.  J.,  is  omitted.  It  appeared  that  the  third  member  of  the  partnership, 
Yeomans,  had  brought  a  similar  action,  which  was  settled  by  a  nominal 
verdict. 

38  "The  law  has  always  been  very  tender  of  the  reputation  of  tradesmen, 
and  therefore  words  spoken  of  them  in  the  way  of  their  trade  will  bear  an 
action  that  will  not  be  actionable  in  the  case  of  another  person."  Per 
Curiam  in  Harman  v.  Delany  (1731)  2  Stra.  898,  93  Reprint.  925. 

"A  statement  is  defamatory  if  it  imputes  insolvency  to  a  trader ;  and  this 
is  so  whether  or  not  the  statement  includes  any  suggestion  of  discreditable 
conduct  or  incapacity.  It  may  be  doubted,  indeed,  whether  this  is  strictly 
logical.  It  would  seem  tliat,  apart  from  any  such  suggestion,  an  allegation 
of  insolvency  should  be  classed  merely  as  an  injurious  falsehood,  not  as 
defamation.  For  insolvency  is  not  a  personal  quality  or  defect  like  insanity, 
which  in  itself  excites  the  disrespect  or  dislike  or  ridicule  of  other  persons. 
It  is  a  misfortune  which  is  consistent  with  a  liigh  regard  for  the  duiraoter 
and  competence  of  the  insolvent.  Nevertheless  it  is  settled  law  that  a  charge 
of  insolvency  is  to  be  classed  as  defam;itory.  and  is  subject  to  all  the  severities 
of  the  law  of  libel,  and  not  to  the  more  lenient  rules  which  govern  cases  of 
injurious  falseh(x>d.  In  view  of  the  very  serious  miseliief  wliicli  an  un- 
founded allegatiuu  of  insolvency  may  work,  it  is  well  that  ri'sponsiliility 
for  it  should  be  maintained  at  this  high  level."  Salmond,  Law  of  Torts  (2d 
Ed.)  405. 


/ 


COS  TORTS  THROUGH  ACTS  OF    ABSOLUTE  LIABILITY  (Part  1 

The  defendant  pleaded  not  guilty ;  and  found  against  him,  and  dam- 
ages assessed  to  £50.  After  verdict,  it  was  moved  in  arrest  of  judg- 
ment, that  the  words  are  too  generally  laid  to  maintain  the  action ;  for 
they  are  not  alledged  to  be  spoken  of  the  plaintiff  in  the  writ  or  count ; 
but  only  in  recitinc:  the  words  he  saifh,  "innuendo  the  plaintiff;"  and 
the  innuendo,  without  expressly  alledging  the  words  to  be  spoken  of 
the  plaintiff,  will  not  maintain  the  action. 

And  THE  Court  was  of  that  opinion,  wherefore,  it  was  adjudged 
for  the  defendant. 


NORTHROP  V.  TIBBLES. 

(Circuit  Court  of  Appeals  of  the  United  States,  Seventh  Circuit,   1914. 

131  C.  C.  A.  407,  215  Fed.  99.) 

Baker,  Circuit  Judge.  To  plaintiff  in  error's  declaration  for  libel  a 
demurrer  for  want  of  facts  was  sustained,  plaintiff  declined  to  amend, 
and  judgment  for  defendant  was  entered. 

Many  objections  are  urged  by  defendant;  but,  if  the  declaration  is 
deficient  in  any  material  respect,  the  judgment  must  be  affirmed. 

So  we  may  assume  that  the  letter  written  and  mailed  by  defendant 
to  a  third  person  contains  matter  libelous  per  se  (though  this  is  strenu- 
ously controverted),  that  defendant  intended  to  defame  plaintiff,  and 
that  plaintiff,  when  she  somehow  obtained  a  copy,  applied  the  libel  to 
herself.  But  the  letter  does  not  name  plaintiff  as  the  person  intended 
to  be  libeled;  and  the  declaration  fails  to  charge  (either  as  a  conclu- 
sion of  fact,  if  such  pleading  is  permissible,  or  by  an  exhibition  of 
extraneous  facts  that  have  the  necessary  effect  of  showing)  that  the 
recipient  of  the  letter,  or  any  other  third  party,  understood  the  libel- 
ous matter  to  refer  to  plaintiff. 

To  allege  that  defendant  wrote  and  published  (by  mailing)  the  let- 
ter "of  and  concerning  plaintiff"  is  not  enough.  As  this  court  said  in 
Duvivier  v.  French,  104  Fed.  278,  43  C.  C.  A.  529:  "The  gravamen 
of  an  action  for  libel  is  not  injury  to  the  plaintiff's  feelings,  but  dam- 
age to  his  reputation  in  the  eyes  of  others.  *  *  *  Jt  jg  ^ot 
enough,  to  constitute  libel,  that  the  plaintiff  knew  that  he  was  the  sub- 
ject of  the  article,  or  that  the  defendants  knew  of  whom  they  were 
writing ;  it  must  appear  upon  the  face  of  the  declaration  that  persons 
other  than  these  must  have  reasonably  understood  that  the  article  was 
written  of  and  concerning  the  plaintiff,  and  that  the  so-called  libelous 
expressions  related  to  him." 

See,  also,  Robinson  v.  Drummond,  24  Ala.  174;  De  Witt  v.  Wright, 
57  Cal.  576;  Patterson  v.  Edwards,  7  111.  (2  Oilman)  720;  McLaugh- 
lin v.  Fisher,  136  111.  Ill,  24  N.  E.  60;  McCallum  v.  Lambie,  145 
Mass.  234,  13  N.  E.  899;  Carlson  v.  Minnesota  Tribune  Co.,  47  Minn. 
337,  50  N.  W.  229;   Miller  v.  Maxwell,  16  Wend.  (N.  Y.)  9;   Sasser 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  609 

V.  Rouse,  35  N.  C.  145 ;  Dunlap  v.  Sundberg,  55  Wash.  609,  104  Pac. 
830,  133  Am.  St.  Rep.  1050. 

As  plaintiff  refused  to  plead  the  necessary  additional  facts,  we  must 
believe  that  (but  for  the  filing  of  her  present  declaration)  her  reputa- 
tion with  the  world  at  large  remained  as  good  as  if  the  letter  had  been 
written  in  a  code  unknown  to  any  one  except  defendant  and  herself. 

The  judgment  is  affirmed. 


WANDT  V.  HEARST'S  CHICAGO  AMERICAN. 

(Supreme  Court  of  Wisconsin,  1906.     129  Wis.  419,  109  N.  W.  70,  6  D.  R.  A. 
[N.  S.]  919,  116  Am.  St.  Rep.  959,  9  Ann.  Cas.  864.) 

The  action  was  brought  by  Rose  Wandt  against  Hearst's  Chicago 
American.  There  was  a  judgment  for  the  plaintiff,  and  the  defendant 
appealed. 

WiNSLOW,  J.  This  is  an  action  for  libel.  The  complaint  charged 
in  effect  that  the  defendant  corporation  published  and  circulated  in  its 
newspaper,  in  the  city  of  Milwaukee,  the  following  article  with  the 
picture  or  photograph  of  the  plaintiff  immediately  under  the  first  head- 
line: 

"Suicide  Girl  Laid  to  Rest 

"Evelyn  Daly,  Suicide. 
[Photograph] 

"Milwaukee.  Aug.  17.— Evelyn  Daly,  daughter  of  Mrs.  E.  L.  Daly,  of  East 
Lake,  Mich.,  and  who,  under  the  name  of  Cecil  Davis,  of  Cadillac,  Mich., 
succeeded  in  ending  her  life  after  twenty-five  attempts,  was  buried  here  to- 
day. Here  are  some  of  the  attempts  she  has  made  within  the  last  three 
months. 

"June  5 — Took  morphine;  went  to  Emergency  Hospital  and  asked  to  be 
pumped  out.     *     *     * "  39 

— and  that  the  defendant  thereby  falsely,  willfully,  and  maliciously 
charged  the  plaintiff  with  having  committed  suicide,  and  with  having 
many  times  attempted  to  commit  suicide,  to  her  great  damage.  A  gen- 
eral demurrer  to  the  complaint  was  overruled,  and  the  defendant  ap- 
peals. 

It  is  elementary  that  written  or  printed  publications  which  falsely 
tend  to  bring  the  plaintiff  into  public  disgrace,  contempt,  or  ridicule 
are  libelous.  Bradley  v.  Cramer,  59  Wis.  309,  18  N.  W.  268,  48  Am. 
Rep.  511.  It  is  also  elementary  that  a  libel  need  not  be  in  printed  lan- 
guage, but  that  a  caricature,  or  picture,  or  effigy,  with  or  without 
printed  language,  which  is  understood  to  refer  to  the  plaintiff,  and 
which  has  the  tendency  to  bring  disgrace,  contempt,  or  ridicule  upon 
the  plaintiff,  is  libelous.  Newell  on  Slander  and  Libel  (2d  Ed.)  p.  43, 
c.  4,  §  1.    A  printed  statement  to  the  effect  that  a  person  is  a  suicide 

39  The  rest  of  the  article,  referring  throughout  to  "Miss  Daly,"  and  two  of 
its  headlines,  are  omitted. 

Hepb. Torts — 39 


610  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

fiend,  has  attempted  suicide  25  times,  and  would  usually  go  to  the  hos- 
pital and  ask  to  be  pumped  out,  certainly  has  a  tendency  to  bring  that 
person  into  public  contempt  and  ridicule.  Had  the  article  in  question 
given  no  name,  but  simply  stated  that  the  person  whose  picture  was 
given  had  done  these  things,  there  would  be  little  doubt  in  the  mind  of 
any  one  that  it  would  have  been  libelous,  provided  the  picture  was  ac- 
curate enough  to  be  recognized  as  the  plaintiff's  picture.  From  the  al- 
legations of  the  complaint  it  must  be  assumed  that  the  picture  was 
fairly  accurate,  as  it  is  called  a  photograph,  doubtless  meaning  a  half- 
tone reproduction  of  a  photograph,  which  can  now  be  made  with  a 
considerable  degree  of  accuracy.  The  insertion  of  the  picture  under 
the  headline  of  the  article  is,  of  course,  in  effect  a  statement  that  it 
is  a  picture  of  the  person  referred  to  in  the  article.  Hence  the  article 
and  picture  together  constitute  a  libel  as  matter  of  law,  unless  the 
fact  that  the  article  states  that  the  suicide's  name  was  Evelyn  Daly  can 
be  held  to  be  an  antidote  to  the  otherwise  libelous  eft'ect. 

This  contention  is  strongly  made  by  the  appellant,  and  is  in  fact  the 
only  contention  worthy  of  very  serious  consideration.  It  seems  quite 
true,  as  urged  by  the  appellant,  that  persons  who  knew  the  plaintiff 
well,  and  knew  her  residence  and  family,  would  probably  not  be  mis- 
led, but  would  at  once  conclude  that  the  picture  was  inserted  by  mis- 
take; but  there  may  well  be  a  considerable  number  of  persons,  who 
only  know  the  plaintiff  by  sight  or  have  merely  a  slight  acquaintance, 
who  would  recognize  the  picture  at  once,  and  would  conclude  that  the 
article  in  fact  did  refer  to  the  plaintiff',  concluding  (if  they  knew  the 
plaintiff''s  name  at  all)  tliat  such  name  was  merely  another  alias.  The 
complaint  alleges  that  the  plaintiff'  has  been  greatly  damaged  by  the 
publication.  There  is  ample  room  for  the  inference  that  she  may  well 
have  been  damaged  in  the  estimation  of  the  classes  of  people  last  men- 
tioned. The  fact  that  she  may  not  have  been  damaged  in  the  estima- 
tion of  friends  who  knew  her  well  would  only  affect  the  extent  of  in- 
jury and  mitigate  the  damages.  A  very  similar  case  where  a  like  re- 
sult was  reached  will  be  found  in  De  Sando  v.  New  York  Herald  Co., 
88  App.  Div.  492,  85  N.  Y.  Supp.  111.**' 

Order  affirmed. 

4  0  In  Feck  v.  Triliune  Co.  (1909)  214  U.  S.  185,  29  Sup.  Ct.  554.  53  L.  Ed. 
960,  16  Ann.  Cas.  1075,  Mr.  .Tiistice  Holmes,  referrinir  to  the  pictorial  adver- 
tisement in  that  case  (see  ante,  p.  591),  remarked:  "The  publication  was  of 
and  concerning  the  plaintill  notwithstanding  the  presence  of  another  fact, 
the  name  of  the  real  signer  of  the  certificate,  if  that  was  Mrs.  Schuman, 
that  was  inconsistent  when  all  the  facts  were  known,  with  the  plaintiff's 
having  signed  or  adopted  it.  Many  might  recognize  the  plaintiff's  face 
without  knowing  her  name,  and  those  who  did  know  it  might  be  led  to  infer 
that  she  had  sanctioned  the  publication  under  an  alias." 

On  the  collateral  question,  when  the  defendant  has  published  the  plain- 
tiff's picture  without  his  consent,  but  also  without  any  defamatory  matter,  see 
••The  liight  to  Trivacy,"  4  Harv.  Law  llev.  19;]  (1890),  "The  Right  of  I'rivacy," 
2  Columbia  Law  Rev.  437,  and  cases  under  Key-No.  "Torts,"  §  8. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN   TRESPASSES  Cll 

JONES  V.  E.  HULTON  &  CO. 

(Court  of  Appeal.     [1009J  2  K.  B.  444.) 

E.  HULTON  &  CO.  v.  JONES. 

(House  of  Lords.     [1910]  A.  C.  20.) 

Application  by  the  defendants  for  judgment  or  a  new  trial  in  an 
action  before  Channell,  J.,  with  a  special  jury. 

The  plaintiff,  'Mr.  Thomas  Artemus  Jones,  a  barrister  practising  on 
the  North  Wales  Circuit,  brought  the  action  to  recover  damages  for 
the  publication  of  an  alleged  libel  concerning  him  contained  in  an  ar- 
ticle of  the  Sunday  Chronicle,  a  newspaper  of  which  the  defendants 
were  the  printers,  proprietors,  and  publishers.  The  article,  which  was 
written  by  the  Paris  correspondent  of  the  paper,  purported  to  describe 
a  motor  festival  at  Dieppe,  and  the  parts  complained  of  ran  thus : 

"Upon  the  terrace  marches  the  world,  attracted  by  the  motor  races — a 
world  immensely  pleased  with  itself,  and  minded  to  draw  a  wealth  of  in- 
spiration— and,  incidentally,  of  golden  cocktails — from  any  scheme  to  speed 
the  passing  hour.  *  *  *  'Whist !  there  is  Artemus  Jones  with  a  woman 
who  is  not  his  wife,  who  must  be,  you  know — the  other  thing,'  whispers  a 
fair  neighbour  of  mine  excitedly  into  her  bosom  friend's  ear.  Really,  is  it 
not  surpilsing  how  certain  of  our  fellow  countrymen  behave  when  they  come 
abroad  V  Who  would  suppose,  by  his  goings  on,  that  he  was  a  church- 
warden at  Feckham?  Xo  one,  indeed,  would  assume  that  Jones  in  the  atmos- 
phere of  London  would  take  on  so  austere  a  job  as  the  duties  of  a  church- 
warden. Here,  in  the  atmosphere  of  Dieppe,  on  the  French  side  of  the 
Channel,  he  is  the  life  and  soul  of  a  gay  little  band  that  haunts  the  Casino 
and  turns  night  into  day,  besides  betraying  a  most  unholy  delight  in  the 
society   of   female  butterflies." 

The  plaintiff'  had  in  fact  received  the  baptismal  name  of  Thomas 
only,  but  in  his  boyhood  he  had  taken,  or  had  been  given,  the  addi- 
tional name  of  Artemus,  and  from  that  time  he  had  always  used,  and 
had  been  universally  known  by,  the  name  of  Thomas  Artemus  Jones 
or  Artemus  Jones.  He  had,  up  to  the  year  of  1901,  contributed 
signed  articles  to  the  defendants'  newspaper.  The  plaintiff  was  not 
a  churchwarden,  nor  did  he  reside  in  Peckham.  Upon  complaint  be- 
ing made  by  the  plaintiff  of  the  publication  of  the  defamatory  state- 
ments in  the  article,  the  defendants  published  the  following  in  the  next 
issue  of  their  paper: 

"It  seems  hardly  necessary  for  us  to  state  that  the  imaginary  Mr.  Artemus 
Jones  referred  to  in  our  article  was  not  ^Ir.  Thomas  Artemus  Jones,  barrister, 
but,  as  he  has  complained  to  us,  we  gladly  publish  this  paragraph  in  order 
to  remove  any  possible  misunderstanding  and  to  satisfy  Mr.  Thomas  Artemus 
Jones  we  had  no  intention  whatsoever  of  referring  to  him." 

The  defendants  alleged  that  the  name  chosen  for  the  purpose  of  the 
article  was  a  fictitious  one,  and  having  no  reference  to  the  plaintiff,  and 
chosen  as  unlikely  to  be  the  name  of  a  real  person,  and  they  denied 
that  any  officer  or  member  of  their  staff  who  wrote  or  printed  or  pub- 
lished before  publication  the  words  complained  of  knew  the  plaintiff 


G12  TORTS  THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Parti 

or  his  name  or  his  profession,  or  his  association  with  the  journal  or 
with  the  defendants,  or  that  there  was  any  existing  person  bearing  the 
name  of  or  known  as  Artemus  Jones.  They  admitted  publication,  but 
denied  that  the  words  were  published  of  or  concerning  the  plaintiff. 
On  the  part  of  the  plaintiff  the  evidence  of  the  writer  of  the  article  and 
of  the  editor  of  the  paper  that  they  knew  nothing  of  the  plaintiff',  and 
that  the  article  was  not  intended  by  them  to  refer  to  him,  was  accepted 
as  true.  At  the  trial  witnesses  were  called  for  the  plaintiff',  who  said 
that  they  had  read  the  article  and  thought  it  referred  to  the  plaintiff. 
The  jury  returned  a  verdict  for  the  plaintiff'  with  il750  damages,  and 
the  learned  judge  gave  judgment  for  the  plaintiff'.  The  defendants  ap- 
pealed. 

Farwell,  L.  J.*^  The  appellants  contend  that  the  verdict  and  judg- 
ment in  this  case  cannot  stand,  because  it  was  proved  that  neither  the 
writer  of  the  libellous  article  nor  any  person  in  the  defendants'  em- 
ployment under  whose  notice  it  came  before  it  was  published  knew  or 
had  even  heard  of  the  existence  of  the  plaintiff,  and  that  it  therefore 
necessarily  follows  that  the  defendants  cannot  have  intended  the  libel- 
lous words  to  apply  to  the  plaintiff.  The  question  for  us  is  whether 
this  contention  is  right. 

The  old  declaration  in  an  action  for  libel  still  accurately  states  the 
issues  that  have  to  be  proved,  namely,  that  the  defendants  falsely  and 
maliciously  printed  and  published  of  the  plaintiff  in  the  A.  paper  (or 
as  the  case  may  be)  the  words  following  (setting  them  out),  meaning 
thereby  that  the  plaintiff,  &c.,  &c.  It  is  hardly  necessary  to  say  that 
actual  malice  is  not  necessary :  malice  in  law  is  sufficient,  and  that  is 
shewn  by  the  falsity  and  defamatory  nature  of  the  words,  as  soon  as 
it  has  been  proved  that  they  were  written  of  the  plaintiff.  But  the 
plaintiff"  has  to  prove  (1)  the  publication,  and  (2)  that  it  is  of  the  plain- 
tiff ;  and  then  he  has  to  prove  the  libellous  nature  of  the  words,  that 
is,  the  innuendo.  It  is  contended  that  the  libel  cannot  be  published  of 
the  plaintiff'  if  it  be  proved  that  his  existence  was  unknown  to  the  de- 
fendant. A  plaintiff  need  not,  of  course,  be  named  in  the  libel :  it  is 
sufficient  if  he  be  sufficiently  described,  and  for  this  purpose  recourse 
may  be  had  to  the  innuendo.  As  Lord  Campbell  says  in  Le  Fanu  v. 
Malcomson,  1  H.  L.  C.  at  pp.  637,  668,  "It  comes  round  to  the  old 
rule,  that  you  cannot  by  an  innuendo  extend  the  natural  meaning  of 
the  words  which  are  spoken  or  written,  but  by  the  innuendo  you  may 
point  out  the  particular  individual  to  whom  these  words  apply."  The 
first  step  is  to  prove  that  the  words  published,  whether  by  name,  nick- 
name, or  description,  are  such  as  reasonably  to  lead  persons  acquainted 
with  the  plaintiff  to  believe  that  he  is  the  person  to  whom  the  libel  re- 
fers ;  the  next  step  is  to  prove  that  that  is  the  true  intent  and  meaning 
of  the  words  used.     This  is  what  I  understand  to  be  meant  by  Lord 

<iThe  statement  of  facts  is  abridged,  and  opinions  of  Lord  Alverstone, 
C.  J.,  and  Moulton,  L.  J.,  and  part  of  opinion  of  Farwell,  L.  J.,  are  omitted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  613 

Cottenham  in  Le  Fanu  v.  Malcomson,  1  H.  L.  C,  at  p.  664:  "If  a 
party  can  publish  a  libel  so  framed  as  to  describe  individuals,  though 
not  naming  them,  and  not  specifically  describing  them  by  any  express 
form  of  words,  but  still  so  describing  them  that  it  is  known  who  they 
are,  as  the  jurors  have  found  it  to  be  here,  and  if  those  who  must  be 
acquainted  with  the  circumstances  connected  with  the  party  described 
may  also  come  to  the  same  conclusion,  and  may  have  no  doubt  that 
the  writer  of  the  libel  intended  to  mean  those  individuals,  it  would  be 
opening  a  very  wide  door  to  defamation,  if  parties  suffering  all  the 
inconvenience  of  being  libelled  were  not  permitted  to  have  that  pro- 
tection which  the  law  aft'ords.  If  they  are  so  described  that  they  are 
known  to  all  their  neighbours  as  being  the  parties  alluded  to;  and  if 
they  are  able  to  prove  to  the  satisfaction  of  a  jury  that  the  party  v/rit- 
ing  the  libel  did  intend  to  allude  to  them,  it  would  be  unfortunate  to 
find  the  law  in  a  state  which  would  prevent  the  party  being  protected 
against  such  libels."  Lord  Campbell,  1  H.  L.  C,  at  page  668,  says: 
"Whether  a  man  is  called  by  one  name  or  whether  he  is  called  by  an- 
other, or  whether  he  is  described  by  a  pretended  description  of  a  class 
to  which  he  is  known  to  belong,  if  those  who  look  on,  know  well  who 
is  aimed  at,  the  very  same  injury  is  inflicted,  the  very  same  thing  is 
in  fact  done,  as  would  be  done  if  his  name  and  Christian  name  were 
ten  times  repeated."  It  is  however,  argued  that  when  Lord  Cotten- 
ham says  "the  writer  of  the  libel  intended  to  mean  these  individuals" 
he  is  referring  to  the  intention  in  the  writer's  mind  as  distinct  from 
the  intention  expressed  in  the  words  that  he  has  used,  as  explained 
by  the  relevant  surrounding  circumstances.  In  my  opinion  this  is  not 
so,  and  I  may  remark  that  it  was  not  the  contention  of  the  appellants' 
counsel  in  that  case;  he  opened  his  case  by  asserting  that  it  was  nec- 
essary to  shew  "that  the  libel  on  the  record  should  point  to  the  plain- 
tiffs," &c.  The  rule  is  well  settled  that  the  true  intention  of  the  writer 
of  any  document,  whether  it  be  contract,  will,  or  libel,  is  that  which 
is  apparent  from  the  natural  and  ordinary  interpretation  of  the  written 
words  ;  and  this,  when  applied  to  the  description  of  an  individual,  means 
the  interpretation  that  would  be  reasonably  put  upon  those  words  by 
persons  who  knew  the  plaintiff'  and  the  circumstances.     *     *     * 

In  the  present  case  the  jury  have  found  that  the  libellous  article  de- 
scribed an  actual  scene  at  Dieppe,  and  that  "Artemus  Jones"  men- 
tioned therein  described  an  actual  person  and  not  a  mere  type.  If  the 
defendants  had  proved  in  the  present  case  not  only  that  the  writer  of 
the  article  did  not  know  of  the  plaintiff"s  existence,  but  also  that  there 
was  an  Artemus  Jones  other  than  the  plaintiff,  who  was  present  at 
Dieppe  in  the  company  alleged,  then  the  circumstances  with  reference 
to  which  the  words  "Artemus  Jones"  were  used  would  shew  that  the 
plaintiff  was  not  the  person  intended ;  but  the  writer  of  the  libel  has 
chosen  to  state  as  a  fact  tliat  Artemus  Jones  was  present  in  order  (as 
he  says)  to  avoid  the  banality  of  using  A.  B.  or  a  blank:  he  has,  there- 
fore, for  his  own  purposes  chosen  to  assert  a  fact  of  a  person  bearing 


614  TORTS  THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

the  very  unusual  name  of  Artemus  Jones,  recklessly,  and  caring  not 
'.vhethcr  there  was  such  a  person  or  not,  or  what  the  consequences 
might  be  to  him. 

An  action  for  defamation  differs  from  other  actions,  such  for  in- 
stance as  trespass,  in  that  it  is  of  the  essence  of  defamation  that  the 
plaintiff  should  be  aimed  at  or  intended  by  the  defendant.  The  man 
who  throws  a  squib  into  a  crowd  not  intending  to  hit  any  one  is  liable 
for  the  consequences  of  his  act,  whatever  his  intentions  may  have 
been,  because  the  two  necessary  constituents  of  tort,  namely,  a  wrong- 
ful act  by  the  defendant  and  actual  damage  to  the  plaintiff,  are  both 
present.  But  it  is  not  enough  for  a  plaintiff  in  libel  to  shew  that  the 
defendant  has  made  a  libellous  statement,  and  that  the  plaintiff's 
friends  and  acquaintances  understood  it  to  be  written  of  him :  he  nmst 
also  shew  that  the  defendant  printed  and  published  it  of  him ;  for  if 
the  defendant  can  prove  that  it  was  written  truly  of  another  person 
the  plaintiff  would  fail.  To  this  extent  I  agree  with  Fletcher  Moulton, 
L.  J.,  but  we  differ  as  to  the  meaning  of  the  word  "intended."  In  my 
opinion  the  defendant  intended  the  natural  meaning  of  his  own  words 
in  describing  the  plaintiff  as  much  as  in  the  innuendo :  the  inquiry  is 
not  what  did  the  defendant  mean  in  his  own  breast,  but  what  did  the 
words  mean  having  regard  to  the  relevant  surrounding  circumstances. 
For  example,  fraud  is  proved  in  an  action  of  deceit  not  only  when  a 
false  representation  is  made  knowingly,  but  also  when  it  is  made  reck- 
lessly, careless  whether  it  be  true  or  false,  and  although  there  was  no 
intention  to  cheat  or  injure  the  person  to  whom  the  statement  was 
made — Derry  v.  Peek,  14  App.  Cas.  237,  at  p.  374 — and  yet  the  fraud- 
ulent intent  is  of  the  essence  of  the  action.  So  the  intention  to  libel 
the  plaintiff  may  be  proved  not  only  when  the  defendant  knows  and 
intends  to  injure  the  individuals,  but  also  when  he  has  made  a  state- 
ment concerning  a  man  by  a  description  by  which  the  plaintiff"  is  rec- 
ognized by  his  associates,  if  the  description  is  made  recklessly,  care- 
less whether  it  hold  up  the  plaintiff  to  contempt  and  ridicule  or  not. 
In  such  a  case  it  is  no  answer  for  the  defendant  to  say  that  he  did  not 
intend  the  plaintiff,  because  he  had  never  heard  of  him :  he  intended 
to  describe  some  living  person :  he  can  suggest  no  one  else ;  and  the 
plaintiff  proves  that  he  is  believed  by  his  acquaintances  and  friends  to 
be  the  person  aimed  at,  and  has  suffered  damage  thereby.  The  ele- 
ment of  intention,  which  is  as  essential  to  an  action  of  defamation  as 
to  an  action  of  deceit,  can  be  proved  in  the  same  way  in  both  actions. 
The  issue  of  fact  is  whether  the  plaintiff"  is  the  person  intended  by  the 
libeller ;  but  sufficient  evidence  to  prove  it  may  be  given,  although  the 
defendant  had  no  intention  of  injuring  the  plaintiff  and  had  never 
heard  of  his  existence.  The  squib  thrower  is  liable  for  the  injury 
done  by  his  squib  to  the  plaintiff,  whether  he  aimed  at  or  intended  to 
hit  him  or  not:  the  libeller  is  not  liable  to  the  plaintiff  unless  it  is 
proved  that  the  libel  was  aimed  at  or  intended  to  hit  him ;  the  manner 
of  proof  being  such  as  I  have  already  stated.     If  the  libel  was  true 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  615 

of  another  person  and  honestly  aimed  at  and  intended  for  him,  and 
not  for  the  plaintiff,  the  latter  has  no  cause  of  action,  although  all  his 
friends  and  acquaintances  may  fit  the  cap  on  him.  If  this  were  not 
so,  no  newspaper  could  ever  venture  to  publish  a  true  statement  of  A., 
lest  some  other  person  answering  the  description  should  suft'er  thereby. 

It  is  said  that  this  would  enable  several  plaintiff's  to  bring  several 
and  distinct  actions  in  respect  of  one  libel,  and  I  think  that  this  is  so ; 
but  I  am  unable  to  see  the  objection.  If  the  libel  consisted  in  defama- 
tion of  a  number  of  individuals  described  generally,  that  is  to  say,  "as 
the  owners  of  some  Irish  factories,"  as  in  Le  Fanu  v.  Malcomson,  1 
H.  L.  C.  637,  every  member  of  the  class  who  could  satisfy  the  jury 
that  he  was  a  person  aimed  at  and  defamed  could  recover ;  and  I  can 
see  no  reason  why  two  or  more  persons  of  the  name  of  Artemus  Jones 
who  produced  evidence  from  their  acquaintances  and  others  in  differ- 
ent parts  of  the  kingdom  similar  to  that  produced  by  the  plaintiff'  in 
this  case,  the  other  circumstances  being  similar,  should  not  recover. 
It  is  quite  possible  that  a  defendant  might  know  two  persons  of  the 
same  name  and  might  use  words  equally  applicable  to  both,  and  de- 
scribe each  so  that  he  appeared  to  his  own  circle  of  friends  and  ac- 
quaintances to  be  the  person  attacked,  and  might  really  intend  to  strike 
at  both :  it  would  certainly  be  somewhat  shocking  if  such  a  man  could 
successfully  defend  an  action  by  one  Artemus  Jones  by  producing  evi- 
dence that  shewed  conclusively  that  the  other  was  aimed  at,  and  then 
defeat  an  action  by  that  other  by  producing  evidence  that  shewed  con- 
clusively that  the  first  was  aimed  at :  the  evidence  in  both  cases  would 
be  true,  and  the  libeller  would  escape  because  he  had  successfully  li- 
belled two  persons  in  one  libel.  The  case  would  be  nearly  as  bad  if 
the  first  plaintiff  succeeded  and  the  judgment  obtained  by  him  was 
held  sufficient  to  defeat  the  action  of  the  other  person  aimed  at.  If 
a  man  chooses  to  make  statements  of  fact  about  persons  whom  he 
names,  as  in  this  case,  I  see  no  reason  why  he  should  not  be  liable  to 
every  one  whom  he  injures  who  can  convince  a  jury  that  he  is  reason- 
ably intended  by  the  words  used. 

I  am  therefore  of  opinion  that  the  defendant  cannot  complain  of 
Channell,  J.'s,  summing  up.  I  do  not  think  that  he  intended  to  rule 
anything  more  than  that  the  alleged  actual,  as  distinguished  from  the 
expressed,  intention  of  the  defendant  was  under  the  circumstances  of 
this  particular  case  immaterial.  I  do  not  understand  him  to  have  with- 
drawn from  the  jury  the  question  whether  the  plaintiff  was  the  person 
of  whom  the  libel  was  published,  which  was,  in  my  opinion,  a  question 
for  them  to  decide,  but  to  have  ruled  that  the  fact  that  any  one  of  the 
plaintiff's  names  was  unknown  to  the  writer  and  to  every  one  in  the 
defendants'  office  through  whose  hands  the  libel  passed  was  not  a  con- 
clusive defence  requiring  him  to  stop  the  case;  and  in  this  he  was, 
in  my  opinion,  right.  The  ignorance  was  of  course  a  material  fact, 
both  in  considering  the  question  of  the  true  intent  of  the  defendants 
and  also  in  considering  the  damages,  but  I  think  that  these  were  before 


616  TORTS  THROUGH   ACTS  OF   ABSOLUTE  LIABILITY  (Part  1 

the  jury.  It  was  said  that  there  was  some  misdirection  on  the  point 
of  neghgence,  but  I  do  not  think  that  this  is  so.  NegHgence  is  imma- 
terial on  the  question  of  hbel  or  no  hbel,  but  may  be  material  on  the 
question  of  damages.  The  recklessness  to  which  I  have  referred, 
founding  myself  on  Derry  v.  Peek,  14  App.  Cas.  337,  is  quite  differ- 
ent from  mere  negligence. 

Then  it  is  said  that  the  amount  of  damages  is  excessive.  It  is  no 
doubt  large,  but  the  evidence  shews  how  serious  the  consequences  have 
been  and  may  yet  be  to  the  plaintiff.  It  is  difficult  to  estimate  the  con- 
sequences of  libel  in  a  newspaper :  as  Best,  C.  J.,  says  in  De  Crespigny 
v.  Wellesley  (1829)  5  Bing.  392,  at  p.  402,  it  may  "circulate  the  cal- 
umny through  every  region  of  the  globe."  Those  who  read  it  may 
never  read  the  subsequent  explanation  or  the  report  of  the  trial ;  and 
some  of  those  who  read  both  may  forget  the  result,  and  be  left  with 
a  general  recollection  that  the  plaintiff  was  a  man  of  whom  a  discred- 
itable story  was  reported  in  a  paper.  Such  newspapers  as  publish  li- 
bellous statements  do  so  because  they  find  that  it  pays :  many  of  their 
readers  prefer  to  read  and  believe  the  worst  of  everybody,  and  the_ 
newspaper  proprietors  cannot  complain  if  juries  remember  this  in  as- 
sessing damages.  The  amount  of  damage  is  peculiarly  their  province, 
and  I  see  no  ground  for  interference.  In  my  opinion  the  appeal  should 
be  dismissed  with  costs. 

Appeal  dismissed. 

[The  defendants  thereupon  appealed  to  the  House  of  Lords.] 
Norman  Craig,  K.  C.  (Isaacs,  K.  C,  with  him),  for  the  appellants. 
It  is  a  necessary  element  in  a  cause  of  action  for  libel  that  the  words 
complained  of  should  have  been  written  "of  and  concerning"  the 
plaintiff.  There  must  have  been  intention  in  the  writer  to  apply  the 
words  to  the  plaintiff,  and  there  can  be  no  such  intention  when  the 
writer  does  not  know  even  of  the  existence  of  the  person  who  im- 
agines the  language  to  be  directed  to  himself.  The  principle  of 
innuendo  has  never  been  applied  where  the  question  is  one  of  iden- 
tity. No  doubt  a  man  must  be  taken  to  know  the  reasonable  con- 
struction of  the  words  he  employs;  but  he  cannot  know  every  com- 
bination of  names  in  the  directory.  This  principle  has  been  recog- 
nized and  enforced  for  centuries.  *  *  *  'pi^g  question  is,  who 
was  meant?  (Lord  Loreburn,  L.  C.  Is  it  not  rather  who  was  hit?) 
No.  A  man  cannot  be  held  responsible  for  remote  and  improbable 
results  of  his  actions.  *  *  *  The  test  is  not  the  impression  of  by- 
standers or  the  influence  of  friends,  but  whether  the  defendant  used 
words  which  were  admittedly  defamatory  "of  and  concerning"  the 
plaintiff.     *     *     * 

Lord  Loreburn,  L.  C.*^  My  Lords,  I  think  this  appeal  must  be 
dismissed.     A  question  in  regard  to  the  law  of  libel  has  been  raised 

42  The  statement  of  facts,  the  opinions  of  Lords  Atkinson  and  Gorell,  and. 
part  of  opinion  of  Lord  Shaw  of  Dunfermline,  are  omitted. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  617 

which  does  not  seem  to  me  to  be  entitled  to  the  support  of  your  Lord- 
ships. Libel  is  a  tortious  act.  What  does  the  tort  consist  in?  It 
consists  in  using  language  which  others  knowing  the  circumstances 
would  reasonably  think  to  be  defamatory  of  the  person  complaining 
of  and  injured  by  it?  A  person  charged  with  libel  cannot  defend  him- 
self by  shewing  that  he  intended  in  his  own  breast  not  to  defame,  or 
that  he  intended  not  to  defame  the  plaintiff,  if  in  fact  he  did  both. 
He  has  none  the  less  imputed  something  disgraceful  and  has  none 
the  less  injured  the  plaintiff.  A  man  in  good  faith  may  publish  a 
libel  believing  it  to  be  true,  and  it  may  be  found  by  the  jury  that  he 
acted  in  good  faith  believing  it  to  be  true,  and  reasonably  believing  it 
to  be  true,  but  that  in  fact  the  statement  was  false.  Under  those  cir- 
cumstances he  has  no  defence  to  the  action,  however  excellent  his  in- 
tention. If  the  intention  of  the  writer  be  immaterial  in  considering 
whether  the  matter  written  is  defamatory,  I  do  not  see  why  it  need  be 
relevant  in  considering  whether  it  is  defamatory  of  the  plaintiff.  The 
writing,  according  to  the  old  form,  must  be  malicious,  and  it  must  be 
of  and  concerning  the  plaintiff'.  Just  as  the  defendant  could  not  excuse 
himself  from  malice  by  proving  that  he  wrote  it  in  the  most  benevolent 
spirit,  so  he  cannot  shew  that  the  libel  was  not  of  and  concerning  the 
plaintiff  by  proving  that  he  had  never  heard  of  the  plaintiff.  His  in- 
tention in  both  respects  equally  is  inferred  from  what  he  did.  His 
remedy  is  to  abstain  from  defamatory  words. 

It  is  suggested  that  there  was  a  misdirection  by  the  learned  judge 
in  this  case.  I  see  none.  He  lays  down  in  his  summing  up  the  law 
as  follows : 

"The  real  point  upon  which  your  verdict  must  turn  is,  ought  or  ought  not 
sensible  and  reasonable  people  reading  this  aiticle  to  think  that  it  was  a 
mere  imaginary  person  such  as  I  have  said — Tom  Jones,  ]Mr.  Pecksniff  as  a 
humbug,  Mr.  Stiggins,  or  any  of  that  sort  of  names  that  one  reads  of  in 
literatiu-e  used  as  types?  If  you  thiuk  any  reasonable  person  would  think 
chat,  it  is  not  actionable  at  all.  If,  on  the  other  hand,  you  do  not  think 
that,  but  think  that  people  would  suppose  it  to  mean  some  real  person — 
those  who  did  not  know  the  plaintiff  of  course  would  not  know  who  the 
real  person  was,  but  those  who  did  know  of  the  existence  of  the  plaintiff 
would  think  that  it  was  the  plaintilf — then  the  action  is  maintainable,  sub- 
ject to  such  damages  as  you  think  undei*  all  the  circumstances  are  fair  and 
right  to  give  to  the  plaintiff."  •la 


43  Compare  Newton  v.  Grubbs  (1913)  155  Ky.  479,  159  S.  W.  994,  48  L.  R. 
A,  (N.  S.)  355 :  (In  an  action  for  slander,  the  appellee,  who  was  defendant 
below,  was  a  practicing  physician.  He  had  related  to  several  persons  an 
experience  in  his  practice  with  a  young  woman,  "but  not  only  did  he  never 
use  appellant's  name  in  that  connection,  but  never  so  far  as  this  record 
shows  did  he  ever  indicate  who  tbe  young  woman  was.  The  evidence 
whoUy  fails  to  show  that  he  ever  used  appellant's  name  in  telling  this  ex- 
perience, or  by  innuendo  or  suggestion  intimated  that  she  was  the  person. 
JL5ut  it  appears  that  in  some  unexplained  way  the  appellant's  name  became 
associated  with  this  episode,  and  several  of  the  witnesses  say  they  had  heard 
this,  and  therefore  thought  from  outside  rumors  that  api>ellee  when  he  was 
telling  of  it  referred  to  appellant,  although  her  name  was  never  used  by 
appellee.     Appellee  testified  that  he  had  such  an  experience  in  his  practice, 


G18  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

I  see  no  objection  in  law  to  that  passage.  The  damages  are  cer- 
tainly heavy,  but  I  think  your  Lordships  ought  to  remember  two 
things.  The  first  is  that  the  jury  were  entitled  to  think,  in  the  ab- 
sence of  proof  satisfactory  to  them  (and  they  were  the  judges  of  it), 
that  some  ingredient  of  recklessness,  or  more  than  recklessness,  enter- 
ed into  the  writing  and  the  publication  of  this  article,  especially  as 
Mr.  Jones,  the  plaintifif,  had  been  employed  on  this  very  newspaper, 
and  his  naine  was  well  known  in  the  paper  and  also  well  known  in 
the  district  in  which  the  paper  circulated.  In  the  second  place  the 
jury  were  entitled  to  say  this  kind  of  article  is  to  be  condemned. 
There  is  no  tribunal  more  fitted  to  decide  in  regard  to  publications, 
especially  publications  in  the  newspaper  press,  whether  they  bear  a 
stamp  and  character  which  ought  to  enlist  sympathy  and  to  secure 
protection.  If  they  think  that  the  license  is  not  fairly  used  and  that 
the  tone  and  style  of  the  libel  is  reprehensible  and  ought  to  be  checked, 
it  is  for  the  jury  to  say  so;  and  for  my  part,  although  I  think  the 
damages  are  certainly  high,  I  am  not  prepared  to  advise  your  Lord- 
ships to  interfere,  especially  as  the  Court  of  Appeal  have  not  thought 
it  right  to  interfere,  with  the  verdict. 

Lord  Shaw  of  Dunfermline.  *  *  *  ]\];y  Lords,  with  regard 
to  this  whole  matter  I  should  put  my  propositions  in  a  threefold  form, 
and,  as  I  am  not  acquainted  by  training  with  a  system  of  jurispru- 
dence in  which  criminal  libel  has  any  share,  I  desire  my  observations 
to  be  confined  to  the  question  of  civil  responsibility. 

In  the  publication  of  matter  of  a  libellous  character,  that  is  matter 
which  w^ould  be  libellous  if  applying  to  an  actual  person,  the  responsi- 
bility is  as  follows :  In  the  first  place  there  is  responsibility  for  the 
words  used  being  taken  to  signify  that  which  readers  would  reason- 
ably understand  by  them;  in  the  second  place  there  is  responsibility 
also  for  the  names  used  being  taken  to  signify  those  whom  the  readers 
would  reasonably  understand  by  those  names;  and  in  the  third  place 
the  same  principle  is  applicable  to  persons  unnamed  but  sufficiently 
indicated  by  designation  or  description. 

My  Lords,  1  demur  to  the  observation  so  frequently  made  in 
the  argument  that  these  principles  are  novel.  Sufficient  expression 
is  given  to  the  same  principles  by  Abbott,  C.  J.,  in  Bourke  v.  Warren, 
2  C.  &  P.  307  (cited  in  the  proceedings),  in  which  that  learned  judge 
says:  "The  question  for  your  consideration  is  whether  you  think 
the  libel  designates  the  plaintiff  in  such  a  way  as  to  let  those  who 
knew  him  understand  that  he  was  the  person  meant.     It  is  not  neces- 

but  that  he  never  told   who  the  young  woman  was,   and   that  it  was   not 
appellant.") 

And  see  Brown  v.  Journal  Newspaper  Co.  (1915)  219  Mass.  486,  107  N.  E. 
358:  (D.'s  newspaper,  without  naming  any  one,  charged  that  there  was  col- 
lusion between  those  who  conducted  the  tax  sales  in  Boston  and  the  "tax  title 
sharks."  P.  was  collector  of  taxes  in  Boston,  and  as  such  was  the  only 
person  authorized  by  law  to  conduct  the  tax  sales  there.) 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN   TRESPASSES  619 

sary  that  all  the  world  should  understand  the  libel;  it  is  sufficient 
if  those  who  know  the  plaintiff  can  make  out  that  he  is  the  person 
meant."  I  think  it  is  out  of  the  question  to  suggest  that  that  means 
"meant  in  the  mind  of  the  writer"  or  of  the  publisher ;  it  must  mean 
"meant  by  the  words  employed."  The  late  Lord  Chief  Justice  Cole- 
ridge dealt  similarly  with  the  point  in  Gibson  v.  Evans,  23  Q.  B.  D. 
384,  at  p.  386,  when  in  the  course  of  the  argument  he  remarked: 
"It  does  not  signify  what  the  writer  meant ;  the  question  is  whether 
the  alleged  libel  was  so  published  by  the  defendant  that  the  world 
would  apply  it  to  the  plaintiff." 

Order  of  the  Court  of  Appeal  affirmed  and  appeal  dismissed  with 
costs.  J  _  V  I 


(b)  Publication 
WEIR  V.  HOSS. 

(Supreme  Court  of  Alabama,  1844.    6  Ala.  SSI.) 

The  action  was  for  a  libel.  Upon  the  trial,  under  the  general  is- 
sue, the  plaintiffs  proved  the  loss  of  the  original  libel ;  and  then 
proved  three  copies  of  it;  each  of  which  was  proved  to  be  a  sub- 
stantial copy  of  the  original  libel ;  and  all  of  which  differed  from  each 
other  in  some  respects,  and  offered  the  said  copies  in  evidence.  To 
the  introduction  of  each  of  said  copies  in  evidence,  the  defendant 
objected.  The  objections  were  overruled,  and  all  of  said  copies  read 
to  the  jury;   and  defendant  excepted. 

The  court  charged  the  jury,  that  if  they  were  satisfied  from  the 
proof,  that  either  of  the  copies  of  the  libel  offered  in  evidence,  was 
substantially  a  copy  of  the  original  libel,  and  that  it  was  either  com- 
posed, or  published,  by  defendant,  they  ought  to  find  for  the  plaintiff's, 
to  which  the  defendant  excepted. 

Ormond,  j.  *  *  *  fhe  court  charged,  that  if  the  defendant 
either  composed  or  published  the  libel,  the  jury  must  find  for  the  plain- 
tiff. This  is  a  plain  error.  To  constitute  either  verbal  or  written 
slander,  there  must  be  a  publication — tlie  contents  must  be  made 
known  to  some  third  person  or  persons.  This  is  not  denied  by  the 
counsel  for  the  defendant  in  error,  who  insisted  that  the  point  was  not 
made  in  the  court  below,  that  publication  was  conceded,  as  is  evident 
from  the  fact  that  there  were  so  many  copies  of  the  libel  extant.  It 
is,  to  be  sure,  very  probable  that  such  was  the  fact;  but  still  it  may 
be  that  the  libel  was  not  intended  for  publication,  and  that  the  copies 
were  taken  without  the  consent  of  the  defendant.  There  is  nothing 
in  the  record  which  conclusively  shows  that  publication  was  made; 
and  as  the  charge  was  clearly  erroneous  in  point  of  law,  and  upon 
a  point  necessarily  involved  in  the  issue,  it  is  impossible  that  we  should 


620  TORTS  THROUGH  ACTS  OF    ABSOLUTE  LIABILITY  (Part  1 

say  that  the  defendant  was  not  prejudiced  by  it.  It  may  have  been 
the  point  on  which  the  case  turned;  and  for  this  error,  the  judg- 
ment must  be  reversed,  and  the  cause  remanded.** 


SHEFFILL  V.  VAN  DEUSEN. 

(Supreme  Judicial  Court  of  Massachusetts,  1859.     13  Gray,  304, 

74  Am.  Dec.  032.) 

Action  of  tort  for  slander.  Trial  in  the  court  of  common  pleas, 
before  Briggs,  J.,  who  signed  this  bill  of  exceptions : 

"The  words  claimed  to  have  been  slanderous,  were  spoken,  if  at  all,  at 
the  dwelling  house  of  the  defendants  and  at  that  part  called  the  bakery, 
where  bread  and  other  articles  were  sold  to  customers ;  and  were  spoken 
by  ]Mrs.  Van  Deusen  to  Mrs.  SheffiU. 

"The  defendants  asked  the  court  to  instruct  the  jury  that  if  the  words 
alleged  in  the  plaintiffs'  declaration  were  spoken  to  Mrs.  Sheffill,  and  no  other 
person  but  Mrs.  Shelhll  and  Mrs.  Van  Deusen  were  present,  there  was  no 
such  publication  of  the  words  as  would  maintain  the  action. 

"The  court  declined  so  to  instruct,  but  did  instruct  the  jury  that  if  the 
words  were  publicly  uttered  in  tlie  bakery  of  the  defendants,  there  was 
a  suthcient  publication,  though  the  plaintiff  has  not  shewn  that  any 
other  person  was  present,  at  the  time  they  were  spoken,  but  IMrs.  Sheffill 
and  Mrs.  Van  Deusen.  The  jury  returned  a  verdict  for  the  plaintiffs,  and 
the  defendants   except." 

BiGELOw,  J.*^  Proof  of  the  publication  of  the  defamatory  words 
alleged  in  the  declaration  was  essential  to  the  maintenance  of  this 
action.  Slander  consists  in  uttering  words  to  the  injury  of  a  person's 
reputation.  No  such  injury  is  done  when  the  words  are  uttered  only 
to  the  person  concerning  whom  they  are  spoken,  no  one  else  being 
present  or  within  hearing.  It  is  damage  done  to  character  in  the 
opinion  of  other  men,  and  not  in  a  party's  self  estimation,  which  con- 
stitutes the  material  element  in  an  action  for  verbal  slander.  Even 
in  a  civil  action  for  libel,  evidence  that  the  defendant  wrote  and  sent 
a  sealed  letter  to  the  plaintiff,  containing  defamatory  matter,  was 
held  insufficient  proof  of  publication  ;*®    although  it  would  be  other- 

44  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 

45  Tart  of  the  opinion  is  omitted. 

46  Accord  :  Economopoulos  v.  Pollard  Co.  (1914)  218  Mass.  294,  105  N.  E. 
S06:  (D.'s  clerk  said  to  P.,  in  a  store:  "You  have  stolen  a  handkerchief." 
There  was  no  evidence  that  a  third  person  heard  the  words.)  Phillips  v. 
Jausen  (1798)  2  Esp.  624:  (D,  wrote  and  mailed  to  P.  a  sealed  letter  which 
defamed  P.)  Yousling  v.  Dare  (1904)  122  Iowa.  539,  98  N.  W.  371.  Clutter- 
buck  V.  Chaffers  QSIG)  1  Stark.  471,  18  r:  K.  811  :  (D.  wrote  and  sent  to  P. 
by  S.  a  folded  but  unsealed  letter  which  defamed  P.  Without  reading  it  or 
allowing  any  other  person  to  read  it,  S.  delivered  the  letter  to  P.)  Fonville 
V.  McNease  (18;i8)  Dud.  (S.  C.)  303.  31  Am.  Dec.  556:  (D.  wrote  a  letter 
which  defamed  P.,  sealed  it,  addressed  it  to  P.,  "or  Miss  Susan  Sloan," 
and  threw  it  sealed  into  an  inclosure,  where  it  was  picked  up  by  a  stranger 
and  delivered  to  P.,  who  opened  and  read  it  aloud.)  Western  Union  Tele- 
graph V.  Cashnian  (19(Xi)  149  Fed.  :'.G7,  81  C.  C.  A.  5,  9  L.  R.  A.  (N.  S.)  140, 
9  Ann.  Cas.  693:    (A  libelous  message  was  delivered  to  an  otfice  boy  to  make 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  621 

wise  in  an  indictment  for  libel,  because  such  writings  tend  directly 
to  a  breach  of  the  peace.     *     *     *  47 

It  is  quite  immaterial  in  the  present  case  that  the  words  were  spoken 
in  a  public  place.  The  real  question  for  the  jury  was,  were  they  so 
spoken  as  to  have  been  heard  by  a  third  person?  The  defendants 
were  therefore  entitled  to  the  instructions  for  which  they  asked. 

Exceptions  sustained. 

WENMAN  V.  ASH. 

(Court  of  Coramon  Pleas,  1853.     13  C.  B.  836,  138  Reprint,  1432,  93  R.  R.  761.) 

This  was  an  action  for  a  libel  contained  in  a  letter  addressed  by 
the  defendant  to  the  wife  of  the  plaintiff.  The  defendant  pleaded 
Not  guilty,  and  on  this  issue  submitted  that  there  was  no  proof  of 
a  publication.  A  verdict  was  taken  for  the  plaintiff,  damages  20s., 
subject  to  leave  reserved  for  the  defendant  to  enter  a  verdict  for  him. 

Byles,  Serjt.,  moved  accordingly:  There  was  no  publication;  the 
sending  the  letter  to  the  plaintift''s  wife,  was  like  sending  it  to  the 
plaintiff  himself;  for  husband  and  wife  are  for  all  legal  purposes  one. 
(Mauls,  J.  Is  a  man's  character  with  his  wife  worth  nothing?)  It 
is  difficult  to  see  how  he  could  sustain  injury  from  a  communication 
made  to  her.     *     *     *  ^^ 

a  letter  press  copy.  The  boy  made  the  copy.  There  was  no  evidence  that  he 
read  the  letter.) 

Compare  Kiene  v.  Rufif  (1855)  1  Iowa,  482:  (The  libelous  letter  was 
transcribed  by  S.  and  then  mailed  to  P.)  And  see  IS  Halsbury's  Laws  of 
England,  658-659  (1911) ;  25  Cyc.  365,  366 ;  Cent.  Dig.  "Libel  and  Slander," 
§§  106-108;    Dec.  Dig.,  Key-No.,  "Libel  and  Slander,"  §§  23-25. 

47  Spe  Edwards  v.  Wooton  (1602)  12  Co.  Rep.  35,  a  case  in  tJae  Star 
Chamber,  between  Edwards,  a  physician,  plaintiff,  and  Wooton,  a  doctor  in 
physic,  defendant.  The  defendant  bad  sent  a  libel  written  in  a  letter  sealed 
and  directed  to  the  party  libeled.  "The  doctor  thought  that  this  could  not  be 
punished  in  any  manner :  but  it  was  resolved,  that  the  said  infamous  letter, 
which  in  law  is  a  libel,  shall  be  punished  (although  it  was  solely  writ  to  the 
plaintiff  ^A^thout  any  other  publication)  in  the  Star  Chamber,  for  that  it  is 
an  offence  to  the  King,  and  is  a  gi'eat  motive  to  revenge,  and  tends  to  the 
breaking  of  the  i^eace  and  great  mischief;  and  for  that  reason  it  was  nec- 
essary, that  it  should  be  punished  either  by  indictment,  or  in  the  Star 
Chamber,  to  prevent  such  occasions  of  mischief." 

See,  also,  Yousling  v.  Dare  (1904)  122  Iowa,  539,  98  N.  W.  371,  372,  where 
McClain,  J.,  remarks:  "The  difference  between  the  criminal  law  and  the 
law  of  torts  in  this  respect  is  manifest.  The  act  of  publishing  a  libel  may 
be  criminal  for  the  reason  that  it  provokes  the  person  libeled  to  wrath,  and 
tends  to  create  a  breach  of  the  peace.  1  Bishop,  New  Crim.  Law,  §  591  (4) ; 
2  McClain,  Crim.  Law,  §  1055.  But  in  a  civil  action  it  is  essential  that  some 
damage  to  the  person  libeled  must  appear,  either  directly  or  by  legal  inference, 
and  no  such  inference  can  be  drawn  from  the  communication  of  the  libelous 
matter  to  the  very  person  concerning  whom  the  language  was  used.  Such 
a  distinction  is  illustrated  by  the  statutory  provision  as  to  the  publication  of 
libelous  matter  respecting  one  who  is  deceased.  Such  a  publication  may 
constitute  a  crime  (Code,  §  50S6),  but  cannot  form  the  basis  of  an  action 
for  civil  damages  in  behalf  of  any  person.  Bradt  v.  New  Nonpareil  Co. 
[1899J  108  Iowa,  449,  79  N.  W.  122,  45  I-.  R.  A.  681." 

4  8  The  statement  of  the  case  is  abridged,  and  parts  of  opinions  of  Jervis, 
C.  J.,  and  Maule,  J.,  and  opinion  of  Creswell,  J.,  are  omitted. 


622  TORTS  THROUGH  ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

Je^rvis,  C.  J.  I  am  of  opinion  that  this  rule  must  be  discharged.  It 
was  sufficiently  pointed  out  in  the  course  of  the  discussion  that  it  must 
necessarily  be  injurious  to  a  man  to  have  a  communication  like  that 
in  question  addressed  to  his  wife.  Notwithstanding  the  ingenious 
argument  of  my  Brother  Byles,  it  is  enough  to  say  that  I  think  there 
was  a  publication,  and  that  of  a  matter  calculated  to  operate  inju- 
riously to  the  plaintiff,  and  sufficient  to  maintain  this  action.     *     *     * 

Mauls,  J.  I  am  of  the  same  opinion.  In  the  eye  of  the  law,  no 
doubt,  man  and  wife  are  for  many  purposes  one :  but  that  is  a  strong 
figurative  expression,  and  cannot  be  so  dealt  with  as  that  all  the  con- 
sequences must  follow  which  would  result  from  its  being  literally 
true.  For  many  purposes,  they  are  essentially  distinct  and  dift'erent 
persons,  and,  amongst  others,  for  the  purpose  of  having  the  honour 
and  the  feelings  of  the  husband  assailed  and  injured  by  acts  done  or 
communications  made  to  the  wife.     *     *     *  49 

Rule  discharged. 


'fc>^ 


49  Accord:  Schenck  v.  Schenck  (1S43)  20  N.  J.  Law,  208;  Luick  v.  Driscoll 
(1S95)   13  Ind.  App.  279.  41  N.  E.  4G3.  55  Am.   St.  Kep.   224. 

On  the  question  whether  a  communication  to  the  plaintiff's  agent  is  a 
publication  on  which  the  plaintiff  may  rely,  see  Duke  of  Bmns%Aack  v. 
Harmer  (1849)  14  Q.  B.  185,  117  Reprint,  75,  SO  R.  R.  241 :  (In  1830  a  libel  of 
P.  was  published  in  D.'s  newspaper.  In  1847  P.  sent  S.  to  the  ofiice  of  this 
newspaper,  to  purchase  a  copy  of  the  paper  containing  this  libel  of  17  years 
before.  S.  made  the  purchase  of  D.,  and  handed  the  copy  to  P.  It  was 
contended  that  there  was  no  publication  within  six  years.  Said  Coleridge, 
J.,  delivering  the  opinion:  "It  appeared  that  the  publication  relied  on  was 
a  sale  of  a  copy  of  the  newspaper  to  a  person  sent  by  the  plaintiff  to  pro- 
cure it,  who,  on  receiving  it,  carried  it  to  the  plaintiff.  It  was  said  that 
this  was  a  sale  to  the  plaintiff  himself,  and,  therefore,  not  a  sufficient 
publication  to  sustain  a  civil  action  for  damages.  And,  in  some  sense,  it  is 
true  that  it  was  a  sale  and  delivery  to  the  plaintiff ;  but  we  think  it  was 
also  a  publication  to  the  agent.  The  question  arises  as  on  a  plea  of  Not 
guilty  in  an  ordinary  case.  The  defendant,  who,  on  the  application  of  a 
stranger,  delivers  to  him  the  writing  which  libels  a  third  person,  publishes 
the  libellous  matter  to  him,  though  he  may  have  been  sent  for  the  purpose 
of  procuring  the  work  by  that  third  person.  So  far  as  in  him  lies,  he  lowers 
the  reputation  of  the  principal  in  die  mind  of  the  agent,  which,  although 
that  of  an  agent,  is  as  capable  of  being  affected  by  the  assertions  as  if  he 
were  a  stranger.  The  act  is  complete  by  the  delivery :  and  its  legal  char- 
acter is  not  altered,  either  by  the  plaintiff's  procurement  or  by  the  subse- 
quent handing  over  of  the  writing  to  liim.  Of  course  that  this  publication 
was  by  the  procurement  of  the  plaintiff  is  not  material  to  tlie  question  we 
are  now  considering."  See,  also,  Massee  v.  Williams  (1913)  207  Fed.  222, 
229,  124  C.  0.  A.  492;  Brown  v.  Elm  City  Lumber  Co.  (1914)  107  N.  C.  9, 
82  S.  E.  961. 

But  see  the  doctrine  of  decoy  publication  as  a  defense,  given  infra,  "Other 
Excuses  for  Defamatory  Charges  Confessedly  Untrue." 

Compare:  Wennliak  v.  Morgan  (IS.SS).  20  Q.  li.  D.  035,  where  ITuddleston, 
B.,  delivering  the  opinion  remarks:  "This  is  as  far  as  we  know  tlie  first  time 
it  has  ever  been  alleged  in  cases  of  this  kind  that  tlie  handing  over  of  a  libel 
by  the  libeller  to  his  wife  is  a  publication.  I  think  that  tlie  question  can  be 
decided  on  the  common  law  principle  that  luisl>and  and  wife  are  one." 

Sesler  v.  Montgomery  (ISSO)  78  Cal.  4.SG,  21  Pac.  1S5,  3  L.  R.  A.  053,  12  Am. 
St.  Rep.  70.  In  this  case,  McEarland,  J.,  coiiiincnting  on  Schenck  v.  Sclu'iick 
(1843)  20  N.  J.  Law,  208,  remarked:  "Whether  or  not  that  decision  was 
a  correct  exposition  of  the  law,  it  is  clear,  at  lea.st,  that  another  princii)le 
was  involved.    As  the  court  say  in  that  case:    "Such  a  communication  matle 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN   TRESPASSES  623 


RUMNEY  V.  WORTHLEY. 

(Supreme  Judicial  Court  of  Massachusetts,  19(M.    186  Mass.  144,  71  N.  E.  316, 

1  Ann.  Cas.  189.) 

Tort  to  recover  damages  for  a  libel  contained  in  two  letters  sent  by 
tbe  defendant  to  the  plaintiff  through  the  mail.  The  letters  were 
sent  to  the  plaintiff  at  his  residence,  and  were  opened  and  read  aloud 
by  his  wife  and  daughter.  The  superior  court  found  that  there  was 
no  publication  of  the  letters,  and  directed  a  verdict  for  the  defendant. 

KnowIvTON,  C.  J.^'^  *  *  *  The  question  in  this  case  is  whether 
there  was  any  evidence  which  would  have  warranted  the  jury  in  find- 
ing that  the  defendant  believed,  or  had  good  reason  to  believe,  that 
the  letters  might  be  opened  and  read  by  the  plaintiff's  daughter  in 
his  absence,  and  that  she  was  authorized  to  open  her  father's  letters. 
The  question  of  difficulty  is  whether  there  was  evidence  that  the  de- 
fendant was  aware  that  she  was  accustomed  or  authorized  to  read 
such  letters  addressed  to  her  father.  On  this  point  the  testimony  is 
very  unsatisfactory.  She  testified  that  she  had  known  the  defendant 
for  five  years ;  that  he  came  to  the  store  a  great  mau}^  times  for 
the  purpose  of  selling  goods;  that  during  the  year  immediately  prior 
to  the  receipt  of  these  letters  he  had  seen  her  at  least  two  or  three 
times  receive  mail  addressed  to  her  father  and  open  it  in  his  presence ; 
that  she  knew  this  had  happened  several  times,  and  that  she  could  not 
state  the  exact  number  of  times ;  that  he  had  seen  her,  after  open- 
ing the  letters,  walk  with  them  to  her  father,  and  show  him  the  con- 
directly  to  the  wife  is  an  attempt  to  poison  the  fountain  of  domestic  peace, 
conjugal  affection,  and  filial  obligation,  at  their  very  sources.'  There  the 
exception  which  was  allowed  to  the  general  rule  was  in  support  of  the 
confidential  relation  of  marriage;  while  in  the  case  at  bar  the  exception 
sought  to  be  established  would  be  destnictive  of  that  relation.  Our  con- 
clusion is,  that  a  communication  from  a  husband  to  a  wife,  not  in  the 
presence  of  any  other  person,  does  not  constitute  a  publication  within  the 
meaning  of  the  law  of  slander.  It  follows  from  this  conclusion  that  the 
judgment  in  the  case  at  bar  was  erroneous." 

But  see  Trumbull  v.  Gibbons  (1816)  3  City  Hall  Recorder  (N.  Y.)  97, 
commented  on  in  Wennhak  v.  Morgan,  ante:  (D.  printed  in  New  York 
fifty  copies  of  a  pamphlet  which  libeled  P.  Five  copies  were  sent  by  D.  to 
his  wife  in  New  Jersey ;  four  of  them  bore  the  names  of  acquaintances  of 
his  mfe,  but  there  were  no  instructions  as  to  what  she  should  do  with  them. 
She  delivered  two  copies  in  New  Jersey  to  the  persons  whose  names  they 
bore,  and  handed  the  rest  to  P.  in  New  Jersey.  Held,  that  there  was  a 
publication  by  D,  in  New  Jersey.) 

5  0  Part  of  the  opinion,  on  the  effect  of  sending  a  libelous  letter  through 
the  mail  to  the  person  libeled,  with  no  reason  to  suppose  that  it  will  be 
opened  and  read  by  any  one  else,  is  omitted.  On  this  point,  Knowlton,  C. 
J.,  referred  to  Clutterbuck  v.  Chaffers  (1816)  1  Stark.  471 ;  Delacroix  v. 
Thevenot  (1817)  2  Stark.  63;  Robinson  v.  Jones  (1879)  4  L.  R.  (Ir.)  391; 
Fonville  v.  McNease  (1838)  Dud.  (S.  C.)  303,  31  Am.  Dec.  056;  Fry  v.  Mc- 
Cord  (1895)  95  Tenn.  678,  33  S.  W.  568;  Sylvis  v.  Miller  (1896)  96  Tenn. 
95,  33  S.  W.  921;  Spaits  v.  I'oundstoue  (1882)  87  Ind.  522,  44  Am.  Kep.  773: 
Mcintosh  V.  Matherly  (1848)  9  B.  Mon.  (Ky.)  119;  Waruock  v.  Mitchell 
(1S90  C.  C.)  43  Fed.  428. 


624  TORTS  THROUGH  ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 

tents  of  them.  Without  repeating  her  testimony  on  this  point,  which 
was  of  considerable  length,  we  are  of  opinion  that  the  jury  fairly 
might  have  inferred  from  it  that,  as  clerk  in  the  store  which  was 
owned  by  her  mother  and  conducted  by  her  father,  she  was  accus- 
tomed to  open  letters  addressed  to  him,  at  least  if  they  looked  like 
letters  pertaining  to  the  business,  and  that  the  defendant  knew  it. 
Printed  on  the  face  of  the  libelous  letters  were  these  words:  "In 
five  days  return  to  D.  E.  Worthley,  27  Canada  Street,  Lowell,  Mass." 
This  was  the  defendant's  business  address.  We  infer  that  the  let- 
ters appeared  externally  like  the  ordinary  business  letters  of  the  de- 
fendant. We  do  not  attach  much  importance  to  the  fact  that  they 
were  addressed  to  No.  12  Burt  street,  instead  of  No.  14  Burt  street, 
for  the  dwelling  house  and  store  were  connected.  If  the  case  stood 
upon  the  testimony  in  direct  examination,  we  should  think  the  jury  well 
might  infer  knowledge  on  the  part  of  the  defendant  that  the  plaintiff's 
daughter  was  accustomed  to  open  letters  which  looked  like  these,  and, 
with  considerable  hesitation,  we  are  inclined  to  think  that  the  cross- 
examination,  taken  in  connection  with  the  direct  examination,  would 
warrant  the  jury  in  coming  to  the  same  conclusion.  If  he  sent  the 
letters,  having  good  reason  to  believe  that  they  were  likely  to  be  open- 
ed by  an  authorized  person  other  than  the  plaintiff,  his  sending  them 
by  mail  was  a  publication.^^ 
Verdict  set  aside. 

51  Accord:  Delacroix  v.  Tlievenot  (1817)  2  Stark.  03:  (D.  wrote,  sealed, 
and  mailed  to  P.  a  letter  which  defamed  P.  The  letter  was  opened  in  regular 
course  of  business  by  P.'s  clerk,  the  letter  not  being  marked  "private." 
D.  knew  of  the  clerk's  emiiloyment  in  this  way.)  Pullman  v.  Hill  &  Co.  [ISOl] 
1  Q.  B.  524:  (A  letter  which  libeled  the  plaintitfs  was  addressed  in  the  name 
of  the  firm  of  which  they  were  members.  The  letter  was  opened  by  a  clerk 
in  the  ordinary  course  of  business  and  was  read  liy  two  other  clerks.  If  it 
had  been  directed  to  the  plaintiffs  in  their  individual  capacity,  the  letter 
would  probably  not  have  been  opened  by  a  clerk.)  Allen  v.  Wortham  (1S90) 
S9  Ky.  485,  13  S.  W.  73,  11  Ky.  Law  Rep.  697:  (D.  writes  and  mails  to  P. 
a  letter  which  defames  him,  but  P.  is  vmable  to  read,  and  has  S.  read  the 
letter  to  him.)  And  see  the  remark  of  Taft,  J.,  in  Wilcox  v.  Moon  (1892)  G4 
Yt.  450,  24  Atl.  244,  15  L.  II.  A.  700,  .33  Am.  St.  Rep.  936:  "Sending  [a  letter] 
to  a  party  who  cannot  read,  if  this  is  known  to  the  sender,  and  the  party 
to  whom  it  is  sent  from  necessity  procures  another  to  read  it,  is  likewise 
evidence  of  a  publication." 

Compare :  Iluth  v.  Hnth  (1915),  in  the  Court  of  Appeal,  London  Times  for 
March  27,  1915:  (In  1898  Miss  Edith  Greaves  was  mai-ried  to  Captain  Iluth. 
In  1913  Mrs.  Iluth,  because  of  differences  with  her  husband,  left  his  house 
and  went  to  live  at  Torquay.  The  alleged  libel  was  in  a  document  sent  by 
Mr.  Iluth,  the  defendant,  to  Mrs.  Huth  by  post  in  an  unsealed  envelope  bear- 
ing a  i/^d.  stamp,  and  addressed  "Miss  IMith  (Jreaves,  care  of  Mrs.  Stark, 
Torquay."  This  letter  was  received  at  Mrs.  lluth's  house  in  Torquay  l)y  hor 
butler.  Yielding  to  his  curiosity  over  the  unusual  address,  the  butler  took 
the  document  out  of  its  unsealed  envelope  and  read  it.  It  was  contended 
that  tliere  had  been  a  publication  by  the  del'endant  in  two  respects:  Tlie 
butler  had  in  fact  i*ead  the  document;  the  defendant  had  sent  it  in  the  un- 
sealed envelope  by  the  post.  In  his  opinion  in  the  Court  of  Appeal,  the  Lord 
Chief  Justice  said  that  he  found  no  evidence  of  pul)lication  to  the  butler. 
It  could  not  bo  contended  that  it  would  amount  t«  a  publication  by  the  sender 
if  a  third  i>erson  in  breach  of  his  duty  opened  and  read  a  letter  when  the 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  625 

PRICE  V.  JENKINGS. 
(In   the  Exchequer  Chamber,   1601.     Cro.  Eliz.   865,   78   Reprint,   1091.) 

Action  for  words.  And  declares,  that  the  defendant  spake  these 
words  in  Welsh  (reciting  them  particularly),  signifying  hrec  Anglicana 
verba:  "Thou  hast  murdered  thy  wife."  After  verdict,  and  judg- 
ment for  the  plaintiff,  error  was  brought  and  assigned  in  hoc,  that 
it  is  not  averred  that  the  words  were  spoken  in  the  company  of 
Welshmen,  or  of  such  who  understood  the  Welsh  tongue ;  but  it  is 
alledged  that  they  were  spoken  in  presentia  et  auditu  quamplurimorum 
subditorum  dominse  reginae.  And  the  action  was  brought  in  the 
county  of  Monmouth,  which  was  once  parcel  of  Wales,  but  was  now 
an  English  county. 

And  all  the  Justices  and  Barons  held  that  for  this  cause  it  was 
erroneous :  for  it  shall  not  be  intended  that  any  there  understood  the 
said  tongue,  unless  it  had  been  shewn ;  and  then  it  was  not  any 
slander,  no  more  than  if  one  spake  slanderous  words  in  French  or 
Italian,  an  action  lies  not,  unless  it  be  averred  that  some  there  present 
understood  those  languages;  as  it  was  held  in  the  case  of  Johns  v. 
Daux.  But  because  the  damages  were  found  to  £50  and  if  the  plain- 
tiff should  begin  de  novo  he  might  not  have  peradventure  so  great 
damages,  they  moved  him  to  accept  of  £10  and  to  make  an  end  with- 
out further  proceedings:  and  so  it  was  done,  and  no  judgment  en- 
tered.^2 

sender  had  no  reason  to  expect  anything  of  the  kind.  As  to  the  suggestion 
of  publication  in  the  post  otSce,  tlie  Lord  Chief  Justice  remarlved  that  he 
would  be  soriy  to  lay  do^Ti  anything  that  would  allow  libels  to  be  published 
with  greater  safety.  In  the  case  of  a  postcard,  it  was  presumed,  in  the  ab- 
sence of  evidence  to  the  contrary,  that  some  person,  other  than  the  addressee 
would  read  it.  But  the  contention  that  the  same  presumption  would  be  made 
in  the  case  of  a  letter  of  which  the  envelope  was  not  fastened  down  amounted 
to  saying  that  a  document  without  a  cover  was  the  same  thing  as  a  docu- 
ment with  a  cover.  In  his  opinion  there  was  no  such  presumption.  It  was 
time  that  the  post  office  authorities  had  a  right  to  examine  documents  en- 
closed in  envelopes  with  %d.  stamps,  but  that  in  itself  was  not  enough ; 
to  show  publication  it  would  be  necessary  to  call  some  one  from  the  post 
office  who  had  in  fact  opened  the  letter. 

Compare  also :  Wilcox  v.  Moon  (1892)  ante :  (D.  addressed  a  libelous 
letter  to  P.  It  was  received  at  the  post  office  by  P.'s  husband,  and  delivered 
to  her  unopened,  whereupon  she  broke  the  seal  and  they  read  it  together.) 

Shepard  v.  Lamphier  (1914)  84  Misc.  Rep.  498,  146  N.  Y.  Supp.  745,  748: 
(D.,  a  married  man,  addressed  and  mailed  to  P.,  a  married  woman,  a  letter 
proposing  immoral  conduct.     P.  laid  the  letter  before  the  postal  authorities.) 

52  Accord:  Jones  v.  Davers  (1596)  Cro.  Eliz.  497:  (The  plaintiff  alleged 
that  the  defendant  dixit  et  propalavit  hsec  Latina  verba  in  prtesentia 
diversorum,  qui  intellexerunt  Romanam  linguam,  viz.  "inimicus  meus  (in- 
nuendo the  plaintiff)  is  an  extortioner."  On  the  plaintiff's  demurrer  to  a 
defective  plea,  it  was  contended  that  the  declaration  was  defective,  for  "it 
is  supposed  that  the  defendant  spoke  slanderous  words  in  Latin,  in  prjiesentia 
diversorum  who  understood  linguam  Romanam,  which  well  may  be ;  for 
lingua  Romana  at  this  day  intends  tlie  Italian  tongue,  and  not  the  Latin 

Hepb. Torts — 40 


626  TORTS  THROUGH   ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

SAD'GROVE  V.  HOLE. 

(In  the  Court  of  Appeal.     [1901]  2  K.  B.  1.) 

The  defendant,  as  managing  director  of  a  limited  company,  em- 
ployed an  architect  on  behalf  of  the  company  to  prepare  plans  and 
drawings  relative  to  a  proposed  addition  to  the  company's  premises. 
The  architect  was  directed  to  employ  a  quantity  surveyor  to  make 
out  a  bill  of  quantities,  and  he  instructed  the  plaintiff  to  do  this.  The 
bill  of  quantities  was  accordingly  prepared  by  the  plaintiff,  and  copies 
were  sent  to  seven  builders  whose  names  had  been  supplied  by  the 
defendant,  and  to  whom  invitations  to  tender  for  the  work  had  been 
given.  The  contents  of  the  bill  of  quantities  came  to  the  knowledge 
of  the  defendant,  who  appears  to  have  thought  that  the  amount  of 
work  indicated  therein  was  much  in  excess  of  that  which  the  company 
desired  should  be  done.  The  defendant  thereupon  wrote  and  sent 
by  post  to  one  of  the  seven  builders  a  post-card  which  was  as  fol- 
lows :  "The  quantities  sent  you  this  morning  by  architect  are  entirely 
wrong.  I  have  plans  &c.,  here,  and  you  can  give  me  prices  on  these. 
Yours,  &c.,  S.  Hole."  The  defendant  also  wrote  and  sent  by  post 
to  another  of  the  seven  builders  a  post-card  which  was  as  follows : 
"There  are  great  errors  in  the  quantities  posted  to  you  this  morning. 
H  you  will  call  here  you  can  see  plans  and  give  me  price  on  these. 
Yours  obediently,  S.  Hole." 

The  plaintiff  brought  an  action  for  libel  on  these  two  post-cards, 
alleging  that  they  were  defamatory  of  him  in  his  calling  of  quantity 
.surveyor.  The  defence  was  a  denial  that  the  words  were  published 
concerning  the  plaintiff,  that  they  bore  the  interpretation  placed  upon 
them  in  the  statement  of  claim,  and  that  they  amounted  to  defamatory 
matter.  The  defendant  also  pleaded  that  the  publication  to  the  build- 
ers was  privileged  and  made  bona  fide  and  without  malice.  To  this 
the  plaintiff  replied  alleging  express  malice,  and  that  the  contents  of 
the  post-cards  were  necessarily  communicated  and  published  to  the 
postmen  and  clerks  through  whose  hands  they  respectively  passed 
before  reaching  the  persons  to  whom  they  were  addressed.  No  one 
through  whose  hands  either  of  the  post-cards  had  passed  was  called 
as  a  witness  at  the  trial. 

The  learned  judge  held  that  the  words  were  capable  of  a  defama- 
tory meaning;   that  the  occasion  was  not  privileged;   and  he  left  the 

tonpnie.")  "Economopoulos  v.  Pollard  Co.  (1914)  218  Mass.  204,  105  N.  E.  896 : 
(D.'s  clerk  said  to  P.  in  D.'s  store :  "You  have  stolen  a  handkerchief  of  us 
and  have  it  in  your  pocket."  The  words  were  spoken  in  Greek,  and  in  the 
hearing  of  others,  but  there  was  no  evidence  that  any  one  understood  tlieni 
except  P.) 

Compare:  Steketee  v.  Kinnn  (1882)  48  Mich.  ?.22,  12  N.  W.  177:  (Action  for 
a  liljel  published  in  the  Dutch  language  in  a  newspaper  having  a  large 
circulation  among  Hollanders  in  Michigan.) 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  627 

case  to  the  jury,  who  returned  a  verdict  for  the  plaintiff  for  £5,  and 
judgment  was   entered   for  that  amount.     The  defendant  appealed. 

A.  L.  Smith,  M.  R."  *  *  *  The  plaintiff'  to  succeed  in  the  ac- 
tion must  prove  a  publication  of  and  concerning  him  of  libellous  mat- 
ter, and  if  he  does  not  satisfy  the  onus  of  proof  which  is  on  him  in 
this  respect  there  is  no  cause  of  action.  It  is  certainly  my  opinion 
that  if  a  man  writes  a  libel  on  the  back  of  a  post-card  and  then  sends 
it  through  the  post  there  is  evidence  of  publication,  as  in  the  case  of 
a  telegram.  The  cases  cited  shew  that  the  two  stand  on  the  same 
footing.  What,  then,  did  the  plaintiff  prove  ?  He  proved  the  sending 
of  a  post-card;  but,  on  the  evidence,  it  is  clear  that  he  did  not  prove 
any  publication  of  a  libel  on  him  until  the  post-card  got  into  the  hands 
of  the  builder,  because  then  for  the  first  time  could  any  knowledge 
arise  as  to  the  person  to  whom  the  post-card  referred.  I  quite  agree 
that  if  the  name  of  the  plaintiff'  had  appeared  on  the  post-card  there 
would  have  been  plenty  of  evidence  of  publication  to  persons  other 
than  the  builder.^*  That,  however,  was  not  the  case,  and  the  plain- 
tiff" did  not  prove  publication  to  any  one  before  the  post-card  got  into 
the  builder's  hands,  and  as  a  communication  to  him  it  was  privileged 
unless  there  was  evidence  of  express  malice.     *     *     *  55 

I  come  to  the  conclusion,  therefore,  that  the  appeal  must  be  allowed 
and  judgment  entered  for  the  defendant. 


OWEN  V.  OGILVIE  PUB.  CO. 

(Supreme  Court  of  New  York,  Appellate  Division,  Second  Department,  1898. 
32  App.  Div.  465,  5.3  N.  Y.  Supp.  1033.) 

The  action  was  against  the  publishing  company.  From  a  judgment 
for  the  plaintiff  and  an  order  denying  a  new  trial,  the  defendant  ap- 
pealed. 

Hatch,  J.^®  *  *  *  ^he  libel  consisted  in  the  dictation  of  a  let- 
ter by  the  defendant's  general  manager  to  a  young  lady  employed  by 
the  corporation  as  a  stenographer  and  typewriter  in  the  private  office 
of  the  general  manager.  The  letter  was  written  in  reference  to  the 
business  of  the  corporation,  and  had  relation  to  a  small  sum  of  money 

53  Part  of  tlie  opinion,  as  well  as  tlie  concurring  opinion  of  Collins,  L.  J., 
are  omitted. 

64  That  sending  a  defamatory  statement  by  iK)stal  card  or  by  telegram  is 
a  publication,  see  Williamson  v.  Freer  (1874)  L.  R.  9  C.  P.  303 ;  Robinson 
V.  Jones  (1879)  4  L.  R.  Ir.  391;  Logan  v.  Hodges  (1907)  146  N.  C.  38,  59  S. 
E.  349,  14  Ann.  Cas.  103;   18  IIalsl)ury's  Laws  of  England,  661 ;   25  Cyc.  3G9. 

55  The  Master  of  the  Rolls  was,  however,  of  opinion  tliat  there  was  no 
evidence  of  express  malice:  "It  is  said  that  the  mere  writing  of  a  post- 
card and  sending  it  by  mail,  instead  of  sending  a  closed  letter,  was  evi- 
dence of  malice,  and  I  agree  that  if  the  name  of  tlie  plaintiff  had  appeared 
on  the  card  that  would  have  been  so;  but  in  this  case  tliere  was  nothing  to 
connect  the  libel  with  the  plaintiff,  and  no  evidence  of  malice." 

5s  Parts  of  the  opinion  are  omitted. 


628  TORTS  THROUGH  ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

missing  from  the  cash  drawer,  and  the  letter  expressed  a  suspicion 
that  the  money  had  been  taken  by  the  plaintiff  during  her  employ- 
ment by  the  defendant,  on  the  day  before. 

The  law  is  elementary  that  there  can  be  no  libel  without  a  publica- 
tion of  the  libelous  matter.  We  may  assume  that  this  letter  was 
libelous.  Was  there  a  publication  of  it  by  the  corporation,  within 
the  meaning  of  the  law?  Ordinarily,  when  a  letter  is  written  and 
delivered  to  a  third  person,  with  the  intent  and  expectation  that  it  shall 
be  read  by  such  person,  and  it  is  actually  read,  the  publication  is  com- 
plete. Youmans  v.  Smith,  153  N.  Y.  214,  47  N.  E.  265.  Has  such 
rule  application  to  the  facts  of  this  case?  The  letter  was  dictated 
to  the  stenographer,  and  was  by  her  copied  out,  was  signed  by  the 
manager,  was  then  inclosed  in  an  envelope,  and  sent  by  mail  to  the 
address  of  the  plaintiff.  It  may  be  that  the  dictation  to  the  stenog- 
rapher and  her  reading  of  the  letter  would  constitute  a  publication  of 
the  same  by  the  person  dictating  it,  if  the  relation  existing  between 
the  manager  and  the  copyist  was  that  of  master  and  servant,  and  the 
letter  be  held  not  to  be  privileged.  Such,  however,  was  not  the  rela* 
tion  of  these  persons.  They  were  both  employed  by  a  common  master, 
and  were  engaged  in  the  performance  of  duties  which  their  respective 
emj?loyments  required.  Under  such  circumstances  we  do  not  think 
that  the  stenographer  is  to  be  regarded  as  a  third  person  in  the  sense 
that  either  the  dictation  or  the  subsequent  reading  can  be  regarded  as 
a  publication  by  the  corporation.  It  was  a  part  of  the  manager's  duty 
to  write  letters  for  the  corporation,  and  it  was  the  duty  of  the  stenog- 
rapher to  take  such  letter  in  shorthand,  copy  it  out,  and  read  it  for 
the  purpose  of  correction.  The  manager  could  not  write  and  publish 
a  libel  alone,  and  we  think  he  could  not  charge  the  corporation  with 
the  consequences  of  this  act,  where  the  corporation,  in  the  ordinary 
conduct  of  its  business,  required  the  action  of  the  manager  and  the 
stenographer  in  the  usual  course  of  conducting  its  correspondence. 
The  act  of  both  was  joint,  for  the  corporation  cannot  be  said  to  have 
completed  the  act  which  it  required  by  the  single  act  of  the  manager, 
as  the  act  of  both  servants  was  necessary  to  make  the  thing  complete. 
The  writing  and  the  copying  were  but  parts  of  one  act;  i.  e.  the 
production  of  the  letter.  Under  such  conditions  we  think  the  dicta- 
tion, copying,  and  mailing  are  to  be  treated  as  only  one  act  of  the 
corporation ;  and,  as  the  two  servants  were  required  to  participate  in 
it,  there  was  no  publication  of  the  letter,  in  the  sense  in  which  that 
term  is  understood,  by  delivery  to  and  reading  by  a  third  person. 
There  was  in  fact  but  one  act  by  the  corporation,  and  those  engaged 
in  the  performance  of  it  are  not  to  be  regarded  as  third  parties,  but 
as  common  servants  engaged  in  the  act.  We  do  not  deny  but  that 
there  can  be  publication  of  a  libel  by  a  corporation  by  reading  the 
libelous  matter  to  a  servant  of  such  corporation,  or  delivering  it  to  be 
read.  Where  the  duties  devolved  upon  such  servant  are  distinct  and 
independent  of  the  process  by  which  the  libel  was  produced,  he  might 


Ch.2) 


ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  629 


well  stand  in  the  attitude  of  a  third  person  through  whom  a  libel  can 
be  published.  But  such  rule  may  not  be  applied  where  the  acts  of  the 
servants  are  so  intimately  related  to  each  other  as  is  disclosed  in  the 
present  record,  and  the  production  is  the  joint  act  of  both.  As  there 
was  no  other  proof  of  publication  aside  from  the  reading  by  the  stenog- 
rapher, it  is  insufficient  to  uphold  a  finding  that  the  libel  was  pub- 
lished.'^'     *     *     * 

It  follows  that  the  judgment  should  be  reversed,  and  a  new  trial 
granted;   costs  to  abide  the  event.     *     *     *     All  concur. 

5  7  In  Pullman  v.  Hill  &  Co.,  [1S91]  1  Q.  B.  524,  a  defamatory  letter  was  dic- 
tated by  the  defendants'  managing  director  to  a  short-hand  clerk,  who  tran- 
scribed it  by  a  typewriter  machine.  Lord  Esher,  M.  R.,  delivering  an  opinion 
In  the  Court  of  Appeal,  reasoned  thus:  "The  first  question  is  whether,  assum- 
ing the  letter  to  contain  defamatory  matter,  there  has  been  a  publication  of  it. 
What  is  the  meaning  of  'publication'?  The  making  known  the  defamatory 
matter  after  it  has  been  written  to  some  person  other  than  the  person  of  whom 
it  is  written.  If  the  statement  is  sent  straight  to  the  person  of  whom  it  is 
written,  there  is  no  publication  of  it ;  for  you  cannot  publish  a  libel  of  a 
man  to  himself.  If  there  was  no  publication,  the  question  whether  the  occa- 
sion was  privileged  does  not  arise.  If  a  letter  is  not  communicated  to  any 
one  but  the  person  to  whom  it  is  written,  there  is  no  publication  of  it.  And, 
if  the  writer  of  a  letter  locks  it  up  in  his  own  desk,  and  a  thief  comes  and 
breaks  open  the  desk  and  takes  away  the  letter  and  makes  its  contents  known, 
I  should  say  that  would  not  be  a  publication.  If  the  writer  of  a  letter  shews 
it  to  his  own  clerk  in  order  that  the  clerk  may  copy  it  for  him,  is  that  a  pub- 
lication of  the  letter?  Cert^ainly  it  is  shewing  it  to  a  third  person ;  the  writ- 
er cannot  say  to  the  person  to  whom  the  letter  is  addressed,  "I  have  shewn  it 
to  you  and  to  no  one  else.'  I  cannot,  therefore,  feel  any  doubt  that,  if  the 
writer  of  a  letter  she-n^  it  to  any  person  other  than  the  person  to  whom  it  is 
written,  he  publishes  it.  If  he  wishes  not  to  publish  it,  he  must,  so  far  as  he 
possibly  can,  keep  it  to  himself,  or  he  must  send  it  himself  straight  to  the 
person  to  whom  it  is  written.  There  was,  therefore,  in  this  case  a  publica- 
tion to  the  typewriter." 

In  accord  with  Pullman  v.  Hill  &  Co.  are  Gambrill  v.  Schooley  (1901)  93  Md. 
48,  48  Atl.  730,  52  L.  R.  A.  87,  86  Am.  St.  Rep.  414 ;  Ferdon  v.  Dickens  (1909) 
161  Ala.  181,  49  South.  888;  Puterbaugh  v.  Gold  Medal  Mfg.  Co.  (1904)  7  Out. 
L.  Rep.  582,  1  Ann.  Cas.  100:  (S.,  the  manager  of  D.,  a  mercantile  corporation, 
having  written  out  the  draft  of  a  letter  to  P.,  which  charged  him  with  theft, 
handed  the  draft  to  a  clerk  of  D.,  to  be  copied  on  a  typewriter.  The  clerk  did 
so,  stamped  the  company's  name  at  the  foot  of  the  copy,  and  brought  it  to  S., 
who  wrote  his  name  beneath  that  of  the  company,  and  gave  it  back  to  the 
clerk,  to  be  closed  and  mailed  to  P.,  which  was  done.) 

In  Puterbaugh  v.  Gold  Medal  Mfg.  Co.,  ante,  the  Ontario  Court  of  Appeal, 
reversing  the  divisional  Court  (5  Out.  L.  Rep.  680),  held  that  there  had  been 
a  publication  of  the  libel  by  the  defendant,  on  the  autliority  of  Pullman  v. 
Hill  &  Co.  But  on  the  prmciple  involved,  Moss,  C.  J.  O.,  remarked:  "It  ap- 
pears to  me  that  in  view  of  recognized  methods  of  conducting  the  business 
affairs  of  large  commercial  and  manufacturing  corporations  in  this  country  it 
would  not  be  unreasonable  to  hold  that  where  the  manager  or  other  officer  of 
such  a  corporation  within  the  scope  of  whose  duty  falls  that  of  dealing  with 
any  matter  of  concern  to  the  business,  dictates  a  letter  on  a  business  matter 
of  the  corporation  to  a  stenographer  in  its  employ  who  thereupon  transcribes 
it  for  signature  in  the  ordinary  course,  such  acts  ought  not  to  be  treated  as 
publication  so  as  to  render  the  corporation  liable  to  an  action  for  libel  for 
the  matter  contained  in  the  letter.  The  stenographer  ought  not  to  be  regarded 
as  a  third  person.  The  communication  to  him  ought  to  be  treated  as  privi- 
leged. There  is  to  my  mind  much  force  in  the  statement  of  the  learneil  Judge 
who  delivered  the  jud'zment  of  the  Court  in  Owen  v.  J.  S.  Ogilvie  Pub.  Co. 
[189S]  32  App.  Div.  4(i7  [53  N.  Y.  Supp.  1033]." 

In  England,  the  doctrine  of  Pullman  v.  Hill  &  Co.  has  been  materially  quali- 


630  TORTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

VIZETELLY  v.  MUDIE'S  SELECT  LIBRARY,  Limited. 

(In  the  Court  of  Appeal.     [1900]  2  Q.  B.  170.) 

The  action  was  for  a  libel  contained  in  a  book,  copies  of  which  had 
been  circulated  and  sold  by  the  defendants,  who  were  the  proprietors 
of  a  circulating  library  with  a  very  extensive  business.  The  defend- 
ants in  their  defence  stated  that,  if  they  sold  or  lent  the  book  in 
question,  they  did  so  without  negligence,  and  in  the  ordinary  course 
of  their  business  as  a  large  circulating  library ;  that  they  did  not  know, 
nor  ought  they  to  have  known,  that  it  contained  the  libel  complained 
of ;  that  they  did  not  know  and  had  no  ground  for  supposing  that  it 
was  likely  to  contain  libellous  matter ;  and  that  under  the  circumstances 
so  stated  they  contended  that  they  did  not  publish  the  libel. 

The  libel  complained  of  was  a  short  passage  in  a  book  called  "Emin 
Pasha :  His  Life  and  Work,"  published  in  October,  1898,  by  Archibald 
Constable  &  Co.  The  special  circumstances  in  the  case  brought  to 
the  attention  of  the  jury  were  as  follows : 

The  plaintiff  on  becoming  aware  of  the  libel  brought  an  action  for 
libel  against  Messrs.  Constable  &  Co.,  which  was  settled  by  their  pay- 
ing £100  damages,  apologizing,  and  undertaking  to  withdraw  the  libel 
from  circulation.  In  the  issue  of  the  Publishers'  Circular,  a  recog- 
nized medium  for  trade  advertisements  of  the  kind,  for  November  12, 
1898,  a  notice  was  inserted  to  the  effect  that  Messrs.  Archibald  Con- 
stable &  Co.  requested  that  all  copies  of  vol.  1  of  "The  Life  and  Work 
of  Emin  Pasha"  might  be  returned  to  them  immediately,  as  they  wished 
to  cancel  a  page,  and  insert  another  one  in  its  place,  and  stating  that 
they  would  of  course  defray  the  carriage  both  ways,  if  desired.  A 
similar  notice  was  inserted  on  the  same  date  in  the  Athenaeum  news- 
paper, a  well-known  medium  of  communication  among  literary  people. 
In  March,  1899,  it  came  to  the  plaintiff's  knowledge  that  the  defend- 
ants were  lending  copies  of  the  work  as  originally  published  to  sub- 
scribers, and  also  selling  surplus  copies  of  the  same,  and  he  thereupon 
commenced  the  action  against  them.  It  appeared  that  none  of  those 
engaged  in  the  conduct  of  the  defendants'  business  had  seen  the  be- 
fore-mentioned notices  in  the  Publishers'  Circular  and  Athenaeum, 
though  the  defendants  took  in  those  papers.     Mr.  A.  O.  Mudie,  one 

fied  and  distinsuisbed.  in  Boxsius  v.  Goblet  Freres,  [1894]  1  Q.  B.  842,  and 
Edmondsou  v.  Birch  &  Co.,  [1907]  1  K.  B.  371.  In  the  former  case  the  decision 
in  Pullman  v.  Hill  &  Co.  is  put  on  the  ground  that  it  does  not  fall  within  the 
ordinary  business  of  a  merchant  to  write  such  defamatory  statements,  and 
that,  if  he  does  so,  it  is  not  reasonably  necessary,  as  he  is  doiug  a  thing  not 
in  the  ordinary  course  of  his  business,  that  he  should  cause  the  statomcut  to 
be  copied  by  a  clerk  in  his  ollice.  In  the  Edmond.son  Case,  Fletcher  Moulton, 
C.  J.,  concurring  with  Collins,  M.  R.,  and  Cozeus-IIardy,  L.  J.,  summed  up  the 
dwtrine  thus:  "In  my  opinion  the  law  on  the  subject,  as  laid  down  in  the 
cases,  amounts  to  this:  If  a  business  communication  is  privileged,  as  being 
made  on  a  privileged  occasion,  the  privilege  covers  all  incidents  of  tlie  trans- 
mission and  treatment  of  that  cunuuuuication  which  are  in  accordance  with 
the  reasonaijle  and  usual  course  of  busines.s." 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  631 

of  the  defendants'  two  managing  directors,  who  was  called  as  a  wit- 
ness for  the  defendants,  gave  evidence  to  the  eilfect  that  the  defend- 
ants did  not  know  when  they  circulated  and  sold  the  book  in  question 
that  it  contained  the  passage  complained  of.  He  stated  that  the  books 
which  they  circulated  were  so  numerous  that  it  was  impossible  in  the 
ordinary  course  of  business  to  have  them  all  read,  and  that  they  were 
guided  in  their  selection  of  books  by  the  reputation  of  the  publishers, 
and  the  demand  for  the  books.  He  said  in  cross-examination  that 
there  was  no  one  else  in  the  establishment  besides  himself  and  his  co- 
director  who  exercised  any  kind  of  supervision  over  the  books ;  that 
they  did  not  keep  a  reader  or  anything  of  that  sort ;  that  they  had  had 
books  on  one  or  two  occasions  which  contained  libels ;  that  that  would 
occur  from  time  to  time ;  that  they  had  had  no  action  brought  against 
them  for  libel  before  the  present  action;  and  that  it  was  cheaper  for 
them  to  run  an  occasional  risk  of  an  action  than  to  have  a  reader. 

In  summing  up,  Grantham,  J.,  directed  the  jury  to  consider  whether, 
having  regard  to  this  evidence,  the  defendants  had  used  due  care  in  the 
management  of  their  business.  The  jury  found  for  the  plaintiff, 
damages  £100.  The  defendants  applied  for  a  judgment  or  a  new 
trial.^« 

Rome;r,  L.  J.  The  law  of  libel  is  in  some  respects  a  very  hard  one. 
In  the  remarks  which  I  am  about  to  make  I  propose  to  deal  only 
with  communications  which  are  not  privileged.  For  many  years  it 
has  been  well  settled  law  that  a  man  who  publishes  a  libel  is  liable 
to  an  action,  although  he  is  really  innocent  in  the  matter,  and  guilty 
of  no  negligence.  That  rule  has  been  so  long  established  as  to  be  in- 
capable of  being  altered  or  modified,  and  the  Courts,  in  endeavouring 
to  mitigate  the  hardship  resulting  from  it  in  many  cases,  have  only 
been  able  to  do  so  by  holding  that,  under  the  circumstances  of  cases 
before  them,  there  had  been  no  publication  of  the  libel  by  the  defend- 
ant. The  result,  in  my  opinion,  has  been  that  the  decisions  on  the 
subject  have  not  been  altogether  logical  or  satisfactory  on  principle. 
The  decisions  in  some  of  the  earlier  cases  with  which  the  Courts  had 
to  deal  are  easy  to  understand.  Those  were  cases  in  which  mere  car- 
riers of  documents  containing  libels,  who  had  nothing  to  do  with  and 
were  ignorant  of  the  contents  of  what  they  carried,  have  been  held 
not  to  have  published  libels. 

Then  we  have  the  case  of  Emmens  v.  Pottle,^®  in  which  vendors  of 

5  8  The  statement  of  the  case  is  abridged.  The  arguments  of  counsel  and 
the  opinions  of  A.  L.  Smith  and  Vaughau  Williams,  L.  JJ.,  and  part  of  the 
opinion  of  Eomer,  L.  J.,  are  omitted. 

5  0  16  Q.  B.  D.  354  (1885).  In  this  case  the  statement  of  defence  was  in 
two  paragraphs.  The  first  denied  that  the  defendants  had  published  the 
libel.  The  second  paragraph  alleged  that  the  defendants  "are  newsvendors 
carrying  on  a  large  business  at  14  and  15,  Royal  Exchange,  in  tlie  city  of 
London,  and  as  such  newsvendors,  and  not  otherwise,  sold  copies  of  the  said 
periodical  called  Money  in  the  ordinary  course  of  their  said  business,  and 
without  any   knowledge  of  its   contents,   which   is  the   alleged   publication." 


632  TORTS  THROUGH  ACTS  OF    ABSOLUTE  LIABILITY  (Part  1 

newspapers  in  the  ordinary  course  of  their  business  sold  a  newspaper 
which  contained  a  Hbel  It  was  clear  that  selling  a  document  which 
contained  a  libel  was  prima  facie  a  publication  of  it,  but  the  Court 
there  held  that  there  was  no  publication  of  the  libel  under  the  circum- 
stances which  appeared  from  the  special  findings  of  the  jury,  those 
findings  being  (1)  that  the  defendants  did  not  know  that  the  news- 
papers at  the  time  they  sold  them  contained  libels  on  the  plaintiff; 
(2)  that  it  was  not  by  negligence  on  the  defendants'  part  that  they  did 
not  know  that  there  was  any  libel  in  the  newspapers ;  and  (3)  that  the 
defendants  did  not  know  that  the  newspaper  was  of  such  a  character 
that  it  was  likely  to  contain  libellous  matter,  nor  ought  they  to  have 
known  so.  Lord  Esher,  M.  R.,  in  this  Court  was  of  opinion  that, 
though  the  vendors  of  the  newspapers,  when  they  sold  them,  were 
prima  facie  publishers  of  the  libel,  yet,  when  the  special  findings  of 
the  jury  were  looked  at,  the  result  was  that  there  was  no  publication  of 
the  libel  by  the  defendants.  Bowen,  L.  J.,  put  his  judgment  on  the 
ground  that  the  vendors  of  the  newspapers  in  that  case  were  really 
only  in  the  same  position  as  an  ordinary  carrier  of  a  work  containing 
a  libel.^'^ 

The  decision  in  that  case,  in  my  opinion,  worked  substantial  jus- 
tice; but,  speaking  for  myself,  I  cannot  say  that  the  way  in  which 
that  result  was  arrived  at  appears  to  me  altogether  satisfactory ;  I 
do  not  think  that  the  judgments 'very  clearly  indicate  on  what  prin- 
ciple Courts  ought  to  act  in  dealing  with  similar  cases  in  future.  That 
case  was  followed  by  other  cases,  more  or  less  similar  to  it,  namely, 
Ridgway  v.  Smith  &  Son  (1890)  6  Times  L.  R.  275,  Mallon  v.  W.  H. 
Smith  &  Son,  9  Times  L.   R.  621,  and  Martin  v.  Trustees  of  the 

In  his  reply,  the  plaintiff  joined  issue  on  the  first  paragraph  of  the  defence, 
and  alleged,  as  to  its  second  paragraph,  "that  the  allegations  therein  con- 
tained are  bad  in  substance  and  in  law,  on  the  ground  that,  even  if  tlie 
defendants  sold  copies  of  the  said  periodical  without  any  knowledge  of 
their  contents  and  in  the  ordinary  course  of  their  business,  as  alleged  in 
their  defence,  still,  inasmuch  as  the  defendants  sold  the  said  copies  as 
newsvendors  for  reward  in  that  behalf,  the  said  allegations  disclose  no  an- 
swer to  the  plaintiff's  claim." 

60  "A  newspaper  is  not  like  a  fire;  a  man  may  carry  it  about  without  being 
bound  to  suppose  that  it  is  likely  to  do  an  injury.  It  seems  to  uie  that  the 
defendants  are  no  more  liable  tJian  any  other  innocent  carrier  of  an  article 
which  he  has  no  reason  to  suppose  likely  to  be  dangerous.  But  I  by  no  means 
intend  to  say  that  the  vendor  of  a  newspaper  will  not  be  responsible  for  a 
libel  contained  in  it,  if  he  knows,  or  ought  to  know,  that  the  paper  is  one 
which  is  likely  to  contain  a  libel."  Per  Eowen,  L.  J.,  in  Emmens  v.  Pottle 
(1S85I  IG  Q.  b'.  D.  ;i54,  :J58. 

Compare:  Arnold  v.  Ingram  (1012)  151  Wis.  43.S,  138  N.  W.  Ill,  Ann. 
Cas.  1914C,  976:  (S.,  a  clergyman,  delivered  a  political  sermon,  and  sent 
a  synopsis  of  it  to  a  newspaper,  which  published  it.  D.  in  person  delivered 
the  manuscript  of  this  synopsis  to  tlic  publisher  of  the  paper.)  Wahlheimer 
V.  Ilardenbergh  (1914)  IGO  App.  Div.  190,  145  N.  Y.  Supp.  101  :  (!>.  was  the 
general  manager  of  an  association  of  newspapers,  organized  to  furnish 
news  to  the  papers  in  the  as.sociation.  As  such  D.  had  power  to  employ  re- 
porters to  collect  and  dis.seminate  news.  One  of  his  reporters  sent  out  a 
libelous  statement  to  the  newspapers  in  the  association.  D.  had  no  actual 
knowledge  of  this  until  nearly  two  years  later.) 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  633 

British  Museum  (1894)  10  Times  L.  R.  338.  The  result  of  the  cases 
is  I  think  that,  as  regards  a  person  who  is  not  the  printer  or  the  first 
or  main  publisher  of  a  work  which  contains  a  libel,  but  has  only  taken, 
what  I  may  call,  a  subordinate  part  in  disseminating  it,  in  consider- 
ing whether  tliere  has  been  publication  of  it  by  him,  the  particular 
circumstances  under  which  he  disseminated  the  work  must  be  consid- 
ered. If  he  did  it  in  the  ordinary^  way  of  his  business,  the  nature  of 
the  business  and  the  way  in  which  it  was  conducted  must  be  looked 
at ;  and,  if  he  succeeds  in  shewing  (1)  that  he  was  innocent  of  any 
knowledge  of  the  libel  contained  in  the  work  disseminated  by  him, 
(2)  that  there  was  nothing  in  the  work  or  the  circumstances  under 
which  it  came  to  him  or  was  disseminated  by  him  which  ought  to  have 
led  him  to  suppose  that  it  contained  a  libel,  and  (3)  that,  when  the 
work  was  disseminated  by  him,  it  was  not  by  any  negligence  on  his 
part  that  he  did  not  know  that  it  contained  the  libel,  then,  although 
the  dissemination  of  the  work  by  him  was  prima  facie  publication  of 
it,  he  may  nevertheless,  on  proof  of  the  before-mentioned  facts,  be  held 
not  to  have  published  it.  But  the  onus  of  proving  such  facts  lies  on 
him,^^  and  the  question  of  publication  or  non-publication  is  in  such  a 
case  one  for  the  jury. 

Applying  this  view  of  the  law  to  the  present  case,  it  appears  to  me 
that  the  jury,  looking  at  all  the  circumstances  of  the  case,  have  in 
effect  found  that  the  defendants  published  the  libel  complained  of,  and 
therefore  the  defendants  are  liable,  unless  that  verdict  is  disturbed. 
Looking  at  the  special  circumstances  of  the  case  which  were  brought 
to  the  attention  of  the  jury,  I  cannot  say  that  they  could  not  reasonably 
find  as  they  did.     *     *     * 

Application  dismissed. 

61  "I  agree  that  the  defendants  are  prima  facie  liable.  They'  have 
handed  to  other  people  a  newspaper  in  which  there  is  a  libel  on  the  plain- 
tiff. I  am  inclined  to  think  that  this  called  upon  the  defendants  to  shew 
some  circumstances  which  absolve  them  from  liability,  not  by  way  of  privi- 
lege, but  facts  which  shew  that  they  did  not  publish  the  libel."  Per  Lord 
Esher,  M.  R.,  in  Emmens  v.  Pottle  (1885)  16  Q.  B.  D.  354,  357. 

"Every  sale  or  delivery  of  a  written  or  printed  copy  of  a  libel  is  a  fresh 
publication,  and  every  person  who  sells  a  written  or  printed  copy  of  it  may 
be  sued  therefor,  and  the  onus  of  proving  that  he  was  ignorant  of  its  contents 
is  on  the  defendant."  Per  Manning,  J.,  in  Staub  v.  Van  Beuthuysen  (1884)  36 
La.  Ann.  467,  469.  The  libel  here  was  a  cartoon  in  a  newspaper  sold  at 
a  news  stand  "where  all  the  local  newspapers  and  tlie  principal  ones  from 
other  cities  are  constantly  sold." 


G34  TORTS  THROUGH  ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

(c)   "Falsely  and  Maliciously"  02 

GREENWOOD  v.  PRICK. 

(Court  of  King's  Bench.     Cited  in  Cro.  Jac.  91,  79  Reprint,  78.) 

Coke  cited  a  case  where  Parson  Prick  in  a  sermon  recited  a  story 
out  of  Fox's  Martyrology,  that  one  Greenwood,  being  a  perjured  per- 
son and  a  great  persecutor,  had  great  plagues  inflicted  upon  him,  and 
was  killed  by  the  hand  of  God ;  whereas  in  truth  he  never  was  so 
plagued,  and  was  himself  present  at  that  sermon ;  and  he  thereupon 
brought  his  action  upon  the  case,  for  calling  him  a  perjured  person: 
and  the  defendant  pleaded  not  guilty.  And  this  matter  being  disclosed 
upon  the  evidence,  Wray,  Chief  Justice,  delivered  the  law  to  the  jury, 
that  it  being  delivered  but  as  a  story,  and  not  with  any  malice  or  inten- 
tion to  slander  any,  he  was  not  guilty  of  the  w^ords  maliciously ;  and 
so  was  found  not  guilty.  14  Hen.  6,  pi.  14.  20  Hen.  6,  pi.  34.  And 
PoPHAM  affirmed  it  to  be  good  law,  when  he  delivers  matter  after 
his  occasion  as  matter  of  story,  and  not  with  any  intent  to  slander 
any.®^ 

6  2  The  common  law  declaration  in  trespass  on  the  ease  for  slander  or  libel 
regularly  contained  this  allegation :  "Yet  the  said  defendant,  well  knowing 
the  premises,  but  greatly  envying  the  happy  state  and  coudition  of  the 
said  plaintiff,  and  contriving  and  wickedly  and  maliciously  intending  to  in- 
jure the  said  plaintiff,  *  *  *  then  and  there  falsely  and  maliciously 
spoke  and  published"  (or,  in  libel,  "falsely,  wickedly  and  maliciously  com- 
posed and  puldished)  of  and  concerning  the  plaintiff."  See  Whittier's  Cases 
on  Common  Law  Pleading,  127-130 ;    Stephen  on  I'leading  (Williston's  Ed.)  44. 

The  Common  Law  Procedure  Act  of  1S52  prescribed  this  form  for  slander: 
"That  the  defendant  falsely  and  maliciously  spoke  and  published  of  the 
plaintiff  the  words  following,  that  is  to  say ;"  and  tliis  for  libel :  "That 
the  defendant  falsely  and  maliciously  printed  and  published  of  the  plaintiff 

in  a  newspaper  called ,  the  words  following,  that  is  to  say."     (15  &  16 

Vict.  c.  7G,  Schedule  (B),  32,  33.) 

The  Commissioners  of  the  New  York  Code  of  1S48  recommend  the  follow- 
ing:   "That  the  defendant  on  the  ,  at  ,  published  the  following 

libel  concerning  the  plaintiff,  viz."  (First  Report  of  the  Commissioners  on 
Practice  and  Pleadings,  p.  267.) 

63  In  Crawford  v.  Middleton  (1678)  1  I^ev.  82,  83  Reprint,  308,  Twysden 
"mentioned  a  case  tried  before  JEIobart,  which  he  himself  heard;  where  the 
plaintiff  brought  an  action  against  one,  for  falsely  and  maliciously  saying 
of  him,  'that  he  heard  he  was  hanged  for  stealing  of  an  horse;'  and  on  the 
evidence  it  api>eared  that  the  words  were  spoken  in  grief  and  sorrow  for 
the  news ;  and  Hobart  caused  the  plaintiff  to  be  non-suit,  for  it  was  not 
maliciously ;    which  all  the  Court  here  agreed  to  be  done  according  to  law." 

Compare  the  query  of  Lord  Denman  in  Hearne  v.  Stowell  (1840)  12  Ad. 
&  E.  719,  725,  where  Greenwood  v.  Prick  was  cited  for  the  proposition  that 
"malice  is  the  gist  of  tlie  action"  for  libel:  "Do  you  pretend  that  I  am 
justified  in  illustrating  an  argument  by  making  a  charge  against  a  third 
party?  Is  Greenwood  v.  Prick  good  law  now?"  But  see  Chancellor  Wal- 
worth's comment  on  this  case  in  Hastings  v.  Lusk  (1839)  22  Wend.  (N.  Y.) 
410,  415,  34  Am.  Dec.  330. 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  635 

MERCER  V.  SPARKS. 

(Court  of  King's  Bench,  15S6.     Owen,  51,  74  Reprint,  892.) 

Mercer  had  judgment  to  recover  against  Sparks  in  the  Common 
Pleas,  upon  an  action  of  the  case  for  words ;  and  Sparks  brought  a 
writ  of  error  in  the  King's  Bench,  and  assigned  for  error,  that  the 
plaintiff  did  not  express  in  the  declaration  that  the  defendant  spake 
the  words  malitiose,  but  it  was  adjudged,  that  it  was  no  error,  because 
the  words  themselves  were  malicious  and  slanderous,  wherefore  judg- 
ment was  affirmed.^* 

6*  "In  an  indictment  a  thing  must  be  expressed  to  be  done  'falso  et 
malitiose,'  because  that  is  the  usual  form,  but  in  a  declaration  these  words 
are  not  necessary."     Anon.   (1G.j2)  Style,  392. 

"As  to  malice,  the  plaintiff  in  practice  always  alleges  in  his  statement 
of  claim,  in  actions  of  libel  and  slander,  that  the  defendant  falsely  and 
maliciously  wrote,  or  spoke,  and  published  of  and  concerning  the  plaintiff 
the  words  complained  of.  But  it  is  not  necessary  for  the  plaintiff  to  allege 
that  the  defendant  did  so  maliciously.  A  publication  calculated  to  convey 
an  actionable  imputation  is  prima  facie  a  libel,  or  a  slander.  The  law  im- 
plies malice  if  the  words  are  defamatoi-y  and  untrue,  unless  indeed  the  oc- 
casion is  privileged,  in  which  case  malice  in  fact  must  be  proved."  18 
Halsburys  Laws  of  England,  608  (1911).  This  practice  holds  in  America, 
as  in  England. 

"There  has  been  much  confusion  in  the  law  of  defamation  concerning 
malice  as  an  ingi-edient  of  the  offence.  The  use  of  the  term  may  be  traced 
to  the  ecclesiastical  courts.  By  the  canon  law  a  bad  intent,  called  'malitia,' 
was  essential  in  'injuria' ;  and  it  is  likely  that  itvS  use  in  the  spiritual 
courts  was  primarily  jurisdictional.  These  courts  punished  offences  which 
were  sinful  because  they  were  sinful,  the  essential  element  being  'malitia.' 
The  defamerwas  punished 'pro  salute  animse';  the  matter  was  looked  at  from 
a  moral,  not  from  a  legal  point  of  view,  to  see  if  the  speaking  of  the  words 
were  sinful.  But  it  was  no  more  true  in  the  thii'teenth  century  than  it  is 
now  that  an  imputation  upon  a  man's  character  was  always  or  necessarily 
malicious.  Such  imputations  were  known,  however,  as  a  matter  of  common 
experience,  to  be  malicious  in.  most  cases.  And  upon  this  presumption 
(though  sometimes  contrary  to  fact)  tlie  ecclesiastical  jurisdiction  was  based. 
From  being  a  necessary  ground  of  jurisdiction  in  the  spiritual  courts,  it 
came  to  be  considered  afterwards,  when  the  civil  courts  acquired  jurisdiction, 
that  malice  was  the  ground  of  temporal  redress,  though  of  course  the 
jurisdiction  of  the  temporal  courts  was  not  based  upon  malice.  In  other 
words,  the  common  law  adopted  the  ecclesiastical  presumption  as  the  gist 
of  the  action.  Early  cases  may  be  found  which  proceeded  strictly  upon 
this  basis.  *  *  «  But  when  the  remedy  came  to  be  applied  to  cases  in 
which  there  was  obviously  no  actual  wrongful  intent,  the  courts  resorted, 
as  usual,  to  a  fiction  to  preserve  their  consistency.  They  affirmed  that  malice 
was  in  all  cases  the  gist  of  the  action,  but  to  find  malice  that  did  not  exist 
they  implied  it.  The  whole  doctrine  of  applied  malice,  in  defamation  as  in 
other  branches  of  the  common  law,  is  pure  scholasticism.  Malice  if  it 
means  anything  means  malevolence  or  ill  will ;  any  other  use  of  the  term 
is  fictitious.  But  the  law  was  stated  in  this  way:  Words  spoken  without 
ill  will  may  be  actionable,  but  in  such  cases  the  law  is  said  to  imply  malice 
from  tlie  act  of  speaking  or  public-.ition.  This  kind  of  malice  which  the 
law  is  said  to  imply  is  called  'legal  malice,"  as  differing  from  malevolence, 
which  is  called  'malice  in  fact' ;  and  legal  malice  is  said  to  consist  in  si)eak- 
ing  defamatory  matter  without  legal  excuse,  because  when  words  are  thus 
spoken  the  law  implies  malice."  Van  Vochten  \'eeder,  "History  and  Theory 
of  the  Law  of  Defamation,"  4  Columbia  Law  Review,  32,  35,  36. 

"The  exposition  of  the  law  of  defamation  was  at  one  time  encumbered  by 


636  TORTS  THROUGH  ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

SHEPHEARD  v.  WHITAKER. 
(Court  of  Common  Pleas,  1S75.     L.  R.   10  C.  P.  502.) 
[See  ante,  p.  606,  for  a  report  of  the  case.]  °^ 

a  useless  legal  fiction  known  as  the  doctrine  of  implied  malice.  It  used 
to  be  said  that  malice  was  an  essential  element  in  all  actions  for  libel  and 
slander,  whether  the  occasion  was  privileged  or  not;  but  when  there  was 
no  pri\dlege,  malice  was  conclusively  presumed  from  the  mere  fact  of  pub- 
lication. The  existence  of  privilege,  on  the  other  hand,  excluded  any  such 
presumption.  Absolute  privilege  excluded  it  conclusively;  but  when  the 
privilege  was  qualified  merely,  it  remained  open  to  the  plaintiff  to  prove 
as  a  fact  that  malice  existed.  Malice  which  was  thus  presumed  in  law 
was  called  implied  malice,  while  that  which  was  proved  as  a  fact  in  cases 
of  qualified  privilege  was  known  as  express  or  actual  malice.  Implied  malice 
has  now  been  eliminated  from  the  law.  It  is  now  recognized  that  malice 
is  no  more  an  essential  element  in  the  wrong  of  defamation  than  in  that  of 
trespass  or  conversion."     Salmond,  Law  of  Torts  (2d  Ed.)  419,  note. 

See  also  25  Cyc.  372,  and  compare  the  remark  of  Burch,  J.,  in  Coleman  v. 
MacLennan  (1908)  78  Kan.  711,  98  Pac.  281,  20  L.  R.  A.  (N.  S.)  361.  130  Am. 
St.  Rep.  390,  and  of  Buun,  J.,  in  Dodge  v.  Oilman  (1913)  122  Miun.  177, 
142  N.  W.  147,  47  L.  R.  A.  (N.   S.)   1098,  Ann.  Gas.  1914D,  894. 

65  Accord:  Taylor  v.  Hearst  (1895)  107  Cal.  262,  40  Pac.  392:  (D.,  the 
proprietor  of  a  newspaper,  had  published  an  article  charging  fraud  by  "J. 
W.  Taylor";  the  statement  was  unti-ue  of  him,  and  D.  had  not  intended  to 
name  him,  but  to  make  the  charge  against  another  person,  whose  name  was 
"J.  N.  Taylor.") 

Upton  v.  Times-Democrat  (1900)  104  La.  141,  28  South.  970:  (A  dispatch 
to  the  defendant's  newspaper  referred  to  P.  as  "a  cultured  gentleman." 
Through  a  mistake  in  transmission,  this  became  "a  colored  gentleman." 
Under  a  standing  rule  in  D.'s  newspaper  office,  this  was  changed  so  as  to 
read  "a  negro,"  and  so  published,  in  New  Orleans.) 

Morrison  v.  Ritchie  &  Co.,  [1902]  4  F.  645,  39  S.  L.  R.  432,  9  S.  L.  T.  476 : 
(On  August  15,  1901,  the  following  appeared  among  the  birth  notices  in  the 
"Scotsman,"  published  by  the  defendants:  "Morrison:  At  the  Caledonian 
Hotel,  Ullapool,  on  the  11th  inst.,  the  wife  of  George  Morrison,  of  33  South 
Back  Conongate,  of  tmn  sons.  Ross-shire  papers  please  copy."  The  state- 
ment was  false,  and  Mr.  and  Mrs.  Morrison  had  been  married  on  July  12, 
1901.  Of  these  facts,  however,  the  publishers  of  the  Scotsman  had  no  actual 
knowledge.  In  an  aclion  against  them  for  written  slander  the  following 
issues  were  proposed  for  the  pursuers :  Whether  the  pursuers  were  married 
as  alleged,  whether  the  defenders  had  published  the  notice  on  the  date 
mentioned,  and  whether  the  notice  was  of  and  concerning  the  pui'suers  and 
"was  false  and  calumnious."  ThesQ  issues  were  approved  by  the  Lord 
Ordinary  (Kincairney),  who  remarks  as  follows : 

"This  is  an  action  of  damages  against  the  proprietors  of  a  newspaper  on 
account  of  defamatory  advertisements.  There  can  be  no  doubt  tliat  the 
pursuers  had  suffered  a  very  cruel  ^vTong,  and  would  doubtless  recoA-er 
exemplary  damages  from  the  mean  scoundrel  who  sent  the  advertisements, 
if  they  could  discover  him  and  if  he  were  found  to  be  sane  and  able  to  pay 
them.  But  their  action  against  the  newspaper  raises  a  question  of  much 
importance  and  apparently  of  some  novelty,  since  no  precise  or  very  close 
precedent  has  been  quoted. 

"I  do  not  inquire  whether  sulhciont  vigilance  was  exercised  in  the  'Scots- 
man' oIHce  before  inserting  this  advertisement.  A  very  slight  inquiry  would 
have  disclosed  the  fraud.  A  telegram  to  Ullapool  would  have  disclosed  it. 
The  instructions  were  not  signed,  but  bore  the  name  of  Mrs.  Sutherland,  7 
Albert  Street,  and  an  examination  of  the  Directory  would  have  disclosed 
the  fac-t  that  no  such  house  existed.  But  these  precautions  were  not  taken. 
I  am  far  from  inq)n1ing  any  l)lame  on  that  account,  because  I  suppose  it 
would  be  barely  possible  to  make  such  inquiries  about  the  multitude  of  such 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  637 

WILLIAMS  V.   HICKS  PRINTING   CO. 
(Supreme  Court  of  Wisconsin,  1915.     159  Wis.  90,  150  N.  W.  183.) 

The  action  was  against  the  printing  company  to  recover  damages 
for  a  Hbelous  publication  in  the  defendant's  newspaper.  The  plain- 
tiff was  a  lawyer  in  good  standing,  and  it  was  claimed  that  the  article 
in  question  was  willfully  and  maliciously  composed  and  published 
with  intent  to  injure  him  in  his  good  name  and  fame  as  a  lawyer  and 
to  bring  him  into  public  contempt  and  ridicule.  The  complaint  con- 
tained allegations  to  this  effect,  with  other  allegations  essential  to 
support  a  recovery,  including  a  copy  of  the  article. 

The  defendant  admitted  the  publication,  but  pleaded  that  it  was 
neither  false  nor  defamatory,  and  took  issue  on  all  allegations  of  the 
complaint  as  to  the  defendant's  conduct  being  actionable.*'"  The  cause 
was  submitted  to  the  jury  under  instructions  permitting  a  verdict  for 
the  defendant.  After  a  motion  for  a  new  trial  had  been  overruled, 
judgment  for  the  defenda.nt  was  rendered  on  the  verdict. 

Marshall,  j,     *     *     *     i^  general,  malice  is  an  essential  element   .r 
of  libel,  but  not,  necessarily,  malice  in  the  sense  of  actual  ill  will  and—^r 
intent  to  injure,  constructive  malice,  so  called, — perpetration  of  the    K^ 
act  without  lawful  excuse, — is  sufficient.     One  need  not  go  further 
on  the  subject  of  malice  in  proving  a  charge  of  libel  than  to  prove 
the  publication,  unless  the  situation  is  such  as  to  fall  within  the  field 
of  conditional  privilege,  and  then  malice  in  law  is  circumstantially  re- 
butted and  malice  in  fact,  or  express  malice,  as  it  is  otherwise  called, 
is  required. 

advertisements  which  reach  the  'Scotsman.'  But  that  is  a  matter  which 
has  no  bearing  on  the  question  under  consideration,  because  this  action  is 
not  laid  on  neglect,  but  simply  upon  slander,  there  being  no  plea  about 
neglect. 

"Malice  in  the  ordinary  sense,  or  in  any  sense  which  can  reasonably  be 
put  on  the  word,  is  not  in  tlie  case.  It  is  certain  that  there  has  been  no 
malice.  There  hardly  ever  is  when  the  action  is  laid  against  the  proprietors 
of  a  newspaper  on  account  of  what  has  appeared  in  its  columns,  but  the  law 
is  that  the  proprietors  of  the  newspaper  represent  their  correspondent,  and 
are  liable  for  the  injui-ious  paragraph  as  he  would  have  been.  I  do  not 
think  that  the  law  does  so  strange  a  thing  as  to  imply  malice  where  it 
manifestly  and  certainly  does  not  exist." 

On  the  effect  of  a  retraction  or  apology,  see  Turton  v.  N.  Y.  Recorder 
Co.  (1894)  144  N.  Y.  144,  38  N.  E.  1009;    Coffman  v.  Simkane  Pub.  Co.  (1911), 

65  Wash.  1,  117  Pac.  596,  Ann.  Cas.  1913B,  636 ;  De  Severinus  v.  Press  Pub. 
Co.  (1911)  147  App.  Div.  161,  1.32  N.  Y.  Supp.  89 :  "This  [the  retraction  subse- 
quently published]  goes  only  to  show  absence  of  actual  malice,  but  it  does 
not  exonerate  from  the  consequences  of  original  recklessness."  Per  Carr,  J. 
And  see  18  Halsbury's  Laws  of  England,  726,  727  (1911);  25  Cyc.  424; 
Key.  No.  "Libel  and  Slander,"  §  66. 

On  constitutional  questions  as  to  a  statute  giving  effect  to  a  retraction, 
see  Hanson  v.  Krehbiel  (1904)  68  Kan.  670,  75  Pac.  1041,  64  L.  R.  A.  790,  104 
Am.  SL  Rep.  422,  and  Osborn  v.  Ix>ach  (1904)  135  N.  C.  628,  47  S.  E.  811, 

66  L.   R.  A.  648. 

6  0  The  defendant  pleaded  also  in  excuse  and  justification,  and  in  mitigation 
of  damages.  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point. 
The  result  of  the  appeal  was  a  reversal  of  the  judgment  below. 


638  TORTS  THROUGH  ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

So  it  is  not  to  be  thought  that  mere  good  faith,  honest  behef  in  the 
correctness  of  the  pubHcation,  or  good  motives,  or  accident  or  inad- 
vertence, is,  of  itself,  a  defense,  or  even  sufficient  to  mitigate  as  to 
actual  damages,  because  such  faith,  belief  and  motive  are  not  in- 
consistent with  malice  in  law  arising,  as  a  legal  result,  from  the  per- 
petration of  the  act  of  publishing  an  article,  the  natural  tendency  of 
which  is  to  make  its  victim  appear  ridiculous  or  contemptible,  or  a 
subject  of  hatred,  or  to  disgrace  him  in  society  or  injure  him  in  his 
business. 

If  a  published  article  naturally  tends,  as  suggested,  the  right  to 
recover  general  damages  follows  as  matter  of  course,  in  the  absence 
of  truth  as  a  justification  or  circumstances  of  legal  excuse,  this,  as 
indicated,  not  including  mere  negligence,  accident,  good  faith,  good 
motives  or  sense  of  duty,  except  as  said,  in  the  field  of  conditional 
privilege  where  something  more  than  implied  malice  is  required. 
General  damages,  which  so  follow,  may  be  added  to  by  exemplary 
damages,  upon  proof  of  that  actual  malice  which  overcomes  the  pro- 
tection of  conditional  privilege.  Thus  one  cannot  efficiently  claim 
immunity  from  liability  for  damages  inflicted  by  publishing  with  ex- 
press malice  a  false  and  defamatory  article,  by  putting  up  the  shield 
of  conditional  privilege.  Joseph  v.  Baars,  142  Wis.  390,  125  N.  W. 
913,  135  Am.  St.  Rep.  1076;  Arnold  v.  Ingram,  151  Wis.  438,  138 
N.  W.  Ill,  Ann.  Cas.  1914C,  976. 


(d)  Actual   Damage  ot 

The  practice  of  awarding  damages  to  the  libelled  party,  in  addition 
to  the  fine  or  imprisonment  due  to  the  criminal  character  of  the 
offence,  was  introduced  by  the  Star  Chamber  itself;*^"  and  it  would, 
therefore,  have  been  natural  that,  on  the  abolition  of  the  Star  Cham- 
ber in  1641,  the  civil  action  for  damages  should  at  once  take  the  place 
of  the  older  procedure.  Nevertheless,  though  there  is  a  thin  stream 
of  reported  cases  from  the  Restoration  onwards,®^  libel  continued  for 
some  time  to  be  regarded  mainly  as  a  criminal  ofifence  punishable  on 
indictment  or  information ;  and  it  may  be  to  this  fact  that  we  owe 
the  rule  (certainly  anomalous  in  an  action  of  case)  that  in  libel  no 
damage  need  be  proved. 

Miles,  in  Digest  Eng.  Civ.  Law,  502,  503. 

67  On  the  importance  of  actual  damage  in  slander  cases,  see  ante,  "Slander 
through  Special  Damage."  The  question  here  is:  When,  if  at  all,  is  actual 
damage  essential  to  the  prima  facie  cause  in  libel? 

68  "As  in  Edwardes  v.  Wootton  (1607)  Hawarde's  Cases  in  the  Star  Chamber 
343,  and  in  Lake's  Case  of  1019  (see  Cal.  Stat.  Pap.  (Dom.)  Ill,  pp.  19,  21,  and 
Hudson,  Star  Chamber,  p.  227." 

6  8  "One  of  the  earliest  being  the  well-known  Lake  v.  King,  on  parliamen- 
tary privilege,  in  1668." 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  639 

HERIOT  V.  STUART. 

(At  Nisi  Prius,  Sittings  after  Term  at  Westminster,  1796.    1  Esp.  437.) 

The  plaintiff  was  proprietor  of  a  newspaper  called  the  True  Briton. 
The  defendant  was  printer  of  another  paper  called  The  Oracle;  and 
the  action  was  brought  for  a  libel  inserted  in  the  latter  paper,  concern- 
ing the  former.  The  libel  was  in  the  following  terms,  in  the  form 
of  a  paragraph  in  the  Oracle  : 

"Times  versus  True  Briton. 

"In  a  morning  paper  of  yesterday  was  given  the  following  character  of  the 
True  Briton:  That  'it  was  the  most  vulgar,  iguoraut,  and  scurrilous  journal 
ever  published  in  Great  Britain.'  To  the  above  assertion  we  assent,  and  to 
this  account  we  add,  that  the  fii-st  proprietors  abandoned  it,  and  that  it  is 
the  lowest  now  in  circulation ;  and  we  submit  the  fact  to  the  consideration 
of  advertisers." 

Erskine,  for  the  plaintiff,  admitted,  that  the  first  words,  charging 
it  with  scurrility,  &c.  were  not  actionable;  but  that  the  latter 
were,  inasmuch  as  they  affected  the  sale,  and  profits  to  be  made  by 
advertising. 

To  which  Lord  K^nyon  assented.^** 


MAYOR,   ALDERMEN,  AND   CITIZENS   OF   MANCHESTER 

V.  WILLIAAIS. 

(Queen's  Bench  Division,  1S90.     [1891]  1  Q.  B.  94.) 

The  statement  of  claim,  by  the  Municipal  Corporation  of  the  City 
of  Manchester,  after  setting  forth  a  letter  by  the  defendant  published 
in  a  newspaper  further  alleged  that  the  defendant  meant,  and  was 
understood  to  mean  thereby,  that  bribery  and  corruption  existed  in 
three  departments  of  the  Manchester  City  Council,  and  that  the  plain- 
tiffs were  either  parties  thereto  or  culpably  ignorant  thereof.  It  did 
not,  however,  contain  any  averment  that  the  plaintiffs  had  suffered 
any  special  pecuniary  damage  as  the  result  of  such  defamatory  pub- 
lication. The  defendant  raised  the  objection  of  law  that  the  words 
complained  of  were  not  capable  of  being  construed  into  a  libel  against 
the  plaintiffs,  and  that  the  statement  of  claim  disclosed  no  cause  of 

7  0  Part  of  the  case  is  omitted. 

Because  of  a  variance,  a  stat  processus  was  entered  by  consent. 

Compare  the  remark  of  Bayley,  J.,  in  Whittaker  v.  Bradley  (1826)  7  Dowl.  & 
By.  649,  16  E.  C.  L.  310:  "Whatever  words  have  a  tendency  to  hurt,  or  are  cal- 
culated to  prejudice  a  man  who  seeks  his  livelihood  by  any  trade  or  business, 
are  actionable." 

And  see  South  Hetton  Coal  Co.,  Ltd.,  v.  North-Eastern  News  Ass'n,  Ltd. 
(1894)  1  Q.  B.  1.33;  Reporter's  Ass'n  of  America  v.  Sun  Printing  &  Publish- 
ing Ass'n  (1906)  186  N.  Y,  437,  79  N.  E.  710.  See  also  the  doctrine  of  Malicious 
Falsehood,  given  infra,  Part  III. 


'>. 


640  TORTS  THROUGH  ACTS  OP   ABSOLUTE   LIABILITY  (Part  1 

action,  and  that  a  municipal  corporation  cannot  sue  in  its  corporate 
capacity  in  respect  of  the  alleged  words  in  the  sense  complained  of. 

Blake  Odgers,  for  the  plaintiffs.  If  a  corporation  can  be  guilty 
of  malice  by  its  servants  so  as  to  render  it  liable  to  be  sued  for  a 
malicious  prosecution,  it  must  equally  be  capable  of  being  guilty  of 
corruption  so  as  to  entitle  it  to  sue  for  an  imputation  of  corruption. 
Moreover,  the  libel  here  complained  of  contains  charges  which  can 
only  refer  to  the  corporation  as  a  whole.  It  speaks  of  "scandalous 
and  abominable  expenditure."  But  the  money  is  voted  by  the  cor- 
porate body,  and  not  by  the  individual  members  of  it. 

Day,  J.  This  is  an  action  brought  by  a  municipal  corporation  to 
recover  damages  for  what  is  alleged  to  be  a  libel  on  the  corporation 
itself,  as  distinguished  from  its  individual  members  or  ofificials.  The 
libel  complained  of  consists  of  a  charge  of  bribery  and  corruption. 
The  question  is  whether  such  an  action  will  lie.     I  think  it  will  not. 

It  is  altogether  unprecedented,  and  there  is  no  principle  on  which 
it  could  be  founded.  The  limits  of  a  corporation's  right  of  action 
for  libel  are  those  suggested  by  Pollock,  C.  B.,  in  the  case  which  has 
been  referred  to.  A  corporation  may  sue  for  a  libel  affecting  property, 
not  for  one  merely  affecting  personal  reputation.  The  present  case 
falls  within  the  latter  class.  There  must,  therefore,  be  judgment  for 
the  defendant. 


McLOUGHLIN  v.  AMERICAN  CIRCULAR  LOOM  CO. 

(Circuit  Court  of  Appeals  of  the  United  States,  First  Circuit,  1903. 
60  C.  C.  A.  87,  125  Fed.  203.) 

The  action  was  against  the  American  Circular  Loom  Company,  a 
corporation,  and  charged  a  libel  in  the  publication  by  the  defendant 
of  the  following  letter  from  Chelsea,  Mass.,  signed  by  the  defendant, 
and  addressed  to  the  plaintiff,  at  New  Orleans : 

"Dear  Sir:  You  are  aware  that  we  have  sent  our  Mr.  Kirkland  to  New 
Orleans  to  make  an  original  investigation  of  the  controversy  between 
yourself  and  the  Board  of  Underwriters.  Mr.  Kirkland  has  returned  and 
has  made  to  us  the  report  of  such  investigation.  It  appears,  beyond  contro- 
versy, that  you  are  using,  and  have  been  using,  our  circular  loom  conduit, 
not  only  under  the  conditions  and  in  the  places  where  it  is  permitted  by 
the  rules,  but  also  in  places  and  under  circumstances  where  it  is  prohibited 
by  such  rules.  We  desire  to  impress  upon  you  the  fact  that  this  com- 
pany submits  itself  to  those  undenvriters'  rules;  that  such  rules 
have  been  framed  with  its  consent  and  acquiescence,  and  that  we  cannot, 
and  will  not,  place  ourselves  in  opposition  to  the  execution  of  those  rules 
as  written. 

"Under  these  circumstances,  we  think  it  necessary  to  advise  you  that 
unless  you  are  willing  to  handle  our  material  in  accordance  witli  our  wishes, 
and  in  accordance  with  the  rules  of  the  Board  of  Underwriters,  our  business 
relations  must  cease,  as  we  cannot  afford  to  have  any  person  connected  with 
us  who  puts  us  in  hostility  to  an  organization  with  which  we  are  in  entire 
sympathy. 

"Your  immediate  answer  to  this  letter  is  requested,  and  we  expect  you 
in  that  letter  to  define  your  future  policy  in  regard  of  the  subject  matter 
of  this  communication. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  641 

"We  deem  it  proper  to  notify  you  that  we  tiave  sent  a  copy  of  this  letter 
to  the  Board  of  Underwriters,  to  the  various  insurance  companies  operating 
in  New  Orleans,  and  to  such  other  persons  as  we  have  deemed  it  advisable 
to  communicate  witli." 

The  declaration  alleged  that  the  plaintiff  had  become  the  selling 
agent  for  the  defendant  in  New  Orleans,  for  the  purpose  of  intro- 
ducing and  establishing  the  sale  of  the  defendant's  product,  viz.  cir- 
cular loom  conduits,  that  the  statements  in  the  letter  were  false,  and 
that  copies  of  the  letter  were  sent  to  insurance  companies  and  agencies 
in  New  Orleans,  where  plaintiff  was  in  the  business  of  installing  elec- 
trical plants,  and  to  his  competitors.    The  defendant  demurred.* 

Lowell,  District  Judge.  The  plaintiff  did  not  contend  strenuously 
that  the  language  complained  of  was  libelous  per  se,  without  allega- 
tion and  proof  of  special  damage.  Some  distinctions  applied  in  an 
action  for  defamation  are  highly  technical,  and  have  been  adversely 
criticised  even  by  judges  who  applied  them.  The  gravamen  of  an 
action  for  defamation  is  damage  to  the  reputation  of  the  plaintiff, 
naturally  arising  from  a  false  report.  See  Odgers  on  Libel  and  Slan- 
der (3d  Ed.)  95;  Morasse  v.  Brochu,  151  Mass.  567,  25  N.  E.  74, 
8  L.  R.  A.  524,  21  Am.  St.  Rep.  474.  Speaking  generally,  where  the 
false  report  and  consequent  damage  to  the  reputation  are  shown,  an 
action  will  lie  unless  the  occasion  be  privileged.  From  some  sorts 
of  false  report  the  law  presumes  conclusively  that  damage  has  fol- 
lowed, and  the  plaintiff  need  neither  allege  nor  prove  it.  Here  the 
language  is  styled  libelous  per  se.  Logically  or  not,  the  conclusive 
presumption  of  damage  arises  from  some  written  words,  where  it 
does  not  arise  if  the  same  words  are  merely  spoken.  Odgers,  3 ; 
Thorley  v.  Kerry,  4  Taunt.  355.  Except  where  this  presumption  ex- 
ists, special  damage  to  the  plaintiff's  reputation  must  be  alleged  and 
proved  to  have  been  the  actual  and  natural  result  of  the  language 
used.  In  an  action  of  defamation,  the  distinction  between  injuria 
and  damnum— injury  to  the  plaintiff's  reputation  and  damage  arising 
from  the  injury — is  particularly  hard  to  draw.  Some  language  is 
deemed  injurious  without  proof  of  damage,  and  damage  is  conclusive- 
ly presumed  to  have  followed  the  injury;  other  language  is  deemed 
injurious  to  the  reputation  only  where  damage  has  actually  resulted. 

Probably  two  diverse  theories  have  tended  to  govern  the  action : 
First,  that  A.  is  responsible  for  defaming  B.  in  the  ordinary  sense  of 
defamation — language  libelous  per  se ;  second,  that  A.  is  responsible 
to  B.  for  damage  naturally  resulting  from  the  lies  told  by  A.  about 
B.— special  damage.  See  Ratclifte  v.  Evans,  [1892]  2  Q.  B.  524.  It 
may  be  that  an  action  for  defamation,  strictly  si)eaking,  is  pro]:)erly 
maintainable  only  under  the  first  theory,  while  under  the  second  the 
action  should  be  special  on  the  case.  But  in  this  country,  at  any  rate, 
the  two  theories  have  not  been  differentiated.     In  a  few  critical  cases 

*  The  statement  of  the  case  is  abridged. 
Hepb. Torts — 41 


642  TORTS  THROUGH  ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

they  may  lead  to  results  quite  different,  but  in  general  the  law  is  that 
above  stated.  An  accurate  and  readily  applicable  definition  of  written 
language,  libelous  per  se,  does  not  exist,  and  some  well-established 
distinctions  may  rest  on  history  rather  than  on  logic.  Webb's  Pol- 
lock on  Torts,  290.  The  language  here  complained  of,  if  spoken, 
would  not  support  an  action  without  proof  of  special  damage.  In  the 
absence  of  innuendo  and  further  colloquium,  we  do  not  deem  that 
this  language,  though  written,  is  libelous  per  se.     *     *     '"  ^^ 


(C)  Construction  and  Application 


72 


No  statement  is  necessarily  and  in  all  circumstances  defamatory. 
There  is  no  charge  or  imputation,  however  serious  on  the  face  of  it, 
which  may  not  be  explained  away  by  evidence  that  in  the  special  cir- 
cumstances of  the  case  it  was  not  issued  or  understood  in  a  defam- 

71  However,  in  the  omitted  portion  of  the  opinion  the  court  reached  the 
eonelnsion  that  special    damasre  was   shown. 

Accord:  Stannard  v.  Wilcox  &  Gibbs  Sewing  Machine  Co.  (1912)  118  Md.  151, 
84  Atl.  335,  42  L.  R.  A.  (N.  S.)  515,  Ann.  Cas.  1914B,  709:  (D.,  the  Sewing 
Machine  Company,  sent  a  letter  to  another  corporation  stating  that  P.,  their 
Baltimore  manager,  refused  to  complete  the  payments  for  his  wife's  sewing 
machine  and  that  "if  you  do  not  desire  to  see  one  of  your  managers  brought 
up  in  a  civil  suit  for  goods  purchased  on  the  installment  plan,  we  would 
suggest  that  you  communicate  with  him  to  the  effect  that  he  take  some 
steps"  towards  meeting  this  debt.  In  his  suit  for  libel  P.  made  no  claim 
of  any  special  damage  caused  him  by  the  writing  and  sending  of  this  letter, 
but  insisted  that  it  was  actionable  per  se.  Said  Stockbridge,  J.,  delivering 
the  opinion:  "A  generalization  from  all  these  cases  leads  to  the  conclusion 
that  in  order  for  words  not  ordinarily  actionable  in  themselves  to  be  libel- 
ous per  se,  because  affecting  the  plaintiff  in  respect  to  his  business,  occupa- 
tion, or  profession,  it  is  necessary  that  the  words  have  a  reference  to  him  in 
that  capacity.  Words  which  impute  to  persons  engaged  in  business,  such 
as  merchants,  traders,  and  others  in  occupations  where  credit  is  essential 
to  the  successful  prosecution  of  their  occupation,  nonpayment  of  debts, 
want  of  credit,  or  actions  which  tend  to  lessen  their  credit,  are  libelous 
per  se,  unless  they  are  privileged  communications.  In  this  case  Mr.  Stannard 
was  not  in  business  on  his  own  account.  He  was  the  local  manager  for  a  non- 
resident corporation.  It  is  not  alleged  or  suggested  that  he  had  any  occa- 
sion for  the  use  of  credit,  or  that  his  credit  had  been  in  any  way  impaired  or 
affected.  The  statements  in  regard  to  him  in  no  way  related  to  the  manner 
of  his  performance  of  his  duties  as  manager  of  the  Holmes  Electric  Protective 
Company,  or  charged  him  with  being  unfit  for  the  proper  performance  of 
them;  nor  did  he  lose  his  position  because  of  the  letter  in  question,  in 
which  case  he  vv'ould  have  sustained  special  damage.  Under  these  conditions, 
and  applying  the  rule  of  law  already  stated,  the  letter  cannot  be  regarded 
as  actionable  per  se,  and  the  trial  court  committed  no  error  in  sustaining 
the  demurrer.  That  the  letter  was  actuated  by  malice  is  admitted  by  the 
demurrer,  and  apparent  from-  the  pai>er  itself,  and  deserving  of  the  most 
emphatic  reprobation;  but  that  will  not  justify  this  court  in  departing  from 
well-established  principles  upon  so  important  a  subject.") 

72  "It  is  elementary  that  alleged  defamatory  matter  comes  before  the  court 
for  construction  under  the  ordinary  rules  for  construing  pleadings.  Among  these 
is  that  the  pleader  is  sui)posed  to  have  stated  his  case  in  the  manner  most 
favorable  to   himself.     The   law   will   not  assume  as  favorable  to   a   party 


Ch.  2)  ABSOLUTE    TORTS  OTHER  THAN  TRESPASSES  643 

atory  sense.  It  may  be  shown  to  have  been  made  in  jest,  or  by 
way  of  irony,  or  in  some  metaphorical  or  secondary  innocent  sense, 
and  that  it  was  or  ought  to  have  been  understood  in  that  sense  by 
those  to  whom  it  was  made.  Conversely,  no  statement  is  necessarily 
and  in  all  circumstances  innocent.  An  allegation  which  on  the  face 
of  it  contains  no  imputation  whatever  against  the  plaintiff  may  be 
proved  from  the  circumstances  to  have  contained  a  latent  and  sec- 
ondary defamatory  sense. 

John  W.  Salmond,  Law  of  Torts  (2d  Ed.)  409. 


ROBERTS  v.   CAMDEN.  . 

(Court  of  King's  Bench,  1S07.     9  East,  93,   103  Reprint,  508,  9  R.  R.  513.) 

Lord  Ellenborough,  C.  J.,''^  delivered  judgment:  This  was  a 
motion  in  arrest  of  judgment  in  an  action  for  words,  in  which  a 
general  verdict  was  found,  with  joint  damages,  upon  the  whole  of 
the  declaration.  *  *  *  Xhe  first  objection  turns  upon  the  mean- 
ing of  the  words  spoken  of  the  plaintiff  by  the  defendant.  The  words 
are  these : 

"He  is  under  a  charge  of  a  prosecution  for  perjury.  Griffith  "Williams 
(meaning  an  attorney  of  that  name)  has  the  Attornej'-General's  directions 
(meaning  the  Attorney-General  of  the  County  Palatine  of  Chester)  to  prose- 
cute (meaning  to  prosecute  the  plaintiff)  for  perjury." 

As  it  has  been  settled  ever  since  the  case  of  Underwood  v.  Parkes,  2 
Stra.  1200,  that  the  truth  of  the  words  cannot  be  given  in  evidence 
upon  not  guilty,  but  must  be  specially  pleaded ;  the  words,  not  having 
been  so  justified,  must  be  assumed  to  be  false :  and  the  v^^ords  not 
being  accompanied  by  any  qualifying  context,  nor  appearing  to  be 
spoken  on  any  warrantable  occasion ;  as  in  a  course  of  duty,  or  the 
like ;  so  as  to  rebut  the  malice  which  is  necessarily  to  be  inferred  from 
making  a  false  charge  of  this  kind;  provided  the  charge  itself  is  to 
be  considered  as  a  charge  of  the  crime  of  perjury;  the  question 
amounts  simply  to  this,  whether  the  words  amount  to  such  charge; 
that  is,  whether  they  are  calculated  to  convey  to  the  mind  of  an  or- 
dinary hearer  an  imputation  upon  the  plaintiff  of  the  crime  of  per- 
jury.    The  rule  which  at  one  time  prevailed,  that  words  are  to  be 

anything  he  has  not  aven-ed.  As  was  said  in  Holt  v.  Scolefield,  6  T.  R.  691 : 
'Either  the  words  themselves  must  be  such  as  can  only  be  understood  in  a 
libelous  sense,  or  it  must  be  shown  by  the  introductory  allegations  that 
they  have  that  meaning,  otherwise  they  are  not  actionable.  Words,  to  be 
actionable,  should  be  unequivocally  so.'  Harrison  v.  Stratton,  4  Esp.  Cas. 
218.  This  was  the  rule  in  regard  to  pleadings  iu  libel  cases  in  the  English 
Courts  (Folkard,  Slander  &  Libel  [Tth  Ed.J  p.  235).  and  it  has  been  affirmed 
in  many  American  cases."  Per  Walker,  J.,  in  Walsh  v.  Pulitzer  Pub.  Co. 
(1913)  2.j0  Mo.  142,  157  S.  W.  326,  Ann.  Cas.  1914C,  985. 

73  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


644  TORTS  THROUGH  ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

understood  in  mitiori  sensu,^*  has  been  long  ago  superseded;  and 
words  are  now  construed  by  Courts,  as  they  always  ought  to  have 
been,  in  the  plain  and  popular  sense  in  which  the  rest  of  the  world 
naturally  understand  them.'^^ 

What  then  is  the  plain  and  popular  sense  of  these  words ;  and  what 
is  the  imputation  meant  to  be  conveyed  by  a  person  speaking  them 
untruly  of  another?  They  must  mean,  that  he  was  ordered  by  the  At- 
torney-General to  be  prosecuted ;  (and  it  is  immaterial  for  this  pur- 
pose, whether  the  Attorney-General  of  the  County  Palatine  or  of 
England  were  meant;)  either  for  a  perjury  which  he  had  committed; 
or,  which  he  had  not  committed;  or,  which  he  was  supposed  only 
to  have  committed.  In  the  first  sense  they  are  clearly  actionable.  In 
\he  second,  they  cannot  possibly  be  understood  consistently  with  the 
context.  And  if  the  defendant  had  used  the  words  in  the  last  sense, 
the  jury  might  have  acquitted  him.  according  to  the  doctrine  in  the 
case  of  Oldham  v.  Peake,  both  in  the  Court  of  Common  Pleas,  2  Sir 
W.  Blackstone,  962,  and  in  this  Court,  Cowp.  275 ;  in  which  case 
when  in  the  Common  Pleas  Mr.  Justice  Gould  laid  it  down,  "That 
what  was  the  defendant's  meaning  was  a  fact  for  the  jury  to  decide 
upon."  And  Lord  Mansfield  afterwards,  when  that  case  was  brought 
into  this  court,  by  error,  said,  "if  (the  words  had  been)  shewn  to  be 
innocently  spoken,  the  jury  might  have  found  a  verdict  for  the  de- 

74  See  The  Lord  Cromwell's  Case  (1578)  4  Co.  Rep.  13a:  "And  it  was  said 
quod  sensus  verboiiim  est  duplex,  sell.,  mitis  et  asper;  et  verba  semper 
aceepieuda  sunt  in  mitiori  sensu." 

Brough  V.  Dennyson  (IGOO)  Goulds.  143,  75  Reprint,  1053:  (The  words  were 
"Thou  has  stolen  by  the  high-way  side."  It  was  remarked  by  Fenner: 
"When  the  words  may  have  a  good  construction  you  shall  never  construe 
them  in  an  evill  sense.  And  it  may  be  intended  he  stole  a  stick  under  a 
hedge,  and  these  words  are  not  so  slanderous,  that  they  are  actionable.") 
Ball  V.  Bridges  (1600)  Cro.  Eliz.  746,  78  Reprint,  978:  (The  words  were:  "He 
is  a  maintainer  of  thieves,  and  keepeth  none  but  thieves  in  his  house."  A 
judgment  lor  the  plaintiff  was  reversed;  for  "he  doth  not  say  that  he  knew 
them  to  be  thieves  whom  he  maintained,  and  one  may  have  thieves  in  his 
house,  and  maintain  them,  and  not  know  them  to  be  thieves,  and  then  it  is  not 
any  offence.")  Foster  v.  Browning  (1624)  Cro.  Jac.  688,  79  Reiirint.  596: 
(The  words  were:  "Thou  art  as  arrant  a  thief  as  any  is  in  England."  A 
motion  in  arrest  of  judgment  was  successful  because,  inter  alia,  "he  doth 
not  aver  that  there  was  any  thief  in  England.") 

Southold  V.  Daunston  (1633)  Cro.  Car.  269,  79  Reprint,  834:  (The  words 
were  "Southold  hath  been  in  bed  with  Dorchester's  wife."  They  were  pleaded 
with  special  diiniiige.  loss  of  marriage  witli  a  certain  woman.  After  verdict 
for  the  plaintiff,  liing,  Serjt.,  contended  that  the  words  were  not  actionable; 
"for  it  may  be  that  he  was  in  bed  witli  lier  when  he  was  a  child,  she  being 
his  nurse,  or  it  may  be  that  her  husliand  was  in  bed  betwixt  them,  and 
the  words  shall  be  taken  in  mitiori  sensu  when  any  construction  can  be 
made  to  help  it."  After  some  hesitation  judgment  was  given  for  the  plaintiff, 
apparently  because  of  the  si)ecial  damage.) 

In  Baker  v.  Pierce  (1703)  6  Mod.  23,  87  Reprint,  787,  Holt,  C.  J.,  after 
describing  these  cases  in  slander  as  "scrambling  things  that  have  gone 
backwards  and  forwards,"  remarks  that  wherever  words  tended  to  take 
away  a  man's  reputation  he  would  encourage  actions  for  them,  "because 
so  doing  would  contribute  much  to  the  preservation  of  the  peace." 

7  0  See  note  75  on  following  page. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  645 

fendant;  but  they  have  put  a  contrary  construction  upon  the  words 
as  laid."  And  certainly,  if  the  sense  of  the  defendant,  in  speaking 
these  words,  had  varied  from  that  ascribed  to  them  by  the  plaintiff, 
he  might  by  specially  pleading  have  shewn  them  not  actionable,  had 
he  not  chosen  to  have  rested  his  defence  merely  on  the  general  issue. 
It  appears  therefore  that  these  words  must  fairly  be  understood  in 
the  first  of  these  three  senses;  namely,  that  he  was  ordered  to  be 
prosecuted  for  a  perjury  which  he  had  committed;  and,  so  under- 
stood, they  are  unquestionably  actionable.  These  words  are  not  less 
strong-  in  effect  than  the  words  which  were  held  actionable  in  one  of 
the  later  cases,  that  of  Carpenter  v.  Tarrant,  Rep.  temp.  Hardw.  339. 
viz.  "Robert  Carpenter  was  in  Winchester  gaol,  and  tried  for  his  life; 
and  would  have  been  hanged  had  it  not  been  for  Leggat,  for  break- 
ing open  the  granary  of  farmer  A.,  and  stealing  his  bacon."  And 
without  adverting  to  the  long  bead  roll  of  conflicting  cases  which  have 
been  cited  on  both  sides  in  the  course  of  this  argument,  it  is  sufficient 
to  say,  that  these  words,  fairly  and  naturally  construed,  appear  to  us 
to  have  been  meant,  and  to  be  calculated,  to  convey  the  imputation 
of  perjury  actually  committed  by  the  person  of  whom  they  are  spoken; 
and  that,  therefore,  the  rule  nisi  for  arresting  the  judgment  must  be 
discharged.'^  ^ 


THOMPSON  v.  BERNARD. 

(At  Nisi  Prius,  1807.     1  Camp.  -iS.) 

Case  for  slander.  It  appeared  that  the  defendant  had  used  the 
following  words,  which  were  laid  in  the  declaration,  "Thompson  is 
a  damned  thief ;  and  so  was  his  father  before  him ;  and  I  can  prove  o>>J^ 
it ;"  but  that  he  added  "Thompson  received  the  earnings  of  the 
ship,  and  ought  to  pay  the  wages."  The  witness,  to  whom  these 
words  were  addressed,  had  been  master  of  a  ship  belonging  to  a  per- 
son deceased,  who  had  left  the  defendant  his  executor;  and  at  the 
time  was  applying  to  him  for  payment  of  his  wages. 

7  5  In  Harrison  v.  Thornboroiigh  (1713)  10  Mod.  196,  88  Reprint.  G91.  it 
was  remarked  from  the  Queen's  Bench :  "Precedents  in  actions  for  words 
are  not  of  equal  authority  as  in  other  actions,  because  norma  loquendi  is  the 
rule  for  the  interpretation  of  words ;  and  this  rule  is  different  in  one  age 
from  what  it  is  in  another.  The  words  which  an  hundred  years  aw  did 
not  import  a  slanderous  sense  now  may;  and  so  vice  versa.  In  this  kind 
of  action  for  words,  which  are  not  of  very  great  antiquity,  the  Courts  did 
at  first,  as  much  as  they  could,  discountenance  them ;  and  that  for  a  wise 
reason,  because  generally  brought  for  contention  and  vexation ;  and  there- 
fore when  the  words  were  capable  of  two  constructions,  the  Court  always 
took  them  mitiori  sensu.  But  latterly  these  actions  have  been  more  coun- 
tenanced ;  for  men's  tongues  growing  more  virulent,  and  irreparable  damage 
arising  from  words,  it  has  l)een  by  experience  found,  tliat  \inless  men  can 
get  satisfaction  by  law,  they  will  be  apt  to  take  it  themselves.  The  rule 
therefore  that  has  now  prevailed  is,  that  words  are  to  be  taken  in  that 
sense  that  is  most  natural  and  obvious,  and  in  which  those  to  whom  they 
are  spoken  will  be  sure  to  understand  them." 


046  TORTS  THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

Lord  Ellenborough  directed  a  nonsuit;  observing,  that  the  word 
"thief"  was  used  without  any  intention  in  the  defendant  to  impute 
felony  to  the  plaintiff;  which  must  appear  to  support  the  declara- 
tion.^* 


HANKINSON  v.  BILBY. 

(Court  of  Exchequer,   1847.     16  Mees.   &  W.  442,  73   R.  R.   563.) 

Case.  The  declaration  stated  with  proper  innuendoes  that  the  de- 
fendant falsely  and  maliciously  spoke  and  published  of  the  plaintiff 
the  following  defamatory  words  : 

"You  are  a  thief,  and  a  bloody  t±iief.  You  get  your  living  by  it.  You 
have  robbed  Mr.  Lake  of  £30,  and  would  have  robbed  him  of  more,  only  you 
were  afraid.  I  did  mean  what  I  said ;  be  off,  I  don't  want  any  bloody 
thieves  here.     You  know  you  robbed  Mr.  Lake  of  £30." 

At  the  trial,  under  a  plea  of  Not  guilty,  before  Rolfe,  B.,  it  appeared 
that  the  words  were  uttered  by  the  defendant,  a  toll  collector,  to  the 
plaintiff,  as  he  passed  the  turnpike-gate,  in  the  presence  of  several 
persons  as  well  as  the  witness.  The  nature  of  the  previous  conversa- 
tion between  the  plaintiff  and  defendant  did  not  appear.  The  learned 
Baron  told  the  jury,  that  it  was  immaterial  whether  the  defendant  in- 
tended to  convey  a  charge  of  felony  against  the  plaintiff  by  the  words 
used,  the  question  being,  whether  the  bystanders  would  understand 
that  charge  to  be  conveyed  by  them.    Verdict  for  the  plaintiff  for  £5. 

Humfrey  now  moved  for  a  new  trial,  on  the  ground  of  misdirec- 
tion :  No  special  damage  being  laid,  it  was  necessary  to  show  the 
words  to  be  actionable  in  themselves.  The  witness  called  by  the  plain- 
tiff to  prove  the  words  was  purposely  selected,  he  not  have  heard  the 
previous  conversation  between  the  plaintiff  and  defendant.  *  *  * 
(Parke,  B.  The  witness  appears  to  have  been  well  acquainted  with 
the  affair  to  which  the  words  related.  If  the  bystanders  were  equally 
cognizant  of  it,  the  defendant  would  have  been  entitled  to  a  verdict ; 
but  here  the  only  question  is,  whether  the  private  intention  of  a  man 
who  utters  injurious  words  is  material,  if  bystanders  may  fairly  un- 
derstand them  in  a  sense  and  manner  injurious  to  the  party  to  whom 
they  relate,  e.  g.  that  he  was  a  felon.) 

Some  doubt  being  suggested  as  to  the  facts  proved,  the  Court  con- 
ferred with  Rolfe,  B. ;  and  the  next  day, 

Pollock,  C.  B.,  said :  We  find  from  my  Brother  Rolfe,  that  there 
were  several  bystanders  who  not  only  might  but  must  have  heard  the 
expressions  which  form  the  subject  of  this  action.  That  disposes  of 
the  case  as  to  the  matter  of  law.  Words  uttered  must  be  construed  in 
the  sense  which   hearers   of   common    and    reasonable  understanding 

76  Accord:    Allen  v.   Hillman   (1831)   12   Pick.    (Mass.)   101,   103. 
And  see   the  remarks  of   Spear,   J.,   in  Macurda    v.   Lewiston  Journal   CO. 
flOlL')  109  Me.  53,  82  Atl.  43S,  441. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  647 

would  ascribe  to  them,  even  though  particular  individuals  better  in- 
formed on  the  matter  alluded  to  might  form  a  different  judgment  on 
the  subject.'^'' 
Rule  refused. 


BARHAM  V.   NETHERSALL. 
(Court  of  King's  Bench,  1602.    Yel.  22,  SO  Reprint,  16.) 

The  plaintiff  declared  that  the  defendant  spoke  these  words : 

T.  Barham  (innueudo  the  plaintiff)  tiatti  burnt  my  barn  (innuendo  my  barn 
at  such  a  place  full  of  corn)  and  that  with  his  own  hand; 

and  upon  non  culp'  pleaded,  it  was  found  for  the  plaintiff,  and  alleg'd 
in  arrest  of  judgment,  that  the  action  did  not  lie;  for  these  words, 
the  plaintiff"  hath  burnt  my  barn,  are  no  slander ;  for  such  burning 
of  a  house  is  but  a  trespass,  and  all  one  as  if  he  had  said,  the  plaintiff 
hath  cut  down  my  trees,  and  such  like ;  for  to  say  a  man  hath  commit- 
ted a  trespass  is  no  slander :  and  then  the  innuendo  (my  barn  full  of 
corn)  will  not  help  the  matter ;  for  it  is  the  nature  of  an  innuendo  to  j^,J^ 
explain  doubtful  words,  where  there  is  matter  sufficient  in  the  dec- 
laration to  maintain  the  action.  But  if  the  words  before  the  innuendo 
do  not  sound  in  slander,  no  words  produced  by  the  innuendo  will  make 
the  action  maintainable,  for  it  is  not  the  nature  of  an  innuendo  to 
beget  an  action.  And  all  this  was  allowed  by  Gaudy  and  Yelverton, 
Justices  (being  alone  in  the  King's  Bench),  and  judgment  quod  nil  ca- 
piat per  billam. 


BLOSS  V.  TOBEY. 
(Supreme  Judicial  Court  of  Massachusetts,  1S24.     2  Pick.  320.) 

This  was  an  action  of  slander  with  a  declaration  in  seven  counts, 
for  the  words  stated  in  the  opinion.  The  cause  was  tried  upon  the 
general  issue,  with  a  verdict  for  the  plaintiff  for  $500  damages.  The 
defendant  moved  in  arrest  of  judgment.'^ ^ 

Parke;r,  C.  J.  *  *  *  The  first  count  only  charges  the  defend- 
ant with  having  said  that  the  plaintiff  had  burnt  his  own  store  in 
Alford.  The  words  are  introduced  with  a  colloquium  "of  and  concern- 
ing the  plaintiff  and  of  and  concerning  a  certain  store  of  the  plaintiff''s 

7  7  The  statement  of  the  case  is  abridged,  and  most  of  the  argument  of 
counsel  is  omitted. 

Accord:  Phillips  v.  Barber  (1831)  7  Wend.  (N.  Y.)  439.  And  see  Pollock's 
comment  on  the  principal  case,  in  73  R.  R.  v-i.  Compare  the  charge,  and 
the  ruling  on  it,  in  Janiigan  v.  Fleming  (1S71)  43  Miss.  710,  720,  5  Am. 
Rep.    514. 

78  The  statement  of  the  case  is  abridged,  the  arguments  of  counsel  are 
omitted,  and  only  so  much  of  the  opinion  is  given  as  relates  to  the  first 
count. 


64S  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

situated  in  said  Alford,  before  that  time,  to  wit,  on  the  sixth  day  of 
December  last  past,  consumed  by  fire,"  and  alleges  that  the  defendant 
did  speak,  utter  and  publish  the  following  false,  scandalous  and  ma- 
licious words  of  and  concerning  the  plaintiff,  viz. : 

He  (meaning  the  plaintiff)  burnt  it  (meaning  the  plaintiff's  store  in  Alford 
aforesaid)  himself  (again  meaning  the  plaintiff :  and  further  meaning  and 
insinuating  by  the  several  words  aforesaid,  that  the  plaintiff  had  been 
guilty  of  the  crime  of  wilfully  and  maliciously  burning  his  own  store  in 
Alford  aforesaid). 

Now  these  words  are  not  actionable,  unless  it  is  a  crime  punishable 
by  law  for  a  man  to  destroy  by  fire  his  own  property ;  and  we  cannot 
find  that,  either  by  the  common  law,  or  by  any  statute  of  this  com- 
monwealth, such  an  act,  unaccompanied  by  an  injury  to,  or  by  a 
design  to  injure,  some  other  person,  is  criminal;  and  although  it  is 
alleged  by  the  innuendo,  that  the  defendant  meant  and  intended  to 
charge  the  plaintiff'  with  having  done  this  act  wilfully  and  maliciously, 
yet  the  words  do  not  thereby  acquire  any  force  or  meaning  which  they 
had  not  in  themselves,  the  ofiice  of  an  innuendo  being  only  to  make 
more  plain  what  is  contained  in  the  words  themselves  as  spoken,  not 
to  enlarge  or  extend  their  meaning  or  give  them  a  sense  which  they 
do  not  bear  when  taken  by  themselves  without  the  aid  of  an  innuendo. 
The  words  spoken,  as  stated  in  this  count,  are  simply,  "He  burnt  it." 
These  words  are  innocent  in  themselves,  though  they  may  have  a 
defamatory  meaning,  if  they  relate  to  any  subject  the  burning  of  which 
is  unlawful.  In  order  to  give  them  that  character,  that  they  may  be 
actionable,  the  plaintiff  should  have  set  forth  in  a  colloquium  the  cir- 
cumstances which  would  render  such  a  burning  unlawful,  or  by  an 
averment  in  the  preceding  part  of  his  count,  without  the  form  of  a 
colloquium,  and  then  should  have  averred  that  the  words  spoken  were 
of  and  concerning  those  circumstances."**     Thus,  if  goods  belonging 

7  9"T>et  the  slanderer  disguise  his  language,  and  wrap  up  his  meaning  in 
ambiguous  givings  out,  as  he  will,  it  shall  not  avail  him,  because  courts  will 
understand  language,  in  whatever  form  it  is  used,  as  all  mankind  understand 
it.  *  *  *  If  the  words  have  the  slanderous  meaning  alleged,  not  by  their 
own  intrinsic  force,  but  by  reason  of  the  existence  of  some  extraneous  fact, 
the  plaintiff"  must  underbike  to  prove  that  fact,  and  the  defendant  must  be 
at  liberty  to  disprove  it.  The  fact  then  must  be  averred  in  a  traversable  form, 
with  a  proper  colloquium,  to  wit,  an  averment,  that  the  words  in  question 
are  spoken  of  and  concerning  such  usage,  or  report,  or  fact,  whatever  it  is, 
which  gives  to  words,  otherwise  indifferent,  the  particular  defamatory  mean- 
ing imputed  to  them."  Per  Sliaw,  C.  J.,  in  Carter  v.  Andrews  (1834)  16 
Pick.  (Mass.)  1,  5.  See  also  Winsor  v.  Ottofy  (1909)  140  Mo.  App.  5G3,  120 
S.   VV.  ti93. 

For  the  debt  which  American  literature  owes  to  tlie  common  law  collo- 
quium, see  the  reference  to  Bloss  v.  Tobey,  in  Bigelow's  Life  of  William 
CuUen  Brvant,  American   Men  of  Letters,  pp.  37,  38,  note  1. 

The  Connnon  Law  Prwedure  Act  of  1802  (15  it  16  Vict.  c.  76,  §  61)  provided 
that  in  actions  of  libel  and  slander,  the  plaintiff  shall  be  at  libertj'^  to  aver 
that  the  words  or  matter  complainetl  of  were  used  in  a  defamatory  sense, 
specifying  such  defamatory  sense,  without  any  prefatory  averment  to  show 
how  such  words  and  matter  were  used  in  tliat  sense."  See  also  the  provision 
of  the  New   York  Code  of  I'rocedure  of  1848,  141,  which  has  had  a  large 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  649 

to  another  person  were  in  the  store,  or  if  goods  belonging  to  the  plain- 
tiff had  been  insured,  it  should  have  been  averred  that  such  was  the 
case,  and  that  the  words  spoken  related  to  a  store  with  such  goods  in 
it.  But  there  is  nothing  in  the  count  which  indicates  that  any  goods 
were  in  the  store,  or  that  any  damage  had  happened  or  was  design- 
ed towards  any  one  but  the  plaintiff  himself ;  so  that  the  whole  ac- 
cusation against  him,  as  represented  in  this  count,  is  that  he  wilfully 
and  maliciously  burnt  his  own  store.  *  *  *  ^° 
Judgment  arrested. 


(D)  Defenses  to  a  Prima  Facie  Cause  in  Defamation 
(a)    Justification  :     Truth    of    the    Charge 

PRESS  CO.  V.  STEWART. 

(Supreme  Court  of  Pennsylvauia,  1888.     119  Pa.  584,  14  Atl.  51.) 

Action  on  the  case  against  the  Press  Company,  to  recover  damages 
for  the  publication  of  an  alleged  libel  in  "The  Press,"  a  daily  paper  of 
Philadelphia.  The  plaintiff  had  leased  rooms  in  a  business  section  of 
Philadelphia  and  fitted  them  up  as  a  school  for  clerks,  salesmen,  and 
reporters,  and  he  professed  to  be  a  teacher  of  shorthand.  The  out- 
side of  his  rooms  had  been  alluringly  placarded  with  signs.  The  at- 
tention of  the  city  editor  of  "The  Press"  being  attracted  by  the  pe- 
culiarity of  the  signs,  he  detailed  a  reporter  to  visit  the  establishment 
and  ascertain  its  character.  He  did  so,  and  "The  Press,"  the  next 
day,  contained  the  report  of  the  interview. 

following  in  America :  "In  an  action  for  libel  or  slander,  it  shall  not  be  nec- 
essaiT  to  state  in  the  complaint,  any  extriu:?ic  facts  for  the  purpose  of  show- 
ing the  application  to  the  plaintiff,  of  the  defamatory  matter  out  of  which 
the  cause  of  action  arose;  but  it  shall  be  sufficient  to  state  generally  that 
the  same  was  published  or  spoken  concerning  the  plaintiff,  and  if  such 
allegation  be  controverted,  the  plaintiff  shall  be  bound  to  establish,  on  the 
trial,  that  it  was  so  published  or  spoken."  On  the  effect  of  such  enactments, 
see  Grand  v.  Dreyfus  (1898)  122  Cal.  58,  54  Pac.  389. 

80  Accord:  Hopkins  v.  Beedle  (1803)  1  Caines  (N.  Y.)  348,  2  Am.  Dec.  191:' 
(The  words  were  "You  have  sworn  a  lie ;"  but  there  was  no  colloquium.) 
Stafford  V.  Green  (1806)  1  Johns.  (N.  Y.)  ,505:  ("He  swore  falsely  before  Squire 
Andrews,"  without  a  colloquium,  but  with  "a  mere  innuendo,  that  it  was  in 
a  certain  cause  depending  before  a  .iustice.")  Blair  v.  Sharp  (1820)  Breese 
(111.)  .30.     Tebbetts  v.  Goding  (1857)  9  Gray  (Mass.)  254. 

Compare  Niven  v.  Munn  (181G)  13  Johns.  (N.  Y.)  48,  where  the  statement 
was  thus  pleaded :  "The  defendant,  in  a  certain  discourse  which  he  had 
of  and  concerning  the  trial  of  a  certain  cause  between  David  Munn  and 
John  Wilson,  then  lately  had,  before  Samuel  Barnard,  Esq.,  a  justice  of  the 
peace,  in  and  for  the  County  of  Sullivan ;  and  of  and  concerning  the  testi- 
mony of  the  plaintiff,  who  was  sworn  as  a  witness,  by  the  said  Samuel 
Barnard  (he  being  a  justice  as  aforesaid,  and  having  full  power  and  lawful 
authority  to  administer  an  oath),  on  the  trial  of  the  cause,  and  testified 
as  a  witness  therein,  spoke  and  published,  concerning  the  plaintiff,  these 
false,  scandalous,  malicious  and  defamatory  words:  'Wiiat  he  (meaning 
to  plaintiff)  has  sworn  to  is  a  damned  lie'  (meaning  thereby,  that  the  plaintiff 
had  perjured  himself  on  the  trial  of  the  said  cause)." 


650  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

It  was  this  report  which  formed  the  subject  of  the  alleged  libel.  The 
plaintiff  claimed  that  it  was  a  libel  because  it  exposed  him  to  ridicule, 
and  was  calculated  to  injure  him  in  his  business  as  a  teacher. 

Paxson,  C.  J.^^  *  *  *  'j^i^g  defendant  filed  what  was  substan- 
tially, though  not  perhaps  in  strict  technical  form,  a  plea  of  justifica- 
tion. It  alleged  that  the  article  in  the  Press  was  a  just  and  true  ac- 
count of  the  interview  between  its  reporter  and  the  plaintiff',  and  asked 
the  court  to  instruct  the  jury  that  "if  they  believe  that  the  publication 
complained  of  is  a  fair  and  true  account  of  an  interview  had  between 
the  plaintiff  and  Mr.  Cooke,  your  verdict  must  be  for  the  defendant." 
The  court  declined  to  affirm  this  point,  and  therein  we  think  the  learn- 
ed judge  erred.  While  the  truth  would  not  have  been  a  defence  to 
an  indictment,  the  rule  is  otherwise  in  a  civil  suit  for  damages.*^ 
This  is  horn-book  law.  For  this  error  at  least  the  judgment  must  be 
reversed. 

Judgment  reyersed. 

81  The  statement  of  the  case  is  abridged,  and  only  so  much  of  the  opinion 
is  given  as  relates  to  the  one  point. 

"  82  On  the  possible  effect  of  showing  tlie  truth  of  the  statement  in  slander, 
see  the  comment  of  Holt,  C.  J.,  in  Johnson  v.  Browning  (1703)  6  Mod.  216, 
when  that  case  was  before  the  King's  Bench  in  1705 :  "And  he  (Holt,  G.  J.) 
remembered  another  very  lately,  where  a  fellow  brought  an  action  for 
saying  of  him  'he  was  a  highway-man' ;  and  it  appearing  upon  evidence 
that  he  was  so,  he  was  taken  in  court,  committed  to  Newgate,  and  con- 
victed and  hanged  the  next  sessions:  so  people  ought  to  advise  well  before 
they  brought  such  actions.  And  Darnell  (for  the  plaintiff)  remembered  the 
like  fate,  which  befell  a  client  of  his." 

It  was  however  at  one  time  received  as  sound  law  that  "no  scandal  in 
writing  is  any  more  justifiable  in  a  civil  action  brought  by  the  party  to 
vindicate  the  Injury  done  him,  than  in  an  indictment  or  information  at  the 
suit  of  the  crown;  for  tliough  in  actions  for  words,  the  law,  through  com- 
passion, admits  the  truth  of  the  charge  to  be  pleaded  as  a  justification, 
yet  this  tenderness  of  the  law  is  not  to  be  extended  to  written  scandal, 
in  which  the  author  acts  with  more  coolness;  and  deliberation  gives  the 
scandal  a  more  durable  stamp,  and  propagates  it  wider  and  farther:  whereas 
in  words  men  often  in  a  heat  and  passion  say  things  which  they  are  after- 
wards ashamed  of,  and  though  they  seem  to  act  with  deliberation,  yet  the 
.scandal  sooner  dies  away,  and  is  forgotten ;  and  therefore  from  the  greater 
•degree  of  mischief  and  malice  attending  the  one  than  the  other,  though  the 
law  allows  the  party  to  justify  in  an  action  for  words,  yet  it  doth  not 
for  written  scandal;  from  whence  it  follows,  that  the  only  favour  truth 
affords  in  such  a  case  is,  that  it  may  be  shewn  in  mitigation  of  damages  in 
an  action."     Bacon's  Abridgment,  "Libel,"  A,  5. 

This  rested  chiefly  on  the  remark  ascribed  to  Lord  Hardwicke  in  The  King 
V.  Roberts  (1735)  Selw.  N.  P.  9S6.  But  Lord  Holt  in  1707  had  already  accepted 
the  doctrine  that  "a  man  may  justify  in  an  action  upon  the  case  for  words, 
or  for  a  libel;    otherwise  in  an  indictment."     Anon.  (170G)  11  Mod.  99. 

On  the  reason  for  the  rule,  compare  3  Bl.  Com.  (1765)  125,  and  Pollock  on 
Torts  (7th  Ed.)  254. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  651 

UNDERWOOD  v.  PARKS. 

(At  Middlesex   Sittings,   1744.     2   Strauge,   1200,  93  Reprint,   1127.) 

In  an  action  for  words,  the  defendant  pleaded  not  guilty,  and  offer- 
ed to  prove  the  words  to  be  true,  in  mitigation  of  damages :  which  the 
Chief  Justice  refused  to  permit,  saying  that  at  a  meeting  of  all  the 
Judges  upon  a  case  that  arose  in  the  Common  Pleas,  a  large  majority 
of  them  had  determined  not  to  allow  it  for  the  future,  but  that  it 
should  be  pleaded,  whereby  the  plaintiff  might  be  prepared  to  defend 
himself,  as  well  as  to  prove  the  speaking  of  the  words.  That  this 
was  now  a  general  rule  amongst  them  all,  which  no  Judge  would  think 
himself  at  liberty  to  depart  from,  and  that  it  extended  to  all  sorts  of 
words,  and  not  barely  to  such  as  imported  a  charge  of  felony.^ ^ 


CLARK  V.  BROWN. 
(Supreme  Judicial  Court  of  Massachusetts,  1875.     116  ilass.  504.)  ,^ 

Tort  for  slander,  for  saying  of  the  plaintiff,  "he  has  stolen  my  iron 
bar,  cart-pin,  and  ox-yoke."  The  defendant  pleaded  that  the  words 
were  true.  On  the  trial  the  defendant  offered  evidence  tending  to  show 
that  the  plaintiff  had  admitted  that  he  took  the  defendant's  iron  bar, 
ox -yoke  and  cart-pin,  but  he  did  not  take  them  to  steal  them,  but  to 
bother  or  plague  the  defendant.  The  jury  found  for  the  plaintiff,  for 
$11.75. 

DevEns,  J.  It  is  argued  for  the  defendant  that,  while  one  may  be 
justly  held  for  slanderous  utterances  in  respect  to  an  innocent  person 
wrongfully  defamed,  yet  that  if  such  a  person,  by  some  misconduct  of 
his  own,  has  contributed  to  produce  a  belief  in  the  truth  of  the  words 
thus  uttered,  he  cannot  complain  of  the  person  expressing  it ;  and 
that,  therefore,  if  the  plaintiff  wantonly  took  the  property  of  the  de- 
fendant as  an  idle  jest  or  for  the  purpose  of  annoyance,  the  defendant 
is  not  liable  for  saying  that  he  stole  the  articles,  unless  he  knew  that 
the  plaintiff  intended  to  return  them,  or  only  took  them  thus  to  annoy 
him.  But  in  order  to  justify  the  defendant  in  the  utterance  of  words 
otherwise  slanderous,  it  is  necessary  that  the  facts  proved  by  him 
should  be  coextensive  with  the  charge ;  and  he  cannot  protect  himself 
from  the  consequences  of  having  made  it  by  showing  that  he  believed 
it  to  be  true,  even  if  such  a  belief  is  induced  by  misconduct  or  im- 
propriety on  the  part  of  the  plaintiff,  which  fell  short  of  that  which  he 
had  seen  fit  to  impute.     Parkhurst  v.  Ketchum,  6  Allen,  406,  83  Am. 

83  Accord:  Bearsley  v.  Bridgman  (1864)  17  Iowa,  290:  (Action  for 
slander,  under  the  Iowa  code  of  civil  procedure.  The  defendant  answered 
by  denial  only.  On  the  trial  the  defendant  offered  to  prove  the  truth  of  the 
words  alleged  to  have  been  spoken.  The  plaintiff's  objection  was  sustained 
by  the  trial  court.) 


652  TORTS  THROUGH  ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 

Dec.  639,  and  Watson  v.  Moore,  2  Cush.  133,  140,  are  decisive  of  this 
point,  and  the  defendant  has  no  ground  of  complaint  in  reference  to 
the  ruHng  upon  it.     *     *     * 

The  plaintiff  is  entitled  to  retain  his  verdict  if  he  shall  elect  to  have 
it  amended  to  one  for  nominal  damages.     *     *     *  ^* 


; 


WEAVER  V.  LLOYD. 

(Court  of  King's  Bench,  1824.    2  Barn.  &  C.  678,  107  Reprint,  535.) 

Case  for  a  libel  published  in  an  Oxford  newspaper.  The  paragraph 
set  out  in  the  declaration  charged  the  plaintiff  with  the  brutal  usage 
of  a  horse,  in  riding  from  Oxford  to  Abingdon,  and  after  various 
particulars  concluded  as  follows: 

"We  learn  that,  on  reaching  Abingdon,  the  horse  presented  a  most  shock- 
ing spectacle,  having  one  eye  literally  knocked  out,  besides  being  dreadfully 
lacerated  and  injured  in  various  parts  of  its  body.  Being  conscious  that  its 
condition  would  excite  attention,  he  ordered  the  person  who  had  the  care  of 
the  horse  not  to  let  anyone  go  into  the  stables." 

The  defendant  pleaded,  first,  not  guilty;  secondly,  a  justification, 
averring  the  truth  of  each  particular  of  the  statement;  thirdly,  that 
the  matters  contained  in  the  supposed  libel  were  true  in  substance  and 
efi^ect.  Replication,  de  injuria.  At  the  trial  the  jury  found  for  the 
plaintiff  on  the  first  plea,  and  as  to  the  others,  that  two  of  the  matters 
alleged  were  not  true ;  viz.  that  the  horse's  eye,  although  much  in- 
jured, was  not  literally  knocked  out,  and  that  the  plaintiff  had  not 
ordered  that  no  person  should  be  allowed  to  go  into  the  stable  to  see 
the  horse ;  but  that  the  alleged  libel  was  true  in  substance  and  effect. 
The  Judge  then  directed  a  verdict  for  the  plaintiff',  and  gave  the 
defendant  leave  to  move  to  enter  a  verdict  in  his  favour,  if  the  Court 
should  think  the  third  plea  supported  by  the  evidence.  The  jury  ac- 
cordingly found  a  verdict  for  the  plaintiff  with  one  shilling  damages. 

W.  E.  Taunton  now  moved  to  enter  a  verdict  for  the  defendant, 
and  contended,  that  the  jury  were  warranted  in  finding  that  the  alleged 
libel  was  true  in  substance  and  effect.  The  horse's  eye  was  shewn 
to  be  much  injured,  although  the  sight  was  not  entirely  destroyed,  and 
the  supposed  order,  not  to  admit  any  person  into  the  stable  was  not 
any  part  of  the  libellous  matter,  it  was  therefore  unnecessary  to  prove 
the  truth  of  it.    Edwards  v.  Bell,  1  I'ing.  403. 

Per  Curiam.  The  defendant  did  not  succeed  in  proving  either  of 
his  special  pleas.  The  second  plea,  which  distinctly  averred  the  truth 
of  the  two  facts  which  were  not  proven,  clearly  was  not  supported, 
and  the  third  plea  alleging  that  the  charge  was  true  in  substance  and 
effect,  must  mean  that  each  particular  of  the  charge  was  true  in  sub- 
stance.   In  the  case  cited,  the  passage  not  proved  formed  no  ingredient 

8*  The  statement  of  facts  is  abridged  and  parts  of  tlie  opinion  are  omitted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  653 

of  the  charge  against  the  plaintiff.  Here,  the  statement  that  he  knock- 
ed out  the  horse's  eye  imputed  a  much  greater  degree  of  cruelty  than  a 
charge  of  beating  him  on  the  other  parts  of  the  body.  If  we  were  to 
hold  this  a  sufficient  justification,  exaggerated  accounts  of  any  transac- 
tion might  always  be  given  with  impunity. 
Rule  refused. 


RUTHERFORD  v.  PADDOCI 


lV. 


(Supreme  Judicial  Court  of  Massachusetts,  1902.    180  Mass.  289,  62  N.  E.  381, 

91  Am.  St.  Rep.  282.) 

Tort  for  slander.  The  plaintiff  alleged  that  she  was  a  married  wo- 
man, and  that  the  defendant  "charged  her  with  adultery"  through 
speaking  these  words :  "You  (meaning  the  plaintiff)  are  a  dirty  old 
whore,  and  I  can  prove  it."  The  defendant  pleaded  the  truth  of  the 
charge,  in  that  "the  plaintiff  had,  before  said  words  were  spoken  and 
published,  committed  the  crime  of  adultery."  On  the  trial,  the  evi- 
dence tended  to  show  that  the  plaintiff'  had  committed  adulter}^  two 
or  three  times  with  the  same  person.  The  defendant  asked  the  judge 
to  rule  as  follows : 

"The  words  as  alleged  in  the  declaration  are  actionable,  mthout  proof 
of  special  damage,  only  because  they  charge  the  plaintiff  with,  or  impute  to 
her,  the  commission  of  a  crime — the  crime  of  adiiltery.  The  defendant  there- 
fore justified  if  she  proves  that  before  the  words  were  spoken  the  plaintiff 
had  committed  the  crime  of  adultery.  It  is  not  necessary  for  her  to  prove, 
in  order  to  justify,  the  full  truth  of  the  words  spoken — i.  e.,  that  the  plaintiff 
was  a  whore  in  the  ordii^ary  acceptation  of  the  word,  if  she  proves  that 
defendant  had  committed  the  only  cilrne  which  those  words  import,  to  wit, 
the  crime  of  adultery." 

The  judge  refused  to  so  rule,  and  left  the  case  to  the  jury,  vvho  re- 
turned a  verdict  for  the  plaintiff.     The  defendant  alleged  exceptions. 

Holmes,  C.  J.  This  is  an  action  of  tort  brought  by  a  married  wo- 
man for  calling  her  a  dirty  old  whore.  We  repeat  the  qualifying  ad- 
jectives as  bearing  on  what  we  have  to  say.  At  the  trial  the  defendant 
asked  for  a  ruling  that  a  justification  was  made  out  by  proof  that  be- 
fore the  words  were  spoken  the  plaintiff  had  committed  adultery.  The 
judge  refused  so  to  rule,  but  left  it  to  the  jury  to  decide  in  what  sense 
the  words  were  used,  and  instructed  them  that  the  justification  must  be 
as  broad  as  the  charge.  On  this  ground  the  judge  further  instructed 
them  that  proof  that  the  plaintiff'  had  committed  adultery  at  some  time 
would  not  be  a  justification,  if,  that  is  to  say,  the  jury  should  be  of 
opinion  that  the  words  meant  more  than  the  charge  of  the  act  on  a 
single  occasion,  and  imported,  for  instance,  making  merchandise  of 
the  plaintiff's  person  for  hire.    The  defendant  excepted. 

No  special  reference  was  made  to  the  pleadings  in  the  request  or 
ruling,  and  so  we  lay  on  one  side  the  fact  that  the  justification  pleaded 
followed  the  innuendo  of  the  declaration,  which  went  little  or  no  fur- 


654  TORTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

ther  than  to  aver  that  the  defendant  charged  the  plaintiff  with  the 
crime  of  adultery.  See  Simmons  v.  Mitchell,  6  App.  Cas.  156,  162; 
Haynes  v.  Clinton  Printing  Co.,  169  Mass.  512,  515,  48  N.  E.  275. 
Of  course  the  judge  was  right  in  his  instruction  that  the  justification 
must  be  as  broad  as  the  charge.  Apart  from  the  pleadings,  clearly  the 
jury  were  at  Hberty  to  find  that  the  words  charged  the  commission 
of  adultery  on  more  than  one  occasion,  and  therefore  the  ruling  re- 
quested was  wrong. 

But,  as  a  general  rule,  the  justification  need  be  no  broader  than  the 
charge  in  a  legal  sense — than  the  actionable  portion  or  significance  of 
the  words.  It  need  not  extend  to  the  further  abuse  with  which  a  sen- 
tence or  word  may  be  loaded,  where  the  truth  of  the  substance  of  the 
imputation  has  been  made  out.  Morrison  v.  Plarmer,  3  Bing.  N.  C. 
■759,  767;  Edwards  v.  Bell,  1  Bing.  403,  409.  The  judge,  by  suggest- 
ing that  usually  the  epithet  carried  the  notion  of  hire,  implied  that  if 
that  meaning  were  found  the  justification  must  extend  to  that.  There 
is  no  doubt  that  the  jury  were  warranted  in  finding  that  the  epithet 
with  its  adjectives  meant  more  and  worse  in  a  social  sense  than  even 
repeated  lapses  from  conjugal  faith.  But  it  would  be  rather  a  stretch 
to  say,  and  it  was  not  argued,  that  they  could  have  found  that  any 
other  crime  was  charged — for  instance,  that  of  being  a  common  night- 
walker,  or  a  lewd,  wanton  and  lascivious  person  in  speech  or  behavior, 
under  Public  Statutes,  chapter  207,  section  29.  Therefore,  the  ques- 
tion is  suggested  whether  we  are  to  confine  the  cause  of  action  to  so 
much  of  the  charge  as  imports  criminal  conduct,  or  are  to  recognize 
as  an  element  to  be  included  in  the  justification  such  further  import  of 
the  word  as  adds  to  the  heinousness  of  the  crime  and  possibly  aft'ects 
the  degree  of  the  punishment,  although  it  does  not  change  the  techni- 
cal character  of  the  offense. 

If  we  take  the  former  view,  we  follow  to  its  extreme  results  a  tra- 
dition of  the  common  law,  the  reasons  for  which  have  disappeared, 
and  which  has  been  corrected  in  England  and  in  some  of  our  states 
by  statute.  Odgcrs  on  Libel  and  Slander  (3d  Ed.)  90.  By  the  old 
law,  apart  from  an  allegation  of  special  damage,  an  action  lay  in  the 
spiritual  courts  only,  because  the  offense  charged  was  dealt  with  only 
in  the  spiritual  courts,  and  it  was  said  that  therefore  the  spiritual 
courts  alone  could  determine  the  truth  of  the  charge.  Y.  B.  27  Henry 
VIII,  14,  pi.  4.  Perhaps  it  would  have  been  simpler  to  say  that  orig- 
inally the  whole  jurisdiction  was  ecclesiastical,  and  that  it  was  re- 
tained by  the  church,  except  in  those  instances  where  for  special  rea- 
sons the  common  law  had  encroached.  In  Coke's  time  the  state  of  the 
law  seems  to  have  been  accounted  for  or  justified  by  treating  such 
charges  as  "brabling  words."  Oxford  v.  Cross,  4  Rep.  18.  But  see 
Ogden  V.  Turner,  6  Mod.  104,  105 ;  Graves  v.  Blanchet,  2  Salk.  696 ; 
Davis  V.  Sladden,  17  Or.  259,  262,  263,  21  Pac.  140.  It  has  been  sug- 
gested that  the  taking  by  the  common-law  courts  of  a  portion  of  the 
original  ecclesiastical  jurisdiction  over  slander  started   from  tlie  fact 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  C55 

that  in  the  cases  where  the  common  law  interfered  the  matter  charged 
was  the  subject  of  a  common-law  writ,  and  that  the  principal  matter 
drew  to  it  the  accessory.  In  such  cases  the  common-law  courts  best 
could  determine  the  truth  of  the  charge :  Smith  v.  Teutonia  Ins.  Co., 
Fed.  Cas.  No.  13,115,  6  Am.  Law  Rev.  593,  595,  603,  605.  Of  course 
at  that  stage  the  common  law  could  not  present  a  systematic  scheme 
of  liability,  but  only  examples  of  occasional  interference  which  seemed 
merely  arbitrary  when  the  explanation  was  lost. 

At  the  present  day,  when  slander  is  fully  domiciled  in  the  common 
law  as  a  tort  and  the  only  remedy  recognized  as  a  remedy  must  be 
found  in  the  common-law  courts,  it  may  be  argued  with  some  force 
that  there  should  be  an  effort  after  consistency  of  theory,  and  that 
the  remedy  for  one  of  the  greatest  wrongs  that  can  be  done  by  words 
should  not  be  distorted  by  the  necessity  of  referring  it  to  the  liability 
to  a  small  fine  or  imprisonment  if  the  falsehood  were  true.  The  older 
law  already  has  been  broken  in  upon  by  holding  liability  to  a  trivial 
punishment  enough  if  the  crime  involves  moral  turpitude,  or  if  the 
punishment  Avill  bring  disgrace.  See  Miller  v.  Parish,  8  Pick.  384; 
Brown  v.  Nickerson,  5  Gray,  1.  Compare  Turner  v.  Ogden,  2  Salk. 
696,  6  Mod.  104;  Onslow  v.  Home,  2  W.  Black.  750,  753,  3  Wils. 
177,  186;  Holt  v.  Scholefield,  6  Term  Rep.  691,  694;  Eure  v.  Odom, 
9  N.  C.  (2  Hawks)  52.  At  all  events,  so  long  as  the  action  for  slander 
is  preserved  and  lies  for  imputing  unchastity  to  a  woman,  it  is  so  rea- 
sonable to  hold  the  liability  coextensive  with  the  imputation  that  we 
sloall  not  be  more  curious  than  our  predecessors  in  finding  an  arbitrary 
and  technical  limit.  In  Doherty  v.  Brown,  10  Gray,  250,  251,  it  was 
said  by  a  very  able  judge,  and  said  as  a  material  part  of  the  reasoning 
on  which  the  case  was  decided,  that  proof  of  the  unchastity  of  the 
plaintiff  would  not  be  a  justification  of  the  charge  that  she  was  a 
whore.  We  are  content  to  take  the  law  as  we  find  it  stated.  See 
Cleveland  v.  Detweiler,  18  Iowa,  299 ;  Sheehey  v.  Cokley,  43  Iowa, 
183,  22  Am.  Rep.  236;  Peterson  v.  Murray,  13  Ind.  App.  420,  41  N. 
E.  836. 

Exceptions  overruled. 


CUDDINGTON  v.  WILKINS. 

(Court  of  Common  Pleas,  1615.     Hob.  67,  80  Reprint,  216.) 

Cuddington  brought  an  action  on  the  case  against  Wilkins,  for  call- 
ing him  thief;  the  defendant  justified,  because  beforetime  he  had 
stolen  somewhat :  the  plaintiff  replied,  that  since  the  supposed  felony 
the  general  pardon  in  the  seventh  year  of  the  King  was  made,  and 
makes  the  usual  averment  to  bring  himself  within  the  pardon.  Where- 
upon the  defendant  demurs :  See  Staundford  plac.  Coronse,  180,  that 
a  man  arrested  for  felony  break  prison,  he  shall  lose  his  battail ;  but 
yet  if  the  King  pardon  him  that  it  is  restored.     F.  Coronas,  281 ;    1 


656  TORTS  THROUGH  ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

and  2  E.  3,  F.  Coronae,  154.     So  here  the  felony  is  by  the  pardon  ex- 
tinct. 

And  in  the  end  this  case  was  adjudged  for  the  plaintiff,  though  it 
may  be,  he  knew  him  not  to  be  within  the  pardon ;  for  there  is  no 
cause  to  favour  idle  and  injurious  words:  but  perhaps  if  he  had  ar- 
rested him  for  the  felony  after  pardon,  it  might  have  been  excused  if 
he  knew  it  not,  because  it  is  an  act  of  justice.®^ 


LARSON  V.  COX. 
(Supreme  Court  of  Nebraska,  1903.    68  Neb.  44,  93  N.  W.  1011.) 

Sullivan,  C.  J.  This  was  an  action  by  Larson  against  Cox  to  re- 
cover damages  for  slander.  The  defamatory  words  set  out  in  the  pe- 
tition amount  to  a  charge  of  larceny.  The  defendant  in  his  answer 
alleged  that  the  charge  was  true,  and  that  it  was  made  with  good  mo- 
tives and  for  justifiable  ends.  The  jury  found  against  the  plaintiff, 
and  judgment  followed  the  verdict. 

The  assignments  of  error  discussed  by  counsel  relate  for  the  most 
part  to  the  plea  of  justification,  and  raise  the  question  whether  the 
truth  of  slanderous  matter  is  per  se  a  complete  defense.  The  conten- 
tion of  counsel  for  plaintiff  is  that  the  truth  is  unavailing  unless  it 
was  uttered  with  a  good  motive  and  for  a  proper  purpose.  His  argu- 
ment is  grounded  altogether  upon  the  provision  of  the  Constitution 
which  declares  tliat  "in  all  trials  for  libel,  both  civil  and  criminal,  the 
truth,  when  published  with  good  motives  and  for  justifiable  ends,  shall 
be  a  sufficient  defense."  Const,  art.  1,  §  5.  The  provision  here  quoted 
is  a  substitute  for  section  3,  art.  1,  of  the  Constitution  of  1866,  which 
was  an  almost  literal  copy  of  a  New  York  statute  adopted  soon  after 
the  trial  of  the  celebrated  case  in  which  Croswell  was  convicted  of 
publishing  a  libel  on  Thomas  Jefferson.  People  v.  Croswell,  3  Johns. 
Cas.  337,  append.  This  statute  was  intended  to  secure  and  safeguard 
the  freedom  of  the  press,  and  is  now  fundamental  law  in  many  of  the 


85  Accord:  Leyman  v.  lAitimer  (1S77)  3  Ex.  Div.  15,  20:  (The  editor  of 
a  newspaper  sued  for  libel  iu  calling  him  a  "felon  editor" ;  the  defeudauts 
justified,  allefiing  that  the  plaintiff  had  been  convicted  of  felony  and  sen- 
tenced to  twelve  months  imi^risonment  and  hard  labour.  The  plaintiff  re- 
plied that  after  his  conviction  he  underwent  his  sentence  of  twelve  months' 
imprisonment  and  hard  labour  and  so  became  as  cleared  of  the  crime  and 
its  consequences  as  if  he  had  received  the  (Queen's  pardon  luider  the  great 
seal.)  Compare  the  application  of  the  prin(i])le  in  llav  v.  Justices  of  the 
Tower,  [1M)0J  24  Q.  B.  D.  501,  and  in  Mousun  v.  Tussauds,  Limited,  [1S94] 
1  Q.  B.  671,  687. 

For  an  elaborate  consideration  of  the  effect  of  a  pardon,  and  of  the  doc- 
trine of  Cuddington  v.  Wilkins,  see  Bronson,  J.'s,  opinion  in  Baum  v.  Clause 
(1843)   5  Hill   (N.   Y.)   196. 

On  the  fpiostion  in  general,  see  "Pardons,"  29  Cyc.  1566;  37  Cent.  Dig. 
Tit  "Pardon,"  §  16 ;   Dee.  Dig.  tit  "Pardon,"  §  9. 


Ch.  2)  ABSOLUTE    TORTS  OTHER  THAN  TRESPASSES  657 

States.  It  was  a  modification  of  the  doctrine  of  the  common  law  that 
in  public  prosecutions  for  libel  the  truth  of  the  libel  is  no  excuse  for 
its  publication. 

AMien  considered  in  the  light  of  history,  there  is  much  reason  to 
suppose  that  the  constitutional  provision  upon  which  plaintiff  relies 
\vas  designed  as  a  sure  and  permanent  protection,  both  in  civil  and 
criminal  actions,  to  persons  who  have  occasion,  in  the  discharge  of 
some  legal,  social,  or  moral  duty,  to  write  and  publish  criticisms  on 
the  character  and  conduct  of  others,  and  that  it  was  not  any  part  of 
its  purpose  to  take  away  from  the  defendant  in  a  libel  case  any  right 
given  him  either  by  the  statutory  law  or  the  common  law.  The  truth 
of  a  defamatory  publication  is  still  a  complete  and  perfect  defense  in 
a  criminal  case,  irrespective  of  the  motive  or  object  of  the  publisher. 
The  Legislature  has  made  it  so  by  definition  of  the  crime.  Section 
132  of  the  Code  of  Civil  Procedure  in  effect  declares  that,  in  an  action 
for  a  libel  or  slander,  the  truth  of  the  defamatory  matter  may  be 
pleaded  and  proved  as  a  defense.  Castle  v.  Houston,  19  Kan.  417,  27 
Am.  Rep.  127.  The  validity  of  this  section  was  of  course  necessarily 
involved  in  Pokrok  Zapadu  Pub.  Co.  v.  Zizkovsky,  42  Neb.  64,  60  N. 
W.  358,  and  Neilson  v.  Jensen,  56  Neb.  430,  76  N.  W.  866,  which  seem 
to  have  been  decided  on  the  assumption  that  the  constitutional  provi- 
sion above  quoted,  so  far  as  it  relates  to  libels  which  are  the  subjects 
of  civil  action,  was  intended  as  a  restraint  upon  the  freedom  of  the 
press,  and  that  it  operated  as  a  partial  repeal  of  the  statute.  It  is  not 
necessary  at  this  time  to  either  affirm  or  deny  the  doctrine  of  these 
cases,  as  the  constitutional  provision  with  which  they  deal  has  no  ref- 
erence to  actions  for  slander.  Section  132,  so  far  at  least  as  it  relates 
to  spoken  defamation,  is  in  harmony  with  the  Constitution,  and  is 
therefore  valid. 

Under  the  instructions  given  by  the  court  at  plaintiff's  request,  the 
jury  must  have  found  that  the  plea  of  justification  was  sustained  by 
the  proof.  In  our  opinion,  the  evidence  was  sufficient  to  warrant  the 
conclusion  that  Larson  had  committed  the  crime  imputed  to  him. 
This  being  so,  the  verdict  and  judgment  are  right,  even  though  defend- 
ant did  not  make  the  accusation  with  good  motives  and  for  justifiable 
ends.     *     *     *  *®     Judgment  affirmed. 

8  6  Part  of  the  opinion  is  omitted. 

Accord:  Bauni  v.  Clause  (1843)  5  Hill  (N.  Y.)  196:  (In  slander,  because  D. 
had  said  that  P.  had  stolen  an  axe  several  years  before,  D.  pleaded  the  truth 
of  the  charge.  P.  replied  that  he  had  been  pardoned  by  the  Governor.  Said 
Branson,  J.:  "The  plaintiff  has  so  far  retrieved  his  character  that  he  has  been 
made  one  of  the  inspectors  of  elections  for  the  town  in  which  he  resides.  This 
proves  that  he  enjoys  the  good  opinion  of  his  neighbors,  and  it  was  a  malicious 
thing  on  the  part  of  the  defendant  to  open  this  old  sore.  But  our  law  allows 
a  man  to  speak  the  truth,  although  it  be  done  maliciously.")  And  see  the 
remarks  of  Chapman,  J.,  in  Foss  v.  llildreth  (1803)  10  Allen  (Mass.)  76,  79.  So 
in  an  action  for  libel  at  common  law.  "The  truth  is  always  a  complete  de- 
fense, although  the  publication  may  be  inspired  by  malice  or  ill  will  and  be 

Hep  B.  Torts — 42 


\ 


r) 


65S  TORTS  TnROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 


(b)  Privilege 
SIR  JOHN  SCOTT  LILLIE  v.  PRICE. 

(Court  of  Kiug's  Bench,  1836.    5  Adol.  &  E.  645,  111  Reprint,  1309.) 

Declaration  (1836)  for  libel  contained  in  a  letter.  Plea,  not  guilty. 
On  the  trial  before  Lord  Denman,  C.  J.,  at  the  sittings  in  Middlesex 
after  last  Trinity  term,  the  defence  was,  that  the  alleged  libel  was  a 
privileged  communication.  The  defendant's  counsel  objected  that  this 
answer  could  not  be  given  under  the  plea  of  not  guilty.  The  Lord 
Chief  Justice  thought  otherwise,  and  left  the  whole  case  to  the  jury, 
who  found  for  the  defendant. 

Sir  W.  W.  Follett  in  this  term  moved  for  a  rule  to  shew  cause  why 
a  new  trial  should  not  be  had,  on  the  ground  of  misdirection. 

Lord  De;nman,  C.  J.  We  have  consulted  the  other  Judges  on  this 
point,  and  are  of  opinion  that  the  defence  of  privileged  communica- 
tion, as  it  goes  to  the  very  root  of  the  matter  of  complaint,  need  not 
be  specially  pleaded. 

Rule  refused.^^ 

libelous  per  se."  Herald  Pub.  Co.  v.  Feltner  (1914-)  158  Ky.  35,  164  S.  W. 
371 ;    25  Cyc.  413,  414,  note  25. 

But  tills  common  law  rule  as  to  justification  through  a  showing  of  the  mere 
truth  of  the  charge,  has  been  modified"  by  constitutional  or  statutory  provi- 
sions in  a  considerable  number  of  states.  In  some  of  these  states,  a  plea  of  the 
truth  in  libel  is  a  prima  facie  justification,  but  the  plaintiff  may  overcome  it 
by  proving  a  malicious  intention  on  the  part  of  the  defendant.  Perry  v.  Port- 
er (1878)  124  Mass.  338 ;  Conner  v.  Standard  Pub.  Co.  (1903)  183  Mass.  474,  67 
N.  E.  596.  Compare  the  charge  in  Cardarelli  v.  Providence  Journal  Co.  (1911) 
33  K.  1.  268,  80  Atl.  583,  588.  In  other  states,  a  plea  of  the  truth  in  libel  is 
a  justification  if  the  defendant  goes  further  and  shows  that  he  published  it 
with  good  motives  and  for  justifiable  ends.  Neilsou  v.  Jensen  (1S9S)  56  Neb. 
430,  70  N.  W.  866. 

In  Hutchins  v.  Page  (1909)  75  N.  H.  215,  72  Atl.  689,  31  L.  R.  A.  (N.  S.)  132, 
however,  it  was  held,  on  common  law  grounds,  that  whether  truth  is  a  valid 
defense  to  an  action  to  recover  damages  for  a  libel  "depends  upon  the  good 
faith  and  real  purpose  of  the  publisher."  See  infra,  in  the  discussion  of  torts 
through  intentional  harm.  See  also,  in  general,  25  Cyc.  414,  note  26,  and  the 
elaborate  note  to  Hutchins  v.  Page,  in  31  L.  R.  A.  (N.  S.)  132. 

ST  "The  defence  that  the  occasion  or  circumstances  under  which  words  of 
themselves  slanderous  were  spoken  afford  an  excuse  for  their  utterance,  and 
so  repel  the  legal  inference  of  malice,  is  clearly  matter  in  the  nature  of  avoid- 
ance of  the  cause  of  action,  and  must  be  duly  pleaded  in  the  answer  in  order 
to  enable  a  defendant  to  avail  himself  of  it  under  the  provisions  of  the  prac- 
tice act.  Gen.  Sts.  c.  129,  §§  15,  17,  20,  27."  Per  Bigelow,  C.  J.,  in  Goodwin  v. 
Daniels  (1803)  7  Allen  (Mass.)  61,  63.  This  principle  is  now  recognized  by 
statute  in  a  number  of  American  states.  25  Cyc.  481,  note  86.  And  under 
the  English  Judicature  Acts  a  defendant  who  relies  on  a  privilege  "should  set 
out  the  facts  wliich  he  alleges  constitute  the  privileged  occasion."  18  Hals- 
bury's  Laws  of  England,  085,  note  (a). 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  659 


(aa)  Absolute  Prhnleges  ss 

RAM  V.  LAMLEY. 

(Court   of  Common  Pleas,   1G33.     Hut.   113,  123  Repriut,   1139.) 

Norff.  Ram  brought  an  action  upon  the  case  against  Lamley,  and 
declared,  that  whereas  he  was  "bonus  &  legahs  homo  and  free  a  sus- 
pitione  felonise,"  the  defendant  maliciously  went  to  the  Major  of  Linn, 
and  requested  a  warrant  of  him  (being  a  justice  of  peace)  against  the 
plaintiff  for  stealing  his  ropes :  the  major  said  to  him,  ''be  advised  and 
look  what  you  do,"  the  defendant  said  to  the  major,  "Sir,  I  will  charge 
him  with  flat  felony  for  stealing  my  ropes  from  my  shop,"  quorum 
quidem  verborum,  &c.  And  after  not  guilty  pleaded,  and  verdict  for 
the  plaintiff,  Hitcham  moved  in  arrest  of  judgment;  and  the  Court 
unanimously  resolved  that  these  words  being  spoken  to  the  justice  of 
peace  when  he  came  for  his  warrant,  which  was  lawful,  would  not 
maintain  an  action,  for  if  they  should,  no  other  would  come  to  a  jus- 
tice to  make  complaint,  and  to  inform  him  of  any  felony.  Querens 
nil  capiat  per  breve. ^^ 

8  8  "I  should  first  like  to  explain  my  view,  whicli  is  derived  from  the  former 
cases,  as  to  the  meaning  of  what  is  called  'absolute  privilege.'  I  do  not  think 
that  it  is  a  very  accurate  expression,  and  I  am  sure  that  calling  it  a 
'privilege'  Ls  sometimes  misleading.  Privilege  means,  in  the  ordinary  way, 
a  private  right.  Now  there  is  no  private  right  of  a  judge,  or  a  witness, 
or  an  advocate  to  be  malicious.  It  would  be  wrong  of  him,  and  if  it  could  be 
proved  I  am  by  no  means  sure  that  it  would  not  be  actionable.  The  real 
doctrine  of  what  is  called  'absolute  privilege'  is  that  in  the  public  interest 
it  is  not  desirable  to  inquire  whether  the  words  or  acts  of  certain  persons  are 
malicious  or  not.  It  is  not  that  there  is  any  privilege  to  be  malicious,  but 
that,  so  far  as  it  is  a  privilege  of  the  individual — I  should  call  it  rather  a 
right  of  the  public — the  privilege  is  to  be  exempt  from  all  inquiry  as  to 
malice;  that  he  should  not  be  liable  to  have  his  conduct  inquired  into  to  see 
whether  it  is  malicious  or  not — the  reason  being  that  it  is  desirable  that 
persons  who  occupy  ceilain  positions  as  judges,  as  advocates,  or  as  litigants 
should  be  perfectly  free  and  independent,  and,  to  secure  their  independence, 
that  their  acts  and  words  should  not  be  brought  before  tribunals  for  inquiry 
into  them  merely  on  the  allegation  that  they  are  malicious.  I  think  there  is 
something  more  in  that  distinction  than  mere  words,  and  the  reason  that  this 
peculiar  doctrine  of  'absolute  privilege'  is  sometimes  complained  of  is  that 
it  is  not  thoroughly  understood.  That  explanation  of  the  doctrine  will  be 
found  here  and  there  in  many  of  the  cases,  although  it  never  seems  to  have 
been  put  into  the  head-note,  and  so  it  does  not  appear  prominently  as  the 
real  ground  of  the  doctrine.  In  Munster  v.  Lamb,  11  Q.  B.  D.  5SS,  for 
instance,  the  explanation  of  the  doctrine  is  given  in  some  of  the  judgments, 
but  it  is  not  to  be  found  in  the  head-note;  and  the  same  remark  applies  to 
some  of  the  cases  earlier  than  Munster  v.  Lamb."  Per  Channell,  J.,  in  Bot- 
tomley  v.  Brougham  (1908)  1  K.  B.  .584. 

8  9  Accord:  Cutler  v.  Dixon  (1.58G)  4  Co.  Rep.  14  b:  "If  actions  should 
be  permitted  in  such  cases,  those  who  have  just  cause  for  complaint,  would 
not  dare  to  complain  for  fear  of  infinite  vexation."  Hartsock  v.  Iteddick 
(1842)  6  Blackf.  (lud.)  255,  38  Am.  Dec.  141. 


660  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

SCOTT  V.  STANSFIELD. 

(Court  of  Excbeiiuer,  ISGS.     L.  E.  3  Exch.  220.) 

Declaration,  for  that  the  plaintiff  carried  on  the  business  of  an  ac- 
countant and  scrivener,  and  the  defendant  spoke  and  published  of 
and  concerning  him,  in  relation  to  his  said  business,  tlie  words  fol- 
lowing : 

"You,"  meaning  the  plaintiff,  "are  a  barpy,  preying  on  the  vitals  of  the 
poor." 

Plea,  that  at  the  time  when  the  alleged  grievance  was  committed, 
the  defendant  was  the  judge  of  a  certain  court  of  record,  being  the 
County  Court  of  Yorkshire,  and  spoke  and  published  the  words  com- 
plained of  when  he  was  sitting  in  the  said  court,  and  acting  in  his 
capacity  as  such  judge,  and  was  as  such  judge  hearing  and  trying  a 
cause  in  which  the  now  plaintiff  was  defendant,  the  hearing  and  de- 
termination of  which  was  wnthin  the  jurisdiction  of  the  said  court. 
Replication,  that  the  said  words  so  spoken  and  published  by  the  de- 
fendant— 

were  spoken  falsely  and  maliciously,  and  without  any  reasonable,  probable 
or  justifiable  cause,  and  without  any  foundation  whatever,  and  not  bona  fide 
in  the  discharge  of  his  duty  as  .iudge  as  aforesaid,  and  were  wholly  uncalled 
for,  immaterial,  irrelevant,  and  impertinent,  in  reference  to,  or  in  respect 
of,  the  matters  before  him,  and  were  wliolly  unwarranted  on  the  said 
occasion,  of  all  which  premises  the  defendant  had  notice  before  and  at  the 
time  of  the  committing  of  the  said  grievance,  and  then  well  knew. 

To  this  replication  the  defendant  demurred,  and  the  plaintiff  joined 
in  the  issue  thus  raised. 

Martin,  B.®°  It  seems  to  me  quite  clear  that  words  spoken  under 
the  circumstances  stated  in  these  pleadings  are  not  the  subject  of  an 
action  of  slander.  The  plea  states  that  the  defendant  at  the  time 
when  he  spoke  the  words  complained  of,  was  sitting  as  the  judge  of  a 
court  of  record,  and  spoke  them  while  acting  in  his  capacity  of  judge, 
and  trying  a  cause  within  his  jurisdiction  in  which  the  present  plain- 
tiff was  the  defendant.  If  the  words  spoken  under  such  circumstances 
were  the  subject  of  an  action  of  slander,  the  most  mischievous  conse- 
quences would  ensue;  no  judge  would  then  be  able  freely  to  admin- 
ister justice,  for  if  it  were  alleged,  as  is  the  case  here,  that  he  spoke 
falsely  and  maliciously,  and  not  bona  fide  in  the  discharge  of  his  duty, 
and  that  what  he  said  was  irrelevant  to  the  matter  in  hand,  a  jury 
would  have  to  determine  the  question  whether  what  he  said  in  the 
course  of  a  case  which  he  had  jurisdiction  to  tr}^  was  or  was  not  said 
under  the  circumstances  so  alleged.  What  judge  could  try  a  case  with 
any  degree  of  independence  if  he  was  to  be  afterwards  subject  to  have 
his  conduct  in  the  administration  of  justice  commented  on  to  a  jury, 

90  The  statement  of  the  case  is  abridged,  and  the  concurring  opinions  of 
Kelly,    C.   B.,   and   Bi-amwell   and   Channell,    liB.,   are   omitted. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  661 

and  the  propriety  of  it  determined  by  them?  It  appears  to  me  that 
the  opinion  expressed  by  Chief  Justice  Kent,  in  the  American  case 
cited,® ^  puts  this  matter  upon  its  proper  foundation,  and  states,  that 
which  is  both  sound  law  and  good  sense  in  reference  to  it.  I  do  not 
think  we  are  really  deciding  anything  new,  for  to  my  mind  the  de- 
cisions of  the  Court  of  Queen's  Bench  have  gone  the  full  length  of 
our  present  decision.®- 

Judgment  for  the  defendant. 

91  Yates  V.  Lansing  (1810)  5  Johns.  (N.  Y.)  282;  Id.  (1811)  9  Johns.  (N.  Y.) 
bUo,  6  Am.  Dec.  290. 

92  "Why  is  it  that  a  .indge  who  disgraces  his  office,  and  speaks  from  the 
bench  words  of  defamation,  falsely  and  maliciously,  and  without  reasonable 
or  probable  cause,  is  not  liable  to  an  action?  Ts  not  such  conduct  of  the 
worst  description,  and  does  It  not  produce  gi'eat  injury  to  the  person  affected 
by  itV  Why  should  a  witness  be  able  to  avail  himself  of  his  position  in  the 
box  and  to  make  witliout  fear  of  civil  consequences  a  false  statement, 
which  In  many  cases  is  perjured,  and  which  is  malicious  and  affects  the 
character  of  another?  The  rule  of  law  exists,  not  because  the  conduct  of 
those  persons  ought  not  of  itself  to  be  actionable,  but  because,  if  their 
conduct  was  actionable,  actions  would  be  brought  against  judges  and  wit- 
nesses in  cases  in  which  they  had  not  spoken  with  malice,  in  which  they 
had  not  spoken  with  falsehood  It  is  not  a  desire  to  prevent  actions  from 
being  brought  in  cases  where  they  ought  to  be  .maintained  that  has  led  to 
the  adoption  of  the  present  rule  of  law ;  but  it  is  the  fear  that  if  the 
rule  were  otherwise,  numerous  actions  would  be  brought  against  persons 
who  were  merely  discharging  their  duty.  It  must  always  be  borne  in  mind 
that  it  is  not  intended  to  protect  malicious  and  untruthful  persons,  but 
that  it  is  intended  to  protect  i>ersous  acting  bona  fide,  who  under  a  different 
rale  would  be  liable,  not  perhaps  to  verdicts  and  judgments  against  them, 
but  to  the  vexation  of  defending  actions."  Fry,  L.  J.,  in  Munster  v.  Lamb 
(1883)  11  Q.  B.  D.  588,  607. 

This  immunity  of  judges  from  civil  action  for  defamation  is  but  one  in- 
stance of  a  doctrine  which  "has  a  deep  root  in  the  common  law."  See  Clian- 
cellor  Kent's  remarks  in  Yates  v.  Lansing  (1810)  5  .Johns.  (X.  Y.)  282,  291, 
and  the  cases  there  referred  to;  Bradley  v.  Fisher  (1871)  13  Wall.  335,  347, 
20  L.  Ed.  646;  Alzua  v.  Johnson  (1913)  231  U.  S.  106,  107,  34  Sup.  Ct.  27, 
58  L.  Ed.  142.  The  action  in  the  last  case  was  against  a  justice  of  the 
Supreme  Court  of  the  Philippines.  '"Whatever  may  have  been  the  Spanish 
law,"  said  Mr.  Justice  Holmes,  "this  [the  immunity  of  judges]  is  a  principle 
so  deep  seated  in  our  system  that  we  should  regard  it  as  carried  into  the 
Philippines  by  implication  as  soon  as  we  established  courts  in  those  islands." 
And  it  was  held  therefore  that  an  act  of  the  I'hilippine  commission  provid- 
ing that  no  judge  shall  be  liable  to  civil  action  for  olhcial  acts  done  in  good 
faith,  is  not  to  be  construed  as  rendering  judges  of  the  Supreme  Court  liable 
for  official  acts  done  in  bad  faith. 

See  also  the  statement  and  illustration  of  the  general  principle  in  Cooley 
on  Torts  (Student's  Ed.)  377.  For  other  cases,  see  "Public  Authorities,"  23 
Halsbury's  Laws  of  England  (1912)  323-331,  and  notes;  "Judges,"  23  Gyc. 
569,  note  3 ;    Cent.  Dig.  §§  165-173,  178,  179 ;    Dec.  Dig.  §  36. 


v/ 


662  TORTS  THROUGH   ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 

BROOK  V.  SIR  HENRY  MONTAGUE. 
(Court  of  King's  Bench,  1605.     Cro.  Jac.  90,  79  Reprint,  77.) 

Action  for  words,  for  that  the  defendant  spake  these  words  of  the 
plaintiff:  "He  was  arraigned  and  convicted  of  felony,  &c."  The  de- 
fendant pleads,  that  the  plaintiff  at  another  time  brought  false  impris- 
onment against  J.  S.,  one  of  the  Serjeants  of  London,  and  found 
against  the  plaintiff,  who  brought  an  attaint :  and  the  defendant  being 
consiliarius  et  peritus  in  lege,  was  retained  to  be  of  counsel  with  the 
petty  jury;  and  in  evidence  at  the  trial  spake  these  words  in  the 
declaration;  and  so  justifies.  Yelverton  and  Coke,  Attorney  General, 
were  of  counsel  for  the  defendant. 

The  Court  resolved  that  the  justification  was  good:  for  a  coun- 
sellor in  law  retained  hath  a  privilege  to  enforce  any  thing  which  is 
informed  him  by  his  client,  and  to  give  it  in  evidence,  it  being  pertinent 
to  the  matter  in  question,  and  not  to  examine  whether  it  be  false  or 
true;  but  it  is  at  the  peril  of  him  who  informs  it:  for  a  counsellor 
is  at  his  peril  to  give  in  evidence  that  which  his  client  informs  him, 
being  pertinent  to  the  matter  in  question ;  otherwise  action  upon  the 
case  lies  against  him  by  his  client,  as  Popham  said.  But  matter  not 
pertinent  to  the  issue,  or  the  matter  in  question,  he  need  not  to  de- 
liver; for  he  is  to  discern  in  his  discretion  what  he  is  to  deliver,  and 
what  not :  and  although  it  be  false,  he  is  excusable,  being  pertinent 
to  the  matter :  but  if  he  give  in  evidence  any  thing  not  material  to  the 
issue  which  is  scandalous,  he  ought  to  aver  it  to  be  true,  otherwise 
he  is  punishable ;  for  it  shall  be  intended  as  spoken  maliciously  and 
without  cause;  which  is  a  good  ground  for  an  action.  So  if  a  coun- 
sellor object  matter  against  a  witness  which  is  slanderous,  if  there  be 
cause  to  discredit  his  testimony,  and  it  be  pertinent  to  the  matter  in 
question,  it  is  justifiable  what  he  delivers  by  information,  although  it 
be  false.  So  here  it  is  material  evidence  to  prove  him  a  person  fit  to 
be  bound  to  his  good  behaviour,  and  in  maintenance  of  the  first  verdict ; 
therefore  his  justification  is  good.     *     *     *  93 

Wherefore,  for  these  reasons  it  was  adjudged  for  the  defendant. 

8  3  The  statement  of  the  case  is  slightly  abridged. 

Accord:  Hodgson  v.  Scarlett  (1818)  1  B.  &  Aid.  2.32,  19  R.  R.  301,  where 
the  words  used  by  the  defendant,  Scarlett,  afterwards  Lord  Ablnger,  were  as 
follows:  "Some  actions  are  founded  in  folly,  some  in  knavery,  some  in 
both,  some  in  the  folly  of  the  attorney,  some  in  the  knavery  of  the  attorney, 
some  in  the  folly  and  knaveiy  of  the  parties  themselves.  Mr.  Peter  Hodgson 
was  the  attorney  of  the  parties,  drew  the  promissory  note,  fraudulently  got 
Bowman  to  pay  into  his  hands  £150  for  the  benetit  of  the  plaintiff.  This 
was  one  of  the  most  protiigate  things  I  ever  knew  done  by  a  professional 
man.  IMr.  Hodgson  is  a  fraudulent  and  wicked  attorney."  The  words,  said 
Lord  EUenborough,  were  "not  used  at  random  and  unnecessary,  but  were 
a  comment  upon  the  plaintiff's  conduct  as  attorney,"  and  "were  relevant  and 
pertinent  to  it." 


Ch.  2)  ABSOLUTE    TORTS  OTHER  THAN  TRESPASSES  663 

MUNSTER  V.  LAMB. 
(In  the  Court  of  Appeal,  1883.    11  Q.  B.  Div.  588.) 

Brett,  M.  R.®*  *  *  *  f^is  action  is  brought  against  a  solici- 
tor for  words  spoken  by  him  before  a  court  of  justice,  whilst  he  was 
acting  as  the  advocate  for  a  person  charged  in  that  court  with  an 
offence  against  the  law.  For  the  purposes  of  my  judgment  I  shall 
assume  that  the  words  complained  of  were  uttered  by  the  solicitor 
maliciously,  that  is  to  say,  not  with  the  object  of  doing  something  use- 
ful towards  the  defence  of  his  client:  I  shall  assume  that  the  words 
were  uttered  without  any  justification  or  even  excuse,  and  from  an  in- 
direct motive  of  personal  ill  will  or  anger  towards  the  prosecutor  aris- 
ing out  of  some  previously  existing  cause;  and  I  shall  assume  that 
the  words  were  irrelevant  to  every  issue  of  fact  which  was  contested 
in  the  court  where  they  were  uttered ;  nevertheless,  inasmuch  as  the 
words  were  uttered  with  reference  to,  and  in  the  course  of  the  judicial 
inquiry  which  was  going  on,  no  action  will  lie  against  the  defendant, 
however  improper  his  behaviour  may  have  been.  *  *  *  j^-  ^y^g  ^(j_ 
mitted  that  so  long  as  an  advocate  acts  bona  fide  and  says  what  is  rel- 
evant, owing  to  the  privileged  occasion  defamatory  statements  made  by 
him  do  not  amount  to  libel  or  slander,  although  they  would  have  been 
actionable  if  they  had  not  been  made  whilst  he  was  discharging  his 
duty  as  advocate.  But  it  was  contended  that  an  advocate  cannot  claim 
the  benefit  of  the  privilege  unless  he  acts  bona  fide,  that  is,  for  the  pur- 
pose of  doing  his  duty  as  an  advocate,  and  unless  what  he  says  is  rel- 
evant. That  is  the  question  which  Ave  now  have  to  determine.  Cer- 
tain persons  can  claim  the  benefit  of  the  privilege  which  arises  as  to 
everything  said  or  written  in  the  course  of  an  inquiry  as  to  the  admin- 
istration of  the  law,  and  without  making  an  exhaustive  enumeration 
I  may  say  that  those  persons  are  judges,  advocates,  parties,  and  wit- 
nesses.    *     *     * 

If  upon  the  grounds  of  public  policy  and  free  administration  of  the 
law  the  privilege  be  extended  to  judges  and  witnesses,  although  they 
speak  maliciously  and  without  reasonable  or  probable  cause,  is  it  not 
for  the  benefit  of  the  administration  of  the  law  that  counsel  also 
should  have  an  entirely  free  mind?  Of  the  three  classes — judge,  wit- 
ness, and  counsel — it  seems  to  me  that  a  counsel  has  a  special  need 
to  have  his  mind  clear  from  all  anxiety.  A  counsel's  position  is  one  of 
the  utmost  difficulty.  He  is  not  to  speak  of  that  which  he  knows ;  he 
is  not  called  upon  to  consider,  whether  the  facts  with  which  he  is 
dealing  are  true  or  false.  What  he  has  to  do,  is  to  argue  as  best  he 
can,  without  degrading  himself,  in  order  to  maintain  the  proposition 
which  will  carry  with  it  either  the  protection  or  the  remedy  which 
he  desires  for  his  client.     If  amidst  the  difficulties  of  his  position  he 

84  The  statement  of  facts  and  parts  of  tlie  opinion  are  omitted. 


664  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

were  to  be  called  upon  during-  the  heat  of  his  argument  to  consider 
whether  what  he  says  is  true  or  false,  whether  what  he  says  is  relevant 
or  irrelevant,  he  would  have  his  mind  so  embarrassed  that  he  could 
not  do  the  duty  which  he  is  called  upon  to  perform.  For,  more  than 
a  judge,  infinitely  more  than  a  witness,  he  wants  protection  on  the 
ground  of  benefit  to  the  public.  The  rule  of  law  is  that  what  is  said  in 
the  course  of  the  administration  of  the  law,  is  privileged ;  and  the  rea- 
son of  that  rule  covers  a  counsel  even  more  than  a  judge  or  a  witness. 
To  my  mind  it  is  illogical  to  argue  that  the  protection  of  privilege 
ought  not  to  exist  for  a  counsel,  who  deliberately  and  maliciously 
slanders  another  person.  The  reason  of  the  rule  is,  that  a  counsel, 
who  is  not  malicious,  and  who  is  acting  bona  fide,  may  not  be  in  dan- 
ger of  having  actions  brought  against  him.  If  the  rule  of  law  were 
otherwise,  the  most  innocent  of  counsel  might  be  unrighteously  har- 
assed with  suits,  and  therefore  it  is  better  to  make  the  rule  of  law  so 
large  that  an  innocent  counsel  shall  never  be  troubled,  although  by 
making  it  so  large  counsel  are  included  who  have  been  guilty  of  malice 
and  misconduct.  *  *  *  i  ^yill  refer  to  Kennedy  v.  Milliard,  10  Ir. 
Com.  Law  Rep.  (N.  S.)  195 ;  and  in  that  case  Pigott,  C.  B.,  delivered 
a  most  learned  judgment,  in  the  course  of  which  he  said :  "I  take  this 
to  be  a  rule  of  law,  not  founded  (as  is  the  protection  in  other  cases 
of  privileged  statements)  on  the  absence  of  malice  in  the  party  sued, 
but  founded  on  public  policy,  which  requires  that  a  judge,  in  dealing 
with  the  matter  before  him,  a  party  in  preferring  or  resisting  a  legal 
proceeding,  and  a  witness  in  giving  evidence,  oral  or  written,  in  a 
court  of  justice,  shall  do  so  with  his  mind  uninfluenced  by  the  fear  of 
an  action  for  defamation  or  a  prosecution  for  libel."  Into  the  rule 
thus  stated  the  word  "counsel"  must  be  introduced,  and  the  rule  may 
be  taken  to  be  the  rule  of  the  common  law.  That  rule  is  founded  upon 
public  policy.  With  regard  to  the  counsel,  the  question  of  malice, 
bona  fides,  and  relevancy,  cannot  be  raised ;  the  only  question  is, 
whether  what  is  complained  of  has  been  said  in  the  course  of  the  ad- 
ministration of  the  law.  If  that  be  so,  the  case  against  a  counsel  must 
be  stopped  at  once.  No  action  of  any  kind,  no  criminal  prosecution, 
can  be  maintained  against  a  defendant,  when  it  is  established  that 
the  words  complained  of  were  uttered  by  him  as  counsel  in  the  course 
of  a  judicial  inquiry,  that  is,  an  inquiry  before  any  court  of  justice 
into  any  matter  concerning  the  administration  of  the  law.®* 

8  5  "The  authorities  are  clear,  uniform  and  conclusive  tliat  no  action  lies, 
whether  against  judges,  counsel,  witnesses,  or  parties,  for  words  spoken  in 
the  ordinary  cour.se  of  any  proceeding  before  any  court  or  tribunal  recog- 
nized liy  law.  It  is  manifest  Uiat  the  administration  of  justice  would  be 
jjaralysed  if  those  who  are  engaged  in  it  were  to  be  liable  to  actions  of  libel 
or  slander  upon  the  imputation  that  they  had  acted  maliciously  and  not 
bona  fide.  The  doctrine  is  not  confined  to  the  administration  of  justice  in 
the  sui)erior  courts.  It  has  been  applied  in  its  fullest  extent  to  county 
coui-ts.  It  applies  not  only  to  all  kinds  of  courts  of  justice,  but  to  other 
tribunals   recognised   by   law   acting  judicially.     It  has   not,   however,   been 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  6G5 

I  am  of  opinion  that  the  rule  of  law  is  such  as  I  have  pointed  out, 
that  it  ouglit  to  be  applied  in  the  present  case,  and  therefore  that  this 
action  cannot  be  maintained. 

Appeal  [by  the  plaintiff]  dismissed. 


McLaughlin  v.  cowley. 

(Supreme   Judicial   Court  of   Massachusetts,   1879.     127   Mass.  316.) 

Tort.  The  second  count  in  the  declaration  stated  in  due  form 
that  the  defendant  in  a  declaration  signed  and  filed  by  him  as  attor- 
ney for  the  plaintiff  in  an  action  brought  by  one  Leggate  against 
one  Moulton  had  falsely  and  maliciously  charged  the  present  plaintiff 
with  murder  and  adultery.  The  trial  resulted  in  a  verdict  for  the 
plaintiff,  and  the  defendant  alleges  exceptions. "'^ 

Lord,  J.  It  was  stated  in  the  opinion  of  this  court  in  the  recent 
case  of  Rice  v.  Coolidge,  121  Mass.  393,  23  Am.  Rep.  279,  that  it 
seems  to  be  settled  by  the  English  authorities  that  judges,  counsel, 
parties  and  witnesses  are  absolutely  exempted  from  liability  to  an 
action  for  defamatory  words  published  in  the  course  of  judicial  pro- 
ceedings; and  that  the  same  doctrine  is  generally  held  in  the  Ameri- 
can courts,  with  the  qualification,  as  to  parties,  counsel  and  witnesses, 
that  their  statements  made  in  the  course  of  an  action  must  be  pertinent 
and  material  to  the  case.  The  doctrine  thus  qualified  was  set  forth  by 
Shaw,  C.  J.,  in  an  elaborate  opinion,  in  Hoar  v.  Wood,  3  ]\Ietc.  193. 
The  qualification  of  the  English  rule  is  adopted  in  order  that  the  pro- 
tection given  to  individuals  in  the  interest  of  an  efficient  administra- 
tion of  justice  may  not  be  abused  as  a  cloak  from  beneath  which  to 
gratify  private  malice.  The  question  presented  by  the  first  excep- 
tion in  this  case  depends  upon  the  proper  application  of  this  rule. 

A  careful  examination  of  the  declaration  in  the  case  of  Leggate 
against  Aloulton  shows  that  that  action  was  brought  to  recover  dam- 
ages for  losses  sustained  by  Leggate  in  consequence  of  employing 
McLaughlin,  the  plaintiff  in  the  case  at  bar,  as  her  agent;  and  that 
he  was  so  employed  because  Leggate  believed  certain  false  represen- 
tations made  by  Moulton  as  to  McLaughlin's  trustworthiness  and  fit- 
ness for  the  agency.  The  declaration  sets  forth  the  representations 
made,  alleges  that  they  were  false  and  that  Moulton  knew  it,  and 
then  proceeds  with  the  statements  which  are  here  charged  to  be  li- 
bellous.    These  statements   relate  to   matters  not  mentioned  in   the 

extended  further  than  to  courts  of  justice  and  tribunals  acting  in  .a  manner 
similar  to  that  in  which  such  courts  act."  18  Halsbury's  Laws  of  England, 
678-681  (1911),  and  cases  there  cited. 

8  0  The  statement  of  the  case  is  abridged,  and  a  portion  of  the  opinion, 
dealing  with  other  questions,  is  omitted.  The  defendant's  excoiitions  were 
sustained  for  error  in  the  admission  of  testimony  under  a  plea  of  justification. 


GG6  TORTS   TUROUGH   ACTS   OP    ABSOLUTE   LIABILITY  (Part  1 

representations  made  by  Moulton.  They  do  not  directly  negative  the 
truth  of  any  of  his  representations,  and  were  not  necessary  nor  ma- 
terial to  a  full  and  complete  presentation  of  the  case  on  which  Leg- 
gate  asked  for  damages.  The  ground  of  action  was  not  strengthened 
by  adding  them,  nor  did  they  furnish  any  basis  for  enhancing  the 
damages  which  might  be  recovered.  They  were  not  pertinent  to  the 
action,  and  were  struck  out  of  the  declaration,  by  the  court,  on  motion 
of  Moulton.  They  contained  charges  against  the  present  plaintiff 
of  criminal  conduct  of  the  grossest  character. 

To  hold  that  such  statements,  thus  uncalled  for  and  irrelevant,  are 
privileged,  as  part  of  pleadings  in  a  cause,  would  be  to  disregard  the 
salutary  modification  of  the  English  rule  which  has  been  made  by 
the  American  courts,'*''  and  is  stated  in  Rice  v.  Coolidge.  The  de- 
fendant stands,  therefore,  as  to  liability  to  action  on  account  of  these 
statements,  precisely  as  if  he  had  published  them  in  a  newspaper,  and 
cannot  justify,  by  showing  his  belief  that  they  were  true,  the  sources 

97  "In  England,  the  law  seems  to  be  settled  now  that  .ludges,  counsel,  par- 
ties and  witnesses  are  alisolutely  exempted  from  liabilitj'  to  an  action  for 
defamatory  words  published  in  the  course  of  judicial  proceedings  (Rice  v. 
Coolidge  [1876];  121  Mass.  303,  23  Am.  Rep.  279),  and  it  has  been  broadly  stated 
that  this  was  the  rule  at  common  law.  As  the  common  law  of  England,  as  it 
existed  down  to  the  4th  day  of  July,  1776,  is  declared  by  statute  to  be  of 
force  in  this  state,  let  us  see  what  was  the  state  of  the  common  law  prior 
to  the  time  stated.  [Mr.  Justice  Parkhill  here  reviewed  the  earlier  English 
cases  on  the  point.]  We  need  not  comment  upon  the  other  English  cases 
cited  by  counsel  for  the  defendant  in  error  further  than  to  say  that  many  of 
them  were  decided  long  after  the  4th  day  of  July,  177G,  and  only  support  the 
modern  doctrine  of  privilege  prevailing  in  that  country.  We  do  not  think 
the  rule  at  coiumon  law  sustains  the  contention  for  an  absolute  privilege 
for  defamatory  words  published  in  the  due  course  of  judicial  proceedmg. 

"In  the  United  States,  according  to  the  overwhelming  weight  of  authority, 
in  order  that  defamatory  words,  published  by  parties,  counsel,  or  witnesses 
in  the  due  course  of  a  judicial  procedure,  may  be  absolutely  privileged,  they 
must  be  connected  with,  or  relevant  or  material  to,  the  cause  in  hand  or 
subject  of  inquiry.  If  they  are  so  published  and  are  so  relevant  or  pertinent 
to  the  subject  of  inquiry,  no  action  will  lie  therefor,  however  false  or  mali- 
cious they  may  in  fact  be."  Per  Parldull,  J.,  in  Myers  v.  Hodges  (1907)  53 
I'la.  197,  44  South.  357,  301,  citing  many  cases. 

See  also  Dodge  v.  Oilman  (1013)  122  ]Minn.  177,  142  N.  W^  147,  47  L.  R.  A. 
(JN.  S.)  109S,  Ann.  Cas.  1914D,  894.  But  in  Sebree  v.  Thompson  (1007)  126  Ky. 
223,  103  S.  W.  374,  11  L.  R.  A.  (N.  S.)  723,  15  Ann.  Cas.  770,  a  dictum  inclines 
toward  the  later  Ehglish  view.  See,  in  general,  25  Cyc.  377-380;  "Libel  and 
Slander,"  Cent.  Dig.  §§  117-123,  Dec.  Dig.  Key-No.  §  38. 

The  range  of  the  principle  of  "absolute  privilege"  is  indicated  in  the  fol- 
lowing passage  from  the  considered  judgment  of  the  Court  of  Exchequer 
Chamber  in  Dawkins  v.  Lord  Rokeby  (1873)  L.  R.  8  Q.  B.  255,  268:  "What- 
ever is  said,  however  false  or  injurious  to  the  character  or  interests  of  a  com- 
plainant, by  judges  upon  the  bench,  whether  in  the  superior  courts  of  law  or 
equity,  or  in  county  courts,  or  sessions  of  tlie  peace,  by  counsel  at  the  bar 
in  pleading  causes,  or  by  witnesses  in  giving  evidence,  or  by  members  of  the 
legislature  in  either  house  of  parliament,  or  by  ministers  of  the'  Crown  in 
advising  the  Sovereign,  is  absolutely  privileged  and  cannot  be  inquired  into 
In  an  a<tion  at  law  for  defamation."  This  passage  is  quoted  by  Fry,  L.  J.,  iu 
Munster  v.  Lamb  (1883)  11  Q.  B.  D.  588,  606,  as  a  dictum  of  the  highest  value 
and  "in  my  opinion  nothing  less  than  a  declaration  of  the  common  law  on  the 
point." 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  6G7 

of  his  information,  or  his  instructions  from  his  cHent.  It  is  only 
when  words  are  published  on  an  occasion  which  makes  them  privi- 
leged, that  the  belief  of  the  publisher  that  they  are  true  can  be 
shown.     *     *     * 


SEAMAN  V.  NETHERCLIFT. 
(In  the  Court  of  Appeal,  1876.    2  0.  P.  Div.  53.) 

Appeal  from  the  decision  of  the  Common  Pleas  Division,  ordering 
judgment  to  be  entered  for  the  defendant. ^^ 

CocKBURN,  C.  J.  *  *  *  At  the  trial  before  Lord  Coleridge  it 
appeared  that  in  the  probate  suit  of  Davies  v.  May  the  defendant  had 
been  examined,  as  an  adept,  to  express  his  opinion  as  to  the  genuine- 
ness of  a  signature  to  a  will,  and  he  gave  it  as  his  opinion  that  the 
signature  was  a  forgery.  The  president  of  the  Court,  in  addressing 
the  jury,  made  some  very  strong  observations  on  the  rashness  of  the 
defendant  in  expressing  so  confident  an  opinion  in  the  face  of  the 
direct  evidence.  Soon  afterwards,  on  a  prosecution  for  forgery  be- 
fore the  magistrate,  the  defendant  was  called  as  an  adept  by  the  per- 
son charged,  when  he  expressed  an  opinion  favourable  to  the  genuine- 
ness of  the  document.  He  was  then  asked  by  the  counsel  for  the 
prosecution  whether  he  had  been  a  witness  in  the  suit  of  Davies  v. 
May.  He  answered  "Yes."  And  he  was  then  asked,  "Did  you  read 
a  report  of  the  observations  which  the  presiding  judge  made  on  your 
evidence?"  He  again  said  "Yes."  And  then  the  counsel  stopped. 
I  presume  the  circumstances  of  the  trial  were  well  known,  and  the 
counsel  thought  he  had  done  enough.  The  defendant,  the  witness, 
expressed  a  desire  to  make  a  statement.  The  magistrate  told  him 
he  could  not  hear  it.  Nevertheless  the  defendant  persisted  and  made 
the  statement,  the  subject  matter  of  this  action  of  slander. 

On  the  proof  of  these  facts  Lord  Coleridge  reserved  leave  to  the 
defendant  to  move  to  enter  judgment,  if  the  Court  should  be  of  opin- 
ion that  there  was  no  evidence  on  behalf  of  the  plaintiff  which  ought 
to  be  left  to  the  jury.     It  occurred  to  him,  however,  that  it  would 

98  Parts  of  the  opinion  are  omitted. 

Seaman  v.  Netherclift  (187 G)  1  C.  P.  D.  540.  The  pleading  in  the  case  was 
as  follows : 

Claim:  that  defendant  said  of  a  will,  to  the  signature  of  which  the  plaintiff 
wa.s  a  witness,  "I  believe  the  signature  to  the  will  to  bo  a  rank  forgery,  and 
I  shall  believe  so  to  the  day  of  my  death,"'  meaning  that  the  plaintiff  had 
been  guilty  of  forging  the  signature  of  the  testator,  or  of  aiding  and  abetting 
in  the  forgery. 

Defence:  that  defendant  spoke  the  words  in  the  course  of  giving  his 
evidence  as  a  witness  on  a  charge  of  forgery  before  a  magistrate. 

Reply :  that  the  words  were  not  bona  tide  spoken  by  delendant  as  a  wit- 
ness, or  in  answer  to  any  question  put  to  him  as  a  witness,  and  ho  was  a 
mere  volunteer  in  speaking  them  for  liis  own  purposes  otiierwise  than  as  a 
witness  and  maliciously  and  out  of  the  course  of  his  examination. 


668  TORTS  THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

be  as  well  to  take  the  opinion  of  the  jury,  and  they  found  that  the 
replication  was  true,  viz.  that  the  words  were  spoken  not  as  a  wit- 
ness in  the  course  of  the  inquiry,  but  maliciously  for  his  own  pur- 
pose, that  is,  with  intent  to  injure  the  plaintiff.  Upon  these  findings 
judgment  was  entered  for  the  plaintiff',  leave  being  again  reserved 
to  enter  judgment  for  the  defendant,  and  the  Court  of  Common  Pleas 
gave  judgment  for  the  defendant. 

Now,  if  the  findings  of  the  jury  had  been  founded  upon  evidence 
by  which  they  could  have  been  supported,  I  might  have  had  some 
hesitation  about  the  decision.  But  they  were  not;  and  we  are  asked 
to  come  to  a  conclusion  contrary  to  what  has  been  established  law 
for  nearly  three  centuries. 

If  there  is  anything  as  to  which  the  authority  is  overwhelming  it 
is  that  a  witness  is  privileged  to  the  extent  of  what  he  says  in  the 
course  of  his  examination.  Neither  is  that  privilege  affected  by  the 
relevancy  or  irrelevancy  of  what  he  says ;  for  then  he  would  be 
obliged  to  judge  of  what  is  relevant  or  irrelevant,  and  questions  might 
be,  and  are,  constantly  asked  which  are  not  strictly  relevant  to  the 
issue.  But  that,  beyond  all  question,  this  unqualified  privilege  extends 
to  a  witness  is  established  by  a  long  series  of  cases,  the  last  of  which 
is  Dawkins  v.  Lord  Rokeby  [1875]  Law  Rep.  7  H.  L.  744,  after 
which  to  contend  to  the  contrary  is  hopeless.  It  was  there  expressly 
decided  that  the  evidence  of  a  -witness  with  reference  to  the  inquiry 
is  privileged,  notwithstanding  it  may  be  malicious;  and  to  ask  us 
to  decide  to  the  contrary  is  to  ask  what  is  beyond  our  power.  But 
I  agree  that  if  in  this  case,  beyond  being  spoken  maliciously  the 
words  had  not  been  spoken  in  the  character  of  a  witness  or  not  while 
he  was  giving  evidence  in  the  case,  the  result  might  have  been  dif- 
ferent. For  I  am  very  far  from  desiring  to  be  considered  as  laying 
down  as  law  that  what  a  witness  states  altogether  out  of  the  char- 
acter and  sphere  of  a  witness,  or  what  he  may  say  dehors  the  mat- 
ter in  hand,  is  necessarily  protected.  I  quite  agree  that  what  he  says 
before  he  enters  or  after  he  has  left  the  witness-box  is  not  privileged, 
which  was  the  question  in  the  case  before  Lord  Ellenborough,  Trot- 
man  V.  Dunn  [1815]  4  Camp.  211.  Or  if  a  man  when  in  the  witness- 
box  were  to  take  advantage  of  his  position  to  utter  something  having 
no  reference  to  the  cause  or  matter  of  inquiry  in  order  to  assail  the 
character  of  another,  as  if  he  were  asked :  "Were  you  at  York  on 
a  certain  day?"  and  he  were  to  answer:  "Yes,  and  A.  B.  picked 
my  pocket  there;"  it  certainly- might  well  be  said  in  such  a  case  that 
the  statement  was  altogether  dehors  the  character  of  witness,  and 
not  within  the  privilege. 

If,  therefore,  the  findings  of  the  jury,  that  the  defendant  had 
ceased  to  be  a  witness  when  he  spoke  the  words,  were  justified  by  the 
evidence,  I  should  hesitate  before  I  decided  in  his  favour.  But  I 
think  the  defendant  was  entitled  to  judgment  on  the  first  reservation. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  GG9 

There  was  no  evidence  to  go  to  the  jury  upon  the  plaintiff's  case. 
What  the  defendant  said  was  said  in  his  character  of  witness ;  for 
there  can  be  no  doubt  that  the  words  were  spoken  in  consequence 
of  the  question  put  to  him  by  counsel  for  the  prosecution,  the  object 
and  effect  of  the  cross-examination  having  been  to  damage  his  credi- 
bility as  a  witness  before  the  magistrate,  and  of  this  the  witness  was 
conscious.  The  counsel,  having  put  the  question,  stops ;  and  if  there 
had  been  counsel  present  for  the  prisoner  who  had  re-examined  the 
witness,  he  would  have  put  the  proper  questions  to  rehabilitate  him 
to  the  degree  of  credit  to  which  he  was  entitled.  That  such  questions 
would  have  been  relevant  I  cannot  bring  myself  for  a  moment  to 
doubt,  relating  as  they  do  to  the  credibility  of  the  witness,  which  is 
part  of  the  matter  of  which  the  magistrate  has  to  take  cognizance. 
That  being  so,  the  witness  himself,  who  is  sworn  to  speak  the  whole 
truth,  is  properly  entitled,  not  only  with  a  view  to  his  own  vindica- 
tion, but  in  the  interests  of  justice,  to  make  such  an  observation  in 
explanation  of  his  former  answer  as  is  just  and  fair  under  the  cir- 
cumstances. That  is  what  the  defendant  did.  The  sitting  magistrate 
having  allowed  the  disparaging  question  to  be  put  and  answered, 
ought  not  to  have  interfered  to  prevent  the  defendant  from  giving 
an  explanation.  I  think  the  statement,  coming  immediately  after  the 
damaging  question  had  been  put  to  him,  must  be  taken  to  be  part  of 
his  testimony  touching  the  matter  in  question,  as  it  affects  his  cred- 
ibility as  a  witness  in  the  matter  as  to  which  he  was  called.  It  was 
given  as  part  of  his  evidence  before  he  had  become  divested  of  his 
character  of  witness ;  and  but  for  the  question  of  the  opposite  coun- 
sel he  never  would  have  made  the  statement  at  all.     *     *     * 

In  my  opinion,  the  Lord  Chief  Justice  should  have  nonsuited  the 
plaintilt,  which  is  the  conclusion  at  which  the  Court  of  Common 
Pleas  ultimately  arrived ;  for  there  really  w^as  no  evidence  that  the 
defendant  was  speaking  otherwise  than  as  a  witness  and  relevantly  ^^ 

»9  On  this  point  in  tlie  case,  Bramwell,  J.  A.,  concurring  with  Cockbura, 
C.  J.,  remarked:  "I  am  by  no  means  sure  that  the  word  'relevant'  is  the 
best  word  that  could  be  used :  the  phrases  used  by  the  Lord  Chief  Baron 
and  the  Lord  Chancellor  in  Dawkins  v.  Lord  Rokeby  (1S75)  Law  Rep.  7  H. 
L.  at  page  744,  would  seem  preferable,  'having  reference,'  or  'made  with 
reference  to  the  inquiry.'  Now,  were  the  judges  of  the  Common  Pleas  Di- 
vision right  in  holding  that  this  statement  of  the  defendant  had  reference  to 
the  inquiry?  I  think  that  they  were.  There  can  be  no  doubt  that  the  ques- 
tion put  bj  the  cross-examining  counsel  ought  not  to  have  been  allowed : 
'Have  you  read  what  Sii*  James  Hanneij  is  reported  to  have  said  as  to  your 
evidence  in  Davies  v.  May?'  What  Sir  James  Hannen  had  said  in  a  former 
case  was  not  evidence.  It  was,  therefore,  an  improper  question,  and  the 
answer  to  it,  if  untrue,  would  not  have  subjected  the  witness  to  an  indictment 
for  perjury.  But  the  question  having  been  put,  and  the  answi-r  having  been 
in  the  affirmative— and  the  question  being,  as  Lord  Coleridge  observed,  'in- 
geniously suggestive,'  viz.,  that  the  way  the  defendant  had  been  dealt  with  on 
the  former  occasion  did  not  redound  to  his  credit  as  a  witness — the  de- 
fendant insisted  on  making  in  addition  the  statement  complained  of.  He  did 
so,  in  my  opinion,  very  foolishly.  It  would  have  been  better  to  have  been 
satisfied  with  retaining  his  own  opinion  without  setting  it  up  in  direct  op- 


670  TORTS  THROUGH  ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

to  the  matters  in  issue,  because  relevantly  to  his  own  character  and 
credibility  as  a  witness  in  the  matter.  That  being  so,  even  if  express 
malice  could  have  been  properly  inferred  from  the  circumstances,  the 
case  of  Dawkins  v.  Lord  Rokeby,  Law  Rep.  7  H.  L.  744,  conclusively 
decides  that  malice  has  ceased  to  be  an  element  in  the  consideration 
of  such  cases,  unless  it  can  be  shewn  that  the  statement  was  made 
not  in  the  course  of  giving-  evidence,  and  therefore  not  in  the  char- 
acter of  a  witness.  A  long  series  of  authorities,  from  the  time  of 
Elizabeth  to  the  present  time,  has  established  that  the  privilege  of  a 
witness  while  giving  evidence  is  absolute  and  unqualified.  *  *  * 
The  judgment  of  the  Common  Pleas  must  therefore  be  affirmed. 

position  to  the  positive  testimony  of  eyewitnesses.  But  he  foolishly,  as  I  think, 
and  coarsely  exclaimed,  'I  believe  that  will  to  be  a  rank  forjrery,  and  shall 
believe  so  to  the  day  of  my  death.'  Suppose  after  he  had  said  'yes,'  he  had 
added  in  a  decent  and  becoming  manner,  'and  I  am  sorry  Sir  James  Hannen 
said  what  he  did,  for  I  took  great  pains  to  form  my  own  opinion,  and  T 
shall  always  retain  it,  as  1  still  think  it  right.'  Would  not  tliat  have  had 
reference  to  the  inquiry  before  the  magistrate?  And  would  it  not  have  been 
reasonable  and  right  that  the  witness  should  have  added  that  statement  in 
justification  of  himself?  Surely,  yes.  Mr.  Clarke  said  he  was  prepared  to 
maintain  that  as  long  as  a  witness  spoke  as  a  mtness  in  the  udtness-box, 
he  was  protected,  whether  the  matter  had  reference  to  the  inquiiy  or  not.  1 
am  reluctant  to  affinn  so  extreme  a  proposition.  Suppose  while  the  witness 
is  in  the  box,  a  man  were  to  come  in  at  the  door,  and  the  witness  were  to 
exclaim,  'that  man  picked  my  pocket.'  I  can  hardly  think  that  would  be 
privileged.  I  can  scarcely  think  a  witness  would  be  protected  for  anything 
he  might  say  in  the  witness-box,  wantonly  and  without  reference  to  the  in- 
quiry. I  do  not  say  he  would  not  be  protected.  It  might  be  held  that  it  was 
better  that  everything  a  witness  said  as  a  witness  should  be  protected,  than 
that  v\itnesses  should  be  under  the  impression  that  what  they  said  in  the 
witness-box  might  subject  them  to  an  action.  I  certainly  should  pause  before 
I  affirmed  so  extreme  a  proposition,  but  without  affirming  that,  I  think 
the  words  'having  reference  to  the  inquiry'  ought  to  have  a  very  wide  and 
comprehensive  application,  and  ought  not  to  be  limited  to  statements  for 
which,  if  not  true,  a  witness  might  be  indicted  for  perjury,  or  the  exclusion 
of  which  by  the  judge  would  give  ground  for  a  new  trial;  but  ought  to  ex- 
tend to  that  which  a  witness  might  naturally  and  reasonably  say  when  giving 
evidence  with  reference  to  the  inquiry  as  to  which  he  had  been  called  as  a 
witness.  Taking  that  view,  I  think  the  first  proposition  is  established,  that 
the  statement  of  the  defendant  was  made  as  witness  and  had  reference  to 
the  inquiry." 

Amphlett,  J.  A.,  also  concurring,  remarked :  "How  it  would  have  been 
if  this  statement  had  been  volunteered  by  the  defendant,  without  it  being 
necessary  or  in  any  way  arising  from  questions  he  had  been  asked,  we  need 
not  express  any  opinion.  In  such  a  case  it  may  be  tliat  the  words  would  not 
have  been  spoken  in  his  office  of  a  witness.  I  must  by  no  means  be  taken 
as  expressing  an  opinion  that  in  such  a  case  the  witness  would  not  be  pro- 
tected. I  can  see  many  reasons  why  a  witness  should  be  absolutely  protected 
for  anything  he  said  in  the  witness  box.  If  he  did  voluntarily  make  a 
scandalous  attack  wliile  giving  evidence,  he  would  be  guilty  of  a  gross  con- 
ttempt  of  Court,  and  might  be  committed  to  prison  by  the  presiding  judge; 
or  if  he  were  before  an  inferior  tribunal,  and  he  persevered  in  his  scandalous 
statements,  he  might  be  liable  to  an  indictniont  for  obstructing  the  course 
of  justice.     But  this  question  does  not  arise  here." 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  671 

LAMBERSON  v.  LONG. 

(St.  Louis  Court  of  Appeals,  Missouri,  1806.     66  Mo.  App.  253.) 

The  action  was  slander.  The  petition  charged  that  the  defendant, 
in  the  presence  and  hearing  of  others,  spoke  of  and  concerning  the 
plaintiff  certain  words  which  imputed  to  the  plaintiff  the  crime  of 
larceny.  There  was  an  answer  in  denial,  with  a  verdict  for  the  plain- 
tiff.    The  defendant  appealed.^ 

RoMBAUKR,  P.  J.  *  *  *  The  assignment  of  error  mainly  re- 
lied on  arises  upon  the  refusal  of  three  instructions  asked  by  the  de- 
fendant, all  of  which  were  to  the  effect  that,  if  the  jury  found  that 
the  words  charged  to  have  been  spoken  were  spoken  by  the  defendant 
while  he  was  being  cross-examined  as  a  witness,  and  that  he  was 
merely  undertaking  to  repeat,  in  answer  to  a  question  asked  him,  what 
he  had  said  to  plaintiff  in  a  former  difficulty  between  them,  the 
plaintiff  could  not  recover. 

There  was  no  controversy  touching  the  fact  that  the  actionable 
words  were  spoken  by  the  defendant  while  he  was  being  cross-exam- ' 
ined  as  a  watness  in  a  legal  proceeding.  There  is,  however,  no  pre- 
tense that  they  were  responsive  to  any  question  propounded  to  him, 
and  a  careful  analysis  of  the  evidence  has  satisfied  us  that  there  is 
no  substantial  evidence  in  the  record  that  they  were  intended  by 
him  to  be  a  mere  repetition  of  what  he  had  formerly  stated.  We  have 
very  fully  examined  the  law  touching  the  privileged  remarks  of  wit- 
nesses in  the  recent  case  of  Crecelius  v.  Bierman,  59  Mo.  App.  513, 
and  have  there  fully  defined  the  character  and  extent  of  such  a  priv- 
ilege. Under  that  definition  the  utterance  complained  of  could  not 
be  absolutely  privileged,  because  it  was  not  responsive  to  any  question 
propounded  by  counsel,  nor  did  it  fairly  arise  out  of  any  question  pro- 
pounded by  counsel.  It  is  well  settled  that  a  remark  made  by  a  wit- 
ness in  the  box,  wholly  irrelevant  to  the  matter  of  inquiry  and  un- 
called for  in  any  question  of  counsel,  but  introduced  by  the  witness 
maliciously  for  his  own  purposes,  will  not  be  privileged.  Odgers  on 
Libel  and  Slander,  top  page  144.  In  order  to  make  a  statement  which 
is  not  responsive  to  a  question,  and  which  is  irrelevant  to  the  issue, 
relatively  privileged,  it  is  incumbent  upon  the  defendant  to  satisfy 
the  jury  that  the  statement  was  made  by  the  witness  because  he  deem- 
ed it  relevant  on  reasonable  grounds,  and,  moreover,  that  the  witness 
believed  the  statement  to  be  true.  Had  the  instructions  refused  con- 
tained these  qualifications,  it  would  have  been  error  to  refuse  them, 
since  there  was  evidence  in  the  case  supporting  that  hypothesis.  As 
they  did  not  contain  these  qualifications,  but  were  based  upon  a 
hypothesis  unsupported  by  any  substantial  evidence  in  the  record,  we 
can  not  put  the  trial  court  in  the  wrong  for  refusing  them. 

1  The  statement  of  the  case  is  abridged  and  part  of  the  opinion  is  omitted. 


672  TORTS  THROUGH   ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 

It  thus  appears  that  neither  of  the  errors  assigned  are  well  assigned, 
and  hence  the  judgment  must  be  affirmed.  So  ordered.  All  the 
judges  concur,  Judge  Bond  in  the  result.^ 

2  Compare  White  v.  Carroll  (1870)  42  N.  T.  1(51,  1  Am.  Rep.  50.3 :  (White 
was  a  homeopathic  doctor;  Carroll,  an  allopathic  doctor.  The  latter  was  tes- 
tifying as  a  witness  on  an  issue  as  to  the  sanity  of  a  testator,  whom  he  had 
attended.  He  was  asked,  "Did  any  other  physician  attend  him  then?" 
The  answer  was:  "Not  as  I  know  of.  I  understand  he  had  a  quack,  I  would 
not  call  him  a  physician;  I  understootl  tliat  Dr.  White,  as  he  is  called,  had 
been  there."  The  Court  held  that  this  answer  was  not  material  and  perti- 
nent to  the  enquiry,  tliat  it  was  privileged  if  the  defendant  when  he  gave  it 
believed  in  good  faith  that  it  was,  and  that  whether  he  so  believed  was  a  ques- 
tion of  fact  for  the  jury.)  See  Grover,  J.,  in  Marsh  v.  Ellsworth  (1S72)  50 
N.  Y.  309,  318. 

See  also  the  remark  of  Fields,  J.,  in  Wright  v.  Lothrop  (1889)  149  Mass. 
385,  389,  21  N.  E.  903,  965:  "The  examination  of  witnesses  is  reguhited  by 
the  tribunal  before  which  they  testify,  and  if  witnesses  answer  pertinently 
questions  asked  them  by  counsel  which  are  not  excluded  by  the  tribunal,  or 
answer  pertinently  questions  asked  them  by  the  tribunal,  they  ought  to  be 
absolutely  protected.  It  is  not  the  duty  of  a  witness  to  decide  for  himself 
whether  the  questions  asked  him  under  the  direction  of  the  tribunal  are 
relevant.  As  the  witness  is  sworn  to  tell  the  whole  truth  relating  to  the 
matter  concerning  which  his  testimony  is  taken,  he  ought  also  to  be  absolutely 
protected  in  testifying  to  any  inatter  which  is  relevant  to  the  inquiry,  or 
which  he  reasonably  believes  to  be  relevant  to  it.  But  a  witness  ought  not 
to  be  permitted  with  impunity  to  volunteer  defamatory  statements  which 
are  irrelevant  to  the  matter  of  iuqviiry,  and  which  he  does  not  believe  to  be 
relevant.  This  statement  of  the  law,  we  think,  is  supported  by  the  decisions 
in  this  Commonwealtli.  The  English  decisions,  ])erha])s,  go  somewhat  further 
than  this  in  favor  of  a  witness :  certainly  they  apply  the  rule  liberally  for 
his  protection." 

In  Buschbaum  v.  Heriot)  (1909)  5  Ga.  App.  521,  m  S.  E.  645,  Russell,  J., 
remarked:  "The  fact  that  a  witness,  without  inquiry,  and  influenced  by  mal- 
ice, volunteers  false  testimony  defamatory  of  another,  the  immateriality 
of  which  is  apparent  to  any  ordinary  mind,  is  such  a  circuuistance  as  places 
the  testimony  of  the  witness  in  the  class  of  conditional  privilege,  where  he  is 
no  longer  shielded  by  the  law,  unless  it  be  made  to  appear  that  he  bona  lide 
believes  that  the  facts  stated  by  him  are  true,  and  unless  with  at  least  some 
show  of  reason  he  is  of  opinion  that  his  testimony  is  material.  What  we  have 
said  relates  wholly  to  such  testimony  as  is  inunaterial,  and  not  only  imma- 
terial but  vohmteered  by  the  witness,  because,  in  a  case  where  the  testi- 
mony is  given  in  direct  response  to  a  question  pi'opounded  by  an  officer  of  the 
court,  the  witness  is  not  to  be  the  judge  of  tlie  materiality  of  his  answer, 
but  is  required  to  answer  the  question,  if  it  is  not  olijectecl  to  or  is  not  self- 
incriminatory,  'i'ertinent  matter  in  pleadings,  motions,  aflidavits,  and  other 
papers  in  any  judicial  proceeding  is  alisolutely  privileged,  though  false  and 
malicious.  And  in  determining  whether  matter  is  pertinent  or  not  the  court 
will  indulge  in  no  strained,  technical,  or  close  construction  to  deprive  the 
defendant  of  tlie  protection  of  the  privilege.'  1  Cooley  on  Torts  (3d  Ed.)  A:V2, 
§  251.  This  rule,  which  applies  especially  to  parties,  is  rather  extended  than 
restricted  in  favor  of  the   witness." 

But  see  Ilunckel  v.  VoneiCf  (1889)  C9  Md.  179,  14  Atl.  500,  17  Atl.  1050.  9 
Am.  St.  Rep.  413:  "It  was  i>erfectly  comix^tent  for  this  court,  having  the 
questions  before  them  for  the  hrst  time  in  tliese  cases,  to  follow  an<l  adopt 
the  current  of  the  American  decisions  in  regard  to  the  privilege  of  the  ad- 
vocate, and  to  follow  and  adopt  the  rule  of  the  English  courts  as  regards  the 
privilege  of  the  witness.  This  is  what  has  been  done,  and  it  does  not  seem 
to  me  that  the  privileges  of  the  two  are  so  tied  together,  either  by  reason  or 
authority,  as  to  make  these  decisions  inconsistent  and  irreconcilable."  Per 
Miller,  .r. 

For  the  principle  in  other  than  judicial  i)r()ceedings,  see  an  article  by  .Tudge 
Van    Vechten    Veeder   in   10   Columbia  Law   Rev.   131   (1910),   on   "Absolute 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  673 

Bond,  J.  Being  unable  to  agree  to  all  the  expressions  used  in  the 
opinion  of  my  associates,  it  becomes  necessary  to  state  separately 
my  views  of  the  law  applicable  to  this  case : 

I.  A  statement  made  by  a  witness  in  a  judicial  proceeding  is  pre- 
sumptively privileged.  If  the  statement  is  relevant,  or  believed  on 
reasonable  ground  to  be  relevant  to  the  issues  on  trial,  or  if  it  is 
responsive  to  an  inquiry  by  court  or  counsel,  the  privilege  becomes 
absolute  irrespective  of  the  intent  of  the  utterer. 

II.  To  overcome  the  prima  facie  presumption  of  privilege  arising 
from  the  occasion,  it  is  incumbent  on  the  plaintiff  (in  an  action  of 
slander  or  libel)  to  show  that  the  statement  of  the  witness  was  not 
responsive  to  a  question  asked  by  the  court  or  counsel,  and  that  it 
was  not  believed  on  reasonable  grounds  to  be  relevant  to  the  issues 
on  trial.  If  the  jury  believes  the  evidence  adduced  to  this  effect,  all 
presumption  arising  from  the  fact  that  the  statement  was  made  under 
examination  in  court  ceases,  and  the  statement,  if  actionable  per  se, 
will  authorize  a  recovery.  These  principles  are  sustained  by  the 
cases  cited  in  my  opinion  in  Crecelius  v.  Bierman,  59  Mo.  App.  513. 
As  defendant's  instructions  did  not  conform  to  these  rules,  they  were 
properly  refused. 


KEELEY  V.  GREAT  NORTHERN  RY.  CO. 
(Supreme  Court  of  Wisconsin,  1914.    156  Wis.  181,  145  N.  W.  664.) 

The  action  was  against  the  Great  Northern  Railway  Company  for 
defamation.  A  demurrer  to  the  complaint  was  sustained,  and  the 
plaintiff  appealed. 

The  complaint,  in  substance,  set  forth  that  in  1907  the  husband  of 
plaintiff,  while  in  the  employment  of  defendant,  was  killed  in  conse- 
quence of  defendant's  negligence ;  that  she  brought  an  action  against 
the  defendant  for  damages  under  the  death  statute,  and  recovered 
after  a  trial  in  which  she  was  a  witness  in  her  own  behalf  with  refer- 
ence to  fonnal  and  uncontested  points,  and  in  which  an  employe  of 
the  defendant  was  called  as  a  witness  for  the  plaintiff,  and  gave  rele- 
vant and  material  testimony  tending  to  establish  the  liability  of  de- 
fendant. After  verdict  for  the  plaintiff  defendant  moved  for  a  new 
trial.    Attached  to  and  made  part  of  the  motion  papers  was  an  affida- 

Immunity  in  Defamation :  I^egislative  and  Executive  Proceedinsrs,"  and  see 
the  same  topics  in  18  Halsbury's  Laws  of  England,  683,  684  (1911). 

The  nature  and  extent  of  legislative  immunity  is  effectively  presented  in 
CJhief  Justice  Parsons'  opinion  in  Coffin  v.  Coffin  (180S)  4  Mass.  1,  3  Am.  Dec. 
189.  The  case  is  the  more  valuable  in  that  it  marks  the  limits  of  a  very 
wide  principle. 

For  the  application  of  the  principle  in  official  communications  b.v  executive 
officers  of  the  government,  see  Chatterton  v.  Secretary  of  State,  [1895]  2 
Q.  B.  189. 

Hepb. Torts — 4-3 


G74  TORTS   THROUGH   ACTS   OP  ABSOLUTE   LIABILITY  (Part  1 

vit  of  one  Sandager,  a  detective  in  the  employment  of  defendant,  made 
in  1908,  reflecting  upon  the  chastity  of  the  plaintiff.  It  is  averred  that 
this  affidavit  and  the  statement  above  referred  to  were  wholly  and  en- 
tirely immaterial,  irrelevant,  and  not  pertinent  to  any  issues  involved  in 
the  action  or  on  said  motion,  and  that  the  affidavit  and  statements  were 
not  material,  pertinent,  or  relevant  to  any  matter  or  subject  in  the 
action,  or  considered,  or  proper  to  be  considered,  on  said  motion,  and 
that  neither  the  affidavit,  nor  any  of  the  statements  therein  contained, 
nor  any  of  the  statements  quoted  therefrom,  were  proper  to  be  used 
or  filed  in  said  action  or  upon  said  motion,  which  facts  were  well 
known  to  the  defendant  and  its  attorneys  at  and  prior  to  the  time  of 
making  and  filing  said  affidavit  and  statements.  The  defendant,  act- 
ing through  its  attorneys. at  the  hearing  of  the  motion  for  a  new  trial, 
read  said  affidavit  and  statements  in  open  court.  The  presiding  judge 
filed  an  order  denying  defendant's  motion  for  a  new  trial,  which  order 
contained  the  following  statement:  "The  affidavits  of  Zearfoss,  Barr, 
and  Sandager  presented  by  defendant's  counsel,  in  the  opinion  of  this 
court,  are  improper  and  ought  not  to  be  considered,  and  they  are  not 
considered  on  the  decisions  of  the  several  motions."  This  order  and 
the  decision  of  the  circuit  judge  were  affirmed  by  the  Supreme  Court. 
On  the  day  the  affidavit  was  presented  and  filed  in  the  circuit  court 
plaintiff  caused  to  be  served  on  the  defendant  a  notice  in  writing,  ad- 
vising the  defendant  of  the  filing  of  the  libelous  afiidavit  and  state- 
ments by  its  attorneys,  but  the  defendant,  after  receipt  of  this  notice 
by  and  through  its  attorneys,  caused  and  procured  said  affidavit  con- 
taining the  alleged  libelous  statements  to  be  filed  in  the  office  of  the 
clerk  of  the  circuit  court,  and  thereafter  to  be  filed  with  the  clerk  of 
the  Supreme  Court,  and  made  no  eft'ort  or  request  to  withdraw  from 
the  files  said  affidavit  and  such  statements  therein  contained.  It  is 
further  averred  that  the  acts  and  conduct  of  Sandager  and  of  said  at- 
torneys were  fully  ratified  by  the  defendant,  and  that  the  said  acts 
and  conduct  were  malicious,  vindictive,  and  with  the  intention  and  for 
the  purpose  of  destroying  the  good  name  and  reputation  of  the  plain- 
tiff, and  to  cause  her  disgrace  and  degradation.  It  is  also  averred  that 
the  plaintiff  has  always  been,  and  is  now,  a  woman  of  chaste  character 
and  of  good  reputation. 

Timlin,  J.3  *  *  *  it  is  contended  here  that  the  demurrer  ad- 
mits these  averments  of  the  complaint  which  charged  lack  of  good 
faith,  want  of  reasonable  belief  in  the  truth  of  the  affidavit  made 
against  the  plaintiff,  and  knowledge  on  the  part  of  the  defendant  that 
the  affidavit  in  question  was  false  and  malicious;   hence  that  the  de- 

8  In  the  omitted  portion  of  the  opinion  it  was  held  that  the  statement,  in 
the  defendant's  affidavit  for  a  new  trial,  that  illicit  relations  existed  between 
the  plaintiff  and  her  prinripal  wifness,  was  relevant,  since  on  the  trial  the 
witness  appeared  to  be  disinterested.  And  "the  fact  that  the  .indge  apparently 
dis-ipproved  of  this  attack  upon  the  reputation  of  the  plaintiff,  and  also  denied 
the  motion  for  a  new  trial,  as  he  lawfully  uiisht  do,  is  immaterial." 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN   TRESPASSES  C75 

fendant  cannot  shelter  itself  behind  a  plea  of  privilege.  This  would 
be  true  as  to  conditional  privilege.  But  this  complaint  shows  on  its 
face  that  the  court  had  jurisdiction  to  entertain  the  motion,  and  that 
the  matter  complained  of  was  relevant  to  the  inquiry  upon  this  motion, 
and  in  this  respect  shows  a  case  of  absolute  privilege  within  the  rule 
of  Jennings  v.  Paine,  4  Wis.  358;  Calkins  v.  Sumner,  13  Wis.  193, 
80  Am.  Dec.  738;  Larkin  v.  Noonan,  19  Wis.  82;  Schultz  v.  Strauss, 
127  Wis.  325,  106  N.  W.  1066,  7  Ann.  Cas.  528.  The  cases  of  Cottrill 
V.  Cramer,  43  Wis.  242,  Eviston  v.  Cramer,  47  Wis.  659,  3  N.  W.  392, 
and  Cochran  v.  Melendy,  59  Wis.  207,  18  N.  W.  24,  were  cases  of  com- 
munications conditionally  privileged,  and  are  not  in  point  here. 

In  order  to  bring  a  witness,  counsel,  or  party  in  a  litigation  within 
the  rule  of  absolute  privilege  it  is  only  necessary  to  show  that  the  al- 
leged slanderous  or  libelous  words  at  the  time  vvhen  made  or  pub- 
lished were  clearly  relevant  to  the  pending  legal  inquiry  in  which  they 
were  uttered  or  used.  Nothing  less  than  this  would  be  an  adequate 
protection.  Ogders  on  Libel  and  Slander,  p.  191 ;  Hoar  v.  Wood,  3 
Mete.  (Mass.)  193;  Laing  v.  Mitten,  185  ]Mass.  233,  70  N.  E.  128. 
\Miere  slanderous  or  libelous  words  employed  in  such  a  proceeding 
are  irrelevant,  they  fall  within  the  rule  of  conditional  privilege,  and 
if  they  are  shown  to  be  false,  and  not  put  forward  with  any  bona  fide 
belief  in  their  truth  or  their  relevancy,  or  any  other  ground  of  actual 
malice  be  shown,  the  conditional  privilege  is  lost  and  the  utterer  liable. 
Without  approving  everything  said  therein  we  may  here  cite  Myers 
V.  Hodges,  53  Fla.  197,  44  South.  357;  Lauder  v.  Jones,  13  N.  D.  525, 
101  N.  W.  907.  In  some  of  the  cases  and  text-books  cited  the  dis- 
tinction between  absolute  and  conditional  privilege  is  not  accurately 
stated  as  in  Xewell  on  Defamation,  Slander  and  Libel,  p.  423 ;  but 
see  page  425  of  the  same  work.  Cases  from  other  courts  may  also  be 
found  which  ignore  the  distinction  between  absolute  and  conditional 
privilege,  here  made  to  rest  upon  the  nature  of  the  judicial  proceed- 
ing and  the  relevancy  of  the  matter  complained  of.  But  such  cases 
are  not  the  law  of  this  state. 

In  legal  proceedings,  if  the  matter  be  relevant  but  false  in  fact,  the 
law  undertakes  to  punish  for  perjury,  but  civil  damages  are  not  recov- 
erable. If  irrelevant,  false,  and  uttered  or  published  with  express 
malice,  damages  may  be  recovered  in  a  civil  action.  If  irrelevant  and 
false,  but  uttered  or  published  without  actual  as  contradistinguished 
from  imputed  malice,  it  usually  falls  within  the  rule  of  conditional 
privilege,  depending  somewhat  upon  the  degree  of  its  irrelevancy ; 
for  if  the  matter  is  very  obviously  irrelevant,  that  circumstance  may 
impugn  the  good  faith  of  the  utterer  or  publisher,  and  either  take  the 
case  out  of  the  rule  of  conditional  privilege  or  be  considered  evidence 
to  support  a  finding  of  express  malice.  Sherwood  v.  Powell,  61  Minn. 
479,  63  N.  W.  1103,  29  L.  R.  A.  153,  52  Am.  St.  Rep.  614;  McLaugh- 
lin V.  Cowley,  127  Mass.  316;   s.  c,  131  ^lass.  70. 

Order  affirmed. 


676  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

WATSON  V.  McEWAN. 
SAME  V.  JONES. 

(House  of  Lords.     [190.5]  A.  C.  480.) 

Appeal  from  the  Second  Division  of  the  Court  of  Session,  Scotland. 

The  appellant  was  Sir  Patrick  H.  Watson,  a  doctor  of  medicine; 
and  the  respondents  were  respectively  Jessie'  Prentice  Jones  or  Mc- 
Ewan,  wife  of  Thomas  McEwan,  and  her  father,  James  Jones.  The 
ground  of  the  actions  was  that  the  appellant,  while  being-  examined  as 
a  witness  in  an  action  of  separation  brought  by  the  respondent  Jessie 
McEwan,  made  certain  statements  which  the  respondents  alleged  were 
slanderous.  The  respondent  Jessie  McEwan  alleged  that  the  state- 
ments made  in  the  witness-box  had  been,  prior  to  the  trial,  and  with 
a  view  to  giving  evidence,  communicated  by  the  appellant  to  her  hus- 
band, Thomas  McEwan,  his  agent  and  his  counsel.  The  Lord  Ordi- 
nary and  their  Lordships  of  the  Second  Division  were  unanimously  of 
opinion  that  no  action  would  lie  against  the  appellant  for  the  state- 
ments made  in  the  witness-box ;  but  their  Lordships  (Lord  Young  dis- 
senting) allowed  an  issue  with  reference  to  the  information  previously 
given  to  the  husband's  law  agent.  The  main  question  raised  in  this 
appeal  was  whether  the  averment  of  the  respondent  Jessie  McEwan 
that  the  statements  made  in  the  witness-box  were  previously  commu- 
nicated to  her  husband  and  his  agent  and  counsel  formed  a  ground  of 
action  against  the  appellant  Sir  Patrick  H.  Watson.     *     *     *  4 

Earl  oif  Halsbury,  L.  C.  *  *  *  By  complete  authority,  in- 
cluding the  authority  of  this  House,  it  has  been  decided  that  the  priv- 
ilege of  a  witness,  the  immunity  from  responsibility  in  an  action  when 
evidence  has  been  given  by  him  in  a  Court  of  justice,  is  too  well  es- 
tablished now  to  be  shaken.  Practically  I  may  say  that  in  my  view 
it  is  absolutely  unarguable — it  is  settled  law  and  cannot  be  doubted. 
The  remedy  against  a  witness  who  has  given  evidence  which  is  false 
and  injurious  to  another  is  to  indict  him  for  perjury;  but  for  very 
obvious  reasons,  the  conduct  of  legal  procedure  by  Courts  of  justice, 
with  the  necessity  of  compelling  witnesses  to  attend,  involves  as  one 
of  the  necessities  of  the  administration  of  justice  the  immunity  of  wit- 
nesses from  actions  being  brought  against  them  in  respect  of  evidence 
they  have  given.    So  far  the  matter,  I  think,  is  too  plain  for  argument. 

But  then  comes  the  question  which,  so  far  as  I  know,  has  been 
raised  for  the  first  time  in  this  case.  The  ingenious  suggestion  has 
been  made  that  although  it  is  true  that  a  witness  is  protected  from  an 
action  in  respect  of  evidence  actually  given  in  a  Court  of  justice,  yet 
no  such  protection  exists  in  respect  of  his  attendance  before  the  so- 
licitor at  what  is  called  apparently  in  Scottish  law  his  precognition — 

*  The  statement  of  the  case  is  abridged,  and  the  arguments  of  counsel 
and  parts  of  the  opinion  are  omitted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  677 

what  we  call  the  interview  between  the  intended  witness  and  the  solic- 
itor who  takes  from  him  what  we  call  the  proof — that  is  to  say,  re- 
duces to  writing  the  evidence  which  the  witness  is  about  to  give.  One 
very  serious  element  of  difficulty  which  those  who  insist  upon  such  a 
liability  have  to  meet  is  manifest — namely,  that  in  the  whole  course  of 
the  diligent  inquiry  that  the  learned  counsel  on  both  sides  have  made 
into  this  matter  they  have  not  found  that  any  such  liability  has  ever 
been  sought  to  be  established  before.  So  far  as  I  know  personally 
in  my  experience  no  such  question  has  ever  arisen.  The  learned  judg- 
es who  have  allowed  these  issues  have  done  so  apparently  for  the  first 
time  in  this  case. 

It  appears  to  me  that  the  privilege  which  surrounds  the  evidence 
actually  given  in  a  Court  of  justice  necessarily  involves  the  same  priv- 
ilege in  the  case  of  making  a  statement  to  a  solicitor  and  other  persons 
who  are  engaged  in  the  conduct  of  proceedings  in  Courts  of  justice 
when  what  is  intended  to  be  stated  in  a  Court  of  justice  is  narrated 
to  them — that  is,  to  the  solicitor  or  writer  to  the  Signet.  If  it  were 
otherwise,  I  think  what  one  of  the  learned  counsel  has  with  great  co- 
gency pointed  out  would  apply — that  from  time  to  time  in  these  vari- 
ous efforts  which  have  been  made  to  make  actual  witnesses  responsible 
in  the  shape  of  an  action  against  them  for  the  evidence  they  have 
given,  the  difficulty  in  the  way  of  those  who  were  bringing  the  action 
would  have  been  removed  at  once  by  saying,  "I  do  not  bring  the  action 
against  you  for  what  you  said  in  the  witness-box,  but  I  bring  the  ac- 
'.  !on  against  you  for  what  you  told  the  solicitor  you  were  about  to  say 
in  the  witness-box."  If  that  could  be  done  the  object  for  which  the 
privilege  exists  is  gone,  because  then  no  witness  could  be  called ;  no 
one  would  know  whether  what  he  was  going  to  say  was  relevant  to 
the  question  in  debate  between  the  parties.  A  witness  would  only 
have  to  say,  "I  shall  not  tell  you  anything;  I  may  have  an  action 
brought  against  me  to-morrow  if  I  do ;  therefore  I  shall  not  give  you 
any  information  at  all."  It  is  very  obvious  that  the  public  policy  which 
renders  the  protection  of  witnesses  necessary  for  the  administration 
of  justice  must  as  a  necessary  consequence  involve  that  which  is  a  step 
towards  and  is  part  of  the  administration  of  justice — namely,  the  pre- 
liminary examination  of  witnesses  to  find  out  what  they  can  prove.  It 
may  be  that  to  some  extent  it  seems  to  impose  a  hardship,  but  after 
all  the  hardship  is  not  to  be  compared  with  that  which  would  arise  if 
it  were  impossible  to  administer  justice,  because  people  would  be 
afraid  to  give  their  testimony. 

My  Lords,  the  hardship  to  which  I  refer  is  this :  that  although  when 
a  witness  does  give  evidence  which  is  wilfully  false  you  can  indict  him 
for  perjury,  on  the  other  hand,  if  he  makes  the  same  statement  not 
upon  oath  to  a  person  taking  down  the  evidence  he  is  prepared  tO'  give, 
it  seems  to  be  very  difficult  to  devise  anything  that  would  bring  him 
to  justice  for  that  false  statement.  The  answer,  of  course,  dealing 
with  it  as  a  matter  of  convenience  and  indeed  of  necessity  for  the  ad- 


678  .TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

ministration  of  justice,  I  suppose,  is  this:  unless  he  does  give  evidence 
in  a  Court  of  justice,  in  which  case  he  can  be  indicted  for  perjury  if 
his  evidence  is  wilfully  false,  nobody  knows  anything  about  it — it 
slumbers,  I  suppose,  in  the  office  of  the  solicitor,  and  nobody  hears  or 
cares  anything  about  it.  Practically,  I  think  that  would  be  the  answer. 
But  whether  that  be  a  good  answer  or  not,  what  seems  to  me  to  be 
an  overwhelming  consideration  in  the  determination  of  this  case  is 
that  a  witness  must  be  protected  for  his  preliminary  statement  or  he 
has  no  protection  at  all,  and  that  there  is  that  protection  established 
is,  as  I  have  already  said,  beyond  all  possibility  of  doubt.     *     *     * 

Under  these  circumstances,  my  Lords,  it  appears  to  me  that  there 
is  but  one  point  in  this  case ;  namely,  whether  the  preliminary  exam- 
ination of  a  witness  by  a  solicitor  is  within  the  same  privilege  as  that 
which  he  would  have  if  he  had  said  the  same  thing  in  his  sworn  tes- 
timony in  Court.  I  think  the  privilege  is  the  same,  and  for  that  rea- 
son I  think  these  judgments  ought  to  be  reversed,  and  I  move  accord- 
ingly.^ 


(bl))  Conditional  Privilege  « 

(1)  Reports  in  Puhlic  Interest 

CURRY  v.  WALTER. 

(Court  of  Common  Pleas,  1796.    1  Bos.  &  P.  525,  4  R.  R.  717, 

126  Reprint,  1046.) 

This  was  an  action  for  printing  and  publishing  in  the  newspaper 
called  The  Times,  under  the  title  of  "Law  Reports,"  a  libel  on  the 
plaintiff.  It  imported  to  be  an  account  of  an  application  to  the  Court 
of  King's  Bench  for  an  information  against  the  plaintiff  and  a  Mr. 
Bingham,  both  justices  of  the  peace  for  Hampshire,  for  refusing  to 
license  an  inn  at  Gosport.  The  ground  of  the  application,  as  moved 
by  Mr.  Erskine,  was  that  the  magistrates  had  conspired  with  the  land- 
lord of  the  inn-keeper  to  find  a  pretence  for  refusing  him  a  licence, 
thereby  to  compel  him  to  surrender  a  very  beneficial  lease  to  his  land- 
lord. The  supposed  libel,  which  was  set  out  verbatim  in  the  declara- 
tion, stated  the  circumstances  of  this  charge  very  distinctly,  and  con- 
cluded by  shewing  that  the  rule  was  not  granted,  because  there  was  no 

B  Lord  James  and  Lord  Robertson  concurred.  The  cause  was  remitted 
back  to  the  Court  of  Session  in  Scotland,  with  a  direction  to  dismiss  the 
action. 

0  "The  term  'qualified  privilesre'  is  almost  invariably  used  to  distinguish 
this  kind  of  privilege  from  'absolute  privilege.'  The  term  'conditional  privilege' 
is,  however,  convenient  as  emphasizijig  the  fact  that  the  defence  of  privilege 
which  is  not  absolute  is  conditional  only,  and  liable  to  be  displaced  if  the 
plaintiff  establishes  that  the  communication  was  actuated  by  express  or 
actual  malice."    18  Ilalsbury's  Laws  of  li)ng]and,  685,  note  (a). 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  679 

affidavit  on  the  part  of  the  prosecutor  of  the  magistrates  having  had 
due  notice  of  the  motion. 

The  defendant  pleaded  the  general  issue,  and  at  the  trial,  after  the 
plaintiff  had  proved  the  publication  of  the  paper  in  question  by  him, 
produced  as  witness  a  person  whom  he  employed  to  collect  legal  in- 
telligence for  the  use  of  his  paper,  in  order  to  prove  that  the  report 
was  a  true  and  faithful  account  of  what  passed  in  the  Court  of  King's 
Bench  upon  the  motion.  It  was  objected  on  the  other  side,  that  this 
defence  ought  to  have  been  put  upon  the  record,  and  could  not  be 
given  in  evidence  under  the  general  issue.  This  objection,  however, 
was  overruled  by  Eyre,  C.  J.,  who  in  summing  up,  told  the  Jury,  that 
though  the  matter  contained  in  the  paper  might  be  very  injurious  to 
the  character  of  the  magistrates,  yet  he  was  of  opinion,  that  being  a 
true  account  of  what  took  place  in  a  court  of  justice  which  is  open 
to  all  the  world,  the  publication  of  it  was  not  unlawful.  The  Jury 
found  a  verdict  for  the  defendant.  A  rule  nisi  for  setting  aside  this 
verdict  was  obtained  and  argued.'^ 

The  Court  were  of  opinion  that  this  action  could  not  be  main- 
tained, but  some  doubts  being  entertained  upon  the  bench  whether  the 
matter  of  justification  ought  not  to  have  been  pleaded,  the  case  stood 
over;   and  no  judgment  was  ever  given. ^ 


WASON  V.  WALTER. 
(Court  of  Queen's  Bench,  1S68.    L.  R.  4  Q.  B.  73.) 

A  petition  of  the  plaintiff  was  presented  to  the  House  of  Lords, 
charging  a  high  judicial  officer  with  having  made  a  false  statement  to 
his  own  knowledge,  in  order  to  deceive  a  committee  of  the  House  of 
Commons,  and  praying  inquiry  and  the  removal  of  the  officer  if  the 
charge  was  found  true.  A  debate  ensued  on  the  presentation  of  the 
petition,  and  the  charge  was  utterly  refuted.  In  the  course  of  the 
debate  statements  disparaging  to  the  character  of  the  plaintiff  were 

7  The  statement  is  abridged,  and  the  arguments  of  counsel  are  omitted. 

8  This  case,  a  pioneer  ruling  in  a  doctrine  which  is  now  settled  law,  "has 
been  often  criticised  but  never  overturned,  and  often  acted  uix)n.  And  in  Rex 
V.  Wright,  it  received  the  unqualified  approbation  of  that  great  judge,  Mr. 
Justice  Lawrence."  Per  Lord  Campbell,  C.  J.,  in  Lewis  v.  Levy  (1S5S)  El.,  Bl. 
&  El.  537,  560,  120  Reprint,  610,  617,  113  R.  R.  768.  The  reason  which  under- 
lies the  doctrine  was  thus  expressed  by  Lawrence,  J.,  in  Rex  v.  Wright  (1799) 
8  T.  R.  293,  298:  "Though  the  publication  of  such  proceedings  may  be  to  the  dis- 
advantage of  the  particular  individual  concerned,  yet  it  is  of  vast  importance 
to  the  public  that  the  proceedings  of  Courts  of  Justice  should  be  universally 
known.  The  general  advantage  to  the  country  in  having  these  proceedings 
made  public,  more  than  counterbalances  the  inconveniences  to  the  private 
persons  whose  conduct  may  be  the  subject  of  such  proceedings.  The  same 
reasons  also  api)ly  to  the  proceedings  in  Parliament:  It  is  of  advantage  to 
the  public,  and  even  to  the  legislative  bodies,  that  true  accounts  of  their  pro- 
ceedings should  be  generally  circulated  ;  and  they  would  be  deprived  of  that 
advantage  if  no  person  could  publish  their  proceedings  without  being  punished 
as  a  libellor." 


680  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

made  by  the  Lord  Chancellor  and  other  Lords.  The  Times  news- 
paper published  a  faithful  and  correct  report  of  these  proceedings  in 
the  House  of  Lords,  including  the  debate.  The  plaintiff  sued  the  pro- 
prietor of  the  Times  for  libel.    The  defendant  pleaded  "Not  guilty." 

At  the  trial,  the  Lord  Chief  Justice  told  the  jury  that  if  they  were 
satisfied  that  the  matter  charged  as  a  libel  in  the  first  count  was  a 
faithful  and  correct  report  of  the  proceedings  in  the  House  of  Lords, 
and  of  the  speeches  delivered  on  the  occasion,  he  directed  them  in 
point  of  law  that  it  was  a  privileged  publication,  and  one  which  was  not 
the  subject  of  a  civil  action,  and  they  should  find  for  the  defendant 
on  that  count. 

There  was  a  verdict  for  the  defendant.  Afterwards  a  rule  was  ob- 
tained for  a  new  trial,  on  the  ground  of  a  misdirection  in  charging 
the  jury  that  the  publication  of  the  libel  was  privileged  if  they  should 
find  it  to  be  a  true  and  faithful  report  of  the  debate  in  the  House  of 
Lords." 

CocKBURN,  C.  J.  *  *  *  The  main  question  for  our  decision  is, 
whether  a  faithful  report  in  a  public  newspaper  of  a  debate  in  either 
house  of  parliament,  containing  matter  disparaging  to  the  character  of 
an  individual,  as  having  been  spoken  in  the  course  of  the  debate,  is 
actionable  at  the  suit  of  the  party  whose  character  has  thus  been  called 
in  question.     We  are  of  opinion  that  it  is  not. 

Important  as  the  question  is,  it  comes  now  for  the  first  time  before 
a  court  of  law  for  decision.  Numerous  as  are  the  instances  in  which 
the  conduct  and  character  of  individuals  have  been  called  in  question 
in  parliament  during  the  many  years  that  parliamentary  debates  have 
been  reported  in  the  public  journals,  this  is  the  first  instance  in  which 
an  action  of  libel  founded  on  a  report  of  a  parliamentary  debate  has 
come  before  a  court  of  law.  There  is,  therefore,  a  total  absence  of 
direct  authority  to  guide  us.  There  are,  indeed,  dicta  of  learned 
judges  having  reference  to  the  point  in  question,  but  they  are  conflict- 
ing and  inconclusive,  and,  having  been  unnecessary  to  the  decision  of 
the  cases  in  which  they  were  pronounced,  may  be  said  to  be  extraju- 
dicial. In  the  case  of  Rex  v.  Wright,  8  T.  R.  293,  Lawrence,  J.,  placed 
the  reports  of  parliamentary  debates  on  the  same  footing  with  respect 
to  privilege  as  is  accorded  to  reports  of  proceedings  in  courts  of  jus- 
tice, and  expressed  an  opinion  that  the  former  were  as  much  entitled 
to  protection  as  the  latter.  But  it  is  to  be  observed  that  in  that  case 
the  question  related  to  the  publication  by  the  defendant  of  a  copy  of 
a  report  of  a  committee  of  the  House  of  Commons,  which  report  the 
House  had  ordered  to  be  printed,  not  to  the  publication  of  a  debate 
unauthorized  by  the  House.     *     *     * 

Decided  cases  thus  leaving  us  without  authority  on  which  to  proceed 
in  the  present  instance,  we  must  have  recourse  to  principle  in  order  to 

9  The  statement  of  the  case  is  abridged,  and  some  parts  of  the  opinion  are 
omitted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER   THAN   TRESPASSES  681 

,  arrive  at  a  solution  of  the  question  before  us,  and  fortunately  we  have 
not  far  to  seek  before  we  find  principles  in  our  opinion  applicable  to 
the  case,  and  which  will  afford  a  safe  and  sure  foundation  for  our 
judgment. 

It  is  now  well  established  that  faithful  and  fair  reports  of  the  pro- 
ceedings of  courts  of  justice,  though  the  character  of  individuals  may 
incidentally  suft'er,  are  privileged,  and  that  for  the  publication  of  such 
reports  the  publishers  are  neither  criminally  nor  civilly   responsible. 

The  immunity  thus  afforded  in  respect  of  the  publication  of  proceed- 
ings of  courts  of  justice  rests  upon  a  twofold  ground.     *     *     * 

The  broader  principle  on  which  this  exception  to  the  general  law 
of  libel  is  founded  is,  that  the  advantage  to  the  community  from  pub- 
licity being  given  to  the  proceedings  of  courts  of  justice  is  so  great, 
that  the  occasional  inconvenience  to  individuals  arising  from  it  must 
yield  to  the  general  good.  It  is  true  that  with  a  view  to  distinguish 
the  publication  of  proceedings  in  parliament  from  that  of  proceedings 
of  courts  of  justice,  it  has  been  said  that  the  immunity  accorded  to 
the  reports  of  the  proceedings  of  courts  of  justice  is  grounded  on 
the  fact  of  the  courts  being  open  to  the  public,  while  the  houses  of 
parliament  are  not ;  as  also  that  by  the  publication  of  the  proceedings 
of  the  courts  the  people  obtain  a  knowledge  of  the  law  by  which 
their  dealings  and  conduct  are  to  be  regulated.  But  in  our  opinion 
the  true  ground  is  that  given  by  Lawrence,  J.,  in  Rex  v.  Wright,^ '^ 
namely,  that  "though  the  publication  of  such  proceedings  may  be  to 
the  disadvantage  of  the  particular  individual  concerned,  yet  it  is  of 
vast  importance  to  the  public  that  the  proceedings  of  courts  of  justice 
should  be  universally  known.  The  general  advantage  to  the  country 
in  having  these  proceedings  made  public,  more  than  counterbalances 
the  inconvenience  to  the  private  persons  whose  conduct  may  be  the 
subject  of  such  proceedings."  In  Davison  v.  Duncan,  7  E.  &  B.  231, 
Lord  Campbell  says :  "A  fair  account  of  what  takes  place  in  a  court 
of  justice  is  privileged.  The  reason  is,  that  the  balance  of  public  ben- 
efit from  publicity  is  great.  It  is  of  great  consequence  that  the  pub- 
lic should  know  what  takes  place  in  court ;  and  the  proceedings  are 
under  the  control  of  the  judges.  The  inconvenience,  therefore,  aris- 
ing from  the  chance  of  injury  to  private  character  is  infinitesimally 
small  as  compared  to  the  convenience  of  publicity."  And  Wightman, 
J.,  says :  "The  only  foundation  for  the  exception  is  the  superior  ben- 
efit of  the  publicity  of  judicial  proceedings  which  counterbalances  the 
injury  to  individuals,  though  that  at  times  may  be  great."     *     *     * 

10  8  T.  R.  29.3,  298  (1799),  where  Mr.  Justice  Lawrence  recurs  to  the  facts 
"of  an  action  brought  not  many  years  ago  by  Mr.  Cnrrie  against  Walter,  pro- 
prietor of  the  Times,"  and,  in  the  passage  quoted,  gives  the  ratio  decidendi  in 
that  case.  "The  same  reasons  also  apply  to  the  proceedings  in  Parliament: 
It  is  of  advantage  to  the  public,  and  even  to  the  legislative  bodies,  that  the 
accounts  of  their  proceedings  should  be  generally  circulated  ;  and  they  would 
be  deprived  of  their  advantage  if  no  person  could  publish  their  proceedings 
without  being  punished  as  a  libellor." 


682  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

We  entirely  concur  with  Lawrence,  J.,  in  Rex  v.  Wright,  8  T.  R. 
298,  that  the  same  reasons  which  apply  to  the  reports  of  the  proceed- 
ings in  courts  of  justice  apply  also  to  the  proceedings  in  Parliament. 
It  seems  to  us  impossible  to  doubt  that  it  is  of  paramount  public  and 
national  importance  that  the  proceedings  of  the  houses  of  Parliament 
shall  be  communicated  to  the  public,  who  have  the  deepest  interest 
in  knowing  what  passes  within  their  walls,  seeing  that  on  what  is 
there  said  and  done,  the  welfare  of  the  community  depends.  *  *  * 
The  analogy  between  the  two  cases  is  in  every  respect  complete.  If 
the  rule  has  never  been  applied  to  the  reports  of  parliamentary  proceed- 
ings till  now,  we  must  assume  that  it  is  only  because  the  occasion  has 
never  before  arisen.  If  the  principles  which  are  the  foundation  of 
the  privilege  in  the  one  case  are  applicable  to  the  other,  we  must  not 
hesitate  to  apply  them,  more  especially  when  by  so  doing  we  avoid  the 
glaring  anomaly  and  injustice  to  which  we  have  before  adverted. 
Whatever  disadvantages  attach  to  a  system  of  unwritten  law,  and  of 
these  we  are  fully  sensible,  it  has  at  least  this  advantage,  that  its 
elasticity  enables  those  who  administer  it  to  adapt  it  to  the  varying 
conditions  of  society,  and  to  the  requirements  and  habits  of  the  age 
in  which  we  live,  so  as  to  avoid  the  inconsistencies  and  injustice  which 
arise  when  the  law  is  no  longer  in  harmony  with  the  wants  and  usages 
and  interests  of  the  generation  to  which  it  is  immediately  applied. 
Our  law  of  libel  has,  in  many  respects,  only  gradually  developed  itself 
into  anything  like  a  satisfactory  and  settled  form.  The  full  liberty  of 
public  writers  to  comment  on  the  conduct  and  motive  of  public  men 
has  only  in  very  recent  times  been  recognized.  Comments  on  govern- 
ment, on  ministers  and  officers  of  state,  on  members  of  both  houses  of 
Parliament,  on  judges  and  other  public  functionaries,  are  now  made 
every  day,  which  half  a  century  ago  would  have  been  the  subject  of 
actions  or  ex  officio  informations,  and  would  have  brought  down 
fine  and  imprisonment  on  publishers  and  authors.  Yet  who  can  doubt 
that  the  public  are  gainers  by  the  change,  and  that,  though  injustice 
may  often  ,be  done,  and  though  public  men  may  often  have  to  smart 
under  the  keen  sense  of  wrong  inflicted  by  hostile  criticism,  the  nation 
profits  by  public  opinion  being  thus  freely  brought  to  bear  on  the  dis- 
charge of  public  duties?  Again,  the  recognition  of  the  right  to  pub- 
lish the  proceedings  of  courts  of  justice  has  been  of  modern  growth. 
Till  a  comparatively  recent  time  the  sanction  of  the  judges  was 
thought  necessary  even  for  the  publication  of  the  decisions  of  the 
courts  upon  points  of  law.     *     *     * 

It  is  to  be  observed  that  the  analogy  between  the  case  of  reports 
of  proceedings  of  courts  of  justice  and  those  of  proceedings  in  Parlia- 
ment being  complete,  all  the  limitations  placed  on  the  one  to  prevent 
injustice  to  individuals  will  necessarily  attach  on  the  other:  a  garbled 
or  partial  report,  or  of  detached  parts  of  proceedings,  published  with 
intent  to  injure  individuals,  will  equally  be  disentitled  to  protection. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  683 

Our  judgment  will  in  no  way  interfere  with  the  decisions  that  the 
publication  of  a  single  speech  for  the  purpose  or  with  the  effect  of 
injuring  an  individual  will  be  unlawful,  as  was  held  in  the  cases  of 
Rex  V.  Lord  Abingdon,  1  Esp.  226,  and  Rex  v.  Creevey,  1  M.  &  S. 
'yix      *     *     * 

Rule  discharged. 


STEVENS  V.  SAMPSON. 

(In  the  Court  of  Appeal,  1879.    5  Exeh.  Div.  53.) 

In  the  trial  of  the  action  of  Nettlefold  v.  Fulcher  in  the  Marylebone 
County  Court,  the  defendant  in  the  present  action  appeared  for  Net- 
tlefold and  made  statements  reflecting  on  the  plaintiff  in  the  present 
action,  who  was  a  debt  collector  and  employed  by  Fulcher  as  agent 
in  the  Nettlefold  case.  Afterwards,  the  defendant  sent  a  report  of 
these  proceedings  in  the  Nettlefold  case,  including  his  remarks,  to 
local  newspapers,  where  they  were  published.  This  action  for  libel 
followed.  The  case  came  on  for  trial  before  Cockburn,  C.  J.,  at  the 
Hilary  Sittings,  1879,  at  Westminster,  who  left  two  questions  to  the 
jury:  1.  Was  the  report  a  fair  one?  2.  W^as  it  sent  honestly,  or  with 
a  desire  to  injure  the  plaintiff?  The  jury  answered  these  questions: 
1.  That  it  w'as  in  substance  a  fair  report:  2.  That  it  was  sent  with  a 
certain  amount  of  malice :  and  found  a  verdict  for  the  plaintiff  with 
40s.  damages.  Cockburn,  C.  J.,  directed  judgment  to  be  entered  for 
the  plaintiff  for  that  amount. 

The  defendant  appealed  on  the  ground  that  the  judgment  entered 
upon  the  findings  of  the  jury  was  wrong;  and  that  it  should  have  been 
directed  to  be  entered  for  the  defendant,  the  jury  having  found  that  an 
alleged  libel,  being  a  report  in  certain  newspapers  of  proceedings  which 
took  place  in  a  court  of  justice,  was  a  fair  report  of  the  proceedings. 

Harris  and  Poulter,  for  the  defendant.  The  judgment  ought  to  be 
entered  for  the  defendant,  for  a  true  report  of  proceedings  in  a  court 
of  justice  is  privileged  absolutely.  Hoare  v.  Silverlock,  9  C.  B.  20; 
Lewis  v.  Levy,  27  L.  J.  (Q.  B.)  282.  The  motive  that  the  defendant 
had  for  sending  the  report  is  immaterial.  All  the  public  have  a  right 
to  be  present  in  a  court  of  justice  and  hear  the  proceedings.  The  de- 
fendant by  the  publication  of  the  report  has  made  the  proceedings, 
which  were  accessible  to  all  who  were  present,  universally  known. 
The  publication,  though  to  the  disadvantage  of  a  particular  individual, 
is  of  importance  to  the  public,  and  it  is,  therefore,  privileged. 

Lord  Coleridge,  C.  J.^^  The  question  before  us  is  whether,  on 
the  findings  of  the  jury,  the  entry  of  the  judgment  for  the  plaintiff 
is  right.  I  am  of  opinion  that  it  was  rightly  entered  for  the  plaintiff. 
The  principle  which  governs  this  case  is  plain.     It  is  like  that  which 

11  The  statement  of  the  case  is  abridged,  and  a  concurring  opinion  by  Bram- 
well,  L.  J.,  is  omitted. 


684  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

governs  most  other  cases  of  privilege.  In  order,  in  cases  of  libel,  to 
establish  that  the  communication  is  privileged,  two  elements  must 
exist;  not  only  must  the  occasion  create  the  privilege,  but  the  occa- 
sion must  be  made  use  of  bona  fide  and  without  malice;  if  either 
of  these  is  absent,  the  privilege  does  not  attach ;  here  the  second  ele- 
ment is  absent,  for  bona  fides  is  wanting,  and  malice  exists.  There  are 
certain  cases  in  which  the  privilege  is  absolute.  Words  spoken  in  the 
course  of  a  legal  proceeding  by  a  witness  or  by  counsel,  and  words 
used  in  an  affidavit  in  the  course  of  a  legal  proceeding  are  absolutely 
privileged.  It  is  considered  advantageous  for  the  public  interests  that 
such  persons  should  not  in  any  way  be  fettered  in  their  statements. 
This  is  the  first  time  that  a  report  of  proceedings  in  a  court  of  justice 
has  been  sought  to  be  brought  within  this  same  class  of  privilege.  •  I 
am  not  disposed  to  extend  the  bounds  of  privilege  beyond  the  prin- 
ciples already  laid  down,  and  I  find  no  authority  for  its  extension. 

Brett,  L.  J.  It  seems  to  me  that  the  verdict  of  the  jury  means  that 
the  defendant  did  not  send  this  report  to  be  published  for  the  benefit 
of  the  public  in  a  matter  as  to  which  they  ought  to  be  informed,  but 
from  a  desire  to  injure  the  plaintiff.  Assuming  the  report  to  be  a 
fair  and  correct  account  of  the  proceedings  in  a  court  of  justice,  was 
it  privileged?  It  seems  to  me  that,  whatever  privilege  is  relied  upon 
in  an  action,  the  defendant  is  bound  to  prove  that  the  occasion  is 
privileged,  and  that  he  used  the  occasion  in  a  privileged  way.  He  is 
bound  to  shew  that  he  used  the  privilege  bona  fide  and  without  malice ; 
if  he  fails  in  either  of  these  incidents,  he  fails  to  shew  that  the  com- 
munication is  privileged.  The  defendant,  in  order  to  establish  his 
defence,  must  shew  that  the  report  was  substantially  correct  and  that 
this  substantially  correct  report  was  made  without  malice.  It  is  said 
that  the  publication  of  proceedings  in  a  court  of  justice  is  a  case  of 
absolute  privilege,  but  there  is  no  authority  for  that  statement,  and 
the  case  comes  within  the  general  rule.  The  defendant  has  failed  to 
make  out  the  defence  he  has  put  on  the  record. 

Judgment  affirmed. 


KIMBALL  V.  POST  PUB.  CO. 

(Supreme  Judicial  Court  of  Massacliusetts,  1908.    199  Mass.  248,  85  N.  E. 
103,  19  L.  R.  A.  [N.  S.]  862,  127  Am.  St.  Kep.  492.) 

Separate  actions  for  libel  were  brought  against  the  Post  Publishing 
Company  by  Kimball  and  Galletly,  and  by  the  same  plaintiff's  against 
the  Boston  Transcript  Company.  From  judgments  for  the  defend- 
ants, the  plaintiffs  bring  exceptions. 

Hammond,  J.  The  articles  of  which  the  plaintiffs  complain  con- 
tained reports  of  certain  proceedings  in  court  and  also  of  a  meeting 
of  stockholders  of  a  corporation  called  the  Burrows  Lighting  &  Heat- 
ing Company. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  685 

So  far  as  respects  the  report  of  the  court  proceedings  the  articles 
were  privileged.  This  case  differs  materially  from  Cowley  v.  Pul- 
sifer,  137  Mass.  392,  50  Am.  Rep.  318.  In  that  case  there  had 
been  no  action  by  the  court.  Here  the  bill  had  been  presented  to  the 
court  and  the  court  had  acted  upon  it  so  far  as  to  make  a  special  order 
that  the  defendants  therein  should  appear  and  show  cause  why  they 
should  not  be  enjoined.  This  act  of  the  court  was  a  judicial  proceed- 
ing and,  whatever  might  formerly  have  been  the  rule,  it  was  a  subject 
for  a  privileged  report,  although  the  cause  had  not  yet  been  finished. 
It  was  an  act  begun  in  a  case,  and  in  the  end  there  must  be  a  final 
decision.  The  words  of  Esher,  M.  R.,  in  Kimber  v.  Press  Ass'n 
(1893)  L.  R.  1  Q.  B.  65,  71,  seem  to  us  to  be  a  true  statement  of  the 
law  on  this  subject:  "I  am,  therefore,  of  opinion  that  where  the 
proceedings  are  such  as  will  result  in  a  final  decision  being  given, 
a  final  and  accurate  report,  made  bona  fide,  of  those  proceedings  is 
privileged,  although  it  be  published  before  the  final  decision."  And 
in  that  case  the  rule  was  applied  to  the  proceedings  upon  an  ex 
parte  application  for  the  issue  of  a  summons  on  a  charge  of  per- 
jury.    *     *     * 

But  there  was  something  more  in  the  articles  than  the  report  of  the 
proceedings  in  court.  There  was  a  report  of  the  meeting  of  the 
stockholders  of  a  private  corporation ;  and  unless  this  part  of  the 
report  is  also  privileged  the  defense,  so  far  as  resting  upon  that 
ground,  must  fail.  It  is  argued  by  the  defendants  that  "the  public 
is  interested  and  concerned  in  a  meeting  of  stockholders  of  a  cor- 
poration such  as  is  described  in  the"  articles  in  question,  and  that 
reports  of  such  meetings  are  privileged  if  fair  and  made  without  mal- 
ice. But  the  difficulty  with  this  argument  is  that,  unless  modified  by 
statutory  provision,  the  law  in  England  and  in  this  commonwealth  al- 
ways has  been  otherwise.  It  is  to  be  noted  that  we  are  not  dealing 
with  what  is  said  at  the  meeting  nor  with  the  person  who  said  it. 
No  doubt  a  stockholder  at  such  a  meeting,  speaking  to  stockholders, 
may  with  impunity  say  things  derogatory  to  an  officer  or  the  man- 
ager of  the  company  provided  that  what  he  says  be  pertinent  to  the 
matter  in  hand  and  he  speaks  in  good  faith  and  without  malice.  His 
justification  rests  upon  the  fact  that  he  is  speaking  to  the  stockholders 
upon  a  subject  in  which  he  and  they  have  an  interest.  On  the  con- 
trary, we  are  dealing  with  a  report  in  the  nature  of  a  repetition  of 
the  defamatory  remarks,  which  report  is  made  by  a  stranger,  having  no 
interest  in  the  question,  to  other  strangers,  called  the  public,  equally 
without  interest.  It  is  manifest  that  the  grounds  for  the  privilege 
under  which  the  original  speaker,  the  stockholder,  is  protected  can- 
not serve  the  publisher  of  the  report.  Davison  v.  Duncan,  7  El.  & 
Bl.  231  ;  De  Crespigny  v.  Wellesley,  5  Bing.  402.  The  privilege  of 
the  publisher,  if  any  he  has,  must  rest  upon  other  grounds. 

It  is  stated  by  some  authorities  that  by  the  common  law  of  England 


686  TORTS   THROUGH   ACTS   OF  ABSOLUTE   LIABILITY  (Part  1 

reports  of  judicial  and  parliamentary  proceedings  alone  were  privi- 
leged. While  it  is  said  by  Shaw,  C.  J.,  in  Barrows  v.  Bell,  7  Gray, 
301,  66  Am.  Dec.  479,  that  this  statement,  unqualified,  is  too  broad, 
still  subsequent  decisions  seem  to  show  clearly  that  in  England  the 
principle  of  privilege  is  confined  to  reports  of  judicial  or  quasi  judi- 
cial bodies.  No  privilege  was  attached  to  the  report  of  other  public 
unofficial  meetings.  Hence,  if  in  such  a  case  a  report  containing  any 
defamatory  statement  of  fact  was  printed  in  a  newspaper  the  pro- 
prietor's only  defense  was  that  the  statement  was  true.  Purcell  v. 
Sowler,  1  C.  P.  D.  781,  2  C.  P.  D.  215.  See,  also,  Odgers,  Libel  & 
Slander  (4th  Ed.)  Append.  B,  and  the  authorities  therein  cited.  Since 
the  decision  in  this  last  case  the  law  has  been  somewhat  modified  so 
far  as  respects  official  and  other  public  meetings.  But  these  statutes 
have  been  somewhat  strictly  construed,  and  even  now  a  fair  report 
is  not  always  safe.     Ponsford  v.  Financial  Times,  16  T.  L.  R.  248. 

The  subject  was  quite  freely  discussed  by  Shaw,  C.  J.,  in  Barrows 
V.  Bell,  7  Gray,  301,  66  Am.  Dec.  479,  and  the  following  language 
was  used  (7  Gray,  313):  "Whatever  may  be  the  rule  as  adopted  and 
practiced  on  in  England,  we  think  that  a  somewhat  larger  liberty 
may  be  claimed  in  this  country  and  in  this  commonwealth,  both  for 
the  proceedings  before  all  public  bodies,  and  for  the  publication  of 
those  proceedings  for  the  necessary  information  of  the  people.  So 
many  municipal,  parochial  and  other  public  corporations,  and  so 
many  large  voluntary  associations  formed  for  almost  every  lawful 
purpose  of  benevolence,  business  or  interest,  are  constantly  holding 
meetings,  in  their  nature  public,  and  so  usual  is  it  that  their  proceed- 
ings are  published  for  general  use  and  information,  that  the  law  to 
adapt  itself  to  this  necessary  condition  of  society,  must  of  necessity 
admit  of  these  public  proceedings,  and  a  just  and  proper  publication 
of  them,  as  far  as  it  can  be  done  consistently  with  private  rights. 
This  view  of  the  law  of  libel  in  Massachusetts  is  recognized,  and  to 
some  extent  sanctioned  by  the  case  of  Com.  v.  Clap,  A  Mass.  163,  3 
Am.  Dec.  212,  and  many  other  cases."  And  it  was  held  that  the 
publication  by  a  member  of  the  Massachusetts  Medical  Society  of  a 
true  account  of  the  proceedings  of  that  society  in  the  expulsion  of 
another  member  for  a  cause  within  its  jurisdiction,  and  of  the  re- 
sult of  certain  suits  subsequently  brought  by  him  against  the  society 
and  its  members  on  account  of  such  expulsion,  is  privileged. 

The  above  language  of  the  court,  however  liberal  its  construction, 
is  not  to  be  understood  as  applying  to  strictly  private  meetings.  It 
applies  at  the  most  only  to  meetings  public  in  their  nature,  or  where 
the  proceedings  concern  the  public.  In  that  case  it  was  said  that  the 
charter  of  the  Massachusetts  Medical  Society  "invested  the  society, 
their  members  and  licentiates,  with  large  powers  and  privileges,  in 
regulating  the  important  public  interest  of  the  practice  of  medicine 
and  surgery,  enabled  them  to  prescribe  a  course  of  studies,  to  examine 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  687 

candidates  in  regard  to  their  qualifications  for  practice,  and  give 
letters  testimonial  to  those  who  might  be  found  duly  qualified."  It 
was  also  stated  that  it  appeared  by  the  acts  incorporating  this  society 
that  it  was  regarded  by  the  Legislature  "as  a  public  institution,  by  the 
action  of  which  the  public  would  be  deeply  affected  in  one  of  its 
important  public  interests,  the  health  of  the  people."  It  was  fur- 
ther said  that  the  proceedings  of  which  the  report  was  made  "might 
be  rightly  characterized,  as  in  the  case  of  Farnsworth  v.  Storrs,  5 
Cush.  412,  as  quasi  judicial."  And  it  was  upon  tiie  latter  ground  that 
the  communication  was  adjudged  to  be  privileged. 

The  case  before  us  is  entirely  diff'erent.  The  meeting  was  simply 
that  of  a  private  corporation  invested  with  no  privileges  and  owing 
no  special  duty  to  the  public.  It  was  an  ordinary  business  meeting. 
Whether  any  member  was  in-  fraudulent  possession  of  stock,  or  had 
mismanaged  the  affairs  of  the  corporation,  or  whether  the  plaintiffs 
were  unfit  to  continue  as  of^cers,  or  the  corporation  had  been  made 
bankrupt,  were  matters  with  which  the  public  were  in  no  way  con- 
cerned. The  meeting  was  for  the  stockholders  alone.  Only  they 
or  their  duly  constituted  agents  were  entitled  to  be  present.  The 
meeting  was  neither  public  nor  for  a  public  purpose.  As  well  might 
it  be  said  that  a  private  conference  between  the  members  of  a  part- 
nership on  partnership  matters  was  a  public  meeting.  For  the  pur- 
poses of  the  meeting  it  might  have  been  necessary  for  charges  to  be 
made  by  one  stockholder  against  another  stockholder  or  an  ofiicer,  and 
that  the  charges  should  be  discussed  and  their  truth  or  falsity  deter- 
mined ;  and  so  far  the  actors  were  well  within  the  privilege.  They 
had  a  duty  to  perform  in  a  matter  in  which  all  were  interested.  But 
for  obvious  reasons  hereinbefore  stated  the  mantle  of  protection  can- 
not cover  him  who,  having  no  interest,  repeats  the  defamatory  words 
to  others  also  without  interest.  And  in  this  matter  the  conductor  of 
a  newspaper  stands  no  better  than  any  other  person.  As  was  said 
in  Sheckell  v.  Jackson,  10  Cush.  25,  26,  27,  in  reply  to  a  contention 
that  conductors  of  the  public  press  are  entitled  to  peculiar  indulgences 
and  have  special  rights  and  privileges,  "the  law  recognizes  no  such 
peculiar  rights,  privileges,  or  claims  to  indulgence.  They  have  no 
rights  but  such  as  are  common  to  all.  They  have  just  the  same  rights 
that  the  rest  of  the  community  have,  and  no  more."  These  words, 
although  spoken  more  than  half  a  century  ago,  state  the  law  as  it 
exists  today,  except  so  far  as  it  has  been  modified  by  statute,  and 
there  has  been  no  statute  material  to  the  question  before  us.  The 
result  is  that  the  articles  were  not  privileged  so  far  as  they  reported 
the  proceedings  of  the  corporation. 

It  is  argued  by  the  defendants  that  inasmuch  as  the  charge  in  the 
bill  in  equity  was  the  same  as  that  made  at  the  meeting,  namely,  that 
the  majority  of  the  stock  was  in  the  fraudulent  possession  of  the 
plaintiffs,  it  will  be  impossible  for  the  plaintiffs  to  contend  that  any 


688  TORTS   THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

alleged  damage  was  suffered  from  the  one  rather  than  from  the  other, 
and  therefore  if  one  report  is  privileged  the  action  cannot  be  main- 
tained. This  is  untenable.  Even  if  the  charge  in  substance  is  the 
same,  it  is  evident  that  a  charge  made  in  a  bill  in  equity  filed  in  court 
may  not  be  regarded  as  so  serious  a  matter  as  a  charge  made  by  one's 
business  associates  in  a  business  meeting.  The  difficulty  of  separating 
the  damages  gives  no  immunity  to  the  defendants. 
Exceptions  sustained.^^ 


TREBBY  V.  TRANSCRIPT  PUB.  CO. 

(Supreme  Court  of  Minnesota,  1S9S.     74  Minn.  84,  76  N.  W.  9G1, 

73  Am.  St.  Rep.  330.) 

The  action  was  against  the  Publishing  Company  for  libel.  The 
trial  court  rendered  judgment  for  the  defendant,  and  denied  the  plain- 
tiff's motion  for  a  new  trial.    The  plaintiff'  appeals. 

Mitchell,  j.  *  *  *  The  facts  leading  up  to  the  publication  of 
the  alleged  libel  were  as  follows :  The  city  of  Little  Falls  had  issued 
to  a  waterpower  company  its  bonds  to  the  amount  of  $25,000  in  aid 
of  the  improvement  of  the  waterpower  of  the  Mississippi  River  at  this 
place,  whereupon  the  plaintiff'  brought  an  action  to  restrain  the  city 
treasurer  from  paying  the  bonds,  and  to  compel  the  waterpower  com- 
pany to  return  them,  on  the  ground  that  they  were  illegally  issued 
and  void.  To  the  complaint  in  this  action  the  waterpower  company 
demurred  on  the  ground  that  it  did  not  state  a  cause  of  action.  The 
demurrer  was  overruled,  and  from  the  order  overruling  it  the  water- 
power  company  appealed  to  this  court.  The  bonds  having  been  subse- 
quently surrendered  and  cancelled  under  some  new  agreement  between 
the  city  and  the  waterpower  company,  this  appeal  was  not  prosecuted 
further,  and  was  finally  dismissed  by  this  court  for  want  of  prosecu- 
tion, and  judgment  for  costs  rendered  against  the  waterpower  com- 
pany. Thereupon  the  plaintiff  caused  to  be  published  in  a  St.  Paul 
paper  an  article  to  the  effect  that  the  judgment  of  this  court  in  rela- 
tion to  the  bonds  was  in  favor  of  the  plaintiff;  that  the  amount  in 
controversy  was  $25,000;  that  this  decision  rendered  the  bonds  void; 
that  the  case  had  been  in  contest  for  some  time,  and  was  quite  im- 
portant. 

This  article  having  come  to  the  notice  of  some  bankers  and  brokers 
in  Chicago,  they  wrote  to  the  mayor  of  the  city,  asking  for  the  par- 
ticulars, and  inquiring  if  the  city  had  started  on  an  era  of  repudia- 
tion, and  why  the  bonds  were  contested.  Thereupon  some  of  the  citi- 
zens of  Little  Falls  presented  a  petition  to  the  city  council,  reciting 
the  facts,  and  stating  that  they  deemed  the  city  had  been  slandered 

12  Part  of  the  opinion  is  omitted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  689 

by  the  publication  of  the  article,  and  that  action  should  be  taken  "to 
make  the  truth  public,  so  that  the  good  name  of  the  city  should  be 
continued."  Thereupon  the  city  council  passed  a  resolution  set  out 
in  the  complaint,  in  which  they  characterized  the  plaintiff  as  a  "dis- 
reputable person,"  and  recited  that  the  facts  were  falsely  reported  by 
him  to  the  St.  Paul  paper  with  full  knowledge  of  the  true  facts,  and 
that  he  maliciously  and  intentionally  made  a  false  report,  and  con- 
demned his  conduct  as  execrable  and  odious,  and  as  having  caused  the 
city  irreparable  damage.  This  resolution,  preceded  by  an  historical 
introduction,  and  headed  "The  City's  Credit"  (also  set  out  in  the 
complaint),  the  defendant  published  in  its  newspaper  published  in  the 
city  of  Little  Falls,  and  circulated  in  that  city  and  the  surrounding 
country.    This  is  the  publication  complained  of. 

1.  We  shall  spend  no  time  on  the  question  whether  this  publica- 
tion was  libellous  on  its  face.  It  was  clearly  calculated  to  injure  plain- 
tiff in  the  good  opinion  and  respect  of  others,  and  expose  him  to  the 
contempt  and  hatred  of  his  neighbors,  especially  in  the  city  of  Little 
Falls.     It  was  manifestly  libellous   unless  privileged.     *     *     * 

2.  Defendant  contends  that  the  publication  was  absolutely  privileg- 
ed, because  its  paper  was  the  official  newspaper  of  the  city,  and  the 
city  charter  (Sp.  Laws  1889,  c.  8,  §  52)  required  all  ordinances  and 
resolutions  to  be  published  in  the  official  newspaper  before  they  shall 
be  in  force.  To  this  there  are  several  answers :  First,  the  provision 
of  the  charter  invoked  does  not  seem  to  apply  to  resolutions  of  this 
character,  but  merely  to  ordinances  which  will  have  some  operative 
force  after  they  are  passed;  second,  this  does  not  purport  to  be  an 
official  publication,  but  merely  the  publication  of  an  item  of  news ; 
and,  third,  the  resolution  was  not  within  the  scope  of  the  duty  of  the 
city  council,  but  wholly  outside  of  it,  and  privilege  can  only  be  claim- 
ed of  things  published  within  the  scope  of  official  authority.  The  city 
council  had  no  more  authority  to  libel  or  traduce  the  private  character 
of  a  private  citizen  than  an  assemblage  of  private  citizens  would  have. 
Buckstaff  v.  Hicks,  94  Wis.  34,  68  N.  W.  403,  59  Am.  St.  Rep.  853  ; 
Wilcox  v.  Moore,  69  Minn.  49,  71  N.  W.  917. 

Neither  was  the  publication  privileged  conditionally.  A  privileged 
communication  is  one  made  in  good  faith  upon  any  subject-matter  in 
which  the  party  communicating  has  an  interest,  or  in  reference  to 
which  he  has,  or  honestly  believes  he  has,  a  duty  to  a  person 
having  a  corresponding  interest  or  duty,  and  which  contains  matter, 
which,  without  the  occasion  upon  which  it  is  made,  would  be  defama- 
tory and  actionable.  Newell,  Defam.  388.  If  the  article  published 
by  the  plaintiff  in  the  St.  Paul  paper  was  calculated  to  unjustly  impair 
the  credit  of  the  city,  the  city  council  or  the  defendant  would  have 
a  perfect  right  to  publish  the  actual  facts,  in  order  to  set  the  city's 
credit  right  before  the  public,  although  such  facts  might  reflect  on 
the  conduct  of  the  plaintiff,  but  not  to  make  false  and  defamatory 
Hepb. Torts — 44 


690  TORTS  THROUGH   ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

Statements  regarding  plaintiff's  character.  Landon  v.  Watkins,  61 
Minn.  137,  63  N.  W.  615. 

It  is  true  that  the  publication  complained  of  was,  as  a  matter  of 
news,  entirely  true ;  that  is,  the  city  council  did  pass  the  resolution 
just  as  stated  by  the  defendant.  But  the  publication  in  a  newspaper 
of  false  and  defamatory  matter  is  not  privileged  because  made  in 
good  faith  as  a  matter  of  news.  The  right  to  publish  through  the 
newspaper  press  such  matters  of  interest  as  may  be  thus  properly  laid 
before  the  public  does  not  go  to  the  extent  of  allowing  the  publication 
concerning  a  person  of  false  and  defamatory  matter,  there  being  no 
other  reason  or  justification  for  doing  so  than  merely  the  purpose 
of  publishing  news.  Mallory  v.  Pioneer  Press  Co.,  34  Minn.  521,  26 
N.  W.  904.  The  article  was  not  privileged,  either  absolutely  or  con- 
ditionallv.     *     *     * 

Order  reversed  and  new  trial  granted.^' 


LUNDIN  V.  POST  PUB.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1914.     217  Mass.  213,  104  N.  E. 

480,  52  L.  R.  A.  [N.  S.]  207.) 

This  action  was  against  the  Publishing  Company,  for  libel.  Judg- 
ment for  the  plaintiff  and  the  defendant  brings  exceptions. 

Sheldon,  J.  The  defendant  published  in  its  newspaper  a  statement 
that  '*it  was  alleged"  that  the  plaintiff  had  committed  an  assault  upon 
a  woman  named,  which  had  resulted  in  stated  personal  injuries  to  her. 
For  this  publication  the  plaintiff  had  a  right  of  action,  unless  it  was 
privileged,  or  unless  it  was  true,  or  unless  for  some  other  reason  it 
was  not  libelous.  The  mere  fact  that  the  charge  against  the  plaintiff 
was  not  made  by  direct  averment  but  only  by  saying  that  such  an  al- 
legation had  been  made  was  not  material ;  for  the  statement  of  un- 
founded charges  is  none  the  less  actionable  that  it  is  made  only  by  way 
of  repeating  them  as  having  been  made  by  others.  Kimball  v.  Post 
Publishing  Co.,  199  Mass.  248,  251,  85  N.  E.  103.  19  L.  R.  A.  (N.  S.) 
862,  127  Am.  St.  Rep.  492,  et  seq. ;  Metcalf  v.  Times  Publishing  Co., 
20  R.  I.  674,  678,  40  Atl.  864,  78  Am.  St.  Rep.  900;  Park  v.  Detroit 
Free  Press  Co.,  72  Mich.  560,  40  N.  W.  731,  1  L.  R.  A.  599,  16  Am. 
St.  Rep.  544;  Popham  v.  Pickburn,  7  H.  &  N.  891;  Davison  v. 
Duncan,  7  El.  &  Bl.  229;  Purcell  v.  Sowles,  1  C.  P.  D.  781,  2  C.  P. 
D.  251.  Nor  have  the  publishers  of  newspapers  any  greater  right  to 
give  in  this  way  currency  to  false  charges  than  other  persons.  They 
have  no  peculiar  rights  or  privileges.  Sheckell  v.  Jackson,  10  Cush.  25, 
26;  Burt  v.  Advertiser  Newspaper  Co.,  154  Mass.  238,  243,  28  N.  E. 
1,  13  L.  R.  A.  97. 

13  Parts  of  the  opinion  arc  omitted. 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  691 

The  defendant  claims  that  this  was  a  fair  report  of  the  fact  that  a 
suit  for  damages  had  been  brought  against  the  plaintiff  by  the  woman 
named,  and  that  in  her  declaration  she  had  made  charges  against  hirr.' 
which  were  fairly  and  correctly  stated  in  the  article  complained  of ;  that 
her  writ  and  declaration  had  been  made  the  subject  of  judicial  proceed- 
ings in  open  court;  and  therefore  that  the  article  was  privileged  as 
a  fair  and  correct  report  of  judicial  proceedings  published  in  good 
faith  and  without  malice.  This  is  the  main,  though  not  the  only  con- 
tention now  relied  on  by  the  defendant. 

It  is  not  open  to  dispute  that  a  fair  report  in  a  newspaper  of  pending 
judicial  proceedings  is  proper,  and  that  this  privilege  extends  to  all 
matters  which  have  been  made  the  subject  of  judicial  proceedings, 
though  such  proceedings  may  be  merely  preliminary  or  interlocutory, 
or  even  ex  parte.  For  example,  it  will  render  privileged  a  fair  report 
of  the  charges  made  in  a  bill  in  equity  which  has  been  presented  to 
the  court  and  upon  which  the  court  has  acted  by  making  an  order  that 
the  defendants  shall  appear  and  show  cause  why  an  injunction  shall 
not  be  issued  against  them.  Kimball  v.  Post  Publishing  Co.,  199  Mass. 
248,  85  N.  E.  103,  19  L.  R.  A.  (N.  S.)  862,  127  Am.  St.  Rep.  492; 
Kimber  v.  Press  Association  [1893]  1  Q.  B.  65,  71.  So  it  will  extend 
to  fair  and  accurate  reports  of  hearings  had  upon  applications  for  the 
issuance  of  warrants  or  other  criminal  process,  or  upon  hearings  had 
after  such  process  has  been  issued,  though  they  be  not  final  trials  upon 
the  merits.^*     *     *     * 

But  this  principle  is  limited  to  matters  which  really  have  been  made 
the  subject  of  judicial  action.  It  does  not  give  the  right  to  publish 
statements  made  in  declarations  or  other  papers  filed  in  court  on  tlie 
ground  merely  that  they  have  been  placed  on  the  files  of  the  court, 
or  until  they  have  been  brought  to  the  attention  of  the  court  and  some 
judicial  action  has  been  taken  upon  them.  Cowley  v.  Pulsifer,  137 
Mass.  392,  50  Am.  Rep.  318.  As  was  said  by  Mr.  Justice  Holmes  in 
that  case,  the  reasons  for  allowing  fair  reports  of  the  proceedings  of 
courts  of  justice  "have  no  application  whatever  to  the  contents  of  a 
preliminary  written  statement  of  a  claim  or  charge.  These  do  not 
constitute  a  proceeding  in  open  court.  Knowledge  of  them  throws  no 
light  upon  the  administration  of  justice.  Both  form  and  contents  de- 
pend wholly  on  the  will  of  a  private  individual,  who  may  not  be  even 
an  officer  of  the  court.    It  would  be  carrying  privilege  farther  than  we 

14  Mr.  Justice  Sheldon  here  cited  Conner  v.  Standard  Publishing  Co.  (1903) 
183  Mass.  474,  67  N.  E.  59G,  Perkins  v.  Mitchell  (1860)  31  Barb.  (N.  Y.)  461, 
471,  472,  Lewis  v.  Levy  (1858)  El.,  Bl.  &  El.  537,  and  Usil  v.  Hales  (1878) 
3  C.  P.  D.  319,  and  gave  the  following  cases,  as  being  to  the  same  general 
effect:  Parker  v.  Republican  Co.  (lfK)2)  181  Mass.  392,  63  N.  E.  931 :  Acker- 
man  V.  Jones  (1874)  37  N.  Y.  Super.  Ct.  42 ;  Meriwether  v.  Knapp  (1908)  211 
Mo.  199,  215,  109  S.  W.  750,  16  L.  R.  A.  (N.  S.)  953;  A.  H.  Belo  &  Co.  v. 
Lacy  (Tex.  Civ.  App.  1908)  111  S.  W.  215,  218;  Curry  v.  Walter  (179G)  1  B. 
&  P.  525,  cited  and  followed  in  I^ing  v.  ^Yright  (1799)  8  T.  R.  293,  298 ;  Ry- 
alls  V.  Leader  (18GG)  L.  R.  1  Exch.  296;    Hope  v.  Leng  (1907)  23  T.  L.  R.  243. 

And  see  18  Halsbury's  Laws  of  England,  695  (1911). 


692  TORTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

feel  prepared  to  carry  it,  to  say  that,  by  the  easy  means  of  entithng 
and  fihng  it  in  a  cause,  a  sufficient  foundation  may  be  laid  for  scatter- 
ing any  libel  broadcast  with  impunity."  In  that  case,  to  be  sure,  the 
paper  had  been  neither  presented  to  the  court  nor  entered  upon  the 
docket.  But  the  fundamental  ground  of  the  decision  was  that  it  had 
not  been  made  the  foundation  of  any  judicial  action.  The  rule  again 
was  well  stated  in  Barber  v.  St.  Louis  Dispatch,  3  ]\Io.  App.  Zll ,  in 
language  which,  though  used  by  a  court  of  inferior  jurisdiction,  often 
has  been  quoted  with  approval  by  courts  of  last  resort.  So  too  the 
Supreme  Court  of  Rhode  Island  has  said,  in  Metcalf  v.  Times  Publish- 
ing Co.,  20  R.  I.  674,  678,  40  Atl.  864,  865  (78  Am.  St.  Rep.  900), 
that  the  rule  of  privilege  "gives  no  license  to  publish  libelous  matter 
simply  because  it  is  found  in  the  files  of  a  court.  As  publishers  of 
news  and  items  of  public  importance  the  press  should  have  the  freest 
scope,  but  as  a  scandal-monger  it  should  be  held  to  the  most  rigid  lim- 
itation. If  a  man  has  not  the  right  to  go  around  to  tell  the  charges 
made  by  one  against  another,  much  less  should  a  newspaper  have  the 
right  to  spread  it  broadcast  and  in  an  enduring  form.  It  is  neces- 
sary to  the  ends  of  justice  that  a  party  should  be  allowed  to  make  his 
charges  against  another,  for  adjudication,  even  though  they  may  be  of 
a  libelous  character,  and  as  such  they  are  privileged.  *  *  *  gut 
the  right  of  a  party  to  make  charges  gives  no  right  to  others  to  spread 
them."  See,  also.  Park  v.  Detroit  Free  Press  Co.,  72  Mich.  560,  40 
N.  W.  731,  1  Iv.  R.  A.  599,  16  Am.  St.  Rep.  544,  and  American  Pub. 
Co.  v.  Gamble,  115  Tenn.  663,  90  S.  W.  1005.  The  general  doctrine 
of  privilege  has  been  limited  similarly  in  analogous  cases.  Monaghan 
v.  Globe  Newspaper  Co.,  190  :\Iass.  394,  17  N.  E.  467 ;  Sweet  v.  Post 
Publishing  Co.,  215  Mass.  450,  102  N.  E.  660;  Smith  v.  Streatfield 
(1913)  3  K.  B.  764. 

The  averments  of  the  declaration  mentioned  in  the  defendant's 
article  had  not  been  made  the  subject  of  any  judicial  action  within  the 
rule  which  we  have  stated.  The  woman  named  in  that  article  had 
brought  an  action  against  this  plaintiff,  but  had  failed  to  enter  it  in 
court  upon  the  return  day  thereof.  She  then  presented  to  the  court  a 
petition  that  she  be  allowed  to  make  a  late  entry  of  her  writ  and  dec- 
laration. Her  petition  was  allowed  by  the  court  upon  consent  of  the 
respondent  thereto.  But  this  was  merely  a  permission  given  to  that 
plaintiff  to  make  a  late  entry  of  her  action,  under  R.  L.  c.  173,  §  11. 
It  involved  no  examination  of  the  averments  of  her  declaration  in  that 
action,  no  passing  upon  their  sufficiency,  no  consideration  of  the  ques- 
tion whether  she  was  entitled  to  any  special  relief  pending  the  suit,  or 
of  the  question  whether  any  special  process  should  be  issued  against 
the  defendant  therein  under  the  provisions  of  R.  L.  c  167,  §  80,  or 
otherwise.  There  was  no  question  as  to  the  making  of  any  order  rest- 
ing upon  the  character  of  her  action  or  of  the  charges  made  in  her 
declaration.  Indeed,  there  was  and  is  nothing  to  indicate  that  her 
declaration  was  presented  to  any  judge  for  action  of  any  kind,  and 


Ch.  2)  ABSOLL'TE   TORTS   OTHER  THAN  TRESPASSES  693 

the  defendant  made  no  pretense  at  the  trial  that  this  was  the  case. 
It  cannot  be  said  that  there  was  any  judicial  action  whatever  upon  that 
declaration.  For  this  reason  the  case  stands  now  as  showing  the  bare 
repetition  by  the  defendant  of  charges  made,  or  claimed  to  have  been 
made,  by  a  third  person  in  her  action  against  this  plaintiflf.  As  we 
have  seen,  because  the  defendant  had  no  privilege  to  report  these 
charges,  it  took  tlie  risk,  when  it  chose  to  repeat  them,  of  being  held 
liable  for  any  damage  thus  caused  to  this  plaintifif.  The  privilege 
which  that  woman  enjoyed  of  stating  her  charges  against  this  plain- 
tiff for  the  purpose  of  having  them  adjudicated  did  not  extend  to  this 
defendant  or  afford  it  any  defense  for  the  publication  of  libelous 
matter.     *     *     *  is 

Exceptions  overruled.  ^ 


(2)  Communications  in  Pursuance  of  a  Duty 

CHILD  V.  AFFLECK  et  ux. 

(Court  of  King's  Bench,  1829.    9  Barn.  &  C.  403,  33  R.  R.  216,  109  Reprint,  150.) 

Case  for  a  libel.  Plea,  the  general  issue.  At  the  trial  before  Lord 
Tenterden,  C.  J.,  at  the  Westminster  sittings  after  Hilary  Term,  it 
appeared  in  evidence  that  the  plaintiff  had  been  in  the  service  of  the 
defendants,  IMrs.  Affleck  having  before  she  hired  her  made  inquiries 
of  two  persons,  who  gave  her  a  good  character.  The  plaintiff  re- 
mained in  that  service  a  few  months,  and  was  afterwards  hired  by 
another  person,  who  wrote  to  Mrs.  Affleck  for  her  character,  and  re- 
ceived the  following  answer,  which  was  the  alleged  libel : 

"Mrs.  A.'s  compliments  to  Mrs.  S.,  and  is  sorry  tliat  in  reply  to  her  in- 
quiries respecting  E.  Child,  nothing  can  be  in  justice  said  in  her  favour.  She 
lived  with  Mrs.  A.  but  for  a  few  weeks,  in  which  short  time  she  frequently 
conducted  herself  disgracefully ;  and  Mrs.  A.  is  concerned  to  add  she  has, 
since  her  dismissal,  been  credibly  informed  she  has  been  and  now  is  a  pros- 
titute in  Bury." 

In  consequence  of  this  letter  the  plaintiff  was  dismissed  from  her 
situation.  It  further  appeared  that  after  that  letter  was  written,  ]\Irs. 
Affleck  went  to  the  persons  who  had  recommended  the  plaintiff  to 
her,  and  made  a  similar  statement  to  them.  Upon  this  evidence  it 
was  contended,  for  the  defendants,  that  there  was  no  proof  of  malice, 
and  that  consequently  the  plaintiff  must  be  nonsuited.     On  the  other 

15  Accord:  Williams  v.  New  York  Herald  Co.  (1914)  165  App.  Div.  529, 
1.50  X.  Y.  Supp.  8.'1S,  where  Scott,  J.,  adopts  the  language  of  Stiness,  J.,  in 
Metcalf  V.  Times  Publishing  Co.  (1898)  20  R.  I.  674,  678,  40  Atl.  864,  78  Am. 
St.  Rep.  900:  "It  is  necessary  to  the  ends  of  justice  that  a  party  should  be 
allowed  to  make  his  charges  against  another,  for  adjudication,  even  though 
they  may  be  of  a  libelous  character,  and  as  such  they  are  privileged, 
the  injured  party  having  a  remedy  for  malicious  prosecution  when  they  are 
made  maliciously  or  without  probable  cause.  But  the  right  of  a  party  to 
make  charges  gives  no  right  to  others  to  spread  them." 


694  TORTS  THROUGH   ACTS   OP   ABSOLUTE  LIABILITY    ^        (Part  1 

hand,  it  was  urged  that  Mrs.  Affleck's  statement  of  what  the  plaintiff's 
conduct  had  been  after  she  left  her  sendee  was  not  privileged,  and 
that,  at  all  events,  that  part  of  the  letter  and  the  statement  that  she 
voluntarily  made  to  other  persons,  and  not  in  answer  to  any  inquiries, 
were  evidence  of  malice.  Lord  Tenterden,  C.  J.,  was  of  opinion  that 
the  latter  part  of  the  letter  was  privileged,  and  that  the  other  communi- 
cations being  made  to  persons  who  had  recommended  the  plaintiff 
were  not  evidence  of  malice,  and  he  directed  a  nonsuit. 

Parke,  J.  The  rule  laid  down  by  Lord  Mansfield  in  Edmonson  v. 
Stevenson,  Bull.  N.  P.  8,  has  been  followed  ever  since.  It  is,  that 
in  an  action  for  defamation  in  giving  a  character  of  a  servant,  "the  gist 
of  it  must  be  malice,  which  is  not  implied  from  the  occasion  of  speak- 
ing, but  should  be  directly  proved."  The  question  then  is,  whether 
the  plaintiff*  in  this  case  adduced  evidence,  which,  if  laid  before  a 
jury,  could  properly  lead  them  to  find  express  malice.  That  does  not 
appear  upon  the  face  of  the  letter.  Prima  facie  it  is  fair,  and  un- 
doubtedly a  person  asked  as  to  the  character  of  a  servant  may  com- 
municate all  that  is  stated  in  that  letter.  Independently  of  the  letter, 
there  was  no  evidence  except  of  the  two  persons  that  had  recommended 
the  plaintiff.  The  communication  to  them,  therefore,  was  not  officious, 
and  Mrs.  Affleck  was  justified  in  making  it.  In  Rogers  v.  Clifton, 
3  Bos.  &  P.  587,  evidence  of  the  good  conduct  of  the  servant  was 
given,  and  the  communication  also  appeared  to  be  officious.  In  Black- 
burn V.  Blackburn,  29  R.  R.  583,  4  Bing.  395,  the  occasion  of  writing 
the  alleged  libel  did  not  distinctly  appear,  it  was  therefore  properly 
left  to  the  jury  to  say,  whether  it  was  confidential  and  privileged  or 
not,  and  they  found  that  it  was  not.  Here  the  letter  was  undoubtedly 
prima  facie  privileged,  the  plaintiff,  therefore,  was  bound  to  prove 
express  malice  in  order  to  take  away  the  privilege.^* 

Rule   refusecj. 


HARRISON  V.  BUSH. 
(Court  of  Queen's  Bench,  1S55.    5  El.  &  Bl.  344,  119  Reprint.  .509.  103  R.  R.  507.) 

Lord  Campbell,  C.  J.^'  This  was  an  action  for  a  libel  tried  before 
my  brother  Crowder  at  the  last  Salisbury  assizes.  The  defendant 
pleaded  Not  Guilty,  and  a  justification. 

It  appeared  that  Dr.  Harrison,  the  plaintiff,  before  and  at  the 
time  when  the  cause  of  action  accrued,  was  a  justice  of  peace  for  the 
county  of  Somerset,  and  was  in  the  habit  of  acting  in  petty  sessions 
held  in  the  borough  of  Frome.  In  the  month  of  October  last,  there 
was  a  contested  election  for  a  member  to  represent  this  borough  in 

16  The  opinions  of  Lord  Tenterden,  C.  J.,  and  of  Bayloy  and  Littledale,  J  J., 
are  omitted. 

17  The  reporter's  statement  of  tlie  facts  and  parts  of  the  opinion  are 
omitted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  695 

Parliament.  During  the  election,  there  was  much  excitement;  many 
windows  were  broken  by  the  mob;  and  there  were  dangerous  riots 
in  the  streets.  The  defendant  was  an  elector  and  an  inhabitant  of 
the  borough ;  and,  after  the  election  Avas  over,  he  and  several  hundred 
other  inhabitants  of  the  borough  prepared,  signed,  and  transmitted  to 
Viscount  Palmerston  a  memorial  complaining  of  the  conduct  of  the 
plaintiff  as  a  magistrate  during  the  election,  imputing  to  him  that  he 
had  made  speeches  directly  inciting  to  a  breach  of  the  peace ;  that, 
after  reading  the  Riot  Act,  he  had  sent  a  man  into  the  streets  armed 
with  a  bludgeon,  and  ordered  him  to  strike  any  person  he  might  meet, 
indiscriminately;  and  that  he  had  himself  violently  struck  and  kicked 
several  men  and  women.  The  memorial  alleged  that  the  plaintiff 
ought  not  to  be  allowed  to  remain  in  Her  Majesty's  Commission  of 
the  peace,  and  concluded  thus :  "Your  memorialists  therefore  earnestly 
pray  that  your  Lordship  will  cause  such  an  inquiry  to  be  made  into 
the  conduct  of  the  said  Dr.  Harrison  as  your  Lordship  may  think  fit ; 
and  that,  on  the  allegations  contained  in  the  memorial  being  duly  sub- 
stantiated and  verified,  your  Lordship  will  feel  it  to  be  your  duty  to 
recommend  to  Her  Majesty  that  the  said  Dr.  Harrison  be  removed 
from  the  commission  of  the  peace."     *     *     * 

The  learned  Judge  said  that  on  the  authority  of  Blagg  v.  Sturt,^* 
he  should  rule  that  the  memorial  to  the  Secretary  of  State  was  not 
a  privileged  communication,  but  would  reserve  leave  to  the  defendant 
to  move  to  enter  a  verdict  for  him,  if  the  jury  found  bona  fides.  On 
this  point,  he  desired  them  to  consider  "whether  the  memorial  was 
got  up  and  signed  by  the  defendant  honestly  for  the  purpose  which  is 
stated  in  it,  or  whether  the  defendant  had  any  bye  motive?  If  they 
found  bona  fides  or  not,  they  would  assess  damages ;  but  these  would 
vary  as  they  thought  defendant  was  actuated  more  or  less  by  any 
malicious  feeling.  If  he  acted  altogether  bona  fide,  damages  would 
be  very  considerably  modified."  The  jury  found  a  verdict  for  the 
plaintiff,  damages  20s.,  saying:  "We  consider  it  a  bona  fide  me- 
morial." 

18  In  Blasg  V.  Sturt  (1846)  10  Q.  B.  899,  it  appeared  that  D.  sent  to  the 
Secretary  of  State  a  letter  which  imputed  to  P.,  who  was  town  clerk,  and 
clerk  to  the  justices,  corruption  in  the  latter  office.  But  the  Secretary  of 
State  had  no  direct  authority  in  respect  of  the  matter  complained  of  and 
was  not  a  competent  tribunal  to  receive  the  application.  In  Harrison  v. 
Bush,  on  the  other  hand,  Lord  Campbell  reached  the  conclusion  that  al- 
though the  defendant  might  have  addressed  the  memorial  to  the  Lord  Chan- 
cellor, in  which  case  it  would  certainly  have  been  privileged,  it  was  equally 
privileged  being  addressed  to  the  Secretary'  of  State.  "Legally  and  constitu- 
tionally a  justice  of  the  peace  is  appointed  and  removed  by  the  sovereign, 
acting,  as  in  every  other  exercise  of  the  prerogative,  by  the  advice  of  a  re- 
sponsible minister.  Considering  this  as  virtually  a  communication  to  the 
Queen  through  her  Secretary  of  State,  it  cannot  bo  doubted  that  Ilor  Majesty 
has  an  interest  in  the  matter ;  for  she  Ls  to  see  that  all  in  authority  under 
her  do  their  duty,  and  that  justice  is  duly  admiuistered  to  all  her  subjects. 
We  therefore  come  to  the  conclusion  that  this  was  a  privileged  communica- 
tion, and  that  the  verdict  ought  to  be  onlprod  for  tlie  defendant." 


696  TORTS  THROUGH  ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

A  rule  has  been  obtained  to  enter  a  verdict  for  the  defendant; 
and  this  we  think  ought  to  be  made  absohite. 

During  the  argument,  a  legal  canon  was  propounded  for  our  guid- 
ance by  the  plaintiff's  counsel;  and  this  we  are  willing  to  adopt,  as 
we  think  that  it  is  supported  by  the  principles  and  authorities  upon 
which  the  doctrine  of  privileged  communications  rests.  "A  com- 
munication made  bona  fide  upon  any  subject  matter  in  which  the  party 
communicating  has  an  interest  or  in  reference  to  which  he  has  a  duty, 
is  privileged  if  made  to  a  person  having  a  corresponding  interest  or 
duty,  although  it  contained  criminatory  matter  which,  without  this 
privilege,  would  be  slanderous  and  actionable."  In  the  present  case, 
little  need  be  said  to  show  that  the  communicator  had  both  an  interest 
and  a  duty  in  the  subject  matter  of  the  communication.  Assuming  that 
Dr.  Harrison  had  misconducted  himself  as  a  magistrate  in  the  man- 
ner alleged,  all  the  electors  and  inhabitants  of  Frome  had  suffered  a 
grievance  by  the  magistrate  having  fomented  the  riot  instead  of  quell- 
ing it,  and  having  endangered  instead  of  protecting  life  and  property 
within  the  borough.  They  have  an  interest  that  they  may  not  longer 
remain  subject  to  the  jurisdiction  of  a  magistrate  who  so  violates  the 
law.  Again,  if  Dr.  Harrison  had  so  misconducted  himself  as  a  magis- 
trate, he  had  committed  an  offence,  and  it  was  the  duty  of  those  who 
witnessed  it  to  try  by  all  reasonable  means  in  their  power  that  it  should 
be  inquired  into  and  punished.  "Duty,"  in  the  proposed  canon,  can- 
not be  confined  to  legal  duties  which  may  be  enforced  by  indictment, 
action,  or  mandamus,  but  must  include  moral  and  social  duties  of  im- 
perfect obligation.  One  mode  of  proceeding  for  this  offence  would 
have  been  by  applying  to  us  for  a  criminal  information,  and  seeking 
to  have  the  offender  punished  by  fine  and  imprisonment.  But  another, 
which  though  milder,  may  be  more  effectual,  is  to  try  by  lawful  and 
constitutional  means  to  have  the  offender  removed  from  his  office, 
without  calling  down  upon  him  the  sentence  of  a  criminal  Court.  In 
this  land  of  law  and  liberty,  all  who  are  aggrieved  may  seek  redress ; 
and  the  alleged  misconduct  of  any  who  are  clothed  with  public  author- 
ity may  be  brought  to  the  notice  of  those  who  have  the  power  and 
duty  to  inquire  into  it,  and  to  take  steps  which  may  prevent  the  repeti- 
tion of  it.     *     *     * 

Rule  absolute. 


HEBDITCH  V.  MacILWAINE  et  al. 

(In  the  Court  of  Appeal.     [1894]  2  Q.  B.  54.) 

The  action  was  for  libel.  The  defendants  pleaded  a  justification 
and  privilege.  It  appeared  that  the  plaintiff  had  been  elected  to  the 
office  of  guardian  of  the  poor  of  the  parish  of  South  Petherton.  The 
defendants,  who  were  rate  payers  of  the  parish  and  entitled  to  vote 
at  the  election,  signed  and  sent  to  the  board  of  guardians  a  letter 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES 


697 


complaining  of  certain  irregularities  which  they  alleged  to  have  oc- 
curred at  the  election,  and  suggesting  that  the  matter  ought  to  be  in- 
quired into.  *  *  *  The  plaintiff  alleged  that  the  effect  of  the 
letter  was  to  impute  that  he  himself  had  participated  in  the  malprac- 
tices therein  mentioned. 

The  judge  left  to  the  jury  the  following  questions:  1.  Whether 
the  letter  was  libellous  with  regard  to  the  plaintiff.  2.  Whether  the 
plea  of  justification  was  proved.  3.  Whether  the  defendants  honest- 
ly believed  it  to  be  their  duty  to  make  each  and  all  of  the  communica- 
tions contained  in  the  letter  to  the  board  of  guardians,  and  did  so 
acting  under  a  sense  of  that  duty.  4.  Whether  the  defendants  honest- 
ly and  reasonably  believed  that  the  board  of  guardians  were  the  prop- 
er authority  to  whom  to  apply  in  respect  of  each  and  all  of  the  mat- 
ters mentioned  in  the  letter.  The  judge  reserved  any  question  of 
actual  malice  until  these  questions  had  been  answered.  The  jury  found 
that  the  letter  was  libellous  with  regard  to  the  plaintiff,  and  that  the 
plea  of  justification  was  not  proved.  In  answer  to  the  third  question 
they  found  that  the  defendants  acted  partly  from  a  sense  of  duty, 
and  partly  not.  In  answer  to  the  fourth  question  they  found  that 
the  defendants  did  honestly  and  reasonably  believe  that  the  board  of 
guardians  were  the  proper  authority  to  whom  to  apply.  The  judge, 
thinking  the  effect  of  these  answers  ambiguous,  asked  the  jury  the 
following  further  questions:  1.  Whether  the  defendants  wrote  the 
first  part  of  the  letter  under  a  sense  of  duty,  and  believing  the  board 
of  guardians  to  be  the  proper  authority  to  whom  to  apply.  2.  A 
similar  question  with  regard  to  the  latter  part  of  the  letter.  The 
jury  answered  the  first  of  these  questions  in  the  affirmative,  and  the 
second  in  the  negative. 

The  judge  thereupon  held  that  the  occasion  was  not  wholly  priv- 
ileged, and,  therefore  the  plaintiff  was  entitled  to  damages,  the  amount 
of  which  he  asked  the  jury  to  assess.  The  jury  assessed  the  damages 
at  £10,  for  which  sum  the  judge  gave  the  plaintiff  judgment. 

J.  Alderson  Foote,  for  the  defendants.  The  defendants  as  rate 
payers  had  an  interest  in  the  matter  to  which  the  letter  related.  It 
may  be  admitted  that  the  board  of  guardians  could  take  no  action  in 
the  matter  brought  before  them  by  the  defendants.  They  could  not 
avoid  the  plaintiff's  election.  That  could  only  be  done  by  a  petition 
under  the  Municipal  Corporations  Act,  1882,  part  IV.  *  *  *  It 
is  contended  however,  that,  where  a  person  who  has  a  grievance  makes 
a  complaint  in  respect  thereof  to  a  person  or  body,  whose  duty  he 
honestly  and  reasonably  believes  it  to  be  to  inquire  into  and  redress 
such  grievance,  the  occasion  is  privileged.     *     *     * 

Lord  EsHER,  M.  R.^°      *      *      *      It  must  be  borne  in  mind  that  the 

19  The  statement  of  the  case  and  the  argiuiients  of  counsel  are  abridged 
and  parts  of  the  opinion  are  omitted.  There  were  concurring  opinions  by 
A.  L.  Smith  and  Davey,  L.  JJ. 


898  TORTS  THROUGH   ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

material  part  of  the  cause  of  action  in  libel  is  not  the  writing,  but  the 
publication  of  the  libel.  It  was  proved  that  the  defendants  had  written 
and  published  to  the  board  of  guardians  matter  which  the  jury  found 
libellous  with  regard  to  the  plaintiff,  and  which  was  untrue.  The  de- 
fendants set  up  by  way  of  defence  that  the  occasion  was  privileged. 
It  is  for  the  defendant  to  prove  that  the  occasion  was  privileged.  If 
the  defendant  does  so,  the  burden  of  shewing  actual  malice  is  cast 
upon  the  plaintiff,  but,  unless  the  defendant  does  so,  the  plaintiff  is 
not  called  upon  to  prove  actual  malice.  The  question  whether  the 
occasion  is  privileged  if  the  facts  are  not  in  dispute,  is  a  question  of 
law  only,  for  the  judge,  not  for  the  jury.  If  there  are  questions  of 
fact  in  dispute  upon  which  this  question  depends,  they  must  be  left 
to  the  jury,  but,  when  the  jury  have  found  the  facts,  it  is  for  the 
judge  to  say  whether  they  constitute  a  privileged  occasion. 

What  are  the  facts  upon  which  the  question  whether  the  occasion 
was  privileged,  depends  in  the  present  case  ?  There  had  been  an  election 
to  the  office  of  guardian  of  the  poor,  and  the  paintiff  had  been  elected. 
The  defendants  were  rate  payers  who  had  a  right  to  vote  at  the  election. 
After  the  election  they  wrote  and  sent  the  letter  containing  the  mat- 
ter complained  of  to  the  board  of  guardians.  It  seems  clear  that, 
when  that  board  had  received  the  letter,  they  could  do  nothing  in  the 
matter.  They  could  not  set  aside  the  election.  Such  being  the  facts 
of  the  case,  what  was  the  judge  called  upon  to  consider  in  dealing 
with  the  question  whether  the  occasion  was  privileged?  He  had  first 
to  consider  whether  the  defendants,  who  published  the  defamatory 
matter,  had  any  interest  or  duty  in  connection  with  the  subject  which 
they  thus  brought  before  the  board  of  guardians.  I  am  not  prepared  to 
say  that  they  had  not  an  interest  or  duty.  On  the  contrary  I  am 
inclined  to  think  that  they  had  an  interest  in  the  matter.  They  were 
electors  and  had  an  interest  in  having  the  office  filled  by  a  person 
properly  elected.  Then  the  position  of  the  board  of  guardians,  to 
whom  the  defamatory  matter  was  published,  had  to  be  considered. 
They  had  no  interest  in  the  matter,  as  it  seems  to  me,  and,  as  I  have 
already  said,  they  had  no  duty  or  power  to  take  any  action  upon 
the  communication  made  to  them.  Under  these  circumstances  I 
think  it  clear  that  the  occasion  was  not  privileged. 

It  was  argued  that,  although  the  board  of  guardians  had  no  power 
or  duty  or  interest  in  the  matter,  nevertheless  the  occasion  was  priv- 
ileged, because  the  defendants  honestly  and  reasonably  believed  that 
the  board  had  such  a  duty  or  power  or  interest,  and  were  asking 
them  for  redress  in  the  matter  which  they  believed  they  could  give. 
Assuming  that  the  defendants  had  such  a  belief,  though  I  confess  I 
cannot  see  how  there  could  be  any  reason  in  such  a  belief,  the  argu- 
ment in  substance  seems  to  come  to  this:  that  the  belief  of  the  defend- 
ants that  the  occasion  was  privileged  mal<es  it  privileged.  I  cannot 
accept  the  proposition  so  put  forward.  I  cannot  see  how  the  belief 
of  the  defendants  who  have  made  a  mistake,  and  have  published  a 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  699 

libel  to  persons  who  have  no  interest  or  duty  or  power  in  the  matter, 
can  affect  the  question.  The  belief  of  the  defendants  might  have 
a  bearing  on  the  question  of  malice;  if  it  be  assumed  that  the  occa- 
sion was  privileged,  the  belief  of  the  defendants  might  be  strong  to 
shew  that  the  communication  was  privileged,  as  being  made  without 
malice,  but  I  do  not  think  it  has  anything  to  do  with  the  question 
whether  the  occasion  was  privileged.""     *     *     * 

Application  [by  defendant  for  judgment  or  a  new  trial]   dismissed. 


TODD  v.  HAWKINS. 

(Northern  Spring  Circuit,  York  Assizes,  1S37.     8  Car.  &  P.  88,  56  R.  R.  834.) 

Libel.  Plea,  not  guilty.  It  appeared  that  the  plaintiff  was  a  share- 
broker,  and  that  the  plaintiff  and  the  defendant  had  also  been  in  part- 
nership in  the  tea  trade,  but  that  they  had  dissolved  their  partner- 
ship in  the  year  1835.  It  further  appeared  that  the  wife  of  the  de- 
fendant was  the  daughter  of  the  late  Dr.  Taft,  a  Wesleyan  minister, 
and  that  in  the  year  1836  the  plaintiff  was  paying  his  addresses  to 
Mrs.  Taft,  the  mother  of  the  defendant's  wife.  These  facts  were 
proved  by  Mrs.  Taft,  who  also  stated,  that  in  the  month  of  July,  1836, 
she  received  a  letter,  which  was  the  subject  of  the  present  action,  from 

20  Lord  Esher  liere  considered  the  question  on  authority,  found  only  one 
case  which  "really  seems  to  me  to  be  a  strong  authority  in  favour  of  the 
defendant's  contention,"  Thompson  v.  Dashwood  (1S83)  11  Q.  B.  D.  43,  and  as 
to  it  remarked:  "The  only  way  to  deal  with  that  case,  in  my  opinion,  is  to 
say  that  we  do  not  agree  with  it."  In  his  concurring  opinion  Davey,  L.  J., 
remarked:  "I  desire  to  say  that  I  agree  with  the  Master  of  the  Rolls  in 
thinking  that  Tompson  v.  Dashwood  cannot  be  supported." 

The  facts  in  Tompson  v.  Dashwood  (1883)  11  Q.  B.  D.  43,  were  as  follows: 
The  plaintiff  was  the  managing  director,  with  a  salary,  of  a  manufacturing 
company.  The  defendant  was  a  director  in  the  same  company.  The  plain- 
tiff and  the  defendant  being  about  to  go- to  the  continent  at  the  expense  of  the 
company,  the  defendant  wrote  to  the  chairman  of  the  company,  Colonel  Wood, 
a  letter  suggesting  that  the  secretaiy's  cash  book  be  looked  into,  to  see  what 
sums  the  plaintiff  had  charged  against  the  company  for  travelling  expenses, 
and  intimating  that  they  were  excessive.  At  the  same  time,  the  defend- 
ant wrote  another  letter,  about  a  different  matter,  to  the  secretary  of  the 
company,  who  was  the  plaintiff's  brother.  By  mistake  the  defendant  put 
each  letter  into  the  envelope  intended  for  the  other,  so  that  the  letter  in- 
tended for  the  chairman  went  to  the  secretary,  who  handed  it  to  his  brother. 
On  these  facts,  it  was  held  in  the  Queen's  Bench  Division  that  the  publica- 
tion was  privileged.  "It  is  admitted,"  said  Watkin  Williams,  J.,  "that  the 
defendant  stood  in  such  a  relation  to  Colonel  Wood  that  in  writing  to  him 
the  legal  implication  of  malice  was  technically  rebutted,  and  the  defend- 
ant, in  the  absence  of  malice  in  fact,  was  protected  by  privilege;  but  it  is 
contended  for  the  plaintiff  that,  the  defendant  having  carelessly  put  the 
letter  into  the  wrong  envelope,  so  that  it  reached  the  hands  of  a  person  with 
whom  he  had  no  such  relation,  the  protection  of  privilege  is  destroyed,  and 
the  case  put  into  the  condition  in  which  the  law  implies  malice.  I  think 
there  is  a  fallacy  in  that  contention.  The  defendant's  state  of  mind  was 
never  altered.  His  intention  was  always  honestly  to  do  that  which  he  con- 
ceived to  be  his  duty.  I  can  see  nothing  to  justify  the  conclusion  as  a  mat- 
ter of  law,  that  by  reason  of  the  defendant's  inadvertence  the  case  is  taken  out 
of  the  category  of  privilege,  so  that  malice  should  lie  implied." 


700  TORTS  THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

the  defendant,  and  that  she  gave  it  to  the  plaintiff,  who  returned  it 
after  a  copy  had  been  made  of  it,  and  that  the  original  letter  was 
then  burnt.  In  her  cross-examination  Mrs.  Taft  said,  the  defendant 
would  receive  an  accession  of  property  on  her  second  marriage,  or 
when  his  youngest  child  comes  of  age,  which  would  be  about  seven 
years  hence,  so  that  property  would  the  sooner  come  into  the  posses- 
sion of  the  defendant,  in  right  of  his  wife,  by  Mrs.  Taft's  second 
marriage. 

The  letter  was  to  the  following  effect : 

"Dear  Ma.  I  feel  very  severely  the  coldness  and  constraint  which  com- 
pels me  to  communicate  my  sentiments  to  you  through  the  medium  of  a 
letter,  but  the  misery  to  yourself  and  the  evil  consequences  to  your  family, 
which  must  inevitably  ensue  from  the  step  I  fear  you  are  about  to  take,  impel 
me  to  waive  every  private  consideration  and  to  do  my  duty  to  you  honest- 
ly, and,  I  hope  you  will  feel,  respectfully,  as  I  am  quite  sure  you  would  to  me 
under  an  exchange  of  circumstances ;  but  whilst  in  the  following  remarks  1 
express  my  own  private  sentiments,  I  am  anxious  you  should  believe  me 
they  also  contain  the  opinion  (for  there  is  but  one)  of  all  our  friends 
without  any  exception.  *  =  *  Now,  I  am  quite  sure  from  all  that  I 
have  ever  seen  and  known  of  your  character  that  wilfully  to  do  so  with  your 
eyes  oi>en  would  be  utterly  abhorent  to  you,  and  that  it  can  only  be  account- 
ed for  by  your  being  the  victim  to  the  plausible  artifice  of  a  wicked  and  art- 
ful man,  and  I  most  earnestly  wish  you  to  investigate  thoroughly  his  char- 
acter, for  I  honestly  assure  you,  and  I  speak  it  as  free  from  personal  preju- 
dice as  I  am  able,  and  with  the  fear  of  a  lie  in  my  heart,  thai  his  character 
in  I'ork  amongst  those  who  best  know  him  is  that  of  an  unprincipled  trick- 
ster. To  make  money,  by  no  matter  what  means,  appears  to  be  his  prin- 
cipal object,  as  he  is  constantly  descending  in  transactions  of  that  nature 
to  the  meanest  artifice  and  juggle,  which  an  honest-minded  man  would 
rather  die  than  be  guilty  of.  *  *  *  INIanmia,  examine  well  into  your  mo- 
tives, search  deeply  your  own  heart.  Is  the  love  of  money  or  anxiety  after 
worldly  appearance  there?  Are  you  sacrificing  to  Mammon,  and  making  your 
children  pass  through  the  fire  to  Moloch?  The  spoils  of  the  widow  and  fa- 
therless are  in  his  treasure,  the  moth  and  rust  will  cornipt  tliem,  and  his 
money  will  perish  in  the  using.  Do  let  me  press  upon  you  the  conduct  which, 
as  a  prudent  person  you  ought,  and  as  a  professor  of  Christ  you  dare  not 
but  do.  I  mean,  earnest  and  agonizing  prayer  for  that  guidance  and  direc- 
tion of  the  spirit  of  God  which  is  promised  for  these  special  occasions,  by 
thoroughly  examining  your  motives,  a'nd  weighing  well  the  consequences  of 
such  a  step ;  and  then,  by  diligent  and  extensive  inquiry  from  i^arties  most 
likely  to  give  you  honest  and  necessary  information  as  to  his  character,  and 
fitness  for  increasing  and  adding  to  the  comfort  and  establishment  of  those 
interests  whicli  it  is  your  duty,  and  I  have  no  doubt  your  intention  to  pi'o- 
tect — I  say,  if  after  having  jjursued  this  course  you  think  him  a  man  to 
whom  you  can  fearlessly  surrender  your  charge,  I  can  only  say  that  no  one 
will  more  rejoice  than  myself  if  the  issue  be  happy.  But  so  contrary  is  my 
conviction  of  the  result,  that  my  earnest  and  daily  prayer  to  Cod  is,  that 
he  who  has  promised  to  be  a  husband  to  the  widow,  to  be  her  counsellor 
and  guide,  and  has  declared  that  he  will  deal  kindly  with  the  relicts  of  his 
saints,  will  deliver  you  from  this  fatal  snare,  which  has  already  had  an 
unfavourable  effect  tipon  your  character  in  the  opinions  of  respectable  and 
intelligent  people  both  in  and  without  the  pale  of  the  Christian  church,  and 
will  eventually  nain  your  peace.  I  pray  God  bestow  upon  you  every  neces- 
sary good,  and  so  direct  your  way  that  you  may  keep  his  testimonies. 

"Yours  very  affectionately,  W.  Hawkins." 

AldKrson,  B.^^  (in  summing  up).  *  *  *  Here  is  a  widow  about 
to  contract  marriage  with  the  plaintiff ;    the  defendant  is  her  son  in  law ; 

21  Part  of  the  opinion  is  omitted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  701 

1  think,  therefore,  that  he  was  justified  in  writing  this  letter  to  her, 
provided  you  are  satisfied  that  in  doing  so  he  acted  bona  fide,  al- 
though the  imputations  contained  in  the  letter  be  false,  or  based  upon 
the  most  erroneous  information.  There  is  no  doubt,  that  unless  this 
letter  was  justified  by  the  occasion,  it  is  a  libel,  and  had  Mrs.  Taft 
and  the  defendant  been  strangers  to  each  other  this  would  have  been 
a  mere  question  of  damages.  However,  in  this  case,  although  the 
letter  be  derogatory  to  the  plaintiflf's  character,  and  written  in 
stronger  language  than  a  prudent  man  would  use,  you  must  consider 
whether  it  was  written  sincerely,  and  with  a  desire  to  benefit  the  person 
to  whom  it  was  addressed.  The  letter  professes  to  be  so,  and  you  must 
decide  whether  that  profession  is  made  bona  fide.  The  request  that 
this  lady  would  make  diligent  and  extensive  inquiry  into  the  character 
of  Mr.  Todd  was  extremely  good  advice,  and  so  is  the  exhortation 
to  her  to  apply  herself  to  prayer.  It  may  not  be  judicious  on  trifling 
or  light  occasions  to  make  reference  to  sacred  things ;  but  on  an  im- 
portant occasion  like  that  which  calls  forth  this  letter,  no  better  ad- 
vice could  be  given.  The  question  you  have  to  try  is,  not  whether 
Mr.  Todd  was  guilty  of  the  charges  laid  against  him,  but  whether, 
although  the  defendant  may  have  acted  rashly,  he  wrote  the  letter 
bona  fide.  So  far  as  pecuniary  interests  are  concerned,  it  would  be 
to  the  advantage  of  the  defendant  that  this  lady  should  marry,  and 
that  tends  to  show  bona  fides,  as  men  do  not  in  general  act  maliciously 
and  at  the  same  time  against  their  own  interests.  The  whole  of  the 
circumstances  are  before  you,  and  the  occasion  is  one  which  prima 
facie  justifies  the  letter.  If,  however,  the  defendant  has  availed  him- 
self of  the  occasion  for  malicious  purposes,  he  must  answer  for  what 
he  has  done.  If,  on  the  other  hand,  he  has  used  expressions,  however 
harsh,  hasty,  or  untrue,  yet  bona  fide,  and  believing  them  to  be  true, 
he, was  justified  in  so  doing.  It  is  for  the  good  of  all  that  communi- 
cations of  this  kind  should  be  viewed  liberally  by  juries ;  and  unless 
you  see  clearly  that  this  letter  was  written  with  a  malicious  intention 
of  defaming  the  plaintiff,  your  verdict  ought  to  be  for  the  defendant.^' 

2  2  On  the  principle  involved,  see  the  remarks  of  Willes,  J.,  in  Hen  wood 
V.  Harrison  (1S72)  L.  R.  7  C.  P.  606,  621. 

See  also  Clark  v.  Molyneux  (1S77)  3  Q.  B.  D.  237:  (D.,  a  clergyman,  wrote 
to  S.,  another  clergynian,  in  whose  church  P.,  also  a  clergyman,  was  to  preach, 
that  D.  had  heard  from  trustworthy  sources  that  P.,  "while  curate  at  Hor- 
ringer,  had  seduced  two  girls."    The  charge  was  false.)     Stuart  v.  Bell,  [1801] 

2  y.  B.  :i41  C.  A.:  (When  P.  and  his  master,  S.,  were  at  Newcastle  as  the 
guests  of  D.,  a  magistrate  and  the  mayor  of  the  town,  the  chief  constable 
of  the  town  shewed  D.  a  letter  stating  that  P.  was  suspected  of  theft  in  a 
hotel  at  Edinburgh,  which  he  had  recently  left.  D.  made  no  enquiry,  hut  just 
before  P.  and  his  mother  left,  D.  informed  S.  privately  of  the  theft  and  the 
suspicion.)  Cameron  v.  Cockran  (189.5)  2  Marv.  (Del.)  166,  42  Atl.  454:  (D., 
a  physician,  referring  to  a  certain  prescription  by  D.  for  S.,  which  had  pro- 
duced bad  effects,  said  to  S.:  "That  prescription  has  a  mistake  in  it.  The 
druggist  [P.]  has  made  a  mistake.     He  don't  know  his  business  anyhow.") 

And  see  18  Halsbury's  Laws  of  I-:ngland,  687,  note  (i)  (1911) ;  25  Cyc.  393, 
note  34:   Key  So.  "Libel  and  Slander,"  §  44. 


702  TORTS  THROUGH  ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

Verdict  for  the  defendant. 

AldErson,  B.      I  hope  it  will  be  understood  that  this  verdict  is 
founded  on  the  fact  that  this  letter  was  a  confidential  communication. 
The  Foreman  of  the  Jury :    My  Lord,  that  is  so. 


"THE  COUNT  JOANNES"  v.  BENNETT. 

(Supreme  Judicial  Court  of  Massachusetts,  1862.     5  Allen,  169,  81  Am. 

Dec.  738.) 

Tort  brought  in  the  name  of  "The  Count  Joannes  (born  'George 
Jones')"  for  two  libels  upon  him  contained  in  letters  to  a  woman  to 
whom  he  was  then  a  suitor,  and  was  afterwards  married,  endeavor- 
ing to  dissuade  her  from  entering  into  the  marriage. 

At  the  trial  it  appeared  that  the  defendant  had'  for  several  years 
held  the  relation  of  pastor  to  the  parents  of  the  woman,  as  members 
of  his  church,  and  to  the  daughter,  as  a  member  of  his  choir;  and 
there  was  evidence  tending  to  shew  that  he  was  on  the  most  intimate 
terms  of  friendship  with  the  parents,  and  that,  being  on  a  visit  from 
his  present  residence  in  Lockport,  New  York,  he  called  upon  the 
father  at  his  place  of  business  in  Boston,  and  was  urged  by  him  to 
accompany  him  to  his  residence  in  South  Boston,  the  father  stating 
that  both  he  and  his  wife  were  in  great  distress  of  mind  and  anxiety 
about  their  daughter,  and  that  they  feared  she  would  engage  herself 
in  marriage  to  the  plaintiff.  On  their  way  to  South  Boston,  the  father 
stated  to  the  defendant  what  he  and  his  wife  had  heard  and  appre- 
hended about  the  plaintiff,  and  their  views  with  regard  to  his  being 
a  suitable  match  for  their  daughter,  who,  with  a  young  child  by  a 
former  husband,  was  living  with  them.  On  reaching  the  house  it 
was  found  that  the  daughter  had  gone  out ;  and  it  was  then  arranged 
that  the  defendant  should  write  a  letter,  and  materials  for  that  pur- 
pose were  furnished  and  the  letter  set  forth  in  the  first  count  was 
written,  addressed  to  the  daughter,  and  left  open  and  unsealed  with 
the  mother,  after  the  principal  portion  of  it  had  been  read  aloud  at 
the  tea-table  in  the  presence  of  the  parents  and  a  confidential  friend 
of  the  family.  On  leaving,  the  defendant  was  further  requested  to 
do  what  he  thought  best  to  induce  the  daughter  to  break  up  the 
match.     *     *     * 

The  judge  ruled  that  neither  of  the  letters  was  a  privileged  com- 
munication ;  and  a  verdict  was  returned  for  the  plaintiff.  The  de- 
fendant alleged  exceptions. 

BiGDLOW,  C.  J.  The  doctrine  that  the  cause  or  occasion  of  the  pub- 
lication of  defamatory  matter  may  afford  a  sufficient  justification  in  an 
action  for  damages,  has  been  stated  in  the  form  of  a  legal  rule  or 
canon,  which  has  been  sanctioned  by  high  judicial  authority.  The 
statement  is  this:   A  communication  made  bona  fide  upon  any  subject 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  703 

matter  in  which  the  party  communicating  has  an  interest,  or  in  refer- 
ence to  which  he  has  a  duty  to  perform,  is  privileged,  if  made  to  a 
person  having  a  corresponding  interest  or  duty,  although  it  contains 
defamatory  matter,  which  without  such  privilege  would  be  libellous 
and  actionable.  It  would  be  difficult  to  state  the  result  of  judicial  de- 
cisions on  this  subject,  and  of  the  principles  on  which  they  rest,  in  a 
more  concise,  accurate  and  intelligible  form.  Harrison  v.  Bush  [1855], 
5  El.  &  Bl.  344,  348;  Gassett  v.  Gilbert  [1856],  6  Gray,  94,  and  cases 
cited. 

It  seems  to  us  very  clear  that  the  defendant  in  the  present  case 
fails  to  show  any  facts  or  circumstances  in  his  own  relation  to  the 
parties,  or  in  the  motives  or  inducements  by  which  he  was  led  to 
write  the  letter  set  out  in  the  first  count  of  the  declaration,  which 
bring  the  publication  within  the  first  branch  of  this  rule.  He  certainly 
had  no  interest  of  his  own  to  serve  or  protect  in  making  a  communica- 
tion concerning  the  character,  occupation  and  conduct  of  the  plaintiff, 
containing  defamatory  or  libellous  matter.  It  does  not  appear  that 
the  proposed  marriage  which  the  letter  written  by  the  defendant  was 
intended  to  discountenance  and  prevent,  could  in  any  way  interfere 
with  or  disturb  his  personal  or  social  relations.  It  did  not  even  involve 
any  sacrifice  of  his  feelings  or  injury  to  his  affections.  The  person  to 
whom  the  letter  was  addressed  was  not  connected  with  him  by  the  ties 
of  consanguinity  or  kindred.  It  is  not  shewn  that  he  had  any  peculiar 
interest  in  her  welfare.  Under  such  circumstances,  without  indicating 
the  state  of  facts  which  might  afford  a  justification  for  the  use  of 
defamatory  words,  it  is  plain  that  the  defendant  held  no  such  relation 
towards  the  parties  as  to  give  him  any  interest  in  the  subject  matter 
to  which  his  communication  concerning  the  plaintiff  related.  Todd  v. 
Hawkins,  2  M.  &  Rob.  20 ;  s.  c,  8  C.  &  P.  88.  No  doubt,  he  acted 
from  laudable  motives  in  writing  it.  But  these  do  not  of  themselves 
afford  a  legal  justification  for  holding  up  the  character  of  a  person 
to  contempt  and  ridicule.  Good  intentions  do  not  furnish  a  valid 
excuse  for  violating  another's  rights,  or  give  impunity  to  those  who 
cast  unjust  imputations  on  private  character. 

It  is  equally  clear  that  the  defendant  did  not  write  and  publish  the 
alleged  libellous  communications  in  the  exercise  of  any  legal  or  moral 
duty.  He  stood  in  no  such  relation  towards  the  parties  as  to  confer 
on  him  a  right  or  impose  on  him  an  obligation  to  write  a  letter  con- 
taining calumnious  statements  concerning  the  plaintiff's  character. 
Whatever  may  be  the  rule  which  would  have  been  applicable  under 
similiar  circumstances  while  he  retained  his  relation  of  religious 
teacher  and  pastor  towards  the  person  to  whom  this  letter  in  question 
was  addressed,  and  towards  her  parents,  he  certainly  had  no  duty  rest- 
ing upon  him  after  that  relation  had  terminated.  He  then  stood  in  no 
other  attitude  towards  the  parties  than  as  a  friend.  His  duty  to  ren- 
der them  a  service  was  no  greater  or  more  obligatory  than  was  his 


704  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

duty  to  refrain  from  uttering  and  publishing  slanderous  or  libellous 
statements  concerning  another.^^ 

It  is  obvious  that  if  such  communications  could  be  protected  merely 
on  the  ground  that  the  party  making  them  held  friendly  relations  to 
those  to  whom  they  were  written  or  spoken,  a  wide  door  would  be  left 
open  by  which  indiscriminate  aspersion  of  private  character  could 
escape  with  impunity.  Indeed  it  would  rarely  be  difficult  for  a  party 
to  shelter  himself  from  the  consequences  of  uttering  or  publishing  a 
slander  or  libel  under  a  privilege  which  could  be  readily  made  to  em- 
brace almost  every  species  of  communication.  The  law  does  not 
tolerate  any  such  license  of  speech  or  pen.  The  duty  of  avoiding  the 
use  of  defamatory  words  cannot  be  set  aside  except  when  it  is  essen- 
tial to  the  protection  of  some  substantial  private  interest,  or  to  the 
discharge  of  some  other  paramount  and  urgent  duty.  It  seems  to  us, 
therefore,  that  on  the  question  of  justification  set  up  by  the  defendant 
under  a  supposed  privilege  which  authorized  him  to  write  the  letter 
set  out  in  the  first  count,  the  instructions  of  the  court  were  cor- 
rect.    *     *     *  ^* 

23  "The  letter  does  not  appear  to  have  been  written  in  answer  to  any  pre- 
vious inquiry,  but  to  have  been  voluntarily  written.  And  it  has  lieen  said 
that,  where  the  matter  is  not  of  great  or  immediate  imiwrtance,  interference 
may  be  considered  officious  and  meddlesome,  although,  if  the  party  had  been 
applied  to,  it  would  clearly  have  been  his  duty  to  give  all  the  information 
he  could ;  and  an  answer  to  a  confidential  inquiry  njay  be  privileged,  where 
the  same  information,  if  volunteered,  would  be  actionable.  *  *  *  As  has 
been  well  said,  'Although  the  defendant  may  feel  sure  that  if  he  were  in  his 
neighbor's  place,  he  should  be  most  grateful  for  the  information  conveyed, 
still  he  must  recollect  that  it  niay  eventually  turn  out  that  in  endeavoring 
to  avert  a  fancied  injuiy  to  that  neighbor,  he  has  really  infiicted  an  lui- 
doubted  and  undeserved  injury  on  the  plaintiff.'  "  Per  Robinson,  .J.,  in  Sam- 
ples V.  Carnahan  (1S9S)  21  Ind.  App.  55,  58,  51  N.  E.  425,  426,  quoting  from 
Odgers,  Liliel  &  Slander  (2d  Ed.)  216. 

Compare:  Byam  v.  Collins  (1S88)  111  N.  Y.  14.3,  19  N.  E.  75,  2  L.  R.  A. 
129.  7  Am.  St.  Rep.  726:  (P.  was  paying  attention  to  Dora  with  a  view  to 
matrimony.  D.  voluntarily  wrote  Dora  a  letter  making  defamatory  charges 
against  P.  Until  three  months  before,  D.  and  Dora  had  long  been  very  in- 
timate friends,  then  they  became  somewhat  estranged  and  their  intimacy 
ceased.  About  four  years  before  this  letter,  and  when  they  were  still  close 
friends,  Dora  often  requested  D.,  "if  she  knew  anything  about  any  youug 
man  she  went  with,  or  in  fact  any  young  man  in  the  place,  to  tell  her."  Dora 
was  not  then  contemplating  maiTiage  with  any  young  man,  and  did  not  know 
P.  The  letter,  referring  to  this  former  friendship  and  the  writer's  continu- 
ing affection  for  Dora,  declared:  "I  have  decided  to  hold  my  peace  no  lon- 
ger, feeling  that  if  I  do  and  your  life  is  wrecked  (as  it  is  sure  to  be  if  you 
marry  or  have  further  acquaintance  with  that  man)  I  shall  in  some  way  be 
responsible  for  it,  inasnuich  as  I  neglect  to  do  my  duty." 

24  The  statement  of  facts  is  abridged  and  part  of  the  opinion,  dealing  with 
a  second  count,  is  omitted.  Foi"  error  in  the  admission  of  evidence  relat- 
ing to  the  second  count,  a  new  trial  was  granted. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  705 

WALLER  V.  LOCH. 
(In  the  Court  of  Appeal,  1881.     7  Q.  B.  Div.  619.) 

Action  for  libel.  At  the  trial  before  Grove,  J.,  it  appeared  that  the 
defendant  was  the  Secretary  of  the  Charity  Organisation  Society,  one 
of  the  objects  of  which  as  stated  in  its  circulars  to  be  "the  improve- 
ment of  the  condition  of  the  poor  by  securing  due  investigation  and 
fitting  action  in  all  cases  and  by  repressing  mendicity."  The  society 
consisted  of  a  federation  of  local  district  committees,  and  by  one  of 
its  circulars  it  is  stated  that  the  inhabitants  of  each  district,  whether 
subscribers  or  not,  are  invited  to  refer  to  the  committee  all  cases  of 
applicants  for  charitable  relief  which  require  investigation.  "If  re- 
quested so  to  do  it  communicates  the  result  of  such  investigation  to  the 
person  desiring  inquiry,  and  should  he  wish  to  undertake  the  case 
leaves  it  in  his  hands.  In  the  absence  of  such  wish  the  committee 
deals  with  each  case  to  the  best  of  its  judgment  and  ability." 

The  plaintiff  was  the  daughter  of  a  deceased  officer  in  the  army 
and  was  in  distressed  circumstances.  A  lady  interested  herself  in  ob- 
taining subscriptions  to  make  some  provision  for  her,  and  obtained 
promises  of  contributions  to  a  considerable  amount.  Another  lady 
who  was  interested  in  the  case  applied  to  the  society  for  information. 
The  society  communicated  to  her  an  unfavourable  report  on  the  case, 
which  by  their  permission  she  communicated  to  the  other  lady.  In 
consequence  of  this  report  the  plaintiff  lost  the  benefit  of  the  subscrip- , 
tions.  She  therefore  commenced  this  action  against  the  defendant,  the 
secretary  of  the  society. 

The  learned  judge  held  the  communication  privileged,  and  left  to 
the  jury  the  question  whether  there  was  express  malice.  The  jury 
found  for  the  defendant.  A  rule  for  a  new  trial  on  the  ground  of  mis- 
direction and  that  the  verdict  was  against  the  evidence  was  refused  by 
the  Divisional  Court.    The  plaintiff  appealed. 

Brett,  L.  J.  The  jury  having  found  that  there  was  no  express 
malice,  a  finding,  the  correctness  of  which  I  see  no  reason  to  doubt, 
then,  if  the  communication  was  privileged  it  is  immaterial  whether 
the  justification  that  the  alleged  libel  was  true  can  be  supported  or  not. 
I  agree  that  the  communications  were  privileged.  I  think  that  the 
definition  by  Blackburn,  J.,  in  Davies  v.  Snead,  Law  Rep.  5  Q.  B.  608, 
611,  is  the  best,  it  leaves  out  all  misleading  words,  saying  nothing 
about  "duty,"  and  states  in  plain  terms  what  I  conceive  to  be  the  true 
rule.'^     Then  do  the  facts  of  this  case  bring  it  within  the  rule?     It 

25  The  "definition  by  Blackburn,  J.,  In  Davis  v.  Snead"  (1870)  L.  R.  5  Q-.^ 
B.  tJOS,  Gil,  as  quoted  in  the  concurring  opinion  of  Jessel,  M.  R.,  was  as  fol-    "^ 
lows:    "Where  a  person  is  so  situated  that  it  becomes  right  in  the  interests 
of  society  that  he  should  tell  to  a  third  person  certain  facts ;    then  if  he,  bona 
tide  and  without  malice,  does  tell  thoni,  it  is  a  privileged  communication." 

See  the  approval  of  this  by  Andrews,  J,,  in  Moore  v.  Banlv  (1S90)  123  N. 

Hepb, Torts — 45 


706  TORTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

seems  to  me  that  they  do,  if  the  defendant  reasonably  believed  that  the 
question  was  asked  in  order  to  enable  the  questioner  to  decide  whether 
relief  should  be  given  or  should  be  continued  to  be  given.  It  is  not 
material  whether  the  information  was  really  wanted  for  that  purpose 
or  not,  it  is  enough  if  the  defendant  reasonably  supposed  the  question- 
er to  be  asking  it  for  that  purpose.  He  could  not  reasonably  suppose 
that  the  question  was  asked  for  any  other  purpose,  and  that  being  so, 
I  think  it  was  right  and  for  the  benefit  of  society  that  he  should  an- 
swer it.  If  a  person  who  is  thinking  of  dealing  with  another  in  any 
matter  of  business  asks  a  question  about  his  character  from  some  one 
who  has  means  of  knowledge,  it  is  for  the  interests  of  society  that  the 
question  should  be  answered,  and  if  answered  bona  fide  and  without 
malice,  the  answer  is  a  privileged  communication. 
Judgment  for  the  defendant. 


FLANAGAN  v.  McLANE. 

(Supreme  Court  of  Errors  of  Connecticut.  1913.    87  Conn.  220,  87  Atl.  727.) 

Action  for  libel  and  slander.  Verdict  for  the  defendant.  The 
plaintifif  appeals  from  the  denial  of  his  motion  to  set  aside  the  verdict 
as  against  the  evidence. 

Beach,  J.  The  complaint  contains  three  separate  counts  in  libel 
and  one  in  slander.  The  plaintiff  and  his  helper  worked  in  and  about 
the  house  of  the  defendant's  husband  for  some  weeks.  During  this 
time  a  sum  of  money  was  missed  which  afterwards  reappeared.  W' hile 
the  money  was  missing  the  defendant  wrote  the  letter  set  forth  in  the 
first  count  to  one  Sturtze,  a  constable  of  the  town  of  Hamden,  in- 
forming him  of  the  loss  and  of  her  belief  that  tjie  plaintiff  had  taken 
it.  She  had  already  written  a  similar  letter,  set  forth  in  the  fourth 
count,  to  the  mother  of  the  plaintiff's  helper.  After  the  money  re- 
appeared the  defendant  again  wrote  to  Sturtze  the  letter  which  is  the 
basis  of  the  second  count,  saying  in  eft'ect  that  the  money  had  been 
found  in  a  place  where  she  had  never  put  it  and  that  she  would  do  no 
more  about  the  matter,  but  was  satisfied  that  the  plaintiff  had  taken 
it  and  brought  it  back  again  when  he  found  that  he  was  suspected. 
The  third  count  of  the  complaint  is  in  slander.  The  defendant's  an- 
swer denied  the  allegations  of  the  third  count,  admitted  the  authorship 
of  the  letters,  and  pleaded  privilege  and  want  of  malice  as  to  each. 

The  law  implies  malice  from  a  libelous  publication,  except  in  cer- 
tain cases  of  privilege,  one  of  which  is  "when  the  author  and  pub- 

Y.  420,  424,  25  N.  E.  1048,  11  L.  R.  A.  753;  and  by  liddon,  J.,  in  Coogler  v. 
Rhodes  (1896)  38  Fla.  240,  248,  21  South.  109,  112,  5U  Am.  St.  Rep.  170,  175: 
"This  definition  is  considered  more  exact  in  leaving  out  the  word  'dUty,'  be- 
cause it  is  privileged  in  the  interests  of  society  for  a  man  to  bona  fide  and 
without  malice  say  those  things  which  no  positive  legal  duty  may  make  it 
obligatory  upon  him  to  say." 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  707 

lislier  of  the  alleged  slander  acted  in  the  bona  fide  discharge  of  a 
public  or  private  duty  or  in  the  prosecution  of  his  own  right  or  inter- 
est."    *     *     * 

We  think  that  the  letter  set  forth  in  the  second  count,  although  writ- 
ten after  the  money  was  found,  must  be  dealt  with  as  a  part  of  the 
whole  correspondence  between  the  defendant  and  the  officer.  It  is  not 
very  seriously  disputed  that  the  first  letter  to  Sturtze,  written  before 
the  money  was  found,  is,  on  the  facts  pleaded,  a  privileged  communica- 
tion. Sturtze  was  a  constable,  and  the  defendant  appealed  to  him  to 
investigate  her  loss  with  a  view  to  get  "evidence  and  threaten  them 
with  arrest."  She  w^as  concerned  more  with  using  the  law  in  terrorem 
than  with  the  punishment  of  the  supposed  thief.  Then  when  the 
money  w^as  found  she  again  writes  the  officer  telling  him  that  it  is 
found,  but  in  a  place  where  she  never  put  it ;  that  she  will  do  no  more 
about  the  matter;  and  that  she  is  still  satisfied  that  the  plaintiff  took 
it  and  brought  it  back  again.  Clearly  this  second  letter  w^ould  never 
have  been  written  except  for  the  first.  The  defendant  w^as  in  a  way 
bound  to  let  the  officer  know  that  the  money  had  been  found,  and  if 
she  said  no  more  her  letter  would  be  taken  as  an  admission  that  her 
former  suspicions  were  mistaken.  We  think,  under  these  circum- 
stances, that  the  defendant  in  writing  to  an  officer  already  engaged  in 
investigating  the  loss  was  legally  entitled,  if  acting  honestly  and  with- 
out malice,  to  reaffirm  her  belief  in  the  plaintiff's  guilt  for  the  guidance 
of  the  officer  in  case  it  was  or  might  become  his  duty  to  pursue  the 
investigation  wath  a  view  to  criminal  proceedings.    There  is  no  error.^* 


MACKINTOSH  et  al.  v.  DUN  et  al. 
(Judicial  Committee  of  the  Privy  Council.     [1908]  App.  Cas.  390.) 

This  is  an  appeal  from  a  decision  of  the  High  Court  of  Australia, 
pronounced  on  cross-appeals  from  the  orders  of  the  Full  Court  of 
New  South  Wales.  The  action  was  for  libel.  It  was  tried  before 
Cohen,  J.,  and  a  jury.  The  question  was  whether  the  occasion  of  the 
publication  of  the  two  libels,  which  were  of  and  concerning  the  ap- 
pellants in  relation  to  their  business,  was  privileged.  They  were  con- 
tained in  two  reports  in  writing,  published  to  a  firm  of  Holds  worth, 
Macpherson  &  Co. 

The  case  for  the  appellants  was  that  the  libels  consisted  partly  of 
the  repetition  of  alleged  rumours  and  partly  of  defamatory  statements 
put  forward  as  being  within  the  respondent's  own  knowledge,  and  the 
general  purport  and  eft'ect  of  them  was  that  the  appellants  were  per- 
sons with  whom  it  was  not  wise  to  do  business  in  the  ordinary  way, 
or  upon  the  ordinary  terms  of  credit ;  that  they  had  concealed  an  im- 

86  Parts  of  tbe  opinion  are  omitted. 


708  T'ORTS   THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

portant  change  in  the  constitution  of  their  firm  in  order  to  give  their 
business  a  fictitious  appearance  of  financial  stabiHty ;  that  the  appel- 
lant James  Mackintosh  was  commonly  and  correctly  reported  to  be 
living  beyond  his  means,  and  to  possess  habits  and  tastes  which  were 
likely  to  bring  the  appellants  and  their  business  rapidly  into  a  state 
of  insolvency;  that  the  business  was  grossly  mismanaged;  and  that 
the  appellants  were  persons  without  personal  resources  or  assets,  ex- 
cept book-debts  and  a  stock  that  was  greatly  depreciated,  and  were 
heavily  in  debt  and  unable  to  meet  their  current  business  liabilities 
and  engagements,  which  included  a  heavy  overdraft  on  their  account 
with  their  bankers,  and  were  struggling  with  severe  financial  diffi- 
culties which  would  probably  end  in  disaster. 

At  the  close  of  the  appellants'  case  before  Cohen,  J.,  it  was  submit- 
ted that  the  appellants  should  be  nonsuited  on  the  ground  that  the  oc- 
casion of  the  publication  by  the  respondents  to  Holdsworth,  Macpher- 
son  &  Co.  of  the  two  reports  was  privileged  and  that  there  was  no  evi- 
dence of  express  malice  to  go  to  the  jury.  The  respondents  did  not 
deny  the  fact  of  publication,  nor  that  the  two  reports  contained  de- 
famatory matter  of  and  concerning  the  appellants  in  relation  to  their 
business.  The  trial  judge  ruled  that  the  occasion  was  not  privileged 
and  so  directed  the  jury.  But  with  a  view  to  a  possible  appeal  against 
his  ruling  on  the  question  of  privilege  the  learned  judge  left  to  the 
jury  two  questions  on  the  subject  of  malice: 

1.  Did  the  defendants  in  distributing  the  reports  act  from  a  sense  of 
duty  or  from  some  indirect  or  improper  motive? 

2.  Did  the  defendants  distribute  the  repoi'ts  recklessly,  not  caring  whether 
they  were  true  or  false? 

In  reply  the  jury  found  that  the  respondents  acted  from  a  sense  of 
duty  to  their  own  subscribers,  and  that  they  exercised  care  as  far  as 
possible.    The  plaintiffs  obtained  a  verdict  for  £800. 

The  trial  judge  held  that  the  plea  of  privilege  was  bad.  The  Full 
Court  ruled  that  the  occasion  was  privileged,  and  directed  a  new  trial. 
The  High  Court  held  that  the  occasion  was  privileged  and  that  judg- 
ment should  be  entered  for  the  respondents.  Thereupon  an  appeal 
by  special  leave,  limited  to  the  question  of  privilege,  was  obtained  to 
the  Privy  Council.^ ^ 

The  judgment  of  their  Lordships  was  delivered  by 

Lord  Macnagiiten.  *  *  *  ^\^q  question,  and  the  only  ques- 
tion on  the  present  appeal,  is  whether  the  occasion  on  which  the  libels 
were  published  was  or  was  not  a  privileged  occasion. 

The  plaintiffs  are  wholesale  and  retail  ironmongers  in  Sydney. 
The  defendants  (as  their  acting  manager  in  Sydney  stated  in  an  affi- 
davit filed  in  the  action)  carry  on  the  business  of  a  trade  protective 
society  "in  almost  all  parts  of  the  civilized  world"  under  the  name  of 
"The  Mercantile  Agency."    That  business,  as  the  acting  manager  ex- 

27  The  statement  of  facts  has  been  slightly  abridged  and  part  of  the  opin- 
ion is  omitted. 


Ch.  2)  ABSOLUTE    TORTS  OTHER  THAN  TRESPASSES  709 

plained,  "consists  in  obtaining  information  with  reference  to  the  com- 
mercial standing  and  position  of  persons"  in  the  state  of  New  South 
Wales  "and  elsewhere  and  in  communicating  such  information  con- 
fidentially to  subscribers  to  the  agency  in  response  to  specific  and  con- 
fidential inquiry  on  their  part."  He  stated  further  that  all  requests 
for  information  directed  to  the  agency  by  their  subscribers  are  in  the 

following  form : 

"Subscriber's  Ticket. 
"The  Mercantile  Agency.     R.  G.  Dun  and  Co. 

"Give  us  in  confidence  and  for  our  exclusive  use  and  benefit  in  our  busi- 
ness, viz.,  that  of  aiding  us  to  determine  the  propriety  of  giving  credit,  what- 
ever information  you  have,  respecting  the  standing,  responsibility,  &c.,  of — 

"Aame    

"Business    

"Address    

"Subscribers  to  sign  the  above  themselves, 

"Subscriber." 

The  law  with  regard  to  the  publication  of  information  injurious  to 
the  character  of  another  is  well  settled.  The  difficulty  lies  in  apply- 
ing the  law  to  the  circumstances  of  the  particular  case  under  consid- 
eration. In  Toogood  V.  Spy  ring,-*  Parke,  B.,  delivering  the  judgment 
of  the  Court  of  Exchequer,  says :  "The  law  considers  such  publica- 
tion as  malicious,  unless  it  is  fairly  made  by  a  person  in  the  discharge 
of  some  public  or  private  duty,  whether  legal  or  moral,  or  in  the  con- 
duct of  his  own  affairs  in  matters  where  his  interest  is  concerned.  In 
such  cases  the  occasion  prevents  the  inference  of  malice,  which  the  law 
draws  from  unauthorized  communications,  and  affords  a  qualified  de- 
fence depending  on  the  absence  of  actual  malice.  If  fairly  warranted 
by  any  reasonable  occasion  or  exigency,  and  honestly  made,  such  com- 
munications are  protected  for  the  common  convenience  and  welfare 
of  society,  and  the  law  has  not  restricted  the  right  to  make  them  with- 
in any  narrow  limits." 

That  passage,  which,  as  Lindley,  L.  J.,  observes,^®  is  frequently 
cited,  and  "always  with  approval,"  not  only  defines  the  occasion  which 
protects  a  communication  otherwise  actionable,  but  enunciates  the 
principle  on  which  the  protection  is  founded.  The  underlying  princi- 
ple is  "the  common  convenience  and  welfare  of  society" — not  the  con- 
venience of  individuals  or  the  convenience  of  a  class,  but,  to  use  the 
words  of  Erie,  C.  J.,  in  Whiteley  v.  Adams,^**  "the  general  interest  of 
society." 

Communications  injurious  to  the  character  of  another  may  be  made 
in  answer  to  inquiry  or  may  be  volunteered.  If  the  communication 
be  made  in  the  legitimate  defence  of  a  person's  own  interest,  or  plain- 
ly under  a  sense  of  duty  such  as  would  be  "recognized  by  English  peo- 

28  1  C,  M.  &  R.  181,  193,  40  R.  R,  523  (1S34). 

29  [1891]  2  Q.  B,  346, 

8  0  15  c.  B.  N.  S.  392,  418  (1SG3). 


710  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

pie  of  ordinary  intelligence  and  moral  principle,"  ^^  to  borrow  again 
the  language  of  Lindley,  L.  J.,  it  cannot  matter  whether  it  is  volun- 
teered or  brought  out  in  answer  to  an  inquiry.  But  in  cases  which  are 
near  the  line,  and  in  cases  which  may  give  rise  to  a  difference  of  opin- 
ion, the  circumstance  that  the  information  is  volunteered  is  an  element 
for  consideration  certainly  not  without  some  importance. 

In  deference,  therefore,  to  the  views  of  the  learned  judges  of  the 
High  Court,  the  first  question  would  seem  to  be,  under  which  category 
does  the  communication  now  in  question  properly  fall?  No  doubt 
there  was  a  specific  request.  In  response  to  that  request  the  communi- 
cation was  made.  That  much  is  clear.  But  it  is  equally  clear  that  the 
defendants  set  themselves  in  motion  and  formulated  and  invited  the 
request  in  answer  to  which  the  information  complained  of  was  pro- 
duced. The  defendants,  in  fact,  hold  themselves  out  as  collectors 
of  information  about  other  people  which  they  are  ready  to  sell  to  their 
customers.  It  cannot  matter  whether  the  customer  deals  across  the 
counter,  so  to  speak,  just  as  and  when  the  occasion  arises,  or  whether 
he  enjoys  the  privilege  of  being  enrolled  as  a  subscriber  and  pays  the 
fee  in  advance. 

If,  then,  the  proprietors  of  the  Mercantile  Agency  are  to  be  re- 
garded as  volunteers  in  supplying  the  information  which  they  profess 
to  have  at  their  disposal,  what  is  their  motive?  Is  it  a  sense  of  duty? 
Certainly  not.  It  is  a  matter  of  business  with  them.  Their  motive  is 
self-interest.  They  carry  on  their  trade,  just  as  other  traders  do,  in 
the  hope  and  expectation  of  making  a  profit. 

Then  comes  the  real  question :  Is  it  in  the  interest  of  the  commu- 
nity, is  it  for  the  welfare  of  society,  that  the  protection  which  the  law 
throws  around  communications  made  in  legitimate  self-defense,  or 
from  a  bona  fide  sense  of  duty,  should  be  extended  to  communications 
made  from  motives  of  self-interest  by  persons  who  trade  for  profit 
in  the  characters  of  other  people  ?  The  trade  is  a  peculiar  one ;  still 
there  seems  to  be  much  competition  in  it ;  and  in  this  trade  as  in  most 
others,  success  will  attend  the  exertions  of  those  who  give  the  best 
value  for  money  and  probe  most  thoroughly  the  matter  placed  in  their 
hands.  There  is  no  reason  to  suj>pose  that  the  defendants  generally 
have  acted  otherwise  than  cautiously  and  discreetly.  But  information 
such  as  that  which  they  offer  for  sale  may  be  obtained  in  many  ways, 
not  all  of  them  deserving  of  commendation.  It  may  be  extorted  from 
the  person  whose  character  is  in  question,  through  fear  of  misrepre- 
sentation or  misconstruction  if  he  remains  silent.  It  may  be  gathered 
from  gossip.  It  may  be  picked  up  from  discharged  servants.  It  may 
be  betrayed  by  disloyal  employees.  It  is  only  right  that  those  who 
engage  in  such  a  business,  touching  so  closely  very  dangerous  ground, 
should  take  the  consequences  if  they  overstep  the  law. 


32 


81  [1S91]  2  Q.  B.  350. 

82  Accord:    Pacific  Packing  Co.  v.  Bradstreet  Co.  (1914)  25  Idaho,  69G,  139 
i'ac.  1007,  51  L.  K.  A.  (iN,  S.)  893,  wliere  this  passage  is  quoted  as  giviiiij  whole- 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN   TRESPASSES  711 

It  may  not  be  out  of  place  to  recall  the  striking  language  of  Knight 
Bruce,  V.  C.,^^  in  reference  to  a  somewhat  similar  subject.  The  ques- 
tion before  him  was  the  propriety  of  enforcing  disclosure  of  commu- 
nications between  a  client  and  his  legal  advisers.  "The  discovery  and 
vindication  and  establishment  of  truth,"  his  Honour  says,  "are  main 
purposes  certainly  of  the  existence  of  Courts  of  justice;  still,  for  the 
obtaining  of  these  objects,  which,  however  valuable  and  important, 
cannot  be  usefully  pursued  without  moderation,  cannot  be  either  use- 
fully or  creditably  pursued  unfairly  or  gained  by  unfair  means,  not 
every  channel  is  or  ought  to  be  open  to  them.  *  *  *  Truth,  like  all 
other  good  things,  may  be  loved  unwisely — m.ay  be  pursued  too  keenly 
— may  cost  too  much."  And  then  he  points  out  that  the  meanness  and 
the  mischief  of  prying  into  things  which  are  regarded  as  confidential, 
with  all  the  attending  consequences,  are  "too  great  a  price  to  pay  for 
truth  itself." 

It  seems  to  their  Lordships,  following  out  this  train  of  thought,  that, 
however  convenient  it  may  be  to  a  trader  to  know  all  the  secrets  of 
his  neighbour's  position,  his  "standing,"  his  "responsibility,"  and  what- 
ever else  may  be  comprehended  under  the  expression  "et  cetera,"  yet, 
even  so,  accuracy  of  information  may  be  bought  too  dearly — at  least 
for  the  good  of  society  in  general. 

It  is  admitted  that  in  this  country  there  is  no  authority  directly  in 
point.  There  are  direct  authorities  in  the  United  States  in  favour  of 
the  conclusion  at  which  the  High  Court  has  arrived.  American  au- 
thorities are,  no  doubt,  entitled  to  the  highest  respect.  But  this  is  a 
question  that  must  be  decided  by  English  law.  In  the  dearth  of  Eng- 
lish authority  it  seems  to  their  Lordships  that  recourse  must  be  had 
to  the  principle  on  which  the  law  in  England  on  this  subject  is 
founded.  With  the  utmost  deference  to  the  learned  judges  of  the 
High  Court,  their  Lordships  are  of  opinion  that  the  decision  under 
appeal  is  not  in  accordance  with  that  principle.^* 

Their  Lordships  will  therefore  humbly  advise  His  Majesty  that  the 
orders  appealed  from  should  be  discharged  and  the  judgments  of  the 
Full  Court  reversed,  with  costs  in  both  Courts,  including  the  costs  of 

some  doctrine  applicable  to  the  case  at  bar.  The  question  in  the  Idaho  case 
arose  on  demurrer  to  a  complaint  which  is  set  forth  at  length  and  held  suf- 
ficient. 

33  In  Pearse  v.  Pearse  (1846)  1  De  G.  &  Sm.  12,  28,  63  Reprint,  950,  957, 
75  R.  R.  4,  16. 

3  4  On  the  theory  that  business  welfare  demands  that  a  Icnowledge  of  the 
financial  and  ijersonal  trustworthiness  of  business  concerns  be  readily  as- 
certainable, American  courts  have  protected  commercial  agencies  which  have 
transmitted  communications,  confidentially  and  in  good  faith,  to  a  customer 
having  an  interest  in  the  siibject  matter  and  requesting  information.  Orms- 
by  V.  Douglass  (ISGS)  37  N.  Y.  477.  But  information  which  is  volunteered,  a 
general  report,  for  instance,  sent  out  to  subscribers,  has  been  held  not  priv- 
ileged. Douglass  V.  Daisley  (1902)  114  Fed.  628,  52  C.  C.  A.  324,  57  h.  li.  A. 
475 ;   King  v.  Patterson  (1887)  49  N.  J.  Law,  417,  9  Atl.  705,  60  Am.  Rep.  622. 

See  25  Cyc.  396,  and  cases  cited  in  notes  49,  50. 


712  TORTS  THROUGH  ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

the  cross-appeals,  and  that  any  costs  already  paid  by  the  appellants  to 
the  respondents  should  be  repaid  by  the  latter. 
The  respondents  will  pay  the  costs  of  the  appeal. 


(3)  Coniinunication  in  Protection  of  a  Private  Intei'est 

McDOUGALL  v.  CLARIDGE. 
(At  Nisi  Prius,  Adjourned  Sittings  in  Loudon,  ISOS.    1  Camp.  267.) 

This  was  an  action  for  a  libel  on  the  plaintiff  in  his  profession  as  a 
solicitor.     Plea,  the  general  issue. 

The  libel  set  out  in  the  declaration  was  contained  in  a  letter  written 
by  the  defendant  to  Messrs.  Wright  and  Co.,  bankers  at  Nottingham, 
and  charged  the  plaintiff  with  improper  conduct  in  the  management  of 
their  concerns.  It  appeared,  however,  that  the  letter  was  intended  as 
a  confidential  communication  to  these  gentlemen,  and  that  the  defend- 
ant was  himself  interested  in  the  affairs  which  he  supposed  to  be  mis- 
managed by  the  plaintiff.  After  the  case  had  been  opened  by  the 
plaintiff's  counsel, — 

Lord  Ellicnbokougii  '^  said,  if  the  letter  had  been  written  by  the 
defendant  confidentially,  and  under  an  impression  that  its  statements 
were  well  founded,  he  was  clearly  of  opinion  that  the  action  could  not 
be  maintained.  It  was  impossible  to  say  that  the  defendant  had  ma- 
liciously pul3lished  a  libel  to  aggrieve  the  plaintiff,  if  he  was  acting 
bona  fide,  with  a  view  to  the  interests  of  himself  and  the  persons 
whom  he  addressed ;  and  if  a  communication  of  this  sort,  which  was 
not  meant  to  go  beyond  those  immediately  interested  in  it,^®  were  the 
subject  of  an  action  for  damages,  it  would  be  impossible  for  the  affairs 
of  mankind  to  be  conducted.     *     *     * 

The  Attorney  General,  for  the  defendant,  said  that  his  client  at  the 
time  of  writing  the  letter  was  certainly  impressed  with  a  belief  of  the 
truth  of  the  charges  it  contained,  but  had  since  seen  reason  to  believe 
they  were  groundless.     He  therefore  consented  to  withdraw  a  juror. 

3  5  Part  of  the  opinion  is  omitted. 

88  In  Pearson  v.  Lcmaitre  (1S43)  5  Man.  &  G.  700,  710,  counsel  in  argument 
quoted  a  remarli  by  Holroyd,  J.,  in  Fairman  v.  Ives  (1822)  5  B.  &  A.  G42: 
"In  the  case  of  a  confidential  communication  made  between  friends,  to  pre- 
vent an  injury,  and  not  for  the  purpose  of  slandering,  the  occasion  justifies 
the  act."  Thereuiwn  Cresswell,  J.,  made  this  comment:  "That  must  mean 
a  communication  to  some  friend  upon  some  subject  in  which  he  is  interested." 
And  see  Lord  Esher's  comment  in  Hebditch  v.  Macllwaine  (15i94)  2  Q.  B.  54,  61. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  713 

COOK  V.  GUST. 
(Supreme  Court  of  Wisconsin,  1914.     155  Wis.  594,  145  X.  W.  225.) 

This  was  an  action  for  slander,  by  Cook  against  Gust.  It  was 
charged  in  the  complaint  that  the  defendant  stated  to  one  Lewer  and 
his  wife  and  son  that  plaintiff  set  fire  to  a  certain  cheese  factory  and 
burned  it.  The  answer  set  forth  facts  tending  to  show  that  any  com- 
munications made  by  defendant  to  Lewer  were  privileged.  After  the 
factory  burned,  the  farmers  in  the  vicinity  decided  to  erect  a  new  one, 
and  some  meetings  were  had  between  the  proposed  stockholders  to 
make  the  necessary  arrangements.  At  these  meetings  the  advisability 
of  not  taking  in  the  plaintiff  was  discussed,  and  he  was  left  out  ap- 
parently because  he  had  caused. considerable  trouble  while  he  was  a 
member  of  the  old  company,  and  because  there  was  a  strong  suspicion 
that  he  had  burned  the  old  factory  because  of  such  trouble.  Lewer 
was  a  newcomer,  and  it  was  the  purpose  of  the  promoters  of  the  new 
scheme  to  interest  him  in  it. 

The  plaintiff's  evidence  tended  to  show  tliat  the  alleged  slanderous 
words  were  spoken  to  Lewer  at  or  near  his  house,  and  that  the  latter 
then  called  his  wife  and  14  year  old  son  to  the  place  where  he  and 
defendant  were  talking  and  requested  the  defendant  to  repeat  the 
statement  in  their  presence,  which  he  did.  There  was  no  evidence 
tending  to  show  malice.  The  jury  returned  a  general  verdict  for  the 
defendant.     The  plaintiff  appeals. 

Barne;s,  J.^'^  *  *  ik  3  'pj-jg  principal  contention  of  the  appel- 
lant is  that  the  following  instruction  given  to  the  jury  was  erroneous 
and  prejudicial: 

"If  you  find  that  Mr.  Gust  spoke  to  Mr.  Lewer  on  April  8, 190S,  concerning 
Mr.  Cook,  and  that  such  words  were  spoken  to  him  as  one  who  was  interested 
in  this  factory  under  such  circumstances  that  they  would  be  privileged  under 
the  rules  just  given  you,  tlien  the  fact,  if  such  be  the  fact,  that  Mrs.  Lewer 
and  her  son  heard  what  Mr.  Gust  said  does  not,  standing  alone,  take  tlie  case 
out  of  the  privilege,  if  you  find  that  their  presence  could  not  have  been  avoid- 
ed by  Mr.  Gust,  or  if  you  find  that  they  happened  to  be  present  in  the  usual 
course  of  the  business  affairs  in  which  Mrs.  Lewer  and  her  son  were  tlieu 
engaged." 

It  is  not  claimed  that  the  alleged  statement  made  to  Lewer  was  not 
qualifiedly  privileged  as  to  him  under  the  circumstances  under  which 
it  was  made,  but  it  is  urged  that  it  was  not  so  privileged  as  to  the  wife 
and  son.  The  portion  of  the  instruction  which  advised  the  jury  that 
they  might  find  the  communication  privileged  if  satisfied  that  the  pres- 
ence of  Mrs.  Lewer  and  the  son  "could  not  have  been  avoided"  should 
not  have  been  given,  because  there  was  no  evidence  which  warranted 
its  submission.  It  is  perfectly  obvious  to  any  one  that  their  presence 
could  have  been  avoided.  That  fact  must  have  been  apparent  to  the 
jury,  and  it  is  altogether  improbable  that  they  found  for  the  defendant 

37  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


714  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

because  of  this  part  of  the  instruction,  when  there  were  other  legiti- 
mate grounds  on  which  the  conclusions  reached  might  be  arrived  at. 
The  error  committed  in  giving  this  part  of  the  charge  was  not  prej- 
udicial under  section  3072m,  Stats. 

The  only  other  portion  of  the  charge  complained  of  is  that  by  which 
the  jury  were  informed  that  they  might  find  the  communication  privi- 
leged if  the  wife  and  boy  were  "present  in  the  usual  course  of  the 
business  affairs"  in  which  they  were  then  engaged.  At  the  time  of 
the  alleged  conversation  Lewer  had  been  invited  to  become  a  stock- 
holder in  the  new  corporation  and  was  considering  the  matter.  It  was 
planned  to  leave  Cook  out,  and,  if  not  actuated  by  malice,  the  defend- 
ant might  state  the  reasons  which  led  him  to  believe  that  Cook  should 
be  left  out.  It  is  probably  a  very  general  custom  for  farmers  to  con- 
sult their  wives  and  members  of  theii-  family  when  they  are  about  to 
engage  in  a  new  business  enterprise  of  some  importance.  Where  this 
practice  is  pursued,  such  communication  as  was  here  made  is  privi- 
leged as  to  the  other  members  of  the  family  as  well  as  the  husband, 
assuming  that  it  is  made  in  good  faith  and  not  from  malicious  motives. 

What  the  court  did  in  substance  in  the  'instant  case  was  to  permit 
the  jurors  to  decide  whether  or  not  it  was  a  matter  of  common  knowl- 
edge that  farmers  counseled  and  advised'  with  their  wives  in  reference 
to  business  transactions  of  this  nature.^®    Had  the  court  so  instructed 

3  8  Accord:  Chambers  v.  Leiser  (1906)  43  Wash.  285,  86  Pac.  627,  10  Ann. 
Cas.  270:  (Defamatory  statement  in  a  letter  from  D.,  a  stockholder,  to  S.,  an- 
other stockholder,  with  reference  to  the  conduct  of  P.,  an  officer  in  the  cor- 
poration.) 

Broughton  v.  McGrew  (C.  C,  1889)  39  Fed.  672,  5  L.  R.  A.  406:  (In  a  meet- 
ing of  the  stockholders  of  a  railway  company,  D.,  a  stockholder,  said  of  I'., 
the  general  manager  of  the  company:  "He  has  been  drunk  frequently,  and 
you  can't  expect  his  subordinates  to  remain  sober  when  he  furnishes  them 
such  an  example.  *  *  *  i  am  reliably  informed  that  he  is  unfit  to  do 
business.") 

Trimble  v.  Morrish  (1908)  152  Mich.  624,  116  N.  W.  451,  16  L.  R.  A.  (N.  S.) 
1017:  (Defamatory  statement  by  D..  a  druggist,  to  S.,  a  physician,  about  P., 
a  young  woman  in  charge  of  S.'s  office.  It  appeared  that  S.  and  D.  had  an 
agreement  that  the  foi-mer  would  send  all  his  prescriptions  to  D.'s  store,  and 
that  D.  would  pay  part  of  S.'s  office  rent.) 

Jarvis  v.  Hatheway  (ISOS)  3  Johns.  (N.  Y.)  180,  3  Am.  Dec.  473:  (In  a 
church  meeting,  in  the  regular  course  of  church  discipline,  "pursuant  to  the 
precept  in  the  eighteenth  chapter  of  the  evangelist  Matthew,"  D.  charged  P. 
with  forgery.) 

Cadle  V.  Mcintosh  (1912)  51  Tnd.  App.  365,  99  N.  E.  779:  (D.,  a  member  of 
a  Knights  of  Pythias  lodge,  said  of  P.,  who  was  seelcing  admission  to  the 
lodge,  that  he  was  a  thief,  a  drunkard,  and  a  gambler.  All  those  to  whom 
the  charge  was  made  belonged  to  the  order  of  the  Knights  of  Pvthias.) 

Ilayden  v.  Hasbrouck  (1912)  34  R.  I.  556,  84  Atl.  1087,  42  L.  R.  A.  (N.  S.) 
1109:  (D.,  who  was  president  of  a  state  federation  of  women's  clubs  and 
a  director  in  a  subordinate  clul»,  in  conference  witli  other  officers  of  this  club, 
with  reference  to  thefts  which  had  been  committed  at  its  meetings,  expressed 
her  belief  that  P.,  a  member  of  the  club,  was  the  guilty  person.) 

But  compare  Peak  v.  Taubman  (1913)  251  Mo.  390,  158  S.  W.  656:  (D.,  the 
president  of  a  bank,  chanced  to  meet  on  a  train  one  W.,  who  had  been  a 
bookkeeper  in  D.'s  bank,  and  D.,  in  casual  conversation  with  W.,  said  to  him 
that  P.,  who  also  had  been  a  bookkeeper  in  D.'s  bank,  had  while  boolikeei>ex* 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN   TRESPASSES  715 

the  jury  as  a  matter  of  law,  we  would  hesitate  to  hold  that  the  instruc- 
tion was  wrong.     This  being  so,  we  cannot  hold  that  it  was  error  to 
submit  the  question  to  the  jury.     *     *     * 
Judgment  affirmed. 


DELANY  V.  JONES. 

(At  Nisi  Prius,  Sittings  after  Term  at  Westminster,  1803.    4  Esp.  191.) 

This  was  an  action  on  the  case,  for  a  libel.  Plea  of  Not  Guilty. 
The  declaration  stated  that  the  defendant,  who  then  carried  on  the 
business  of  a  stationer,  intending  to  charge  the  plaintiff  with  the  crime 
of  bigamy,  and  to  bring  him  into  danger  of  legal  punishment,  pub- 
lished the  false  and  malicious  libel  following;   that  is  to  say, 

'"Ten  Guineas  Reward:  Wliereas,  by  a  letter  lately  received  from  the 
West  Indies,  an  event  is  stated  to  be  announced  by  a  newspaper,  tliat  can 
only  be  investigated  by  these  means:  This  is  to  request,  that  if  any  printer, 
or  other  person,  can  ascertain  that  James  Delany,  Esq.  [the  plaintiff],  some 
years  since  residing  at  Cork,  late  Lieutenant  in  the  North  Lincoln  Militia, 
was  married  previous  to  nine  o'clock  in  the  morning  of  the  10th  of  August, 

1799,  they  will  give  notice  to Jones  [the  defendant].  No.  14,  Duke  Street, 

St.  James's,  and  they  shall  receive  the  reward." 

There  was  an  innuendo  that  the  defendant  meant  thereby  to  insin- 
uate, and  to  be  understood,  that  the  said  plaintiff'  had  been,  and  was 
married  before  the  time  mentioned  in  the  advertisement,  and  had  an- 
other wife  then  living;  he  being  then  married  to  one  Elizabeth  Wes- 
ton, his  present  wife. 

The  defence  relied  upon  and  given  in  evidence  was  that  this  adver- 
tisement had  been  inserted  by  the  authority  of  the  plaintiff''s  wife,  for 
the  purpose  of  making  a  discovery  which  was  important  for  her  to 
know,  namely,  Whether  the  plaintiff  had  another  wife  living?  That 
beside  this,  from  the  terms  of  the  advertisement,  no  direct  slander  was 
conveyed;  without  which  there  could  be  no  libel.  The  advertisement 
might  be  to  discover  an  heir,  the  legrtimacy  of  a  person,  or  for  such 
like  purpose ;   which  would  not  be  a  libel. 

It  was  answered  by  Erskine,  of  counsel  for  the  plaintiff.  That,  to 
constitute  a  libel,  it  was  not  necessary  that  the  libel  should  be  appar- 
ent to  all  the  world.  If  a  man  sends  an  advertisement  to  a  newspaper 
so  wrapped  up,  that,  though  not  intelligible  to  the  bulk  of  mankind, 
it  is  so  to  minds  more  intelligent,  still  it  was  a  libel ;  and  that  the  libel- 
lous tendency  of  this  advertisement  could  not  be  mistaken. 

Lord  Ellenborough,  in  summing  up  to  the  jury,  said.  This  paper 
is  relied  upon  as  necessarily  carrying  with  it  the  imputation  that  the 
plaintiff  was  guilty  of  bigamy.  You  must  be  of  opinion  that  it  does 
carry  such  imputation,  before  you  can  find  a  verdict  for  the  plain- 
forged  checks  on  the  bank.  W.'s  business  relations  with  the  bank  had  ter- 
minated before  I'.'s  alleged  forgeries  had  been  discovered,  nor  were  they  now 
under  investigation  by  the  bank.) 


716  TORTS  THROUGH  ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 

tifif,  as  that  meaning  is  necessary  to  make  the  paper  a  Hbel  at  all.  The 
plaintiff's  counsel  contend,  that  you  are  to  talce  into  your  considera- 
tion only,  whether  the  advertisement  conveys  a  libellous  charge  against 
the  plaintiff  or  not?  I  am  of  a  different  opinion:  I  conceive  the  law 
to  be.  That  though  that  which  is  spoken  or  written  may  be  injurious 
to  the  character  of  the  party,  yet  if  done  bona  fide,  as  with  a  view  of 
investigating  a  fact,  in  which  the  party  making  it  is  interested  in  it, 
is  not  libellous.  If  therefore  this  investigation  was  set  on  foot,  and 
this  advertisement  published  by  the  plaintiff's  wife,  either  from  anxiety 
to  know,  Whether  she  was  legally  the  wife  of  the  plaintiff  or,  Wheth- 
er he  had  another  wife  living  when  he  married  her,  though  that  is 
done  through  the  medium  of  imputing  bigamy  to  the  plaintiff,  it  is 
justifiable;  but  in  such  a  case,  it  is  necessary  for  the  defendant  who 
publishes  the  libel,  to  shew  that  he  published  it  under  such  authority, 
and  with  such  a  view.  The  jury  are  therefore  first  to  say.  Whether 
the  advertisement  imputes  a  charge  of  bigamy  to  the  plaintiff;  and 
if  they  think  it  does,  then  to  enquire.  Whether  the  libel  was  published 
with  a  view,  by  the  wife,  of  fairly  finding  out  a  fact  respecting  her 
husband,  in  which  she  was  materially  interested.  If  it  was  so,  the 
publication  is  not  a  libel ;  and  the  defendant  is  entitled  to  a  verdict. 
The  jury  found  a  verdict  for  the  defendant. 


SOMERVILLE  v.  HAWKINS. 

(Court  of  Common  Pleas,  1851.     10  C.  B.  583,  84  R.  R.  709.) 

This  was  an  action  upon  the  case  for  slander.  The  first  count  of 
the  declaration  stated  that  the  defendant,  in  a  certain  discourse  had 
of  and  concerning  the  plaintiff,  in  the  presence  and  hearing  of  John 
Jones  and  Thomas  Williams,  the  defendant's  servants,  and  of  divers 
other  persons,  falsely  and  maliciously  spoke  and  published  of  and  con- 
cerning the  plaintiff,  the  false,  scandalous,  malicious,  and  defamatory 
words  following,  that  is  to  say : 

"I  discharged  that  man  for  robbing  me.  He  is  a  thief:  and  if  ever  you 
(meaning  the  said  John  Jones  and  Thomas  Williams)  speak  to  him  again, 
or  have  anything  to  do  with  him,  I  shall  consider  you  as  bad  as  him,  and  shall 
discharge  you." 

*  *  *  The  defendant  pleaded  not  guilty,  and  a  justification  on 
the  ground  that  the  plaintiff'  had,  whilst  in  the  defendant's  employ, 
stolen  certain  articles  the  property  of  the  defendant.  Upon  these  pleas 
issue  was  joined. 

The  cause  was  tried  before  Wilde,  C.  J.,  at  the  sittings  in  London 
after  Hilary  Term,  1848.  It  appeared,  that  the  plaintiff'  had  been  in 
the  service  of  the  defendant,  and  had  been  dismissed  on  a  Thursday, 
in  consequence  of  some  articles  being  missed,  which  he  was  suspected 
of  having  stolen ;  and  that,  when  he  went  to  the  defendant's  shop  on 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  717 

the  following  Saturday  to  receive  the  wages  due  to  him,  the  defendant 
called  Jones  and  Williams,  the  other  two  servants,  into  the  counting 
house,  and,  speaking  of  the  plaintiff,  said  to  them — "I  have  dismissed 
that  man  for  robbing  me :  do  not  speak  to  him  any  more,  in  public  or 
private,  or  I  shall  think  you  as  bad  as  him." 

For  the  defendant,  it  was  submitted  that  this  was  a  privileged  com- 
munication. 

On  the  other  hand  it  was  insisted  that  the  act  complained  of  was 
perfectly  gratuitous,  not  like  a  communication  made  to  a  confidential 
person,  or  a  matter  that  the  other  servants  had  any  interest  in ;  and 
that  it  was  a  question  for  the  jury,  whether  the  statement  was  made 
under  circumstances  which  indicated  malice. 

The  Lord  Chief  Justice  was  of  opinion  that  this  was  a  privileged 
communication,  and  that  there  was  no  evidence  of  malice,  and  conse- 
quently that  the  defendant  was  entitled  to  a  verdict  on  the  first  issue. 
He,  however,  offered  to  go  on  and  try  the  issue  on  the  justification. 
This  the  plaintiff  declined.  His  Lordship  thereupon  directed  a  non- 
suit to  be  entered. 

The  plaintiff  obtained  a  rule  nisi  for  a  new  trial,  on  the  ground  of 
misdirection. 

E.  James,  in  support  of  the  rule. — The  communication  in  question 
clearly  was  not  privileged.  A  statement  to  the  prejudice  of  a  third 
person,  to  justify  it,  must  be  made  in  pursuance  of  some  duty,  legal 
or  moral,  or  in  answer  to  an  inquiry  bona  fide  made  by  some  person 
having  an  interest  in  making  it.  [Maule,  J. — That  is  narrowing  the  rule 
too  much :  there  are  many  cases  in  which  volunteer  statements  have  been 
held  to  be  privileged,  when  made  bona  fide.  The  question  here  is, 
whether  the  statement  was  privileged,  assuming  the  defendant  to  have 
acted  bona  fide  and  without  malice. 

MaulE,  J.  *  *  *  We  think  that  the  case  falls  within  the  class 
of  privileged  communications,  which  is  not  so  restricted  as  it  was 
contended  on  behalf  of  the  plaintiff.  It  comprehends  all  cases  of  com- 
munications made  bona  fide,  in  performance  of  a  duty,  or  with  a  fair 
and  reasonable  purpose  of  protecting  the  interest  of  the  party  using  the 
words.  In  this  case,  supposing  the  defendant  himself  to  believe  the 
charge, — a  supposition  always  to  be  made  when  the  question  is  wheth- 
er the  communication  be  privileged  or  not, — it  was  the  duty  of  the 
defendant,  and  also  his  interest,  to  prevent  his  servants  from  associ- 
ating with  a  person  of  such  a  character  as  the  words  imputed  to  the 
plaintiff;  as  such  association  might  reasonably  be  apprehended  to  be 
likely  to  be  followed  by  injurious  consequences,  both  to  the  servants 
and  to  the  defendant  himself. 

We  think,  therefore,  the  communication  in  question  was  privileged, 
i.  e.,  it  was  made  under  circumstances  which  rebut  the  presumption  of 
malice,  which  would  otherwise  arise  from  the  nature  of  the  words 
used.     That  presumption  being  rebutted,  it  was  for  the  plaintiff  to 


718  TORTS  THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

show  affirmatively  that  the  words  were  spoken  maHciously ;  for,  the 
question,  being  one  the  affirmative  of  which  Hes  on  the  plaintiff,  must, 
in  the  absence  of  evidence,  be  determined  in  favour  of  the  defendant. 

On  considering  the  evidence  in  this  case,  we  cannot  see  that  the 
jury  would  have  been  justified  in  finding  that  the  defendant  acted  ma- 
liciously. It  is  true  that  the  facts  proved  are  consistent  with  the  pres- 
ence of  malice,  as  well  as  with  its  absence.  But  this  is  not  sufficient 
to  entitle  the  plaintiff  to  have  the  question  of  malice  left  to  the  jury; 
for,  the  existence  of  malice  is  consistent  with  the  evidence  in  all  cases 
except  those  in  which  something  inconsistent  with  malice  is  shown  in 
the  evidence :  so  that,  to  say,  that,  in  all  cases  where  the  evidence  was 
consistent  with  malice,  it  ought  to  be  left  to  the  jury,  would  be  in  ef- 
fect to  say  that  the  jury  might  find  malice  in  any  case  in  which  it  was 
not  disproved, — which  would  be  inconsistent  with  the  admitted  rule, 
that,  in  cases  of  privileged  communication,  malice  must  be  proved, 
and  therefore  its  absence  must  be  presumed  until  such  proof  is  given. 

It  is  certainly  not  necessary,  in  order  to  enable  a  plaintiff  tO'  have  the 
question  of  malice  submitted  to  the  jury,  that  the  evidence  should  be 
such  as  necessarily  leads  to  the  conclusion  that  malice  existed,  or  that 
it  should  be  inconsistent  with  the  non-existence  of  malice;  but  it  is 
necessary  that  the  evidence  should  raise  a  probability  of  malice,  and 
be  more  consistent  with  its  existence  than  with  its  non-existence. 

In  the  present  case,  the  evidence,  as  it  appears  to  us,  does  not  raise 
any  probability  of  malice;  and  is  quite  as  consistent  with  its  absence 
as  with  its  presence:  and  considering,  as  we  have  before  observed, 
that  the  mere  possibility  of  malice  which  is  found  in  this  case,  and  in 
all  cases  where  it  is  not  disproved,  would  not  be  sufficient  to  justify 
a  jury  in  finding  for  the  plaintiff,  we. think  the  Lord  Chief  Justice  was 
right  in  not  leaving  the  question  to  them,  and  consequently  that  this 
rule  must  be  discharged. 

Rule  discharged.^^ 


(c)  Otuee  Excuses  foe  Defamatoey  Charges  Confessedly  Untrue 

Mcpherson  v.  daniels. 

(Court  of  King's  Bench,  1829.     10  Barn.  &  C.  263,  34  R.  R.  397, 

109  Reprint,  448.) 

In  an  action  for  slander,  for  words  imputing  insolvency  spoken 
of  the  plaintiff  in  his  trade,  the  defendant  pleaded  that  these  same 
words,  which  he  set  out  in  his  plea,  had  been  spoken  of  the  plaintiff 
and  to  the  defendant  by  one  T.  W.  Woor,  of  Swaffham,  in  the  County 
of  Norfolk,  and  that  when  he,  the  defendant,  spoke  and  published 
the  said  words  he  also  declared,  in  the  hearing  of  those  to  whom  the 

3  0  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER   THAN   TRESPASSES  719 

words  were  spoken,  that  he,  the  defendant,  had  heard  and  been  told 
the  same  by  the  said  T.  W.  Woor  of  Swattham,  in  the  county  of  Nor- 
folk.    General  demurrer.     The  Court  called  on 

Piatt,  to  support  the  plea:  It  is  a  sufficient  justification  to  an  ac- 
tion for  slanderous  words  first  spoken  by  a  third  person,  for  the  de- 
fendant to  shew  that  at  the  time  he  repeated  them  he  mentioned  the 
name  of  that  person.  In  the  fourth  resolution  of  Lord  Northamp- 
ton's case,  this  is  said :  "In  a  private  action  for  slander  of  a  com- 
mon person,  if  J.  S.  publish  that  he  hath  heard  J.  N.  say  that  J.  G.  was 
a  traitor  or  thief ;  in  action  of  the  case,  if  the  truth  be  such,  he  may 
justify.  But  if  J.  S.  publish  that  he  hath  heard  generally,  without  a 
certain  author,  that  J.  G.  was  a  traitor  or  thief,  there  an  action  sur 
le  case  lieth  against  J.  S.  for  this,  that  he  hath  not  given  to  the  party 
grieved  any  cause  of  action  against  any,  but  against  himself,  who  pub- 
lished the  words,  although  that  in  truth  he  might  hear  them ;  for  other- 
wise this  might  tend  to  great  slander  of  an  innocent." 

Bayley,  j,  *  *  *  Upon  the  great  point,  viz.  whether  it  is  a 
good  defence  to  an  action  for  slander,  for  a  defendant  to  shew  he 
heard  it  from  another,  and  at  the  time  named  the  author,  I  am  of  opin- 
ion that  it  is  not.  Lord  Northampton's  case  was  undoubtedly  men- 
tioned without  disapprobation  by  Lord  Kenyon,  a  man  of  a  very  pow- 
erful mind,  acute  discrimination,  and  great  learning.  But  whatever 
respect  I  may  feel  for  the  memory  of  that  noble  and  learned  Judge, 
I  cannot  carry  that  respect  so  far  as  to  surrender  my  own  judgment. 
Look  at  the  terms  of  the  resolution  and  try  it  by  the  plain  principles 
of  reason  and  common  sense. 

"It  was  resolved,  that  if  A.  say  to  B.,  did  you  not  hear  that  C.  is  guilty 
of  trea.son,  &c.?  this  is  tautamouut  to  a  scandalous  publication:  and  in  a 
private  action  for  slander  of  a  common  person,  if  J.  S.  publish  that  he  hath 
heard  J.  X.  say  that  J.  G.  was  a  traitor  or  a  thief ;  in  an  action  on  the  case, 
if  the  truth  be  such,  he  may  justify." 

Now,  assuming  that  it  is  not  there  stated,  as  a  qualified  proposition, 
that  a  person  may  justify  if  he  believes  the  slander  to  be  true,  and  re- 
peats it  on  a  justifiable  occasion ;  but  as  a  general  proposition,  if  he  in 
truth  heard  the  report,  from  another,  and  named  that  other  at  the  time 
he  uttered  the  slander,  that  that  is  in  all  cases  a  justification,  I  think 
that  is  a  proposition  which  cannot  be  supported.  At  present  I  have 
very  great  doubts  whether  the  repetition  of  slander  is  in  any  case  law- 
ful, unless  the  party  believe  it  to  be  true.  By  repeating  slander,  a 
person,  although  he  state  at  the  tiine  that  he  heard  it  from  another, 
gives  it  a  degree  of  credit;  for  the  repetition  of  it,  imports  a  degree 
of  belief  in  the  truth  of  the  slander.  If  I  hear  another  say  that  A.  is 
a  thief,  and  that  B.,  though  a  person  of  bad  character,  told  him  so, 
I  am  induced  to  think,  that  the  person  who  repeats  it  gives  some  credit 
to  the  statement.  It  seems  to  me.  therefore,  that  a  person  cannot  be 
justified  in  repeating  slander,  unless  he  believes  it  to  be  true.     But 


720  TORTS  THROUGH  ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

that  alone  is  not  sufficient.  I  think  it  can  only  be  repeated  upon  a 
justifiable  occ^sion.  Every  publication  of  slanderous  matter  is  prima 
facie  a  violation  of  the  right  which  every  individual  has  to  his  good 
name  and  reputation.  The  law,  upon  grounds  of  public  policy  and 
convenience,  permits,  imder  certain  circumstances,  the  publication  of 
slanderous  matter,  although  it  be  injurious  to  another.  But  such  act 
being  prima  facie  wrongful,  it  lies  upon  the  person  charged  with 
uttering  slander,  whether  he  were  the  first  utterer  or  not,  to  shew  that 
he  uttered  it  upon  some  lawful  occasion.  Upon  the  whole.  I  am  of 
opinion  that  a  man  cannot  by  law  justify  the  repetition  of  slander  by 
merely  naming  the  person  who  first  uttered  it;  he  must  also  shew  that 
he  repeated  it  on  a  justifiable  occasion,  and  believed  it  to  be  true*" 
Judgment  for  plaintiff. 


COOK  V.   WARD. 

(Court  of  Common  Pleas,  1830.    6  Bing.  409,  31  R.  R.  456,  130  Reprint,  130S.) 

Libel.  The  declaration  stated  that,  before  the  committing  of  the 
grievances  by  the  defendant  as  thereinafter  mentioned,  one  Corder, 
who  had  been  tried  and  convicted  of  murder  at  Bury,  was  about  to 
be  hanged ;  it  then  alleged,  with  the  customary  innuendos,  that  the  de- 
fendant, Ward,  proprietor  of  the  Colchester  Gazette,  had  caused  the 

40  The  statement  of  the  pleadings  is  abridged.  The  concurring  opinions  of 
Littledale  and  I'arke,  JJ.,  and  a  part  of  the  opinion  of  Baylej-,  J.,  are  omit- 
ted. The  three  judges  were  at  one  also  in  regarding  the  latter  part  of  the 
fourth  resolution  in  Lord  Northampton's  Case  (IG13)  12  Co.  Kep.  134,  as  not 
law. 

In  1829,  also,  Best,  C.  J.,  in  De  Crespigny  v.  Wellesley,  5  Bing.  .302,  401, 
declined  to  recognize  the  fourth  resolution  of  Lord  Northami)ton's  Case  as 
applying  to  libel.     And  see  IS  Halsbury's  Laws  of  England,  6U4.  note  (n). 

In  America,  the  doctrine  of  Lord  Northanii)ton's  Case  has  found  an  echo 
or  two  iu  slander  suits.  Tatlow  v.  Jaquett  (1834)  1  Har.  (Del.)  333.  L'G  Am. 
Dec.  399:  ("Where  a  man  hears  a  slander  he  may  repeat  it  if  he  does  h.o  in  the 
same  words,  and  gives  his  author  at  the  time.")  Jarnigan  v.  Fleming  (1S70) 
43  Miss.  710,  5  Am.  Rep.  514.  But  the  great  weight  of  Amerioau  authm-ity, 
in  actions  for  slander,  is  the  other  way.  Llaines  v.  Welling  (1835),  7  Ohio, 
253,  256,  pt.  1:  (approving  JMcPherson  v.  Daniels  as  "consistent  with  policy, 
right,  justice  and  common  sense.")     And  see  25  Cyc.  364. 

In  America  as  in  England  the  doctrine  of  Lord  Noi-thampton's  Case  ap- 
pears to  have  had  no  support  in  libel  cases.  See  the  i-emarks  of  Kent.  C.  J., 
in  Dole  v.  Lyon  (181.3)  10  Johns.  (N.  Y.)  447,  6  Am.  Dec.  346;  25  Cyc.  363,  note 
77.  The  contrary,  however,  was  urged,  wiUumt  causing  any  change  in  the 
doctrine,  in  WallLng  v.  Commercial  Advertiser  (1915)  165  App.  Div.  26,  150 
N.  Y.  Supp.  906. 

Compare  Branstetter  v,  Dorrough  (1882)  81  Ind.  527,  531:  (D.  retailed  to 
S.  a  slanderous  charge  against  P.,  "for  the  imrpose  of  obtaining  the  opinion 
of  S.  whether  D.  should  or  should  not  inform  P.  of  the  charge  against  her.") 

Tidman  v.  Ainslie  (1854)  10  Ex.  63,  102  R.  R.  478:  (The  plea,  in  an  action 
for  libel,  alleged  a  repetition  on  stated  authority  aud  "that  the  defendant  then 
believed  all  the  statements  made  in  the  said  letter,  and  particularly  the  said 
words  of  the  said  letter  so  published  as  aforesaid,  to  be  true."  To  this  the 
plaintiff  demurred.) 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  721 

following  defamatory  statement  to  be  published  of  the  plaintiff,  Cook, 

in  the  Gazette : 

"The  following  ludicrous  occurrence  took  place  at  Bury  shortly  after  the 
conclusion  of  the  trial  of  Corder.  A  respectable  deputy  overseer,  not  two 
miles  from  the  parish  of  St.  Mary's  in  this  town,  like  many  other  Gents,  had 
the  curiosity  to  hear  Corder's  trial.  Accoi'dingly,  he  went  to  Bury  and  got 
admission  into  court ;  and  the  trial  being  ended  he  adjourned  to  an  inn  (not 
of  the  highest  class)  to  take  some  porter,  amidst  a  dozen  others,  who  were 
perhaps  as  risky  as  himself.  His  appearance,  which  we  suppose  must  have 
been  singular,  struck  the  company  that  he  must  be  a  man  'out  of  the  common 
way.'  Accordingly,  the  question  was  whispered  amongst  them,  who  he  could 
be:  at  length,  after  a  deal  of  pro  and  con,  it  was  decided  that  he  could  be  no 
other  personage  than  Jack  Ketch.  After  a  short  pause,  one  of  them  emphati- 
cally said  to  him,  'Pray,  Sir,  aren't  you  the  gemman  that's  come  down  to 
hang  Corder?'  Of  course  such  a  question  was  the  means  of  his  bidding  them 
a  respectful  farewell. 

The  stupid  elves  mistook  him  by  his  look, 

'Stead  of  the  Jack,  he  proved  to  be  the  Cook.' " 

*  *  *  It  appeared  that  before  the  publication  in  the  newspaper 
the  plaintiff  had  told  the  story  of  himself  to  a  party  of  his  acquaintanc- 
es at  a  public-house  in  Colchester. 

The  jury  gave  a  verdict  for  the  plaintiff,  with  £10  damages.  A 
rule  nisi  was  obtained  on  the  defendant's  motion. 

TiNDAL,  C.  J.  *  *  *  It  is  urged,  however,  that  the  plaintiff 
could  have  no  claim  to  damages,  because  he  had  told  the  story  of 
himself.  If  it  could  have  been  shown  that  he  had  authorized  the  pub- 
lication of  the  story,  the  Court  would  have  granted  a  new  trial.  But 
there  is  a  great  dift'erence  between  ,a  man's  telling  a  ludicrous  story 
of  himself  to  a  circle  of  his  own  acquaintance,  and  a  publication  of  it 
to  all  the  world  through  the  medium  of  a  newspaper.  The  rule  must  be 
discharged. 

Discharged.'*^ 


RICHARDSON  v.  GUNBY. 

(Supreme  Court  of  Kansas,  1912.     8S  Kan.  47,  127  Bac.  533,  42  L.  E.  A. 

[N.  S.]  520.) 

Benson,  J."  This  is  an  action  to  recover  damages  for  an  alleged 
libel.  Mr.  Neal  of  Indianapolis,  Ind.,  addressed  a  letter  to  the  Altoona 
State  Bank  asking  for  information  concerning  the  Altoona  Portland 
Cement  Company  and  its  officers.  The  letter  stated  that  the  company 
was  bidding  for  investors.  Responding  to  this  inquiry,  the  appellee, 
who  was  president  of  the  bank,  wrote  a  letter  to  Mr.  Neal,  in  which  it 
was  stated  that  the  cement  company  had  been  characterized  as  a  paper 
concern  by  the  state  bank  examiner ;    that  none  of  its  stock  had  been 

41  The  statement  of  facts  is  abridged  and  part  of  the  opinion  of  Tindal, 
C.  J.,  and  the  opinion  of  Park,  J.,  are  omitted. 
4  2  Parts  of  the  opinion  are  omitted. 
IIepb. Torts — 46 


23  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 


placed  locally,  because  "no  one  locally  has  any  faith  in  the  integrity  or 
ability  of  its  officers.  Its  secretary  is  regarded  as  one  of  the  most 
tricky  men  in  this  community  and  a  good  man  to  leave  strictly  alone, 
and  all  of  his  projects."  The  letter  otherwise  reflected  upon  the  credit 
and  standing  of  the  company  and  closed  with  the  statement,  "The 
above  information  is  submitted  in  confidence  and  in  reply  to  your  in- 
quiry for  same  and  if  of  any  value  to  you  we  will  expect  such  informa- 
tion so  treated,"  and  was  signed  "J.  F.  Gunby,  President."  The  ap- 
pellant was  the  secretary  of  the  company.  The  language  of  the  letter 
contained  within  the  quotation  was  held  to  be  actionable  per  se  in 
Schreiber  v.  Gunby,  81  Kan.  459,  106  Pac.  276.  *  *  *  For  a 
separate  defense  it  was  alleged  that  the  letter  of  inquiry  was  written  at 
the  instance  of  the  plaintifif  as  a  decoy  to  induce  the  defendant  to 
make  some  statement  upon  which  to  predicate  an  action.  A  demur- 
rer filed  to  this  defense  was  overruled.  The  verdict  and  judgment 
were  for  the  defendant.     *     *     * 

Whatever  may  be  the  rule  in  criminal  cases,  where  the  object 
is  punishment  for  a  public  ofifense,  in  a  civil  action  a  party  cannot  be 
allowed  to  recover  damages  for  a  libel  which  he  procured  or  instigated 
to  be  published  against  himself  for  the  purpose  of  laying  the  founda- 
tion of  a  lawsuit  for  his  own  pecuniary  gain.  It  would  be  contrary  to 
the  principles  declared  in  analogous  cases  to  sustain  such  an  action. 
It  follows  that  the  demurrer  to  the  defense  referred  to  was  properly 
overruled.*^ 

Another  feature  of  the  case  clos'ely  related  to  this  remains  to  be  con- 
sidered. In  the  tenth  instruction  the  court,  referring  to  the  defense 
last  considered,  said :  "If  this  letter  written  by  Mr.  Neal  was  the  re- 
sult of  a  decoy  letter  sent  to  Mr.  Gunby  at  the  instance  and  request  of 
Mr.  Richardson,  plaintiff  cannot  recover,  for  the  reason  that  it  would 

43  See  King  v.  Waring  (1803)  5  Esp.  13,  14  R.  R.  751,  Smith  v.  Wood  (1813) 
3  Camp.  323,  and  the  examination  and  adoption  of  these  cases  in  Gordon  v. 
Spencer  (1829)  2  Blackf.  (Ind.)  286,  287. 

"The  question  [whether  a  plaintiff  who  has  procured  the  defamatory  ut- 
terance, in  order  to  found  an  action  upon  it,  can  maintain  his  action]  has 
been  discussed  and  passed  upon  in  many  cases  in  the  United  States,  and 
among  them  in  Gordon  v.  Si>encer  (1829)  2  Blaclcf.  (Ind.)  286.  288;  Yeates  v. 
Reed  (1838)  4  Blackf.  (Ind.)  463,  465,  32  Am.  Dec.  43:  Jones  v.  Chapman 
(1839)  5  Blackf.  (Ind.)  88;  Haynes  v.  Leland  (1S18)  29  Me.  233,  234,  243;  Sut- 
ton V.  Smith  (1850)  13  Mo.  120,  123,  124 ;  Nott  v.  Stoddard  (1805)  38  Vt.  25, 
31,  88  Am.  Dec.  033;  Heller  v.  Howard  (1882)  11  111.  App.  554;  White  v. 
^'ewcomb  (1898)  25  App.  Div.  397,  401,  49  N.  Y.  Supp.  704 :  O'Doimell  v.  Nee 
(C.  C,  1898)  86  Fed.  96;  Railroad  v.  Delaney  (1899)  102  Tenn.  289,  294,  295, 
52  S.  W.  151,  45  L.  R.  A.  600,  and  Shinglemeyer  v.  Wright  (1900)  124  Mich. 
230,  240,  82  N.  W.  887,  50  L.  R.  A.  129.  See  also  25  Cyc.  pp.  370,  371.  In  most 
of  these  cases  the  supposed  ruling  of  Ix)rd  Ellenborough,  C.  J.,  in  Smith  v. 
Wood,  and  the  oi)uiion  expressed  by  Loi'd  Alvanloy,  C.  J.,  in  King  v.  Waring 
were  recognized  as  correct  statements  of  the  law,  and  followed."  Per  Mere- 
dith, C.  J.,  delivering  the  opinion  of  the  Ontario  Divisional  Court  in  Rudd  v. 
Cameron  (1912)  4  I).  L.  R.  567,  571.  This  court,  however,  distinguishes  King 
V.  Waring  and  Smith  v.  Wood,  and  follows  Duke  of  Brunswick  v.  Harmor 
(1849)  14  Q.  B.  185.    See  also  Rudd  v.  Cameron  (1914)  8  D.  L.  R.  622,  C.  A. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  723 

place  the  plaintiff  in  the  situation  of  publishing  a  libel  against  himself 
— a  thing  which  the  law  will  not  tolerate."  This  statement  lacks  an 
important  qualification.  The  reason  why  a  person  cannot  recover  in 
such  a  case,  where  he  instigates  or  invites  the  libel,  is  that  he  does  it, 
as  charged  in  the  reply,  for  the  purpose  of  predicating  an  action  for 
damages  upon  it.  He  may  not  thus  assist  in  building  up  a  cause  of 
action  for  the  purpose  of  gathering  the  fruitage  to  himself.  If,  how- 
ever, the  plaintiff  instigated  or  set  on  foot  the  inquiry  for  the  purpose 
of  ascertaining  whether  the  defendant,  or  the  bank  of  which  he  was 
president,  was  disseminating  evil  reports  concerning  the  cement  com- 
pany or  its  officers,  in  order  that  such  influences  might  be  counteracted, 
or  for  any  other  proper  purpose,  and  not  for  the  purpose  of  predicat- 
ing an  action  for  damages  in  his  own  behalf,  he  was  not  estopped  from 
maintaining  an   action.     *     *     *  ** 

Following  the  instruction  last  quoted,  if  the  jury  found  from  the  evi- 
dence that  the  so-called  decoy  letter  was  written  at  the  instance  and 
request  of  appellant,  they  were  precluded  from  giving  him  a  verdict, 
regardless  of  his  purpose  or  motive  in  causing  the  inquiry.  This  was 
an  error  affecting  his  substantial  rights,  and  for  this  the  judgment  is 
reversed,  with  directions  to  grant  a  new  trial. 

4  4  Benson,  J.,  here  quoted  the  dictum  of  Lord  Alvanley  in  King  v.  Waring 
(1803)  5  Esp.  13.  See  also  Rudd  v.  Cameron  (1912)  8  D.  L.  R.  622,  C.  A.: 
(Finding  that  slanders  concerning  him  in  his  business  as  a  building  contractor 
were  being  circulated,  but  not  knowing  who  was  responsible,  P.  placed  the 
matter  in  tbe  hands  of  a  detective  agency,  who  sent  two  detectives  to  in- 
vestigate. They  were  not  told  or  asked  by  P.  to  go  to  D.  The  detectives,  hav- 
ing made  the  acquaintance  of  D.,  told  him  that  they  were  going  to  erect  a 
club  house  and  that  P.  wished  to  get  the  contract.  This  ruse  brought  out 
from  D.  a  repetition  of  the  slander  already  in  circulation.  In  P.'s  action, 
based  uiwn  this  statement,  D.  contended  that  he  had  been  induced  to  utter  the 
slanderous  words  by  detectives  employed  by  P.  for  that  purpose,  and  that  it 
was  as  if  D.  had  spoken  the  words  to  P.  himself  and  at  his  request.  But  a 
judgment  for  P.  was  sustained  in  the  Divisional  Court  and  in  the  Ontario 
Court  of  Appeal.  "If  the  plaintiff,"  said  Meredith,  J.  A.,  "had  by  subtei-fuge 
induced  the  defendant  to  speak  defamatory  words  of  him  merely  for  the  pur- 
pose of  having  an  action  for  damages,  I  cannot  think  that  such  an  action 
would  lie.  *  *  *  That  which  one  procures  another  to  do  for  him,  may  be 
said,  very  properly,  to  be  done  by  himself,  in  fishing  for  actions  as  well  as 
in  other  things.  But  that  is  not  this  case ;  it  was  the  case  referred  to  by 
Lord  Avanley  in  his  ruling  in  King  v.  Waring  [1803]  5  Etep.  15.  It  is  quite  a 
different  thing  for  one  who  has  been  defamed  by  a  secret  enemy,  and  who 
in  honest  and  not  unusual  or  unreasonable  endeavours  to  discover  the  wrong- 
doer, is  again  defamed — by  one  whom  he  suspected  of  the  secret  defamation — 
to  bring  such  an  action  as  this — even  though  the  new  slanders  were  published 
only  to  detectives  employed  by  him  and  under  false  statements  made  by  them 
in  such  an  endeavour.  And  that  is  this  case:  and  was  very  like  the  case  of 
Duke  of  Bi-unswick  v.  Harmer  [1849]  14  Q.  B.  185;  see  also  GritBths  v.  Lewis 
[1845]  7  Q.  B.  61.  The  plaintiff  was  not  seeking  a  new  defamation  of  his  char- 
acter with  a  view  to  recovering  damages  because  of  it:  he  was  seeking  knowl- 
edge with  a  view  to  putting  a  stop  to  the  secret  slanders  which  he  neither 
desired  nor  had  induced:  and  so,  in  this  action,  is  not  taking  advantage  of 
his  own  wrong,  or  answered  by  a  defence  of  leave  and  license.") 


724  TORTS  THROUGH  ACTS  OF   ABSOLUTE  LIABILITY  (Part  1 

POUCHAN  V.  GODEAU. 

(Supreme  Court  of  California,  1914.     167  Cal.  692,  140  Pac.  952.) 

Per  Curiam.*^  This  case  was  transferred  from  the  District  Court 
of  Appeal  of  the  First  District  by  reason  of  a  disagreement  of  the 
justices.  Mr.  Justice  Hall  was  in  favor  of  a  reversal  of  the  judg- 
ment and  order,  and  this  court  agrees  with  the  view  which  he  took. 
He  said : 

"Plaintiflf  recovered  judgment  against  defendant,  in  an  action  for 
slander,  in  the  sum  of  $1,500.  The  appeal  is  from  the  judgment  and 
the  order  denying  defendant's  motion  for  a  new  trial. 

"The  only  grounds  relied  upon  for  a  reversal  are  alleged  errors 
committed  by  the  court  in  giving  and  refusing  certain  instructions 
and  in  its  rulings  upon  certain  objections  to  testimony. 

"The  language  which  it  is  charged  that  defendant  used  with  regard 
to  plaintiff  was  spoken  in  the  French  tongue  at  the  entrance  of  a 
hall,  wherein  a  meeting  of  French  people  was  about  to  be  held,  to 
consider  matters  concerning  the  French  Hospital  and  the  election  of 
officers  thereof.  The  language  charged  to  have  been  used  is  set  out 
in  the  complaint,  together  with  its  translation  into  English.  It  is 
charged  that  defendant  intercepted  plaintiff'  at  the  doorway  of  said 
hall,  and  in  the  presence  and  hearing  of  divers  persons  said  to  him, 
'Thieves  are  not  allowed  in  here,'  to  which  plaintiff  responded,  'Then 
you  call  me  a  thief,'  to  which  the  defendant  replied,  'Yes,  you  are  a 
thief.'  The  evidence  amply  sustains  the  charge  as  it  is  set  forth  in 
the  complaint. 

"The  defendant  requested  the  court  to  give  to  the  jury  two  in- 
structions, as  follows : 

"  'I  cliarge  you  that  if  you  believe  or  if  yoii  find  that  the  words  alleged 
to  have  been  uttered  by  the  defendant,  as  set  foilh  in  plaintiff's  complaint, 
were  in  reply  to  a  cpiestion  or  questions  propounded  by  defendant  to  plaintiff, 
then  said  replies  are  privileged,  and  that  you  may  not  assess  any  damages 
against  defendant.'  And:  'I  charge  you  that  if  you  find  the  pulilication  was 
proved  at  the  trial,  and  that  it  was  brouglit  about  by  the  plaintiff's  own  con- 
trivance, this  does  not  constitute  sufficient  evidence  of  publication,  and  your 
verdict  must  then  be  for  the  defendant.' 

"The  court  refused  to  give  either  of  said  instructions. 

"Each  and  every  witness  who  testified  to  the  use  of  the  language 
complained  of  testified  to  the  effect  that  defendant  intercepted  and 
barred  the  entrance  of  plaintiff  to  the  hall,  and  at  the  same  time  open- 
ed the  conversation  by  saying  to  him,  'Thieves  are  not  allowed  in 
here.'  This  language,  under  the  circumstances  of  its  use,  clearly  in 
itself  and  without  further  explanation  prima  facie  carries  the  infer- 
ence that  plaintiff  was  a  thief,  or  that  defendant  so  charged. 

"The  fact  that  plaintiff,  by  a  question,  drew  out  a  reiteration  in 

*5  Parts  of  the  opinion  are  omitted. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  725 

more  direct  language  of  the  charge  already  made,  in  the  presence  of 
the  same  people,  does  not  bring  the  case  within  the  rule  of  'Volenti 
non  fit  injuria,'  relied  upon  by  defendant  in  support  of  his  request 
for  the  rejected  instructions. 

"Where  a  defendant,  not  in  the  presence  or  hearing  of  third  per- 
sons, makes  a  slanderous  statement  about  a  plaintiff,  and  thereafter, 
at  the  request  of  the  plaintiff,  repeats  the  statement  in  the  presence 
and  hearing  of  third  persons,  such  repetition  cannot  be  made  the  basis 
of  an  action  for  slander.  Such  a  case  is  within  the  rule  now  invoked 
by  defendant. ^^     *     *     * 

"But  under  no  phase  of  the  evidence  in  the  case  at  bar  does  it  ap- 
pear that  the  language  complained  of  and  proven  to  have  been  used 
was  but  a  repetition,  at  the  request  of  plaintiff,  of  language  previously 
used  but  not  in  the  presence  of  third  persons.  All  the  evidence  that 
tends  to  show  the  use  of  the  language  complained  of  shows  that  it 
was  used  under  the  circumstances  above  detailed,  and  that  the  first 
remark  was  made  by  defendant  to  plaintiff,  as  above  stated,  under 
such  circumstances  as  of  itself  to  carry  the  meaning  that  plaintiff 
was  a  thief. 

"The  witnesses  for  the  defendant  denied  that  the  language  com- 
plained of  or  any  part  of  it  was  used  at  all  by  the  defendant.  Un- 
der this  condition  of  the  evidence,  there  was  nothing  to  justify  the 
giving  of  either  of  the  refused  instructions.     *     *     * 


WILLIAMS  et  al.  v.  NEW  YORK  HERALD  CO. 

(Supreme  Court  of  New  York,  Appellate  Division,  1915.     1G5  App.  Div.  529, 

150  N.  y.   Supp.  S38.) 

The  action  was  by  Williams  and  another  against  the  New 
York  Herald  Company.  From  a  judgment  for  plaintiffs,  and  from 
an  order  denying  a  new  trial,  the  defendant  appeals. 

46  The  Court  here  cited  Patterson  v.  Frazer  (Tex.  Civ.  App.,  1904)  79  S. 
W.  1082;  O'Donnell  v.  Nee  (C.  C,  1S9S)  80  Fed.  96:  (P.  said  to  S.:  "The 
watchman  [D.]  has  accused  me  of  hiding  brass  to  steal."  S.,  turning  to  D., 
said:  "Is  that  so?"  Thereupon  D.  said  "Yes.")  Heller  v.  Howard  (1882) 
11  111.  App.  5.54:  (A  defamatory  statement  made  to  the  plaintiff  alone  was 
afterwards  repeated  at  plaintiff's  request  in  the  hearing  of  a  third  person. 
"The  repetition  was  at  her  special  refiuest,  and  the  maxim  volenti  non  fit  in- 
juria ^^ill  apply."  Per  McAllister,  J.)  Shingleraeyer  v.  Wright  (1900)  124 
Mich.  2.30,  82  N.  W.  887,  50  L.  R.  A.  129:  (P.  had  sent  for  a  police  officer  for 
the  purpose  of  having  D.  repeat  in  his  hearing  the  false  charge  of  theft  which 
D.  had  made  to  P.  alone.) 

See  also  Sutton  v.  Smith  (1850)  13  Mo.  120:  (P.  put  "an  apron  full  of 
her  own  corn"  into  D.'s  corn  crib,  and  afterwards,  when  D.  is  watching  her, 
throws  it  out  in  a  successful  attempt  to  "devil"  him  into  a  charge  of  theft.) 
Melcher  v.  Beeler  (1910)  48  Colo.  2:}.3,  110  Pac.  181,  139  Am.  St.  Hep.  273; 
Howland  v.  Blake  Mfg.  Co.  (1892)  156  Mass.  543,  570,  31  N.  E.  6.56;  25  Cyc. 
370,  notes  24,  25 ;  "Libel  and  Slander,"  Cent.  Dig.  §§  131,  132,  154 ;  Dec.  Dig. 
Key -No.  §  47. 


726  TORTS  THROUGH   ACTS  OF    ABSOLUTE  LIABILITY  (Part  1 

Scott,  J.*^  The  action  is  for  libel.  The  defendant  is  the  publisher 
of  a  newspaper.  The  plaintiffs,  under  the  name  of  the  Lambert  Dairy 
Company,  carry  on  the  business  of  selling  and  supplying  milk  and 
cream  to  their  customers  in  the  city  of  New  York.  The  libel  com- 
plained of  consists  of  an  article  accusing  the  Lambert  Dairy  Com- 
pany of  selling  watered  and  adulterated  milk.  This  article  was  a 
fairly  accurate  summary  of  the  allegations  contained  in  a  complaint 
in  an  action  by  the  French-American  Stores  Company  against  the 
plaintiffs  and  others.  This  complaint  was  filed  in  the  office  of  the 
county  clerk,  but  up  to  the  time  of  the  publishing  of  the  libel  it  had 
never  been  presented  to  the  court,  nor  had  any  application,  based  upon 
it,  been  made  to  the  court  for  any  preliminary  or  provisional  order 
or  process.  It  developed  upon  the  trial  that  plaintiffs  had  never 
filed  the  certificate  required  by  law  to  enable  them  to  carry  on  business 
under  the  name  Lambert  Dairy  Company,  which  they  had  adopted 
and  used.  Hence,  while  the  business  they  were  conducting  was  a 
perfectly  lawful  and  legitimate  one,  the  manner  of  conducting  it  was 
unlawful  and  constituted  a  misdemeanor.  Penal  Law,  §§  440,  924; 
Partnership  Law,  §  22.  The  damages  claimed  in  the  complaint  were 
those  claimed  to  have  been  suffered  by  plaintiffs  in  their  business. 
The  amount  recovered  was  not  excessive,  if  they  are  entitled,  as  a 
matter  of  law,  to  recover  at  all. 

The  appellant  urges  two  reasons  why,  as  it  is  claimed,  the  judgment 
should  not  stand :  First.  It  claims  a  qualified  privilege  in  that  the 
article  complained  of  was  a  fair  and  true  report  of  a  judicial  proceed- 
ing or  of  a  paper  duly  filed  in  the  course  of  such  a  proceeding. 
Second.  Because  the  plaintiffs  were  engaged  in  a  criminal  undertak- 
ing in  carrying  on  their  business  as  they  did,  and  consequently  can- 
not claim  damages  in  respect  thereto.     *     *     * 

The  defendant's  second  objection  to  the  judgment  rests,  in  our 
opinion,  on  a  sounder  foundation.  The  damages  claimed  are  for  inju- 
ry to  the  business  in  which  the  plaintiffs  are  engaged,  and  it  certainly 
seems  anomalous  that  one  may  recover  for  injury  to  a  business,  the 
carrying  on  of  which  is  unlawful  and  criminal.  Plaintiff's  claim  is 
that  the  libel  injured  the  fair  fame  and  reputation,  and  consequently 
the  business  value  of  the  Lambert  Dairy  Company,  a  name  which 
they  had  unlawfully  appropriated  and  used.  In  principle  the  case 
is  not  unlike  Marsh  v.  Davison,  9  Paige,  580,  wherein  the  slander 
sued  for  was  that  the  plaintiff  had  killed  a  w^oman  by  the  use  of  mis- 
applied remedies.  It  was  pleaded  in  defense  that  the  plaintiff  had 
not  registered  as  a  medical  practitioner.  The  court  said :  "It  is 
doubtful  whether  the  words  charged  to  have  been  spoken  by  hini 
are  actionable.  For  it  appears  by  the  bill  itself  that  Davison  was  not 
a  regular  physician  or  surgeon  ;  nor  was  he  licensed  to  practice  as 
such  according  to  the  laws  of  this  state.    And  as  he  cannot,  therefore, 

4  7  I'art  of  the  opinion  is  omitted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  727 

recover  any  compensation  for  his  services  under  the  provision  of  the 
Revised  Statutes  (1  R.  S.  [2d  Ed.]  451,  §  24),  he  cannot  maintain 
an  action  of  slander  for  charging  him  with  malpractice  in  a  profes- 
sion which  he  cannot  legally  exercise."  *^ 

So  in  the  present  case  it  must,  we  think,  be  said  that  plaintiffs  can- 
not recover  for  damages  to  a  business  which  they  could  not  lawfully 
carry  on  in  the  manner  in  which  they  did  carry  it  on.  When  this 
case  was  before  us  on  demurrer,  the  present  question  was  not  pre- 
sented, for  it  did  not  appear  that  plaintiff's  use  of  this  fictitious  name 
was  unlawful.  For  aught  that  appeared,  they  might  have  taken  the 
necessary  steps  to  render  the  use  of  the  name  lawful.  Fry  v.  Bennett, 
28  N.  Y.  324;  Trimmer  v.  Hiscock,  27  Hun,  364.  If  plaintiffs  were 
suing  for  damages  to  themselves  as  individuals,  a  different  question 
would  be  presented,  with  which  we  are  not  now  called  upon  to  deal. 

Our  conclusion  is  that,  for  the  reason  above  assigned,  the  defendant 
was  entitled  to  a  dismissal  of  the  complaint  at  the  trial.  It  follows 
that  the  judgment  and  order  appealed  from  must  be  reversed,  and 
the  complaint  dismissed,  with  costs  to  the  appellant  in  all  courts. 
All  concur. 

48  Accord:  Collins  v.  Carnegie  (1834)  1  Ad.  &  E.  695,  110  Reprint,  1.37.3: 
("The  statute  imposes  no  penalty  on  unlicensed  practitioners,  but  the  pro- 
hibitory words  are  strong  enough  to  make  the  practice  unlawful.  This  ac- 
tion cannot,  therefore,  be  maintained  for  slander  of  the  plaintiff  in  a  profes- 
sion which  by  law  he  could  not  exercise."    Per  Lord  Deunian,  C.  .J.) 

Hargan  v.  Purdy  (1892)  93  Ky.  424,  20  S.  W.  432:  ("As  defamatory  words, 
either  spoken  or  written,  of  a  person  in  respect  to  his  office  or  employment, 
as  to  say  of  a  physician  'He  is  an  empiric'  or  'a  quack,'  are  actionable  per 
se,  the  petition  would  have  contained,  prima  facie,  a  cause  of  action  if  ap- 
pellant had  been  contented  to  state  the  simple  fact  that  he  was  a  regular 
physician  duly  and  legally  authorized  to  practice  that  profession,  and  being 
so  employed  the  words  mentioned  were  spoken  of  him.  But  he  undertook  to 
state  how  and  by  what  authority  he  was  entitled  to  practice  as  a  physician; 
and  thus  is  presented  the  question,  to  be  considered  on  general  demurrer, 
whether  he  was,  at  the  time  the  alleged  slanderous  words  were  published, 
legally  authorized  to  practice  the  medical  profession.  For  if  he  was  then 
undertaking  to  practice  medicine  in  violation  of  the  statute  of  the  State,  he 
could  not,  in  contemplation  of  law,  have  been  injured  or  sustained  damage 
from  being  called  an  empiric  or  quack;  or,  at  all  events,  he  could  not  be 
heard  in  a  court  of  justice  to  complain  that  words  had  been  spoken  or  writ- 
ten of  him  having  the  simple  effect  to  disable  or  deter  him  from  violating  a 
penal  law."     Per  Lewis,  J.) 

For  a  distinction  when  the  libel  "reflects  on  the  plaintiff  in  his  private 
character"  and  not  merely  as  a  ijractitioner.  see  the  remarks  of  Tindal.  C.  J., 
in  Long  v.  Chubb  (1831)  5  C.  &  P.  431.  Here  the  plaintiff  had  declared  for 
a  libel  published  "of  and  concerning  him,  and  of  and  concerning  him  as  a 
medical  practitioner."  u 


728  TORTS  THROUGH  ACTS  OF   ABSOLUTE  LIABILITY  (Part  1 


(d)  Faib  Comment 

SIR  JOHN  CARR,  Knt,  v.  HOOD  et  al. 

(London   Sittings,   after  Trinity  Term,   ISOS,     1   Camp.  355,  note, 

10  R.  R.  701,  note.) 

The  declaration  stated  that  the  plaintiff,  before  the  publishing  of 
any  of  the  libels  thereinafter  mentioned,  was  the  author  of  a  certain 
book  entitled  "The  Stranger  in  France,"  a  certain  other  book  entitled 
"A  Nortr.ern  Summer,"  a  certain  other  book  entitled  "The  Stranger 
in  Ireland,"  which  said  books  had  been  respectively  published  in  4to, 
yet  that  defendant,  intending  to  bring  upon  plaintiff  great  contempt, 
laughter  and  ridicule, 

falsely  and  maliciously  published  a  certain  false,  scandalous,  malicious,  and 
defamatory  libel,  in  the  form  of  a  book,  of  and  concerning  the  said  books, 
of  which  the  said  Sir  John  was  the  author  as  aforesaid,  which  same  libel 
was  entitled  "My  Pocket  Book,  or  Hints  for  a  Ryghte  Merrie  and  Conceited 
Tour,"  in  quarto,  to  be  called,  'The  Stranger  in  Ireland  in  1S05'  (thereby  al- 
luding to  the  said  book  of  the  said  Sir  John,  thirdly  above  mentioned),  by  a 
Kniglit  Errant  (thereby  alluding  to  the  said  Sir  John),  and  which  same  libel 
contained  therein  a  certain  false,  scandalous,  malicious,  and  defamatory  print, 
of  and  concerning  the  said  Sir  John,  and  of  and  concerning  the  said  books  of 
the  said  Sir  John,  1st  and  2ndly  above  mentioned,  therein  called  "Frontis- 
piece," and  entitled  "The  Knight  (meaning  the  said  Sir  John)  lieaving  Ire- 
land with  Regret,"  and  containing  and  representing  in  the  said  print,  a  certain 
false,  scandalous,  and  malicious,  defamatory,  and  ridiculous  representation  of 
the  said  Sir  John,  in  the  form  of  a  man  of  ludicrous  and  ridiculous  appear- 
ance, holding  a  pocket  handkerchief  to  his  face  and  appearing  to  be  weep- 
ing, and  also  containing  therein,  a  certain  false,  malicious,  and  ridiculous 
representation  of  a  man  of  ludicrous  and  ridiculous  appearance,  following 
the  said  representation  of  the  said  Sir  John,  and  representing  a  man  load- 
ed with,  and  bending  under  the  weight  of,  three  large  books,  one  of  them 
having  the  word  "Baltic,"  printed  on  the  back  thereof,  &c.  and  a  pocket 
handkerchief  appearing  to  be  held  in  one  of  the  hands  of  the  said  representa- 
tion of  a  man,  and  the  corners  thereof  appearing  to  be  held  or  tied  together, 
as  if  containing  something  therein,  with  the  printed  word  "Wardrobe"  de- 
l>ending  thoretrom  (thereby  falsely,  scandalously  and  maliciously  meaning 
and  intending  to  represent,  for  the  purpose  of  rendering  the  said  Sir  John 
ridiculous,  and  exposing  him  to  laughter,  ridicule  and  contempt,  that  one 
copy  of  the  said  1st  mentioned  book  of  the  said  Sir  John,  and  two  copies  of 
the  said  Look  of  the  said  Sir  John  2ndly  above  mentioned,  were  so  heavy  as 
to  cause  a  man  to  bend  under  the  weight  thereof,  and  tliat  his  the  said  Sir 
John's  wardrobe  was  very  small,  and  capable  of  being  contained  in  a  pocket 
handkerchief. 

The  declaration  concluded  by  laying  as  special  damage  that  the 
plaintiff  had  been  prevented  and  hindered  from  selling  to  Sir  Richard 
Philips,  Knt.,  for  £600,  the  copyright  of  a  certain  book  of  which  the 
plaintiff  was  the  author,  containing  an  account  of  a  tour  by  him 
through  part  of  Scotland.     Plea,  Not  guilty. 

Lord  Ellenborough,  as  the  trial  was  proceeding,  intimated  an 
opinion,  that  if  the  book  published  by  the  defendants  only  ridiculed 
the  plaintiff  as  an  author,  the  action  could  not  be  maintained. 

Garrow  for  the  plaintiff  allowed,  that  when  his  client  came  forward 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  729 

as  an  author,  he  subjected  himself  to  the  criticism  of  all  who  might 
be  disposed  to  discuss  the  merits  of  his  works;  but  that  criticism 
must  be  fair  and  liberal;  its  object  ought  to  be  to  enlighten  the  pub- 
lic, and  to  guard  them  against  the  supposed  bad  tendency  of  a  par- 
ticular publication  presented  to  them,  not  to  wound  the  feelings  and 
to  ruin  the  prospects  of  an  individual.  If  ridicule  was  employed  it 
should  have  some  bounds.  While  a  liberty  was  granted  of  analyzing 
literary  productions,  and  pointing  out  their  defects,  still  he  must 
be  considered  as  a  libeller  whose  only  object  was  to  hold  up  an  author 
to  the  laughter  and  contempt  of  mankind.  A  man  with  a  wen  upon 
iiis  neck  perhaps  could  not  complain  if  a  surgeon  in  a  scientific  work 
should  minutely  describe  it,  and  consider  its  nature  and  the  means  of 
dispersing  it;  but  surely  he  might  support  an  action  for  damages 
against  any  one  who  should  publish  a  book  to  make  him  ridiculous 
on  account  of  this  infirmity,  with  a  caricature  print  as  a  frontispiece. 
The  object  of  the  book  published  by  the  defendants  clearlv  was,  by 
means  of  immoderate  ridicule  to  prevent  the  sale  of  the  plaintiff's 
works,  and  entirely  destroy  him  as  an  author.  In  the  late  case  of 
Tabart  v.  Tipper  *^  his  Lordship  had  held  that  a  publication  by  no 
means  so  offensive  or  prejudicial  to  the  object  of  it,  was  libellous 
and  actionable. 

Lord  Ellkxborough.  In  that  case  the  defendant  had  falsely  ac- 
cused the  plaintiff"  of  publishing  what  he  had  never  published.  Here 
the  supposed  libel  has  only  attacked  those  works  of  which  Sir  John 
Carr  is  the  avowed  author;  and  one  writer  in  exposing  the  follies 
and  errors  of  another  may  make  use  of  ridicule  however  poignant. 
Ridicule  is  often  the  fittest  weapon  that  can  be  employed  for  such 
a  purpose.  If  the  reputation  or  pecuniary  interests  of  the  person 
ridiculed  suffer,  it  is  damnum  absque  injuria.     Where  is  the  liberty 

49  1  Camp,  350,  10  R.  R.  698.  In  this  case,  the  defendant  had  published 
in  a  periodical  called  "The  Satirist  or  Monthly  Jfeteor"  an  article  reflecting 
upon  the  plaintiff  as  a  publisher  of  children's  books  and  imputing  to  him  the 
following  "magnificent  poem": 

"There  was  a  little  maid,  and  she  was  afraid, 
Her  sweetheart  would  come  to  her, 
She  bound  up  her  head  when  she  went  to  bed 
And  she  fastened  her  door  with  a  skewer." 

On  the  trial  the  defendant  "allowed  that  the  plaintiff  had  not  published 
the  poem  imputed  to  him."  Lord  EUenborough  remarked  that  "liberty  of 
criticism  must  be  allowed,  or  we  should  neither  have  purity  of  taste  nor  of 
morals.  Fair  discussion  is  essentially  necessary  to  the  truth  of  history  and 
the  advancement  of  science.  That  publication  therefore  I  shall  never  consider 
as  a  libel,  which  has  for  its  object,  not  to  injure  the  reputation  of  any  in- 
dividual, but  to  con-ect  misrepresentations  of  fact,  to  refute  sophistical  rea- 
soning, to  expose  a  vicious  taste  in  literature,  or  to  censure  what  is  hostile 
to  morality."  But  after  the  evidence  was  in,  his  Lordship  informed  the  jury, 
that  "it  was  certainly  actionable  gravely  to  impute  to  a  bookseller  having  pub- 
lished a  poem  of  this  sort,  to  which  he  was  a  stranger ;  as  the  evident 
tendency    of  the  unfounded  imputation  was  to  hurt  him  in  his  business." 

See  also  the  charge  in  Post  Tub.  Co.  v.  Peck  (1912)  199  Fed.  G,  13,  120  C 
■C.  A.  1. 


730  TORTS   THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

of  the  press  if  an  action  can  be  maintained  on  such  principles?  Per- 
haps the  plaintiff's  "Tour  through  Scotland"  is  now  unsaleable;  but 
is  he  to  be  indemnified  by  receiving  a  compensation  in  damages  from 
the  person  who  may  have  opened  the  eyes  of  the  public  to  the  bad 
taste  and  inanity  of  his  compositions?  Who  would  have  bought  the 
works  of  Sir  Robert  Filmer  after  he  had  been  refuted  by  Mr.  Locke? 
But  shall  it  be  said  that  he  might  have  sustained  an  action  for  defa- 
mation against  that  great  philosopher,  who  was  labouring  to  enlighten 
and  ameliorate  mankind?  We  really  must  not  cramp  observations 
upon  authors  and  their  works.  They  should  be  liable  to  criticism, 
to  exposure,  and  even  to  ridicule,  if  their  compositions  be  ridicu- 
lous; otherwise  the  first  who  writes  a  book  on  any  subject  will  main- 
tain a  monopoly  of  sentiment  and  opinion  respecting  it.  This  would 
tend  to  the  perpetuity  of  error.  Reflection  on  personal  character  is 
another  thing.  Shew  me  an  attack  on  the  moral  character  of  this 
plaintiff,  or  any  attack  upon  his  character  unconnected  with  his  au- 
thorship, and  I  shall  be  as  ready  as  any  judge  who  ever  sate  here  to 
protect  him;  but  I  cannot  hear  of  malice  on  account  of  turning  his 
works  into  ridicule. 

The  counsel  for  the  plaintiff*  still  complaining  of  the  unfairness  of 
this  publication,  and  particularly  of  the  print  affixed  to  it,  the  trial 
proceeded. 

Lord  Ellenborough  said:  Every  man  who  publishes  a  book  com- 
mits himself  to  the  judgment  of  the  public,  and  any  one  may  com- 
ment upon  his  performance.  If  the  commentator  does  not  step  aside 
from  the  work,  or  introduce  fiction  for  the  purpose  of  condemnation, 
he  exercises  a  fair  and  legitimate  right.  In  the  present  case,  had  the 
party  writing  the  criticism  followed  the  plaintiff  into  domestic  life 
for  the  purposes  of  slander,  that  would  have  been  libellous ;  but  no 
passage  of  this  sort  has  been  produced,  and  even  the  caricature  does 
not  aft'ect  the  plaintiff,  except  as  the  author  of  the  book  which  is 
ridiculed.  The  works  of  this  gentleman  may  be,  for  aught  I  know, 
\ery  valuable;  but  whatever  their  merits,  others  have  a  right  to  pass 
their  judgment  upon  them — to  censure  them  if  they  be  censurable, 
and  to  turn  them  into  ridicule  if  they  be  ridiculous.  The  critic  does 
a  great  sendee  to  the  public,  who  writes  down  any  vapid  or  useless 
publication,  such  as  ought  never  to  have  appeared.  He  checks  the 
dissemination  of  bad  taste,  and  prevents  people  from  wasting  both 
their  time  and  money  upon  trash.  I  speak  of  fair  and  candid  criti- 
cism; and  this  every  one  has  a  right  to  publish,  although  the  author 
may  suft'er  a  loss  from  it.  Such  a  loss  the  law  does  not  consider 
as  an  injury;  because  it  is  a  loss  which  the  party  ought  to  sustain.  It 
is  in  short  the  loss  of  fame  and  profits  to  which  he  was  never  entitled. 
Nothing  can  be  conceived  more  threatening  to  the  liberty  of  the 
press  than  the  species  of  action  before  the  Court.  We  ought  to  resist 
an  attempt  against  free  and  liberal  criticism  at  the  threshold. 


Ch.  2)  ABSOLUTE    TORTS  OTHER  THAN  TRESPASSES  731 

The  Chief  Justice  concluded  by  directing  the  jury,  that  if  the 
writer  of  the  publication  complained  of  had  not  travelled  out  of  the 
work  he  criticised  for  the  purpose  of  slander,  the  action  would  not 
lie;  but  if  they  could  discover  in  it  any  thing  personally  slanderous 
against  the  plaintiff,  unconnected  with  the  works  he  had  given  to 
the  public,  in  that  case  he  had  a  good  cause  of  action,  and  they  would 
award  him  damages  accordingly. 

Verdict  for  the  defendants. 


POST  PUB.  CO.  v.  HALLAM. 

{Circuit  Court  of  Appeals  of  the  United  States,  Sixth  Circuit,  1893.     59  Fed. 

530,  8  C.  C.  A.  201.) 

Action  by  Hallam  against  the  Post  Publishing  Company  for  libel. 
Verdict  for  plaintiff.  Motion  for  a  new  trial  denied,  and  judgment  for 
plaintiff  on  the  verdict.  The  defendant  brings  error.  The  petition 
set  forth  the  publication  by  the  defendant  of  and  concerning  the  plain- 
tiff, in  the  Cincinnati  Post,  of  the  following  article : 

The  Berry-Hallam  congressional  fight  in  the  Sixth  Kentucky  district  is  still 
on, — that  is  to  say,  Banquo"s  ghost  bobs  up  now  and  then,  to  the  aunoyaui-e 
of  the  congressional  nominee.  Berry,  and  the  mortification  of  the  defeated 
candidate,  Theo.  F.  Hallam.  The  Boone  County  Recorder  delivers  a  broad- 
side at  the  Kenton  county  delegates,  and  naively  asks:  "Why  don't  they 
come  out  and  tell  the  truth  about  vrhat  induced  them  to  go  to  Berry?  The 
world  knows."  Yes,  the  world  knows,  and  you  may  say  ilars  and  the  planets 
know  it  also.  Proprietor  Roth,  of  the  St.  Nicholas  Hotel,  has  an  inside  cinch 
on  this  inside  information.  Evei^j-one  knows  Colonel  Berry.  *  *  *  Hal- 
lam is  a  successful  lawyer  at  Covington;  but  legal  eminence  does  not  mean 
the  fat  incomes  that  are  its  synonyms  on  this  side  of  the  Ohio.  Hallam 
is  one  of  the  bhoys,  loves  ward  politics  for  the  fun,  if  not  the  emoluments, 
and  is  about  as  poor  as  a  church  mouse.  In  fact,  he  owes  several  hundred 
dollars  for  taxes.  The  two  counties,  Kenton  and  Campbell,  threw  out  their 
hooks  for  the  congressional  nomination.  Kenton  swore  by  Hallam,  while 
Campbell  vowed  that  *  *  *  Albert  S.  Berry,  should  be  the  nominee.  The  fight 
waxed  hot.  The  convention  was  held  at  Warsaw,  commencing  on  September 
27th,  and  ending  September  30th.  The  Kenton  boys  prepared  for  the  fray.  The 
principal  preparation  consisted  in  engaging  the  steamer  Henrietta  to  carry  the 
delegates  to  Warsaw,  and  the  carte  blanche  orders  of  Mr.  Roth,  of  the  St. 
Nicholas  hostelry,  to  fill  her  up  from  truck  to  keelson  with  the  best  the  cel- 
lar and  the  larder  of  the  house  afforded.  *  *  *  Hallam  and  his  crowd  did 
all  the  feasting  and  the  drinking.  The  Campbell  county  men  were  not  in  it. 
But  the  bill  was  made  out  to  Colonel  A.  S.  Berry.  Here  is  the  bill:  "St. 
Nicholas.  Edward  N.  Roth.  Cincinnati,  October  10,  1S92.  Colonel  A.  S.  Ber- 
ry, per  Theodore  F.  Hallam,  to  the  St.  Nicholas  Hotel  Company,  Dr.:  For 
meals,  service,  wine,  and  cigars  served  on  board  the  steamer  Henrietta,  $865.- 
15."  Then  again:  At  Warsaw  the  battle  raged  four  days.  On  the  last  day 
Colonel  Berry  and  Lawyer  Hallam  were  seen  to  go  arm  in  arm  to  the  rear  of 
the  courthouse,  where  the  convention  was  held.  They  had  a  quiet  and  con- 
fidential chat.  At  its  conclusion  Hallam  called  his  warriors  about  him,  and 
spoke  to  them  in  whispers.  Immediately  thereafter  the  whole  Kenton  coun- 
ty delegation  cast  its  vote  for  Colonel  Berry,  and  he  received  the  nomination. 
Is  Colonel  Berry  carrying  out  all  and  every  one  of  the  promises  he  made? 
Ah,  there's  the  rub.  Mr.  Roth,  of  the  St.  Nicholas,  has  sent  a  bill  of  $805.15  to 
Colonel  A.  S.  Berry.  That  bill  is  for  "dry"  and  "wet"  provisions  ordered  by 
Hallam,  and  disposed  of  by  Hallam's  supporters.  Such  generosity  on  the 
part  of  the  victor  to  the  vanquished  is  truly  touching. 


732  TORTS  THROUGH  ACTS  OF   ABSOLUTE   LIABILITY  (Part  t 

The  defendant's  answer  admitted  the  publication  of  the  article,  but 
denied  the  other  allegations  in  the  petition.  The  evidence  for  the 
plaintiff  tended  to  show  that  the  charge  or  insinuation  that  he  had 
received  any  consideration  for  influencing  his  supporters  to  transfer 
their  votes  to  Berry  was  unfounded.^" 

Taft,  Circuit  Judge.  *  *  *  Finally,  we  come  to  those  assign- 
ments of  error  which  are  based  on  the  charge  of  the  court  in  regard  to 
privileged  communications.  The  court  in  effect  told  the  jury  that  the 
article  in  question,  relating,  as  it  did,  to  a  matter  of  public  interest, 
came  within  a  class  of  communications  that  were  conditionally  priv- 
ileged; that  the  public  acts  of  public  men  (and  candidates  for  office 
were  public  men)  could  be  lawfully  made  the  subject  of  comment  and 
criticism,^ ^  not  only  by  the  press,  but  also  by  all  members  of  the 
public,  for  the  press  had  no  higher  rights  than  the  individual ;  but  that 
while  criticism  and  comment,  however  severe,  if  in  good  faith,  were 
privileged,  false  allegations  of  fact,  as,  for  instance,  that  the  candidate 
had  committed  disgraceful  acts,  were  not  privileged,  and  that,  if  the 
charges  were  false,  good  faith  and  probable  cause  were  no  defense, 
though  they  might  mitigate  damages.  Counsel  for  the  plaintiff  in 
error  and  the  defendant  below  has  argued  with  great  vigor  and  an 
array  of  authorities  that  we  ought  not  to  adopt  the  view  of  the  circuit 
court  upon  this  important  question,  but  should  hold  that  the  privilege 
extends  to  statements  of  fact  as  well  as  comment. 

The  argument  is  this :  Privileged  communications  comprehend  all 
bona  fide  statements  in  performance  of  any  duty,  whether  legal,  moral, 
or  social,  even  though  of  imperfect  obligation,  when  made  with  a  fair 
and  reasonable  purpose  of  protecting  the  interest  of  the  person  making 
them,  or  the  interest  of  the  person  to  whom  they  are  made.  Townsh. 
Sland.  &  L.  §  209.  It  is  of  the  deepest  interest  to  the  public  that  they 
should  know  facts  showing  that  a  candidate  for  office  is  unfit  to  be 
chosen.  Therefore,  every  one  who  has  reasonable  ground  for  believ- 
ing, and  does  believe,  that  such  a  candidate  has  committed  disgraceful 
acts  affecting  his  fitness  for  the  office  he  seeks,  should  have  the  right 
to  give  the  public  the  benefit  of  his  information,  without  making  him- 
self liable  in  damages  for  untrue  statements,  unless  malice  is  shown. 
Though  of  imperfect  obligation,  it  is  said  to  be  the  highest  duty  of 
the  daily  newspaper  to  keep  the  public  informed  of  facts  concerning 
those  who  are  seeking  their  suffrages  and  confidence.  Can  it  be  pos- 
sible, it  is  asked,  that  public  policy  will  make  privileged  an  unfounded 

BO  The  statement  of  the  case  is  abridged  and  parts  of  the  opinion  are  omit- 
ted. i''or  the  case  below,  see  Hallam  v.  Post  Publishing  Co.  (C.  C,  1S93)  05 
Fed.  450. 

61  Compare  Walsh  v.  Pulitzer  Pub.  Co.  (1913)  250  jNIo.  142,  157  S.  W.  327, 
Ann.  Cas.  1914C,  9S5:  (A  newspaper  published  by  D.  stated  of  P.,  who  was  a 
lawyer  extensively  engased  for  the  defense  in  criminal  prosecutions  and  at 
the  time  was  a  candidate  for  the  ofHce  of  district  attorney,  that  "the  more 
candidacy  of  such  a  person  should  fill  the  city  with  alarm.  He  has  no  quali- 
fications for  the  ofHce.") 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  733 

charge  of  dishonesty  or  criminality  against  one  seeking  private  serv- 
ice, when  made  to  the  private  individual  with  whom  service  is  sought, 
and  yet  will  not  extend  the  same  protection  to  him  who  in  good  faith 
informs  the  public  of  charges  against  applicants  for  service  with  them? 
Is  it  not,  at  least,  as  important  that  the  high  functions  of  public  office 
should  be  well  discharged,  as  that  those  in  private  service  should  be 
faithful  and  honest? 

The  a  fortiori  step  in  this  reasoning  is  only  apparent.  It  is  not 
real.  The  existence  and  extent  of  privilege  in  communications  are 
determined  by  balancing  the  needs  and  good  of  society  against  the 
right  of  an  individual  to  enjoy  a  good  reputation  when  he  has  done 
nothing  which  ought  to  injure  it.  The  privilege  should  always  cease 
where  the  sacrifice  of  the  individual  right  becomes  so  great  that  the 
public  good  to  be  derived  from  it  is  outweighed.  Where  conditional 
privilege  is  extended  to  cover  a  statement  of  disgraceful  fact  to  a 
master  concerning  a  servant  or  one  applying  for  service,  the  privilege 
covers  a  bona  fide  statement,  on  reasonable  ground,  to  the  master  only, 
and  the  injury  done  to  the  servant's  reputation  is  with  the  master  only. 
This  is  the  extent  of  the  sacrifice  which  the  rule  compels  the  servant  to 
suffer  in  what  was  thought  to  be,  when  the  rule  became  law,  a  most 
important  interest  of  society.  But,  if  the  privilege  is  to  extend  to 
cases  like  that  at  bar,  then  a  man  who  offers  himself  as  a  candidate 
must  submit  uncomplainingly  to  the  loss  of  his  reputation,  not  with 
a  single  person  or  a  small  class  of  persons,  but  with  every  member  of 
the  public,  whenever  an  untrue  charge  of  disgraceful  conduct  is  made 
against  him,  if  only  his  accuser  honestly  believes  the  charge  upon  rea- 
sonable ground.  We  think  that  not  only  is  such  a  sacrifice  not  re- 
quired of  every  one  who  consents  to  become  a  candidate  for  office, 
but  that  to  sanction  such  a  doctrine  would  do  the  public  more  harm 
than  good. 

We  are  aware  that  public  officers  and  candidates  for  public  office 
are  often  corrupt,  when  it  is  impossible  to  make  legal  proof  thereof, 
and  of  course  it  would  be  well  if  the  public  could  be  given  to  know, 
in  such  a  case,  what  lies  hidden  by  concealment  and  perjury  from 
judicial  investigation.  But  the  danger  that  honorable  and  worthy 
men  may  be  driven  from  politics  and  public  service  by  allowing  too 
great  latitude  in  attacks  upon  their  characters  outweighs  any  benefit 
that  might  occasionally  accrue  to  the  public  from  charges  of  corrup- 
tion that  are  true  in  fact,  but  are  incapable  of  legal  proof.  The  free- 
dom of  the  press  is  not  in  danger  from  the  enforcement  of  the  rule  we 
uphold.  No  one  reading  the  newspaper  of  the  present  day  can  be 
impressed  with  the  idea  that  statements  of  fact  concerning  public 
men,  and  charges  against  them,  are  unduly  guarded  or  restricted ; 
and  yet  the  rule  complained  of  is  the  law  in  many  of  the  states  of 
the  Union  and  in  England. 

In  Davis  v.  Shepstone,  11  App.  Cas.  187,  Lord  Chancellor  Herschell 
delivered  the  judgment  of  the  Judicial  Committee  of  the  Privy  Coun- 


734  TORTS  THROUGH  ACTS   OF    ABSOLUTE  LIABILITY  (Part  1 

cil  in  an  appeal  from  a  judgment  for  libel  recovered  in  the  supreme 
court  of  Natal.  The  plaintiff  below  was  a  resident  commissioner  of 
Great  Britain  in  Zululand,  and  the  alleged  libel  charged  him  with  hav- 
ing committed  unprovoked  and  altogether  indefensible  assaults  upon 
certain  Zulu  chiefs.  The  publication  was  made  in  the  colony  of  Natal 
where  the  conduct  of  the  resident  commissioner  in  Zululand  was  of 
great  public  interest.  It  was  claimed  that  the  article  was  conditionally 
privileged,  and  that  the  plaintiff  ought  to  have  succeeded  only  on 
proof  of  express  malice.  This  claim  was  denied.  The  Lord  Chancel- 
lor thus  stated  the  law : 

"There  is  no  doubt  that  the  public  acts  of  a  public  man  may  lawfully 
be  made  the  subject  of  fair  comment  or  criticism,  not  only  by  the  press, 
but  by  all  members  of  the  public.  But  the  distinction  cannot  be  too 
clearly  borne  in  mind  between  comment  or  criticism  and  allegations  of 
fact,  such  as  that  disgraceful  acts  have  been  committed  or  discreditable 
language  used.  It  is  one  thing  to  comment  upon  or  criticise,  even  with 
severity,  the  acknowledged  or  approved  acts  of  a  public  man,  and 
quite  another  to  assert  that  he  has  been  guilty  of  particular  acts  of 
misconduct.  In  the  present  case  the  appellants,  in  the  passages  which 
were  complained  of  as  libelous,  charged  the  respondent,  as  now  ap- 
pears, without  foundation,  with  having  been  guilty  of  specific  acts  of 
misconduct,  and  then  proceeded,  on  the  assumption  that  the  charges 
were  true,  to  comment  upon  his  proceedings  in  language  in  the  highest 
degree  offensive  and  injurious.  Not  only  so,  but  they  themselves 
vouched  for  the  statements  by  asserting  that,  though  some  doubt  had 
been  thrown  upon  the  truth  of  the  story,  the  closest  investigation 
would  prove  it  to  be  correct.  In  their  lordships'  opinion  there  is  no 
warrant  for  the  doctrine  that  defamatory  matter  thus  published  is  re- 
garded by  the  law  as  the  subject  of  any  privilege." 

Other  English  cases  laying  down  the  same  doctrine  are  Campbell  v. 
Spottiswoode,  3  Fost.  &  F.  421,  432,  affirmed  3  Best  &  S.  769,  and 
Popham  v.  Pickburn,  7  Hurl.  &  N.  891,  898.  The  latest  American 
case,  and  the  most  satisfactory,  is  that  of  Burt  v.  Newspaper  Co., 
[1891]  154  Mass.  238,  242,  28  N.  E.  1,  13  L.  R.  A.  97,  where  Justice 
Holmes  discusses  the  question,  and  quotes  with  approval  the  foregoing 
passage  from  the  judgment  in  Davis  v.  Shepstone.^^     *     *     * 

Judgment  of  the  Circuit  Court  affirmed. ^^ 

5  2  Judge  Taft  here  cited  the  following  American  cases  as  approving  the 
same  rule:  Smith  v.  Burrus  (1891)  106  Mo.  94,  101,  16  S.  W.  SSI,  13  L.  R. 
A.  59,  27  Am.  St.  Rep.  .329;  Wheaton  v.  Beeclier  (18S7)  66  Mich.  307,  33  N. 
W.  503;  Bronson  v.  Bruce  (1886)  59  Mich.  467,  26  N.  W.  671,  60  Am.  Rep.  307; 
Brewer  v.  Weakley  (1807)  2  Overt.  (Teun.)  99,  5  Am.  Dec.  656;  Sweeney  v. 
Baker  (187S)  13  W.  Ya.  158.  31  Am.  Rep.  757 :  Hamilton  v.  Eno  (ISSO)  81  N, 
Y.  120;  Rearick  v.  Wilcox  (1876)  81  111.  77;  Negley  v.  FaiTow  (1883)  60  Md. 
158,  170,  45  Am.  Rep.  715;  Jones  v.  Townsend  (1885)  21  Fla.  431.  451,  58 
Am.  Rep.  676;  Banner  I'ub.  Co.  v.  State  (188.5)  16  Lea  (Tenn.)  176,  57  Am. 
Rep.  216;    Tublishing  Co.  v.  Moloney  (1S93)  50  Ohio,  71,  33  N.  E.  921;    Seely 

03  See  note  53  on  following  page. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN   TRESPASSES  735 


TRIGGS  V.  SUN  PRINTING  &  PUBLISHING  ASS'N. 

(Court  of  Appeals  of  New  York,  1904.     179  N.  Y.  144,  71  X.  E.  739,  66  L.  R. 
A.  612,  103  Am.  St.  Rep.  841,  1  Ann.  Cas.  326.) 

Martin,  J.  *  *  *  ^*  It  is  contended  by  the  respondent  that  the 
articles  pubHshed  were  a  mere  comment  or  criticism  of  matters  of 
pubHc  interest  and  concern,  and  hence  were  privileged.  While  every 
one  has  a  right  to  comment  on  matters  of  public  interest,  so  long  as 

V.  Blair,  Wright  (Ohio,  1833)  358,  683;  Wilson  v.  Fitch  (1871)  41  Cal.  383; 
Edwards  v.  Piiblishiug  Co.  (1893)  99  Cal.  431,  34  Pae.  128,  37  Am.  St.  Rep. 
70;  State  v.  bchuiitt  (1887)  49  N.  J.  Law,  579,  586,  9  Atl.  774;  Eviston  v. 
Cramer  (1883)  57  Wis.  570,  15  N.  W.  760. 

5  3  See  Haynes  v.  Clinton  (1897),  169  Mass.  512,  48  N.  R  275,  276  (where 
Holmes,  J.,  remarks:  "It  is  settled  that  newspapers  as  such  have  no  peculiar 
privilege,  and  it  is  equally  settled  that  the  privilege  of  comment  and  criti- 
cism on  matters  of  public  interest  which  a  possible  murder  may  be  assumed  to 
be  for  the  purposes  of  decision  does  not  extend  to  false  statements") ;  Mor- 
ris V.  Sailer  (1911)  154  Mo.  App.  .305,  134  S.  W.  98,  99;  Walsh  v.  Pulitzer 
Pub.  Co.  (1913)  250  Mo.  142,  157  S.  W.  326,  330,  Ann.  Cas.  1914C,  985;  Schwarz 
Bros.  Co.  V.  Evening  News  Pub.  Co.  (1913)  48  N.  J.  Law,  486,  87  Atl.  148,  153 
(where  Mr.  Justice  Swayze  quotes  with  approval  from  Lord  HersL-heU's  opin- 
ion, given  in  the  text,  in  Davis  v.  Shepstone  [1886]  11  App.  Cas.  187,  with  this 
preliminarv  comment:  "There  could  hardlv  be  a  case  where  freedom  of  speech 
was  more  important").  Ott  v.  Murphy  (1913)  160  Iowa.  730,  141  N.  W.  463. 
467:  ("It  is  sometimes  said  that  fair  and  honest  criticism  in  matters  of 
public  concern  are  privileged,  but  there  is  a  manifest  difference  between  fair 
and  honest  criticism  of  public  events  and  pri\-ileged  communications.  In 
the  latter  case  the  words  may  be  defamatory,  but  the  defamation  is  excused  or 
justified  by  reason  of  the  occasion,  while  in  the  former  case  the  words  are 
not  defamatory  of  the  plaintiff,  and  are  not  libelous — the  stricture  or  criti- 
cism is  not  upon  the  person  himself,  but  upon  his  work.  In  other  words, 
it  is  impersonal.  Bearce  v.  Bass  [1894]  88  Me.  521,  34  Atl.  411,  51  Am.  St. 
Rep.  446 ;  Burt  v.  Advertising  Co.  [1891]  1.54  Mass.  2.38,  28  N.  E.  1,  13  L.  R.  A. 
97.  Criticism  must  be  founded  on  truth,  and  false  statements  or  attacks  on 
private  character  are  not  pennitted."  Per  Deemer,  J.)  Parsons  v.  Age  Herald 
Pub.  Co.  (1913)  181  Ala.  439,  61  South.  345,  350:  ("The  privilege  [of  fair  com- 
ment] is  limited  to  comment  or  criticism,  and  must  be  with  reference  to 
admitted  or  proven  facts  or  conduct."     Per  Somerville,  J.) 

i'or  other  late  cases  on  the  point,  see  25  Cyc.  404-406,  and  especially  notes 
83,  84,  85,  86 :  Key  No.  "Libel  and  Slander,"  §  48 ;  18  Halsbury's  Laws  of  Eng- 
land (1911)  702-709,  and  notes. 

So  it  was  remarked  by  Cockburn,  C.  J.,  in  the  Queen  v.  Carden  (1879) 
5  y.  B.  D.  1,  8:  "Iti  is  true  that  a  comment  upon  given  facts,  which  would 
otherwise  be  libellous,  may  assume  a  privileged  character,  because,  though 
unjust  and  injurious,  yet  being  founded  on  facts  not  in  themselves  libellous, 
it  is  a  comment  which  any  one  is  entitled  to  make  upon  a  public  man.  For 
instance,  suppose  that  any  one  states  facts  not  in  themselves  libellous  of  a 
candidate  for  election  to  parliament,  and  on  them  bases  the  conclusion  that 
he  is  not  an  honest  politician.  The  comment  may  be  injurious,  but  it  may 
be  privileged  as  a  fair  comment  on  the  facts,  if  not  malicious,  because  made 
on  a  public  man.  On  the  other  hand,  to  say  that  you  may  first  libel  a  man. 
and  then  comment  upon  him.  is  obviously  absurd." 

And  in  Digby  v.  Financial  News  [1907]  1  K.  B.  502,  507,  it  was  romarlced 
by  Collins,  M.  R.,  in  the  Court  of  Appeal:    "Comment,  in  order  to  be  fair. 


54  The  statement  of  the  fncts  in  this  case,  and  so  much  of  the  opinion  as 
relates  to  the  question  of  libel,  apart  from  the  question  of  fair  comment, 
are  reported  ante,  page  589. 


736  TORTS  THROUGH  ACTS   OP   ABSOLUTE   LIABILITY  (Part  1 

one  does  so  fairly,  with  an  honest  purpose,  and  not  intemperately  and 
maHciously,  although  the  publication  is  made  to  the  general  public  by 
means  of  a  newspaper,  yet  what  is  privileged  is  criticism,  not  other  de- 
famatory statements ;  and,  if  a  person  takes  upon  himself  to  allege 
matters  otherwise  actionable,  he  will  not  be  privileged,  however  honest 
his  motives,  if  those  allegations  are  not  true.  When  a  publisher  goes 
beyond  the  limits  of  fair  criticism,  his  language  passes  into  the  region 
of  libel,  and  the  question  whether  those  limits  have  been  transcended 
may  become  a  question  of  law,  but  ordinarily  presents  a  question  for 
the  jury.  Fay  v.  Harrington,  176  Mass.  270,  57  N.  E.  369.  It  is  true 
that  an  author,  when  he  places  his  work  before  the  public,  invites 
criticism ;  and,  however  hostile  it  may  be,  the  critic  is  not  liable  for 
libel,  provided  he  makes  no  misstatements  of  material  facts  contained 
in  the  writing,  and  does  not  go  out  of  his  way  to  attack  the  author. 
The  critic  must,  however,  confine  himself  to  criticism,  and  not  make 
it  the  veil  for  personal  censure,  nor  allow  himself  to  run  into  reckless 
and  unfair  attacks  merely  for  the  purpose  of  exercising  his  power  of 
denunciation.  If,  under  the  pretext  of  criticising  a  literary  production 
or  the  acts  of  one  occupying  a  public  position,  the  critic  takes  an  oppor- 
tunity to  attack  the  author  or  occupant,  he  will  be  liable  in  an  action 
for  libel.  Cooper  v.  Stone,  24  Wend.  434 ;  lattice  v.  Wilcox,  71  Hun, 
485,  488,  24  N.  Y.  Supp.  1060,  affirmed  147  N.  Y.  624,  42  N.  E.  270; 
Hamilton  v.  Eno,  81  N.  Y.  116.  Moreover,  it  is  difficult  to  perceive 
how  this  privilege  can  be  tried  on  demurrer,  as  the  question  whether 
the  criticism  was  fair  and  just,  or  willfully  assailed  the  reputation  of 
the  plaintiff,  would  be  for  the  jury.  In  this  case  it  is  obvious  that  the 
articles  complained  of  go  far  beyond  the  field  of  fair  and  honest 
criticism,  and  are  attempts  to  portray  the  plaintiff  in  a  ridiculous  light. 

must  be  based  upon  facts,  and  if  a  defendant  cannot  shew  that  his  com- 
ments contain  no  misstatements  of  fact,  he  cannot  prove  a  defense  of  fair 
comment.  The  usual  way  to  begin  sucli  a  plea  is  by  asserting  that  the 
facts  on  which  the  comment  is  based  are  true,  that  is,  that  the  defendant 
has  made  no  misstatements  in  formulating  the  materials  upon  which  he  has 
commented.  If  the  defendant  makes  a  misstatement  of  any  of  the  facts  up- 
on which  he  comments,  it  at  once  negatives  the  possibility  of  his  comment 
being  fair.  It  is  therefore  a  necessary  part  of  a  plea  of  fair  connuent  to 
shew  that  there  has  been  no  misstatement  of  facts  in  the  statement  of  the 
materials  upon  which  the  comment  was  based." 

But  see  Cleveland  Leader  Printing  Co.  v.  Nethersole  (1911)  84  Ohio,  118, 
95  N.  E.  7o5,  Ann.  Gas.  1912B,  978.  The  plaintiff,  an  actress  and  producer  of 
plays  upon  the  stage,  sued  for  an  alleged  libel  in  an  article  published  in  the 
defendant's  newspaper.  This  article,  referring  to  a  play  called  "The  Laby- 
rinth," in  which  the  plaintiff  had  just  appeared  in  Cleveland,  contained 
this  statement:  "Cleveland  received  it  frigidly,  as  is  the  American  way  wlien 
displeased  or  disgusted,  but  when  it  was  produced  in  London  it  was  hissed 
so  soundly  that  Miss  iS'ethersole  had  hysterics."  The  two  statements  as  to 
the  London  production  were  false.  A  judgment  for  the  plaintitf,  who  as- 
serted no  special  damage,  was  reversed  by  the  Supreme  Court,  apparently 
on  two  groimds,  that  tlie  defendant  was  within  the  protection  of  fair  com- 
ment, and  that  the  false  statements  were  not  a  "libel  uiwn  the  person,"  but 
only  a  "Ubel  upon  the  play."  See  an  interesting  note  on  this  case  in  10  Mich. 
Law  Key.  44  (1911). 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  737 

As  was  in  effect  said  by  the  learned  judge  in  the  dissenting  opinion 
below :  The  articles  complained  of  represent  the  plaintiff  as  illiterate, 
uncultivated,  coarse,  and  vulgar,  and  his  ideas  as  sensational,  absurd, 
and  foolish.  They  also  represent  him  as  egotistical  and  conceited  in 
the  extreme,  and  convey  the  impression  that  he  makes  himself  ridicu- 
lous both  in  his  method  of  instruction  and  by  his  public  lectures.  They 
also  ridicule  his  private  life,  by  charging  that  he  was  unable  to  select 
a  name  for  his  baby  until  after  a  year  of  solemn  deliberation.  In  short, 
they  effect  to  represent  him  as  a  presumptuous  literary  freak.  These 
representations  concerning  his  personal  characteristics  were  not  within 
the  bounds  of  fair  and  honest  criticism,  and  are  clearly  libelous  per  se. 

It  is  likewise  claimed  by  the  respondent  that  these  articles  were  writ- 
ten in  jest,  and  hence  that  it  is  not  liable  to  the  plaintiff  for  the  in- 
jury he  has  sustained.  It  is,  perhaps,  possible  that  the  defendant  pub- 
lished the  articles  in  question  as  a  jest,  yet  they  do  not  disclose  that, 
but  are  a  scathing  denunciation,  ridiculing  the  plaintiff.  If,  however, 
they  can  be  regarded  as  having  been  published  as  a  jest,  then  it  should 
be  said  that,  however  desirable  it  may  be  that  the  readers  of,  and  the 
writers  for,  the  public  prints  shall  be  amused,  it  is  manifest  that  nei- 
ther such  readers  nor  writers  should  be  furnished  such  amusement  at 
the  expense  of  the  reputation  or  business  of  another.  In  the  language 
of  Joy,  C.  B. :  "The  principle  is  clear  that  a  person  shall  not  be  allowed 
to  murder  another's  reputation  in  jest;"  or,  in  the  words  of  Smith,  B., 
in  the  same  case:  "If  a  man  in  jest  conveys  a  serious  imputation,  he 
jests  at  his  peril."  Donoghue  v.  Hayes  [1831],  Hayes,  Irish  Ex- 
chequer, 265,  266.  We  are  of  the  opinion  that  one  assaulting  the  repu- 
tation or  business  of  another  in  a  public  newspaper  cannot  justify  it 
upon  the  ground  that  it  was  a  mere  jest,  unless  it  is  perfectly  manifest 
from  the  language  employed  that  it  could  in  no  respect  be  regarded 
as  an  attack  upon  the  reputation  or  business  of  the  person  to  whom 
it  related. 

The  single  purpose  of  the  rule  permitting  fair  and  honest  criticism 
is  that  it  promotes  the  public  good,  enables  the  people  to  discern 
right  from  wrong,  encourages  merit,  and  firmly  condemns  and  exposes 
the  charlatan  and  the  cheat,  and  hence  is  based  upon  public  policy. 
The  distinction  between  criticism  and  defamation  is  that  criticism  deals 
only  with  such  things  as  invite  public  attention  or  call  for  public  com- 
ment, and  does  not  follow  a  public  man  into  his  private  life,  or  pr\^  into 
his  domestic  concerns.  It  never  attacks  the  individual,  but  only  his 
work.  A  true  critic  never  indulges  in  personalities,  but  confines  him- 
self to  the  merits  of  the  subject-matter,  and  never  takes  advantage  of 
the  occasion  to  attain  any  other  object  beyond  the  fair  discussion  of 
matters  of  public  interest,  and  the  judicious  guidance  of  the  public 
taste.  The  articles  in  question  come  far  short  of  falling  within  the 
line  of  true  criticism,  but  are  clearly  defamatory  in  character,  and  are 
libelous  per  se.  *  *  * 
Hepb.Tobts — 47 


738  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 


(E)  Defeating  a  Prima  Facie  JustiUcation  or  Excuse  in  Defamation: 

Malice,  Excess 

(a)  As  A  Reply   to  the  Plea  of  Justiiucation 

PERRY  V.  PORTER. 
(Supreme  Judicial  Court  of  Massachusetts,  1878.     124  Mass.  338.) 

Tort,  with  a  count  for  libel  and  thirteen  counts  for  slander.  After 
the  former  decision,  reported  121  Mass.  522,  the  case  was  tried  in  this 
court,  before  Soule,  J.,  who,  after  a  verdict  for  the  defendant,  allowed 
a  bill  of  exceptions. 

Morton,  J.  *  *  *  In  regard  to  the  count  for  libel,  the  vital 
question  is  as  to  the  correctness  of  the  ruling  of  the  court,  that,  if 
the  jury  found  the  matter  contained  in  the  publication  charged  as 
libellous  to  be  true,  this  was  a  complete  defence  to  the  action. 

The  plaintiff  relied  upon  the  Gen.  Sts.  c.  129,  §  77,  and  contended 
that  the  truth  was  not  a  justification  and  defence,  if  it  was  proved 
that  the  article  was  published  with  express  malice.  But  the  court 
ruled  that  the  exception  in  the  statute  was  not  applicable  to  a  civil 
action,  and  that  proof  of  the  truth  was  not  of  itself  a  defence. 

At  common  law,  in  private  actions  for  libel  or  slander,  proof  of  the 
truth  is  a  justification.  But  in  public  prosecutions  the  rule  was  other- 
wise, and  it  was  accordingly  held,  in  Commonwealth  v.  Blanding,  3 
Pick.  304,  15  Am.  Dec.  214,  that  on  an  indictment  for  libel  the  truth 
of  the  matter  published  was  not  admissible  in  evidence.  Probably  in 
consequence  of  this  decision,  the  Legislature  enacted  in  1827  that  in 
every  prosecution  for  libel  the  defendant  might  give  in  evidence  in  his 
defence  the  truth  of  the  matter  charged  to  be  libellous,  but  that  such 
evidence  should  not  be  a  justification  unless  it  was  made  to  appear 
that  such  matter  was  published  with  good  motives  and  for  justifiable 
ends.    St.  1826,  c.  107,  1. 

This  was  re-enacted  in  the  Rev.  Sts.  c.  133,  §  6,  and  remained  the 
law  until  1855  when  it  was  provided  that  "in  every  prosecution,  and 
in  every  civil  action  for  writing  or  for  publishing  a  libel,  the  defendant 
may  give  in  evidence,  in  his  defence  upon  the  trial,  the  truth  of  the 
matter  contained  in  the  publication  charged  as  libellous ;  and  such  evi- 
dence shall  be  deemed  a  sufficient  justification,  unless  malicious  inten- 
tion shall  be  proved."    St.  1855,  c.  396,  §  1. 

This  provision  was  without  change  incorporated  in  the  Gen.  Sts.  c. 
129,  §  77.  It  is  true  that  all  the  prior  legislation  had  been,  not  in  the 
direction  of  limiting  the  effect  of  proof  of  the  truth  in  civil  actions,  but 
in  the  direction  of  enlarging  its  effect  in  favour  of,  the  defendant  in  a 
criminal  prosecution.  The  St.  of  1826  for  the  first  time  permitted  the 
truth  to  be  given  in  evidence  as  a  justification  in  criminal  prosecutions. 
Under  its  provisions  the  burden  of  proof  was  upon  the  defendant  to 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  739 

show  not  only  the  truth  of  the  matter  charged  to  be  Hbellous,  but  also 
that  it  was  published  with  good  motives  and  for  justifiable  ends.  Com- 
monwealth V.  Bonner,  9  Mete.  410. 

The  St.  of  1855  goes  further  in  favor  of  the  defendants  in  criminal 
prosecutions  and  throws  the  burden  on  the  government,  if  the  defend- 
ant establishes  the  truth,  of  proving  that  the  publication  was  made  with 
malicious  intention.  In  this  respect,  it  accords  with  the  general  tenden- 
cy of  modern  legislation  to  make  the  proof  of  the  truth  more  eflfective 
in  the  defence  of  a  prosecution  for  libel. 

These  considerations,  and  the  further  argument  that,  if  the  Legisla- 
ture had  intended  to  make  so  important  a  change  in  the  law  of  libel 
in  civil  suits,  it  would  have  done  so  in  direct  affirmative  language, 
afford  some  ground  for  the  inference  that  it  was  not  intended  that  the 
exception  in  the  concluding  words  of  the  St.  of  1855  should  apply  to 
civil  actions. 

But,  on  the  other  hand,  we  must  construe  the  words  of  the  statute 
"according  to  the  common  and  approved  usage  of  the  language"  unless 
such  construction  would  be  inconsistent  with  the  manifest  intent  of 
the  Legislature.     Gen.  Sts.  c.  3,  §  7,  cl.  1. 

This  statute  in  its  terms  is  made  applicable  "in  every  prosecution 
and  in  every  civil  action  for  writing  or  for  publishing  a  libel."  The 
provisions  that  the  truth  may  be  given  in  evidence,  and  if  proved  shall 
be  sufficient  justification,  undoubtedly  were  intended  to  apply  to  civil 
and  criminal  proceedings.  According  to  the  common  and  approved 
usage  of  the  language,  the  exception  or  qualification  contained  in  the 
words,  "unless  malicious  intention  shall  be  proved,"  also  applies  to 
civil  actions  as  well  as  to  criminal  prosecutions;  and  we  are  not  able 
to  see  either  in  the  context  or  in  the  history  of  previous  legislation 
upon  the  subject,  sufficient  evidence  of  a  manifest  intent  of  the  Legis- 
lature that  it  should  be  limited  to  criminal  prosecutions. 

We  are  of  opinion,  therefore,  that  the  court  erroneously  ruled  at  the 
trial  that  the  exception  in  the  statute  did  not  apply  to  a  civil  action, 
and  that  the  proof  of  the  truth  was  of  itself  a  defence.  But,  as  this 
error  affected  only  the  count  for  libel,  and  as  the  plaintiff  has  fully 
tried  his  counts  for  slander,  we  are  of  opinion  that  a  new  trial  should 
be  granted  only  upon  the  count  for  libel. 

Exceptions  sustained.^^ 

5  5  Part  of  the  opinion  is  omitted. 

Compare:  Conner  v.  Standard  Pub.  Co.  (190.'))  183  Mass.  474,  67  N.  E. 
596:  (Ct'rtain  testimony  in  an  action  for  libel  had  been  admitted  "on  the 
question  of  whether  the  article  was  written  honestly  and  in  good  faith." 
Said  Loring,  J.,  delivering  the  opinion:  "At  common  law,  the  truth  of  the 
statement  complained  of  is  an  absolute  defense  to  an  action  of  libel,  and 
such  evidence  is  not  admissible  because  it  does  not  tend  to  prove  the  truth 
of  the  facts  charged.  This  is  the  ground  upon  which  Shaw,  C.  J.,  rests  his 
opinion  in  Sheckell  v.  Jackson  [1852]  10  Cush.  25.  But  an  act  was  passed  in 
1855  [St.  1855,  p.  782,  c.  396]  which  provided  that  the  truth  of  the  mattor 
should  not  be  a  defense  if  a  malicious  intention  was  proved.  It  was  held  in 
Perry  v.  Porter  [1878]  124  Mass.  338,  that  the  burden  of  proving  malice  was 


740  TORTS  THROUGH   ACTS  OP  ABSOLUTE   LIABILITY  (Part  1 

;    HUTCHINs'v.  PAGE. 

(Supreme  Court  of  New  Hampshire,  1909.    75  N.  H.  215,  72  Atl.  6S9,  31  L.  R. 

A.  [N.  S.]  132.) 

Case,  by  Hutchins  against  Page,  for  an  alleged  libel.  In  opening  his 
case  the  plaintiff's  counsel  stated  that  he  expected  to  prove  that  the 
defendant,  being  tax-collector  for  the  city  of  Portsmouth  and  having 
an  overdue  tax  against  the  plaintiff,  advertised  the  property  for  sale 
by  posting  the  notices  required  by  the  statute  and  also  by  publishing 
like  notices  in  two  newspapers.  These  publications  were  alleged  to 
have  been  made  maliciously  and  for  no  purpose  except  to  injure  the 
plaintiff".  Upon  this  statement  a  nonsuit  was  ordered,  subject  to  excep- 
tion. 

Peasle;^,  J.  However  the  law  may  be  elsewhere,^®  it  is  well  settled 
in  this  state  that  the  truth  is  not  always  a  defense  to  an  action  on  the 
case  to  recover  damages  for  the  publication  of  a  libel.  State  v.  Burn- 
ham,  9  N.  H.  34,  31  Am.  Dec.  217.  The  rule  there  suggested,  that  if 
the  occasion  be  lawful  the  motive  for  the  publication  is  immaterial,  if 
the  truth  of  the  charge  be  established,  was  m.aterially  modified  when  a 
case  arose  in  which  the  question  was  directly  in  issue.  "It  seems  to  us 
that  in  order  to  settle  whether  the  occasion  was  lawful  we  must  gen- 
erally inquire  into  the  motives  of  the  publisher.  There  may  be  some 
cases  where  the  occasion  renders,  not  only  the  motive,  but  the  truth, 
of  the  communication  immaterial.  Thus  it  may  be  the  better  rule  that 
no  relevant  statement  made  by  a  witness  or  by  counsel  in  the  course  of 
a  trial  is  actionable,  even  though  false  and  malicious.  See  Revis  v. 
Smith,  18  Com.  Bench,  126.  But  in  the  great  majority  of  instances, 
and  certainly  in  the  present  case,  the  lawfulness  of  the  occasion  de- 
pends upon  the  good  faith  and  real  purpose  of  the  publisher.  Most  of 
what  are  called  'privileged  communications'  are  'conditionally,'  not 
'absolutely'  privileged.  'The  question  is  one  of  good  faith,'  or  mo- 
tive, and  can  be  settled  only  by  a  jury.  A  court  cannot  rule  that 
a  communication  is  privileged  without  assuming  the  conditions  on 
which  it  is  held  to  be  privileged,  namely,  that  it  was  made  in  good 

on  the  plaintiff ;  and  in  Brown  v.  Mass.  Title  Ins.  Co.  [1890]  151,  Mass.  127,  23  TST. 
E.  733,  and  Fay  v,  Harrington  [1900]  176  Mass.  270,  57  N.  E.  3G9,  that  by  "ma- 
licious intention"  was  meant  malice,  in  the  popular  sense  of  hatred  or  ill 
will.  In  pursuance  of  the  latter  case,  the  words  "actual  malice"  have  been 
substituted  in  the  act  for  the  original  words,  "malicious  intention."  Rev. 
Liaws,  c.  173,  §  91.  *  *  *  We  are  of  opinion  that  this  evidence  was  ad- 
missible in  the  issue  of  "actual  malice.") 

See,  also,  Pierce  v,  Rodliff  (1901)  95  Me.  346,  50  Atl.  32,  and  25  Cyc.  414. 

66  Compare:  Foss  v.  Hildreth  (1S05),  10  Allen  (Mass.)  76.  The  defendant 
requested  an  instruction  that  the  truth  is  not  a  defence  to  an  action  of 
slander,  if  the  words  were  spoken  maliciously  or  without  any  reason  on  the 
part  of  the  defendant  to  believe  they  were  true.  "But  in  respect  to  verbal 
slander  the  law  has  always  been  otherwise.  A  special  plea  in  justification 
sets  forth  the  tnith  of  the  words  merely.  3  Chit.  PL  1031."  Per  Chapman, 
J.     See,  also,  25  Cyc.  414,  note  25. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  741 

faith,  for  a  justifiable  purpose,  and  with  a  belief,  founded  on  rea- 
sonable grounds,  of  its  truth."  Palmer  v.  Concord,  48  N.  H.  211, 
217,  97  Am.  Dec.  605;  Carpenter  v.  Bailey,  53  N.  H.  590,  594; 
Id.,  56  N.  H.  283,  290. 

Under  this  rule  the  plaintiff  states  a  case.  While  it  was  the  defend- 
ant's duty  to  publish  the  fact  that  the  plaintiff  had  failed  to  pay  the 
taxes  assessed  against  him,  "by  posting  advertisements  thereof  in  two 
or  more  public  places  in  the  town"  (Pub.  St.  1901,  c.  60,  §  14),  it  was 
not  his  duty  to  otherwise  publish  the  fact  unless  he  thought  such  pub- 
lication was  essential  to  the  success  of  the  tax  sale.  If  he  did  not  so 
believe,  but,  on  the  contrary,  used  this  occasion  to  maliciously  pro- 
claim in  a  public  manner  that  the  plaintiff  had  not  paid  his  taxes, 
there  is  neither  legal  nor  ethical  reason  why  an  action  should  not  lie 
for  the  damage  caused  by  the  malicious  and  unwarranted  act.^^ 

The  claim  that  the  defendant  is  exonerated  by  the  provision  that 
he  shall  not  be  liable  "for  any  cause  whatever  except  his  own  official 
misconduct"  (Pub.  St.  1901,  c.  60,  §  16)  cannot  be  sustained.  The 
misconduct  here  charged  is  "his  own."  He  can  no  more  use  the  statutory 
power  to  advertise  as  a  cloak  for  a  malicious  assault  upon  the  plain- 
tiff's character  than  he  could  make  the  power  to  arrest  a  commission 
for  the  infliction  of  bodily  chastisement. 

Exception  sustained.     All  concurred. 


(h)  As  A  Reply  to  the  Plea  of  Privilege 

SCOTT  V.  STANSFIELD. 

(Court  of  Exchequer,  1868.     L.  R.  3  Bxch.  220.) 
[See  ante,  p.  660,  for  a  report  of  the  case.] 


WILLIAMSON  V.  FREER. 
(Court  of  Common  Pleas,  1874.    L.  R.  9  C.  P.  393.) 

This  was  an  action  for  a  libel,  tried  before  Brett,  J.  The  facts 
were  as  follows :  The  plaintiff  was  employed  as  assistant  in  the  shop 
of  the  defendant,  a  shoemaker,  at  Leicester.  The  defendant  having 
accused  the  plaintiff  of  robbing  him  of  money,  sent  two  post-office 
telegrams  to  her  father,  who  resided  in  London,  to  inform  him  of  his 
suspicions.  The  first  telegram  was  to  this  effect:  "Come  at  once  to 
Leicester,  if  you  wish  to  save  your  child  from  appearing  before  a 
magistrate."    The  second  was  as  follows  :  "Your  child  will  be  given  in 

57  For  the  broader  doctrine  of  this  case,  see  infra,  Part  III,  Chapter  2. 
"Torts  through  Acts  of  Intentional  Harm." 


742  TORTS  THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

charge  of  the  poHce  unless  you  reply  and  come  to-day.    She  has  taken 
money  out  of  the  till." 

The  charge  was  persisted  in  down  to  the  trial;  but  there  was  no 
evidence  to  support  it.  It  did  not  appear  tliat,  beyond  the  officials  of 
the  post-office,  through  whose  hands  the  telegrams  passed,  they  had 
come  to  the  knowledge  of  any  other  persons  than  the  father,  mother, 
and  brother  of  the  plaintiff. 

On  the  part  of  the  defendant  it  was  contended  that  the  messages  if 
sent  in  sealed  letters  would  clearly  have  been  privileged  communica- 
tions, and  that  they  did  not  lose  this  privilege  by  being  transmitted  by 
telegraph.  The  learned  judge  told  the  jury  that,  although  the  state- 
ments, if  made  bona  fide  and  without  malice,  would  have  been  priv- 
ileged if  they  had  been  contained  in  letters  addressed  to  the  father, 
they  might  be  if  libellous,  deprived  of  that  privilege  by  being  sent 
by  telegraph.  And  he  left  it  to  the  jury  to  say  whether  the  statements- 
were  libellous,  and  whether  it  was  reasonable  to  transmit  them  by 
telegraph  rather  than  by  post. 

The  jury  found  that  the  statements  were  libellous,  and  that  it  was 
not  reasonable  to  send  them  by  telegraph,  and  they  returned  a  verdict 
for  the  plaintiff,  damages  £100. 

Brett,  J.  I  reserved  the  point  because  I  thought  it  was  a  very  im- 
portant one.  It  is  whether,  where  a  communication  is  to  be  made  to 
a  relative  of  a  person  against  whom  a  charge  is  preferred,  which  com- 
munication would  be  privileged  if  sent  by  letter  in  the  ordinary  way, 
the  privilege  is  not  lost  by  sending  it  in  the  form  of  a  telegram, — 
whether  a  communication  in  that  form  can  be  said  to  be  made  to  one 
person,  when  in  point  of  fact  it  passes  through  several  hands  before  it 
reaches  its  ultimate  destination.  Privilege  is  not  wanted  unless  the 
publication  is  libellous.  The  question  then  is  whether  the  character  of 
an  innocent  person  is  to  be  destroyed  because  the  libeller  thinks  fit  to 
send  the  libel  in  this  shape  rather  than  in  a  sealed  letter.  I  do  not 
mean  to  say  that  there  was  malice  in  fact  here.  But  I  agree  with  my 
Lord  that  sending  the  messages  by  telegraph  when  they  might  have 
been  sent  by  letter  was  evidence  of  malice.  I  desire,  however,  to  put 
this  higher.  I  think  that  a  communication  which  would  be  privileged 
if  made  by  letter  becomes  unprivileged  if  sent  through  the  telegraph 
office,  because  it  is  necessarily  communicated  to  all  the  clerks  through 
whose  hands  it  passes.  It  is  like  the  case  of  a  libel  contained  on  the 
back  of  a  post-card.  It  was  never  meant  by  the  legislature  that  these 
facilities  for  postal  and  telegraphic  comrrluni cation  should  be  used  for 
the  purpose  of  more  easily  disseminating  libels.  Where  there  is  such 
a  publication,  it  avoids  the  privilege,  because  it  is  communicated 
through  unprivileged  persons.^*     As  to  the  damages,  I  am  not  at  all 

8  8  Accord:  Brown  v.  Croouie  (1817)  2  Starkie,  297,  19  R.  R.  727:  (D.  pub- 
lished in  a  newspaper  an  advertisement  for  a  meeting  of  tlie  creditors  of  P., 
a  banl^mpt.  Tlie  advertisement  contained  defamatory  statements.  Lord 
Kllenborouj,'h,  ruling  against  a  claim  of  privilege,  remarked:    "The  defend- 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN   TRESPASSES  743 

disposed  to  think  them  excessive.  The  charge  against  the  plaintiff 
was  of  a  very  grave  character.  It  was  made  with  considerable  sever- 
ity, and  it  was  insisted  upon  even  down  to  the  trial. 


ODDY  V.  LORD  GEORGE  PAULET. 

(At  Nisi  Prius,  1865.     4  Fost.  &  F.  1009,  142  R.  R.  743.) 

Slander  upon  a  trader  in  the  way  of  his  business.  The  first  count 
laid  the  words  to  be :  "You  and  your  family  are  all  a  set  of  rogues, 
and  you  have  robbed  me  ever  since  I  have  dealt  with  you."  Plea,  not 
guilty. 

The  plaintiff  was  a  com  dealer,  and  the  defendant  had  dealt  with 
him.  The  orders  were  given  by  servants,  and  there  was  a  book  in  the 
usual  way  in  which  supplies  were  entered.  The  defendant  had  gone 
to  the  plaintiff's  shop  on  several  occasions  in  one  week,  and  had — as 
was  proved  by  the  plaintiff  and  his  son,  and  a  third  person  who  hap- 
pened to  be  in  hearing — spoken  the  words  complained  of  in  evident 
heat  and  anger.  The  son  of  the  plaintiff  was  in  the  shop  on  one  of 
the  occasions,  and  the  third  person  who  was  in  hearing  on  another  oc- 
casion was  a  traveller,  who  was  in  a  parlour  at  the  back  of  the  shop, 
and,  as  he  swore,  heard  the  words  uttered.  It  was  also  sworn  on  the 
part  of  the  plaintiff  that  the  defendant  spoke  the  words  very  loudly, 

ant  made  no  progress  in  his  defense,  unless  he  could  show  that  such  a  pub- 
lication was  the  only  effectual  mode  of  convening  the  creditors.  A  communi- 
cation sufficient  for  the  purpose  might  have  been  made  in  measured,  lan- 
guage. The  want  of  proper  caution  had  rendered  the  publication  action- 
able, as  being  published  to  the  world  at  large.") 

Muetze  v.  Tuteur  (1890)  77  Wis.  236,  46  N.  W.  123,  9  L.  R.  A.  86.  20  Am. 
St.  Rep.  115:  (D.  sent  to  P.  a  letter  demanding  payment  of  a  debt.  The  letter 
was  enclosed  in  a  red  envelope  bearing,  in  large  type,  the  name  of  a  certain 
association  and  the  statement  that  it  was  for  collecting  bad  debts.) 

Sheftall  V.  Central  of  Georgia  Ry.  (1905)  123  Ga.  589.  51  S.  E.  649:  (P., 
a  conductor  on  the  defendant  railway,  had  been  discharged.  He  had  in  his 
possession,  as  part  of  his  conductor  equipment,  certain  unused  tickets.  These 
he  failed  to  turn  in.  The  railway  company  sent  out  a  circular  describing  the 
tickets  as  "lost  and  scalped"  and  requiring  the  conductors  to  decline  to  honor 
them  if  presented  for  transportation.  This  circular,  in  which  P.  was  named 
as  failing  to  surrender  the  tickets,  was  sent  to  all  the  defendant's  con- 
ductors, and  posted  for  ten  days  on  bulletin  boards  in  public  places.) 

Bingham  v.  Gaynor  (1911)  203  N.  Y.  27,  96  N.  E.  84:  (D.,  a  judge  in  New 
York  City,  sent  to  S.,  the  mayor  of  the  city,  a  letter  containing  defamatory 
statements  of  P.,  a  police  commissioner  of  the  city.  S.  was  the  superior 
officer  of  P.  Before  the  delivery  of  this  letter  to  S.,  it  was,  through  D.'s 
act,  published  in  newspapers  in  the  city.) 

Compare:  Ashcroft  v.  Hammond  (1910)  197  N.  T.  488,  90  N,  E.  1117:  (D., 
in  reply  to  a  telegram  from  S.,  who  with  D.  was  interested  in  the  proper 
management  of  a  corporation,  and  the  settlement  of  a  controversy  over  the 
validity  of  an  election  of  its  board  of  directors,  sent  a  telegram  reflecting 
upon  the  competency  of  P.,  who  had  been  manager  of  the  corporation  and 
was  active  in  the  pending  controversy.  The  telegram  from  S.,  di-afted  by 
P.  and  sent  with  his  knowledge,  asked  D.  to  "telegraph  reply"  to  a  certain 
address.) 


74i  TORTS  THROUGH   ACTS  OF   ABSOLUTE   LIABILITY  (Part  1 

and  SO  as  to  be  heard  by  every  one  standing  by,  and,  moreover,  that 
he  had  stood  outside  and  repeated  the  words  loudly,  so  that  he  could  be 
heard  by  persons  passing  by ;  and  that  some  persons  were  passing  by 
at  the  time  and  might  have  heard  it.  At  the  close  of  the  case  for  the 
plaintiff, 

Coleridge  submitted  that  the  words  were  privileged,  because  spoken 
to  a  trader  by  a  customer,  and  as  words  of  remonstrance  and  com- 
plaint. 

Lush,  J.  No  doubt  a  customer  may  complain  to  a  tradesman  with 
whom  he  deals  of  what  he  deems  irregular  or  dishonest;  but  if  he 
does  so  outside  the  door  of  the  tradesman's  shop — so  as  to  be  heard 
by  the  public — or  if  even  inside  the  shop,  he  speaks  slanderous  words 
unnecessarily  in  the  presence  of  third  parties,  or  to  third  parties,  and 
uses  language  which  is  extreme  and  beyond  the  occasion — all  this,  with 
the  tone  and  manner  in  which  the  words  were  spoken,  will  be  evidence 
for  the  jury  to  consider  whether  in  the  law  the  words  were  spoken 
maliciously  and  without  excuse.  The  case,  therefore,  cannot  be  with- 
drawn from  the  jury. 

Coleridge  thereupon  yielded  to  an  apology. 


TOOGOOD  V.  SPYRING. 

(Court  of  Exchequer,  1S34.    1  Cromp.,  M.  &  R.  ISl,  40  R.  R.  523.) 

This  was  an  action  of  slander  for  words  alleged  to  have  been  spo- 
ken of  the  plaintiff'  as  a  journeyman  carpenter,  by  the  defendant  on 
three  different  occasions.  The  declaration,  the  facts  of  which  suffi- 
ciently appear  in  the  opinion,  was  in  five  counts.  The  defendant 
pleaded  the  general  issue,  and,  in  two  special  pleas,  the  truth  of  the 
charge.  The  plaintiff  replied  to  the  special  pleas  with  a  de  injuria. 
There  was  a  verdict  for  the  plaintiff.  The  defendant  moved  for  a 
nonsuit  or  a  new  trial,  on  the  ground  of  misdirection.^® 

Parke,  B.  *  *  *  The  defendant,  who  was  a  tenant  of  the  Earl 
of  Devon,  required  some  work  to  be  done  on  the  premises  occupied 
by  him  under  the  Earl,  and  the  plaintiff,  w^ho  was  generally  employed 
by  Brinsdon,  the  Earl's  agent,  as  a  journeyman,  was  sent  by  him  to 
do  the  work.  He  did  it,  but  in  a  negligent  manner ;  and,  during  the 
progress  of  the  work,  got  drunk ;  and  some  circumstances  occurred 
which  induced  the  defendant  to  believe  that  he  had  broken  open  the 
cellar  door,  and  so  obtained  access  to  his  cider.  The  defendant  a  day 
or  two  afterwards  met  the  plaintiff  in  the  presence  of  a  person  named 
Taylor,  and  charged  him  with  having  broken  open  his  cellar  door  with 

68  The  statement  of  facts  is  abridged.  Tlie  arguments  of  counsel  and 
part  of  tlie  opinion  are  omitted.  The  opinion  in  this  case  has  been  referred 
to  as  one  of  "the  judgments  by  Baron  Parke  which  in  a  few  years  I'aised 
the  Exchequer  to  a  fully  equal  position  with  the  other  Courts."  40  R. 
R.  vi. 


Ch.  2)  ABSOLUTE   TORTS  OTHER  THAN  TRESPASSES  745 

a  chisel,  and  also  with  having  got  drunk.  The  plaintiff  denied  the 
charges.  The  defendant  then  said  he  would  have  it  cleared  up,  and 
went  to  look  for  Brinsdon ;  he  afterwards  returned  and  spoke  to  Tay- 
lor, in  the  absence  of  the  plaintiff;  and,  in  answer  to  a  question  of 
Taylor's,  said  he  was  confident  that  the  plaintiff  had  broken  open  the 
door.  On  the  same  day  the  defendant  saw  Brinsdon,  and  complained 
to  him  that  the  plaintiff  had  been  negligent  m  his  work,  had  got  drunk, 
and  he  thought  he  had  broken  open  the  door,  and  requested  him  to 
go  with  him  in  order  to  examine  it. 

Upon  the  trial  it  was  objected,  that  these  were  what  are  usually 
termed  "privileged  communications."  The  learned  Judge  thought  that 
the  statement  to  Brinsdon  might  be  so,  but  not  the  charge  made  in  the 
presence  of  Taylor;  and  in  respect  of  that  charge,  and  of  what  was 
afterwards  said  to  Taylor,  both  which  statements  formed  the  subject 
of  the  action,  the  plaintiff  had  a  verdict.  We  agree  in  his  opinion, 
that  the  communication  to  Brinsdon  was  protected,  and  that  the  state- 
ment, upon  the  second  meeting,  to  Taylor,  in  the  plaintiff's  absence, 
was  not ;  but  we  think,  upon  consideration,  that  the  statement  made  to 
the  plaintiff,  though  in  the  presence  of  Taylor,  falls  within  the  class 
of  communications  ordinarily  called  privileged ;  that  is,  cases  where 
the  occasion  of  the  publication  affords  a  defence  in  the  absence  of  ex- 
press malice.  In  general,  an  action  lies  for  malicious  publication  of 
statements  which  are  false  in  fact,  and  injurious  to  the  character  of 
another  (within  the  well-known  limits  as  to  verbal  slander),  and  the  law 
considers  such  publication  as  malicious,  unless  it  is  fairly  made  by 
a  person  in  the  discharge  of  some  public  or  private  duty,  whether  legal 
or  moral,  or  in  the  conduct  of  his  own  affairs,  in  matters  where  his 
interest  is  concerned.  In  such  cases,  the  occasion  prevents  the  infer- 
ence of  malice,  which  the  law  draws  from  unauthorized  communica- 
tions, and  affords  a  qualified  defence  depending  upon  the  absence  of 
actual  malice.  If  fairly  warranted  by  any  reasonable  occasion  or  exi- 
gency, and  honestly  made,  such  communications  are  protected  for  the 
common  convenience  and  welfare  of  society;  and  the  law  has  not  re- 
stricted the  right  to  make  them  within  any  narrow  limits. 

Among  the  many  cases  which  have  been  reported  on  this  subject, 
one  precisely  in  point  has  not,  I  believe,  occurred ;  but  one  of  the 
most  ordinary  and  common  instances  in  which  the  principle  has  been 
applied  in  practice  is,  that  of  a  former  master  giving  the  character  of 
a  discharged  servant;  and  I  am  not  aware  that  it  was  ever  deemed 
essential  to  the  protection  of  such  a  communication  that  it  should  be 
made  to  some  person  interested  in  the  inquiry,  alone,  and  not  in  the 
presence  of  a  third  person.  If  made  with  honesty  of  purpose  to  a 
party  who  has  any  interest  in  the  inquiry  (and  that  has  been  very  lib- 
erally construed,  Child  v.  Affleck,  33  R.  R.  216,  9  B.  &  C.  403,  4  Man. 
&  Ry.  338),  the  simple  fact  that  there  has  been  some  casual  bystander 
cannot  alter  the  nature  of  the  transaction.  The  business  of  life  could 
not  be  well  carried  on  if  such  restraints  were  imposed  upon  this  and 


746  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

similar  communications,  and  if,  on  every  occasion  in  which  they  were 
made,  they  were  not  protected  unless  strictly  private.  In  this  class  of 
communications  is,  no  doubt,  comprehended  the  right  of  a  master  bona 
fide  to  charge  his  servant  for  any  supposed  misconduct  in  his  service, 
and  to  give  him  admonition  and  blame ;  and  we  think  that  the  simple 
circumstance  of  the  master  exercising  that  right  in  the  presence  of 
another,  does  by  no  means  of  necessity  take  away  from  it  the  pro- 
tection which  the  law  would  otherwise  afford.  Where,  indeed,  an 
opportunity  is  sought  for  making  such  a  charge  before  third  persons, 
which  might  have  been  made  in  private,  it  would  afford  strong  evi- 
dence of  a  malicious  intention,  and  thus  deprive  it  of  that  immunity 
which  the  law  allows  to  such  a  statement,  when  made  with  honesty 
of  purpose;  but  the  mere  fact  of  a  third  person  being  present  does 
not  render  the  communication  absolutely  unauthorized,  though  it  may 
be  a  circumstance  to  be  left  with  others,  including  the  style  and  char- 
acter of  the  language  used,  to  the  consideration  of  the  jury,  who  are 
to  determine  whether  the  defendant  has  acted  bona  fide  in  making 
the  charge,  or  been  influenced  by  malicious  motives.  In  the  present 
case,  the  defendant  stood  in  such  a  relation  with  respect  to  the  plain- 
tiff, though  not  strictly  that  of  master,  as  to  authorize  him  to  impute 
blame  to  him,  provided  it  was  done  fairly  and  honestly  for  any  sup- 
posed misconduct  in  the  course  of  his  employment ;  and  we  think  that 
the  fact  that  the  imputation  was  made  in  Taylor's  presence,  does  not, 
of  itself,  render  the  communication  unwarranted  and  officious,  but  at 
most  is  a  circumstance  to  be  left  to  the  consideration  of  the  jury. 

We  agree  with  the  learned  Judge,  that  the  statement  to  Taylor,  in 
the  plaintift''s  absence,  was  unauthorized  and  officious,  and  therefore 
not  protected,  although  made  in  the  belief  of  its  truth,  if  it  were,  in 
point  of  fact,  false ;  but,  inasmuch  as  no  damages  have  been  sepa- 
rately given  upon  this  part  of  the  charge  alone,  to  which  the  fourth 
count  is  adapted,  we  cannot  support  a  general  verdict,  if  the  learned 
Judge  was  wrong  in  his  opinion  as  to  the  statement  to  the  plaintiff  in 
Taylor's  presence ;  and,  as  we  think  that  at  all  events  it  should  have 
been  left  to  the  jury  whether  the  defendant  acted  maliciously  or  not 
on  that  occasion,  there  must  be  a  new  trial. 

Rule  absolute  for  a  new  trial. 


5Y»^        BUNCOMBE  v.  DANIELL. 

(Adjourned  Sittings  at  Westminster  after  Michaelmas  Term,  1837. 

8  Car.  &  P.  222.) 

Libel.  The  declaration  was  upon  two  letters  written  by  the  defend- 
ant, who  was  a  barrister  and  an  elector  of  the  borough  of  Finsbury, 
and  published  in  the  "Morning  Post"  newspaper,  addressed  to  the 
plaintiff,  Mr.  Buncombe,  who  had  been  member  of  parliainent  for,  and 
at  the  time  of  the  publication  was  a  candidate  for  the  representation 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  747 

of,  that  borough.  Plea — Not  guilty;  and  three  pleas  of  justification, 
stating  in  substance  that  the  matters  contained  in  the  letters  were  true. 
Verdict  for  the  defendant,  damages  £100. 

In  the  ensuing  term,  Sir  W.  Follett  for  the  defendant  applied  for 
a  new  trial  upon  several  grounds,  the  last  of  which  was  that  it  was 
justifiable  for  an  elector  bona  fide  to  communicate  to  the  constituency 
any  matter  respecting  a  candidate  which  he  believed  to  be  true,  and 
believed  to  be  material  to  the  election. 

Coleridge:,  J.  You  must  go  further  than  that,  and  make  out  that 
the  elector  is  entitled  to  publish  it  to  all  the  world.  This  publication 
was  in  a  newspaper. 

Sir  W.  Follett  submitted  that  if  no  more  was  done  than  was  neces- 
sary to  make  the  matters  known  to  the  electors  the  publication  was 
privileged,  and  that  whether  or  not  any  thing  more  was  done  was  a 
question  for  the  jury. 

Lord  De;nman,  C.  J.  However  large  the  privilege  of  electors  may 
be,  it  is  extravagant  to  suppose  that  it  can  justify  the  publication  to  all 
the  world  of  facts  injurious  to  a  person  who  happens  to  stand  in  the 
situation  of  a  candidate. 

Rule  refused  on  the  last  ground,  and  granted  on  the  others.®" 


COLEMAN  V.  MacLENNAN. 

(Supreme  Court  of  Kansas,  1908.     78  Kan.  711,  98  Pac.  281,  20  L.  R.  A. 
[N.  S.]  361,  130  Am.  St.  Rep.  390.) 

BuRCH,  J.  In  August,  1904,  the  plaintiff  held  the  office  of  Attor- 
ney General  of  the  state  and  was  a  candidate  for  re-election  at  the 
general  election,  which  occurred  in  the  following  November.  By  vir- 
tue of  his  office,  he  was  a  member  of  the  commission  charged  with  the 
management  and  control  of  the  state  school  fund.  The  defendant  was 
the  owner  and  publisher  of  the  Topeka  State  Journal,  a  newspaper 
published  at  Topeka,  and  circulated  both  within  and  without  the  state. 
In  the  issue  of  the  date  mentioned  appeared  an  article  purporting  to 
state  facts  relating  to  the  plaintiff's  official  conduct  in  connection  with 

CO  The  statement  of  the  case  is  abridged. 

Accord:  Buckstaff  v.  Hicks  (1806)  94  Wis.  34,  68  N.  W.  403,  59  Am.  St. 
Rep.  853:  (In  a  meeting  of  the  city  council,  S.,  who  represented  the  city  in 
the  legislature,  made  remarks  which  were  defamatory  of  P.  as  the  city's 
representative  in  the  state  senate.  A  true  report  of  these  remarks,  including 
the  defamatory  statement,  was  published  in  D.'s  newspaper,  which  circulat- 
ed, not  only  in  the  city,  but  in  adjoining  counties  and  cities  and  outside  the 
state.) 

State  V.  Haskins  (1899)  109  Iowa,  650,  80  N.  W.  1063,  47  L.  R.  A.  223,  77 
Am.  St.  Rep.  560:  (When  P.  was  a  candidate  for  election  as  Judge  in  the 
fourteenth  judicial  district,  an  article  falsely  charging  him  with  fraudulent- 
ly altering  a  judicial  record  was  published  in  D.'s  newspaper,  which  circulat- 
ed in  this  district,  in  other  districts,  and  outside  the  state.) 


748  TORTS  THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

a  school  fund  transaction,  making  comment  upon  them  and  drawing 
inferences  from  them.  Deeming  the  article  to  be  libelous,  the  plaintiff 
brought  an  action  for  damages  against  the  defendant,  alleging  that 
the  matter  published  concerning  him  was  false  and  defamatory,  and 
that  its  publication  was  the  fruit  of  malice.  Among  other  defenses 
the  defendant  pleaded  facts  which  he  claimed  rendered  the  article  and 
its  publication  privileged.     *     *     * 

The  plaintiff  argues  that  the  defense  of  privilege  was  destroyed  by 
the  fact  that  copies  of  the  defendant's  newspaper  circulated  in  other 
states,  complains  of  the  instructions  given  upon  the  subject,  and  in- 
sists that  the  instruction  offered  by  him  should  have  been  given.  The 
instruction  given  was  correct  and  follows  the  rule  announced  by  this 
court  in  Redgate  v.  Roush,  61  Kan.  480,  59  Pac.  1050,  48  L.  R.  A. 
236.  There  a  matter  of  interest  to  communicants  of  a  church  was 
published  in  the  church  papers  in  Indiana,  Ohio,  Texas,  and  Nebraska. 
It  was  inevitable  that  they  should  be  read  by  people  of  other  denomi- 
nations. The  syllabus  reads :  ''Where  the  publication  appears  to  have 
been  made  in  good  faith  and  for  the  members  of  the  denomination 
alone,  the  fact  that  it  incidentally  may  have  been  brought  to  the  at- 
tention of  others  than  members  of  the  church  w'ill  not  take  away  its 
privileged  character."  This  accords  with  the  general  rule  stated  in 
25  Cvc.  387.  See,  also.  Hatch  v.  Lane,  105  Mass.  394;  Mertens  v. 
Bee  Publishing  Co.,  5  Neb.  (Unof.)  592,  99  N.  W.  847. 

In  the  cases  of  State  of  Iowa  v.  Haskins,  109  Iowa,  656,  80  N.  W. 
1063,  47  L.  R.  A.  223,  77  Am.  St.  Rep.  560,  Buckstaff  v.  Hicks,  94 
Wis.  34,  68  N.  W.  403,  59  Am.  St.  Rep.  853,  and  Sheftall  v.  Central 
Railway  Co.,  123  Ga.  589,  51  S.  E.  646,  language  is  used  from  which 
it  might  be  inferred  that  privilege  will  be  destroyed  if  the  communi- 
cation should  reach  the  eyes  of  others  than  persons  interested.  This 
would  be  the  end  of  privilege  for  all  newspapers  having  circulation 
and  influence.  Generally  the  publication  must  be  no  wider  than  will 
meet  the  requirements  of  the  moral  or  social  duty  to  publish.  If  it 
be  designedly  or  unnecessarily  or  negligently  excessive,  privilege  is 
lost.  But,  if  a  state  newspaper  published  primarily  for  a  state  con- 
stituency have  a  small  circulation  elsewhere,  it  is  not  deprived  of  its 
privilege  in  the  discussion  of  matters  of  state-wide  concern  because 
of  that  fact.°^     *     *     * 


61  Parts  of  the  opinion  are  omitted. 

Accord  (incidental  excess):  Hatch  v.  Lane  (1S70)  10-5  Mass.  394:  fD.,  a 
baker  who  emplo.ved  several  drivers  to  deliver  bread  in  Taunton  and  adjoin- 
ing towns,  inserted  in  the  Taunton  Daily  Gazette  a  notice  that,  P.  "having 
left  my  emploj'  and  taken  upon  himself  the  privilege  of  collecting  my  bills, 
this  is  to  give  notice  that  he  has  nothing  farther  to  do  with  my  business.") 

Shnrtleff  v.  Stevens  (1879)  51  Vt.  501,  519,  ;^1  Am.  Rep.  G98,  707:  (At  a 
meeting  of  an  association  of  Congregatiuualist  ministers  in  Vermont,  a 
resolution  defamatory  of  P.,  a  member  of  the  association,  was  passed  and  a 
copy  of  this  resolution  was,  by  order  of  the  mooting,  published  in  two  news- 
papers which  were   the  organs    of  the  Congregationalist   churches    and   cir- 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  749 

SAVAGE  V.  STOVER. 

(Supreme  Court  of  New  Jersey,  1914.     92  Atl.  2S4.) 

Savage  brought  an  action  against  Stover  for  libel  and  had  judgment 
below.     The  defendant  appeals. 

Parker,  J.  This  is  a  libel  suit  coming  up  from  the  district  court 
of  Hoboken.  The  plaintiff  is  the  president  and,  as  claimed,  the  virtual 
owner  of  a  bread-baking  concern,  and  the  defendant  is  an  attorney  at 
law  who  had  two  claims  against  the  corporation  on  behalf  of  former 
employes  who  had  deposited  $100  each  as  security  for  the  faithful 
performance  of  their  duties,  and  after  their  dismissal  or  resignation 
were  able  to  get  only  part  of  it  back.  The  corporation  was  repre- 
sented by  the  counsel  for  the  present  plaintiff,  and  the  libel  consisted 
in  a  letter  written  by  the  defendant  Stover,  in  which,  among  other 
things,  he  spoke  of  the  plaintiff,  Savage,  as  follows,  after  declining  to 
make  a  settlement  in  the  two  cases : 

"'Your  client  is  one  of  the  most  cold-blooded  of  men  I  have  ever  met.  Not 
only  did  I  see  his  actions  in  the  Townsend  matter  where  he  provoked  an  as- 
sault and  battery,  but  he  sent  me  a  very  insulting  letter  when  I  wrote  him 
in  a  friendly  way  in  spite  of  the  fact  that  my  folks  bought  his  bread.  1 
have  a  good  mind  to  tell  my  folks  to  discontinue  buying  his  bread.  He  treats 
his  men  laborers  like  dogs.  Not  only  does  this  contract  exemplify  that,  but 
I  have  heard  tales  from  drivers  and  from  men  close  to  you  and  him  how  he 
insults  and  squeezes  them.  Pei"Soually  if  I  were  you  I  would  not  lend  my- 
self to  do  the  work  of  that  fellow  Savage.  How  can  he  expect  to  build  up 
a  business  on  the  reputation  he  is  getting  throughout  the  county?  I  would 
ship  him  long  ago  were  Jie  my  client.  I  would  not  want  his  reputation 
to  redound  on  my  shoulders.  Kindly  let  me  know  at  once  whether  you  will 
try  or  settle  it." 

This  was  sent  to  Mr.  Burtis  in  the  usual  course.  The  case  was  tried 
by  a  judge  without  a  jury,  and  he  found  a  verdict  for  $75  damages 
and  costs,  which  is  the  judgment  now  complained  of. 

culated  chiefly,  but  not  exclusively,  among  Congregationalists  in  Vermont  and 
New  England.) 

Broughton  v.  McGrew  (C.  C.  1SS9)  39  Fed.  672,  5  L.  R.  A.  406:  (At  a  meet- 
ing of  the  stockholders  of  a  railway  company,  D.,  a  stockholder,  made  to  the 
other  stockholders  a  statement  which  was  defamatory  of  the  general  man- 
ager of  the  conwration,  in  his  official  capacity.  Three  attorneys,  who  were 
not  stockholders,  were  present  on  invitation  from  officers  of  the  road.) 

Conrad  v.  Roberts  (Kan.  1915)  147  Pac.  795:  (In  an  action  for  slander  D. 
pleaded  that  the  words  were  spoken  by  her  in  a  conversation  with  her  hus- 
band, S.,  at  a  time  when  she  understood  that  he  was  in  danger  of  arrest  for 
his  conduct  with  P.  and  another  woman  where  he  lived,  that  this  would 
bring  disgrace  upon  the  family  of  D.  and  S.,  and  that  she  desired  to  warn 
S.  in  his  own  interest,  as  well  as  in  that  of  the  family.  The  court  in  sub- 
stance charged  the  jury  that  if  a  third  person  overheard  the  defamatory  re- 
mark concerning  P.  which  D.  made  to  S.  on  this  occasion,  the  remark  was 
not  privileged  unless  such  third  person  was  a  mere  eavesdropiJer.  But,  said 
the  reviewing  court,  "it  was  privileged,  though  a  third  person,  without  being 
an  eavesdropper,  heard  it,  provided  it  was  made  in  good  faitli.  'Where  the 
presence  of  bystanders  is  a  mere  casual  incident,  not  in  any  sense  sought 
for  liy  the  defendant,  he  will  not  be  deprived  of  his  privilege.'  "  Per  Porter, 
J.,  referring  to  18  Am.  &  E.  Encyc.  of  L.  1047,  and  cases  there  cited. 


750  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

It  is  now  claimed  that  the  court  should  have  entered  a  nonsuit  or 
directed  a  verdict  (there  was  no  jury)  on  several  grounds,  the  principal 
of  which  is  tliat  the  letter  was  privileged.  No  doubt  it  was  privileged 
as  to  what  it  said  about  Savage  in  connection  with  the  two  cases  that 
were  then  pending,  but  it  is  very  far  from  confining  itself  to  those 
matters.  It  is  rather  a  general  personal  admonition  from  one  attorney 
to  another  that  the  client  of  the  latter  is  not  fit  to  be  regarded  as  a 
client  and  ought  to  be  sent  about  his  business.  This  was  clearly  out- 
side the  scope  of  the  business  under  discussion  between  the  two  at- 
torneys, and  raised  the  question  whether  the  letter  was  privileged  as 
to  such  surplus  matter.  The  authorities  appear  to  be  in  some  conflict 
on  this  point.  25  Cyc.  386,  387.  In  Fahr  v.  Hayes,  50  N.  J.  Law,  275, 
280,  13  Atl.  261,  263,  a  slander  suit,  the  defendant  on  a  privileged  oc- 
casion used  strong  language,  but  this  court  held  that  his  motive  "did 
not  betray  the  defendant  into  any  expression  beyond  what  was  perti- 
nent to  the  subject  of  *  *  *  (the)  inquiry,  and  was  honestly  be- 
lieved by  the  defendant,  and  therefore  was  legalized  by  the  privileged 
occasion  and  motive."  The  inference  is  open  that,  if  the  language 
used  had  been  "beyond  what  was  pertinent  to  the  subject  of  *  *  * 
(the)  inquiry,"  another  view  of  defendant's  liability  would  have  been 
taken.  In  the  case  at  bar  the  language  was  not  spoken,  but  written; 
and  was  not  in  response  to  any  inquiry,  confidential  or  otherwise,  but 
was  manifestly  volunteered.  Hence  it  clearly  exceeded  the  demands 
of  the  occasion ;  and  in  such  case  we  think  the  true  rule  is  that  such 
excessive  language  is  not  covered  by  the  privilege. 

If,  however,  the  rule  be  otherwise,  the  judgment  below  is  not  nec- 
essarily erroneous.  The  burden  of  showing  privilege  is  on  the  de- 
fendant, and  if  he  sustains  it  the  plaintiff  may  still  hold  him  liable  by 
showing  express  malice.  Fahr  v.  Hayes,  supra.  This  might  appear 
from  the  very  language  used.  Id. ;  25  Cyc.  387.  As  we  read  this  let- 
ter, its  very  language  was  evidence  justifying  the  jury,  or  the  court 
sitting  as  a  jury,  in  finding  the  existence  of  express  malice. 

The  other  points  made  are  insignificant.  *  *  *  62  Judgment 
affirmed. 


JENOURE  V.  DELMEGE. 

(Judicial  Committee  of  tlie  Privy  Couucil.     (1S91]  A.  C.  73.) 

On  appeal  from  the  Supreme  Court  of  Jamaica. 

This  was  an  action  of  libel  brought  by  the  respondent  Delmege 
against  the  appellant  Jenoure.  Delmege  was  a  Government  medical 
officer.  Jenoure  was  a  justice  of  the  peace,  residing  in  the  same  par- 
ish.   The  libel  was  contained  in  the  following  letter  signed  by  Jenoure 

82  Part  of  the  opinion  is  omitted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  751 

as  justice  of  the  peace  and  sent  by  him  to  the  inspector  of  constabu- 
lary- for  the  district: 

"Sir — I  have  been  informed  on  good  authority  that  Dr.  Delmege,  of  Man- 
chioneal  was  called  by  cue  Lindsay  (who,  I  believe,  is  his  servant)  to  attend  a 
woman  in  labour  named  Zipporah  Henry,  of  Manchioneal,  on  Sunday,  8th 
January ;  that,  although  implored  by  Lindsay  to  attend  the  woman,  the  doctor 
refused  to  do  so  without  the  fee,  and  that  consequently  the  woman  died  on 
Monday  morning  from  want  of  medical  attendance.  I  shall  be  obliged  in 
the  interest  of  humanity,  especially  as  I  am  informed  it  is  by  no  means  an 
uncommon  occurrence  for  Doctor  Delmege  to  refuse  to  attend  such  cases, 
if  you  will  inquire  into  this  matter  and  if  the  facts  prove  to  be  as  stated,  that 
you  will  reiwrt  the  case  to  the  proper  authority,  as  such  wilful  neglect  can- 
not be  allowed." 

The  appellant  pleaded  that  the  statements  contained  in  the  letter 
were  true  in  substance  and  in  fact,  and  that  the  occasion  of  the  publi- 
cation was  privileged.  The  jury  returned  a  general  verdict  for  the 
plaintiff  with  £50  damages,  and  judgment  was  entered  accordingly. 

A  motion  for  a  new  trial  was  granted  on  the  ground  of  misdirection 
with  regard  to  the  question  of  privilege.  But  on  argument,  the  Court 
unanimously  confirmed  the  judgment.  The  appellant  subsequently 
obtained  special  leave  from  Her  Majesty  in  Council  to  prefer  an  ap- 
peal. In  the  Privy  Council  the  judgment  of  their  Lordships  was  de- 
livered by 

Lord  Macnaghten.^^  *  *  *  'pl-,g  chief  Justice  told  the  jury 
that  it  was  tlie  duty  of  the  appellant,  as  a  justice  of  the  peace,  to  bring 
circumstances  such  as  those  mentioned  in  his  letter  to  the  notice  of  the 
proper  authorities.  Their  Lordships  may  observe  in  passing  that,  in 
their  opinion,  nothing  turns  on  the  position  of  the  appellant  as  a  jus- 
tice of  the  peace.  To  protect  those  who  are  not  able  to  protect  them- 
selves is  a  duty  which  every  one  owes  to  society.  The  Chief  Justice 
went  on  to  tell  the  jury  that  the  proper  authority  to  whom  such  a  com- 
plaint should  have  been  submitted  was  the  superintending  medical  of- 
ficer ;  but  he  also  told  them  that,  if  they  thought  that  the  appellant  had 
addressed  the  letter  to  the  inspector  of  constabulary  by  an  honest 
unintentional  mistake  as  to  the  proper  authority  to  deal  with  the  com- 
plaint, then  the  communication  would  not  be  deprived  of  any  privilege 
to  which  it  would  have  been  entitled  had  it  been  addressed  to  the  su- 
perintending medical  officer.  So  far  the  summing  up  seems  to  be  open 
to  no  objection. 

The  Chief  Justice  then  proceeded  to  explain  to  the  jury  that  the  ex- 
istence of  privilege  was  contingent  on  whether  in  their  opinion,  the 
appellant  honestly  believed  the  statements  contained  in  the  letter  to  be 
true.  The  meaning  of  the  Chief  Justice  is  made  perfectly  clear  by 
what  follows.  After  referring  to  the  cases  where  the  alleged  defam- 
atory matter  was  spoken  or  written  by  masters  with  reference  to  the 
characters  of  servants,  he  points  out  that,  in  such  cases,  "no  question 

03  The  reporter's  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


752  TORTS  THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

as  to  the  bona  fides  of  the  defendant  arises  as  preliminary  to  the  ex- 
istence of  privilege."  Where,  however,  "it  is  alleged  that  the  defam- 
atory communication  was  made  in  discharge  of  a  duty,"  his  view  was 
that  the  defendant  must  "satisfy  the  jury  that  he  made  the  communi- 
cation with  a  belief  in  its  truth."  "No  doubt,"  he  adds,  "the  dicta  of 
some  of  the  judges  in  the  masters  and  servants  cases  cited  seem  to 
extend  to  all  classes  of  privileged  communications ;  but  no  case  was 
cited,  and  I  have  been  able  to  find  none,  where,  when  privilege  was 
claimed  on  the  ground  that  the  communication  was  made  in  discharge 
of  a  duty,  it  has  been  held  that  the  plaintiff,  to  support  his  action,  must 
prove  express  malice.  In  the  one  case  there  can  be  no  room  for  doubt 
that,  if  the  defendant  established  the  relation  which  existed  between 
him  and  the  plaintiff',  a  privilege  arises  which  can  only  be  overcome 
by  proof  of  express  malice.  In  the  other,  the  authorities  already  cited 
shew  that,  where  a  defendant  claims  privilege  in  respect  of  a  charge  of 
misconduct  volunteered  by  him,  he  must  satisfy  the  jury  that  he  acted 
bona  fide  before  the  question  of  privilege  arises  for  the  determination 
of  the  judge." 

There  can  be  no  doubt,  therefore,  that  the  learned  Chief  Justice 
gave  the  jury  to  understand  that  it  lay  upon  the  appellant  to  prove 
affirmatively  that  he  honestly  believed  the  statements  contained  in  the 
alleged  libel  to  be  true,  and  that,  unless  and  until  that  was  made  out 
by  him  to  their  satisfaction,  it  was  not  incumbent  on  the  respondent 
to  prove  express  malice. 

Curran,  J.,  took  the  same  view  of  the  authorities,  and  Northcote,  T., 
concurred. 

Notwithstanding  some  dicta  which,  taken  by  themselves  and  apa 't 
from  the  special  circumstances  of  the  cases  in  which  they  are  to  be 
found,  may  seem  to  support  the  view  of  the  Chief  Justice,  their  Lord- 
ships are  of  opinion  that  no  distinction  can  be  drawn  between  one 
class  of  privileged  communications  and  another,  and  that  precisely 
the  same  considerations  apply  to  all  cases  of  qualified  privilege.  "The 
proper  meaning  of  a  privileged  communication,"  as  Parke,  B.,  ob- 
serves, Wright  v.  Woodgate,  2  C,  M.  &  R.  577,  "is  only  this :  that  the 
occasion  on  which  the  communication  was  made  rebuts  the  inference 
prima  facie  arising  from  a  statement  prejudicial  to  the  character  of 
the  plaintiff,  and  puts  it  upon  him  to  prove  that  there  was  malice  in 
fact — that  the  defendant  was  actuated  by  motives  of  personal  spite  or 
ill  will,  independent  of  the  occasion  on  which  the  communication  was 
made."  There  is  no  reason  why  any  greater  protection  should  be  giv- 
en to  a  communication  made  in  answer  to  an  inquiry  with  reference 
to  a  servant's  character  than  to  any  other  communication  made  from 
a  sense  of  duty,  legal,  moral,  or  social.  The  privilege  would  be  worth 
very  little  if  a  person  making  a  communication  on  a  privileged  occasion 
were  to  be  required,  in  the  first  place,  and  as  a  condition  of  immunity, 
to  prove  affirmatively  that  he  honestly  believed  the  statement  to  be 
true.     In  such  a  case  bona  fides  is  always  to  be  presumed. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  753 

Their  Lordships  consider  the  law  so  well  settled  that  it  is  not  in 
their  opinion  necessary  to  review  the  authorities  cited  by  the  Chief 
Justice.  The  last  case  on  the  subject  is  Clark  v.  Molyneux,  3  Q.  B.  D. 
2?i7 ,  to  which,  unfortunately,  the  attention  of  the  Supreme  Court  was 
not  called.  That  was  a  case,  not  of  master  and  servant,  but  of  a  com- 
munication volunteered  from  a  sense  of  duty.  A  verdict  was  found 
for  the  plaintiff.  But  it  was  set  aside  by  the  Court  of  Appeal  on  the 
ground  of  misdirection.  In  giving  his  judgment,  Cotton,  L.  J.,  used 
the  following  language,  every  word  of  which  is  applicable  to  the  pres- 
ent case.  "The  burden  of  proof,"  he  says,  "lay  upon  the  plaintiff  to 
shew  that  the  defendant  was  actuated  by  malice;  but  the  learned 
judge  told  the  jury  that  the  defendant  might  defend  himself  by  the 
fact  that  these  communications  were  privileged,  but  that  the  defend- 
ant must  satisfy  the  jury  that  what  he  did  he  did  bona  fide,  and  in  the 
honest  belief  that  he  was  making  statements  which  were  true.  It  is 
clear  that  it  was  not  for  the  defendant  to  prove  that  he  was 
acting  from  a  sense  of  duty,  but  for  the  plaintiff  to  satisfy  the  jury 
that  the  defendant  was  acting  from  some  other  motive  than  a  sense 
of  duty."  «* 

Their  Lordships  are  therefore  of  opinion  that  there  was  a  misdirec- 
tion on  a  material  point,  which  may  have  led  to  a  miscarriage.  In- 
deed, it  is  difficult  to  see  how  the  jury  could  have  done  anything  but 
find  for  the  plaintiff,  having  regard  to  the  way  in  which  the  question 
was  presented  to  them.  The  jury  were  told  that  it  was  for  the  de- 
fendant to  prove  that  he  honestly  beUeved  the  statements  in  his  letter 
to  be  true ;  whereas  the  letter  itself  put  these  statements  forward,  not 

64  Compare:  Henry  v.  Moberly  aS9.3)  6  Ind.  App.  490,  33  N.  E.  981:  A 
complaint  iu  an  action  for  libel  alleged  that  the  defendant,  who  with  two  oth- 
ers constitnted  a  board  of  school  trustees  before  whom  the  plaintiff's  appli- 
cation for  employment  as  a  teacher  was  pending,  filed  his  protest  before  this 
board,  objecting  in  "false,  malicious,  and  libelous  language"  to  plaintiff's 
emplojTnent.  The  defendant's  charge  was  that  the  plaintiff  "had  claimed 
wages  not  due  her"  and  to  obtain  them  "had  made  statements  which  in  my 
opinion  she  knew  to  be  false."  The  complaint  was  held  demurrable.  "In 
her  complaint  appellee  avers  that  appellant  published  the  'malicious'  lan- 
guage quoted.  This  expression,  without  explanation,  would  be  equivalent 
to  saying  that  he  so  published  the  words  without  sutHcient  excuse.  In  the 
.same  connection,  however,  in  the  complaint,  the  facts  are  stated  which  dis- 
close a  legal  excuse,  unless  he  was  prompted  by  express  or  actual  malice. 
Inasmuch  as  she  has  statefl  these  facts,  it  appears  to  us,  on  reason  and  anal- 
ogy, that  it  was  incumbent  on  her  to  allege  that  ho  acted  maliciously.  If 
he  was  in  fact  prompted  by  malicious  motives,  instead  of  a  desire  to  dis- 
charge the  duties  of  his  office,  iu  publishing  the  defamatory  matter  recited  in 
his  protest,  he  is,  under  the  authorities,  undoubtedly  liable ;  but  when  ap- 
pellee concedes,  as  she  does  in  her  complaint,  the  privilege  under  which  ap- 
pellant was  acting  on  the  only  occasion  of  which  she  complains,  it  is  then 
incumbent  on  her  to  aver  facts  sufficient  to  negative  the  rights  which  ac- 
crue to  him  on  account  of  such  privilege."  Per  Duvis,  J.  And  .see  Henry  v. 
Moberly  (1899)  23  Ind.  App.  .305,  51  N.  E.  497.  See  al.so  the  opinion  of  Collins, 
M.  K.,  in  Thomas  v.  Bradbury,  Agnew  &  Co.,  [190G]  2  K.  B.  U27,  given  in  text 
infra, 

Hepb.Tobts — 48 


754  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

as  matters  of  the  truth  of  which  the  writer  has  satisfied  himself,  but 
as  matters  calling  for  inquiry  and  consideration  by  the  proper  authori- 
ties. 

Their  Lordships  think  that  the  verdict  cannot  stand ;  that  the  judg- 
ment entered  thereon,  and  the  orders  of  the  26th  of  July,  1888,  and 
the  5th  of  September,  1888,  ought  to  be  discharged,  and  that  there 
ought  to  be  a  new  trial;  but  only  on  the  terms  that  the  plea  of  justi- 
fication is  not  to  be  raised  again.  It  seems  to  their  Lordships  that  that 
issue  has  been  finally  disposed  of.     *     *     * 


BAVINGTON  v.  ROBINSON. 

(Court  of  Appeals  of  Maryland,  1914.     124  Md.  8-5,  91  Atl.  777.) 

This  was  an  action,  by  Bavington  against  Robinson,  for  slander. 
Under  the  instructions  of  the  court  below,  a  verdict  was  rendered  for 
the  defendant.  The  plaintiff  appealed  from  the  judgment  thereon. 
The  declaration,  framed  in  several  counts,  alleged  the  following  de- 
famatory statements  by  the  defendant  of  the  plaintiff: 

"Don't  you  know  you  are  stealing  my  corn?  Well,  you  are."  "Don't  you 
know  you  are  criminally  liable?  You  are."  "I  (meaning  the  defendant) 
am  going  to  see  the  state's  attorney;  you  (meaning  the  plaintiff)  have  been 
robbing  me  long  enough." 

*  *  *  The  defendant  pleaded  the  general  issue,  and  filed  a  special 
plea  of  justification  to  the  second  count.  At  the  conclusion  of  the  testi- 
mony for  the  plaintiff  the  court  directed  a  verdict  for  the  defendant,  on 
the  ground  that  the  alleged  slanderous  words  were  privileged  and  the 
plaintiff  had  failed  to  oft'er  any  proof  of  express  malice ;  and  it  is  from 
that  ruling  that  the  only  question  in  this  appeal  arises.    *    *    * 

From  the  testimony  it  appears  that  the  appellant  is  a  young  man 
engaged  in  farming,  and  has  canned  tomatoes  since  1906  in  his  home 
county,  Harford.  *  *  *  f^g  appellee  is  a  canner  and  canned 
goods  broker.  The  canning  operations  of  the  appellant  had  been 
financed  since  their  beginning  by  the  appellee  until  the  difficulty  which 
gave  rise  to  this  suit.  The  business  of  the  appellant  did  not  prosper, 
*  *  *  and,  in  1908,  he  gave  to  the  appellee  a  bill  of  sale  to  cover 
his  indebtedness  to  him  of  32,000.  *  *  *  The  property  under  this 
bill  of  sale  included  250  barrels  of  corn,  then  in  the  field  unhusked, 
the  number  of  barrels  being  estimated,  as  well  as  a  lot  of  farming 
machinery  and  some  live  stock,  all  of  which  remained  in  the  possession 
of  the  appellant.  On  the  18th  of  December,  1909,  the  appellee  loaned 
the  appellant  $700  on  the  joint  note  of  the  appellant  and  his  father, 
payable  two  months  after  date.  The  appellant  agreed  with  the  appellee 
at  this  time  that  the  corn  that  was  covered  by  the  bill  of  sale  should  be 
hauled  and  sold  by  him  and  the  proceeds  therefrom  applied  to  the 
payment  of  the  note.     It  was  not  agreed,  however,  that  it  should  be 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  755 

hauled  at  once,  but  in  several  conversations  it  was  agreed  that  it  should 
be  held  until  it  advanced  to  $4  a  barrel.  On  February  21,  1910,  the 
appellant  was  standing  in  the  corridor  of  the  Bel  Air  courthouse,  talk- 
ing with  some  people,  when  the  appelleee  called  to  him.  After  the 
appellant  had  walked  over  to  him  the  appellee  said  to  him:  "How 
about  that  corn,  have  you  hauled  any  of  it  out?"  Appellant  told  him 
he  had  hauled  out  about  35  barrels.  Upon  the  appellee  demanding 
the  money  the  appellant  told  him  he  had  part  of  it  to  his  credit  in  bank, 
a  part  his  father,  with  whom  he  lived,  had,  and  a  part  of  the  corn  had 
not  been  paid  for,  and  that  since  he  had  not  the  weights  with  him  he 
could  not  tell  how  much  he  had  received,  and,  therefore,  could  not  pay 
him  that  day.  Whereupon,  shaking  his  finger  at  him,  the  appellee  in  a 
loud  voice  spoke  the  words  set  out  in  the  declaration.  Several  persons, 
who  were  in  the  corridor  of  the  courthouse,  testified  as  to  the  use  of 
these  words  and  the  manner  of  the  appellee. 

The  only  question  presented,  is,  should  the  court  have  ruled,  upon 
this  state  of  facts,  that  the  appellee  was  entitled  to  the  protection  of 
a  privileged  communication?  The  law  upon  the  subject  of  privilege 
is  too  well  settled  to  admit  of  serious  controversy.  The  statement  of 
the  testimony  shows  that  if  this  is  to  be  classed  as  a  privileged  com- 
munication, it  is  of  course  a  qualified  privilege.  Malice  is  the  essential 
of  the  action  of  slander,  but  it  is  not  necessary  that  it  be  proved ;  when 
once  the  slanderous  words  are  proved,  malice  is  presumed.  However, 
when  the  words  alleged  to  be  slanderous  are  embraced  in  the  class 
of  privileged  communications,  the  plaintiflF  is  bound  to  prove  the  ex- 
istence of  malice  as  the  real  motive  of  the  defendant's  language. 
*     *     * 

It  is  a  question  for  the  court  to  decide,  in  the  first  instance,  whether 
words  alleged  to  have  been  slanderous  were  privileged  by  the  occa- 
sion, assuming  them  to  have  been  spoken  in  good  faith,  without  malice, 
and  in  the  belief  that  they  were  true;  and,  if  so  privileged,  then  the 
plaintiff  must  show  express  malice  in  order  to  recover.  And  if  there 
is  any  evidence  tending  to  prove  express  malice,  that  question  should 
be  submitted  to  the  jury.  Brow  v.  Hathaway,  13  Allen  (Mass.)  239; 
Fresh  v.  Cutter,  73  Md.  87,  20  Atl.  774,  10  L.  R.  A.  67,  25  Am.  St. 
Rep.  575.  But  it  is  proper  for  the  court,  where  the  facts  are  contro- 
verted, to  instruct  the  jury  as  to  what  facts  amount  to  privilege,  and 
leave  it  to  the  jury  to  determine  whether  those  facts  are  proved. 
Brinsfield  v.  Howeth,  107  Md.  278,  68  Atl.  566,  24  L.  R.  A.  (N.  S.) 
583.  "But  the  plaintiff  has  the  right,  notwithstanding  the  privileged 
character  of  the  communication,  to  go  to  the  jury,  if  there  be  evidence 
tending  to  show  actual  malice,  as  when  the  words  unreasonably  impute 
crime,  or  the  occasion  of  their  utterance  is  such  as  to  indicate,  by  its 
unnecessary  publicity  or  otherwise,  a  purpose  wrongfully  to  defame 
the  plaintiff.  *  *  *  Expressions  in  excess  of  what  the  occasion 
warrants  do  not  per  se  take  away  the  privilege,  but  such  excess  may  be 
evidence  of  malice."    Fresh  v.  Cutter,  supra. 


75G  TORTS  THROUGH  ACTS  OP  ABSOLUTE   LIABILITY  (Part  1 

Applying  the  above  principles  to  the  facts  of  the  present  case,  it  is 
plain  that  the  occasion  of  the  utterance  of  the  slanderous  words  was 
such  as  to  throw  upon  the  appellant  the  burden  of  showing  express 
malice.  We  are  also  of  the  opinion  that  the  court  was  in  error  in  rul- 
ing that  there  was  no  evidence  tending  to  show  the  existence  of  malice. 

Could  the  appellee  have  believed,  from  the  facts  known  to  him,  that 
the  appellant  was  guilty  of  crime  ?  It  is  true  he  had  a  bill  of  sale  upon 
the  corn,  but  from  the  testimony  it  was  a  bill  of  sale  in  form  only.  It 
was  clearly  a  mortgage.  The  only  evidence  in  the  case  shows  he  had 
directed  the  appellant  to  sell  the  corn.  When  the  appellant  was  in  the 
act  of  carrying  out  this  direction  he  was  accused  of  a  crime.  There- 
fore, if  the  jury  should  find  from  the  evidence  that  the  accuser  did  not 
believe  the  accusation  he  had  made  was  true,  there  would  be  a  fact 
from  which  they  could  infer  malice.  The  use  of  the  words,  "You  have 
been  robbing  me  long  enough,"  might  also  tend  to  show  malice,  if  the 
jury  should  think  they  were  in  excess  of  what  the  occasion  demanded. 
Did  not  the  facts  tend  to  show,  in  the  light  of  the  knowledge  the  appel- 
lant had,  that  it  was  an  unreasonable  imputation  of  crime?  If,  then, 
the  jury  could  have  found  from  them  malice,  it  was  not  for  the  court 
to  pass  its  judgment  upon  them,  but  to  have  left  that  question  to 
be  determined  by  the  jury,  with  proper  instructions  from  the  court. 

Judgment  reversed,  and  new  trial  awarded,  with  costs  to  the  appel- 
lant.^^ 


^-,-"  SMITH  V.  STREATFEILD  et  al. 

^       (King's  Bench  Division.     [1913]  3  K.  B.  764.) 

The  defendant  the  Reverend  Canon  G.  S.  Streatfeild  wrote  a 
pamphlet  containing  defamatory  statements  of  the  plaintiff  and  em- 
ployed the  other  defendants,  the  Robert  Spennell  Press,  a  firm  of 
printers,  to  print  and  publish  it.  The  pamphlet  was  circulated  only 
among  those  who  had  a  common  interest  with  the  defendant  Canon 
Streatfeild  in  the  contents.  As  regards  him  a  qualified  privilege  was 
admitted.  The  Court  was  of  opinion  that  as  it  was  a  natural  and 
proper  course  to  print  the  pamphlet  in  order  to  get  it  published  to 
those  having  a  common  interest  in  its  contents,  the  privilege  extended 
to  the  printers  also.  The  jury  found  that  Canon  Streatfeild  was 
actuated  by  malice  in  publishing  the  pamphlet,  but  that  the  printers 
were  not. 

McCardie,  for  the  defendants  the  Robert  Spennell  Press.  These 
defendants  are  entitled  to  judgment.  The  evidence  must  shew  that 
the  defendants  themselves  were  actuated  by  malice;  otherwise  the 
plaintiff  cannot  recover  against  them.  It  is  not  enough  to  shew  that 
some  one  else  was  so  affected :  Hennessy  v.  Wright  (1888)  24  Q.  B.  D. 

«6  rarts  ot  tlie  opinion  are  omitted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  757 

445,  n.  In  an  action  against  the  publisher  of  a  magazine  evidence  of 
the  writer's  personal  malice  is  inadmissible :  Robertson  v.  Wylde 
(1838)  2  Moo.  &  R.  101. 

Further,  these  defendants  having  printed  and  published  the  pam- 
phlet in  the  ordinary  course  of  business  may  claim  a  privilege  separate 
and  distinct  from  that  of  their  co-defendant.  Where  matter  is  pub- 
lished on  a  privileged  occasion  all  incidental  acts  such  as  printing  or 
copying,  if  done  in  the  ordinary  course  of  business,  are  privileged 
also :    Baker  v.  Garrick  (1894)  1  O.  B.  838. 

Sir  F.  Low,  in  reply.  There  is  no  authority  for  the  position  that 
printers  can  claim  privilege  on  the  ground  that  printing  was  in  the 
ordinary  course  of  their  business  and  incidental  to  the  publication 
of  the  matter  complained  of.  The  words  of  Lord  Macnaghten  in 
Macintosh  v.  Dun,  [1908]  A.  C.  390,  at  p.  400,  apply  most  aptly  to 
these  defendants :  "'What  is  their  motive  ?  Is  it  a  sense  of  duty  ? 
Certainly  not.  It  is  a  matter  of  business  with  them.  Their  motive 
is  self-interest.  They  carry  on  their  trade,  just  as  other  traders  do, 
in  the  hope  and  expectation  of  making  a  profit."  They  admit  the  print- 
ing and  publication  of  a  libel.  The  only  way  in  which  they  can  set  up 
a  privilege  is  by  sheltering  themselves  behind  their'  co-defendant.  His 
privilege  does  not  cover  him  and  consequently  they  stand  unprotected. 

Bankes,  J.  *  *  *  It  remains  only  to  consider  the  proposition 
contended  for  by  Mr.  McCardie  that  the  printers  are  entitled  to  judg- 
ment, as  the  jury  have  negatived  any  malice  on  their  part.  I\Ir.  Mc- 
Cardie's  contention  in  substance  amounted  to  this,  namely,  that  his 
clients'  privilege  was  what  he  called  an  incidental  privilege — that  is 
to  say,  that,  though  it  arose  out  of  the  same  facts  as  constituted  the 
privilege  of  Canon  Streatfeild,  it  was  independent  of  it  in  the  sense 
that  his  clients  were  entitled  to  the  protection  of  the  privilege  even 
though  Canon  Streatfeild  might  have  disentitled  himself  to  any  protec- 
tion. It  appears  to  me  that  Mr.  McCardie's  argument  fails,  whether 
the  question  is  regarded  from  the  point  of  view  of  the  law  applicable 
to  privilege,  or  of  the  law  applicable  to  the  case  of  joint  tortfeasors. 

To  take  the  last  first:  the  publication  here  complained  of  was  a 
joint  publication — that  is  to  say,  a  single  publication  to  each  rural  dean 
for  which  both  defendants  were  jointly  responsible.  This  publication 
was  admitted  by  the  printers.  The  finding  of  the  jury  establishes  the 
fact  that  the  defendant  Canon  Streatfeild  was  a  tortfeasor  as  regards 
this  publication.  It  necessarily  follows,  in  my  opinion,  that  the  print- 
ers are  joint  tortfeasors  with  him.  The  ordinary  rule  of  law  is  that 
each  tortfeasor  is  liable  for  all  the  consequences  of  the  joint  tort.  In 
Clark  V.  ]\Iewsam  (1847)  1  Ex.  131,  Rolfe,  B.,  states  the  rule  thus: 
"When  two  persons  have  so  conducted  themselves  as  to  be  liable  to 
be  jointly  sued,  each  is  responsible  for  the  injury  sustained  by  their 
common  act."  In  my  opinion  it  follows  from  this  rule  of  law  that  in 
the  case  of  a  joint  publication  of  a  libel  each  tortfeasor  is  liable  for  the 


758  TORTS  THROUGH  ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 

malice  of  the  other.  It  may  very  well  be  that  in  assessing  damages  the 
jury  may  take  into  account  the  fact  that  one  of  the  two  persons 
jointly  responsible  for  the  publication  of  the  libel  may  be  morally 
blameless,  and  may  consequently  refuse  to  give  anything  in  the  nature 
of  vindictive  damages  in  a  verdict  which  will  affect  him,  but  this  does 
not  affect  his  liability  for  the  publication. 

The  same  result,  in  my  opinion,  follows  if  the  matter  is  looked  at 
from  the  point  of  view  of  privilege.  The  principle  upon  which  the 
law  of  qualified  privilege  rests  is,  I  think,  this :  that  where  words  are 
published  which  are  both  false  and  defamatory  the  law  presumes 
malice  on  the  part  of  the  person  who  publishes  them.  The  publication 
may,  however,  take  place  under  circumstances  which  create  a  qualified 
privilege.  If  so,  the  presumption  of  malice  is  rebutted  by  the  priv- 
ilege, and  in  an  action  for  libel  or  slander  founded  on  a  publication 
upon  a  privileged  occasion  the  plaintiff  has  to  prove  express  malice  on 
the  part  of  the  person  responsible  for  the  publication.  The  effect  of 
proving  express  malice  is  sometimes  spoken  of  as  defeating  the  priv- 
ilege. This  is  a  convenient  expression,  and  conveys  in  a  single  word 
a  correct  idea  of  what  has  really  happened,  namely,  that  although  the 
occasion  remains  a  privileged  occasion,  the  privilege  afforded  by  the 
occasion  ceases  to  be  an  effective  weapon  of  defence.  The  reason  for 
this  is  obvious.  Qualified  privilege  is  a  defence  only  to  the  extent  that 
it  throws  on  the  plaintiff  the  burden  of  proving  express  malice.  Di- 
rectly the  plaintiff  succeeds  in  doing  this  the  defence  vanishes,  and  it 
becomes  immaterial  that  the  publication  was  on  a  privileged  occasion. 
Qualified  privilege  in  one  sense  may  be  said  to  be  the  privilege  of  the 
individual,  in  that  it  arises  out  of  the  circumstances  in  which  the  in- 
dividual is  placed,  but  as  a  defence  it  is  attached  to  the  publication. 
Where  therefore,  as  here,  the  plaintiff  is  complaining  of  a  joint  pub- 
lication, if  the  defence  of  privilege  as  to  that  publication  fails  because 
of  the  proof  of  express  malice,  it  fails,  in  my  opinion,  altogether,  and 
the  plaintiff  establishes  his  right  to  succeed  in  respect  of  that  particu- 
lar publication. 

From  whichever  point  of  view,  therefore,  Mr.  McCardie's  contention 
is  approached,  the  result  is,  in  my  opinion,  the  same,  and  his  clients 
cannot  derive  any  benefit,  so  far  as  liability  for  the  publication  of  the 
libel  is  concerned,  from  the  fact  that  the  jury  have  negatived  any  ex- 
press malice  on  their  part.  In  the  result,  therefore,  I  give  judgment 
against  both  defendants  for  £50  damages. 

Judgment  for  plaintiff.®" 

66  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN   TRESPASSES  759 

(c)  As  A  Reply  to  the  Plea  of  Faib  Co\rMENT 

THOMAS  V.  BRADBURY,  AGNEW  &  CO,  Limited,  et  al. 

(In  the  Court  of  Appeal.     [1906]  2  K.  B.  627.) 

The  plaintiff  was  a  journalist,  and  the  author  of  a  book  entitled 
"Fifty  Years  of  Fleet  Street,  being  the  Life  and  Recollections  of  Sir 
John  R.  Robinson."  The  defendants  Bradbury,  Agnew  &  Co.  were 
the  proprietors  and  publishers  of  "Punch,"  to  which  the  other  defend- 
ant, Henry  W.  Lucy,  contributed  articles  under  the  pseudonym  of 
"Toby,  M.  P."  Sir  John  Robinson  was  a  journalist  who  had  been  at 
one  time  the  editor  and  for  many  years  the  manager  of  the  "Daily 
News,"  until  his  retirement  in  1901.  He  died  in  1903.  The  plaintiff 
had  been  his  private  secretary.  The  alleged  libel  was  in  the  following 
review,  published  in  "Punch" : 

"Mangled  Remains. 

"Extract  from  the  Recess  Diary  of  Toby,  M.  P. 

"Been  reading  "Fifty  Years  of  Fleet  Street,'  just  issued  by  Macmillan.  Pur- 
ports to  be  the  'L,ife  and  Recollections  of  Sir  John  Robinson,'  the  man  who 
made,  and  for  a  quarter  of  a  century  maintained  at  high  level,  the  Daily 
^'ews.  The  story  is  written  by  Mr.  F.  M.  Thomas,  who  has  added  a  new 
terror  to  death.  There  are  biographies  of  sorts  ranging  in  value  with  the 
personality  of  the  subject  and  the  skill  of  the  compiler.  The  former  occasion- 
ally suffers  from  the  incapacity  of  the  latter.  But  at  least  his  individuality 
is  scrupulously  observed.  Like  Don  Jose,  what  he  has  said  he  has  said,  hLs 
observations  and  written  memoranda  not  being  mixed  up  with  what  his 
biographer  thinks  he  himself  thought,  uttered  and  recorded.  Mr.  Thomas 
goes  about  the  biographer's  business  in  fresh  fashion,  complacently  announced 
by  way  of  introduction  to  the  volume.  'I  have  not  thought  it  necessary  or 
desirable,'  he  writes,  'to  indicate  in  all  cases  what  is  his  (Sir  John  Robin- 
son's) and  what  is  my  own.  If  there  is  anj'thing  amusing  or  entertaining 
in  these  pages,  I  am  quite  content  that  my  dear  old  chief  should  have  the 
credit  of  it.  The  dulness  I  take  upon  myself.'  Here  is  generosity!  Here 
is  magnanimity  I  It  is  true  that  in  the  performance  of  his  task  Mr.  Thomas 
occasionally  falls  from  his  high  estate.  More  than  once  he  airily  alludes 
to  'our  diary' — 'our  notes,'  as  if  he  had  prepared  them  in  collaboration  with 
his  chief.  Possibly  conscious  for  a  moment  of  this  indiscretion,  and  revert- 
ing to  a  more  generous  mood,  he,  approaching  a  particular  narrative.  Intro- 
duces it  with  the  remark,  'the  incident  may  be  given  in  the  diarist's  own 
words.'  The  procedure  is  perhaps  not  unusual  with  the  earlier  biographers. 
With  Mr.  Thomas  the  lapse  is  rare.  When  he  does  let  the  hapless  subject 
speak  for  himself,  h^  is  relegated  to  small  type.  For  the  rest  it  is  Mr.  Thom- 
as who  loquitur,  retelling  poor  Robinson's  cherished  stories  as  if  they 
were  his  own,  sometimes  with  heavy  hand  binishing  off  the  bloom.  Even 
in  these  depressing  circumstances  there  is  no  mistaking  Robinson's  sly 
humor,  his  gift  of  graphic  characterization.  The  worst  of  it  is  that,  happen- 
ing in  the  very  same  page  upon  some  banal  remark,  some  pompous  platitude, 
the  alarmed  reader,  recognizing  Mr.  Thomas,  hastily  turns  over  half  a  dozen 
pages,  and  possibly  misses  a  handful  of  the  genuine  ore.  These  are  hard  lines, 
unjust  to  Robinson,  unfair  to  the  public.  It  is  plain  to  see  from  the  few 
unmutilat'ed  extracts  from  Robinson's  manuscript  which  illuminate  the  book, 
that  the  materials  at  hand  for  a  delightfiil  biography  were  abur.dant.  For 
nearly  forty  yeai-s  the  manager  of  the  Daily  News  lived  in  the  very  heart 
of  things.  He  was  behind  most  scenes  of  public  life,  was  more  or  less  in- 
timately acquainted  with  the  principal  personages  figuring  in  it.     His  sym- 


760  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  I 

pattiies  were  bountifully  wide,  his  observation  alert,  his  sense  of  humor  keen. 
He  loved  his  newspaiJer  work  with  almost  passionate  affection.  For  him 
titty  years  of  Fleet  Street  was  worth  a  cycle  of  Cathay.  That  he  habitually 
made  notes  of  what  he  saw  and  heard  with  a  Aiew  to  publication  in  bio- 
graphical form  is  undoubted:  Mr.  Thomas,  impregnable  in  the  chain  armor  of 
complacency,  positively  admits  it.  'Robinson'  he  says,  'did  leave  some  diaries 
^our  diaries — more  or  less  fragmentary,  and  a  number  of  thick,  closely  writ- 
ten volumes  of  jottings  in  his  own  handwriting,  descriptive  of  events  of  which 
he  had  been  an  eye-witness,  and  people  he  had  seen  and  known.'  Where  is 
this  treasure  trove?  Presumably  ix)rtions  the  biographer  was  good  enough  to 
regard  as  worth  adapting  are  filtered  through  the  wordy  pages  of  larger  type. 
Happily  the  material  is  go  good,  its  original  literary  form  so  excellent,  that  even 
this  unparalled  atrocity  cannot  quite  spoil  the  book.  We  who  knew  Robinson 
on  his  throne  on  liouverie  Street  and  at  the  well  known  table  in  the  dining 
room  of  the  Reform  Club,  rich  in  the  recollections  of  William  Black,  Payn, 
and  Sala ;  who  watched  him  enjoying  himself  like  a  boy  at  theatre  first 
nights;  who  recognized  his  rare  capacity  as  a  newspaper  man;  who  knew 
the  kind  heart  hidden  behind  a  studiously  cultured  severity  of  manner  in 
business  relations — we,  perhaps,  jealously  cherish  his  memory,  and  regret 
the  surprising  chance  that  has  made  possible  this  slight  upon  it." 

The  plaintiff  claimed  damages  for  libel  in  respect  of  this  review. 
The  defendants  pleaded  that  the  words  complained  of  were  incapable 
of  a  defamatory  meaning;  and  further,  that  they  were  written  and 
published  as  a  criticism  and  fair  comment  upon  the  plaintiff's  book 
without  any  malice  towards  the  plaintiff,  and  were  a  fair  and  bona 
fide  criticism  upon  the  book  which  was  a  matter  of  public  interest. 

At  the  trial  the  plaintiff's  case  was  first,  that  the  language  of  the 
review  itself  was  such  as  to  furnish  evidence  that  the  writer  was  not 
in  truth  criticizing  the  book,  but  was  maliciously  attacking  the  au- 
thor; and,  secondly,  that  there  was  evidence  outside  the  review  that 
the  defendant  Lucy,  in  writing  the  criticism,  was  actuated  by  malice 
towards  the  plaintiff.  As  extrinsic  evidence  of  malice  the  plaintiff 
relied  upon  the  strained  relations  between  Lucy  and  himself  before  the 
criticism  was  published ;  on  the  fact  that  the  criticism  was  published 
as  a  separate  article  under  the  heading  "Mangled  Remains,"  and  was 
not  included  in  that  part  of  the  journal  usually  devoted  to  the  reviews 
of  books  under  the  heading  "Our  Booking  Office" ;  and  on  the  an- 
swers and  demeanour  of  Lucy  in  the  witness  box  at  the  trial.  At  the 
close  of  the  plaintiff's  case  counsel  for  the  defendants  submitted  that 
there  was  no  case  to  go  to  the  jury,  upon  the  grounds  that  the  article 
was  incapable  of  defamatory  meaning,  and  that  there  was  no  evidence 
that  it  exceeded  the  limits  of  fair  comment.  The  judge  declined  to 
withdraw  the  case  from  the  jury,  who  found  a  verdict  for  the  plaintiff 
with  £300  damages.    The  defendants  appealed.*'^ 

Collins,  M.  r.  *  *  *  'phe  defendants  do  not  complain  of  mis- 
direction other  than  that  involved  in  holding  that  there  was  any  evi- 
dence fit  for  the  consideration  of  a  jury.  They  ask  for  judgment  on 
the  ground  that  there  was  nothing  in  the  article  which  any  reasonable 
jury  could  find  to  fall  outside  the  limits  of  fair  comment,  or  in  the 

87  The  statement  of  the  case  is  abridged,  and  parts  of  the  opinion  are  omit- 
ted. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  761 

alternative  they  ask  for  a  new  trial  on  the  ground  that  the  verdict  was 
against  the   weight   of   evidence.     *     *     * 

I  have  already  said  that  extrinsic  evidence  of  malice,  which  I  have 
attempted  to  summarize,  was  allowed  to  go  to  the  jury.  The  defend- 
ants contended  that  this  evidence  amounted  to  nothing,  that  no  rea- 
sonable jury  could  act  upon  it,  but  they  also  raised  a  contention,  which 
alone,  as  it  seems  to  me,  gives  any  importance  to  this  case.  Their  point 
was  that  if  the  article  itself,  apart  from  the  extrinsic  evidence,  did 
not  raise  a  case  for  the  jury  that  the  bounds  of  fair  comment  had 
been  overstepped,  proof  of  actual  malice  on  the  part  of  the  writer 
could  not  affect  the  question  or  disturb  his  immunity.  This  is  a 
formidable  contention.  It  involves  the  assertion  that  fair  comment 
is  absolute,  not  relative,  and  must  be  measured  by  an  abstract  standard  ; 
that  it  is  a  thing  quite  apart  from  the  opinions  and  motives  of  its  author 
and  his  personal  relations  towards  the  writer  of  the  thing  criticized. 
It  involves  the  position  also  that  an  action  based  on  a  criticism  is 
wholly  outside  the  ordinary  law  of  libel,  of  which  maHce,  express  or 
implied,  has  always  been  considered  to  be  the  gist. 

The  basis  of  this  contention,  such  as  it  is,  appears  to  be  a  miscon- 
ception of  the  effect  of  the  gloss,  if  I  may  so  phrase  it,  first  put  upon 
the  law  of  libel  in  relation  to  fair  comment  in  the  dicta  of  Crompton, 
J.,  and  Blackburn,  J.,  in  Campbell  v.  Spottiswoode,  3  B.  &  S.  769,  at 
pp.  778,  780,  decided  in  1863,  and  subsequently  approved  in  Merivak 
V.  Carson,  20  Q.  B.  D.  275,  decided  in  1887.     *     *     *  ««     In  cases  of 

6  8  "What  is  the  principle  upon  which  the  defence  [of  fair  comment]  is 
founded,  and  what  are  the  limits  of  its  application? 

"As  to  the  first  point  there  are  two  rival  theories.  The  one  is  that  ex- 
pounded by  the  Court  of  Common  Pleas  (Willes,  Byles,  and  Brett,  J.J.)  in 
Henwood  v.  Harrison  (1S72)  L.  R.  7  C.  P.  606.  The  Court  there  says  (at 
p.  622):  'The  principle  upon  which  these  cases  are  founded  is  an  universal 
one,  that  the  public  convenience  is  to  be  preferred  to  private  interests,  and 
that  communications  which  the  interests  of  society  require  to  be  unfettered 
may  freely  be  made  by  persons  acting  honestly  without  actual  malice,  not- 
withstanding that  they  involve  relevant  comments  condemnatory  of  individ- 
uals.' And  the  Court  therefore  came  to  the  conclusion  (at  p.  62.5)  'that  the 
fair  and  honest  discussion  of,  or  comments  upon,  a  matter  of  public  interest 
is  in  point  of  law  privileged,  and  that  it  is  not  the  subject  of  an  action,  un- 
less the  plaintiff  can  establish  malice.'  In  other  words,  the  Court  in  that 
case  held  that  the  defence  of  "fair  comment'  is  merely  a  branch  of  the  defence 
of  'qualitied  privilege'  in  the  ordinary  sense. 

"The  rival  view  was  first  expounded  by  Blackburn  and  Crompton,  JJ.,  in 
Campbell  v.  Spottiswoode  (1863)  .3  B.  &  S.  769,  32  L.  J.  Q.  B.  185,  and  has  since 
received  the  adhesion  of  the  Court  of  Appeal  in  Merivale  v.  Carson  (1SS7) 
20  Q.  B.  D.  27.5.  In  the  first  of  these  cases,  Blackburn.  J.,  puts  the  matter 
thus:  'I  think  it  of  considerable  consequence  to  bear  in  mind  that  the  case 
is  not  one  of  privilege,  properly  so  called,  but  the  question  is  whether  the  ar- 
ticle complained  of  is  a  libel  or  not.'  And  Crompton,  J.,  says:  'The  first 
question  is  libel  or  no  libel,  which  is  for  the  jury;  and  they  have  to  say 
whether  the  writing  complained  of  goes  beyond  fair  comment:'  if  it  does  not 
it  is  no  libel.'     •     *     * 

"What  then  would  be  the  logical  solution  of  the  matter?  That  the  true 
basis  of  the  defence  of  'fair  comment'  is  that  laid  down  in  Henwood  v. 
Harrison,  and  not  that  laid  down  in  (:anipl)ell  v.  Si>ottiswoode  and  Merivale 
v.  Carson.     Both  Blackburn,  J.,  in  the  former  case,  and  Bowen,  L.  J.,  iu  the 


762  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

privilege,  properly  so  called,  nothing  that  falls  outside  the  privilege 
is  protected  by  it,  and  if  defamatory  it  must  be  otherwise  justified. 
The  occasion  being-  privileged,  the  extent  of  the  privilege  may  var>' 
according  to  the  nature  of  the  case  and  the  limits  of  the  right  or  duty 
which  is  the  basis  of  the  privilege.  But  this  is  precisely  the  position 
in  the  case  where  the  right  exercised  is  one  shared  by  the  rest  of  the 
public,  and  not  one  limited  to  an  individual  or  a  class.  The  extent  of 
the  right  has  to  be  ascertained,  and  in  respect  of  any  communication 
which  falls  within  it  the  immunity,  if  it  be  not  absolute,  can  be  dis- 
placed only  by  proof  of  malice.  In  the  case  of  comment  on  literary 
works  the  occasion  is  created  by  the  publication,  and  a  right  then  arises 
to  criticize  honestly,  however  adversely.  No  such  occasion  arises  in 
respect  of  a  private  unpublished  letter.  If  a  writer  were  to  get  hold 
of  a  private  letter  of  a  well  known  author  and  publish  a  damnatory 
article  on  the  author's  literary  style  and  taste,  as  evidenced  by  the 
letter,  it  seems  to  me  that  he  w^ould  have  no  immunity  from  the  ordi- 
nary law  in  respect  of  defamatory  writings.  The  only  difference  then, 
in  the  legal  incidents  of  ordinary  privilege,  limited  to  individuals  on 
the  one  hand  and  the  right  in  the  public  to  criticize  on  the  other,  would 
seem  to  me  that  one  might,  with  somewhat  less  latitude  than  the  other, 
though  not  perhaps,  with  perfect  accuracy,  be  described  as  "priv- 
ilege."    *     *     * 

latter,  distinguish  the  defence  of  'fair  comment'  from  that  of  'privilege,' 
properly  so  called,  by  saying  that  the  latter  is  the  peculiar  right  of  a  par- 
ticular individual  under  particular  conditions,  a  true  privile.gium ;  while  'fair 
comment'  is  the  right  of  everj-  member  of  the  public.  With  the  greatest 
deference  to  the  opinion  of  these  two  great  lawyers,  is  that  distinction  sound? 
It  may  possibly  be  correct  as  regards  what  is  known  as  'absolute  privilege' — 
the  privilege  of  a  Member  of  Parliament,  a  Judge  upon  the  Bench,  and  the 
like.  But  is  not  'qualified  privilege'  the  equal  right  of  all  the  world?  It  is 
the  occasion  which  is  privileged  and  not  the  man.  Every  one  has  an  equal 
right  to  use  defamatory  language  in  giving  the  character  of  a  servant,  in 
making  complaint  of  a  subordinate  to  his  superior,  and  the  like.  It  does 
not  depend  upon  his  position  in  life,  or  upon  his  being  a  member  of  any  par- 
ticular class.  It  is  based  solely  upon  public  utility.  It  is  hard  to  see  any 
logical  distinction  between  the  defence  of  'fair  comment'  and  that  of  'quali- 
fied privilege'  in  the  ordinary  sense.  It  is  to  the  public  advantage  that  public 
matters  and  the  actions  of  public  men  should  be  fully  and  freely  discussed, 
and,  therefore,  although  in  such  discussion  defamatory  language  may  be  used, 
it  is  privileged.  The  'occasion'  which  gives  rise  to  the  'privilege'  is  tbe  dis- 
cussion of  matters  of  public  importance,  and  of  those  alone:  in  which  sense 
the  privilege  is  limited  by  the  'occ^ision'  just  as  any  other  kind  of  'qualified 
privilege.'  The  true  view  would  therefore  seem  to  be  that  the  decision  in 
Henwood  v.  Harrison  is  right — that  'fair  comment'  is  only  a  form  of  "quali- 
fied privilege,'  and  that  proof  of  actual  malice  will  do  away  with  the  pro- 
tection which  would  otherwise  prevail.  But  how?  Surely  not  by  importing 
a  kind  of  defamatory  flavour  into  that  which  would  otherwise  not  be  de- 
famatory, but  on  a  different  principle.  Certain  occasions  justify  the  use  of 
defamatory  words,  but  on  public  grounds  alone.  If  a  man  tries  to  make 
use  of  the  occasion  as  a  'cloke  of  maliciousness,'  he  forfeits  the  special  pro- 
tection which  he  would  otherwise  enjoy,  because  tbe  raison  d'etre  of  his 
defamatory  statement  is  not  a  bona  fide  exercise  of  a  public  right,  but  a  de- 
sire to  gratify  his  private  spite." 

Mr,  Francis  K.  Y.  Radcliffe,  23  Law  Quart.  Rev.  07  (1907). 


Ch.  2)  ABSOLUTE    TORTS   OTHER   THAN   TRESPASSES  763 

If  the  analysis  be  strictly  carried  out  it  will  be  found  that  the  two 
rights,  whatever  name  they  are  called  by,  are  governed  by  precisely 
the  same  rules.  The  only  practical  difference  is,  that  in  an  action 
based  on  a  criticism  of  a  published  work  the  transaction  begins,  by  the 
admission  on  the  part  of  the  plaintiff,  implied  from  the  averment  by 
him  of  publication  of  the  work  criticized,  that  the  comment  came  into 
existence  on  a  protected  occasion.  He  is  placed,  therefore,  in  pre- 
cisely the  same  position  as  he  would  have  been  in  had  he  sued  in 
respect  of  a  defamatory  writing  prima  facie  unprotected  and  therefore 
actionable,  but  had  gone  on  to  aver  facts  which  created  a  privilege 
strictly  so  called.  ®®  Beginning  thus  at  this  stage  in  the  transaction 
he  would  have  accepted  the  onus  of  proving  malice  in  fact.  If  he  had 
veiled  the  fact  that  the  writing  criticized  had  become  matter  of  public 
interest  by  publication  it  would  have  been  prima  facie  libellous,  and 
the  defendant  would  have  had  to  plead  such  a  publication  as  would 
let  in  the  right  to  comment  on  a  matter  of  public  interest  in  order 
to  bring  himself  within  the  protection.     *     *     * 

It  is  of  course  possible  for  a  person  to  have  a  spite  against  another 
and  yet  to  bring  a  perfectly  dispassionate  judgment  to  bear  upon  his 
literary  merits;  but,  given  the  existence  of  malice,  it  must  be  for  the 
jury  to  say  whether  it  has  warped  his  judgment.  Comment  distorted 
by  malice  cannot  in  my  opinion  be  fair  on  the  part  of  the  person  who 
makes  it.  I  am  of  opinion,  therefore,  that  evidence  of  malice  actuating 
the  defendant  was  admissible,  that  the  learned  judge  was  right  in  let- 
ting the  evidence  in  this  case  go  to  the  jury. 

But  I  am  also  of  opinion  on  a  close  examination  of  the  alleged  libel 
that,  apart  from  the  extrinsic  evidence  of  malice,  the  learned  judge 
could  not  have  withdrawn  the  case  from  the  jury.  One  point  made  by 
the  plaintiff  would,  I  think,  of  itself  suffice  to  establish  this  position. 
The  defendant  Lucy  says  in  the  alleged  libel  "it  is  plain  to  see  from 
the  few  unmutilated  extracts  *  *  *  that  the  materials  at  hand 
for  a  delightful  biography  were  abundant."  This  statement  was  de- 
scribed by  the  plaintiff  in  a  letter  to  the  editor  of  "Punch"  as  "simply 
untrue."  A  short  statement  was  thereupon  published  in  the  issue  of 
December  7,  in  which  the  defendant,  while  accepting  the  plaintiff's 
statement  as  to  the  paucity  of  materials,  quotes  a  passage  from  the 
preface  to  the  book  dealing  with  the  existence  of  materials,  and  con- 
cludes thus:  "Toby,  M.  P.,  had  at  the  time  of  writing  no  knowledge 
of  the  subject  beyond  the  definite  statements  quoted  in  the  biographer's 
own  words.  He  regrets  that,  accepting  them  in  their  ordinary  sense, 
he  received  and  conveyed  an  impression  of  Mr.  Thomas's  literary 
methods  which  turns  out  to  have  been  erroneous."  He  is  thus  in 
the  difficulty  of  having  to  admit  a  misstatement  of  fact  in  respect  of 
which,   to  put  it  at  the  lowest,  a  question  must  arise  for  the  jury 

69  Accord :  Henry  v.  Moberly  (189.3)  6  Ind.  App.  490.  3.3  N.  E.  9S1,  where  the 
point,  on  a  question  of  privilege,  is  elaborately  considered. 


7G4  TORTS  THROUGH   ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 

whether  the  passage  he  reHed  upon  justifies  the  statement.  I  think 
also  that  the  learned  judge  could  not  have  properly  held  that  there 
was  no  evidence  fit  for  the  consideration  of  the  jury  as  to  some  of 
the  innuendoes  averring  imputations  of  discreditable  motives.  I  am 
of  opinion,  therefore,  that  we  could  not  direct  judgment  for  the  de- 
fendants without  usurping  the  functions  of  the  jury.  Neither  can  we 
say  that  the  evidence  is  so  slight  as  to  justify  us  in  ordering  a  new 
trial  on  the  ground  that  the  verdict  is  against  the  weight  of  the  evi- 
dence. 

A  point  was  made  by  the  defendants'  counsel  that  the  plaintiff  had 
admitted  that  he  did  not  rely  upon  evidence  of  malice  outside  that 
which  was  to  be  inferred  from  the  article  itself.  Some  thing  to  this 
effect  certainly  appears  in  the  Times  report,  but  it  has  not  found  its 
way  into  the  judge's  note,  and  the  point  of  personal  spite  was  forcibly 
put  by  the  plaintiff''s  counsel  throughout  the  whole  case,  which  the 
judge  refused  to  withdraw  from  the  jury  without  any  limitation  as 
to  any  of  the  evidence  given.  I  think,  therefore,  that  we  should  not 
be  justified  in  treating  this  answer  as  excluding  all  extrinsic  evidence 
of  malice  from  the  discussion.  Libel  or  no  libel,  I  need  hardly  add,  is 
pre-eminently  a  question  for  the  jury  where  there  is  any  evidence  fit 
for  their  consideration.'^" 

Appeal  dismissed. 


VI.  Other  Acts  at  Perii, 

(A)  Keeping  His  Fire 

ANONYMOUS. 
(Court  of  Common  Pleas,  1583.    Cro.  Eliz.  10,  78  Reprint,  276.) 

Snagg  moved  this  case,  and  demanded  the  opinion  of  the  Judges  in 
it.  J.  S.  with  a  gun  at  the  door  of  his  house  shoots  at  a  fowl,  and  by 
this  fireth  his  own  house,  and  the  house  of  his  neighbour;  upon  which 
he  brings  an  action  on  the  case  generally,  and  doth  not  declare  upon  the 
custom  of  the  realm,  as  2  Hen.  4,  viz.  for  negligently  keeping  his 
fire. 

The  question  was,  if  this  action  doth  lie?  And  all  the  Court  held  it 
did,  for  the  injury  is  the  same,  although  this  mischance  was  not  by  a 
common  negligence,  but  by  misadventure:^^  and  if  he  had  counted 
upon  the  custom  of  the  realm,  as  2  Hen.  4,  the  action  had  not  been 
well  brought ;   yet  "consuetudo  regni  est  communis  lex." 

7  0  Cozens-Hardy,  L.  J.,  and  Sir  Gorell  Barnes,  President,  agreed  with  tiie 
judgment  of  the  Master  of  the  Rolls. 

71  "If  my  fire  by  misfortune  burns  the  goods  of  another  man,  he  shall 
have  his  action  on  the  case  against  me.  If  a  hre  Ijreaks  out  suddenly  in  juy 
house,  I  not  knowing  it,  and  it  burns  my  goods  and  also  my  neighbor's  house,. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  765 

TUBERVIL  V.  STA:\IP.  C 

(Court  of  King's  Bench,  1697.     1  Salk.  13,  91  Reprint,  13.) 

Case  on  the  custom  of  the  reahn  quare  neghgenter  custodivit  ignem 
suum  in  clauso  suo,  ita  quod  per  flammas  blada  quer.  in  quodam  clauso 
ipsius  quer.  combusta  fuerunt.  After  verdict  pro  quer.  it  was  object- 
ed, the  custom  extends  only  to  fire  in  his  house,  or  curtilage  (like  goods 
of  guests),  which  are  in  his  power.  Non  alloc.  For  the  lire  in  his 
field  is  his  fire  as  well  as  that  in  his  house ;  he  made  it,  and  must  see  it 
does  no  harm,  and  answer  the  damage  if  it  does.  Every  man  must 
use  his  own  so  as  not  to  hurt  another ;  but  if  a  sudden  storm  had  risen 
which  he  could  not  stop,  it  was  matter  of  evidence,  and  he  should  have 
shewed  it.  And  Holt,  Rokesby,  and  Eyre  against  the  opinion  of  Tur- 
ton,  who  went  upon  the  difference  between  fire  in  an  house  which  is  in 
a  man's  custody  and  power,  and  fire  in  a  field  which  is  not  properly 
so ;  and  it  would  discourage  husbandry,  it  being  usual  for  farmers  to 
burn  stubble,  etc.  But  the  plaintiff  had  judgment  according  to  the 
opinion  of  the  other  three.* 


FAHN  V.  REICHART. 

(iSupreme  Court  of  Wisconsin,  1S59.    8  Wis.  255,  76  Am.  Dec.  237.) 

The  complaint  averred  that  the  defendant  on  the  1st  of  April,  1858, 
carelessly  set  fire  to  a  large  log  pile  on  his  own  lands  and  about  three 
feet  from  the  boundary  of  the  plaintifif's  lands ;  that  the  fire  continued 
to  burn  for  three  days,  when  the  wind  blew  hard,  and  blew  the  sparks 

he  shall  have  his  action  on  the  case  against  me.  So,  if  the  fire  is  caused 
by  a  servant  or  a  guest,  or  any  person  x^'ho  entered  the  house  with  my  con- 
sent. But  otherwise,  if  it  is  caused  by  a  stranger  who  entered  the  house 
against  my  will."     Rolle's  Abr.    Action  on  the  Case,  B.,  tit.  "Fire." 

*  "The  short  name  of  the  action  ('for  negligent  garder  son  feue')  is  a  mis- 
leading one;  it  means  merely  'for  failing  to  keep  in  his  fire,'  and  the  re- 
sponsibility was  absolute."  John  H.  Wigmore,  7  Harv.  Law  Rev.  315,  448 
(1893);  3  Anglo-Am.  Legal  Essays  (1909)  474,  .511.  Compare  Jenks'  Short 
Hist.  Eng.  Law  (1912)  311. 

Ten  years  after  Tubervil  v.  Stamp,  the  Statute  of  6  Anne,  c.  31,  §  6,  pro- 
vided that  for  the  space  of  three  years  no  action  should  be  maintained 
"against  any  person  in  whose  house  or  chamber  any  fire  shall  accidentally  be- 
gin." This  temporary  act  was  declared  in  1711  to  "have  been  found  useful 
and  beneficial"  and  was  then  made  perpetual.  In  1774,  the  exemption  from 
liability  for  accidental  fires  was  extended  to  the  person  J'iij,  whose  house, 
chamber,  stable,  bam,  or  other  building,  or  on  whose  estate  any  fire  shall 
accidentally  begin."     Stat.  14  Geo.  Ill,  c.  78,  §  86. 

For  the  historical  bearings  of  the  doctrine  see  Professor  Wigmore's  article 
on  "Responsibility  for  Tortious  Acts,"  7  Harv.  Law  Rev.  315,  448  (1893) ;  3 
Anglo-American  Legal  Essays,  474,  511. 

For  the  effect  of  the  statutes  of  1711  and  1774  on  the  rule  in  America,  see 
Lansing  v.  Stone  (1862)  37  Barb.  (N.  Y.)  15.  Compare  Meld  v.  New  York 
Central  Ry.  Co.  (1865)  32  N.  Y.  339,  349.— [iid. 


766  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

and  fire  from  the  log  pile,  about  twelve  rods,  to  a  straw  stack  of  the 
plaintiff's,  close  to  the  plaintiif's  barn,  and  so  burnt  the  stack  and  barn 
with  its  contents.  The  answer  denied  the  complaint.  The  verdict  was 
for  the  defendant,  and  the  plaintiff  sued  out  this  writ  of  error.  The 
only  point  complained  of  was  whether  the  instruction  of  the  court  was 
proper  or  not.'^^ 

Cole,  J.  We  do  not  think  that  the  plaintiff  in  error  could  have  been 
prejudiced  by  the  charge  of  the  circuit  court.  For  suppose  the  evi- 
dence had  been  clear  and  incontestible,  that  the  defendant  in  error  by 
himself  or  sen-ants,  had  set  fire  to  the  logs  and  brush  upon  his  own 
land,  and  that  the  fire  had  been  communicated  to  the  plaintiff's  barn, 
and  destroyed  it ;  still  the  action  might  not  be  sustained.  A  man  may 
burn  logs  and  brush  upon  his  own  land.  The  act  is  not  unlawful  or 
necessarily  attended  with  injurious  consequences  to  his  neighbors.  So 
the  jury  would  not  only  have  to  find  that  the  defendant  caused  the  fire 
to  be  set  there,  but  also  that  there  was  negligence  or  carelessness  in 
putting  the  fire  at  that  place  at  the  time.  An  action  will  not  lie  for 
any  injury  resulting  from  doing  a  lawful  act  in  a  lawful  manner.  "A 
possible  damage  to  another  in  the  cautious  and  prudent  exercise  of  a 
lawful  right  is  not  to  be  regarded,  and  if  a  loss  is  the  consequence,  it 
is  damnum  absque  injuria."  Clark  v.  Foot,  8  Johns.  (N.  Y.)  421 ; 
Panton  v.  Holland,  17  Johns.  (N.  Y.)  92,  8  Am.  Dec.  369;  Thurston 
V.  Hancock,  12  Mass.  220,  7  Am.  Dec.  57. 

The  defendant  could  not  be  held  answerable  in  damages  for  the 
reasonable  and  proper  exercise  of  a  lawful  right,  attended  by  a  cau- 
tious regard  for  the  rights  of  others,  when  there  is  no  negligence,  un- 
skillfulness  or  malice  in  the  act  done.  The  charge  seems  to  be  predi- 
cated upon  the  idea  that  the  defendant  would  be  liable  if  he  set  on  fire 
the  brush  and  log  heaps  upon  his  own  land,  and  the  plaintiff's  barn 
was  burned  from  the  sparks  and  cinders  from  this  fire  thus  existing. 
But  if  the  defendant  was  not  guilty  of  negligence  in  the  care  and  man- 
agement of  the  fire  set  by  him,  he  would  not  be  liable.     *     *     * 

Judgment  affirmed.''^ 

7  2  The  statement  of  the  case  is  abridged  and  part  of  the  opinion  is  omit- 
ted. 

73  Accord:  Clark  v.  Foot  (1811)  8  Johns.  (N.  Y.)  421;  Stuart  v.  Hawley 
(1856)  22  Barb.  (X.  Y.)  619.  And  see  Professor  Burdicli's  remark:  "In  this 
country,  the  common-law  liability  for  fire  has  never  been  enforced.  A  person 
does  not  start  a  fire  on  his  land  at  his  peril.  If  it  spreads  beyond  his  prem- 
ises and  harms  others,  his  liability  for  the  harm  must  be  .i,'rounded  on  his 
neglijrence."  Burdick  on  Torts  (3d  Ed.)  509.  See  also  Mr.  Justice  Gray's 
resume  of  the  doctrine  in  St  Louis  &  San  Francisco  Ry.  v.  Mathews  (1896) 
165  L.  S.  1,  5,  6,  9,  10,  17  Sup.  Ct.  243,  41  L.  Ed.  611. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  7G7 

SECKERSON  v.  SINCLAIR. 
(Supreme  Court  of  North  Dakota,  1913.    24  N.  D.  625,  140  N.  W.  239.) 

Appeal  from  a  judgment  for  $1,528.73  and  interest  thereon  from 
the  time  of  the  injury,  in  all  $1,664,  for  damages  occasioned  by  a  fire 
alleged  in  one  count  of  the  complaint  to  have  been  negligently  set  by 
the  defendant,  and  in  another  to  have  been  negligently  allowed  by  him 
to  spread  from  his  land  to  that  of  the  plaintiff. 

Bruck,  J.  *  *  *  ^*  The  proposed  instruction  was  also  errone- 
ous in  that  in  it  the  court  was  requested  to  instruct  the  jury  that  the 
plaintiffs  could  not  recover — 

"unless  the  juiy  found  that  the  fire  was  set  by  the  defendant  to  the  stubble, 
and  negligently  permitted  to  escape  from  the  stubble  to  the  prairie,  and 
thence  to  and  over  and  upon  the  lands  of  the  plaintiffs,  or  any  of  them,  and 
that  it  destroyed  the  alleged  proi)erty." 

This  proposed  instruction  told  the  jury  that,  if  the  defendant  set 
the  fire,  he  was  not  liable  unless  he  negligently  permitted  it  to  escape. 
This  is  not  the  law.  Setting  fire  to  prairie  land  in  the  month  of  March 
renders  the  one  who  does  so  absolutely  liable.  It  is  not  even  necessary, 
indeed,  that  it  should  have  been  done  with  any  negligent  or  malicious 
purpose.  Section  2061,  R.  C.  1905  ;  19  Cyc.  981 ;  Thoburn  v.  Camp- 
bell, 80  Iowa,  338,  45  N.  W.  769 ;  Conn  v.  May,  36  Iowa,  241 ;  Dun- 
leavy  v.  Stockwell,  45  111.  App.  230.  We  know  that  counsel  contends 
that  section  2061  does  not  specify  straw  stacks,  but  it  does  specify 
grass  or  stubble  lands.  To  say  that  setting  fire  to  a  straw  stack,  which 
is  in  the  midst  of  stubble,  and,  in  turn,  sets  fire  thereto,  is  not  setting 
fire  to  the  stubble  itself  is  an  absurdity.  Kelley  v.  Anderson,  15  S.  D. 
107,  87  N.  W.  579."     *     *    * 

Judgment  for  plaintiff,  if  interest  remitted  from  date  of  injury  to 
the  verdict.'^ ^ 

74  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point 
7  5  Compare:  St.  Louis  &  San  Francisco  Ry.  v.  Mathews  (1897)  165  U.  S. 
1,  22,  17  Sup.  Ct.  243,  251  (41  L.  Ed.  611).  The  question  was  whether  a  statute 
which  made  a  railway  company  absolutely  liable  for  damages  by  lire  com- 
municated by  its  locomotives  to  the  property  of  others  was  constitutional. 
Mr.  Justice  Gray,  delivering  the  opinion,  remarked: 

"The  learning  and  diligence  of  counsel  have  failed  to  discover  an  instance 
in  which  a  statute,  making  railroad  companies  absolutely  liable  for  damages 
by  tire  communicated  from  their  locomotive  engines  to  the  property  of  others, 
has  been  adjudged  to  be  unconstitutional,  as  to  companies  incorporated  be- 
fore or  since  its  enactment.  This  review  of  the  authorities  leads  to  the  fol- 
lowing conclusions:  First.  The  law  of  England,  fi-om  the  earliest  times, 
held  any  one  lighting  a  fire  upon  his  own  premises  to  the  strictest  accounta- 
bility for  damages  caused  by  its  spreading  to  the  property  of  others.  Second. 
The  earliest  statute  which  declared  railroad  corporations  to  be  absolutely 
responsible,  independently  of  negligence,  for  damages  by  fire  communicated 
from  their  locomotive  engines  to  proi^erty  of  others,  was  passed  in  Massa- 
chusetts in  1840,  soon  after  such  engines  had  become  common.  Third.  In 
England,  at  the  time  of  the  passage  of  that  statute,  it  was  undetermined 
whether  a  railroad  corporation,  without  negligence,  was  Liable  to  a  civil  ac- 


768  TORTS  THROUGH  ACTS  OF  ABSOLUTE  LIABILITY  (Part  1 

(B)  Liability  for  Animals 

NOYES  V.  COLBY. 
(Supreme  Court  of  Judicature  of  New  Hampshire,  1855.    30  N.  H.  143.) 

Trespass  for  breaking  and  entering  the  plaintiff's  close.  Plea,  the 
general  issue. 

The  plaintiff  proved  that  towards  night,  on  June  27,  the  defendant's 
cow  was  grazing  on  the  plaintiff's  land.     The  defendant  oft'ered  to 

tion,  as  at  common  law,  for  damages  to  property  of  others  by  fire  from  its 
locomotive  engines ;  and  the  result  that  it  was  not  so  liable  was  subsequent- 
ly reached  after  some  conflict  of  judicial  opinion,  and  only  when  the  acts 
of  Parliament  had  expressly  authorized  the  corporation  to  use  locomotive 
engines  upon  its  railroad,  and  had  not  declared  it  to  be  resiwnsible  for  such 
damages.  Fourth.  From  the  time  of  the  passage  of  the  ]Massachusetts  stat- 
ute of  1840  to  the  present  time,  a  period  of  more  than  half  a  century,  the 
validity  of  that  and  similar  statutes  has  been  constantly  upheld  in  the  courts 
of  every  State  of  the  Union  in  which  the  question  has  arisen. 

"In  this  court,  the  constitutionality  of  such  a  statute  has  never  been  directly 
drawn  into  judgment.  But  it  appears  to  have  been  assumed  in  Grand  Trunk 
Hallway  v.  Richardson  (1875)  91  U.  S.  454,  472,  23  L.  Ed.  ^,56,  and  it  rests  upon 
principles  often  affirmed  here.  *  *  *  The  motives  which  have  induced,  and  the 
reasons  which  justify,  the  legislation  now  in  question,  may  be  summed  up 
thus:  Fire,  while  necessary  for  many  uses  of  civilized  man,  is  a  dangerous, 
volatile  and  destructive  element,  which  often  escapes  in  the  form  of  sparks, 
capable  of  being  wafted  afar  through  the  air,  and  of  destroying  any  combustible 
property  on  which  they  fall ;  and  which,  when  it  has  once  gained  headway, 
can  hardly  be  arrested  or  controlled.  Railroad  corporations,  in  order  the 
better  to  carry  out  the  public  object  of  their  creation,  the  sure  and  prompt 
transportation  of  passengers  and  goods,  have  been  authorized  by  statute  to 
use  locomotive  engines  propelled  by  steam  generated  by  fires  lighted  upon 
those  engines.  It  is  within  the  authority  of  the  T^egislature  to  make  adequate 
provision  for  protecting  the  property  of  others  against  loss  or  injury  by  sparks 
from  such  engines.  The  right  of  the  citizen  not  to  have  his  property  burned 
without  compensation  is  no  less  to  be  regarded  than  the  right  of  the  cor- 
poration to  set  it  on  fire.  To  require  the  utmost  care  and  diligence  of  the 
railroad  corporations  in  taking  precautions  against  the  escape  of  fire  from 
their  engines  might  not  afford  sullicient  protection  to  the  owners  of  property 
In  the  neighborhood  of  the  railroads.  When  both  parties  are  equally  faultless, 
the  Legislature  may  proi>erly  consider  it  to  be  just  that  the  duty  of  insuring 
private  property  against  loss  or  injury  caused  by  the  use  of  dangerous  in- 
struments should  rest  iiiwn  the  railroad  company,  which  employs  the  instru- 
ments and  creates  the  peril  for  its  own  profit,  rather  than  upon  the  owner  of 
the  property,  who  has  no  control  over  or  interest  in  those  instruments.  The 
very  statute  now  in  question,  which  makes  tlie  railroad  company  liable  to 
damages  for  property  so  destroyed,  gives  it,  for  its  protection  against  such 
damages,  an  insural)le  interest  in  the  property  in  danger  of  destruction,  and 
the  right  to  obtain  insurance  thereon  in  its  own  behalf ;  and  it  may  obtain  in- 
surance upon  all  such  property  generally,  without  specifying  any  particular 
prui>erty.  Eastern  Railroad  v.  Relief  Ins.  Co.  (18(J8)  98  Mass.  420.  The  stat- 
ute is  not  a  penal  one,  imposing  punishment  for  a  violation  of  law;  but  it 
is  purely  remedial,  making  the  party,  doing  a  lawful  act  for  its  own  profit, 
liable  in  damages  to  the  innocent  party  injured  thereby,  and  giving  to  that 
party  the  whole  damages,  measured  by  the  injurv  suffered.  Grand  Trunk 
Railway  v.  Richardson  (1875)  91  U.  S.  454,  472, "23  L.  Ed.  356;  Huntington 
V.  At  (rill  (1892)  146  U.  S.  657,  13  Sup.  Ct.  224,  36  L.  Ed.  1123.  The  statute 
is  a  constitutional  and  valid  exercise  of  the  legislative  power  of  the  State, 
and  applies  to  all  railroad  corporations  alike." 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  7G9 

prove  that  on  June  27  he  pastured  this  cow  in  a  certain  pasture,  and 
that  one  Heath  then  pastured  his  cow  in  the  same  pasture;  that  on 
the  evening  in  question,  when  Heath  drove  his  cow  home,  he  let  the 
defendant's  cow  also  out  of  pasture ;  that  he  did  this  without  any  au- 
thority, or  the  defendant's  knowledge  or  assent ;  and  that  Heath  drove 
the  cow  some  distance  from  the  pasture  to  a  cross-roads,  about  2(X) 
feet  from  the  plaintiff's  land,  when  she  strayed  along  the  road  and 
into  the  plaintiff's  land,  which  was  unfenced. 

On  these  facts,  the  defendant  contended  that  he  was  not  a  trespass- 
er merely  because  he  owned  the  cow ;  that  he  had  done  no  wrongful 
act ;  that  Heath's  act,  being  without  the  plaintiff's  knowledge  or  as- 
sent, and  without  his  authority,  could  not  make  him  liable  in  trespass ; 
that  if  there  was  any  trespass,  the  action  should  have  been  against 
Heath. 

There  was  no  dispute  as  to  the  facts.  The  court  ruled  that  the  action 
could  not  be  maintained,  and  a  verdict  was  taken  for  the  defendant.'^ ^ 

Woods,  C.  J.  "A  man  is  answerable  for  not  only  his  own  trespass, 
but  that  of  his  cattle  also ;  for  if  by  his  negligent  keeping  they  stray 
upon  the  land  of  another  (and  much  more  if  he  permits  or  drives  them 
on),  and  they  there  tread  down  his  neighbor's  herbage,  and  spoil  his 
corn  or  his  trees,  this  is  a  trespass  for  which  the  owner  must  answer 
in  damages."  3  Black.  Com-.  211.  Such  is  the  law  as  stated  in  the 
words  of  the  author  of  the  Commentaries,  which  are  themselves  very 
high  authority  on  such  subjects,  and  such  has  been  the  uniform  prac- 
tice and  understanding  of  the  law  in  all  times,  so  far  as  the  books 
show,  and  it  is  therefore  too  late  to  inquire  whether  the  remedy  by 
an  action  of  trespass  is  founded  upon  the  strictest  logical  propriety,^ ^ 
where  the  cause  of  the  damage  is  the  negligence,  and  not  the  wilful 
act  of  the  owner  of  the  mischievous  beasts. 

It  is  hardly  necessary  to  remark,  but  for  the  course  of  the  defend- 
ant's argument,  that  the  proposition  quoted  from  Blackstone  relates  to 
the  case  in  which  the  beasts  "stray  upon  the  land  of  another,"  and 
not  to  the  case  in  which  they  are  driven  upon  it  by  a  stranger ;  for 
then  the  stranger  is  the  author  of  the  wrong,  and  the  horse  that  he 
rides,  or  drives,  is  the  mere  passive  instrument  in  his  hands,  and  the 
owner  of  it,  unless  he  have  lent  it  for  the  purpose  of  the  wrong,  is  as 
wholly  guiltless  as  any  other  person.  For  in  that  case,  the  beast  does 
not  by  the  owner's  negligent  keeping  stray  upon  the  land  of  his  neigh- 
bors. 

It  is  substantially  upon  this  ground  that  Tewksbury  v.  Bucklin,  7 
N.  H.  518,  was  decided;  in  which  it  was  held  that  a  party  having  the 
custody  of  the  cattle  was  answerable  for  the  trespass  which  they  com- 
mitted by  straying  upon  another's  inclosure. 

76  The  statement  of  the  case  is  slightly  abridged. 

77  See  Salrnond  on  Torts  (2d  Ed.)  164,  note  13;   Id.  197,  note  10. 

Hepb  .  TOBTS — 19 


770  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

Tiie  case  finds  that  the  cow  "strayed  along  the  road,"  and  commit- 
ted the  act  complained  of.  It  would  not  be  just  to  hold  the  party  to 
the  strict  meaning  of  a  single  word,  if  it  appeared  by  the  context  to 
have  been  used  inaccurately ;  but  it  appears  distinctly  that  the  animal, 
although  driven  by  Heath  some  distance  from  the  pasture  in  the  direc- 
tion of  the  locus  in  quo,  was  not  driven  upon  it  so  as  to  be  in  his  hands- 
a  mere  instrument  for  committing  a  trespass.  Heath's  trespass  was 
upon  the  chattel  of  the  defendant,  but  not  upon  the  soil  of  the  plain- 
tilt.  He  abandoned  the  cow,  and  she  being  no  longer  in  his  custody, 
"strayed,"  and  involved  the  owner  in  the  consequences  ordinarily  inci- 
dent to  permitting  beasts  to  stray  into  the  inclosures  of  others. 

When  Heath  abandoned  the  cow,  she  was  about  twelve  rods  from 
the  lands  of  the  plaintiff.  From  that  period  she  was  no  longer  under 
the  control  of  Heath,  but  was  again  in  the  legal  possession  of  the  de- 
fendant, and  under  his  general  custody  and  control ;  and  like  other 
owners  having  the  care  and  custody  of  their  beasts  at  the  time,  he  is 
answerable  in  trespass  for  her  act  in  straying  upon  the  close  in  ques- 
tion, and  grazing  there.     *     *     *  ^* 


o  BROWN,  Esq.,  v.  GILES. 

(At  Nisi  Prius,  1823.     1  Car.  &  P.  118,  28  R.  R.  769.) 

This  was  an  action  against  the  defendant,  for  breaking  the  plaintiff's 
close  with  dogs,  &c.,  and  trampling  down  his  grass  in  a  certain  close, 
called  Bryant's  close,  in  the  parish  of  A.,  on  divers  days.  The  defend- 
ant pleaded  the  general  issue. 

The  usual  notice  not  to  trespass  was  proved ;  and  a  witness  proved, 
that,  after  the  notice,  he  saw  the  defendant  walking  down  the  turnpike 
road,  and  his  dog  jumped  into  the  field,  called  Bryant's  close. 

Park,  J.,  was  decidedly  of  opinion,  that  the  dog  jumping  into  the 
field,  without  the  consent  of  its  master,  not  only  was  not  a  wilful  tres- 
pass, but  was  no  trespass  at  all,  on  which  an  action  could  be  main- 
tained ;   he  should  therefore  nonsuit  the  plaintiff. 


0  MASON  V.  KEELING. 

(Court  of  King's  Bench,  1699.     12  Mod.  332,  88  Reprint,  13.59.) 

Action  on  the  case ;  in  which  the  plaintiff  declared  that  on  the  twen- 
tieth of  June,  in  the  eleventh  of  the  King,  the  defendant  quendam 
canem  molossum  valde  ferocem  did  keep,  and  let  him  go  loose  unmuz- 
zled per  publica  compita,  so  that  pro  defectu  curse  of  the  defendant 
the  plaintiff  was  bit  and  worried  by  the  said  dog,  as  he  was  peaceably 

7  8  Part  of  the  opinion  is  omitted. 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  771 

going  about  his  business  in  such  a  street.  There  was  another  count, 
in  which  it  was  laid  that  the  defendant  knew  the  dog  ad  inordend. 
assuet.  To  the  first  count  there  was  a  demurrer,  and  to  the  second 
not  guilty. 

And  it  was  strongly  insisted,  that  the  laying  it  to  be  canem  valde 
ferocem,  and  suffered  to  go  about  the  streets  unmuzzled,  and  pro  de- 
fecto  curse,  supplied  the  want  of  sciens,  &c.,  for  it  was  said  to  be  part 
of  the  excellency  of  the  law  of  England,  that  it  leaves  no  man  with- 
out a  remedy,  that  has  suffered  a  wrong  through  the  fault  of  an- 
other.'^^     *     *     * 

Gould,  J.  No  doubt  but  in  the  case  of  sheep  there  ought  to  be  a 
sciens,  because  that  is  an  accidental  quality,  and  not  in  the  nature  of 
a  dog.  And  as  to  property  of  a  dog,  the  books  distinguish ;  for  a  man 
has  a  property  in  a  dog  that  is  a  mastiff  or  spaniel,  for  the  one  is  for 
the  guard  of  his  house,  the  other  for  his  pleasure;  but  this  here  is  a 
mongrel,  and  laid  to  be  valde  ferocem,  and  that  must  be  an  innate 
fierceness,  and  not  accidental ;  and  if  a  dog  be  assuet.  to  bite  cows 
and  the  master  know  it,  that  will  not  be  sufficient  knowledge  tc  make 
him  liable  for  his  biting  sheep.  Besides,  this  case  is  distinguishable 
in  respect  of  the  place,  for  the  law  takes  notice  of  highway,  and  is  a 
security  for  passengers ;  and  it  would  be  dangerous  to  keep  such  dogs 
near  the  highway,  where  all  sorts  of  people  pass  at  all  hours;  and  to 
maintain  this  issue,  they  must  give  a  natural  fierceness  in  evidence. 

Holt,  C.  J.  If  it  had  been  said,  that  the  defendant  knew  the  dog 
to  be  ferox,  I  should  think  it  enough.  The  difference  is  between  things 
in  which  the  party  has  a  valuable  property,  for  he  shall  answer  for  all 
damages  done  by  them;  but  of  things  in  which  he  has  no  valuable 
property,  if  they  are  such  as  are  naturally  mischievous  in  their  kind, 
he  shall  answer  for  hurt  done  by  them  without  any  notice ;  but  if  they 
are  of  a  tame  nature,  there  must  be  notice  of  the  ill  quality ;  and  the 
law  takes  notice  that  a  dog  is  not  of  a  fierce  nature,  but  rather  the 
contrary ;  and  the  presumption  is  against  the  plaintiff ;  for  can  it  be 
imagined  a  man  would  keep  a  fierce  dog  in  his  family  wittingly?  If 
any  beast  in  which  I  have  a  valuable  property  do  danmge  in  another's 
soil,  in  treading  his  grass,  trespass  will  lie  for  it ;  but  if  my  dog  go 
into  another  man's  soil,  no  action  will  lie.  See  the  case  of  IMillan  v. 
Hawtree,  1  Jones,  131,  that  scienter  is  the  git  of  the  action;  and  so 
is  1  Cro.,  where  it  was  doubted  whether  the  scienter  should  go  to  the 
keeping  or  quality;  nor  does  it  appear  here  but  it  was  an  accidental 
fierceness,  or  suppose  it  were  an  innate  one  to  this  dog  particularly ; 
and  it  had  been  given  to  the  owner  but  an  hour  before,  shall  he  take 
notice  of  all  the  qualities  of  his  dog  at  his  peril,  or  shall  he  have  his 
action  against  the  giver  for  bestowing  him  a  naughty  dog?  In  case  a 
dog  bites  pigs,  which  almost  all  dogs  will  do,  a  scienter  is  necessary. 
1  Cro.  255.    And  I  do  not  doubt  but  if  it  be  generally  laid  that  a  dog 

79  A  large  part  of  tlie  argument  is  omitted. 


772  TORTS  THROUGH   ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

was  used  to  bite  animalia,  and  the  defendant  knew  of  it,  it  will  be 
enough  to  charge  him  for  biting  of  sheep,  &c. ;  and  by  animalia  shall 
not  be  intended  frogs  or  mice,  but  such  in  which  the  plaintiff  has  prop- 
erty. 

And  judgment  was  given  for  the  defendant  by  HoLT,  Chief  Justice, 
and  TuRTON,  Justice;   Gould,  Justice,  mutante  opinionem  suam,'"' 


o  MAY  et  ux.  V.  BURDETT. 

(Court  of  Queen's  Bench,  1846.     9  Q.  B.  101,  115  Reprint,  1213.) 

Lord  Denman,  C.  J.,  now  delivered  the  judgment  of  the  Court. ®^ 
This  was  a  motion  to  arrest  the  judgment  in  an  action  on  the  case 
for  keeping  a  monkey  which  the  defendant  knew  to  be  accustomed  to 
bite  people,  and  which  bit  the  female  plaintiff.  The  declaration  stated 
that  the  defendant  wrongfully  kept  a  monkey,  w^ell  knowing  that  it  was 
of  a  mischievous  and  ferocious  nature  and  used  and  accustomed  to 
attack  and  bite  mankind,  and  that  it  was  dangerous  to  allow  it  to  be  at 
large;  and  that  the  monkey,  whilst  the  defendant  kept  the  same  as 
aforesaid,  did  attack,  bite,  and  injure  the  female  plaintiff,  where- 
by, &c. 

It  w^as  objected  on  the  part  of  the  defendant  that  the  declaration  was 
bad  for  not  alleging  negligence  or  some  default  of  the  defendant  in  not 
properly  or  securely  keeping  the  animal ;  and  it  was  said  that,  con- 
sistently with  this  declaration,  the  monkey  might  have  been  kept  with 
due  and  proper  caution,  and  that  the  injury  might  have  been  entirely 
occasioned  by  the  carelessness  and  want  of  caution  of  the  plaintiff 
herself. 

80  In  the  report  of  this  case  in  1  Ld.  Raym.  606,  608,  it  is  stated  that  the 
case  was  adjourned,  and  that  afterwards  the  parties  agreed,  "and  therefore 
no  judgment  was  given." 

On  opinion  of  Holt,  C.  J.,  as  reported  in  1  Ld.  Eaym.  608,  see  the  com- 
ment of  Willes,  J.,  in  Cox  v.  Burbidge  (18G3)  13  C.  B.  N.  S.  430,  440.  And 
see  2  Cyc.  370,  371,  note  84. 

81  The  elaborate  arguments  of  counsel  are  omitted.  The  declaration  stated 
that  the  defendant  "before  and  at  the  time  of  the  damage  aud  injury  here- 
inafter mentioned  to  the  said  Sophia  the  wife  of  the  said  Stephen  aiay,  wrong- 
fully and  injuriously  kept  a  certain  monliey,  he  the  defendant  well  know- 
ing that  the  said  monkey  was  of  a  mischievous  and  ferocious  nature  and  was 
used  and  accustomed  to  attack  and  bite  mankind,  and  that  it  was  dangerous 
and  improper  to  allow  the  said  monkey  to  be  at  large  and  uuconfined:  which 
said  monkey,  whilst  the  defendant  kept  the  same  as  aforesaid,  heretofore 
and  before  the  commencement  of  this  suit,  to  wit  on  the  2nd  of  September 
1844,  did  attack,  bite,  wound,  lacerate  and  injure  the  said  Sophia,  then  and 
still  being  the  wife  of  said  Stephen  iNIay,  whereby  the  said  Sophia  became 
and  was  greatly  terrihed  and  alarmed,  and  became  and  was  sick,  sore,  lame 
and  disordered,  and  so  remained  and  continued  for  a  long  time,  to  wit  from 
the  day  and  year  last  aforesaid  to  the  time  of  the  commencement  of  this 
suit ;  whereby,  and  in  conseipience  of  the  alarm  and  fright  occasinnetl  by 
the  said  monkey  so  attacking,  biting,  wounding,  lac-erating  and  injuring  her 
as  aforesaid,  the  said  Sophia  has  lieen  greatly  injured  in  her  health,"  etc. 
This  case  was  tried  on  the  issue  raised  by  a  plea  of  not  guilty. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  773 

A  great  many  cases  and  precedents  were  cited  upon  the  argument; 
and  the  conclusion  to  be  drawn  from  them  appears  to  us  to  be  that  the 
declaration  is  good  upon  the  face  of  it;  and  that  whoever  keeps  an 
animal  accustomed  to  attack  and  bite  mankind,  with  knowledge  that  it 
is  so  accustomed,  is  prima  facie  liable  in  an  action  on  the  case  at  the 
suit  of  any  person  attacked  and  injured  by  the  animal,  without  any 
averment  of  negligence  or  default  in  the  securing  or  taking  care  of  it. 
The  gist  of  the  action  is  the  keeping  the  animal  after  knowledge  of  its 
mischievous  propensities. 

The  precedents,  both  ancient  and  modern,  with  scarcely  an  excep- 
tion, merely  state  the  ferocity  of  the  animal  and  the  knowledge  of  the 
defendant,  without  any  allegation  of  negligence  or  want  of  care.  A 
great  many  were  referred  to  upon  the  argument,  commencing  with  the 
Register  and  ending  with  Thomas  v.  IMorgan,  2  C.  M.  &  R.  496,  5 
Tyr.  1085 ;  and  all  in  the  same  form,  or  nearly  so.  In  the  Register, 
110,  111,  two  precedents  of  writs  are  given,  one  for  keeping  a  dog 
accustomed  to  bite  sheep,  and  the  other  for  keeping  a  boar  accustomed 
to  attack  and  wound  other  animals.  The  cause  of  action,  as  stated  in 
both  these  precedents,  is  the  propensity  of  the  animals,  the  knowledge 
of  the  defendant,  and  the  injury  to  the  plaintiff;  but  there  is  no  allega- 
tion of  negligence  or  want  of  care.  In  the  case  of  Mason  v.  Keeling, 
1  Ld.  Ray.  [606],  and  12  Mod.  [332],  much  relied  upon  on  the  part 
of  the  defendant,  want  of  due  care  was  alleged,  but  the  scienter  was 
omitted;  and  the  question  was,  not  whether  the  declaration  would  be 
good  without  the  allegation  of  want  of  care,  but  whether  it  was  good 
without  the  allegation  of  knowledge,  which  it  was  held  that  it  was  not. 
No  case  was  cited  in  which  it  had  been  decided  that  a  declaration  stat- 
ing the  ferocity  of  the  animal  and  the  knowledge  of  the  defendant  was 
bad  for  not  averring  negligence  also ;  but  various  dicta  in  the  books 
were  cited  to  show  that  this  is  an  action  founded  on  negligence,  and 
therefore  not  maintainable  unless  some  negligence  or  want  of  care  is 
alleged. 

In  Comyns'  Digest,  tit.  "Action  upon  the  Case  for  Negligence"  (A  5), 
it  is  said  that  "an  action  upon  the  case  lies  for  a  neglect  in  taking  care 
of  his  cattle,  dog,  &c ;"  and  passages  were  cited  from  the  older  autlior- 
ities,  and  also  from  some  cases  at  nisi  prius,  in  which  expressions  were 
used  showing  that,  if  persons  suffered  animals  to  go  at  large,  knowing 
them  to  be  disposed  to  do  mischief,  they  were  liable  in  case  any  mis- 
chief actually  was  done;  and  it  was  attempted  to  be  inferred  from  this 
that  the  liability  only  attached  in  case  they  were  suffered  to  go  at  large 
or  to  be  otherwise  ill  secured.  But  the  conclusion  to  be  drawn  from 
an  examination  of  all  the  authorities  appears  to  us  to  be  this :  that  a 
person  keeping  a  mischievous  animal  with  knowledge  of  its  propensi- 
ties is  bound  to  keep  it  secure  at  his  peril,  and  that  if  it  does  mischief, 
negligence  is  presumed,  without  express  averment.  The  precedents  as 
well  as  the  authorities  fully  warrant  this  conclusion.     The  negligence 


774  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

is  in  keeping  such  an  animal  after  notice.  The  case  of  Smith  v.  Pelah, 
2  Stra.  1264,  and  a  passage  in  1  Hale's  Pleas  of  the  Crown,  430,*- 
put  the  liability  on  the  true  ground.  It  may  be  that  if  the  injury  was 
solely  occasioned  by  the  wilfulness  of  the  plaintiff  after  warning,  that 
may  be  a  ground  of  defence,  by  plea  in  confession  and  avoidance ;  but 
it  is  unnecessary  to  give  any  opinion  as  to  this ;  for  we  think  that  the 
declaration  is  good  upon  the  face  of  it,  and  shows  a  prima  facie  lia- 
bility in  the  defendant. 

It  was  said,  indeed,  further,  on  the  part  of  the  defendant,  that,  the 
monkey  being  an  animal  ferae  naturae,  he  would  not  be  answerable  for 
injuries  committed  by  it  if  it  escaped  and  went  at  large  without  any 
default  on  the  part  of  the  defendant,  during  the  time  it  had  so  escaped 
and  was  at  large,  because  at  that  time  it  would  not  be  in  his  keeping 
nor  under  his  control;  but  we  cannot  allow  any  weight  to  this  objec- 
tion; for,  in  the  first  place,  there  is  no  statement  in  the  declaration 
that  the  monkey  had  escaped,  and  it  is  expressly  averred  that  the  in- 
jury occurred  whilst  the  defendant  kept  it:  w^e  are  besides  of  opinion, 
as  already  stated,  that  the  defendant,  if  he  would  keep  it,  was  bound  to 
keep  it  secure  at  all  events. 

The  rule  [to  show  cause  why  judgment  on  a  verdict  for  the  plaintiff 
with  £50  damages  should  not  be  arrested]  will  therefore  be  discharged. 


FILBURN  v.  PEOPLE'S  PALACE  &  AQUARIUM  CO.,  Limited. 

(In  the  Court  of  Appeal,  1890.    25  Q.  B.  Div.  258.) 

The  action  was  brought  to  recover  damages  for  injuries  sustained 
by  the  plaintiff  by  his  being  attacked  by  an  elephant,  which  was  the 
property  of  the  defendants,  and  was  being  exhibited  by  them.  The 
learned  judge  left  three  questions  to  the  jury:  whether  the  elephant 
was  an  animal  dangerous  to  man ;  whether  the  defendant  knew  the  el- 
ephant to  be  dangerous;  and  whether  the  plaintiff  brought  the  attack 

82  After  stating  that  "if  a  man  have  a  beast,  as  a  bull,  cow,  horse,  or  dog, 
used  to  hurt  pe<:)ple,  if  the  owner  know  not  his  quality,  he  is  not  punishable," 
etc.  Hale  adds  (citing  authorities)  that  "these  things  seem  to  be  agreeable 
to  law:  (1)  If  the  owner  have  notice  of  the  quality  of  his  beast,  and  it  doth 
any  body  hurt,  he  is  chargeable  with  an  action  for  it.  (2)  Though  he  have 
no'particular  notice,  that  he  did  any  such  thing  before,  yet  if  it  be  a  beast 
that  is  ferae  naturue,  as  a  lion,  a  bear,  a  wolf,  yea  an  ape  or  monkey,  if  he 
get  loose  and  do  harm  to  any  person,  the  owner  is  liable  to  an  action  for 
the  damage,  and  so  I  knew  it  adjudged  in  Andrew  Baker's  case,  whose  child 
was  bit  by  a  monkey,  that  broke  his  chain  and  got  loose.  (3)  And  therefore 
in  case  of  such  a  wild  beast,  or  in  case  of  a  bull  or  cow,  that  doth  damage, 
whoro  the  owner  knows  of  it,  he  imist  at  his  peril  keep  him  up  safe  fi'oni  do- 
ing hurt,  for  though  he  use  his  diligence  to  keep  him  up,  if  he  escape  and 
do  harm,  the  owner  is  liable  to  answer  damages."  1  Hale's  P.  C.  439,  part  1,  c. 
38,  as  quoted  in  9  Q.  B.  112,  note  (b). 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN  TRESPASSES  775 

on  himself.  The  jury  answered  all  three  questions  in  the  negative. 
The  learned  judge  entered  judgment  for  the  plaintiff  for  a  sum 
agreed  upon  in  case  the  plaintiff  should  be  entitled  to  recover. 

The  defendants  appealed.^^ 

Lord  Esher,  M.  R.  The  only  difficulty  I  feel  in  the  decision  of 
this  case  is  whether  it  is  possible  to  enunciate  any  formula  under  which 
this  and  similar  cases  may  be  classified.  The  law  of  England  recog- 
nizes two  distinct  classes  of  animals ;  and  as  to  one  of  those  classes,  it 
cannot  be  doubted  that  a  person  who  keeps  an  animal  belonging  to 
that  class  must  prevent  it  from  doing  injury,  and  it  is  immaterial 
whether  he  knows  it  to  be  dangerous  or  not.  As  to  another  class,  the 
law  assumes  that  animals  belonging  to  it  are  not  of  a  dangerous  nature, 
and  any  one  who  keeps  an  animal  of  this  kind  is  not  liable  for  the  dam- 
age it  may  do,  unless  he  knew  that  it  was  dangerous.  What,  then, 
is  the  best  way  of  dealing  generally  with  these  different  cases  ?  I  sup- 
pose there  can  be  no  dispute  that  there  are  some  animals  that  every 
one  must  recognize  as  not  being  dangerous  on  account  of  their  nature. 
Whether  they  are  ferae  naturae  so  far  as  rights  of  property  are  con- 
cerned is  not  the  question ;  they  certainly  are  not  so  in  the  sense  that 
they  are  dangerous.  There  is  another  set  of  animals  that  the  law  has 
recognized  in  England  as  not  being  of  a  dangerous  nature,  such  as 
sheep,  horses,  oxen,  dogs,  and  others  that  I  will  not  attempt  to  enumer- 
ate. I  take  it  this  recognition  has  come  about  from  the  fact  that  years 
ago,  and  continuously  to  the  present  time,  the  progeny  of  these  classes 
has  been  found  by  experience  to  be  hannless,  and  so  the  law  assumes 
the  result  of  this  experience  to  be  correct  without  further  proof.  Un- 
less an  animal  is  brought  within  one  of  these  two  descriptions, — that  is, 
unless  it  is  shown  to  be  either  harmless  by  its  very  nature,  or  to  belong 
to  a  class  that  has  become  so  by  what  may  be  called  cultivation, — it 
falls  within  the  class  of  animals  as  to  which  the  rule  is,  that  a  man 
who  keeps  one  must  take  the  responsibility  of  keeping  it  safe.  It  can- 
not possibly  be  said  that  an  elephant  comes  within  the  class  of  animals 
known  to  be  harmless  by  nature,  or  within  that  shewn  by  experience  to 
be  harmless  in  this  country,  and  consequently  it  falls  within  the  class 
of  animals  that  a  man  keeps  at  his  peril,  and  which  he  must  prevent 
from  doing  injury  under  any  circumstances,  unless  the  person  to 
whom  the  injury  is  done  brings  it  on  himself.  It  was,  therefore,  im- 
material in  this  case  whether  the  particular  animal  was  a  dangerous 
one,  or  whether  the  defendants  had  any  knowledge  that  it  was  so. 
The  judgment  entered  was  in  these  circumstances  right,  and  the  appeal 
must  be  dismissed. 

LiNDLEY,  L.  J.     I  am  of  the  same  opinion.     The  last  case  of  this 
kind  discussed  was  May  v.  Burdett,**  but  there  the  monkey  which  did 

88  The  argument  in  support  of  the  appeal  is  omitted. 
84  (1846)  9  Q.  B.  101. 


776  TORTS  THROUGH  ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

the  mischief  was  said  to  be  accustomed  to  attack  mankind,  to  the  knowl- 
edge of  the  person  who  kept  it.  That  does  not  decide  this  case.  We 
have  had  no  case  cited  to  us,  nor  any  evidence,  to  shew  that  elephants 
in  this  country  are  not  as  a  class  dangerous ;  nor  are  they  commonly 
known  here  to  belong  to  the  class  of  domesticated  animals.  Therefore 
a  person  who  keeps  one  is  liable,  though  he  does  not  know  that  the 
particular  one  that  he  keeps  is  mischievous.  Applying  that  principle 
to  this  case,  it  appears  that  the  judgment  for  the  plaintiff  was  right, 
and  this  appeal  must  be  dismissed. 

BowEN,  L.  J.  I  am  of  the  same  opinion.  The  broad  principle  that 
governs  this  case  is  that  laid  down  in  Fletcher  v.  Rylands,®°  that  a  per- 
son who  brings  upon  his  land  anything  that  would  not  naturally  come 
upon  it,  and  which  is  in  itself  dangerous,  must  take  care  that  it  is  kept 
under  proper  control.  The  question  of  liability  for  damage  done  by 
mischievous  animals  is  a  branch  of  that  law  which  has  been  applied 
in  the  same  way  from  the  times  of  Lord  Holt  ^^  and  of  Hale  until 
now.  People  must  not  be  wiser  than  the  experience  of  mankind.  If 
from  the  experience  of  mankind  a  particular  class  of  animals  is  dan- 
gerous, though  individuals  may  be  tamed,  a  person  who  keeps  one  of 
the  class  takes  the  risk  of  any  damage  it  may  do.  If,  on  the  other 
hand,  the  animal  kept  belongs  to  a  class  which,  according  to  the  ex- 
perience of  mankind,  is  not  dangerous,  and  not  likely  to  do  mischief, 
and  if  the  class  is  dealt  with  by  mankind  on  that  footing,  a  person  may 
safely  keep  such  an  animal,  unless  he  knows  that  the  particular  animal 
that  he  keeps  is  likely  to  do  mischief.  It  cannot  be  doubted  that  ele- 
phants as  a  class  have  not  been  reduced  to  a  state  of  subjection;  they 
still  remain  wild  and  untamed,  though  individuals  are  brought  to  a 
degree  of  tameness  which  amounts  to  domestication.  A  person,  there- 
fore, who  keeps  an  elephant,  does  so  at  his  own  risk,  and  an  action  can 
be  maintained  for  any  injury  done  by  it,  although  the  owner  had  no 
knowledge  of  its  mischievous  propensities.  I  agree,  therefore,  that 
the  appeal  must  be  dismissed. 


(C)  Extra-H azardous  Use 
RYLANDS  et  al.  v.  FLETCHER. 

(House  of  Lords,  1S68.     L.  R.  3  H.  L.  330.) 

This  was  a  proceeding  in  error  against  a  judgment  of  the  Ex- 
chequer Chamber,  which  had  reversed  a  previous  judgment  of  the 
Court  of  Exchequer. 

In  November,  1861,  Fletcher  brought  an  action  against  Rylands  & 
Horrocks,  to  recover  damages  for  an  injury  caused  to  his  mines  by 
water  overflowing  into  them  from  a  reservoir  which  the  defendants 

OS  For  Kyhuids  v.  Ileteher  (ISOS)  see  infra,  p.  77G,  in  text. 

t-e  «ee  Mu.sou  v.  Keeling  (lU'JDj  12  INlod.  332,  in  text,  ante,  \).  770, 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN  TRESPASSES  T77 

had  constructed.  The  declaration  contained  three  counts,  and  each 
count  alleged  negligence  on  the  part  of  the  defendants,  but  in  this 
House  the  case  was  ultimately  treated  upon  the  principle 'of  deter- 
mining the  relative  rights  of  the  parties  independently  of  any  question 
of  personal  negligence  by  the  defendants  in  the  exercise  of  them. 

The  cause  came  on  for  trial  at  the  Liverpool  Summer  Assizes  of 
1862,  when  it  was  referred  to  an  arbitrator,  who  was  afterwards  di- 
rected, instead  of  making  an  award,  to  prepare  a  special  case  for  the 
consideration  of  the  Judges.  This  was  done,  and  the  case  was  argued 
in  the  Court  of  Exchequer  in  Trinity  Term,  1865.  The  material  facts 
of  the  case  were  these : 

The  plaintiff  was  the  lessee  of  certain  coal  mines  known  as  the  Red  House 
Colliery,  under  the  Earl  of  Wilton.  He  had  also  obtained  from  two  other 
persons,  Mr.  Hulton  and  Mr.  Whitehead,  leave  to  work  for  coal  under  their 
lands.  The  positions  of  the  various  properties  were  these:  There  was  a 
turnpike  road  leading  from  Bury  to  Bolton,  which  formed  a  southern  boundary 
to  the  properties  of  these  different  persons.  A  parish  road,  called  the  Old 
Wood  Lane,  formed  their  northern  boundary.  These  roads  might  be  describ- 
ed as  forming  two  sides  of  a  square,  of  which  the  other  two  sides  were  form- 
ed by  the  lands  of  Mr.  Whitehead  on  the  east  and  Lord  Wilton  on  the  west. 
The  defendants'  grounds  lay  along  the  turnpike  road,  or  southern  boundary, 
stretching  from  its  centre  westward.  On  these  grounds  were  a  mill  and  a 
small  old  reservoir.  The  proper  grounds  of  the  Red  House  Colliery  also  lay, 
in  part,  along  the  southern  boundary,  stretching  from  its  centre  eastward. 
Immediately  north  of  the  defendants'  land  lay  the  land  of  Mr.  Hulton,  and 
still  farther  north  that  of  Lord  Wilton.  On  this  land  of  Lord  Wilton  the 
defendants,  in  1860,  constructed  (with  his  Lordship's  permission)  a  new 
reservoir,  the  water  from  which  would  pass  almost  in  a  southerly  direction 
across  a  part  of  the  land  of  Lord  Wilton  and  the  land  of  Mr.  Hulton,  and 
so  reach  the  defendant's  mill.  The  line  of  direction  from  this  new  reservoir 
to  the  Red  Colliery  mine  was  nearly  southeast. 

The  plaintiff,  under  his  lease  from  Lord  Wilton,  and  under  his  agreements 
with  Messrs.  Hulton  and  Whitehead,  worked  the  mines  under  their  respective 
lands.  In  the  course  of  doing  so,  he  came  upon  old  shafts  and  passages  of 
mines  formerly  worked,  but  of  which  the  workings  had  long  ceased ;  the 
origin  and  the  existence  of  these  shafts  and  passages  were  unknown.  The 
shafts  were  vertical,  the  passages  horizontal,  and  the  former  especially  seemed 
tilled  with  marl  and  rubbish. 

Defendants  employed  for  the  purpose  of  constructing  their  new  reservoir 
persons  who  were  admitted  to  be  competent  as  engineers  and  contractors 
to  perform  the  work,  and  there  was  no  charge  of  negligence  made  against  the 
defendants  personally.  But  in  the  course  of  excavating  the  bed  of  the  new 
reservoir,  five  old  shafts,  running  vertically  downwards,  were  met  with  in 
the  portion  of  the  land  selected  for  its  site.  The  case  found  that  "on  the 
part  of  the  defendants  there  was  no  personal  negligence  or  default  whatever  in 
or  about,  or  in  relation  to,  the  selection  of  the  said  site,  or  in  or  about  the 
planning  or  construction  of  the  said  reservoir ;  but,  in  point  of  fact,  reasonable 
and  proper  care  and  skill  were  not  exercised  by,  or  on  the  part  of,  the  per- 
sons so  employed  by  them,  with  reference  to  the  shafts  so  met  with  as  afore- 
said, to  provide  for  the  sufficiency  of  the  said  reservoir  to  bear  the  pres-sure  of 
water  which,  when  filled  to  the  height  proposed,  it  would  have  to  bear." 

The  reservoir  was  completed  at  the  beginning  of  December,  IbOO,  and  on 
the  morning  of  the  11th  of  that  month  the  reservoir,  being  then  partially 
tilled  with  water,  one  of  the  aforesaid  vertical  shafts  gave  way,  and  burst 
downwards,  in  consequence  of  which  the  water  of  the  reservoir  flowed  into 
the  old  passages  and  coalworkings  underaeatli,  and  by  means  of  the  under- 
ground communications  then  existing  between  them  and  the  plaintiff's  work- 
ings in  the  Red  House  Colliery,  the  colliery  was  flooded  and  the  workings 
thereof  stopped. 


778  TORTS  THROUGH  ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

The  question  for  the  opinion  of  the  Court  was  whether  the  plain- 
tiff was  entitled  to  recover  damages  by  reason  of  the  matters  herein- 
before stated.  The  Court  of  Exchequer,  Air.  Baron  Bramwell  dis- 
senting, gave  judgment  for  the  defendants. ^^  That  judgment  was 
afterwards  reversed  in  the  Court  of  Exchequer  Chamber.^ ^  The  case 
was  then  brought  on  error  to  this  House.* ^ 

The  Lord  Chancellor  (Lord  Cairns).  My  Lords,  in  this  case 
the  plaintiff  (I  may  use  the  description  of  the  parties  in  the  action)  is 
the  occupier  of  a  mine  and  works  under  a  close  of  land.  The  defend- 
ants are  the  owners  of  a  mill  in  his  neighbourhood,  and  they  propose 
to  make  a  reservoir  for  the  purpose  of  keeping  and  storing  water  to 
be  used  about  their  mill  upon  another  close  of  land,  which,  for  the  pur- 
poses of  this  case,  may  be  taken  as  being  adjoining  to  the  close  of  the 
plaintiff,  although,  in  point  of  fact,  some  intervening  land  lay  between 
the  two.  Underneath  the  close  of  land  of  the  defendants  on  which 
they  proposed  to  construct  their  reservoir  there  were  certain  old  and 
disused  mining  passages  and  works.  There  were  five  vertical  shafts, 
and  some  horizontal  shafts  communicating  with  them.  The  vertical 
shafts  had  been  filled  up  with  soil  and  rubbish,  and  it  does  not  appear 
that  any  person  was  aware  of  the  existence  either  of  the  vertical 
shafts  or  of  the  horizontal  works  communicating  with  them.  In  the 
course  of  the  working  by  the  plaintiff  of  his  mine,  he  had  gradually 
worked  through  the  seams  of  coal  underneath  the  close,  and  had  come 
into  contact  with  the  old  and  disused  works  underneath  the  close  of 
the  defendants. 

In  that  state  of  things  the  reservoir  of  the  defendants  was  construct- 
ed. It  was  constructed  by  them  through  the  agency  and  inspection  of 
an  engineer  and  contractor.  Personally,  the  defendants  appear  to  have 
taken  no  part  in  the  works,  or  to  have  been  aware  of  any  want  of  se- 
curity connected  with  them.  As  regards  the  engineer  and  the  con- 
tractor, we  must  take  it  from  the  case  that  they  did  not  exercise,  as 
far  as  they  were  concerned,  that  reasonable  care  and  caution  which 
they  might  have  exercised,  taking  notice,  as  they  appear  to  have  taken 
notice,  of  the  vertical  shafts  filled  up  in  the  manner  which  I  have  men- 
tioned. However,  my  Lords,  when  the  reservoir  was  constructed  and 
filled,  or  partly  filled,  with  water,  the  weight  of  the  water  bearing  upon 
the  disused  and  imperfectly  filled-up  vertical  shafts,  broke  through 
those  shafts.  The  water  passed  down  them  and  into  the  horizontal 
workings,  and  from  the  horizontal  workings  under  the  close  of  the 
defendants  it  passed  on  into  the  workings  under  the  close  of  the  plain- 
tiff, and  flooded  his  mine,  causing  considerable  damage,  for  which  this 
action  was  brought. 

87  Fletcher  v.  Rylands  (1SG5)  3  H.  &  C.  774,  140  R.  R.  733,  143  R.  R.  612. 
8  8  Fletcher  v.  Rylands  (1800)  4  H.  &  C.  203,  143  R.  R.  611. 
■88  The  argument  of  counsel  is  omitted. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  779 

The  Court  of  Exchequer,  when  the  special  case  stating  the  facts 
to  which  I  have  referred  was  argued,  was  of  opinion  that  the  plain- 
tiff had  established  no  cause  of  action.  The  Court  of  Exchequer 
Chamber,  before  which  an  appeal  from  this  judgment  was  argued, 
was  of  a  contrary  opinion,  and  the  judges  there  unanimously  arrived 
at  the  conclusion  that  there  was  a  cause  of  action,  and  that  the  plain- 
tiff was  entitled  to  damages. 

My  Lords,  the  principles  on  which  this  case  must  be  determined 
appear  to  me  to  be  extremely  simple.  The  defendants,  treating  them 
as  the  owners  or  occupiers  of  the  close  on  which  the  reservoir  was 
constructed,  might  lawfully  have  used  that  close  for  any  purpose  for 
which  it  might  in  the  ordinary  course  of  the  enjoyment  of  land  be 
used;  and  if,  in  what  I  may  term  the  natural  user  of  that  land,  there 
had  been  any  accumulation  of  water,  either  on  the  surface  or  under- 
ground, and  if,  by  the  operation  of  the  laws  of  nature,  that  accumula- 
tion of  water  had  passed  off  into  the  close  occupied  by  the  plaintiff, 
the  plaintiff  could  not  have  complained  that  that  result  had  taken  place. 
If  he  had  desired  to  guard  himself  against  it,  it  would  have  lain  upon 
him  to  have  done  so  by  leaving,  or  by  interposing,  some  barrier  be- 
tween his  close  and  the  close  of  the  defendants  in  order  to  have  pre- 
vented that  operation  of  the  laws  of  nature. 

As  an  illustration  of  that  principle,  I  may  refer  to  a  case  which 
was  cited  in  the  argument  before  your  Lordships,  the  case  of  Smith  v. 
Kenrick,  in  the  Court  of  Common  Pleas,  7  C.  B.  515. 

On  the  other  hand,  if  the  defendants,  not  stopping  at  the  natural 
use  of  their  close,  had  desired  to  use  it  for  any  purpose  which  I  may 
term  a  non-natural  use,  for  the  purpose  of  introducing  into  the  close 
that  which  in  its  natural  condition  was  not  in  or  upon  it,  for  the  pur- 
pose of  introducing  water  either  above  or  below  ground  in  quantities 
and  in  a  manner  not  the  result  of  any  work  or  operation  on  or  under 
the  land;  and  if  in  consequence  of  their  doing  so,  or  in  consequence  of 
any  imperfection  in  the  mode  of  their  doing  so,  the  water  came  to  es- 
cape and  to  pass  off  into  the  close  of  the  plaintiff,  then  it  appears  to 
me  that  that  which  the  defendants  were  doing  they  were  doing  at 
their  own  peril ;  and  if  in  the  course  of  their  doing  it  the  evil  arose  to 
which  I  have  referred,  the  evil,  namely,  of  the  escape  of  the  water  and 
its  passing  away  to  the  close  of  the  plaintiff  and  injuring  the  plaintiff, 
then  for  the  consequence  of  that,  in  my  opinion,  the  defendants  would 
be  liable.  As  the  case  of  Smith  v.  Kenrick  is  an  illustration  of  the 
first  principle  to  which  I  have  referred,  so  also  the  second  principle 
to  which  I  have  referred  is  well  illustrated  by  another  case  in  the 
same  Court,  the  case  of  Baird  v.  Williamson,  15  C.  B.  N.  S.  317,  which 
was  also  cited  in  the  argument  at  the  Bar. 

My  Lords,  these  simple  principles,  if  they  are  well  founded,  as  it  ap- 
pears to  me  they  are,  really  dispose  of  this  case. 

The  same  result  is  arrived  at  on  the  principles  referred  to  by  Mr. 


780  TORTS  THROUGH  ACTS   OP    ABSOLUTE   LIABILITY  (Part  1 

Justice  Blackburn  in  his  judgment  in  the  Court  of  Exchequer  Cham- 
ber/" where  he  states  the  opinion  of  that  Court  as  to  the  law  in  these 
words :  "We  think  that  the  true  rule  of  law  is  that  the  person  who,  for 
his  own  purposes,  brings  on  his  land  and  collects  and  keeps  there 
anything  likely  to  do  mischief  if  it  escapes,  must  keep  it  in  at  his  peril ; 
and  if  he  does  not  do  so,  is  prima  facie  answerable  for  all  the  damage 
which  is  the  natural  consequence  of  its  escape.  He  can  excuse  himself 
by  shewing  that  the  escape  was  owing  to  the  plaintiff's  default;  or, 
perhaps,  that  the  escape  was  the  consequence  of  vis  major,  or  tlie  act 
of  God ;  but  as  nothing  of  this  sort  exists  here,  it  is  unnecessary  to 
inquire  what  excuse  would  be  sufficient.  The  general  rule,  as  above 
stated,  seems  on  principle  just.  The  person  whose  grass  or  corn  is 
eaten  down  by  the  escaping  cattle  of  his  neighbour,  or  whose  mine  is 
flooded  by  the  water  from  his  neighbour's  reservoir,  or  whose  cellar  is 
invaded  by  the  filth  of  his  neighbour's  privy,  or  whose  habitation  is 
made  unhealthy  by  the  fumes  and  noisome  vapors  of  his  neighbour's 
alkali  works,  is  damnified  without  any  fault  of  his  own ;  and  it  seems 
but  reasonable  and  just  that  the  neighbour  who  has  brought  something 
on  his  own  property  (which  was  not  naturally  there),  harmless  to  oth- 
ers so  long  as  it  is  confined  to  his  own  property,  but  which  he  knows 
will  be  mischievous  if  it  gets  on  his  neighbour's,  should  be  obliged  to 
make  good  the  damage  which  ensues  if  he  does  not  succeed  in  con- 
fining it  to  his  own  property.  But  for  his  act  in  bringing  it  there  no 
mischief  could  have  accrued,  and  it  seems  but  just  that  he  should  at 
his  peril  keep  it  there,  so  that  no  mischief  may  accrue,  or  answer  for 
the   natural   and  anticipated  consequence.      And   upon  authority   this 

00  In  his  jucl?meut  in  the  Exchequer  Chamber,  Mr.  Justice  Blackburn  iu- 
troduced  his  statement  of  this  "true  rule  of  law"  with  these  remarks: 

"The  plaintiff,  though  free  from  all  blame  on  his  part,  must  bear  the  loss, 
unless  he  can  establish  that  it  was  the  consequence  of  some  default  for  which 
the  defendant's  are  resix)nsible.  The  question  of  law  therefore  arises,  what  is 
the  obligation  which  the  law  casts  on  a  person  who,  like  the  defendants,  law- 
fully brings  on  his  land  something  which,  though  harmless  whilst  it  remains 
there,  will  naturally  do  mischief  if  it  escape  out  of  his  land.  It  is  agreed  on 
all  hands  that  he  must  take  care  to  keep  in  that  which  he  has  brought  on 
the  land  and  keeps  there,  in  order  that  it  may  not  escape  and  damage  his 
neighl>ors;  but  the  question  arises  whether  the  duty  which  the  law  casts  upon 
him,  under  such  circumstances,  is  an  absolute  duty  to  keep  it  in  at  his  peril, 
or  is,  as  tlie  majority  of  the  Court  of  Exchequer  have  thought,  merely  a  duty 
to  take  all  reasonable  and  prudent  pi'ccautions  in  order  to  keep  it  in,  but  no 
more.  If  the  first  be  the  law,  the  person  who  has  brought  on  his  land  and 
kept  there  something  dangerous,  and  failed  to  kci^p  it  in,  is  responsiljle  for 
all  the  natural  consequences  of  its  escape.  If  the  second  be  the  limit  of 
his  duty,  he  would  not  be  answerq.ble  except  on  proof  of  negligence,  and  con- 
seijuently  would  not  be  answerable  for  escape  arising  from  any  latent  de- 
fect which  ordinary  prudence  and  skill  could  not  detect. 

"Supposing  tbe  second  to  be  the  correct  view  of  the  law.  a  further  ques- 
tion arises  subsidiary  to  the  first,  viz.,  whether  the  defendants  are  not  so  far 
identified  with  the  contractors  whom  they  employed  as  to  be  responsible  for 
the  consefiuences  of  their  want  of  care  and  skill  in  making  the  reservoir 
in  fact  insudicient  with  reference  to  the  old  shafts,  of  the  existence  of  which 
they  were  aware,  though  they  had  not  ascertained  where  the  shafts  went  to." 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  781 

we  think  is  established  to  be  the  law,  whether  the  things  so  brought  be 
beasts,  or  water,  or  filth,  or  stenches."  *^ 

My  Lords,  in  that  opinion  I  must  say  I  entirely  concur.  Therefore, 
I  have  to  move  your  Lordships  that  the  judgment  of  the  Court  of  Ex- 
chequer Chamber  be  affirmed,  and  that  the  present  appeal  be  dismissed 
with  costs. 

91  Having  thiis  stated  his  "true  rule  of  law,"  Mr.  Justice  Blackburn,  in 
the, Exchequer  Chamber,  remarked  as  follows: 

"The  case  that  has  most  commonly  occurred  and  which  is  most  frequently 
to  be  found  in  the  books  is  as  to  the  obligation  of  the  owner  of  cattle  whicli 
he  has  brought  on  his  laud  to  prevent  their  escaping  and  doing  mischief.  The 
law  as  to  them  seems  to  be  perfectly  settled  from  early  times ;  the  owner 
must  keep  them  in  at  his  peril,  or  he  will  be  answerable  for  the  natural  con- 
sequences of  their  escape;  that  is,  with  regard  to  tame  beasts,  for  the  grass 
they  eat  and  trample  upon,  though  not  for  any  injury  to  the  person  of  others, 
for  our  ancestors  have  settled  that  it  is  not  the  general  nature  of  horses  to 
kick,  or  bulls  to  gore;  but  if  the  owner  knows  that  the  beast  has  a  \'icious  pro- 
pensity to  attack  man,  he  will  be  answerable  for  that  too. 

"As  early  as  the  Year  Book,  20  Ed.  4,  11.  placitum  10,  Brian,  C.  J.,  lays 
do'^Ti  the  doctrine  in  terms  very  much  resembling  those  used  bv  Lord  Holt 
in  Tenant  v.  Goldwin  [1703]  2  Ld.  Raym.  1089,  1  Salk.  360.  which  will  be  re- 
ferred to  afterwards.  It  was  trespass  with  cattle.  Plea,  that  the  defendant's 
land  adjoined  a  place  where  defendant  had  common,  that  the  cattle  strayed 
from  the  common,  and  defendant  drove  them  back  as  soon  as  he  could.  It 
was  held  a  bad  plea.  Brian,  C.  J.,  says:  'It  behoves  him  to  use  his  common 
so  that  he  shall  do  no  hurt  to  another  man,  and  if  the  land  in  which  he  has 
common  be  not  enclosed,  it  behoves  him  to  keep  the  beasts  in  the  common  and 
out  of  the  land  of  any  other.'  He  adds,  when  it  was  proposed  to  amend  by 
pleading  that  they  were  driven  out  of  the  common  by  dogs,  that  although 
that  might  give  a  right  of  action  against  the  master  of  the  dogs,  it  was  no 
defence  to  the  action  of  trespass  by  the  person  on  whose  land  the  cattle  went. 
In  the  recent  case  of  Cox  v.  Burbidge  [1S63]  13  C,  B,  N,  S.  438,  134  R.  R. 
586,  32  L.  J.  C.  P.  89,  Williams,  J.,  says:  'I  apprehend  the  law  to  be  per- 
fectly plain.  If  I  am  the  owner  of  an  animal  in  which  by  law  the  right 
of  property  can  exist,  I  am  bound  to  take  care  that  it  does  not  stray 
into  the  land  of  my  neighbor,  and  I  am  liable  for  any  trespass  it  may 
commit,  and  for  the  ordinary  consequences  of  that  trespass.  Whether  or 
not  the  escape  of  the  animal  is  due  to  my  negligence  is  altogether  imma- 
terial.' So  in  May  v.  Burdett  (1S4G)  9  Q.  B.  112,  72  R.  R.  189,  the  Court, 
after  an  elaborate  examination  of  the  old  precedents  and  authorities, 
came  to  the  conclusion  that  'a  xjerson  keeping  a  mischievous  animal,  with 
knowledge  of  its  propensities,  is  bound  to  keep  it  secure  at  his  peril.'     *     *     * 

"As  has  been  already  said,  there  does  not  appear  to  be  any  difference  in 
principle  between  the  extent  of  the  duty  cast  on  him  who  brings  cattle  on 
his  land  to  keep  them  in,  and  the  extent  of  the  duty  imposed  on  him  who 
brings  on  his  land  water,  filth,  or  stenches,  or  any  other  thing  which  will, 
if  it  escape,  naturally  do  damage,  to  prevent  their  escaping  and  injuring  his 
neighbor;  and  the  case  of  Tenant  v.  Goldwiu,  supra,  is  an  express  authority 
that  the  duty  is  the  same,  and  is,  to  keep  them  in  at  his  i>eril." 

Un  the  historical  bearings  of  Mr.  Justice  Blackburn's  statement  of  the 
principle,  see  Professor  Wigmore's  remarks  in  "Tortious  Responsibility,"  7 
Har\-.  l>aw  Rev.  454,  3  Select  Essays,  51S. 

See  also  Sir  Frederick  Pollock's  comment  on  Rylands  v.  Fletcher,  in  143 
K.  R.  V,  vi,  and  his  reminder  "that  in  many  common  law  jurisdictions  the 
rule  of  unqualified  liability  declared  by  the  House  of  Lords  is  not  approved. 
The  latest  important  text-writer,  Mr.  Salmond,  now  Solicitor-General  of  Is'ew 
Zealand,  states  the  rule  with  evident  reluctance  and  seems  to  regard  it  as 
un  illegitimate  extension  of  the  medieval  doctrine  as  to  damage  done  by 
escaping  cattle."    The  Law  of  Torts  (3d  Ed.)  1912,  p.  203,  note. 


782  TORTS  THROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

Lord  Cranworth.  My  Lords,  I  concur  with  my  noble  and  learned 
friend  in  thinking  that  the  rule  of  law  was  correctly  stated  by  Mr.  Jus- 
tice Blackburn  in  delivering  the  opinion  of  the  Exchequer  Chamber. 
If  a  person  brings,  or  accumulates,  on  his  land  anything  which,  if  it 
should  escape,  may  cause  damage  to  his  neighbor,  he  does  so  at  his 
peril.  If  it  does  escape  and  cause  damage,  he  is  responsible,  however 
careful  he  may  have  been,  and  whatever  precautions  he  may  have  taken 
to  prevent  the  damage. 

In  considering  whether  a  defendant  is  liable  to  a  plaintiff  for  dam- 
age which  the  plaintiff  may  have  sustained,  the  question  in  general  is 
not  whether  the  defendant  has  acted  with  due  care  and  caution,  but 
whether  his  acts  have  occasioned  the  damage.  This  is  all  well  ex- 
plained in  the  old  case  of  Lambert  v.  Bessey,  reported  by  Sir  Thomas 
Raymond.  And  the  doctrine  is  founded  on  good  sense.  For  when  one 
person,  in  managing  his  own  affairs,  causes,  however  innocently,  dam- 
age to  another,  it  is  obviously  only  just  that  he  should  be  the  party  to 
suffer.  He  is  bound  sic  uti  suo  ut  non  lasdat  alienum.  This  is  the 
principle  of  law  applicable  to  cases  like  the  present,  and  I  do  not  dis- 
cover in  the  authorities  which  were  cited  anything  conflicting  with  it. 

The  doctrine  appears  to  me  to  be  well  illustrated  by  the  two  modern 
cases  in  the  Court  of  Common  Pleas  referred  to  by  my  noble  and 
learned  friend.  I  allude  to  the  two  cases  of  Smith  v.  Kenrick,  7  C.  B. 
564,  and  Baird  v.  Williamson,  15  C.  B.  N.  S.  376.  In  the  former  the 
owner  of  a  coal  mine  on  the  higher  level  worked  out  the  whole  of  his 
coal,  leaving  no  barrier  between  his  mine  and  the  mine  on  the  lower 
level,  so  that  the  water  percolating  through  the  upper  mine  flowed 
into  the  lower  mine,  and  obstructed  the  owner  of  it  in  getting  his 
coal.  It  was  held  that  the  owner  of  the  lower  mine  had  no  ground 
of  complaint.  The  defendant,  the  owner  of  the  upper  mine,  had  a 
right  to  remove  all  his  coal.  The  damage  sustained  by  the  plaintiff 
was  occasioned  by  the  natural  flow  or  percolation  of  water  from  the 
upper  strata.  There  was  no  obligation  on  the  defendant  to  protect  the 
plaintiff  against  this.  It  was  his  business  to  erect  or  leave  a  sufficient 
barrier  to  keep  out  the  water,  or  to  adopt  proper  means  for  so  con- 
ducting the  water  as  that  it  should  not  impede  him  in  his  workings. 
The  water  in  that  case  was  only  left  by  the  defendant  to  flow  in  its 
natural  course. 

But  in  the  later  case  of  Baird  v.  Williamson,  the  defendant,  the 
owner  of  the  upper  mine,  did  not  merely  suffer  the  water  to  flow 
through  his  mine  without  leaving  a  barrier  between  it  and  the  mine 
below,  but  in  order  to  work  his  own  mine  beneficially  he  pumped  up 
quantities  of  water  which  passed  into  the  plaintiff's  mine  in  addition, 
to  that  which  would  have  naturally  reached  it,  and  so  occasioned  him 
damage.  Though  this  was  done  without  negligence  and  in  the  due 
working  of  his  own  mine,  yet  he  was  held  to  be  responsible  for  the 
damage  so  occasioned.     It  was  in  consequence  of  his  act,  whether 


Ch.  2)  ABSOLUTE    TOUTS   OTHER  THAN   TRESPASSES  783 

skillfully  or  unskillfully  performed,  that  the  plaintiff  had  been  dam- 
aged, and  he  was  therefore  held  liable  for  the  consequences.  The  dam- 
age in  the  former  case  may  be  treated  as  having  arisen  from  the  act 
of  God ;    in  the  latter,  from  the  act  of  the  defendant. 

Applying  the  principle  of  these  decisions  to  the  case  now  before 
the  House,  I  come  without  hesitation  to  the  conclusion  that  the  judg- 
ment of  the  Exchequer  Chamber  was  right.  The  plaintiff  had  a  right 
to  work  his  coal  through  the  lands  of  Mr.  Whitehead  and  up  to  the 
old  workings.  If  water  naturally  rising  in  the  defendants'  land  (we 
may  treat  the  land  as  the  land  of  the  defendants  for  the  purpose  of 
this  case)  had  by  percolation  found  its  way  down  to  the  plaintiff's 
mine  through  the  old  workings,  and  so  had  impeded  his  operations, 
that  would  not  have  afforded  him  any  ground  of  complaint.  Even  if 
all  the  old  workings  had  been  made  by  the  plaintiff,  he  would  have 
done  no  more  than  he  was  entitled  to  do ;  for,  according  to  the  prin- 
ciple acted  on  in  Smith  v.  Kenrick,  the  person  working  the  mine  under 
the  close  in  which  the  reservoir  was  made  had  a  right  to  win  and  carry 
away  all  the  coal  without  leaving  any  wall  or  barrier  against  White- 
head's land.  But  that  is  not  the  real  state  of  the  case.  The  defend- 
ants, in  order  to  effect  an  object  of  their  own,  brought  on  to  their 
land,  or  on  to  land  which  for  this  purpose  may  be  treated  as  being 
theirs,  a  large  accumulated  mass  of  water,  and  stored  it  up  in  a 
reservoir.  The  consequence  of  this  was  damage  to  the  plaintiff,  and 
for  that  damage,  however  skillfully  and  carefully  the  accumulation 
was  made,  the  defendants,  according  to  the  principles  and  authorities 
to  which  I  have  adverted,  were  certainly  responsible. 

I  concur,  therefore,  with  my  noble  and  learned  friend  in  thinking 
that  the  judgment  below  must  be  affirmed,  and  that  there  must  be  judg- 
ment for  the  defendant  in  error. 

Judgment  of  the  Court  of  Exchequer  Chamber  afifirmed. 


CHARING  CROSS  ELECTRICITY  SUPPLY  CO.  v.  HYDRAU- 
LIC POWER  CO. 

(In  the  Court  of  Appeal.     [1914]  3  K.  B.  772.) 

Appeal  from  a  decision  by  Scrutton,  J.,  reported  [1913]  3  K.  B. 
442. 

The  plaintiffs  were  a  company  supplying  electricity  in  the  city  of 
London  under  a  provisional  order  by  authority  of  which  they  had 
placed  their  cables  in  certain  public  streets.  The  defendants  were 
the  owners  of  hydraulic  mains  containing  water  at  a  high  pressure 
used  to  supply  hydraulic  power.  These  mains  had  been  laid  in  the 
same  streets,  also  under  statutory  authority.  The  action  was  brought 
for  damage  to  the  plaintiffs'  cables  in  four  dift'erent  streets.  Water 
Lane,  Upper  Thames  Street,  Cannon  Street,  and  St.  Swithin's  Lane, 
caused  by  the  bursting  of  the  defendants'  mains.     Two  of  the  mains 


784  TORTS   TUROUGH   ACTS   OF    ABSOLUTE   LIABILITY  (Part  1 

which  SO  burst  had  been  laid  under  a  private  Act  which  did  not  con- 
tain the  usual  clause  providing  that  nothing  in  the  Act  should  exempt 
the  company  from  liability  for  nuisance.  The  other  two  had  been  laid 
under  a  later  Act  which  did  contain  such  a  clause.  This  later  Act 
provided  also  that  the  two  Acts  should  be  "read  and  construed  to- 
gether."    The  judge,  in  an  elaborate  finding  of  facts,  found: 

That  the  defendants  were  not  guilty  of  any  neglijrence  either  in  the  man- 
ner of  laying  their  mains  or  in  respect  of  the  materials  of  which  the  mains 
were  constrneted,  and  that  they  could  not  by  any  reasonable  care  have  de- 
tected the  subsidences  [which  caused  the  breaks]  before  the  bursts  occurred. 

Scrutton,  J.,  held :  (1)  that  the  doctrine  of  Rylands  v.  Fletcher  ap- 
plied not  only  to  cases  in  which  the  dangerous  thing  had  escaped  from 
the  defendant's  land  on  to  the  plaintiff's  land  and  done  damage  there, 
but  also  to  cases  in  which  the  site  of  the  plaintiff's  injury  was  occu- 
pied by  him  only  under  a  licence  and  not  under  any  right  of  property 
in  the  soil,  and  that  in  the  absence  of  statutory  authorization  of  the 
nuisance  the  defendants  were  liable  for  the  damage  caused  by  the 
bursts  in  their  mains,  notwithstanding  that  they  had  been  guilty  of 
no  negligence ;  and  (2)  that  the  effect  of  the  two  Acts  being  read  to- 
gether as  one  Act  was  to  take  away  the  privilege  which,  down  to  the 
passing  of  the  later  Act,  the  defendants  had  enjoyed,  in  respect  of 
the  two  first-mentioned  mains,  for  not  being  liable  for  damage  done 
by  their  bursting  in  the  absence  of  negligence,  and  that  consequently 
in  the  case  of  all  four  of  the  mains  the  defendants  were  liable  as  for 
a  nuisance. 

The  defendants  appealed. 

Bray,  J.  I  am  of  the  same  opinion. ^^  Treating  this  case,  first  of 
all,  without  regard  to  the  statutory  authority  which  the  defendants 
have,  it  seems  to  me  quite  clear  that  it  comes  within  the  principles  of 
Rylands  v.  Fletcher.  It  was  said  that  it  was  not  within  those  princi- 
ples because  Rylands  v.  Fletcher,  is  the  case  of  the  owners  of  adjoin- 
ing closes  of  land,  but,  in  my  opinion,  that  is  not  so.  The  headnote 
of  Rylands  v.  Fletcher,  L.  R.  3  H.  L.  330,  as  reported  in  the  House 
of  Lords,  is  this,  and  I  may  say  that  I  have  looked  through  the  speech- 
es of  the  Lord  Chancellor  and  the  other  learned  Lords  and  it  is  abun- 
dantly justified  by  what  is  said  there: 

"Where  the  owner  of  land,  without  wilfulness  or  negligence,  uses  his  land 
in  the  ordinary  manner  of  its  use,  though  mischief  should  thereby  be  oc- 
casioned to  his  neighbour,  he  will  not  be  liable  in  damages.  But  if  he  brings 
upon  his  land  anything  which  would  not  naturally  come  upon  it,  and  which 
is  in  itself  dangerous,  and  may  become  mischievous  if  not  kept  under  proi> 
er  control,  though  in  so  doing  he  may  act  without  personal  wilfulness  or  neg- 
ligence, he  will  be  liable  in  damages  for  any  mischief  thereby  occasioned." 

"For  any  mischief  thereby  occasioned,"  that  is  to  say,  not  mischief 
necessarily  occasioned  to  the  owner  of  the   adjoining  land,  but  any 

82  The  opinions  of  Lord  Sumner  and  Kcnnetly,  L.  J.,  with  whom  Bray,  J., 
concurred,  are  omitted.  The  statement  of  the  case  is  somewhat  abridgedj  and 
the  argument  of  counsel  for  the  defendants  is  omitted. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  785 

mischief  thereby  occasioned,  Now  ir  the  earlier  part  of  that,  it  deals 
with  the  case  where  he  brings  it  upon  his  land.  It  seems  to  me  it  does 
not  matter  whether  it  is  upon  his  land;  if  he  has  a  right,  as  the  de- 
fendants have  here,  to  occupy  this  land  for  a  certain  purpose,  namely, 
for  these  pipes,  it  is  equally  his  for  the  purpose  of  testing  this  prin- 
ciple. Therefore  I  think  that  Rylands  v.  Fletcher  applies,  and,  if  it 
applies,  then  the  defendants  undoubtedly  have  brought  upon  their 
land,  or  land  which  they  are  permitted  to  occupy,  something  which 
would  not  have  naturally  come  upon  it  and  which  is  in  itself  dan- 
gerous and  probably  mischievous  if  not  kept  under  proper  con- 
trol *  *  *  ^' 
Appeal  dismissed. 


NICHOLS  v.  MARSLAND.  ^ 

(Court  of  Exchequer,  1875.     L.  R.  10  Exch.  255.     Court  of  Appeal,  1876.     2 

Exch.  Div.   1.) 

The  plaintiff  sued  as  the  surveyor  for  the  County  of  Chester  of 
bridges  repairable  at  the  expense  of  the  county. 

The  first  count  of  the  declaration  alleged  that  the  defendant  was 
possessed  of  lands  and  of  artificial  pools  constructed  thereon  for  re- 
ceiving and  holding,  and  wherein  were  kept,  large  quantities  of  water, 
yet  the  defendant  took  so  little  and  such  bad  care  of  the  pools  and  the 
water  therein  that  large  quantities  of  water  escaped  from  the  pools 
and  destroyed  four  county  bridges,  whereby  the  inhabitants  of  the 
county  incurred  expense  in  repairing  and  rebuilding  them.  The  sec- 
ond count  alleged  that  the  defendant  was  possessed  of  large  quantities 
of  water  collected  and  contained  in  three  artificial  pools  of  the  defend- 
ant near  to  four  county  bridges,  and  stated  the  "breach  as  in  the  first 
count.     Plea,  not  guilty,  and  issue  thereon. 

At  the  trial  before  Cockburn,  C.  J.,  at  the  Chester  Summer  Assizes, 

1874,  the  plaintiff's  witnesses  gave  evidence  to  the  following  effect: 

The  defendant  occupied  a  mansion-house  and  grounds  at  Henbury,  in  the 
County  of  Chester.  A  natural  stream  called  Bagbrook,  which  rose  in  high- 
er lands,  ran  through  the  defendant's  grounds,  and  after  leaving  them  flowed 
under  the  four  county  bridges  in  question.  After  entering  the  defendant's 
grounds  the  stream  was  diverted  and  dammed  up  by  an  artificial  emliank- 
ment  into  a  pool  of  three  acres  in  area  called  "the  upper  pool."  from  which 
it  escaped  over  a  weir  in  the  embankment,  and  was  again  similarly  dammed 
up  by  an  artificial  embankment  into  the  "middle  pool,"  which  was  between 
one  and  two  acres  in  area.  Escaping  over  a  weir  in  the  embankment,  it  was 
again  dammed  up  into  "the  lower  ik)o1,"  which  was  between  eight  and  niue 
acres  in  area,  and  from  which  the  stream  escaped  into  its  natural  and  orig- 
inal course. 

83  On  this  point  of  the  case,  also,  the  view  of  Scrutton,  J.,  was  Upheld. 
"When  the  Legislature  gave  them  [the  defendants]  these  authorities,  they  did 
not  take  away  from  the  right  of  the  owner  of  that  surroundiug  land  any  of 
the  rights  which  he  otherwise  had."     Per  Bray,  J. 

HEiPB .  Torts — 50 


786  TORTS  THROUGH  ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

About  five  o'clock  p.  m.  on  the  IStli  of  June,  1872,  occurred  a  terrible  thunder 
storm,  accompanied  by  heavy  rain,  which  continued  till  about  three  o'clock 
a.  m.  on  the  lUth.  The  raiuiall  was  greater  and  more  violent  than  any  with- 
in the  memory  of  the  witnesses,  and  swelled  the  stream  both  above  and  in  the 
defendant's  grounds.  On  the  morning  of  the  19th  it  was  found  that  during 
the  night  the  violence  and  volume  of  the  water  had  carried  away  the  artificial 
embankments  of  the  three  pools,  the  accumulated  water  in  which,  being  thus 
suddenly  let  loose,  had  swelled  the  stream  below  the  pools  so  that  it  carried 
away  and  desti'oyed  the  county  bridges  mentioned  in  the  declaration.  At 
the  pools  were  paddles  for  letting  off  the  water,  but  for  several  years  they 
had  been  out  of  working  order. 

Some  engineers  and  other  witnesses  gave  evidence  that  in  their  opinion 
the  weir  in  the  upper  ix)Ol  was  far  too  small  for  a  pool  of  that  size,  and  that 
the  mischief  happened  through  the  insutliciency  of  the  means  for  carrying 
off  the  water.  It  was  not  proved  when  these  ornamental  pools  were  con- 
structed, but  it  appeared  that  they  had  existed  before  the  defendant  began 
to  occupy  the  property,  and  that  no  similar  accident  had  ever  occurred  with- 
in the  knowledge  of  the  witnesses. 

After  hearing  the  address  of  the  defendant's  counsel,  the  jury  said 
they  did  not  wish  to  hear  his  witnesses,  and  that  in  their  opinion  the 
accident  was  caused  by  vis  major.  In  answer  to  Cockburn,  C.  J.,  they 
found  that  there  was  no  neghgence  in  the  construction  or  maintenance 
of  the  works,  and  that  the  rain  was  most  excessive.  Cockburn,  C.  J., 
being  of  opinion  that  the  rainfall,  though  extraordinary  and  unprece- 
dented, did  not  amount  to  vis  major  or  excuse  the  defendant  from  lia- 
bility, entered  the  verdict  for  the  plaintiff  for  £4092,  the  agreed 
amount,  reserving  leave  to  the  defendant  to  move  to  enter  it  for  her 
if  the  Court  (who  were  to  draw  inferences  of  fact)  should  be  of  opin- 
ion that  the  rainfall  amounted  to  vis  major,  and  so  distinguished  the 
case  from  Rylands  v.  Fletcher,  L.  R.  3  H.  L.  330. 

A  rule  nisi  having  been  accordingly  obtained  to  enter  the  verdict  for 
the  defendant  on  the  ground  that  there  was  no  proof  of  liability,  the 
plaintiff  on  showing  cause  to  be  at  liberty  to  contend  that  a  new  trial 
should  be  granted  on  the  ground  that  the  finding  of  the  jury  was 
against  the  weight  of  evidence. 

Mclntyre,  O.  C,  for  the  plaintiff,  showed  cause.  The  defendant, 
having  for  her  own  purposes  and  advantage  stored  a  dangerous  ele- 
ment on  her  premises,  is  liable  if  that  element  escapes  and  injures  the 
property  of  another,  even  though  the  escape  be  caused  by  an  earth- 
quake or  any  form  of  vis  major.  [Cle;asby,  B.  Was  not  the  flood 
brought  on  to  the  defendant's  land  by  vis  major?]  The  pools  were 
made  by  those  through  whom  the  defendant  claims,  and  if  there  had 
been  no  pools  the  water  of  the  natural  stream  would  have  escaped 
without  doing  injury.  The  case  falls  within  the  rule  laid  down  by  the 
judgment  in  Fletcher  v.  Rylands,  L.  R.  1  Ex.  265,  279,  delivered  by 
Blackburn,  J. :  "We  think  that  the  true  rule  of  law  is,  that  the  per- 
son who  for  his  own  purposes  brings  on  his  lands,  and  collects  and 
keeps  there  anything  likely  to  do  mischief  if  it  escapes,  must  keep  it 
in  at  his  peril,  and  if  he  does  not  do  so  is  prima  facie  answerable  for 
all  the  damage  which  is  the  natural  consequence  of  its  escape.  He  can 
excuse  himself  by  showing  that  the  escape  was  owing  to  the  plaintiff's 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  787 

default,  or  perhaps  that  the  escape  was  the  consequence  of  vis  major, 
or  the  act  of  God."  This  passage  was  cited  with  approval  by  Lord 
Cairns,  C,  and  Lord  Cranworth  on  appeal.  L.  R.  3  H.  L.  330,  339, 
340.  [Cleasby,  B.  There  the  defendant  brought  the  water  on  to  his 
own  land.  Not  so  here.]  The  intimation  that  vis  major  would  per- 
haps be  an  excuse  is  not  confirmed  by  any  decision  or  any  other  dic- 
tum. But  the  facts  here  do  not  amount  to  vis  major.  If  the  weirs 
had  been  larger,  or  the  banks  stronger,  the  mischief  would  not  have 
happened.  Vis  major  means  something  which  cannot  be  foreseen  or 
resisted,  as  an  earthquake  or  an  act  of  the  Queen's  enemies.®* 

June  12.  The  judgment  of  the  Court  (Kelly,  C.  B.,  and  Bram- 
we;ll,  and  Cleasby,  BB.)  was  read  by 

BramwELL,  B.  In  this  case  I  understand  the  jury  to  have  found 
that  all  reasonable  care  had  been  taken  by  the  defendant,  that  the 
banks  were  fit  for  all  events  to  be  anticipated,  and  the  weirs  broad 
enough ;  that  the  storm  was  of  such  violence  as  to  be  properly  called 
the  act  of  God,  or  vis  major.  No  doubt,  as  was  said  by  Mr.  Mclntyre, 
a  shower  is  the  act  of  God  as  much  as  a  storm ;  so  is  an  earthquake 
in  this  country:  yet  every  one  understands  that  a  storm,  supernatu- 
ral in  one  sense,  may  properly,  like  an  earthquake  in  this  country,  be 
called  the  act  of  God,  or  vis  major.  No  doubt  not  the  act  of  God  or 
a  vis  major  in  the  sense  that  it  was  physically  impossible  to  resist  it, 
but  in  the  sense  that  it  was  practically  impossible  to  do  so.  Had  the 
banks  been  twice  as  strong,  or  if  that  would  not  do,  ten  times,  and  ten 
times  as  high,  and  the  weir  ten  times  as  wide,  the  mischief  might  not 
have  happened.  But  those  are  not  practical  conditions,  they  are  such 
that  to  enforce  them  would  prevent  the  reasonable  use  of  property 
in  the  way  most  beneficial  to  the  community. 

So  understanding  the  finding  of  the  jury,  I  am  of  opinion  the  de- 
fendant is  not  liable.  What  has  the  defendant  done  wrong?  What 
right  of  the  plaintiff  has  she  infringed?  She  has  done  nothing  wrong, 
she  has  infringed  no  right.  It  is  not  the  defendant  who  let  loose  the 
water  and  sent  it  to  destroy  the  bridges.  She  did  indeed  store  it,  and 
store  it  in  such  quantities  that,  if  it  was  let  loose,  it  would  do,  as  it 
did,  mischief.  But  suppose  a  stranger  let  it  loose,  would  the  defend- 
ant be  liable?  If  so,  then  if  a  mischievous  boy  bored  a  hole  in  a  cis- 
tern in  any  London  house,  and  the  water  did  mischief  to  a  neighbor, 
the  occupier  of  the  house  would  be  liable.  That  cannot  be.  Then  why 
is  the  defendant  liable  if  some  agent  over  which  she  has  no  control 
lets  the  water  out?  Mr.  Mclntyre  contended  that  she  would  be  in 
all  cases  of  the  water  being  let  out,  whether  by  a  stranger  or  the 
Queen's  enemies,  or  by  natural  causes,  as  lightning  or  an  earthquake. 
Why?  What  is  the  difference  between  a  reservoir  and  a  stack  of 
chimneys  for  such  a  question  as  this?    Here  the  defendant  stored  a 

94  The  argument  of  counsel  is  omitted. 


788  TORTS   THROUGH    ACTS   OF   ABSOLUTE   LIABILITY  (Part  1 

lot  of  water  for  her  own  purposes ;  in  the  case  of  the  chimneys  some 
one  has  put  a  ton  of  bricks  fifty  feet  high  for  his  own  purposes ;  both 
equally  harmless  if  they  stay  where  placed,  and  equally  mischievous 
if  they  do  not.  The  water  is  no  more  a  wild  or  savage  animal  than 
the  bricks  while  at  rest,  nor  more  so  when  in  motion :  both  have  the 
same  property  of  obeying  the  law  of  gravitation.  Could  it  be  said  that 
no  one  could  have  a  stack  of  chimneys  except  on  the  terms  of  being 
liable  for  any  damage  done  by  their  being  overthrown  by  a  hurricane 
or  an  earthquake?  If  so,  it  would  be  dangerous  to  have  a  tree,  for  a 
wind  might  come  so  strong  as  to  blow  it  out  of  the  ground  into  a 
neighbor's  land  and  cause  it  to  dO'  damage ;  or  a  field  of  ripe  wheat, 
which  might  be  fired  by  lightning  and  do  mischief. 

I  admit  that  it  is  not  a  question  of  negligence.  A  man  may  use  all 
care  to  keep  the  water  in,  or  the  stack  of  chimneys  standing,  but  would 
be  liable  if  through  any  defect,  though  latent,  the  water  escaped  or  the 
bricks  fell.     But  here  the  act  is  that  of  an  agent  he  cannot  control. 

This  case  differs  wholly  from  Fletcher  v.  Rylands,  L.  R.  1  Ex.  265, 
279.  There  the  defendant  poured  the  water  into  the  plaintift''s  mine. 
He  did  not  know  he  was  doing  so;  but  he  did  it  as  much  as  though 
he  had  poured  it  into  an  open  channel  which  led  to  the  mine  without 
his  knowing  it.  Here  the  defendant  merely  brought  it  to  a  place 
whence  another  agent  let  it  loose.  I  am  by  no  means  sure  that  the 
likeness  of  a  wild  animal  is  exact.  I  am  by  no  means  sure  that  if  a 
man  kept  a  tiger,  and  lightning  broke  his  chain,  and  he  got  loose  and 
did  mischief,  that  the  man  who  kept  him  would  not  be  liable.  But  this 
case  and  the  case  I  put  of  the  chimneys,  are  not  cases  of  keeping  a 
dangerous  beast  for  amusement,  but  of  a  reasonable  use  of  property 
in  a  way  beneficial  to  the  community.  I  think  this  analogy  has  made 
some  of  the  difficulty  in  this  case.  Water  stored  in  a  reservoir  may  be 
the  only  practical  mode  of  supplying  a  district  and  so  adapting  it  for 
habitation.  I  refer  to  my  judgment  in  Fletcher  v.  Rylands,®^  and  I 
repeat  that  here  the  plaintiff  had  no  right  that  has  been  infringed,  and 
the  defendant  has  done  no  wrong.  The  plaintiff's  right  is  to  say  to 
the  defendant.  Sic  utere  tuo  ut  alienum  non  Isedas,  and  that  the  de- 
fendant has  done,  and  no  more. 

The  ChiivF  Baron  and  my  Brother  Cleasby  agree  in  this  judg- 
ment.    *     *     * 

Rule  absolute. 

[In  the  Court  of  Appeal.] 

Appeal  from  a  judgment  of  the  Court  of  Exchequer  (Kelly,  C.  B., 
and  Bramwell  and  Cleasby,  BB.)  making  absolute  a  rule  to  enter  the 
verdict  for  the  defendant. 

The  judgment  of  the  Court  (Cockburn,  C.  J.,  Jamus  and  Hel- 
lish, L.  JJ.,  and  Baggallay,  J.  A.)  was  read  by 

0  5  See  (1SC5)  3  Hurl.  &  C.  7S8,  ^4  L.  J.  Exch.  ISl. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  789 

Mkllish,  L.  J.  *  *  *  The  appellant  relied  upon  the  decision 
in  the  case  of  Rylands  v.  Fletcher.  In  that  case  the  rule  of  law  on 
which  the  case  was  decided  was  thus  laid  down  by  J\Ir.  Justice  Black- 
burn in  the  Exchequer  Chamber:  "We  think  the  true  rule  of  law  is 
that  the  person  who  for  his  own  purposes  brings  on  his  lands  and  col- 
lects and  keeps  there  anything  likely  to  do  mischief  if  it  escapes,  must 
keep  it  in  at  his  peril,  and  if  he  does  not  do  so,  is  prima  facie  answer- 
able for  all  the  damage  which  is  the  natural  consequence  of  its  escape. 
He  can  excuse  himself  by  showing  that  the  escape  was  owing  to  the 
plaintiff's  default;  or  perhaps  that  the  escape  was  the  consequence 
of  vis  major,  or  the  act  of  God;  but  as  nothing  of  the  sort  exists  here 
it  is  unnecessary  to  inquire  what  excuse  would  be  sufficient."  It  ap- 
pears to  us  that  we  have  two  questions  to  consider :  First,  the  question 
of  law,  which  was  left  undecided  in  Rylands  v.  Fletcher, — Can  the 
defendant  excuse  herself  by  showing  that  the  escape  of  the  water  was 
owing  to  vis  major,  or,  as  it  is  termed  in  the  law  books,  the  "act  of 
God?"  And,  secondly,  if  she  can,  did  she  in  fact  make  out  that  the 
escape  was  so  occasioned? 

Now,  with  respect  to  the  first  question,  the  ordinary  rule  of  law  is 
that  w'hen  the  law  creates  a  duty  and  the  party  is  disabled  from  per- 
forming it  without  any  default  of  his  own,  by  the  act  of  God,  or  the 
Kmg's  enemies,  the  law  will  excuse  him ;  but  when  a  party  by  his  own 
contract  creates  a  duty,  he  is  bound  to  make  it  good  notwithstanding 
any  accident  by  inevitable  necessity.  We  can  see  no  good  reason  why 
that  rule  should  not  be  applied  to  the  case  before  us.  The  duty  of 
keeping  the  water  in  and  preventing  its  escape  is  a  duty  imposed  by 
the  law,  and  not  one  created  by  contract.  If,  indeed,  the  making  a 
reservoir  w^as  a  wrongful  act  in  itself,  it  might  be  right  to  hold  that  a 
person  could  not  escape  from  the  consequences  of  his  own  wrongful 
act.  But  it  seems  to  us  absurd  to  hold  that  the  making  or  the  keeping 
a  reservoir  is  a  wrongful  act  in  itself.  The  wrongful  act  is  not  the 
making  or  keeping  the  reservoir,  but  the  allowing  or  causing  the  wa- 
ter to  escape.  If,  indeed,  the  damages  were  occasioned  by  the  act  of 
the  party  without  more — as  where  a  man  accumulates  water  on  his 
own  land,  but,  owing  to  the  peculiar  nature  or  condition  of  the  soil, 
the  water  escapes  and  does  damage  to  his  neighbor — the  case  of  Ry- 
lands V.  Fletcher,  establishes  that  he  must  be  held  liable.  The  accu- 
mulation of  water  in  a  reservoir  is  not  in  itself  wrongful ;  but  the 
making  it  and  suffering  the  water  to  escape,  if  damage  ensue,  consti- 
tute a  wrong.  But  the  present  case  is  distinguished  from  that  of  Ry- 
lands V.  Fletcher,  in  this,  that  it  is  not  the  act  of  the  defendant  in 
keeping  this  reservoir,  an  act  in  itself  lawful,  which  alone  leads  fO  the 
escape  of  the  water,  and  so  renders  wrongful  that  which  but  for  such 
escape  would  have  been  lawful.  It  is  the  supervening  vis  major  of 
the  water  caused  by  the  flood,  which,  superadded  to  the  water  in  the 
reservoir  (which  of  itself  would  have  been  innocuous),  causes  the  dis- 


790  TORTS  THROUGH  ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

aster.  A  defendant  cannot,  in  our  opinion,  be  properly  said  to  have 
caused  or  allowed  the  water  to  escape,  if  the  act  of  God  or  the  Queen's 
enemies  was  the  real  cause  of  its  escaping  without  any  fault  on  the 
part  of  the  defendant.  If  a  reservoir  was  destroyed  by  an  earthquake, 
or  the  Queen's  enemies  destroyed  it  in  conducting  some  warlike  opera- 
tion, it  would  be  contrary  to  all  reason  and  justice  tO'  hold  the  owner 
of  the  reservoir  liable  for  any  damage  that  might  be  done  by  the  escape 
of  the  water.  We  are  of  opinion,  therefore,  that  the  defendant  was 
entitled  to  excuse  herself  by  proving  that  the  water  escaped  through 
the  act  of  God. 

The  remaining  question  is,  did  the  defendant  make  out  that  the  es- 
cape of  the  water  was  owing  to  the  act  of  God?  Now  the  jury  have 
distinctly  found,  not  only  that  there  was  no  negligence  in  the  construc- 
tion or  the  maintenance  of  the  reservoirs,  but  that  the  flood  was  so 
great  that  it  could  not  reasonably  have  been  anticipated,  although,  if  it 
had  been  anticipated,  tlie  effect  might  have  been  prevented ;  and  this 
seems  to  us  in  substance  a  finding  that  the  escape  of  the  water  was 
owing  to  the  act  of  God.  However  great  the  flood  had  been,  if  it  had 
not  been  greater  than  floods  that  had  happened  before  and  might  be 
expected  to  occur  again,  the  defendant  might  not  have  made  out  that 
she  was  free  from  fault ;  but  we  think  she  ought  not  to  be  held  liable 
because  she  did  not  prevent  the  effect  of  an  extraordinary  act  of  na- 
ture, which  she  could  not  anticipate.  In  the  late  case  of  Nugent  v. 
Smith,  1  C.  P.  D.  423,  we  held  that  a  carrier  might  be  protected  from 
liability  for  a  loss  occasioned  by  the  act  of  God,  if  the  loss  by  no  rea- 
sonable precaution  could  be  prevented,  although  it  was  not  absolutely 
impossible  to  prevent  it. 

It  was  indeed  ingeniously  argued  for  the  appellant  that  at  any  rate 
the  escape  of  the  water  was  not  owing  solely  to  the  act  of  God,  because 
the  weight  of  the  water  originally  in  the  reservoirs  must  have  con- 
tributed to  break  down  the  dams,  as  well  as  the  extraordinary  water 
brought  in  by  the  flood.  We  think,  however,  that  the  extraordinary 
quantity  of  water  brought  in  by  the  flood  is  in  point  of  law  the  sole 
proximate  cause  of  the  escape  of  the  water.  It  is  the  last  drop  which 
makes  the  cup  overflow. 

On  the  whole  we  are  of  opinion  that  the  judgment  of  the  Court  of 
Exchequer  ought  to  be  affirmed. 

Judgment  affirmed.®' 

8  8  Fart  of  the  opinion  is  omitted. 


Ch.  2)        ABSOLUTE  TORTS  OTHER  THAN  TRESPASSES  791 

BOX  V.  JUBB  et  al.  C 

(High  Court  of  Justice,  Exchequer  Division,  1S79.    4  Exch.  Div.  70.) 

Case  stated  in  an  action  brought  in  the  county  court  of  Yorkshire, 

to  recover  damages  by  reason  of  the  overflowing  of  the  defendants' 

reservoir.     The  case  as  stated,  but  slightly  abridged,  was  as  follows : 

1.  The  defendants  are  the  owners  of  a  mill,  and  for  its  necessary  supply 
of  water  have  a  reservoir,  which  has  been  so  used  for  many  years.  2.  The 
plaintiff  is  the  teuant  of  premises  adjoiuiDg  the  reservoir.  3.  The  reservoir 
is  supplied  with  water  from,  and  discharges  its  surplus  water  into,  a  main 
drain  or  watercourse.  The  inlet  and  the  outlet  have  proper  doors  or  sluices, 
so  as  (when  required)  to  close  the  communication  between  the  reseiToir  and 
the  water  course.  4.  The  defendants  have  the  right  to  use  this  water  course 
by  obtaining  a  supply  of  water  from  it  aud  discharging  their  surplus  water 
into  it,  but  have  otherwise  uo  control  over  the  watercourse,  which  does  not 
belong  to  them.  5.  In  December,  1S77,  the  plaintiff's  premises  were  flooded 
by  reason  of  the  overflowing  of  the  defendants'  reservoir.  6.  This  over- 
flowing was  caused  by  the  emptying  of  a  large  quantity  of  water  from  a 
reservoir,  the  property  of  a  third  party,  Into  the  main  drain  or  watercourse 
at  a  point  considerably  above  the  defendants'  premises,  aud  by  an  obstruc- 
tion in  the  watercourse  below  the  outlet  of  the  defendants'  reservoir,  where- 
by the  water  from  the  watercourse  was  forced  through  the  doors  or  sluices 
(which  were  closed  at  the  time)  into  tlie  defendants'  reservoir.  7.  This  ob- 
struction was  caused  by  circumstances  over  which  the  defendants  had  no 
control,  and  without  their  knowledge;  and  had  it  not  been  for  such  obstruc- 
tion the  ovei"flowing  of  the  reservoir  would  not  have  happened.  8.  The  de- 
fendants' reservoir,  and  the  communications  between  it  and  the  main  drain 
or  watercourse,  and  the  doors  or  sluices,  are  constructed  and  maintalvied  in 
a  proper  manner,  so  as  to  prevent  the  overflowing  of  the  reservoir  under  all 
ordinary  circumstances.  9.  No  negligence  or  wrongful  act  is  attributable 
to  either  party. 

Under  the  circumstances  the  judge  of  the  county  court  was  of  opin- 
ion that  the  defendants  were  liable  for  the  damage  sustained  by  the 
plaintiff,  and  accordingly  gave  judgment  for  the  plaintiff. 

The  question  for  the  opinion  of  the  Court,  having  regard  to  the 
facts  set  out  in  the  case,  was  whether  the  defendants  were  liable  for 
the  damage  sustained  by  the  plaintiff  by  reason  of  the  flooding  of  his 
premises,  such  flooding  being  caused  by  water  from  a  reservoir  be- 
longing to  a  third  party,  over  which  the  defendants  had  no  control, 
and  without  any  knowledge  or  negligence  on  defendants'  part,  the 
overflowing  of  the  defendants'  reservoir  being  occasioned  by  the  act 
of  a  third  party,  over  whom  the  defendants  had  no  control,  and  no 
wrongful  act  or  negligence  being  attributable  to  the  defendants,  and 
the  direct  cause  of  the  damage  being  the  obstruction  in  the.  main  drain 
or  watercourse,  which  was  caused  by  circumstances  over  which  the 
defendants  had  no  control  and  without  their  knowledge. 

Kelly,  C.  B.  I  think  this  judgment  must  be  reversed.  *  *  * 
The  case  is  abundantly  clear  on  this,  proving  beyond  a  doubt  that  the 
defendants  had  no  control  over  the  causes  of  the  overflow,  and  no 
knowledge  of  the  existence  of  the  obstruction.  The  matters  com- 
plained of  took  place  through  no  default  or  breach  of  duty  of  the  de- 


792  TORTS  THROUGH   ACTS  OF  ABSOLUTE   LIABILITY  (Part  1 

fendants,  but  were  caused  by  a  stranger  over  whom  and  at  a  spot 
where  they  had  no  control.  It  seems  to  me  to  be  immaterial  whether 
this  is  called  vis  major  or  the  unlawful  act  of  a  stranger;  it  is  sufficient 
to  say  that  the  defendants  had  no  means  of  preventing  the  occurrence. 
I  think  the  defendants  could  not  possibly  have  been  expected  to  antici- 
pate that  which  happened  here,  and  the  law  does  not  require  them  to 
construct  their  reservoir  and  the  sluices  and  gates  leading  to  it  to  meet 
any  amount  of  pressure  which  the  wrongful  act  of  a  third  person  may 
impose.    The  judgment  must  be  entered  for  the  defendants. 

Pollock,  B.  I  also  think  the  defendants  are  entitled  to  judgment. 
Looking  at  the  facts  stated,  that  the  defendants  had  no  control  over 
the  main  drain,  and  no  knowledge  of  or  control  over  the  obstruction, 
apart  from  the  cases,  what  wrong  have  the  defendants  done  for  which 
they  should  be  held  Hable?  The  case  of  Rylands  v.  Fletcher,  L.  R.  3 
H.  L.  330,  is  quite  distinguishable.  The  case  of  Nichols  v.  Marsland, 
L.  R.  10  Ex.  255,  14  Eng.  R.  538,  is  more  in  point.  The  illustrations 
put  in  that  case  clearly  go  to  show  that  if  the  person  who  has  collected 
the  water  has  done  all  that  skill  and  judgment  can  do  he  is  not  liable 
for  damage  by  acts  over  which  he  has  no  control.  In  the  judgment  of 
the  Court  of  Appeal,  2  Ex.  D.  1,  at  p.  5,  Mellish,  L.  J.,  adopts  the  prin- 
ciple laid  down  by  this  Court.  He  says :  "If  indeed  the  damages  were 
occasioned  by  the  act  of  the  party  without  more — as  where  a  man  ac- 
cumulates water  on  his  own  land,  but  owing  to  the  peculiar  nature  or 
condition  of  the  soil  the  water  escapes  and  does  damage  to  his  neighbor 
. — the  case  of  Rylands  v.  Fletcher,  establishes  that  he  must  be  held 
liable."  Here  this  water  has  not  been  accumulated  by  the  defendants, 
but  has  come  from  elsewhere  and  added  to  that  which  was  properly 
and  safely  there.  For  this  the  defendants,  in  my  opinion,  both  on 
principle  and  authority,  cannot  be  held  liable. 

Judgment  for  the  defendants.*^ 


BAKER  V.  SNELL. 

(In  the  Court  of  Appeal.    [1908]  2  K.  B.  825.) 

The  plaintiff  was  a  housemaid  in  the  employment  of  the  defendant, 
a  licensed  victualler.  The  defendant  kept  upon  his  premises  a  dog 
which  was  known  by  him  to  be  savage.  It  was  the  duty  of  the  defend- 
ant's potman  to  let  the  dog  out  early  in  the  morning,  and  then  chain 
it  up  again  before  the  plaintiff  and  the  barmaids  came  downstairs.  On 
the  occasion  in  question  the  potman  brought  the  dog  into  the  kitchen 
where  the  plaintiff  and  the  barmaids  were  at  breakfast,  and  said,  "I 

87  The  statement  of  facts  is  abridged  and  part  of  the  opinion  of  Kelly, 
C.  B.,  is  omitted. 


fc 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  793 

will  bet  the  dog  will  not  bite  any  one  in  the  room."  He  then  let  the  dog 
go  and  said,  "Go  it,  Bob."  The  dog  then  flew  at  the  plaintiff  and  bit 
her.  It  had  previously  bitten  the  plaintiff  and  other  persons  to  the 
defendant's  knowledge.  The  plaintiff  thereupon  commenced  this  ac- 
tion for  damages  in  the  Bow  County  Court.  The  county  court  judge 
held  that  the  act  of  the  potman  was  in  fact  an  assault,  for  which  the 
defendant  was  not  liable,  and  he  accordingly  nonsuited  the  plaintiff. 
The  plaintiff  appealed,  and  the  Divisional  Court  ordered  a  new  trial; 
Channell,  J.,  on  the  ground  that  it  was  a  question  for  the  jury  whether 
the  potman  was  acting  within  the  scope  of  his  employment,  and  Sutton, 
].,  on  the  ground  that  the  owner  of  an  animal  known  to  him  to  be 
savage  keeps  it  at  his  peril  and  is  liable  for  any  injury  done  by  it, 
even  though  the  injury  is  directly  brought  about  by  the  wilful  act  of  a 
third  person.^^ 

The  defendant  appealed. 

FarwEll,  L.  J.  I  take  the  same  view  as  Channell,  J.,  did  as  re- 
gards the  potman's  authority,  but  I  do  not  agree  with  him  in  thinking 
that  the  liability  of  the  keeper  of  a  savage  animal  does  not  extend  to 
damage  directly  brought  about  by  the  intervening  voluntary  act  of 
a  third  party.  Sutton,  ].,  also  did  not  agree  with  him,  because  he  bases 
his  judgment  upon  May  v.  Burdett,  9  Q.  B.  101.  The  cases,  in  my 
opinion,  establish  that  the  law  recognizes  two  classes  of  animals — 
animals  ferje  naturae  and  animals  mansuet^  naturae.  Any  animal  of 
the  latter  class  when  known  to  its  owner  to  be  dangerous  falls  within 
the  former  class,  and  any  one  who  keeps  an  animal  of  that  nature  does 
a  wrongful  act  and  is  liable  for  the  consequences  under  whatever  cir- 
cumstances arising,  except  where  the  plaintiff  by  his  own  conduct  has 
brought  the  injury  upon  himself.  That  is  laid  down  in  Jackson  v. 
Smithson,  15  L.  J.  (Ex.)  311.  The  exact  point  of  that  decision  was 
that  an  action  for  injury  caused  by  a  ram  known  to  its  owner  to  be 
dangerous  would  lie  without  any  averment  of  negligence,  because  the 
wrongful  act  was  keeping  a  savage  beast.  The  same  principle  was 
laid  down  by  Lord  Denman  in  May  v.  Burdett,  9  Q.  B.  101.  Lord 
Denman  in  his  judgment  refers  with  approval  to  a  passage  in  Hale's 
Pleas  of  the  Crown,  vol.  1,  p.  430b,  which  concludes  as  follows: 
"And  therefore  in  case  of  such  a  wild  beast,  or  in  case  of  a  bull  or 
cow,  that  doth  damage,  where  the  owner  knows  of  it,  he  must  at  his 
peril  keep  him  safe  from  doing  hurt,  for  though  he  use  his  diligence 
to  keep  him  up,  if  he  escape  and  do  harm,  the  owner  is  liable  to  an- 
swer damages."  It  appears  to  me  to  be  absolutely  immaterial  if  the 
keeper  of  a  dangerous  animal  keeps  it  at  his  own  peril  in  all  circum- 
stances whether  the  injury  arises  from  the  actual  negligence  of  the 

8  8  For  the  case  in  the  Divisional  Court,  see  [1908]  2  K.  B.  352.  In  the  Court 
cf  Appeal  the  opinion  of  Cozens-Hardy,  M.  K.,  with  whom  Farwell,  L.  J., 
concurred,  is  omitted. 


794  TORTS  THROUGH   ACTS  OF    ABSOLUTE  LIABILITY  (Parti 

owner  or  from  the  act  of  a  third  person.  The  wrong  is  in  keeping  the 
fierce  beast,  and  the  person  who  keeps  it  is  prima  facie  responsible 
for  the  injury  arising  from  his  wrongful  act,  and  such  prima  facie 
responsibility  can  be  got  rid  of  only  in  the  manner  pointed  out  by 
Blackburn,  J.,  namely,  by  shewing  that  the  escape  was  due  to  the  plain- 
tiff's own  default,  or  perhaps  was  caused  by  vis  major  or  the  act  of 
God.    The  wrongful  act  of  a  third  person  is  no  defence. 

Kennedy,  L.  J.  This  case  I  agree  should  go  down  for  a  new  trial. 
But  I  desire  to  add,  in  regard  to  certain  other  points  which  have  been 
dealt  with  both  here  and  in  the  Court  below,  that,  as  at  present  ad- 
vised, I  agree  with  the  view  of  Channell,  J.,  which  I  think  is  in  ac- 
cordance with  the  authorities.  There  is  no  doubt  that  the  keeper  of 
a  ferocious  dog,  if  he  knows  it  to  be  ferocious,  is  in  exactly  the  same 
category  as  the  keeper  of  a  naturally  wild  animal.  That  appears  from 
the  judgment  of  Bowen,  L.  J.,  in  Filburn  v.  People's  Palace  and 
Aquarium  Co.,  25  O.  B.  D.  258.  He  says :  "If  from  the  experience 
of  mankind  a  particular  class  of  animals  is  dangerous,  though  individ- 
uals may  be  tamed,  a  person  who  keeps  one  of  the  class  takes  the  risk 
of  any  damage  it  may  do.  If,  on  the  other  hand,  the  animal  kept  be- 
longs to  a  class  which  according  to  the  experience  of  mankind,  is  not 
dangerous,  and  not  likely  to  do  mischief,  and  if  the  class  is  dealt  with 
by  mankind  on  that  footing,  a  person  may  safely  keep  such  an  animal, 
unless  he  knows  that  the  particular  animal  that  he  keeps  is  likely  to 
do  mischief."  I  infer  from  that  that  a  dog  known  by  its  owner  to 
be  dangerous  is  exactly  in  the  same  position  as  an  animal  ferse  na- 
turae. But  there  is  nothing  culpable  or  wrong  in  keeping  an  animal 
ferae  naturae.  That  appears  from  Jackson  v.  Smith  son,  15  L.  J.  (Ex.) 
311.  Piatt,  B.,  there  says:  "No  doubt  a  man  has  a  right  to  keep 
an  animal  which  is  ferse  naturae  and  no  one  has  a  right  to  interfere 
with  him  until  some  mischief  happens."  But  then  it  is  said  that  di- 
rectly the  animal  does  do  mischief  the  person  who  keeps  him  is  liable, 
and  I  do  not  doubt  that  that  is  true  in  this  sense,  that  it  does  not  lie 
on  the  injured  party  to  allege  and  prove  affirmatively  any  want  of  care 
on  the  part  of  the  keeper.  The  gist  of  the  action  is  the  scienter,  and 
in  Jackson  v.  Smithson  it  was  held  a  good  declaration  that  an  animal 
known  by  the  defendant  to  be  ferocious  was  kept  by  him  and  did  dam- 
age. The  same  thing  was  decided  in  May  v.  Burdett.  There  also 
the  declaration  was  held  good  although  there  was  no  allegation  of  neg- 
ligence. But  the  very  language  of  Lord  Denman  which  has  been  re- 
ferred to  by  the  Master  of  the  Rolls  appears  to  me  to  be  in  favour  of 
the  view  of  the  law  expressed  by  my  Brother  Channell,  because  he 
(Lord  Denman)  states  the  result  of  the  authorities  to  be  "that  who- 
ever keeps  an  animal  accustomed  to  attack  and  bite  mankind,  with 
knowledge  that  it  is  so  accustomed,  is  prima  facie  liable  in  an  action 
on  the  case  at  the  suit  of  any  person  attacked  and  injured  by  the 
animal  without  any  averment  of  negligence  or  default  in  the  securing 


Ch.  2)  ABSOLUTE   TORTS   OTHER  THAN   TRESPASSES  795 

or  taking  care  of  it."  The  very  introduction  of  the  term  "prima 
facie"  shews  that,  in  the  opinion  of  Lord  Denman,  there  may  be  an 
-answer  to  the  action ;  that  the  keeping  of  such  an  animal  with  knowl- 
edge of  its  propensities  is  not  conclusive,  although  the  keeper  is  prima 
facie  liable.  Those  words  could  not,  in  my  opinion,  be  properly  used  if 
the  view  is  correct  that  whatever  happens  the  owner  is  liable — if, 
for  example,  to  use  Channell,  J.'s,  illustration,  the  animal  was  set  on 
by  a  thief  to  bite  a  policeman  who  was  following  him.  That  being  so, 
upon  the  whole,  as  at  present  advised,  I  am  inclined  to  agree  with  my 
Brother  Channell  in  declining  to  accept  the  view  intimated  by  Bram- 
well,  B.,  in  Nichols  v.  Marsland,  L.  R.  10  Ex.  255,  that  the  liability  of 
the  keeper  of  a  savage  animal  extends  to  damage  directly  brought  about 
through  the  intervening  voluntary  act  of  a  third  person.     *     *     *  ^'* 

Granted  that  it  is  not  unlawful  for  a  man  to  keep  an  animal  ferae 
naturae,  but,  if  it  injures  his  neighbour,  the  keeper  of  the  animal  is 
prima  facie  liable  for  the  result,  the  question  here  is  whether  the 
intervening  criminal  act  of  a  third  person  is  one  of  those  things  which, 
if  proved  by  the  defendant  to  have  been  the  direct  cause  of  the  injury, 
would  absolve  the  owner  from  his  prima  facie  liability.  The  inclination 
of  my  own  opinion  is  that  it  would.  It  is  not  necessary  to  decide  the 
point  in  this  case,  but  speaking  for  myself,  with  great  deference  to  the 
other  members  of  the  Court,  I  should  have  thought  that  not  only  on 
grounds  of  justice,  but  according  to  the  law  as  stated  by  Lord  Denman 
and  Blackburn,  J.,  if  it  could  be  shewn  that  it  was  the  criminal  act 
of  a  third  party  which  made  the  animal  dangerous,  and  the  injury, 
to  the  plaintiff  was  the  direct  result  of  that  act,  the  keeper  of  the  an- 
imal would  have  a  good  defence  to  an  action  such  as  the  present. 

Appeal  dismissed.^ °° 


RICKARDS  v.  LOTHIAN. 

(Judicial  Committee  of  the  Privy  Council.     [1913]  A,  C.  263.) 

The  judgment  of  their  Lordships  was  delivered  by 
Lord  JMoulton  (after  stating  the  facts  and  delivering  the  judg- 
ment of  their  Lordships  on  the  plaintiff's  contention  that  the  defend- 
ant ought  to  have  foreseen  the  probabiHty  of  the  malicious  act  and 
taken   precautions   against   it).^     *     *     *     The   principal    contention, 

99  Kennedy,  L.  J.,  here  quoted  the  rule  of  law  announced  by  Blackburn,  .T., 
in  Fletcher  v.  Rvlands  and  adoiited  by  Lord  Cairns  when  that  case  was  be- 
fore the  House  of  Lords  ([ISOS]  L.  R.  3  H.  L.  339,  .340),  griven  in  the  text  infra. 

100  For  comments  on  Baker  v.  Snell,  see  the  article  by  Mr.  Beven  in  22 
Harvard  Law  Rev.  40.5  (1909),  the  remarks  of  Sir  Frederick  Pollock  in  25  Law 
Quarterly  Rev.  317  (1909),  "The  Dog  and  the  Potman:  or  'Go  it,  Bob,"  "  and  of 
Mr.  Salmond,  Torts  (2d  Ed.)  .388,  note  (1910). 

1  The  facts  and  the  judgment  of  the  Judicial  Committee  of  the  Privy  Coun- 
cil are  set  forth  in  the  report  of  this  case  in  its  relation  to  the  doctrine  of 
legal  cause.     See  p.  877,  infra. 


796  TORTS  THROUGH   ACTS  OF    ABSOLUTE   LIABILITY  (Part  1 

however,  on  behalf  of  the  plaintiff  was  based  on  the  doctrine  customa- 
rily associated  with  the  case  of  Fletcher  v.  Rylands.-  It  was  con- 
tended that  it  was  the  defendant's  duty  to  prevent  an  overflow  from 
the  lavatory  basin,  however  caused,  and  that  he  was  liable  in  damages 
for  not  having  so  done,  whether  the  overflow  was  due  to  any  negli- 
gent act  on  his  part  or  to  the  malicious  act  of  a  third  person. 

The  legal  principle  that  underlies  the  decision  in  Fletcher  v.  Rylands 
was  well  known  in  English  law  from  a  very  early  period,  but  it  was 
explained  and  formulated  in  a  strikingly  clear  and  authoritative  man- 
ner in  that  case  and  therefore  is  usually  referred  to  by  that  name.  It 
is  nothing  other  than  an  application  of  the  old  maxim  "Sic  utere  tuo 
ut  alienum  non  Isedas."  s     *     *     * 

The  argument  [in  Fletcher  v.  Rylands]  took  place  on  a  special  case 
stated  by  an  arbitrator  setting  forth  the  facts  and  the  contentions  of 
the  parties.  It  was  heard  in  the  first  instance  before  the  Court  of 
Exchequer,  which  by  a  majority  decided  in  favour  of  the  defendants, 
Bramwell,  B.,  dissenting.  Error  was  brought  from  this  judgment,  and 
the  Court  of  Exchequer  Chamber  (consisting  of  Willes,  Blackburn, 
Keating,  Mellor,  Montague  Smith,  and  Lush,  JJ.)  reversed  the  deci- 
sion of  the  Court  of  Exchequer  by  a  unanimous  judgment  which  was 
read  by  Blackburn,  J.  On  appeal  to  the  House  of  Lords  the  judg- 
ment of  the  Exchequer  Chamber  was  affirmed;  both  Cairns,  L.  C, 
and  Lord  Cranworth  (who  delivered  the  judgments  on  the  hearing  of 
the  appeal)  expressly  approving  of  Blackburn,  J.'s,  statement  of  the 
law  on  the  subject  in  the  judgment  appealed  from.  The  formulation 
of  the  principle  which  is  to  be  found  in  that  judgment  is  therefore  of 
the  highest  authority  as  well  from  the  fact  that  it  received  the  express 
approval  of  the  ultimate  tribunal  as  from  the  eminence  to  the  judges 
who  took  part  in  the  decision. 

So  far  as  is  necessary  for  the  present  case  the  law  on  the  point  is 
thus  laid  down  by  Blackburn,  J. : 

"We  think  that  the  true  rule  of  the  law  is  that  the  person  who,  for  his  own 
pur]X)ses,  brin.^s  on  his  land  and  collects  and  keeps  there  anythins?  likely  to 
do  mischief  if  it  escapes,  must  keep  it  in  at  his  peril ;  and  if  he  dot^s  not  do 
so,  is  prima  facie  answerable  for  all  the  damage  which  is  the  natural  con- 
sequence of  its  escape.  He  oan  excuse  himself  by  showing  that  the  escape 
was  owing  to  the  plaintiff's  default;  or,  perhaps,  that  the  escape  was  the 
consequence  of  vis  major,  or  the  act  of  God;  but  as  nothing  of  this  sort  ex- 
ists here,  it  is  unnecessary  to  inquire  what  excuse  would  be  sufiicient." 

It  will  be  seen  that  Blackburn,  J.,  with  characteristic  carefulness, 
indicates  that  exceptions  to  the  general  rule  may  arise  where  the  es- 
cape is  in  consequence  of  vis  major,  or  the  act  of  God,  but  declines 
to  deal  further  with  that  question  because  it  was  unnecessary  for  the 
decision  of  the  case  then  before  him.    A  few  years  later  the  question 

2  (I.SOG)  L.  II.  1  Ex.  2G5 ;    (ISGS)  L.  R.  3  II.  L.  OHO.     See  ante,  p.  777. 
8  Lord  Mo'dton  here  stated  the  facts  of  Fletcher  v.  Rylands. 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  797 

of  law  thus  left  undecided  in  Fletcher  v.  Rylands  came  up  for  decision 
in  a  case  arising  out  of   somewhat  similar  circumstances.*     *     '''     * 

Their  Lordships  agree  with  the  law  as  laid  down  in  the  judgments 
above  cited, ^  and  are  of  opinion  that  a  defendant  is  not  liable  on  the 
principle  of  Fletcher  v.  Rylands  for  the  damage  caused  by  the  wrong- 
ful acts  of  third  persons. 

But  there  is  another  ground  upon  which  their  Lordships  are  of 
opinion  that  the  present  case  does  not  come  within  the  principle  laid 
down  in  Fletcher  v.  Rylands.  It  is  not  every  use  to  which  land  is  put 
that  brings  into  play  that  principle.  It  must  be  some  special  use  bring- 
ing with  it  increased  danger  to  others  and  must  not  merely  be  the  ordi- 
nary use  of  the  land  or  such  a  use  as  is  proper  for  the  general  benefit 
of  the  community.  To  use  the  language  of  Lord  Robertson  in  East- 
ern and  South  African  Telegraph  Co.  v.  Cape  Town  Tramways  Com- 
panies, [1902]  A.  C.  393,  the  principle  of  Fletcher  v.  Rylands  "sub- 
jects to  a  high  liability  the  owner  who  uses  his  property  for  purposes 
other  than  those  which  are  natural."  This  is  more  fully  expressed 
by  Wright,  J.,  in  his  judgment  in  Blake  v.  Woolf,  [1898]  2  Q.  B.  426. 
In  that  case  the  plaintiff  was  the  occupier  of  the  lower  floors  of  the 
defendant's  house,  the  upper  floors  being  occupied  by  the  defendant 
himself.  A  leak  occurred  in  the  cistern  at  the  top  of  the  house  which 
without  any  negligence  on  the  part  of  the  defendant  caused  the  plain- 
tiff's premises  to  be  flooded.  In  giving  judgment  for  the  defendant 
Wright,  J.,  says :  "The  general  rule  as  laid  down  in  Rylands  v.  Fletch- 
er is  that  prima  facie  a  person  occupying  land  has  an  absolute  right 
not  to  have  his  premises  invaded  by  injurious  matter,  such  as  large 
quantities  of  water  which  his  neighbour  keeps  upon  his  land.  That 
general  rule  is,  however,  qualified  by  some  exceptions,  one  of  which  is 
that,  where  a  person  is  using  his  land  in  the  ordinary  way  and  damage 
happens  to  the  adjoining  property  without  any  default  or  negligence 
on  his  part,  no  liability  attaches  to  him.  The  bringing  of  water  on  to 
such  premises  as  these  and  the  maintaining  a  cistern  in  the  usual  way 
seems  to  me  to  be  an  ordinary  and  reasonable  user  of  such  premises 
as  these  were ;  and,  therefore,  if  the  water  escapes  without  any  negli- 
gence or  default  on  the  part  of  the  person  bringing  the  water  in  and 
owning  the  cistern,  I  do  not  think  that  he  is  liable  for  any  damage  that 
may  ensue."  * 

4  His  Lordship  here  stated,  first,  the  case  of  Niohols  v.  Marsland  (1S76)  2 
Ex.  D.  1,  and  then  Box  v.  Jubb  (1879)  4  Ex.  D.  7G,  and  quoted  at  some  length 
from  their  judgments. 

5  The  reference  is  to  Nichols  v.  Marsland  and  Box  v.  Jubb.    See  ante. 

*In  Blake  v.  Woolf,  [1898]  2  Q.  B.  42G,  the  defendant  was  the  landlord  of 
premises  which  were  let  out  in  flats,  and  had  a  cistern  on  the  fourth  floor; 
the  plaintiff  bef-ame  tenant  of  the  ground  floor  and  took  his  supply  of  water 
from  the  defendant.  A  leakage  from  this  cistern  was  noticed  by  the  plaintiff, 
who  informed  the  defendant.  The  latter  sent  an  independent  plumber  to  put 
the  cistern  to  rights.  The  plumber  was  competent,  but  through  his  negligence 
there  was  an  escape  of  water  from  the  cistern  which  damaged  plaintiff's 
goods  on  the  ground  floor. 


798  TORTS  THROUGH  ACTS  OP  ABSOLUTE   LIABILITY  (Part  1 

This  is  entirely  in  agreement  with  the  judgment  of  Blackburn,  J,, 
in  Ross  V.  Fedden  (lS72j  L.  R.  7  Q.  B.  661.  In  that  case  the  de- 
fendants were  the  occupiers  of  the  upper  floor  of  a  house  of  which  the 
plaintiff  occupied  the  lower  floor.  The  supply  and  overflow  pipes  of 
a  water-closet  which  was  situated  in  the  defendants'  premises  and  was 
for  their  use  and  convenience  got  out  of  order  and  caused  the  plain- 
tiff's premises  to  be  flooded.  Negligence  was  negatived.  In  giving 
judgment  in  favour  of  the  defendants  Blackburn,  J.,  says :  "I  think  it 
is  impossible  to  say  that  defendants  as  occupiers  of  the  upper  story 
of  a  house  were  liable  to  the  plaintiff  under  the  circumstances  in  the 
case.  The  water-closet  and  the  supply  pipe  are  for  their  convenience 
and  use,  but  I  cannot  think  there  is  any  obligation  on  them  at  all  haz- 
ards to  keep  the  pipe  from  bursting  or  otherwise  getting  out  of  order. 
The  cause  of  the  overflow  was  the  valve  of  the  supply  pipe  getting 
out  of  order  and  the  escape  pipe  being  choked  with  paper,  and  the 
judge  has  expressly  found  that  there  was  no  negligence;  and  the  only 
ground  taken  by  the  plaintiff  is  that  the  plaintiff'  and  defendants  being 
occupiers  under  the  same  landlord,  the  defendants  being  the  occupiers 
of  the  upper  story  contracted  an  obligation  binding  them  in  favour  of 
the  plaintiff,  the  occupier  of  the  lower  story,  to  keep  the  water  in  at 
their  peril.  I  do  not  agree  to  that;  I  do  not  think  the  maxim,  'Sic 
utere  tuo  ut  alienum  non  Isedas'  applies.  Negligence  is  negatived ;  and 
probably,  if  the  defendants  had  got  notice  of  the  state  of  the  pipe  and 
valve  and  had  done  nothing,  there  might  have  been  ground  for  the 
argument  that  they  were  liable  for  the  consequences ;  but  I  do  not 
think  the  law  casts  on  the  defendants  any  such  obligation  as  the  plain- 
tiff contends  for." 

Their  Lordships  are  in  entire  sympathy  with  these  views.  The  pro- 
vision of  a  proper  supply  of  water  to  the  various  parts  of  a  house  is 
not  only  reasonable,  but  has  become,  in  accordance  with  modern  san- 
itary views,  an  almost  necessary  feature  of  town  life.  It  is  recognized 
as  being  so  desirable  in  the  interests  of  the  community  that  in  some 
form  or  other  it  is  usually  made  obligatory  in  civilized  countries. 
Such  a  supply  cannot  be  installed  without  causing  some  concurrent 
danger  of  leakage  or  overflow.  It  would  be  unreasonable  for  the  law 
to  regard  those  who  install  or  maintain  such  a  system  of  supply  as 
doing  so  at  their  own  peril,  with  an  absolute  liability  for  any  damage 
resulting  from  its  presence  even  when  there  has  been  no  negligence. 

It  would  be  still  more  unreasonable  if,  as  the  respondent  contends, 
such  liability  were  to  be  held  to  extend  to  the  consequences  of  mali- 
cious acts  on  the  part  of  third  persons.  In  such  matters  as  the  domes- 
tic supply  of  water  or  gas  it  is  essential  that  the  mode  of  supply  should 
be  such  as  to  permit  ready  access  for  the  purpose  of  use,  and  hence 
it  is  impossible  to  guard  against  wilful  mischief.  Taps  may  be  turned 
on,  ball-cocks  fastened  open,  supply  pipes  cut,  and  waste-pipes  blocked. 
Against  such  acts  no  precaution  can  prevail.  It  would  be  wholly  un- 
reasonable to  hold   an  occupier  responsible  for  the  consequences  of 


Ch.  2)  ABSOLUTE    TORTS   OTHER  THAN   TRESPASSES  799 

such  acts  which  he  is  powerless  to  prevent,  when  the  provision  of  the 
supply  is  not  only  a  reasonable  act  on  his  part,  but  probably  a  duty. 
Such  a  doctrine  would,  for  example,  make  a  householder  liable  for  the 
consequences  of  an  explosion  caused  by  a  burglar  breaking  into  his 
house  during  the  night  and  leaving  a  gas  tap  open.  There  is,  in  their 
Lordships'  opinion,  no  support  either  in  reason  or  authority  for  any 
such  view  of  the  liability  of  a  landlord  or  occupier.  In  having  on  his 
premises  such  means  of  supply  he  is  only  using  those  premises  in  an 
ordinary  and  proper  manner,  and,  although  he  is  bound  to  exercise 
all  reasonable  care,  he  is  not  responsible  for  damage  not  due  to  his 
own  default,  whether  that  damage  be  caused  by  inevitable  accident  or 
the  wrongful  acts  of  third  persons.® 

6  For  the  conclusion  of  this  judgment,  see  the  report  of  this  case  in  con- 
nection with  the  doctrine  of  legal  cause,  infra,  p.  883. 


PART  II 

CAUSAL  RELATION 


CHAPTER  I 

THE  EXISTENCE  OF  A  CAUSAL  RELATION,  AND  ITS 

AFFIRMATIVE  SHOWING  AS  PART  OF  THE 

PLAINTIFF'S  PRIMA  FACIE  CASE 


It  would  be  obviously  opposed  to  any  possible  conception  of  justice 
that  any  one  should  be  required  to  answer  for  a  harm  unless  he  had 
actually  caused  it.  It  is  therefore  always  a  vital  prerequisite  tO'  recov- 
ery to  establish  that  the  plaintiff's  harm  was  caused  by  the  defend- 
ant's alleged  misconduct. 

Francis  H.  Bohlen,  "Contributory  Negligence,"  21  Harv.  Law  Rev. 
234  (1907) 


When  the  wrongful  act  of  the  defendant  is  actionable  per  se,  the 
rule  of  remoteness  determines  the  measure  of  liability,  though  not  the 
existence  of  it.  When,  on  the  other  hand,  the  wrong  is  not  actionable 
without  proof  of  actual  damage,  the  rule  of  remoteness  determines 
not  merely  the  measure  of  damages,  but  also  the  existence  of  the  cause 
of  action.  If  all  the  damage  proved  is  too  remote,  the  defendant  is 
under  no  liabilitv  at  all. 

John  W.  Salmond,  Law  of  Torts  (2d  Ed.)  105  (1910). 


Now,  the  word  "cause"  has  various  meanings,  and  shades  of  mean- 
ing. Philosophically  speaking,  the  sum  of  all  the  antecedents  of  any 
event,  constitutes  its  cause.  Ordinarily  however,  we  consider  each 
separate  antecedent  of  an  event  as  a  cause  for  such  event,  provided 
however  that  the  event  could  not  have  happened  except  for  such  ante- 
cedent. Taking  this  view  of  cause  and  effect,  there  may  be  many 
causes  conjointly  and  consecutively  contributing  to  produce  one  and 
the  same  final  result.  And  these  causes  may  differ  vastly  in  their 
proximity  or  remoteness  to  or  from  such  final  result.     But  still,  any 

(SOO) 


Ch.  1)  AS  PRIMA  FACIE  CASE  801 

one  of  them  may,  as  we  think,  be  selected  as  the  responsible  cause  for 
such  final  result,  provided  it  be  selected  in  accordance  with  the  rules 
of  law  settled  and  established  by  the  numerous  adjudications  of  the 
courts.     *     *     * 

In  the  burning  of  prairie  grass,  like  the  case  at  bar,  the  number  of 
causes  and  effects  that  may  intervene  between  the  first  cause  and  the 
final  result  is  illimitable.  Each  blade  of  grass  is  a  separate  and  dis- 
tinct entity,  and  the  burning  of  each  blade  is  both  an  effect  and  a 
cause.  It  is  the  effect  of  the  burning  of  the  blades  immediately  pre- 
ceding it,  and  the  cause,  along  with  other  blades,  of  the  burning  of  the 
blades  immediately  succeeding  it.  And  yet  all  these  causes  and  ef- 
fects are  so  intimately  interlinked  and  blended  with  each  other  that 
we  look  upon  the  whole  of  them  as  constituting  but  one  grand,  united, 
continuous  and  single  whole.  We  look  upon  the  whole  fire  as  only  one 
fire,  and  the  whole  of  these  separate  causes  as  merely  one  cause. 

Valentine.  J.,  in  Atchison,  T.  &  S.  F.  R.  Co.  v.  Bales  (1876)  16  Kan. 
252,  256,  258. 


FOGG  V.  INHABITANTS  OF  NAHANT. 

MAY  V.  SAME. 

(Supreme  Judicial  Court  of  Massachusetts,  1868.    98  Mass.  578.) 

Two  actions  of  tort;  for  personal  injuries  sustained  by  the  plaintiff 
Fogg,  and  for  injury  of  a  carriage  owned  by  the  plaintiff  May,  alleged 
to  have  been  caused  by  a  defect  in  a  highway  which  the  defendants 
were  bound  to  keep  in  repair.  These  actions  were  tried  together  in 
the  superior  court,  before  Putnam,  J.,  who  refused  a  request  for  a 
ruling  that  the  evidence  was  not  sufficient  to  support  them,  and,  after 
verdicts  for  the  plaintiffs,  reported  the  cases,  with  all  the  evidence, 
to  this  court,  new  trials  to  be  granted  if  the  ruling  requested  should 
have  been  given. 

Hoar,  j.  *  *  *  The  place  where  the  accident  happened  was  at 
the  foot  of  a  hill,  where  the  road,  which  was  narrow,  made  a  sharp 
curve,  and  with  a  gutter  and  stones  near  to  the  travelled  path.  Wheth- 
er the  road,  by  reason  of  its  steepness,  narrowness,  and  the  turn  which 
it  made,  and  the  position  and  depth  of  the  gutter,  was  reasonably  safe 
and  convenient  for  travellers,  or  whether  persons  using  due  care 
would  be  exposed  to  danger  in  passing  over  it,  we  think  was  properly 
left  to  the  jury  as  a  question  of  fact,  and  that  their  finding  upon  it  is 
not  open  for  revision  upon  this  report.  There  was  certainly  some 
evidence,  proper  for  the  consideration  of  the  jury,  which  tended  to 
support  the  plaintiffs'  case. 

But,  upon  another  point  in  the  case,  after  mature  and  careful  con- 
sideration, and  with  all  the  aid  which  the  very  able  arguments  of  coun- 
sel have  afforded  us,  we  are  unable  to  satisfy  ourselves  that  the  ver- 
dict is  consistent  with  the  law  applicable  to  the  evidence. 
Hepb.  Torts — 51 


802  CAUSAL  RELATION  (Part  2 

The  liability  of  the  town  for  an  injury  to  a  traveller,  occasioned  by 
a  defect  or  want  of  repair  in  a  highway,  depends  upon  proof  that 
the  defect  caused  the  injury.  If  a  want  of  due  care  on  the  part  of  the 
person  injured  contribute  to  cause  the  injury,  he  cannot  recover.  And 
if,  without  fault  or  negligence  on  his  part,  his  horses  have  escaped 
from  his  control,  and  have  run  away  or  become  wholly  unmanageable, 
so  that  no  care  can  be  exercised  by  him  in  respect  to  them ;  and  this 
condition  of  things  is  not  produced  by  a  defect  in  the  way ;  the  town  is 
not  responsible  for  what  may  happen  in  consequence,  even  if  the  car- 
riage upsets  at  a  place  where  the  way  is  defective. 

By  the  uncontradicted  evidence  offered  by  the  plaintiffs,  it  appeared 
that,  at  the  time  the  accident  happened,  which,  it  is  alleged  was  caused 
by  the  defect  in  the  way,  the  horses  were,  and  for  some  time  had 
been,  out  of  the  control  of  their  driver ;  and  there  was  nothing  in  the 
evidence  to  show  that,  but  for  this  fact,  the  accident  would  have  hap- 
pened. 

The  plaintiffs'  first  witness  testified  that  one  of  the  horses  driven 
at  the  time  of  the  accident  had  the  habit  of  throwing  his  tail  over  the 
rein,  and,  when  doing  it,  would  make  a  little  start  and  quicken  his  pace 
a  short  distance,  and  then  slacken  off  and  relieve  the  rein.  The  plain- 
tiff Fogg,  who  was  also  examined  as  a  witness,  made  the  same  state- 
ment in  substance,  and  said  that  he  usually  let  the  horse  take  his  own 
course  when  he  threw  his  tail  over  the  rein.  Both  of  these  witnesses 
testified,  in  effect,  that  at  the  time  of  the  accident  the  horse  threw  his 
tail  over  the  rein  as  they  were  approaching  the  top  of  the  hill ;  that 
the  driver  stooped  forward  and  took  hold  of  the  tail,  and  tried  to 
lift  it  and  extricate  the  rein,  but  in  so  doing  bent  down  the  dasher  of 
the  carriage  so  that  he  was  obliged  to  desist,  and  did  not  get  the  rein 
out ;  that  the  horses  quickened  their  pace,  the  one  with  the  rein  under 
his  tail  galloping;  that  they  went  over  the  top  of  the  hill,  and  about 
twenty  rods  down  on  the  other  side,  to  the  point  where  the  road 
turned  to  the  right,  the  driver  and  the  plaintiff  Fogg  both  pulling  on 
the  right  hand  rein,  in  order  to  turn  the  horses  round  the  curve ;  but 
that,  in  spite  of  their  united  efforts,  the  horses  bore  to  the  left,  the 
wheels  went  into  the  gutter,  and  the  carriage  upset.     *     *     * 

Assuming,  therefore,  as  the  plaintiffs'  counsel  contends,  that  the 
horses,  though  spirited,  were  safe  and  proper  horses  to  drive,  it  ap- 
pears that  by  misfortune  they  were,  at  the  time  when  the  accident 
happened,  entirely  freed  from  any  efficient  control  or  guidance  of 
their  driver ;  that  in  this  condition  they  went  at  a  rapid  rate  and  for 
a  considerable  distance,  down  a  steep  and  narrow  road;  that  the  at- 
tempt to  regain  the  mastery  of  the  rein  was  unavailing;  and  that  the 
efforts  of  two  men  were  not  sufficient  to  keep  them  in  the  path. 
Whether,  at  the  moment  of  the  upset,  the  rein  had  become  freed  from 
the  horse's  tail,  was  immaterial.  There  was  no  proof  or  pretence  that 
the  driver  had  regained  his  control  of  it  in  season  to  obtain  any  control 
of  the  horses,  or  to  have  any  power  to  guide  them. 


Ch.  1)  AS  PRIMA  FACIE  CASE  803 

These  facts  bring-  the  case  within  the  rule  laid  down  in  Davis  v. 
Dudley,  4  Allen,  557,  which  we  have  had  recently  occasion  to  re- 
consider and  apply  in  Titus  v.  Xorthbridge,  97  Mass.  258,  93  Am.  Dec. 
91,  and  Horton  v.  Taunton,  97  Mass.  266,  note. 

New  trials  granted.^ 


SOWLES  v.  .AIOORE  et  al. 
(Supreme  Court  of  Vermout,  1893.    65  Vt.  322,  26  Atl.  629,  21  L.  Et  A.  723.) 

Tyler,  J.  This  was  an  action  of  trespass  on  the  case,  brought  to 
recover  the  value  of  a  pair  of  horses  which  were  drowned  in  Lake 
Champlain  through  the  alleged  negligence  of  the  defendants  in  not 
properly  guarding  an  opening  in  the  lake,  where  they  had  been  taking 
ice,  near  a  line  of  public  travel.  The  plaintiff's  evidence  tended  to 
show  that  his  son  had  occasion  to  drive  onto  the  lake  on  the  day  of  the 
accident ;  that  the  wind  was  blowing,  and  the  ice  was  glare ;  that  in 
turning  the  team  around  the  sled  slewed,  and  brought  the  pole  against 
the  horses'  legs,  frightening  them ;  that  they  escaped  from  the  driver, 
and  ran  rapidly  from  40  to  60  rods,  and  into  the  opening,  which  was 
20  or  30  feet  long  by  40  to  60  feet  wide,  and  but  little  guarded.  The 
statute  (R.  L.  §  4321)  does  not  prescribe  the  manner  in  which  such 
openings  shall  be  guarded.  It  imposes  a  fine  upon  persons  who,  in 
localities  where  people  are. accustomed  to  travel,  make  openings,  and 
do  not  place  suitable  guards  around  them.  The  jury  found,  by  special 
verdicts,  that  the  opening  was  not  properly  guarded,  and  that  the 
plaintiff's  servant  was  in  the  exercise  of  due  care  in  respect  to  the 
team,  and  the  management  of  it. 

.  The  errors  assigned  were  in  the  court's  submitting  to  the  jury  to 
find  whether  the  horses  would  not  have  run  into  the  opening  if  it 
had  been  properly  guarded;  whether  the  guards  would  have  stopped 
them,  considering  their  fright,  and  the  speed  with  which  they  were 
running ;  and  in  the  instructions  that  the  plaintiff  must  make  out  that 
the  horses  were  drowned  by  reason  of  the  failure  of  the  defendants 
to  properly  guard  the  opening;  that  if  the  guards  would  not  have  pre- 
vented the  casualty  the  plaintiff  could  not  recover,  although  he  was  in 
the  exercise  of  due  care,  and  the  defendants  were  negligent;  that  if 
the  jury  were  satisfied,  by  a  fair  balance  of  evidence,  that  the  horses 
would  have  been  turned  away  by  a  suitable  guard,  then  the  defendants' 
negligence  caused  the  damage. 

These  instructions  did  not  contain  a  new  proposition  of  law.  It  is  a 
general  rule  that  negligence  must  not  only  be  alleged  and  proved,  but 
it  must  also  be  shown  that  it  caused  the  injury  complained  of.  When 
injury  on  the  part  of  the  plaintiff  and  negligence  on  the  part  of  the 
defendant  concur,  the  plaintiff  cannot,  nevertheless,   recover,  if  the 

1  The  statement  of  facts  is  slightly  abridged  and  parts  of  the  opinion  are 
omitted. 


804  CAUSAL  RELATION  (Part  2 

defendant  could  not,  by  the  exercise  of  due  care,  have  prevented  the 
accident  from  occurring.     Shear.  &  R.  Neg.  §  8.    In  cases  that  arose 
under  our  former  statute,  rendering  towns  liable  for  injuries  caused 
by  defective  highways,  it  was  not  sufficient  to  prove  the  existence  of 
defects.     It  must  also  have  been  shown  that  the  defects  caused  the 
injuries  alleged.     Lester  v.  Pittsford,  7  Vt.  158.    Were  the  horses  in 
such   fright,  and  running  at  such  speed,  that  they  would  have  been 
turned  from  their  course  by  such  guards  as  reasonably  prudent  men 
would  have  erected?     This  was  a  material  question  of  fact  for  the 
jury  to  decide  before  they  could  say  whether  or  not  the  defendants' 
negligence  in  respect  to  a  guard  was  the  cause  of  the  casualty.     Both 
questions  were  involved  in  the  instruction  that  the  plaintiff  must  make 
out  "that  the  horses  were  drowned  by  reason  of  the  failure  of  the 
defendants  to  properly  guard  the  hole."    Suppose  damages  were  claim- 
ed of  a  town,  caused  by  an  alleged  defective  railing  upon  a  bridge. 
Could   the  question   be  excluded   from  the   consideration   of  a   jury, 
upon  proper  evidence,  whether,  from  the  nature  of  the  accident,  a  suit- 
able railing  could  have  prevented  it?     We  think  not.     In  Titcomb  v. 
Railroad  Co.,  12  Allen  (Mass.)  254,  the  negligence  alleged  was  the  want 
of  railings  to  the  approaches  to  a  highway  bridge  which  the  defendant 
was  bound  to  maintain  over  its  railroad  at  a  crossing.     Among  other 
things  the  court  instructed  the  jury  that,  if  they  were  satisfied  that 
the  injury  to  the  plaintiff  would  not  have  occurred  if  the  fence  or 
railing  had  been  sufficient,  they  must  find-  a  verdict  for  her.     In  con- 
sidering this  subject  the  supreme  court  said:   "So  far  as  such  a  fence 
would  be  effectual  to  guard  against  injury  from  the  frightening  of  a 
horse  about  to  enter  upon  the  bridge,  by  the  approach  of  a  train  of 
cars  passing  under  the  bridge,  the  plaintiff  was  entitled  to  that  protec- 
tion.    Not  that  the  defendant  was  bound  to  maintain  a  barrier  that 
would  in  all  cases  stop  the  progress  of  a  frightened  horse  about  to 
enter  upon  the  bridge,  but  it  was  bound  to  maintain  and  keep  in  repair 
a  suitable  and  proper  fence  at  the  place;  and  if  the  discharge  of  this 
duty  would  have  prevented  the  occurrence  of  the  present  injury,  and 
the  plaintiff  is  shown  to  have  been  without  fault  on  her  part,  the  rail- 
road company  may  properly  be  charged  in  the  present  action.     The 
fact  whether  such  a  fence  would  have  prevented  the  occurrence  of 
the  injury  may  be  a  difficult  one  for  the  jury  to  find,  but  the  burden 
is  on  the  plaintiff  to  show  this,  and  if  she  can  establish  it  the  defendant 
may  be  held  liable  for  the  injuries  sustained.    The  case  of  a  horse  being 
frightened  is  one  of  the  cases  of  casualty  which  may  and  often  does 
occur,  and  is  entirely  consistent  with  a  reasonable  degree  of  care  and 
prudence  on  the  part  of  the  traveler.     Such  traveler  has  a  right,  in 
case  of  such  occurrence,  to  the  protection  which  such  a  fence  as  the 
law   requires   the    railroad   company  to   maintain   would   have  given. 
If  such  a  fence  would  have  been  unavailing,  and  the  injury  would 
still  have  occurred,  the  traveler  cannot  say  his  injury  was  occasioned 
by  any  neglect  of  the  railroad  company,  and  he  must  bear  the  loss; 


Ch.  1)  AS  PRIMA  FACIE  CASE  805 

but,  if  otherwise,  the  liability  attaches  to  the  party  bound  to  maintain 
the  fence  as  an  appendage  to  the  bridge."  In  Wilson  v.  Atlanta,  60 
Ga.  473,  it  was  alleged  that  an  injury  was  caused  by  the  defendant's 
negligence  in  not  providing  a  railing  upon  a  street.  An  instruction 
was  held  proper,  that  the  questions  whether  or  not  there  was  negH- 
gence  in  putting  up  the  railing,  and  whether  such  negligence  caused 
the  injury  to  the  plaintiff,  might  be  tested  by  the  inquiry  whether  the 
plaintiff  would  not  have  been  injured  even  if  the  railing  had  been  con- 
structed. In  Ilfrey  v.  Railway  Co.,  76  Tex.  63,  13  S.  W.  165,  the 
plaintiff"  sought  to  charge  the  defendant  with  liability  by  reason  of  its 
maintaining  an  embankment  which,  as  alleged,  caused  the  destruction 
of  the  plaintiff's  house  by  water.  It  was  held  competent  for  the  trial 
court  to  consider  evidence  tending  to  show  that  the  house  would  have 
been  swept  away  by  the  storm,  regardless  of  the  embankment ;  to  find 
that  fact  from  a  preponderance  of  the  evidence ;  and  that  the  embank- 
ment was  not  the  proximate  cause  of  the  destruction.  In  Railroad 
Co.  V.  Bailey,  11  Ohio  St.  333,  it  was  alleged  that  the  defendant  neg- 
ligently ran  its  train  so  as  to  kill  the  plaintiff's  horses.  It  was  held 
error  for  the  court  to  refuse  an  instruction  to  the  jury  that,  though 
the  defendant  was  negligent,  the  plaintiff  must  fail  in  his  action  if  the 
jury  believed  from  the  evidence  that  due  care,  had  it  been  used,  would 
not  have  prevented  the  injury.  A  corresponding  proposition  was  con- 
tained in  Judge  Steele's  charge  in  Walker  v.  Westfield,  39  Vt.  246, 
which  was  construed  by  this  court  to  mean  that,  though  the  plaintiffs 
were  not  in  the  exercise  of  due  care,  if  "such  want  of  care  did  not 
contribute  to  the  accident,  then  it  is  of  no  consequence  in  the  case,  and 
will  not  prevent  a  recovery."  We  find  the  instructions  fully  sus- 
tained, both  by  reason  and  authority.  *  *  *  2 
Judgment  affirmed. 


WEEKS  V.  McNULTY  et  al. 

(Supreme  Court  of  Tennessee,  1S98.    101  Tenn.  495,  48  S.  W.  809,  43  L.  R.  A. 

185,  70  Am.  St.  Rep.  693.) 

Action  to  recover  damages  for  the  death  of  plaintiff's  husband, 
Arthur  Weeks,  through  the  alleged  negligence  of  the  defendants.  The 
declaration  alleged  that  the  defendants  were  the  owners  and  pro- 
prietors of  the  Hotel  Knox,  a  public  inn  in  the  city  of  Knoxville,  and 
had  negligently  permitted  this  hotel  to  be  in  an  unsafe  condition. 
More  specifically,  it  was  alleged,  in  a  second  count  of  the  declaration, 
that  the  defendant  had  failed  to  provide  fire  escapes,  as  ordered  by  an 
ordinance  of  the  city  of  Knoxville,  or  other  reasonable  means  of 
escape  from  the  building.  The  defendants  pleaded  not  guilty.  The 
trial  resulted  in  a  verdict  and  judgment  for  the  defendants.  The 
plaintiff  appealed. 

2  JPart  of  the  opinion  is  omitted. 


806  CAUSAL  RELATION  (Part  2 

It  appeared  that  on  the  evening  of  April  7,  1897,  Arthur  Weeks,  a 
travelhng  salesman  from  Rochester,  New  York,  reached  Knoxville, 
registered  at  the  Hotel  Knox,  and  was  assigned  to  Room  49  on  the 
third  floor.  About  3  o'clock  in  the  morning  following,  Hotel  Knox 
was  destroyed  by  fire,  and  Weeks  perished  in  the  flames.  The  fire 
was  first  discovered  by  the  night  watchman  of  the  hotel,  who  im- 
mediately gave  the  alarm,  ascended  the  stairway  leading  to  the  second 
and  third  floors,  knocked  upon  the  doors,  and  made  every  eft'ort  to 
arouse  the  guests.  All  the  guests  escaped,  excepting  Weeks  and 
one  other.  One  of  the  guests,  as  he  passed  out,  heard  some  one  in  49 
pounding  at  the  door,  and  noticed  that  he  had  kicked  out  one  of  the 
panels.  It  is  also  shown  that  persons  occupying  rooms  on  the  same 
floor  with  Weeks,  immediately  contiguous,  and  across  the  hall  in 
opposite  and  diagonal  directions,  all  received  the  alarm,  and  succeeded 
in  making  their  escape.  The  building  was  provided  with  a  front  and 
a  rear  stairway,  but  had  no  fire  escapes.  South  of  the  Hotel  Knox, 
and  immediately  adjoining,  was  the  banking  house  of  the  Third  Na- 
tional Bank,  only  one  story  in  height;  and  several  of  the  guests  leaped 
upon  its  roof  from  the  burning  hotel  building.  This  mode  of  escape 
was  accessible  to  deceased,  since  his  window  overlooked  the  roof,  but 
it  was  not  shown  that  he  had  knowledge  of  it. 

McAlister,  J.  *  *  *  The  fourth  assignment  is  that  the  court 
erred  in  excluding  the  ordinance  of  the  city  of  Knoxville  requiring 
the  owners  and  keepers  of  hotels  to  erect  fire  escapes  thereon.  The 
objection  offered  to  this  testimony  was  that  the  ordinance  in  question 
contemplated  that  notice  to  erect  fire  escapes  must  be  given  to  the 
owner  of  the  property  by  the  board  of  public  works,  and  that  no  such 
notice  was  given  to  the  owner  and  proprietor  of  Hotel  Knox.  The 
declaration,  as  already  observed,  alleged  that  the  defendants  had  failed 
to  provide  fire  escapes  for  Hotel  Knox,  "as  ordered  by  an  ordinance 
of  the  city  of  Knoxville."     *     *     * 

We  do  not  however  decide  the  effect  of  the  breach  of  the  ordinance 
in  fixing  civil  liability,  nor  do  we  adjudicate  the  proper  construction 
of  the  ordinance  offered  in  evidence,  since  neither  question  is  neces- 
sarily involved  in  this  case,  for  the  following  reason,  namely :  There 
is  no  proof  in  the  record  even  tending  to  show  that  the  deceased  lost 
his  life  in  consequence  of  the  failure  to  construct  fire  escapes  as  pro- 
vided by  the  city  ordinance.  The  principle  is  recognized  in  all  the 
cases  that  a  liability  cannot  be  predicated  alone  upon  the  breach  of 
an  ordinance,  but  it  must  affirmatively  appear  that  the  injury  sustained 
resulted  proximately   from   said  breach.     *     *     * 

After  a  very  attentive  reading  of  the  record  in  this  cause,  we  have 
failed  to  discover  any  causal  connection  between  the  death  of  plaintiff's 
intestate  and  the  failure  of  defendants  in  error  to  erect  fire  escapes, 
as  required  by  the  ordinance.  It  is  not  shown  that  deceased  was  at 
a  window,  or  in  any  position  where  a  fire  escape  would  have  aft'orded 
him  any  benefit  whatever.    There  is  evidence  tending  to  show  that  de- 


Ch.  1)  AS  PRIMA  FACIE  CASE  807 

ceased  had  locked  himself  in  his  room,  and  was  heard  beating  on  his 
door,  trying  to  make  his  escape.  It  is  shown  that  one  of  the  windows 
of  his  room  overlooked  the  Third  National  Bank  Building,  and  that 
deceased  could,  and  with  entire  safety  to  himself,  have  escaped  by 
leaping  to  the  roof  of  that  building,  as  many  others  similarly  situated 
successfully  did  escape.  As  already  stated,  it  is  not  shown  that  de- 
ceased knew  of  this  avenue  of  escape,  and  we  cannot  perceive  how 
he  would  have  benefited  by  fire  escapes  under  the  circumstances  sur- 
rounding him.  We  are  therefore  of  opinion  that  if  the  contention  of 
counsel  for  plaintiff  in  error  in  respect  of  the  proper  construction  of 
this  ordinance  were  correct,  and  that  its  breach  would  constitute 
actionable  negligence,  these  questions  are  mere  abstractions  in  this 
case,  since  no  causal  connection  between  the  violation  of  the  ordinance 
and  the  injuries  sustained  by  the  plaintiff  is  shown.  *  *  * 
No  reversible  error.     Affirmed.^ 


AIKEN  V.  CITY  OF  COLUMBUS. 

(Supreme  Court  of  Indiana,  1906.     167  Ind.  139,  78  N.  E.  657,  12  L.  R.  A. 

[N.  S.]  416.) 

GiLLETT,  J.  By  appellant's  complaint  in  this  action  appellee  was 
sought  to  be  charged  wnth  negligence  in  the  management  of  its  public 
lighting  system,  whereby  appellant's  intestate  was  killed,  on  his  own 
premises,  by  coming  in  contact  with  a  live  wire,  belonging  to  appellee, 
which  had  fallen  from  its  electric  light  pole  in  the  adjoining  street.  A 
demurrer  was  sustained  to  the  complaint,  and  from  the  judgment 
which  followed  appellant  appeals. 

It  is  contended  by  counsel  for  appellee  that,  as  it  does  not  appear 
that  the  city  made  any  use  of  said  system  other  than  for  the  purpose 
of  lighting  its  streets,  it  was  acting  in  a  governmental  capacity,  and 
is  therefore  not  to  be  held  liable  for  the  negligence  of  its  employes  and 
servants  in  the  management  of  the  property.     *     *     * 

We  are  satisfied  that  we  are  within  the  authorities  in  holding,  as  we 
do,  that  a  city  or  town  is  answerable  ex  delicto  for  any  direct  invasion 
of  the  rights  of  third  persons  in  the  management  of  its  public  lighting 
system.  While  the  doctrine  of  immunity  of  municipal  corporations 
in  matters  purely  governmental  is  too  well  established  upon  the  au- 
thorities to  be  shaken,  yet  we  are  of  opinion  that  public  policy  requires 
that  the  doctrine  should  be  kept  strictly  within  limits,  to  the  end  that 
so  far  as  possible  corporate  liability  may  prompt  those  charged  with 
responsibility  in  the  government  of  cities  and  towns  to  be  alert  to  pre- 
vent wrongs  to  third  persons  in  the  maintenance  of  municipal  prop- 
erty. 

3  Tne  statement  of  facts  Is  abridged  and  parts  of  the  opinion  are  omitted. 


808  CAUSAL  RELATION  (Part  2 

The  point  is  made,  however,  that  although  it  appears  that  the  fall  of 
the  wire  was  the  proximate  cause  of  the  death  of  appellant's  intestate, 
and  that  said  wire  had  become  weak  and  rotten,  in  which  respect  ap- 
pellee is  charged  with  negligence,  yet  it  is  not  alleged  that  the  wire 
fell  by  reason  of  such  defective  condition.  Although  it  is  clear  from  a 
reading  of  the  complaint  that  this  was  an  assumed  fact,  yet  the  omis- 
sion of  the  allegation  renders  the  complaint  insufficient,  and  an  affirm- 
ance must  follow.     *     *     * 

Judgment  affirmed.* 


WILLIAMS  V.  GREAT  WESTERN  RY.  CO. 

(Court  of  Exchequer,  1874.     L.  R.  9  E-xch.  157.) 

Action  to  recover  damages  for  personal  injuries  suffered  by  the 
plaintiff  through  the  defendants'  negligence. 

The  case  was  tried  before  Keating,  J.,  at  the  Denbighshire  Summer 
Assizes,  1873,  and  the  following  facts  appeared :  At  the  place  where 
the  accident  occurred  the  defendants'  line  ran  for  some  distance  on 
the  level  across  a  piece  of  open  ground,  and  for  a  space  of  150  yards 
was  wholly  unfenced.  At  a  point  in  this  unfenced  part  it  was  crossed 
by  a  public  carriage  road  on  the  level,  and  at  another  point  about  thir- 
ty yards  oft',  by  a  public  foot  path,  also  on  the  level,  which  struck  off 
from  the  road  some  little  distance  before  it  reached  the  line. 

On  the  22d  of  December,  1871,  the  plaintiff,  a  child  of  four  and  a 
half  years  old,  was  found  lying  on  the  rails  by  the  foot  path,  with  one 
foot  severed  from  his  body.  There  was  no  evidence  to  show  how  the 
child  had  come  there  beyond  this,  that  he  had  been  sent  on  an  errand 
a  few  minutes  before  from  the  cottage  where  he  lived,  which  lay  by 
the  roadside,  at  about  300  yards  distance  from  the  railway,  and  far- 
ther from  it  than  the  point  where  the  foot  path  diverged  from  the 
road.  It  was  suggested  on  the  part  of  the  defendants  that  he  had 
gone  along  the  road,  and  then,  reaching  the  railway,  had  strayed  down 
the  line ;  and  on  the  part  of  the  plaintiff,  that  he  had  gone  along  the 
open  foot  path,  and  was  crossing  the  line  when  he  was  knocked  down 
and  injured  by  the  passing  train.  The  learned  judge  thought  there 
was  no  evidence  to  go  to  the  jury  of  liability  on  the  defendants,  and 
nonsuited  the  plaintiff,  reserving  leave  to  him  to  move  to  enter  a  ver- 
dict for  £250,  the  amount  at  which  the  jury  had,  by  consent,  assessed 
the  damages,  if  there  was  any  evidence  for  the  jury  in  support  of  the 
declaration. 

Pollock,  B.  The  question  in  this  case  is  whether  there  was  any  evi- 
dence that  ought  to  have  been  left  with  the  jury.     I  should  be  sorry 

*  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point. 

Compare:  City  of  Crawfordsville  v.  Van  Cleave  (190G)  39  Ind.  App.  574,  77 
N.  K.  lir.»,  where  a  causal  connection  which  counsel  had  assumed  to  be  too 
clear  for  words  was  held  to  be  not  shown  for  the  purpose  of  tlie  demurrer. 


Ch.  1)  AS  PRIMA  FACIE  CASE  809 

to  think  that  we  were  extending  the  rule  on  the  subject  of  negHgence 
which  was  laid  down  by  Willes,  J.,  in  the  case  of  Daniel  v.  Metro- 
politan Ry.  Co.  (Law  Rep.  3  C.  P.  216,  at  page  222),  in  terms  which 
were  approved  of  in  the  Exchequer  Chamber  and  the  House  of  Lords 
(Law  Rep.  3  C.  P.  591 ;  Id.  5  H.  L.  45),  although  the  decision  itself 
was  reversed.  "It  is  not  enough  for  the  plaintiff  to  shew  that  there 
has  been  an  accident  upon  the  defendants'  line,  and  thence  to  argue 
that  the  company  are  liable  even  prima  facie.  It  is  necessary  for  the 
plaintiff  to  establish  by  evidence  circumstances  from  which  it  may 
fairly  be  inferred  that  there  is  reasonable  probability  that  the  accident 
resulted  from  the  want  of  some  precaution  which  the  defendants 
might  and  ought  to  have  resorted  to;  and  I  go  further  and  say  that 
the  plaintiff  should  also  shew  with  reasonable  certainty  what  particu- 
lar precautions  should  have  been  taken." 

Can  we,  consistently  with  the  rule  so  laid  down,  hold  that  there  was 
evidence  which  might  have  been  submitted  to  the  jury?  Now  as  to 
there  being  a  non-performance  of  what  was  enjoined  by  the  Act  of 
Parliament,  there  is  no  doubt  about  it;  and  it  is  not  for  us  to  specu- 
late on  what  was  the  precise  intention  of  the  legislature  when  they 
required  that  there  should  be  a  gate  or  stile  on  a  footpath  crossing  on 
a  level.  It  is  sufficient  to  say  that  the  defendants  have  neglected  to 
comply  with  the  enactment. 

Then  can  it  be  inferred  with  reasonable  probability  that  the  accident 
occurred  by  reason  of  this  negligence,  so  as  to  make  this  a  question 
for  the  jury?  I  was  at  first  impressed  with  the  view  that  this  was 
like  the  case  in  which  it  has  been  held  that  where  there  is  an  even 
balance  of  the  evidence,  so  that  no  inference  can  be  properly  drawn 
one  way  more  than  the  other,  the  judge  must  not  leave  the  question 
to  the  jury.  The  real  question  is,  whether  the  negligence  can  reason- 
ably be  so  connected  with  the  accident  as  to  allow  of  a  jury  saying 
that  it  did  in  fact  give  occasion  to  it.  Upon  the  whole,  I  think  that 
there  was  evidence  which  might  be  left  to  the  jur}',  and  the  rule  must 
therefore  be  made  absolute. 

AmphlETT,  B.  ]My  opinion  has  fluctuated  during  the  argimient,  but 
I  have  come  to  a  conclusion  satisfactory  to  my  own  mind  that  the  ver- 
dict should  be  entered  for  the  plaintiff.  We  start  with  the  fact  that 
the  defendants  have  failed  to  comply  with  the  express  provisions  of 
the  statute,  and  this  is  an  act  of  gross  negligence.  I  think  nothing 
turns  on  the  neglect  at  the  carriage  way.  But  the  child  was  in  fact 
found  upon  the  foot  way,  and  the  proper  presumption  is  that  it  met 
with  the;  accident  on  the  footway,  and  whilst  it  was  crossing  the  line. 
Then  the  child  being  lawfully  on  the  foot  way,  and  the  defendants  being 
guilty  of  a  breach  of  duty,  the  only  question  is  whether  there  is  rea- 
sonable ground  for  connecting  this  breach  of  duty  with  the  accident. 
It  is  not  necessary  to  decide  this  as  a  jury;  it  is  enough  to  say  that 
I  think  it  was  clearly  a  case  which  ought  to  be  submitted  to  a  jury. 
There  are  many  supposable  circumstances  under  which   the  accident 


810  CAUSAL  RELATION  (Part  2 

may  have  happened,  and  which  would  connect  the  accident  with  the 
neglect.  If  the  child  was  merely  wandering  about,  and  he  had  met 
with  a  stile  he  would  probably  have  been  turned  back;  and  one  at 
least  of  the  objects  for  which  a  gate  or  a  stile  is  required  is  to  warn 
people  of  what  is  before  them,  and  to  make  them  pause  before  reach- 
ing a  dangerous  place  like  a  railroad.  The  rule  must  be  made  abso- 
lute. 

Rule  absolute.^ 

6  In  Hayes  v.  Michigan  Cent.  R.  R.  Co.  (1884)  111  U.  S.  228,  4  Sup.  Ct.  369, 
28  L.  Ed.  410,  the  facts  were  as  follows:  An  eight  j'ear  old  boy,  bright  and 
well  grown,  but  deaf  and  dumb,  had  been  run  over  by  a  train  of  the  defend- 
ant railway  company.  There  was  no  contributory  negligence  in  the  boy. 
The  particular  negligence  charged  against  the  defendant  was  its  omission  to 
build  a  fence  along  its  right  of  way  through  a  city  park,  as  required  by  a  city 
ordinance.  The  trial  court  directed  a  verdict  for  the  defendant.  On  error, 
this  judgment  was  revereed  by  the  Supreme  Court,  where  Mr.  Justice  Math- 
ews, delivering  the  opinion,  remarked: 

"It  is  further  argued  that  the  direction  of  the  court  below  was  right,  be- 
cause the  want  of  a  fence  could  not  reasonably  be  alleged  as  the  cause  of  the 
injury.  In  the  sense  of  an  efficient  cause,  causa  causans,  this  is,  no  doubt, 
strictly  true  i  but  that  is  not  the  sense  in  which  the  law  uses  the  term  in  this 
connection.  The  question  is,  was  it  causa  sine  qua  non;  a  cause,  which  if 
it  had  not  existed,  the  injury  would  not  have  taken  place,  an  occasional  cause, 
and  that  is  a  question  of  fact,  unless  the  causal  connection  is  evidently  not 
proximate.  Milwaukee  &  St.  Paul  R.  R.  Co.  v.  Kellogg  (1S7(3)  94  U.  S.  469,  24 
1j.  Ed.  256.  The  rule  laid  down  by  Willes,  J.,  in  Daniel  v.  ^Metropolitan  R. 
Co.  (1868)  L.  R.  3  C.  P.  216,  222,  and  approved  by  the  Exchequer  Chamber  (1868) 
L,.  R.  3  C.  P.  591,  and  by  the  House  of  Lords  (1871)  L.  R.  5  H.  L.  45,  was  this: 
'It  is  necessary  for  the  plaintiff  to  establish  by  evidence,  circumstances  fro)n 
which  it  may  be  fairly  inferred  that  there  is  a  reasonable  probability  that 
the  accident  resulted  from  the  want  of  some  precaution  which  the  defendants 
might  and  ought  to  have  resorted  to;'  and  in  the  case  of  Williams  v.  Great 
Western  R.  Co.  (1874)  L.  R.  9  Exch.  157,  where  that  rule  was  applied  to  a 
case  similar  to  the  present,  it  was  said,  page  162:  'There  are  many  sup- 
posable  circumstances  under  which  the  accident  may  have  happened  and 
which  would  connect  the  accident  with  the  neglect.  If  the  child  was  merely 
wandering  about  and  he  had  met  \rith  a  stile,  he  would  probably  have  been 
turned  back ;  and  one  at  least  of  the  objects  for  which  a  gate  or  stile  is  re- 
quired, is  to  warn  people  of  what  is  before  them  and  make  them  pause  before 
reaching  a  dangerous  place  like  a  railroad.' 

"The  evidence  of  the  circumstances,  showing  negligence  on  the  part  of  the 
defendant,  which  may  have  been  the  legal  cause  of  the  injury  to  the  plain- 
titf,  according  to  the  rule  established  in  Railroad  Co.  v.  Stout  (1873)  17  Wall. 
657  (84  U.  S.)  21  L.  Ed.  745,  and  Randall  v.  B.  &  O.  R.  R.  Co.  (18S.3)  109  U. 
S.  478,  3  Sup.  Ct.  322,  27  L.  Ed.  1003,  should  have  been  submitted  to  the  jury; 
and  for  the  error  of  the  Circuit  Court  in  directing  a  verdict  for  the  defendant, 
the  judgment  is  reversed  and  a  new  trial  awarded." 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  811 

CHAPTER  II 
THE  TESTS  OF  LEGAL  CAUSE 


SECTION  1.— THE  "PROXIMATE  CAUSE" 


"In  jure  non  remota  causa,  sed  proxima,  spectatur:"  It  were  in- 
finite for  the  law  to  judge  the  causes  of  causes,  and  their  impulsions 
one  of  another:  therefore,  it  contenteth  itself  with  the  immediate 
cause;  and  judgeth  of  acts  by  that,  without  looking  to  any  further 
degree. 

Francis  Bacon,  The  Maxims  of  the  Law,  Reg.  1  (1596).^ 


Guesswork  perhaps  would  have  taught  us  that  barbarians  will  not 
trace  the  chain  of  causation  beyond  its  nearest  link,  and  that,  for 
example,  they  will  not  impute  one  man's  death  to  another  unless  that 
other  has  struck  a  blow  which  laid  a  corpse  at  his  feet.  All  the  evi- 
dence however  points  the  other  way :  I  have  slain  a  man  if  but  for 
some  act  of  mine  he  might  perhaps  be  yet  alive.  Very  instructive  is 
a  formula  which  was  still  in  use  in  the  England  of  the  thirteenth 
century;  one  who  was  accused  of  homicide  and  was  going  to  battle 
was  expected  to  swear  that  he  had  done  nothing  whereby  the  dead 
man  was  "further  from  life  or  nearer  to  death."  Damages  which  the 
modern   English  lawyer  would  assuredly   describe   as   "too   remote" 

1 14  Bacon's  Works  (Spedding  Bd.)  1S9. 

"This  maxim,  with  its  gloss,  is  frequently  cited  as  'an  all-sufficient  state- 
ment of  thQ  reasons  for  every  decision  upon  a  question  of  legal  cause.'  In- 
deed the  expression  'proximate  cause'  is  generally  used  instead  of  'legal 
cause,'  and  it  is  often  under  the  former  head  that  one  must  look  in  digest  for 
authorities  on  causation.  This  use  of  the  maxim  as  a  universal  solvent  of 
ditficulties  has  been  productive  of  infinite  confusion  and  error.  Taking  the 
words  in  their  natural  signification,  the  maxim  is  not  a  correct  statement  of 
the  law.  Taken  literally,  the  maxim  would  be  understood  as  implying  that 
the  antecedent  which  is  nearest  in  space  or  time  is  invariably  to  be  regarded 
as  the  legal  cause;  and  it  might  also  be  understood  as  putting  material 
antecedents,  forces  of  nature,  on  an  equal  footing  with  voluntary  and  re- 
sponsible human  actors.  But  it  is  a  mistake  to  supix)se  that  contiguity  in 
space  or  nearness  in  time  are  legal  tests  of  the  existence  of  causal  relation. 
iSo  doubt  these  elements  are  often  important  to  be  considered  in  determining 
the  question  of  fact  as  to  the  existence  of  such  relation:  but  lack  of  contigui- 
ty or  nearness  would  not,  as  matter  of  law,  conclusively  establish  that  the 
defendant's  tort  was  not  the  cause  of  the  damage.  Bacon's  language  has  re- 
peatedly been  criticized."  Professor  Jeremiah  Smith,  "Legal  Cause  in  Actions 
of  Tort."    25  Harv.  Law  Rev.  106. 


812  CAUSAL  RELATION  (Part  2 

were  not  too  remote  for  the  author  of  the  Leges  Ilenrici.  At  your 
request  I  accompany  you  when  you  are  about  your  own  affairs;  my 
enemies  fall  upon  and  kill  me;  you  must  pay  for  my  death.  You 
take  me  to  see  a  wild-beast  show  or  that  interesting  spectacle  a 
madman ;  beast  or  madman  kills  me ;  you  must  pay.  You  hang  up 
your  sword ;  some  one  else  knocks  it  down  so  that  it  cuts  me ;  you 
must  pay.  In  none  of  these  cases  can  you  honestly  swear  that  you 
did  nothing  that  helped  to  bring  about  death  or  wound. 
2  Pollock  and  Maitland,  Hist.  Eng.  Law  (2d  ed.)  470. 


We  have,  then,  to  deal  with  the  primitive  notion  which  instinctively 
visits  liability  on  the  visible  offending  source,  whatever  it  be,  of  a  vis- 
ible evil  result.  The  notion,  as  applied  to  persons,  is  that  of  the 
schaedliche  Alann,  a  person  from  whom  some  evil  result  has  pro- 
ceeded. *  *  *  An  example  showing  an  exceptionally  late  sur- 
vival of  these  ideas,  and  at  the  same  time  the  transition  to  different 
standards  [is  found  in  the  following  instance,  drawn  from  Frisian 
Chronicles  of  1439]  : 

"Owen  Alwerk  was  brewing  beer.  During  his  absence  the  child 
of  Swein  Pons  came  in  and  stood  by  the  kettle.  The  kettle  slipped 
from  its  hook,  and  the  liquid  burned  the  child  so  that  it  died  on  the 
third  day.  The  relatives  of  the  child  pursued  Alwerk,  who  fled  to 
the  house  of  a  friend  for  refuge.  The  master  of  the  house  opposed 
the  entrance  of  the  pursuers,  and  an  affray  ensued,  in  which  the 
master  by  inadvertence  killed  his  own  nephew.  The  affair  was  laid 
before  six  men  as  judges;  and  they  decided  at  first  that  Alwerk  must 
pay  the  head  money  for  the  dead  child  and  for  the  dead  nephew, 
and  must  besides  make  a  pilgrimage  to  Rome.  But  Alwerk  opposed 
the  judgment,  and  to  such  a  good  purpose  that  they  altered  it  to  this 
effect, — that  he  should  be  absolved  without  more  from  the  child's 
death,  and  from  the  nephew's  if  he  swore  that  he  did  not  urge  on  the 
master  of  the  house  to  fight." 

John  H.  Wigmore,  "Responsibility  for  Tortious  Acts."  ^ 

2  In  3  Select  Essays  in  Anglo-American  Legal  History,  483,  reprinted  frou) 
7  Harv.  Law  Rev.  319  (1S94). 

An  instance  of  the  "but-for"  rule  in  legal  causation,  affirmatively  applied 
in  modern  law,  is  found  in  Gilman  v.  Noyes  (1876)  57  X.  H.  627:  The  bars  into 
r.'s  pasture  had  been  nejj;ligently  left  down  by  D.  As  a  result,  P.'s  sheep  got 
out  of  the  pasture.  They  were  never  found.  The  evidence  tended  to  show 
that  they  had  been  devoured  by  bears.  The  jury  were  instructed  that  if  the 
sheep  escaped  in  consequence  of  the  bars  being  left  down  by  D.,  and  would 
not  have  been  killed  but  for  this  act  by  I).,  he  was  liable.  The  reviewing 
court  held  this  instruction  erroneous.  See  infra,  "Intervening  Agency  as  a 
Test  of  Legal  Cause."  See  also  Professor  Bohlen's  remarks  in  21  Harv.  Law 
Kev.  234-235  (1908). 


Ch.  2)  THE  TESTS  OF  LEGAL   CAUSE  813 

Although  Lord  Bacon,  long  ago,  referred  to  this  question  of  re- 
moteness, it  has  been  left  in  very  great  vagueness  as  to  what  consti- 
tutes the  limitation.  *  *  *  It  is  a  vague  rule,  and  as  Bramwell, 
B.,  said,  it  is  something  like  having  to  draw  a  line  between  night  and 
day;  there  is  a  great  duration  of  twilight  when  it  is  neither  night  nor 
day. 

Blackburn,  J.,  in  Hobbs  v.  London  &  Southwestern  Railway  Co. 
(1875)  L.R.  lOQ.  B.  Ill,  121. 


Lord  Bacon,  in  interpreting  this  maxim,  says :  "It  were  infinite 
for  the  law  to  consider  the  causes  of  causes,  and  their  impulsion  of 
each  other;  therefore  it  contenteth  itself  with  the  immediate  cause, 
and  judgeth  of  acts  by  that,  without  looking  to  any  farther  degree." 
Maxims  of  Law,  1.  The  law  indeed  is  not  to  inquire  into  the  causes 
of  causes,  but  it  is  anxiously  to  inquire  for  the  true  cause,  and  to 
distinguish  between  the  cause  and  that  which  is  ordinarily  incidental 
to  it.  Some  idea  of  what  Lord  Bacon  means  is  furnished  by  the 
first  case  which  he  gives  in  illustration.  An  annuity  was  granted  pro 
consilio  impenso  et  impendendo.  The  grantee  was  committed  for 
treason,  so  that  the  grantor  could  not  have  access  to  him  for  counsel. 
It  was  held  that  the  annuity  was  not  determined,  the  involuntary, 
compulsory  imprisonment  being  a  sufficient  excuse,  into  the  cause  of 
which  the  law  would  not  inquire. 

So  a  familiar  illustration  may  be  found  in  an  indictment  for  homi- 
cide, where  the  defence  is  insanity.  If  the  insanity  be  shown,  the 
law  wall  not  inquire  as  to  the  cause  of  the  insanity,  to  show  that  it 
had  its  origin  in  the  misconduct  of  the  defendant. 

So  if  a  building  insured  were  destroyed  by  fire  resulting  from 
the  negligence  of  the  owner's  servants,  it  would  not  be  competent  to 
show  that  their  habits  of  negligence  were  the  result  of  the  inattention 
and  lax  discipline  of  the  master. 

That  is  to  say,  a  distinct  substantive  cause  being  shown,  the  law 
will  not  go  behind  it  and  inquire  as  to  its  cause.  It  does  not  "consider 
the  causes  of  causes."  And  this  is  the  meaning  and  the  extent  of 
meaning  of  this  familiar  maxim  of  causa  proxima.  It  is  certainly  true, 
that  it  is  not  always  easy  to  determine  what  is  the  efficient,  procuring 
cause.  But  the  difficulty  is  not  in  the  rule,  but  because  our  conclusions 
are  drawn  always  with  imperfect  instruments,  and  often  from  an  im- 
perfect view  of  the  facts.  It  is  also  true  that,  philosophically,  we  know 
little  of  the  relation  of  cause  and  efifect.  But  it  is  equally  true  that,  in 
all  the  highest  practical  affairs  of  life,  we  recognize  and  act  upon  this 
relation ;  and  that,  when  so  acting,  we  seek  the  true,  efficient,  pro- 
curing cause,  and  not  that  nearest  in  point  of  time  or  space. 

Thomas,  J.,  in  Marble  v.  City  of  Worcester.^ 

3  (18.55)  4  Grav  (Mass.)  :;9.").  411.  See  Professor  Beale's  "true  reading  of 
this  maxim,"  9  Harv.  Law  liev.  SO,  81  (lS9.j). 


814  CAUSAL  RELATION  (Part  2 


SECTION  2.— PROBABILITY  OF  RESULT  AS  A  TEST  OF 

LEGAL  CAUSE 


GREENLAND  v.  CHAPLIN. 

(Court  of  Exchequer,  1850.     5  Exch.  243,  82  R.  R.  655.) 

Case  for  negligence  in  navigating  the  defendant's  steam-boat,  where- 
by it  struck  against  another  steam-boat,  on  which  the  plaintiff  was 
a  passenger,  and,  in  consequence,  his  leg  was  broken.  Plea,  Not 
guilty. 

At  the  trial,  before  Pollock,  C.  B.,  at  the  Middlesex  sittings  after 
last  Michaelmas  Term,  it  appeared  that  the  plaintiff  was  a  passenger 
on  board  a  steam-boat  called  the  "Sons  of  the  Thames,"  which  was 
going  from  Westminster  to  London  Bridge.  The  defendant's  steam- 
boat, called  the  "Bachelor,"  was  going  the  same  way,  and  as  the 
vessels  approached  the  Adelphi  Pier,  the  "Bachelor"  struck  the  "Sons 
of  the  Thames"  on  the  bow,  where  the  anchor  was  carried,  and,  in 
consequence,  it  fell  upon  and  broke  the  plaintiff's  leg.  There  was 
conflicting  evidence  as  to  the  degree  of  negligence  attributable  to  the 
respective  steam-boats,  and  especially  as  to  the  propriety  of  the  mode 
in  which  the  anchor  on  board  the  "Sons  of  the  Thames"  was  carried 
in  the  bow  of  the  vessel.  The  learned  Judge  told  the  jury,  that  if 
they  were  of  opinion  that  the  collision  was  owing  to  the  bad  naviga- 
tion of  the  "Bachelor,"  they  should  find  a  verdict  for  the  plaintiff; 
but  if  they  thought  that  there  was  any  negligence,  either  in  the  stow- 
age of  the  anchor,  or  in  the  plaintiff  putting  himself  in  the  place 
where  he  was,  on  board  the  "Sons  of  the  Thames,"  they  should  find 
for  the  defendant.  The  jury  having  found  a  verdict  for  the  plaintiff, 
with  £200  damages, 

Shee,  Serjt.,  in  last  Hilary  Term  obtained  a  rule  nisi  to  set  aside 
the  verdict,  as  against  evidence,  no  objection  being  taken  as  to  the 
mode  in  which  the  question  was  left  to  the  jury.* 

Pollock,  C.  B.  (after  holding  on  other  grounds  that  the  rule  should 
be  discharged).  But  here  I  may  again  state,^  that  it  occurs  to  me 
there  is  considerable  doubt, — and  at  present  I  guard  myself  against 

*  The  argnment  of  counsel  is  omitted,  and  only  so  much  of  the  opinion 
is  given  as  relates  to  the  one  point 

6  In  the  course  of  the  argument  Pollock,  C.  B.,  had  asked  this  question  of 
counsel:  "Can  it  be  said  that  a  person  guilty  of  negligence  is  responsible  for 
all  the  possible  consequences,  which  he  could  never  have  foreseen,  and 
which  no  one  would  have  anticipated?  For  instance,  if  a  person  chooses  to 
walk  in  a  crowded  street  with  an  open  knife  under  his  coat,  and  another 
person  negligently  runs  against  him,  is  that  other  person  to  be  responsil)le  for 
all  the  injury  which  the  knife  may  inflict  on  the  person  who  carries  itV"  The 
answer  was  a  reference  to  Flower  v.  Adam  (1810)  2  Taunt.  314,  11  R.  R.  501. 


Ch.  2)  THE  TESTS   OF   LEGAL  CAUSE  815 

being  supposed  to  decide  with  reference  to  any  case  wbich  may  here- 
after arise;  but,  at  the  same  time,  I  am  desirous  that  it  may  be  un- 
derstood that  I  entertain  considerable  doubt, — whether  a  person  who 
is  guilty  of  negligence  is  responsible  for  all  the  consequences  which 
may  under  any  circumstances  arise,  and  in  respect  of  mischief  which 
could  by  no  possibility  have  been  foreseen,  and  which  no  reasonable 
person  would  have  anticipated.  Whenever  that  case  shall  arise,  I 
shall  certainly  desire  to  hear  it  argued,  and  to  consider  whether  the 
rule  of  law  be  not  this :  that  a  person  is  expected  to  anticipate  and 
guard  against  all  reasonable  consequences,  but  that  he  is  not,  by  the 
law  of  England,  expected  to  anticipate  and  guard  against  that  which 
no  reasonable  man  would  expect  to  occur.  I  beg  to  say  that,  in 
expressing  this  doubt  whether  the  responsibility  for  consequential 
damage  extends  to  the  extreme  case  to  which  I  have  adverted,  I 
am  expressing  my  own  opinion  only,  and  not  that  of  the  rest  of  the 
Court.« 


ETEN  V.  LUYSTER. 

(Court  of  Appeals  of  New  York,  1875.     60  N.  Y.  252.) 

Allen,  J-''  The  plaintiff  was,  at  the  time  of  the  forcible  entry  by 
the  defendants,  and  the  commission  of  the  wrongs  complained  of, 
in  possession  of  the  premises,  as  the  tenant  of  one  Morrison,  under  a 
hiring  for  a  term  which  had  not  expired.  Morrison  was  the  immediate 
lessee  of  the  owner  (to  whose  title,  in  fee,  the  defendants  had  suc- 
ceeded), under  a  hiring  for  a  year,  by  written  lease,  containing  a  cove- 
nant, by  the  lessee,  to  vacate  the  premises  on  having  two  months'  no- 
tice, in  writing,  and  being  paid  $200,  as  an  equivalent  for  moving  and 
giving  up  the  lease. 

By  an  instrument  under  seal,  *  *  *  Morrison,  in  consideration 
of  $300.  canceled  the  lease  to  him,  and  waived  any  further  notice  to 
quit,  and  agreed  to  vacate  the  premises  on  or  before  the  1st  day  of 
July,  1868.     On  the  first  or  second  day  of  August,  the  defendants 

6  m  Kigby  V.  Hewitt  (1850)  5  Ex.  240,  82  R.  R.  652,  653,  Pollock,  C.  B.,  had 
remarked:  "I  am  disposed  not  quite  to  acquiesce  to  the  full  extent  in  the 
proiX)sition,  that  a  person  is  responsible  for  all  the  possible  consequences  of 
his  negligence.  I  wish  to  guard  against  laying  down  the  proposition  so 
universally ;  but  of  this  I  am  quite  clear,  that  every  person  who  does  a  wrong, 
is  at  least  responsible  for  all  the  mischievous  consequences  that  may  reason- 
ably be  expected  to  result,  under  ordinary  circumstances,  from  such  miscon- 
duct." 

Referring  to  these  two  cases,  Sir  Frederick  Pollock  remarked,  in  1905:  "In 
Kigby  v.  Hewitt  and  Greenland  v.  Chaplin,  we  have,  it  is  believed,  the  first 
clear  statement  of  the  rule  as  to  consequential  damage  which  is  now  gen- 
erally accepted,  namely  'that  a  person  is  expected  to  anticipate  and  guard 
against  all  reasonable  consequences,  but  that  he  is  not,  by  the  law  of  Eng- 
land, expected  to  anticipate  and  guard  against  that  which  no  reasonable  man 
would  expect  to  occur.'  "    See  Preface  to  82  R.  R.  v-vi. 

7  The  statement  of  the  case  and  parts  of  the  opinion  are  omitted. 


S16  CAUSAL  RELATION  (Part  2 

entered  upon  the  premises  occupied  by  the  plaintiff,  tore  down  and 
ruined  a  building  which  the  plaintiff  had  erected  thereon,  and  removed 
his  chattels  and  personal  property.  There  being  no  prohibition  against 
subletting  in  the  lease  to  Morrison,  he  had  a  right  to  sublet  the  whole 
or  any  part  of  the  premises.  Jackson  v.  Silvernail,  15  Johns.  278; 
vSame  v.  Harrison,  17  Johns.  66;  Roosevelt  v.  Hopkins,  33  N.  Y.  81. 
The  plaintiff,  the  sublessee,  by  the  contract  of  hiring,  acquired  a  valid 
term  in  and  a  right  to  the  possession  of  the  part  of  the  demised  prem- 
ises let  to  him  for  the  time  agreed  upon,  subject,  only  to  be  defeated 
by  the  expiration  of  the  term  of  Morrison,  or  a  re-entry  by  the  owner 
of  the  fee,  and  supreme  landlord,  for  some  condition  of  the  demise 
broken.  He  held  the  premises,  subject  to  the  conditions  of  the  orig- 
inal lease  to  Morrison,  and  the  conditions  of  his  own  hiring,  and, 
with  these  limitations,  his  right  to  hold  for  the  term  granted  to  him 
was  perfect. 

As  landlords,  the  defendants  had  no  right  of  entry,  and  their  forci- 
ble dispossession  of  the  plaintiff  was  a  trespass  for  which  the  plaintiff' 
had  an  action;  and  the  proceedings  for  his  removal  by  summary 
process,  under  the  landlord  and  tenant  act,  having  been  reversed,  the 
warrant  furnished  no  protection  to  them,  and  constituted  no  defence 
to  the  action.  2  R.  S.  516,  §  49;  Hayden  v.  Florence  Sewing 
^Machine  Co.,  54  N.  Y.  221.  The  statute  expressly  gives  an  action 
to  the  tenant  in  such  case. 

The  plaintiff'  was  only  entitled  to  recover  such  damages  as  were 
the  direct  consequences  of  the  acts  of  the  defendants,  and  those  acting 
under  their  direction  and  by  their  authority.  This  would  exclude 
from  the  consideration  of  the  jury  all  damages  resulting  from  the  acts 
of,  or  want  of  proper  care  of  the  property  by,  the  plaintiff'.  The  act 
complained  of  was  the  wrongful  removal  and  destruction  of  the  plain- 
tiff's property  in  his  absence,  and  there  was  no  evidence  that  any 
part  of  the  loss  was  caused  by  his  act,  or  could  have  been  prevented 
by  him.  The  question  of  contributory  negligence  is  not  in  the  case. 
The  plaintiff  owed  no  duty  to  the  defendants,  and  was  not  called  upon 
to  gather  up  the  fragments  of  his  scattered  and  broken  chattels,  but 
was  at  liberty  to  leave  them  where  the  defendants  left  them,  and  look 
to  the  latter  for  their  value.  They  were  out  of  his  possession  by  the 
tortious  act  of  the  defendants,  by  whom,  and  whose  acts,  they  were 
lost  or  destroyed.  The  plaintiff  complains  of  the  pulling  down  and 
destruction  of  his  building,  and  the  taking  and  conversion  of  his  per- 
sonal property,  as  well  as  the  damages  sustained  by  a  loss  of  his  busi- 
ness.^ The  latter  claim  was  excluded  from  the  consideration  of  the 
jury  by  the  court,  but  evidence  of  the  other  items  of  loss  and  damage 
were  clearly  within  the  allegations  of  the  complaint,  and  admissible. 

8  It  appeared  in  the  case  that  "part  of  this  house  had  been  used  by  plain- 
lift  as  a  stable,  and  his  evidence  teiKhnl  to  show  that  he  kept,  in  a  tin  box, 
inside  a  feed  box,  in  the  stiible,  a  .sum  of  money,  alx)ut  $2,000.  This  was  lost  in 
the  removal."    And  see  Eisele  v.  Oddie  (C.  C.  1904)  12S  Fed.  941,  949. 


Ch.  2)  THE  TESTS   OF  LEGAL   CAUSE 


817 


For  all  loss  occasioned  by  the  trespass,  whether  in  the  destruction  of 
the  chattels  or  the  loss  of  money  that  was  kept  upon  the  premises, 
the  plaintiff  was  entitled  to  recover.  That  the  money  was  kept  in  an 
unusual  place  did  not  take  it  out  of  the  protection  of  the  law,  or  affect 
the  liability  of  the  defendants  for  their  tort.  They  acted  at  their 
peril,  and  must  respond  for  the  consequences.  The  loss  of  the  money, 
although  the  defendants  may  not  have  suspected  its  presence,  was 
the  direct  and  necessary  consequence  of  the  acts  of  the  defend- 
ants.    *     *     * 

All  concur ;  Rapallo,  J.,  expresses  no  opinion  as  to  the  right  of  the 
plaintiff  to  recover  for  the  money  lost,  but  concurs  in  opinion  in  all 
other  respects. 

Judgment  [for  the  plaintiff]   affirmed. 


SMITH  V.  LONDON  &  S.  W.  RY.  CO. 

(Court  of  Common  Pleas,  Hilary  Term,  1870.     L.  R.  5  C.  P.  98.     In  the 
Exchequer  Chamber,  Michaelmas  Term,  1870.     L.  R.  6  C.  P.  14.) 

This  was  an  action  for  negligence,  and  the  declaration  contained 
three  counts,  of  which  the  second  and  only  material  one  was  as  fol- 
lows : 

"That  the  time  of  the  committing  by  the  defendants  of  the  griev- 
ances in  this  count  mentioned,  the  plaintiff  v^'as  possessed  of  a  cottage 
and  premises,  and  the  defendants  were  possessed  of  and  had  the  care 
and  management  of  a  railway  running  near  the  said  cottage  and  prem- 
ises, with  banks  belonging  thereto,  and  part  of  the  said  railway,  and 
were  possessed  of  locomotive  engines  containing  burning  substances, 
which  were  used  by  the  defendants  for  conveying  carriages  along  this 
railway.  Yet,  by  the  negligence  and  improper  conduct  of  the  de- 
fendants, and  the  want  of  due  care  on  the  part  of  the  defendants  in 
the  keeping  and  management  of  their  said  railway  engines  and  banks, 
quantities  of  cut  grass  and  hedge  trimmings  were  heaped  up  on  the 
said  railway  and  banks,  and  became  and  were  ignited,  and  a  fire  was 
occasioned  which  spread  over  and  along  a  stubble-field,  near  the  said 
railway  unto  the  said  cottage  and  premises,  and  set  fire  to  the  same, 
and  thereby  the  same  and  the  plaintiff's  furniture,  &:c.,  then  being 
in  and  near  the  said  cottage  and  premises,  were  burnt  and  destroyed, 
and  the  plaintiff  lost  the  use  and  enjoyment  of  the  same." 

The  defendants  pleaded  not  guilty,  and  issue  was  joined  thereon. 

The  case  was  tried  before  Keating,  J.,  at  the  Dorchester  summer 
assizes  in  1869,  when  it  appeared  that  about  fourteen  days  previous 
to  the  3d  of  August,  1868,  the  defendants'  servants,  after  cutting 
the  grass  and  trimming  the  banks  and  hedges  at  the  sides  of  the  line, 
had  raked  the  cut  grass  and  hedge-trimmings  into  heaps  near  the  line 
Hepb. Torts — 52 


818  CAUSAL  RELATION  (Part  2 

and  there  left  them,  and  that  owing  to  the  extreme  heat  of  the  weather 
these  heaps  had  become  very  dry  and  inflammable.  On  the  3d  of 
August,  at  about  1  p.  m.,  two  trains  (an  up  train  and  a  down  train) 
belonging  to  the  defendants,  passed  the  spot  in  question,  and  im- 
mediately afterwards  tlie  heaps  were  on  fire;  and,  in  consequence  of 
a  high  wind  prevailing  at  the  time,  the  fire  consumed  the  adjoining 
hedge,  and,  notwithstanding  the  utmost  efforts  of  the  company's  serv- 
ants and  others  to  subdue  it,  passed  over  a  stubble-field  and  a  public 
road,  and  communicated  to  the  plaintiff's  cottage,  which  was  about  200 
yards  from  the  line,  and  destroyed  it  with  the  furniture  therein.  One 
of  the  witnesses  for  the  plaintiff  stated  that  at  the  time  referred  to 
there  were  fires  all  about  the  country ;  but  whether  he  meant  on  the 
sides  of  the  railway  or  not,  did  not  clearly  appear.  There  was  no 
evidence  to  show  that  the  company's  engines  were  improperly  con- 
structed, or  that  they  were  negligently  or  improperly  worked. 

On  the  part  of  the  plaintiff  it  was  contended  that  there  was  evi- 
dence from  which  the  jury  might  fairly  assume  that  the  fire  was  caused 
by  sparks  or  burning  cinders  from  one  of  the  engines  which  had  just 
before  passed  the  spot ;  and  that  there  was  negligence  on  the  part  of  the 
company's  servants  in  allowing  such  inflammable  material  to  remain 
on  the  banks  of  their  railway  for  so  long  a  time  in  so  dry  a  season, 
and  therefore  they  were  responsible  for  the  damage  resulting  from  it. 

For  the  defendants  it  was  contended,  on  the  authority  of  Vaughan 
V.  Taff  Vale  Ry.  Co.,  3  H.  &  N.  743,  28  L.  J.  Ex.  41,  in  error  5  H. 
&  N.  679,  29  L.  J.  Ex.  247,  that  the  defendants  were  not  responsible 
for  damage  resulting  from  the  cause  suggested,  in  the  absence  of  evi- 
dence to  show  that  their  engines  were  improperly  constructed  or  had 
been  negligently  or  improperly  worked;  and  that  there  was  no  evi- 
dence of  negligence  to  go  to  the  jury. 

The  learned  judge  declined  to  nonsuit ;  and  a  verdict  was  found  for 
the  plaintiff  for  the  sum  claimed,  leave  being  reserved  to  the  defendants 
to  move  to  enter  a  verdict  for  them,  or  a  nonsuit,  if  the  Court  should 
be  of  opinion  that  there  was  no  evidence  of  negligence  which  ought 
to  have  been  submitted  to  the  jury, — the  Court  to  be  at  liberty  to  draw 
inferences,  and  to  amend  the  pleadings. 

Kingdon,  Q.  C,  in  Michaelmas  Term  last,  obtained  a  rule  nisi. 

BrUTT,  J.  I  am  of  opinion  that  there  was  no  evidence  to  go  to  the 
jury  of  negligence  on  the  part  of  the  defendants.  I  cannot  help  feel- 
ing that  great  difficulty  is  thrown  upon  the  judges  who  are  called  upon 
to  determine  questions  of  this  sort,  which  make  them  too  much  judges 
of  facts.  I  take  the  rule  of  law  in  these  cases  to  be  that  which  is  laid 
down  by  Alderson,  B.,  in  Blyth  v.  Birmingham  Waterworks  Company, 
11  Ex.  784,  25  L.  J.  Ex.  213:  "Negligence  is  the  omission  to  do  some- 
thing which  a  reasonable  man,  guided  upon  those  considerations  which 
ordinarily  regulate  the  conduct  of  human  affairs,  would  do,  or  doing 
something  which  a  prudent  and  reasonable  man  would  not  do.  The 
defendants  might  have  been  liable  for  negligence,  if,  unintentionally, 


Ch.  2)  THE  TESTS   OF  LEGAL  CAUSE  819 

they  omitted  to  do  that  which  a  reasonable  person  would  have  done,  or 
did  that  which  a  person  taking  reasonable  precautions  would  not  have 
done.  A  reasonable  man  would  act  with  reference  to  average  circum- 
stances in  ordinary  years."  That  being  the  rule,  the  question  here  is 
whether  the  defendants  by  their  servants  have  done  or  omitted  to  do 
something  which  reasonable  men  placed  under  such  circumstances  as 
they  were  placed  in  would  have  done  or  omitted  to  do.  The  case  of 
the  plaintiff,  as  put  by  Mr.  Cole  on  moving,  and  also  in  his  argument 
to-day,  is  this :  Conceding  that  there  is  no  ground  for  saying  that  the 
defendants'  engines  were  not  of  the  best  possible  construction,  or 
that  there  was  negligence  in  the  mode  of  working  them,  they  were 
bound  to  take  notice  that  such  engines  do  emit  sparks  and  burning 
cinders ;  and,  as  they  were  driving  them  through  the  country  in  an 
exceptionally  dry  season,  they  ought  not  to  have  permitted  such  com- 
bustible materials  as  rummage  or  hedge-trimmings  to  remain  on  the 
banks  of  their  railway ;  they  ought,  as  reasonable  men,  to  have  con- 
templated that  sparks  from  their  engines  might  set  them  on  fire,  and 
that,  if  they  did,  the  fire  might  extend  to  the  plaintiff's  property.  I 
quite  agree  that  the  defendants  ought  to  have  anticipated  that  sparks 
might  be  emitted  from  their  engines,  notwithstanding  they  are  of  the 
best  construction,  and  were  worked  without  negligence ;  and  that 
they  might  reasonably  have  anticipated  that  the  rummage  and  hedge- 
trimmings  allowed  to  accumulate  might  be  thereby  set  on  fire.  But 
I  am  of  opinion  that  no  reasonable  man  could  have  foreseen  that  the 
fire  w^ould  consume  the  hedge  and  pass  across  a  stubblefield,  and  so 
get  to  the  plaintiff's  cottage  at  the  distance  of  200  yards  from  the  rail- 
way, crossing  a  road  in  its  passage.  It  seems  to  me  that  no  duty  was 
cast  upon  the  defendants,  in  relation  to  the  plaintiff's  property,  because 
it  was  not  shown  that  that  property  was  of  such  a  nature  and  so  situate 
that  the  defendants  ought  to  have  known  that  by  permitting  the  rum- 
mage and  hedge-trimmings  to  remain  on  the  banks  of  the  railway 
they  placed  it  in  undue  peril.  If  that  had  been  shown,  I  should  have 
thought  that  the  case  fell  within  the  principle  laid  down  by  Cock- 
burn,  C.  J.,  in  Vaughan  v.  Taff  Vale  Ry.  Co.,  5  H.  &  X.  679,  685,  29 
L.  J.  Ex.  247,  for  then  the  defendants  must  have  been  taken  to  have 
known  that  the  course  which  was  pursued  by  their  servants  was  calcu- 
lated to  endanger  the  adjoining  property.  But,  bringing  one's  knowl- 
edge of  ordinary  English  country  life  to  bear  upon  the  subject,  I  am 
of  opinion,  as  matter  of  fact,  that  no  reasonable  man  could  suppose, — 
or  at  least  eight  out  of  ten  would  fail  to  suppose, — that,  if  by  any  means 
the  rummage  and  hedge-trimmings  on  the  side  of  the  railway  were 
set  on  fire,  the  fire  would  extend  to  a  stubble-field  adjoining,  and  so 
proceed  to  a  cottage  at  the  distance  before  mentioned.  We  read  of 
such  fires  in  the  American  prairies;  but  it  would  never  occur,  as  it 
seems  to  me,  to  the  mind  of  the  most  prudent  person  that  such  an  ex- 
traordinary conflagration  could  be  caused  in  this  country  in  the  man- 
ner here  spoken  of  by  the  witnesses.     I  think  the  defendants  cannot 


820  CAUSAL  RELATION  (Part  2 

reasonably  be  beld  responsible  for  not  having  contemplated  such  an 
extraordinary  combination  of  circumstances,  or  such  a  result.  For 
these  reasons  I  am  of  opinion  that  there  was  no  such  evidence  of  neg- 
ligence on  their  part  as  could  properly  be  left  to  the  jury. 

The  Common   Pleas  having  discharged  the  rule  to  enter  a  verdict 
for  the  defendant  or  a  non-suit,  an  appeal  was  brought. 

[In  the  Exchequer  Chamber] 

Kelly,  C.  B.  I  certainly  entertained  some  doubts  during  the  argu- 
ment as  to  whether  the  judgment  of  the  Court  below  could  be  sus- 
tained ;  but  when  I  consider  the  facts,  I  cannot  but  feel  that  it  is  a 
case  in  which  there  was  some  evidence  of  negligence  on  the  part  of 
the  defendants,  and  negligence  which  caused  the  injury  complained  of. 
It  appears  that  about  the  time  that  the  spot  in  question  was  passed  by 
an  engine  which,  as  we  know,  would  emit  sparks  which  would  fall 
on  the  adjoining  ground,  a  fire  was  discovered  on  the  defendants'  ground 
adjoining  the  line.  It  appears  that  it  had  been  a  dry  summer  and 
the  hot  weather  had  continued  for  many  weeks  before  the  occurrence  : 
and  probably  with  a  view  to  prevent  mischief,  the  defendants  had 
caused  the  grass  that  grew  by  the  line  and  the  fence  to  be  cut,  and 
the  cuttings  of  the  grass  and  hedge  were  placed  in  small  heaps  on  the 
ground  between  the  rails  and  the  hedge.  On  the  other  side  of  the 
hedge  was  a  stubble-field  of  a  considerable  extent  which  would  be  ex- 
tremely dry,  and  at  a  distance  of  two  hundred  yards  across  a  road  was 
the  cottage  belonging  to  the  plaintiff.  This  was  the  state  of  facts. 
The  trimmings  caught  fire,  there  was  a  strong  south-east  wind  blowing ; 
and  though  we  have  no  proof  of  the  exact  progress  of  the  fire,  be- 
cause the  company's  servants  who  had  seen  it  were  not  called,  it 
appears  to  have  extended  to  and  through  the  hedge  and  across  the 
field  to  the  plaintiff's  cottage  which  was  burnt.  The  question  for  u" 
is,  how  all  this  occurred.  There  is  some  doubt  how  the  fire  originated, 
but  there  was  ample  evidence  for  the  jury,  which  would  have  bee  i 
rightly  left  to  them,  that  it  originated  from  sparks  from  the  engine 
falling  on  the  dry  heaps  of  trimmings,  and  thence  extending  to  the 
hedge  and  stubblefield.  If  .that  was  so,  the  question  arises  whether 
there  was  any  negligence  in  the  defendants. 

Now  it  can  scarcely  be  doubted  that  the  defendants  were  bound  in 
such  a  summer,  knowing  that  trains  were  passing  from  which  sparks 
might  fall  upon  them,  to  remove  these  heaps  of  trimmings;  and,  at 
any  rate,  it  was  a  question  for  the  jury  whether  it  was  not  negligent  of 
them  not  to  do  so.  I  think,  therefore,  there  was  a  case  for  the  jury 
on  which  they  might  reasonably  have  found  that  the  defendants  were 
negligent  in  not  removing  the  trimmings  as  soon  as  possible,  and  that 
this  was  the  cause  of  the  injury.  Then  comes  the  question  raised  by 
Brett,  J.,  to  which  at  first  I  was  inclined  to  give  some  weight.  He  puts 
it  thus :  "I  c|uite  agree  that  the  defendants  ought  to  have  anticipated 
that  sparks  might  be  emitted  from  their  engines,  notwithstanding  that 


Ch.  2)  THE  TESTS   OF  LEGAL   CAUSE  821 

ihey  were  of  the  best  construction,  and  were  worked  without  negH- 
gence,  and  that  they  might  reasonably  have  anticipated  that  the  rum- 
mage and  hedge-trimmings  allowed  to  accumulate  might  be  thereby  set 
on  fire.  But  I  am  of  opinion  that  no  reasonable  man  would  have 
foreseen  that  the  fire  would  consume  the  hedge  and  pass  across  a  stub- 
ble-field, and  so  get  to  the  plaintiff's  cottage  at  the  distance  of  200 
yards  from  the  railway,  crossing  a  road  in  its  passage."  It  is  because  I 
thought,  and  still  think,  the  proposition  is  true  that  any  reasonable  man 
might  well  have  failed  to  anticipate  such  a  concurrence  of  circum- 
stances as  is  here  described  that  I  felt  pressed  at  first  by  this  view  of 
the  question ;  but  on  consideration  I  do  not  feel  that  that  is  a  true  test 
of  the  liability  of  the  defendants  in  this  case.  It  may  be  that  they  did 
not  anticipate,  and  were  not  bound  to  anticipate,  that  the  plaintiff's 
cottage  would  be  burnt  as  a  result  of  their  negligence ;  but  I  think  the 
law  is,  that  if  they  were  aware  that  these  heaps  were  lying  by  the  side 
of  the  rails,  and  that  it  was  a  hot  season,  and  that  therefore  by  being 
left  there  the  heaps  were  likely  to  catch  fire,  the  defendants  were  bound 
to  provide  against  all  circumstances  which  might  result  from  this,  and 
v/ere  responsible  for  all  the  natural  consequences  of  it.  I  think,  then, 
there  was  negligence  in  the  defendants  in  not  removing  these  trim- 
mings, and  that  they  thus  became  responsible  for  all  the  consequences 
of  their  conduct,  and  that  the  mere  fact  of  the  distance  of  this  cottage 
from  the  point  where  the  fire  broke  out  does  not  affect  their  liability, 
and  that  the  judgment  of  the  court  below  must  be  affirmed. 

Channell,  B.  I  am  of  the  same  opinion.  I  quite  agree  that  where 
there  is  no  direct  evidence  of  negligence,  the  question  what  a  reason- 
able man  might  foresee  is  of  importance  in  considering  the  question 
whether  there  is  evidence  for  the  jury  of  negligence  or  not,  and  this 
is  what  was  meant  by  Bramwell,  B.,  in  his  judgment  in  Blyth  v.  Bir- 
mingham Waterworks  Co.,  11  Ex.  781;  25  L.  J.  (Ex.)  212,  referred 
to  by  Mr.  Kingdon;  but  when  it  has  been  once  determined  that  there 
is  evidence  of  negligence,  the  person  guilty  of  it  is  equally  liable  for 
its  consequences,  whether  he  could  have  foreseen  them  or  not. 

Blackburn,  J.  I  also  agree  that  what  the  defendants  might  reason- 
ably anticipate  is,  as  my  Brother  Channell  has  said,  only  material 
with  reference  to  the  question  whether  the  defendants  were  negligent 
or  not,  and  cannot  alter  their  liability  if  they  were  guilty  of  negligence. 
I  have  still  some  doubts  whether  there  was  any  evidence  that  they  were 
negligent,  but  as  all  the  other  judges  are  of  opinion  that  there  was  evi- 
dence that  they  were,  I  am  quite  content  that  the  judgment  of  the 
Court  below  should  be  affirmed.  I  do  not  dissent,  but  I  have  some 
doubt  *  *  *  if  there  was  evidence  of  negligence;  if  the  negli- 
gence were  once  established,  it  would  be  no  answer  that  it  did  much 
more  damage  than  was  expected.  If  a  man  fires  a  gun  across  a  road 
where  he  may  reasonably  anticipate  that  persons  will  be  passing,  and 
hits  some  one,  he  is  guilty  of  negligence,  and  liable  for  the  injury  he 
has  caused ;   but  if  he  fires  in  his  own  wood,  where  he  cannot  reason- 


822  CAUSAL  RELATION  (Part  2 

ably  anticipate  that  any  one  will  be,  he  is  not  liable  to  any  one  whom 
he  shoots,  which  shows  that  what  a  person  may  reasonably  anticipate 
is  important  in  considering  whether  he  has  been  negligent;  but  if  a 
person  fires  across  a  road  when  it  is  dangerous  to  do  so  and  kills  a  man 
who  is  in  receipt  of  a  large  income,  he  will  be  liable  for  the  whole 
damage,  however  great,  that  may  have  resulted  to  his  family,  and  can- 
not set  up  that  he  could  not  have  reasonably  expected  to  have  injured 
any  one  but  a  laborer.* 
Judgment  affirmed. 


MILWAUKEE  &  ST.  P.  RY.  CO.  v.  KELLOGG. 
(Supreme  Court  of  the  United  States,  1876.    94  U.  S.  469,  24  L.  Ed.  256.) 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
Iowa. 

Mr.  Justice;  Strong  delivered  the  opinion  of  the  court. 

This  was  an  action  to  recover  compensation  for  the  destruction  by 
fire  of  the  plaintifif's  saw-mill  and  a  quantity  of  lumber,  situated  and 
lying  in  the  State  of  Iowa,  and  on  the  banks  of  the  river  Mississippi. 
That  the  property  was  destroyed  by  fire  was  uncontroverted.  From 
the  bill  of  exceptions,  it  appears : 

That  the  "plaintiff  alleged  the  fire  was  negligently  communicatod  from  the 
defendants'  steamboat  'Jennie  Brown'  to  an  elevator  built  of  pine  lumber, 
and  one  hundred  and  twenty  feet  high,  owned  by  the  defendants,  and  stand- 
ing on  the  bank  of  the  river,  and  from  the  elevator  to  the  plaintiff's  saw-mill 
and  lumber  piles,  while  an  unusually  strong  wind  was  blowing  from  the  ele- 
vator towards  the  mill  and  lumber.  On  the  trial,  it  was  admitted  that  the 
defendants  owned  the  steamboat  and  elevator :  that  the  mill  was  five  hundred 
and  thirty-eight  feet  from  the  elevator,  and  that  the  nearest  of  the  plaintiff's 
piles  of  lumber  was  three  hundred  and  eighty-eight  feet  distant  from 
it.     •     *     •" 

The  verdict  of  the  jury  was: 

1st,  that  the  elevator  was  burned  from  the  steamer  "Jennie  Brown" ;  2d, 
that  such  burning  was  caused  by  not  using  ordinary  care  and  prudence  in 
landing  at  the  elevator,  under  circumstances  existing  at  tliat  particular  time; 
and,  '6(1,  that  the  burning  of  the  mill  and  lumber  was  the  unavoidable  con- 
sequence of  the  burning  of  the  elevator. 

The  only  reasonable  construction  of  the  verdict  is,  that  the  fault  of 
the  defendants — in  other  words,  their  want  of  ordinary  care  and 
prudence — consisted  in  landing  the  steamer  at  the  elevator  in  the 
circumstances  then  existing,  when  a  gale  of  wind  was  blowing  towards 
it,  when  the  elevator  was  so  combustible  and  so  tall.  If  this  is  not  the 
meaning  of  the  verdict,  no  act  of  negligence,  of  want  of  care,  or  of 
fault  has  been  found.  And  this  is  one  of  the  faults  charged  in  the 
declaration.    It  averred,  that,  while  the  wind  was  blowing  a  gale  from 

*The  concurring  opinion  of  Martin,  B.,  Pigott,  B.,  and  Lush,  J.,  are  omitted. 
Bramwell,  B..  concurred,  without  opinion. 


Ch.  2)  THE   TESTS   OF  LEGAL  CAUSE  823 

the  steamboat  towards  and  in  the  direction  of  the  elevator,  the  de- 
fendants carelessly  and  negligently  allowed,  pennitted,  and  counselled 
(or,  as  stated  in  another  count,  "directed")  the  steamboat  to  approach 
and  lie  alongside  of  or  in  close  proximity  to  the  said  elevator.  This 
is  something  more  than  nonfeasance:  it  is  positive  action,  the  result, 
consequence,  or  outworking,  as  the  jury  have  found  it,  of  the  want  of 
such  care  as  should  have  been  exercised.     *     *     * 

The  next  exception  is  to  the  refusal  of  the  Court  to  instruct  the  jury 
as  requested,  that  "if  they  believed  the  sparks  from  the  'Jennie  Brown' 
set  fire  to  the  elevator  through  the  negligence  of  the  defendants,  and 
the  distance  of  the  elevator  from  the  nearest  lumber  pile  was  three  hun- 
dred and  eighty-eight  feet,  and  from  the  mill  five  hundred  and  twenty- 
eight  feet,  then  the  proximate  cause  of  the  burning  of  the  mill  and  lum- 
ber was  the  burning  of  the  elevator,  and  the  injury  was  too  remote 
from  the  negligence  to  afford  a  ground  for  a  recovery."  This  proposi- 
tion the  Court  declined  to  affirm,  and  in  lieu  thereof  submitted  to  the 
jury  to  find  whether  the  burning  of  the  mill  and  lumber  was  the  result 
naturally  and  reasonably  to  be  expected  from  the  burning  of  the  eleva- 
tor ;  whether  it  was  a  result  which,  under  the  circumstances,  would  nat- 
urally follow  from  the  burning  of  the  elevator;  and  whether  it  was 
the  result  of  the  continued  effect  of  the  sparks  from  the  steamboat, 
without  the  aid  of  other  causes  not  reasonably  to  be  expected.  All  this 
is  alleged  to  have  been  erroneous.  The  assignment  presents  the  oft- 
embarrassing  question,  what  is  and  what  is  not  the  proximate  cause  of 
an  injury.  The  point  propounded  to  the  Court  assumed  that  it  was 
a  question  of  law  in  this  case ;  and  in  its  support  the  two  cases  of  Rvan 
V.  New  York  Central  Railroad  Co.,  35  N.  Y.  210,  91  Am.  Dec. '49, 
and  Pennsylvania  Railroad  Co.  v.  Kerr,  62  Pa.  353,  1  Am.  Rep.  431, 
are  relied  upon.  Those  cases  have  been  the  subject  of  much  criticism 
since  they  were  decided ;  and  it  may,  perhaps,  be  doubted  whether 
they  have  always  been  quite  understood.  If  they  were  intended  to 
assert  the  doctrine  that  when  a  building  has  been  set  on  fire  through 
the  negligence  of  a  party,  and  a  second  building  has  been  fired  from 
the  first,  it  is  a  conclusion  of  law  that  the  owner  of  the  second  has 
no  recourse  to  the  negligent  wrong-doer,  they  have  not  been  accepted 
as  authority  for  such  a  doctrine,  even  in  the  States  where  the  decisions 
were  made.  Webb  v.  Rome,  Watertown  &  Ogdensburg  Railroad  Co., 
49  N.  Y.  420,  10  Am.  Rep.  389  and  Pennsylvania  Railroad  Co.  v. 
Hope,  80  Pa.  373,  21  Am.  Rep.  100.  And  certainly  they  are  in  conflict 
with  numerous  other  decided  cases.  Kellogg  v.  Chicago  &  X^orth- 
western  Railroad  Co.,  26  Wis.  224,  7  Am.  Rep.  69 ;  Perley  v.  Eastern 
Railroad  Co.,  98  Mass.  414,  96  Am.  Dec.  645;  Higgins  v.  Dewey, 
107  Mass.  494,  9  Am.  Rep.  63 ;  Fent  v.  Toledo,  Peoria  &  Warsaw 
Railroad  Co.,  59  111.  349,  14  Am.  Rep.  13. 

The  true  rule  is,  that  what  is  the  proximate  cause  of  an  injury  is 
ordinarily  a  question  for  the  jury.  It  is  not  a  question  of  science  or 
of  legal  knowledge.     It  is  to  be  determined  as  a  fact,  in  view  of  the 


824  CAUSAL  RELATION  (Part  2 

circumstances  of  fact  attending  it.  The  primary  cause  may  be  the 
proximate  cause  of  a  disaster,  though  it  may  operate  through  succes- 
sive instruments,  as  an  article  at  the  end  of  a  chain  may  be  moved  by 
a  force  apphed  to  the  other  end,  that  force  being  the  proximate  cause 
of  the  movement,  or  as  in  the  oft-cited  case  of  the  squib  thrown  in  the 
market-place,  2  Bl.  Rep.  892.  The  question  always  is.  Was  there  an 
unbroken  connection  between  the  wrongful  act  and  the  injury,  a  con- 
tinuous operation?  Did  the  facts  constitute  a  continuous  succession 
of  events,  so  linked  together  as  to  make  a  natural  whole,  or  was  there 
some  new  and  independent  cause  intervening  between  the  wrong  and- 
the  injury?  It  is  admitted  that  the  rule  is  difficult  of  application.  But 
it  is  generally  held,  that,  in  order  to  warrant  a  finding  that  negligence, 
or  an  act  not  amounting  to  wanton  wrong,  is  the  proximate  cause  of 
an  injury,  it  must  appear  that  the  injury  was  the  natural  and  probable 
consequence  of  the  negligence  or  wrongful  act,  and  that  it  ought  to 
have  been  foreseen  in  the  light  of  the  attending  circumstances.  These 
circumstances,  in  a  case  like  the  present,  are  the  strength  and  direction 
of  the  wind,  the  combustible  character  of  the  elevator,  its  great  height, 
and  the  proximity  and  combustible  nature  of  the  saw-mill  and  the 
piles  of  lumber. 

Most  of  these  circumstances  were  ignored  in  the  request  for  in- 
struction to  the  jury.  Yet  it  is  obvious  that  the  immediate  and  insep- 
arable consequences  of  negligently  firing  the  elevator  would  have  been 
very  different  if  the  wind  had  been  less,  if  the  elevator  had  been  a 
low  building  constructed  of  stone,  if  the  season  had  been  wet,  or  if 
the  lumber  and  the  mill  had  been  less  combustible.  And  the  defendants 
might  well  have  anticipated  or  regarded  the  probable  consequences  of 
their  negligence  as  much  more  far-reaching  than  would  have  been 
natural  or  probable  in  other  circumstances.  We  do  not  say  that  even 
the  natural  and  probable  consequences  of  a  wrongful  act  or  omission 
are  in  all  cases  to  be  chargeable  to  the  misfeasance  or  nonfeasance. 
They  are  not  when  there  is  a  sufficient  and  independent  cause  operat- 
ing between  the  wrong  and  the  injury.  In  such  a  case  the  resort  of 
the  sufferer  must  be  to  the  originator  of  the  intermediate  cause.  But 
when  there  is  no  intermediate  efficient  cause,  the  original  wrong  must 
be  considered  as  reaching  to  the  effect,  and  proximate  to  it.  The  in- 
quiry must,  therefore,  always  be  whether  there  was  any  intermediate 
cause  disconnected  from  the  primary  fault,  and  self-operating,  which 
produced  the  injury.  Here  lies  the  difficulty.  But  the  inquiry  must 
be  answered  in  accordance  with  common  understanding.  In  a  succes- 
sion of  dependent  events  an  interval  may  always  be  seen  by  an  acute 
mind  between  a  cause  and  its  effect,  though  it  may  be  so  imperceptible 
as  to  be  overlooked  by  a  common  mind.  Thus,  if  a  building  be  set 
•on  fire  by  negligence,  and  an  adjoining  building  be  destroyed  with- 
out any  negligence  of  the  occupants  of  the  first,  no  one  would 
doubt  that  the  destruction  of  the  second  was  due  to  the  negligence 
that  caused  the  burning  of  the  first.     Yet  in  truth,  in  a  very  legiti- 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE 


825 


mate  sense,  the  immediate  cause  of  the  burning  of  the  second  was  the 
burning  of  the  first.  The  same  might  be  said  of  the  burning  of  the 
furniture  in  the  first.  Such  refinements  are  too  minute  for  rules  of 
social  conduct.  In  the  nature  of  things,  there  is  in  every  transaction  a 
succession  of  events,  more  or  less  dependent  upon  those  preceding, 
and  it  is  the  province  of  a  jury  to  look  at  this  succession  of  events  or 
facts,  and  ascertain  whether  they  are  naturally  and  probably  connected 
with  each  other  by  a  continuous  sequence,  or  are  dissevered  by  new 
and  independent  agencies,  and  this  must  be  determined  in  view  of 
the  circumstances  existing  at  the  time. 

If  we  are  not  mistaken  in  these  opinions,  the  Circuit  Court  was  cor- 
rect in  refusing  to  affirm  the  defendants'  proposition,  and  in  submit- 
ting to  the  jury  to  find  whether  the  burning  of  the  mill  and  lumber  was 
a  result  naturally  and  reasonably  to  be  expected  from  the  burning  of  the 
elevator,  under  the  circumstances,  and  whether  it  was  the  result  of  the 
continued  influence  or  effect  of  the  sparks  from  the  boat,  without  the 
aid  or  concurrence  of  other  causes  not  reasonably  to  have  been  expected. 
The  jury  found,  in  substance,  that  the  burning  of  the  mill  and  lumber 
was  caused  by  the  negligent  burning  of  the  elevator,  and  that  it  was 
the  unavoidable  consequence  of  that  burning.  This,  in  effect,  was  find- 
ing that  there  was  no  intervening  and  independent  cause  between  the 
negligent  conduct  of  the  defendants  and  the  injury  to  the  plaintiff. 
The  judgment  must,  therefore,  be  affirmed. 

Judgment   affirmed.^ 


WOOD  V.  PENNSYLVANIA  R.  CO. 

(Supreme  Court  of  Pennsylvania,  1896.     177  Pa.  306,  35  Atl.  699,  35  L.  R.  A. 

199,  55  Am.  St.  Rep.  728.) 

The  action  was  against  the  Pennsylvania  Railroad  Company.  The 
facts  as  stated  by  the  court  below  were  as  follows : 

On  the  26th  of  October,  1893,  the  plaintiff,  having  bought  a  return 
ticket,  went  as  a  passenger  upon  the  railroad  of  the  defendant  com- 
pany from  Frankford  to  Holmesburg.  After  spending  the  day  there, 
attending  to  some  matters  of  business,  he  concluded  to  come  back 
upon  a  way  train,  due  at  Holmesburg  at  5  minutes  after  6  in  the  eve- 
ning. While  waiting  for  this  train,  the  plaintiff  stood  on  the  platform 
of  the  station,  which  was  on  the  north  side  of  the  tracks,  at  the  eastern 
end  of  the  platform,  with  his  back  against  the  wall  at  the  comer.  To 
the  eastward  of  the  station,  a  street  crosses  the  railroad  at  grade.  How 
far  this  crossing  is  from  the  station  does  not  appear  from  the  evi- 
dence. It  was  not  so  far  away,  however,  but  that  persons  on  the  plat- 
form could  see  objects  at  the  crossing.  For  at  least  150  yards  to  the 
eastward  of  the  crossing  the  railroad  is  straight,  and  then  curves  to 

8  Parts  of  the  opinion  are  omitted. 


826  CAUSAL  RELATION  (Part  2 

the  right.  About  6  o'clock  an  express  train  coming  from  the  east 
upon  the  north  track  passed  the  station,  and  the  plaintiff,  while  stand- 
ing in  the  position  described,  was  struck  upon  the  leg  by  what  proved 
to  be  the  dead  body  of  a  woman,  and  was  injured.  The  headlight  of 
the  approaching  locomotive  disclosed  to  one  of  the  witnesses  who 
stood  on  the  platform  two  women  in  front  of  the  train  at  the  street 
crossing,  going  from  the  south  to  the  north  side  of  the  tracks.  One 
succeeded  in  getting  across  in  safety,  and  the  other  was  struck  just 
as  she  reached  the  north  rail.  How  the  woman  came  to  be  upon  the 
track  there  is  nothing  in  the  evidence  to  show.  There  was  evidence 
that  no  bell  was  rung  or  whistle  blown  upon  the  train  which  struck 
the  woman  before  it  came  to  the  crossing,  and  some  evidence  that  it 
was  running  at  the  rate  of  from  50  to  60  miles  an  hour. 

Upon  this  state  of  facts,  the  trial  judge  entered  a  nonsuit.  The 
court  in  banc  having. afterwards  refused  to  take  off  the  nonsuit,  the 
case  was  appealed  from  the  Common  Pleas  of  Philadelphia  County. 

Dean,  J.  (after  stating  the  facts).  Was  the  negligence  of  defend- 
ant the  proximate  cause  of  plaintiff's  injury?  Judge  Pennypacker, 
delivering  the  opinion  of  a  majority  of  the  court  below,  concluded  it 
was  not,  and  refused  to  take  off  the  nonsuit.  Applying  the  rule  in 
Hoag  V.  Railroad  Co.,  85  Pa.  293,  27  Am.  Rep.  653,  to  these  facts,  the 
question  on  which  the  case  turns  is:  "Was  the  injury  the  natural  and 
probable  consequence  of  the  negligence, — such  a  consequence  as,  under 
the  surrounding  circumstances,  might  and  ought  to  have  been  foreseen 
by  the  wrongdoer  as  likely  to  flow  from  his  act?"  As  concerns  the 
situation  of  plaintiff  at  the  time  of  his  injury,  and  the  relation  of  that 
fact  to  the  cause,  whether  near  or  remote,  we  do  not  consider  it  im- 
portant. He  was  where  he  had  a  right  to  be, — on  the  platform  of  the 
station.  That  he  had  purchased  a  ticket  for  passage  on  defendant's 
road,  and  was  waiting  on  its  platform  for  his  train,  has  no  particular 
bearing  on  the  question.  The  duty  of  defendant  to  him  at  that  time  was 
to  provide  a  platform  and  station,  safe  structures,  for  him  and  others 
.who  desired  to  travel.  In  this  particular  its  duty  was  performed.  The 
injury  is  not  in  the  remotest  degree  attributable  to  the  platform  or 
the  station.  It  is  sufficient  to  say,  when  there,  he  was  not  a  trespasser 
on  defendant's  property,  and  therefore  his  action  does  not  fall  for 
that  reason ;  but  he  is  in  no  more  favorable  situation  as  a  suitor  than 
if  he  had  been  walking  alongside  the  railroad,  on  the  public  highway, 
or  at  any  other  place  where  he  had  a  right  to  be. 

The  rule  quoted  in  Hoag  v.  Railroad  Co.,  supra,  is,  in  substance,  the 
conclusion  of  Lord  Bacon,  and  the  one  given  in  Broom's  Legal  Max- 
ims. It  is  not  only  the  well-settled  rule  of  this  state,  but  is,  generally, 
that  of  the  United  States.  Prof.  Jaggard,  in  his  valuable  work  on 
Torts,  after  a  reference  to  very  many  of  the  cases  decided  in  a  large 
number  of  the  states,  among  them  Hoag  v.  Railroad  Co.,  comes  to  this 
conclusion  :  "It  is  admitted  that  the  rule  is  difficult  of  application.  But 
it  is  generally  held  that,  in  order  to  warrant  a  finding  that  negligence. 


Ch.  2)  THE   TESTS   OF   LEGAL   CAUSE  827 

or  an  act  not  amounting  to  wanton  wrong,  is  a  proximate  cause  of 
an  injury,  it  must  appear  that  the  injury  was  the  natural  and  probable 
consequence  of  the  negligence  or  wrongful  act,  and  that  it  ought  to 
have  been  foreseen  in  the  light  of  the  attending  circumstances."  Jag. 
Torts,  c.  5.  Judge  Cooley  states  the  rule  thus :  "If  the  original  act 
was  wrongful,  and  would  naturally,  according  to  the  ordinary  course  of 
events,  prove  injurious  to  some  others,  and  result,  and  does  actually 
result,  in  injury,  through  the  intervention  of  other  causes  not  wrong- 
ful, the  injury  shall  be  referred  to  the  wrongful  cause,  passing  through 
those  which  were  innocent."  Cooley,  Torts,  69.  This,  also,  is  in  sub- 
stance the  rule  of  Hoag  v.  Railroad  Co.  All  the  speculations  and  re- 
finements of  the  philosophers  on  the  exact  relation  of  cause  and  effect 
help  us  very  little  in  the  determination  of  rules  of  social  conduct.  The 
juridical  cause,  in  such  a  case,  as  we  have  held  over  and  over,  is  best 
ascertained  in  the  practical  affairs  of  life  by  the  application  to  the 
facts  of  the  rule  in  Hoag  v.  Railroad  Co. 

Adopting  that  rule  as  the  test  of  defendant's  liability,  how  do  we 
determine  the  natural  and  probable  consequences,  which  must  be  fore- 
seen, of  this  act?  We  answer  in  this  and  all  like  cases:  from  com- 
mon experience  and  observation.  The  probable  consequence  of  cross- 
ing a  railroad  in  front  of  a  near  and  approaching  train  is  death,  or 
serious  injury.  Therefore,  acting  from  an  impulse  to  self-preserva- 
tion, or  on  the  reflection  that  prompts  to  self-preservation,  we  are  de- 
terred from  crossing.  Our  conduct  is  controlled  by  the  natural  and 
probable  consequence  of  what  our  experience  enables  us  to  foresee. 
True,  a  small  number  of  those  who  have  occasion  to  cross  railroads 
are  reckless,  and,  either  blind  to  or  disregardf  ul  of  consequences,  cross, 
and  are  injured,  killed,  or  barely  escape.  But  this  recklessness  of  the 
very  few  in  no  degree  disproves  the  foreseeableness  of  the  consequences 
by  mankind  generally.  Again,  the  competent  railroad  engineer  knows 
from  his  own  experience  and  that  of  others  in  like  employment  that 
to  approach  a  grade  highway  crossing  with  a  rapidly  moving  train 
without  warning  is  dangerous  to  the  lives  and  limbs  of  the  public  using 
the  crossing.  He  knows  death  and  injury  are  the  probable  conse- 
quences of  his  neglect  of  duty ;  therefore  he  gives  warning.  But  does 
any  one  believe  the  natural  and  probable  consequence  of  standing  50 
feet  from  a  crossing,  to  the  one  side  of  a  railroad,  when  a  train  is  ap- 
proaching,  either  with  or  without  warning,  is  death  or  injury?  Do 
not  the  most  prudent,  as  well  as  the  public  generally,  all  over  the  land, 
do  just  this  thing  every  day,  without  fear  of  danger?  The  crowded 
platforms  and  grounds  of  railroad  stations,  generally  located  at  cross- 
ings, alongside  of  approaching,  departing,  and  swiftly  passing  trains, 
prove  that  the  public,  from  experience  and  observation,  do  not,  in  that 
situation,  foresee  any  danger  from  trains.  They  are  there  because,  in 
their  judgment,  although  it  is  possible  a  train  may  strike  an  object, 
animate  or  inanimate,  on  the  track,  and  hurl  it  against  tliem,  such  a 
consequence  is  so  highly  improbable  that  it  suggests  no  sense  of  dan- 


828  CAUSAL  RELATION  (Part  2 

ger.  They  feel  as  secure  as  if  in  their  homes.  To  them  it  is  no  more 
probable  than  that  a  train  at  that  point  will  jump  the  track  and  run 
over  them.  If  such  a  consequence  as  here  resulted  was  not  natural, 
probable,  or  foreseeable  to  anybody  else,  should  defendant,  under  the 
rule  laid  down  in  Hoag  v.  Railroad  Co.,  be  chargeable  with  the  conse- 
quence? Clearly,  it  was  not  the  natural  and  probable  consequence  of 
its  neglect  to  give  warning,  and  therefore  was  not  one  which  it  was 
bound  to  foresee.  The  injury,  at  most,  was  remotely  possible,  as  dis- 
tinguished from  the  natural  and  probable  consequences  of  the  neg- 
lect to  give  warning.  As  is  said  in  Railroad  Co.  v.  Trich,  117  Pa.  399, 
11  Atl.  627,  2  Am.  St.  Rep.  672:  "Responsibility  does  not  extend  to 
every  consequence  which  may  possibly  result  from  negligence." 

What  we  have  said  thus  far  is  on  the  assumption  the  accident  was 
caused  solely  by  the  negligence  of  defendant,  or  by  the  concurring 
negligence  of  defendant  and  the  one  killed  going  upon  the  track  with  a 
locomotive  in  full  view.  This  being  an  action  by  an  innocent  third 
person,  he  cannot  be  deprived  of  his  remedy  because  his  injury  resulted 
from  the  concurrent  negligerwze  of  two  others.  He  fails  because  his 
injury  was  a  consequence  so  remote  that  defendant  could  not  reason- 
ably foresee  it.     *     *     * 

Judgment  affirmed.^" 

10  Fart  of  the  opinion  is  omitted. 

Accord:  Evansville  &  T.  H.  R.  Co.  v.  Welch  (1900)  25  Ind.  App.  308,  58  N. 
E.  SS,  81  Am.  St.  Rep.  102:  (A  locomotive,  negligently  run  by  D.  at  a  danger- 
ous speed  over  public  grade  crossings  in  a  town,  struck  S.  on  one  of  these 
crossings.  The  impact  of  the  locomotive  hurled  the  body  of  S.  through  tlie 
air  and  against  P.,  who  was  standing  on  the  platform  of  the  station  waiting 
for  a  train.  Said  Henley,  J.,  delivering  the  opinion:  "It  is  possible  that  per- 
sons may  be  injured  in  the  manner  in  which  appellee  received  his  injury. 
Surticient  proof  of  this  is  the  fact  that  appellee  was  so  injured.  But  such  an 
injury  cannot  be  said  to  be  one  which  the  most  prudent  man  would  have  an- 
ticipated. The  manner  in  which  appellee  was  injured  was  unusual  and  ex- 
traordinary and  contrary  to  common  experience.  It  was  such  an  injury  as 
could  not  have  been  foreseen  or  reasonably  anticipated  as  the  probable  re- 
sult of  appellant's  negligent  acts.  Under  such  circumstances  there  is  no  lia- 
bility.) Richards  v.  Rough  (1SS4)  53  Mich.  212,  18  N.  W.  785;  Hoag  v.  Lake 
Shore,  etc.,  R.  Co.  (1S77)  85  Pa.  St.  293,  27  Am,  Rep.  653;  Sjogren  v.  Hall 
(1884)  53  Mich.  274,  18  N.  W,  812 ;  Mitchell  v.  Chicago,  etc.,  R.  Co.  (1883)  51 
Mich.  236,  16  N.  W.  388,  47  Am.  Rep.  566 ;  Wabash,  etc.,  R.  Co.  v.  Locke  (1887) 
112  Ind.  404,  14  N.  E.  391,  2  Am.  St.  Rep.  193 ;  City  of  Allegheny  v.  Zimmer- 
man (ISSO)  95  Pa.  287,  40  Am.  Rep.  049;  Stewart  v.  Strong  (1897)  20  Ind. 
App.  44,  50  N.  E.  95." 

But  see  Alabama  G.  S.  R.  Co.  v.  Chapman  (1887)  80  Ala.  615,  2  South.  738: 
(The  defendant's  train,  running  through  a  town  too  fast  to  be  stopped  prompt- 
ly, struck  a  cow  on  an  embankment.  The  body  of  the  cow  was  hurled  off  the 
track  by  the  impact  of  the  locomotive,  hit  the  ground,  bounced,  and  hit  the 
plaintiff,  who  was  walking  along  a  footpath  at  the  bottom  of  the  embankment. 
Said  Clopton,  J.,  delivering  tbe  opinion:  It  is  insisted  that  the  act  of  the 
defendant  was  only  the  remote  cause  of  the  injury.  When  the  cow  was 
thrown  by  the  engine,  it  struck  the  ground,  bounced,  and  fell  against  plain- 
tiff. The  bounce  and  fall  of  the  cow  was  the  immediate  cause,  but  it  was 
merely  incidental,  and  was  not  an  independent  agency,  which  had  no  connec- 
tion with  the  act  of  the  defendant.  The  direct  cause  was  put  in  operation  by 
the  force  of  the  engine,  which  continued  until  the  injury;  and  injuries,  di- 
rectly produced  by  instrumentalities  thus  put  in  oi)eratiou  and  continued,  are 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  829 

CHRISTIANSON  v.  CHICAGO,  ST.  P.,  M.  &  O.  RY.  CO. 

(Supreme  Court  of  Minnesota,  1S9G,    67  Minn.  94,  69  N.  W.  640.) 

The  action  was  by  Christiansen  against  the  railway  company,  to  re- 
cover for  personal  injuries  caused  by  the  alleged  negligence  of  the  de- 
fendant's servants.  There  was  a  verdict  for  the  plaintiff.  From  an 
order  refusing  a  new  trial  the  defendant  appealed. 

Mitchell,  J.  *  *  *  ^^  The  plaintiff  was  in  defendant's  employ 
as  a  section  hand.  On  the  day  in  question,  he  and  two  other  sectionmen 
started  easterly  on  a  hand  car,  to  meet  their  section  foreman.  In  the 
meantime,  another  section  crew,  with  plaintiff's  section  foreman,  had 
started  westerly  from  another  point,  on  another  hand  car.  When  the 
two  cars  came  within  a  short  distance  of  each  other,  those  on  the  west- 
bound signaled  those  on  the  east-bound  car  to  go  back.  Thereupon 
those  on  the  latter  car  turned  back,  and  both  cars  proceeded  westerly, 
the  car  on  which  plaintiff  was  going  ahead,  and  the  other  car  follow- 
ing. It  appears  from  the  evidence  that  those  on  the  rear  car  had, 
before  starting  out  that  morning,  imbibed  several  drinks  of  whisky; 
and  that,  while  both  cars  were  going  westerly,  some  of  them  once  or 
twice  signaled  to  those  on  the  forward  car  as  if  wanting  them  to  go 
faster.  The  only  significance  of  this  is  that  it  may  in  part,  at  least, 
account  for  the  conduct  of  those  on  the  rear  car.  This  part  of  the 
railroad  was  a  downgrade  of  from  52  to  58  feet  to  the  mile,  and  the 
track  was  wet  and  somewhat  slippery.  The  cars  were  running  down 
this  grade  at  a  rate  of  speed  variously  estimated  at  from  10  to  20 
miles  an  hour.  The  front  car,  on  which  plaintiff  was,  was  of  old  style, 
not  capable  of  as  great  a  rate  of  speed  as  the  rear  car;  and,  owing  to 
the  nature  of  its  gearing,  the  handles  attached  to  the  lever  moved  very 
rapidly ;  so  much  so  that  it  was  difficult  for  one  standing  on  the  car  to 
hold  on  to  them.  Plaintiff  was  standing  on  the  rear  end  of  the  car, 
with  nothing  to  hold  on  to  except  these  handles.  The  other  two  men 
were  on  the  front  end  of  the  car  where  the  brake  was.  The  usual  dis- 
tance at  which  hand  cars  kept  apart,  according  to  the  rules  of  the  com- 
pany, was  "three  telegraph  poles,"  which  would  be  540  feet.  At  the 
rate  of  speed  at  which  it  was  going,  the  rear  car  could  not  have  been 
brought  to  a  stop  by  the  application  of  the  brake  in  less  than  100  feet. 
The  cars  had  traveled  in  this  way  about  a  mile  and  a  quarter,  the  rear 

proximate  consequences  of  the  primary  act,  though  they  may  not  have  been 
contemplated  or  foreseen.  The  relation  of  cause  and  effect  between  the  pri- 
mary cause  and  the  injury  is  established  by  the  connection  and  succession  of 
the  intervening  circumstances.  If  the  cow  was  thrown  from  the  track  by  the 
negligence  of  defendant,  the  injury  cannot  be  regarded  as  a  purely  accidental 
occurrence  for  which  no  action  lies.)  East  Tennessee,  V.  &  G.  R.  Co.  v.  Lock- 
hart  (1885)  79  Ala.  315 ;  Alabama  (i.  S.  R.  Co.  v.  Arnold  (1SS7)  80  Ala.  G15,  2 
South.  337. •■ 

See  also  Columbus  R.  Co.  v.  Newsome  (1914)  142  Ga.  674,  83  S.  E.  506,  L. 
R.  A.  1915B,  1111. 

11  i'arts  of  the  opinion,  on  other  matters,  are  omitted. 


830  CAUSAL  RELATION  (Part  2 

car  gaining  on  the  forward  one,  until  it  got  within  60  feet  of  it.  The 
plaintiff  testified  that  at  this  point  he  looked  back,  and,  seeing  the  other 
car  so  near,  and  going  so  fast,  became  dizzy,  lost  his  balance,  and 
fell  off.  It  is  perhaps  unimportant  whether  his  fall  was  the  result  of 
fright  caused  by  seeing  the  other  rapidly  moving  car  so  near,  or 
whether  he  accidentally  lost  his  hold  on  the  handle  of  the  lever,  and 
lost  his  balance.  The  fact  is  undisputed  that  he  did  fall  off.  We 
think  the  evidence  shows  that,  after  the  men  on  the  rear  car  saw  him 
fall,  they  did  all  they  could  to  stop  their  car ;  but  going,  as  they  were, 
at  so  great  a  rate  of  speed,  and  being  within  60  feet  of  the  front  car,  it 
was  impossible  for  them  tO'  avoid  colliding  with  the  plaintiff.  The 
result  was  that  the  car  ran  upon  him  while  lying  on  the  track,  and  in- 
flicted very  severe  injuries.     *     *     * 

That,  under  the  evidence,  the  question  of  the  negligence  of  those  on 
the  rear  car  was  for  the  jury,  we  have  no  doubt.  The  usual  practice, 
in  accordance  with  the  rules  of  the  company,  for  hand  cars,  when  going 
in  the  same  direction,  to  maintain  a  distance  between  them  of  "three 
telegraph  poles,"  was  founded  upon  the  plainest  dictates  of  common 
prudence.  The  faster  the  cars  were  going,  and  the  greater  the  dis- 
tance required  to  stop  the  rear  car,  the  greater  was  the  necessity  for 
the  observance  of  this  rule,  so  as  to  avoid  injury  in  case  of  accident 
to  the  front  car  or  those  riding  upon  it.  But  in  this  case,  although  the 
cars  were  going  at  a  high  rate  of  speed  on  the  downgrade  and  a  slip- 
pery track,  those  on  the  rear  car  allowed  it  to  come  within  only  a  little 
over  half  the  distance  of  the  front  car  in  which  they  could  have  stopped 
had  any  accident  befallen  the  front  car  or  its  occupants.  The  jury 
were  amply  justified  in  finding  that,  in  so  doing,  the  occupants  of  the 
rear  car  were  guilty  of  negligence. 

The  main  contention,  however,  of  defendant's  counsel,  is  that,  con- 
ceding that  those  on  the  rear  car  were  negligent,  yet  plaintiff's  injuries 
were  not  the  proximate  result  of  such  negligence ;  or,  perhaps  to  state 
their  position  more  accurately,  that  it  is  not  enough  to  entitle  plaintiff 
to  recover  that  his  injuries  were  the  natural  consequence  of  this 
negligence,  but  that  it  must  also  appear  that,  under  all  the  circum- 
stances, it  might  have  been  reasonably  anticipated  that  such  injury 
would  result.  With  this  legal  premise  assumed,  counsel  argues  that 
those  on  the  rear  car  could  not  have  reasonably  anticipated  that  plain- 
tiff would  fall  from  the  car.  It  is  laid  down  in  many  cases  and  by 
some  text-writers  that,  in  order  to  warrant  a  finding  that  negligence 
(not  wanton)  is  the  proximate  cause  of  an  injury,  it  must  appear  that 
the  injury  was  the  natural  and  probable  consequence  of  the  negligent 
act,  and  that  it  (the  injury)  was  such  as  might  or  ought,  in  the  light  of 
attending  circumstances,  to  have  been  anticipated.  Such  or  similar 
statements  of  law  have  been  inadvertently  borrowed  and  repeated  in 
some  of  the  decisions  of  this  court,  but  never,  we  think,  where  the 
precise  point  now  under  consideration  was  involved.  •  Hence  such 
statements  are  mere  obiter.     The  doctrine  contended  for  by  counsel 


Ch.  2)  THE  TESTS   OF  LEGAL  CAUSE  831 

would  establish  practically  the  same  rule  of  damages  resulting  from 
tort  as  is  applied  to  damages  resulting  from  breach  of  contract,  under 
the  familiar  doctrine  of  Hadley  v.  Baxendale,  9  Exch.  341.  This  mode 
of  stating  the  law  is  misleading,  if  not  positively  inaccurate.  It  con- 
founds and  mixes  the  definition  of  "negligence"  with  that  of  "proxi- 
mate cause."  What  a  man  may  reasonably  anticipate  is  important,  and 
may  be  decisive,  in  determining  whether  an  act  is  negligent,  but  is  not 
at  all  decisive  in  determining  whether  that  act  is  the  proximate  cause 
of  an  injury  which  ensues.  If  a  person  had  no  reasonable  ground  to 
anticipate  that  a  particular  act  would  or  might  result  in  any  injury,  to 
anybody,  then,  of  course,  the  act  would  not  be  negligent  at  all ;  but,  if 
the  act  itself  is  negligent,  then  the  person  guilty  of  it  is  equally  liable 
for  all  its  natural  and  proximate  consequences,  whether  he  could  have 
foreseen  them  or  not.  Otherwise  expressed,  the  law  is  that  if  the 
act  is  one  which  the  party  ought,  in  the  exercise  of  ordinary  care,  to 
have  anticipated  was  liable  to  result  in  injury  to  others,  then  he  is 
liable  for  any  injury  proximately  resulting  from  it,  although  he  could 
not  have  anticipated  the  particular  injury  which  did  happen.  Conse- 
quences which  follow  in  unbroken  sequence,  without  an  intervening 
efficient  cause,  from  the  original  negligent  act,  are  natural  and  proxi- 
mate; and  for  such  consequences  the  original  wrongdoer  is  respon- 
sible, even  though  he  could  not  have  foreseen  the  particular  results 
which  did  follow.  Bevan,  Neg.  p.  97;  Hill  v.  Winsor,  118  Mass.  251; 
Smith  V.  Railway  Co.,  L.  R.  6  C.  P.  14.  For  citation  of  cases  on  this 
question,  see  16  Am.  &  Eng.  Enc.  Law,  p.  436  et  seq. ;  also,  Shear.  & 
R.  Neg.  §  28  et  seq.  Tested  by  this  rule,  we  think  that  it  is  clear  that 
the  negligence  of  those  on  the  rear  car  was  the  proximate  cause  of 
plaintiff's  injuries ;  at  least,  that  the  evidence  justified  the  jury  in  so 
finding.  Counsel  admitted  on  the  argument  that  if,  by  derailment  or 
other  accident,  the  front  car  had  been  suddenly  stopped,  and  a  colli- 
sion and  consequent  injuries  to  plaintiff  had  resulted,  the  negligence  of 
those  on  the  rear  car  would  have  been  the  proximate  cause.  But  we 
can  see  no  difference  in  principle  between  the  case  supposed  and  the 
present  case.  The  causal  connection  between  the  negligent  act  and  the 
resulting  injury  would  be  the  same  in  both  cases.  The  only  possible 
difference  is  that  it  might  be  anticipated  that  the  sudden  stoppage  of 
the  car  was  more  likely  to  happen  than  the  falling  of  one  of  its  occu- 
pants upon  the  track.j  *  *  * 
Order  affirmed. 

tCompare  Wilson  v.  Northern  Pac.  Ry.  Oo.  (1915,  N.  D.)  153  N.  W.  429:  (A 
prairie  fire  negligently  started  by  tlie  railway  company,  threatened  the  de- 
struction of  Wilson's  homestead.  His  wife,  acting  in  his  absence,  and  usinj 
reasonable  efforts  to  save  the  property,  overexerted  herself  and  thereby  suffer- 
ed a  serious  injury.) 


832  CAUSAL  RELATION  (Part  2 


McCAHILL  V.  NEW  YORK  TRANSP.  CO. 

(Court  of  Appeals  of  New  York,  1911.    201  N.  Y.  221,  9-i  N.  E.  616,  48  L.  R. 
A.  [N.  S.]  131,  Ann.  Cas.  1912A,  961.) 

The  administratrix  of  John  McCahill,  deceased,  sued  the  New  York 
Transportation  Company  for  his  death,  and  obtained  judgment  in  the 
trial  court.  The  judgment  was  affirmed  in  the  Appellate  Division,  and 
the  defendant  appeals  to  this  court. 

HiscocK,  J.  One  of  the  appellant's  taxicabs  struck  respondent's 
intestate  on  Broadway,  in  the  city  of  New  York,  in  the  nighttime  un- 
der circumstances  which,  as  detailed  by  the  most  favorable  evidence, 
permitted  the  jury  to  find  that  the  former  was  guilty  of  negligence  and 
the  latter  free  from  contributory  negligence.  As  a  result  of  the  acci- 
dent the  intestate  was  thrown  about  20  feet,  his  thigh  broken  and  his 
knee  injured.  He  immediately  became  unconscious,  and  was  shortly 
removed  to  a  hospital,  where  he  died  on  the  second  day  thereafter  of 
delirium  tremens.  A  physician  testified  that  the  patient  when  brought 
to  the  hospital  "was  unconscious  or  irrational  rather  than  unconscious. 
*  *  *  He  rapidly  developed  delirium  tremens.  *  *  *  j  should 
say  with  reasonable  certainty  the  injury  precipitated  his  attack  of  de- 
lirium tremens,  and  understand  I  mean  precipitated,  not  induced." 
And,  again,  that  in  his  opinion  "the  injury  to  the  leg  and  the  knee 
hurried  up  the  delirium  tremens."  He  also  stated :  "He  might  have 
had  it  (delirium  tremens)  anyway.  Nobody  can  tell  that."  Of  coursei* 
it  is  undisputed  that  the  injuries  could  not  have  led  to  delirium  tremens 
except  for  the  pre-existing  alcoholic  condition,  of  the  intestate,  and 
under  these  circumstances  the  debatable  question  in  the  case  has  been 
whether  appellant's  negligence  was,  legally  speaking,  the  proximate 
cause  of  intestate's  death.  It  seems  to  me  that  it  was,  and  that  the 
judgment  should  be  affirmed. 

In  determining  this  question,  it  will  be  unnecessary  to  quote  defini- 
tions of  proximate  cause  which  might  be  useful  in  testing  an  obscure, 
involved,  or  apparently  distant  relationship  between  an  act  and  its  al- 
leged results,  for  the  relationship  here  is  perfectly  simple  and  obvious. 
The  appellant's  automobile  struck  and  injured  the  traveler.  The  in- 
juries precipitated,  hastened,  and  developed  delirium  tremens,  and 
these  caused  death.  There  can  be  no  doubt  that  the  negligent  act  di- 
rectly set  in  motion  the  sequence  of  events  which  caused  death  at  the 
time  it  occurred.  Closer  analysis  shows  that  the  real  proposition  urged 
by  the  appellant  is  that  it  should  not  be  held  liable  for  the  results  which 
followed  its  negligence,  either,  first,  because  those  results  would  not 
have  occurred  if  intestate  had  been  in  a  normal  condition ;  or,  secondly, 
because  his  alcoholism  might  have  caused  delirium  tremens  and  death 
at  a  later  date  even  though  appellant  had  not  injured  him.  This  propo- 
sition cannot  be  maintained  in  either  of  its  branches  which  are  some- 
what akin. 


Ch.  2)  THE  TESTS   OP  LEGAL  CAUSE  833 

The  principle  has  become  famihar  in  many  phases  that  a  neghgent 
person  is  responsible  for  the  direct  effects  of  his  acts,  even  if  more 
serious,  in  cases  of  the  sick  and  infirm  as  well  as  in  those  of  healthy 
and  robust  people,  and  its  application,  to  the  present  case  is  not  made 
less  certain  because  the  facts  are  somewhat  unusual  and  the  intestate's 
prior  disorder  of  a  discreditable  character.  Tice  v.  Munn,  94  N.  Y. 
621 ;  Crank  v.  Forty-Second  Street,  M.  &  St.  N.  Ave.  Ry.  Co.,  53  Hun, 
425,  6  N.  Y.  Supp.  229,  affirmed  127  N.  Y.  648,  27  N.  E.  856 ;  Allison 
V.  C.  &  N.  W.  R.  R.  Co.,  42  Iowa,  274 ;  Owens  v.  K.  C.  &  C.  Ry.  Co., 
95  Mo.  169,  182,  8  S.  W.  350,  6  Am.  St.  Rep.  39.  The  principle  is  also 
true,  although  less  familiar,  that  one  who  has  negligent^''  forwarded 
a  diseased  condition,  and  thereby  hastened  and  prematurely  caused 
death,  cannot  escape  responsibility,  even  though  the  disease  probably 
would  have  resulted  in  death  at  a  later  time  without  his  agency.  It  is 
easily  seen  that  the  probability  of  later  death  from  existing  causes  for 
which  a  defendant  was  not  responsible  would  probably  be  an  important 
element  in  fixing  damages,  but  it  is  not  a  defense. 

Turner  v.  Nassau  Electric  R.  R.  Co.,  41  App.  Div.  213,  58  K.  Y. 
Supp.  490,  was  a  case  singularly  similar  to  this  one,  except  that  there 
the  physician  ventured  the  opinion  that  delirium  tremens  would  not 
have  ensued  except  for  the  accident  resulting  from  defendant's  negli- 
gence, whereas  in.  the  present  case  there  is  no  opinion  on  this  point. 
I  think,  however,  that  no  presumption  can  be  indulged  in  for  the  benefit 
of  the  present  appellant  that  delirium  tremens  would  have  occurred 
without  its  agency.  In  that  case  a  judgment  in  favor  of  the  intestate's 
representative  was  sustained  on  the  ground  that  the  accident  precipi- 
tated the  delirium  tremens  which  resulted  in  the  death. 

In  Louisville,  etc.,  R.  R.  Co.  v.  Jones,  83  Ala.  376,  382,  3  South.  902, 
904,  it  was  said  that  if  an  intestate  "had  pneumonia  or  incipient  pneu 
monia  at  the  time  she  received  the  injury,  and  it  could  be  known  that 
she  would  ultimately  die  of  that  disease,  this  would  not  necessarily, 
and  as  a  matter  of  law,  relieve  the  railroad  of  all  responsibility.  If  the 
injury  was  caused  by  the  negligence  of  the  railroad  company,  *  *  * 
and  if  it  contributed  to  and  hastened  her  death,  then  the  corporation 
would  not  be  guiltless." 

In  Jeff'ersonville,  etc.,  R.  R.  Co.  v.  Riley,  39  Ind.  568,  it  was  said 
with  reference  to  a  request  to  charge  made  by  the  defendant  and  de- 
nied :  "If  it  was  intended  to  have  the  court  say  to  the  jury  that  when 
a  person  has  a  tendency  to  insanity  or  disease,  and  receives  an  injury 
which  produces  death,  but  which  would  not  have  produced  death  in  a 
well  person  (the  plaintiff  cannot  recover),  the  charge  was  rightly  re- 
fused. If  death  was  the  result  of  the  pre-existing  circumstances,  and 
the  injury  had  nothing  to  do  with  producing  or  accelerating  the  result, 
then  the  injury  would  not  be  the  cause  of  death."  See,  also,  Owens 
V.  K.  C.  &  C.  Ry.  Co.,  95  Mo.  169,  182,  8  S.  W.  350,  6  Am.  St.  Rep. 
39;  Foley  v.  Pioneer,  etc.,  Co.,  144  Ala.  178,  183,  40  South.  273. 
Hept.Tobts — 53 


834  CAUSAL  RELATION  (Part  2 

The  responsibility  of  a  person  accelerating  the  death  of  another  al- 
ready suffering  from  a  disorder  which  at  a  later  period  of  itself  might 
have  caused  death  has  been  considered  in  criminal  cases  and  deter- 
mined in  a  manner  which  is  adverse  to  the  contention  of  the  appellant 
here.     *     *     *  ^^ 

I  think  the  judgment  should  be  affirmed,  with  costs. 

Vann,  J.^^  I  concur  because  so  far  as  appears  the  decedent  might 
be  living  yet  if  he  had  not  been  injured  by  the  negligence  of  the  de- 
fendant.    *     *     * 

The  injuries  were  of  a  very  serious  nature,  and  he  died  on  the  third 
day  after  he  was  hurt,  but  still  the  physicians  who  saw  him  at  the 
hospital  were  of  the  opinion  that  he  would  have  recovered  if  delirium 
tremens  had  not  set  in  on  the  day  following  the  accident.  They  testi- 
fied, in  substance,  that  he  died  from  that  disease,  precipitated  or  hast- 
ened by  the  injuries  he  had  sustained.  One  of  them  swore  that  he 
might  have  died  from  delirium  tremens  even  if  he  had  not  been  injured, 
and  the  jury  could  have  found  from  the  evidence  that  he  would  not 
have  had  that  disease  at  all  but  for  the  injuries.  Hence  they  could 
properly  find,  as  they  are  presumed  to  have  found,  that  the  injuries 
were  a  proximate  cause  of  his  death,  because  otherwise  he  would  not 
have  died  when  he  did,  but  might  have  lived  for  months  or  for  years. 
Non  constat,  he  might  be  living  still.  Even  if  he  had  the  seeds  of  a 
fatal  disease  in  his  system,  yet  would  have  continued  to  live  for  a 
longer  or  shorter  period  if  he  had  not  been  injured,  and  the  injuries 
caused  the  disease  to  develop  prematurely  and  result  in  death  sooner 
than  it  otherwise  would,  his  death  was  caused  by  the  accident  within 
the  meaning  of  the  statute.  The  acceleration  of  death  causes  death 
according  to  both  the  civil  and  the  criminal  law.  Clover,  Clayton  & 
Co.  v.  Hughes,  L.  R.  (App.  Cas.  1910)  242 ;  Hopkins  v.  Commonwealth, 
117  Ky.  941,  80  S.  W.  156,  4  Ann.  Cas.  957;  Powell  v.  State,  13  Tex. 
App.  244,  254;  Winter  v.  State,  123  Ala.  1,  11,  26  South.  949;  Rogers 
v.  State,  60  Ark.  76,  79,  29  S.  W.  894,  31  L.  R.  A.  465,  46  Am.  St. 
Rep.  154;  Baker  v.  State,  30  Fla.  41,  71,  11  South.  492:  Rex  v.  Martin, 
5  C.  &  P.  128,  130;  Rex  v.  Webb,  1  M.  &  Rob.  405;  People  v.  Moan, 
65  Cal.  532,  537,  4  Pac.  545 ;  State  v.  Morea,  2  Ala.  275,  279. 

In  Clover,  Clayton  &  Co.  v.  Hughes,  recently  decided  by  the  House 
of  Lords,  a  workman  suffering  from  serious  aneurism,  or  abnormal 
dilitation  of  an  artery,  was  engaged  in  tightening  a  nut  when  he  fell 
dead  from  rupture  of  the  aneurism,  and  it  was  held  a  death  resulting 
from  accident,  because  it  was  caused  by  a  strain  operating  upon  a  con- 
dition of  body  which  was  such  as  to  make  the  strain  fatal. 

12  Hiscock,  J.,  here  referred  to  Hale's  Plens  of  the  Crown,  pa.s:e  428; 
Bishop's  Criminal  Law  (5th  Bd.)  §  GHT ;  Commonwealth  v.  Fo.k  (1S5G)  73  Ma-^s. 
(7  (iray)  585;  State  v.  Smith  (1887)  73  Iowa.  32.  41,  34  N.  W.  597,  GOl;  Kex 
V.  Martin  (1832)  5  C.  &  P.  128,  130;  Resina  v.  I'lummer  (1844)  1  C.  &  K.  GOO, 
607. 

13  Parts  of  the  opinion  of  Vann,  J.,  are  omitted. 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  835 

In  People  v.  Moan  the  court  said :  "If  a  patient  is  lying  in  the  last 
stages  of  consumption,  with  a  tenure  upon  life  that  cannot  possibly 
continue  for  a  day,  it  is  homicide  to  administer  a  poison  to  him  by 
which  his  life  is  ended  almost  immediately.  So  in  the  case  we  are 
now  considering,  if  Finck,  by  excessive  indulgence  in  intoxicating 
drinks,  had  reduced  himself  to  a  wreck  and  brought  his  life  to  the 
brink  of  the  grave,  it  was  a  wrongful  act  for  the  defendant  to  acceler- 
ate his  death  by  violence.  Perhaps  blows  delivered  with  equal  force 
on  the  head  of  a  strong  man  in  the  enjoyment  of  robust  health  would 
not  have  been  attended  by  any  serious  consequences;  but  upon  a  life 
impaired  as  Finck's  was  by  self-abuse  they  may  have  accelerated  his 
death ;  and  but  for  the  blows  the  man  would  not  have  died,  at  least  not 
at  the  time  he  did.  This  makes  the  defendant  criminally  responsi- 
ble."    *     *     * 

A  person  with  an  incurable  disease  may  be  so  injured  as  to  aggra- 
vate the  trouble  and  hasten  it  to  a  fatal  result.  In  such  a  case  death  is 
owing  to  two  concurring  causes,  disease  and  violence,  neither  of  which 
would  have  caused  death  when  it  occurred  without  aid  from  the  other. 
One  cause  may  be  more  efficient  than  the  other,  yet,  unless  acting 
alone,  it  would  have  resulted  in  death,  not  in  the  future,  but,  when 
death  actually  came,  it  is  not  of  itself  the  proximate  cause.  While  in 
this  case  delirium  tremens  was  not  caused  by  the  accident,  it  was  set 
in  motion  by  the  accident  and  thus  became  an  effective  agency  of  death, 
the  same  as  if  the  decedent  had  had  heart  disease,  but  would  have  con- 
tinued to  live  a  while  longer  had  it  not  been  set  in  motion  and  hurried 
to  a  fatal  end  by  violence. 

The  judgment  should  be  affirmed.^* 

Judgment  affirmed. 


SCHEFFER  v.  RAILROAD  CO. 

(Supreme  Court  of  the  United  States,  1881.     105  U.  S.  249,  26  L.  Ed.  1070.) 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  Virginia. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

The  plaintiffs,  executors  of  Charles  Scheffer,  deceased,  brought 
this  action  to  recover  of  the  Washington  City,  Virginia  Midland,  and 
Great  Southern  Railroad  Company  damages  for  his  death,  which 
they  allege  resulted  from  the  negligence  of  the  company  while  car- 
rying him  on  its  road.  The  defendant's  demurrer  to  their  declara- 
tion was  sustained,  and  to  reverse  the  judgment  rendered  thereon 
they  sued  out  this  writ  of  error. 

The  statute  of  Virginia  under  which  the  action  was  brought  is,  as 
to  the  question  raised  on  the  demurrer,  identical  with  those  of  all  the 

14  Gray  and  Collin,  J  J.,  concurred  with  Hiscock,  J.;  Cullen,  C.  J.,  and 
Werner,  .T.,  concurred  with  Hiscock  and  Vann,  J.T.     Ilaight,  .7.,  was  aliscnt 


836  CAUSAL  RELATION  (Part  2 

other  States,  giving  the  right  of  recovery  when  the  death  is  causeil  by 
such  default  or  neglect  as  would  have  entitled  the  party  injured  to 
recover  damages  if  death  had  not  ensued. 

The  declaration,  after  alleging  the  carelessness  of  the  officers  of 
the  company,  by  which  a  collision  occurred  between  the  train  on 
which  Scheffer  was  and  another  train,  on  the  seventh  day  of  Decem- 
ber, 1874,  proceeds  as  follows: 

•'VVtiereby  said  sleeping-car  was  rent,  brol^en,  torn,  and  shattered,  and  by 
means  wliereof  the  said  Charles  Scheffer  was  cut,  bruised,  maimed,  and  dis- 
figured, wounded,  lamed,  and  injured  about  his  head,  face,  neck,  back,  and 
spine,  and  by  reason  whereof  the  said  Charles  Scheffer  became  and  was  sick, 
sore,  lame,  and  disordered  in  mind  and  body,  and  in  his  brain  and  spine,  and 
by  means  whereof  phantasms,  illusions,  and  forebodings  of  unendurable  evils 
to  come  upon  him,  the  said  Charles  Scheffer,  were  produced  and  caused  upon 
the  brain  and  mind  of  him,  the  said  Charles  Schefi'er,  which  disease,  so  pro- 
duced as  aforesaid,  baffled  all  medical  skill,  and  continued  constantly  to  dis- 
turb, harass,  annoy,  and  prostrate  the  nervous  system  of  him,  the  said  Charles 
Scheffer,  to  wit,  from  the  seventh  day  of  December,  A.  D.  1S74,  to  the  eighth 
day  of  August,  1875,  when  said  phantasms,  illusions,  and  forebodings,  pro- 
duced as  aforesaid,  overcame  and  prostrated  all  his  reasoning  powers,  and 
induced  him,  the  said  Charles  Scheffer,  to  take  his  life  in  an  effort  to  avoid 
said  phantasms,  illusions,  and  forebodings,  which  he  then  and  there  did, 
whereby  and  by  means  of  the  careless,  unskilful,  and  negligent  acts  of  the 
said  defendant  aforesaid,  the  said  Charles  Scheffer,  to  wit,  on  the  eighth  day 
of  August,  1875,  lost  his  life  and  died,  leaving  him  surviving  a  wife  and  chil- 
dren." 

The  Circuit  Court  sustained  tlie  demurrer  on  the  ground  that  the 
death  of  Scheffer  was  not  due  to  the  negligence  of  the  company  in 
the  judicial  sense  which  made  it  liable  under  the  statute.  That  the 
relation  of  such  negligence  was  too  remote  as  a  cause  of  the  death  to 
justify  recovery,  the  proximate  cause  being  the  suicide  of  the  dece- 
dent,— his  death  by  his  own  immediate  act.  In  this  opinion  we  con- 
cur. 

Two  cases  are  cited  by  counsel,  decided  in  this  Court,  on  the  sub- 
ject of  the  remote  and  proximate  causes  of  acts  where  the  liability 
of  the  party  sued  depends  on  whether  the  act  is  held  to  be  the  one 
or  the  other ;  and,  though  relied  on  by  plaintiffs,  we  think  they  both 
sustain  the  judgment  of  the  Circuit  Court. 

The  first  of  these  is  Insurance  Company  v.  Tweed,  7  Wall.  44,  19 
L.  Ed.  65.  In  that  case  a  policy  of  fire  insurance  contained  the  usual 
clause  of  exception  from  liability  for  any  loss  which  might  occur  "by 
means  of  any  invasion,  insurrection,  riot,  or  civil  commotion,  or  any 
military  or  usurped  power,  explosion,  earthquake,  or  hurricane."  An 
explosion  took  place  in  the  Marshall  warehouse,  which  threw  down 
the  walls  of  the  Alabama  warehouse, — the  one  insured,  situated  across 
the  street  from  Marshall  warehouse, — and  by  this  means,  and  by 
the  sparks  from  the  Eagle  Mill,  also  fired  by  the  explosion,  facilitated- 
by  the  direction  of  the  wind,  the  Alabama  warehouse  was  burned. 
This  Court  held  that  the  explosion  was  the  proximate  cause  of  the 
loss  of  the  Alabama  warehouse,  because  the  fire  extended  at  once 
from  the  Marshall  warehouse,  where  the  explosion  occurred.     The 


Ch.  2)  THE  TESTS   OF   LEGAL  CAUSE  837 

Court  said  that  no  new  or  intervening  cause  occurred  between  the 
explosion  and  the  burning  of  the  Alabama  warehouse.  That  if  a  new 
force  or  power  had  intervened,  sufificient  of  itself  to  stand  as  the 
cause  of  the  misfortune,  the  other  must  be  considered  as  too  remote. 

This  case  went  to  the  verge  of  the  sound  doctrine  in  holding  the 
explosion  to  be  the  proximate  cause  of  the  loss  of  the  Alabama  ware- 
house ;  but  it  rested  on  the  ground  that  no  other  proximate  cause  was 
found. 

In  Milwaukee  &  St.  Paul  Railway  Co.  v.  Kellogg,  94  U.  S.  469,  24 
L.  Ed.  256,  the  sparks  from  a  steam  ferryboat  had,  through  the  neg- 
ligence of  its  owner,  the  defendant,  set  fire  to  an  elevator.     *     *     *  ^^ 

Bringing  the  case  before  us  to  the  test  of  these  principles,  it  pre- 
sents no  difficulty.  The  proximate  cause  of  the  death  of  Scheffer  was 
his  own  act  of  self-destruction.  It  was  withm  the  rule  in  both  these 
cases  a  new  cause,  and  a  sufficient  cause  of  death. 

The  argument  is  not  sound  which  seeks  to  trace  this  immediate 
cause  of  the  death  through  the  previous  stages  of  mental  aberration, 
physical  suffering,  and  eight  months'  disease  and  medical  treatment 
to  the  original  accident  on  the  railroad.  Such  a  course  of  possible  or 
even  logical  argument  would  lead  back  to  that  "great  first  cause  least 
understood,"  in  which  the  train  of  all  causation  ends. 

The  suicide  of  Scheffer  was  not  a  result  naturally  and  reasonably 
to  be  expected  from  the  injury  received  on  the  train.  It  was  not  the 
natural  and  probable  consequence,  and  could  not  have  been  foreseen 
in  the  light  of  the  circumstances  attending  the  negligence  of  the  of- 
ficers in  charge  of  the  train. 

His  insanity,  as  a  cause  of  his  final  destruction,  was  as  little  the 
natural  or  probable  result  of  the  negligence  of  the  railway  officials, 
as  his  suicide,  and  each  of  these  are  casual  or  unexpected  causes,  in- 
tervening between  the  act  which  injured  him,  and  his  death. ^"^ 

Judgment  affirmed. 

15  Mr.  Justice  Miller  here  stated  the  facts  in  Milwaukee  &  Pit.  Paul  Ry.  Co. 
V.  Kellosg  and  quoted  part  of  the  opinion.  Reference  was  made  also  to 
McDonald  v.  Snelling  (18G7)  14  Allen  (Mass.)  290,  92  Am.  Dec.  70S,  as  being 
to  the  same  effect. 

16  Compare  Daniels  v.  New  York,  N.  H.  &  H.  R.  Co.  (1903)  183  Mass.  .393, 
67  N.  E.  424,  G2  L.  R.  A.  751:  (The  succession  was  as  follows:  August  12, 
a  blow  on  the  head  in  a  railway  accident  caused  by  the  negligence  of  the 
defendant  railway  company ;  some  weeks  later,  insomnia,  melancholy,  and 
delirium  :  on  October  3d,  suicide  through  a  planned  act.  The  testimony  tend- 
ed to  establish  insanity  resulting  from  the  blow  on  the  head.  A  recovery 
was  denied.  Said  Knowlton,  C.  J.:  "All  agree  that  death  self  caused  in  an 
uncontrollable  frenzy,  without  knowledge  or  appreciation  of  the  physical 
nature  of  the  act.  would  not  be  death  by  suicide,  or  by  one's  own  hand,  with- 
in the  meaning  of  such  a  provision  in  a  policy  (of  insurance).  *  *  *  ^\n 
act  of  suicide  resulting  from  a  moderately  intelligent  power  of  choice,  even 
though  the  choice  is  determined  by  a  disordered  mind,  should  l)e  deemed  a 
new  and  independent,  efficient  cause  of  the  death  that  immediately  ensues. 
We  are  of  opinion  that  the  term  'rational  volition,'  used  in  the  charge,  was 
understood  by  the  jury  to  mean  volition  attended  by  the  powei"s  of  reason,  to 


838  CAUSAL  RELATION  (Part  2 

BROWN  V.  AMERICAN  STEEL  &  WIRE  CO. 

(Appellate  Court  of  Indiana,  1909.    43  lud.  App.  5G0,  SS  N.  E.  SO.) 

Myers,  J.  Appellant  brought  this  action  against  appellee  to  recover 
damages  for  the  alleged  negligent  killing  of  William  Cruse,  appel- 
lant's intestate.  From  the  amended  complaint,  which  was  in  one  par- 
agraph, it  appears  that  on  January  27,  1903,  appellee  was  engaged 
in  the  manufacture  of  nails,  and  other  metal  goods,  at  Anderson, 
Ind.,  and  on  that  day  said  decedent  was  in  its  employ  as  a  helper  in 
and  about  one  of  its  nail  machines,  the  cogs,  gearing,  belting,  etc., 
of  which  machine  appellee  had  negligently  and  carelessly  failed  and 
omitted  to  guard ;  that  while  said  machine  was  being  operated,  said 
decedent  was  caught  by  said  unguarded  cogs,  etc.,  and  thereby  greatly 
and  seriously  injured;  "that  such  described  injuries  so  received  by 
said  decedent  through  and  by  the  carelessness  and  negligence  of  the 
defendant  in  the  manner  aforesaid  did  cause  and  produce  the  death 
of  the  said  William  Cruse,  decedent,  on  or  about  October  30,  1903." 
The  sufficiency  of  the  complaint  is  not  before  us.  Appellee  answered 
the  complaint  in  two  paragraphs ;  one  in  denial ;  the  other  averring 
a  compromise  and  settlement  with  the  decedent  for  all  claims  by  rea- 
son of  the  injuries  so  sustained  by  him.     *     *     *  ^'^ 

In  the  case  at  bar  the  facts  are  undisputed.  *  *  *  While  the 
decedent  was  w^orking  about  said  machine,  he  was  caught  in  said  un- 
guarded cogs.  His  right  arm  from  near  his  wrist  up  to  a  little  below 
his  shoulder  was  severely  cut  and  mashed.  He  received  a  cut  about 
three  inches  long,  triangular  shaped,  on  top  of  his  head,  a  cut  on  the 
side  of  his  head  near  his  temple,  and  a  cut  on  his  back  just  below 
the  right  shoulder,  about  three  inches  wide  and  four  inches  long,  and 
deep  enough  to  expose  a  rib  and  his  spinal  column.  His  hips  were 
severely  bruised  and  injured.  Immediately  after  the  accident  he  was 
taken  to  a  hospital,  where  his  wounds  were  dressed  by  surgeons,  and 

consider  and  judge  of  the  act  in  all  its  relations, — moral  as  well  as  physical, 
— and  that  the  charge  was  in  this  respect  too  favorable  to  the  plaintiff.  The 
burden  of  proof  was  on  the  plaintiff  to  show  that  the  death  was  caused  by 
the  collision.  All  the  evidence  tended  to  show  tliat  the  deceased,  with  de- 
liberate purpose,  planned  to  take  his  own  life;  that  he  closed  the  door,  and 
locked  it,  with  a  view  to  exclude  others  and  prevent  interruption ;  and  that 
he  then  took  the  napkin,  and  used  it  effectively  to  strangle  himself.  All  this 
points  to  an  understanding  of  the  physical  nature  and  effect  of  his  act,  and  to 
a  wilful  and  intelligent  purpose  to  accomplish  it.  That  he  was  insane,  so  as 
to  be  free  from  moral  responsibility,  is  not  enough  to  make  the  defendant 
liable.  We  are  unable  to  discover  any  evidence  that  he  was  acting  without 
volition,  under  an  uncontrollable  impulse,  or  that  he  did  not  understand  the 
physical  nature  of  his  act.  In  the  absence  of  any  afRrraative  evidence  for 
the  plaintiff  on  this  point,  the  jury  should  have  been  instructed  to  render 
a  verdict  for  the  defendant") 

17  Part  of  the  opinion,  giving  tlie  history  of  the  action,  and  discussing  cer- 
tain questions  in  procedure,  is  omitted.  The  case  was  tried  twice.  The  first 
trial  resulted  in  a  verdict  for  the  plaintiff;  the  second,  in  a  verdict  for  the 
defendant. 


Ch.  2)  THE  TESTS   OF  LEGAL  CAUSE  839 

where  he  remained  until  the  latter  part  of  August.  From  the  hospi- 
tal he  went  to  a  private  boarding  house  in  Anderson,  and  about  the 
middle  of  September  he  went  to  the  home  of  his  father  at  Xora,  Ind., 
and  remained  there  until  the  day  of  his  death,  October  31st.  For 
five  years  continuously  and  immediately  prior  to  said  accident  the 
decedent  was  strong  and  healthy,  and  from  the  time  of  the  accident 
until  his  death  was  physically  weak  and  unable  to  do  any  work.  It 
appears  that  on  the  same  day,  and  shortly  after  the  accident,  he  be- 
came unconscious,  and  remained  in  that  condition  for  several  hours ; 
that  at  times  during  the  two  weeks  next  following  the  day  of  the 
injury  he  would  become  insensible,  and  did  not  recognize  his  son. 
At  intervals  thereafter,  until  he  died,  he  was  unable  to  recognize 
members  of  his  own  family.  After  the  accident,  and  after  he  had 
gained  consciousness,  and  when  in  his  best  physical  and  mental  con- 
dition, he  would  continually  complain  of  pain  in  his  head ;  that  the 
side  of  his  head  was  heavy,  and  at  times  complained  of  being  dizzy. 
At  times  he  complained  about  not  knowing  what  he  was  doing.  He 
was  melancholy.  His  talk  was  incoherent.  Occasionally  he  would 
start  a  sentence  directed  to  one  subject  and  close  it  with  reference 
to  some  other  subject.  He  was  constantly  rubbing  his  head.  He 
frequently  could  not  remember  the  names  of  his  children.  The  un- 
disputed evidence  is  that  at  the  time  of  his  death  he  was  a  person  of 
unsound  mind.     It  was  agreed  by  the  parties: 

"That  on  the  31st  day  of  October,  1903.  in  the  evening  of  that  day,  Mr. 
Cruse,  the  decedent  in  this  case,  left  his  father's  home  in  Xora,  situated  in 
Marion  county,  Ind.,  and  was  not  heard  of  or  seen  for  three  weeks  from  that 
date,  at  which  time  he  was  found  near  Xora  in  a  corn  field,  lying  between  two 
corn  rows,  with  his  coat  and  vest  removed  and  lying  close  to  him,  with  his 
own  pocket  knife  oi^en  in  or  near  to  his  hand,  and  with  his  throat  cut,  sever- 
ing the  jugular  vein,  with  some  three  cuts  in  the  throat,  and  that  his  property,  a 
watch  and  some  money,  was  intact  in  his  pocket,  and  that  he  was  dead.  It 
is  further  agreed  that  he  took  his  own  life,  and  died  from  the  effects  of  the 
knife  wounds,  self-inflicted." 

Appellant's  authority  to  bring  and  maintain  this  action  rests  solely 
upon  the  statute  (section  285,  Burns'  Ann.  St.  1908),  which  provides 
that :  "When  the  death  of  one  is  caused  by  the  wrongful  act  or  omis- 
sion of  another,  the  personal  representatives  of  the  former  may  main- 
tain an  action  therefor  against  the  latter,  if  the  former  might  have 
maintained  an  action,  had  he  or  she  (as  the  case  may  be)  lived,  against 
the  latter  for  an  injury  for  the  same  act  or  omission."  Under  this 
statute  the  death  must  have  been  "caused  by  the  wrongful  act  or 
omission  of  another."     *     *     *  ^* 

From  the  cases  bearing  upon  the  subject  now  being  considered  the 
rule  seems  to  be  that  an  action  under  the  statute  may  be  maintained 

18  The  court  here  stated  the  facts  of  Scheffer  v.  Railroad  Co.  (ISSi)  105 
U.  S.  249.  2t>  L.  Ed.  1070,  and  of  Daniels  v.  N.  Y.  R.  Co.  (1903)  183  Mass.  393, 
67  X.  E.  424,  62  L.  R.  A.  751,  and  quoted  parts  of  these  opinions. 


840  CAUSAL  RELATION  (Part  2 

when  the  death  is  self-inflicted,  only  where  it  is  the  result  of  an  un- 
controllable influence,  or  is  accomplished  in  delirium  or  frenzy,  caused 
by  the  defendant's  negligent  act  or  omission,  and  without  conscious 
volition  of  a  purpose  to  take  life;  for  then  the  act  would  be  that  of 
an  irresponsible  agent.  Daniels  v.  New  York,  etc.,  R.  Co.,  183  Mass. 
393,  67  N.  E.  424,  62  L.  R.  A.  -751;  Scheffer  v.  Railroad  Company, 
105  U.  S.  249,  26  L.  Ed.  1070;  Goodlander  Mill  Co.  v.  Standard  Oil 
Co.,  63  Fed.  4C0.  405,  11  C.  C.  A.  253,  27  L.  R.  A.  583;  Chicago, 
etc.,  Ry.  Co.  v.  Elliott,  55  Fed.  949,  951,  5  C.  C.  A.  347,  20  L.  R.  A. 
582;  Ronker  v.  St.  John,  21  Ohio  Cir.  Ct.  R.  39;  Maguire  v.  Shee- 
han,  117  Fed.  819,  54  C.  C.  A.  642,  59  L.  R.  A.  496.  While  the 
rule  is  general  that  an  intervening  responsible  agent  cuts  off  the 
line  of  causation  from  the  original  negligence,  yet  we  are  not  un- 
mindful of  "the  qualification  that,  if  the  intervening  act  is  such 
as  might  reasonably  have  been  foreseen  or  anticipated  as  the  nat- 
ural and  probable  result  of  the  original  negligence,  the  original  neg- 
ligence will,  notwithstanding  such  intervening  act,  be  regarded  as 
the  proximate  cause  of  the  injury."  Nickey  v.  Steuder,  164  Ind. 
189,  7Z  N.  E.  117.  The  burden  was  on  appellant  to  prove  that  dece- 
dent's death  was  caused  by  the  neglect  of  appellee  to  guard  the  cog- 
wheels. It  is  not  enough  to  show  negligence  and  the  injury,  but  in 
addition  appellant  must  also  show  that  appellee's  negligence  proxi- 
mately caused  Cruse's  death.  The  decedent's  right  to  damages,  had 
he  lived,  was  a  common-law  right,  limited  to  the  damage  sustained, 
attributable  to  the  negligence  of  appellee.  Appellant's  right  to  re- 
cover, being  statutory,  depends  upon  whether  her  decedent  could  have 
maintained  an  action,  had  he  lived,  against  appellee  for  a  self-inflicted 
injury,  as  the  active,  operative,  continuing,  and  the  probable  and  nat- 
ural sequence  of  the  original  injury. 

In  actions  of  this  character  the  evidence  must  be  such  as  to  war- 
rant the  jury  in  finding  that  the  decedent  in  taking  his  life  acted 
"without  volition,  under  an  uncontrollable  impulse,  or  that  he  did 
not  understand  the  physical  nature  of  his  act."  Daniels  v.  New  York, 
etc.,  R.  Co.,  183  Mass.  393,  67  N.  E.  424,  62  L.  R.  A.  751.  Turning 
again  to  the  record  in  this  case,  we  find  no  evidence  as  to  the  dece- 
dent's strength  of  mind  during  a  few  weeks  immediately  prior  to  his 
death,  but,  assuming  that  his  improved  condition  in  that  respect  a  few 
weeks  before  the  day  of  the  suicide  continued,  taken  in  connection 
with  the  agreed  facts  heretofore  set  out  in  this  opinion,  instead  of 
showing  a  want  of  conscious  volition,  strongly  indicates  that  the  de- 
cedent had  a  mind  capable  of  conceiving  a  purpose  of  taking  his  life, 
as  well  as  a  knowledge  of  the  means  which  would  certainly  carry  his 
purpose  into  effect.  This  conclusion  from  the  evidence  leaves  an 
essential  fact  to  support  a  verdict  for  plaintiff  unsustained  by  the 
evidence;  and,  this  being  true,  the  trial  court  did  not  err  in  directing 
a  verdict  for  the  defendant.     Louisville,  etc.,  Ry.  Co.  v.  Nitsche,  126 


Ch.  2)  THE  TESTS   OF  LEGAL   CAUSE  841 

Ind.  229,  26  N.  E.  51,  9  L.  R.  A.  750,  22  Am.  St.  Rep.  582;    Cole 
V.  German  Savings  &  Loan  Society,  124  Fed.  113,  122,  59  C.  C.  A. 
593,  63  L.  R.  A.  416. 
Judgment  affirmed. 


SECTION  3.— INTERVENING  AGENCY  AS  A  TEST  OF 

LEGAL  CAUSE 


WOOLLEY  V.  SCOVELL.  - 

(Court  of  King's  Bench,  1828.     3  Man.  &  R.  105,  32  R.  R.  716.) 

Case  for  negligence  in  throwing  a  bag  of  wool  from  a  lofty  ware- 
house into  a  yard,  whereby  the  wool  fell  upon  the  plaintiff,  who  was 
in  the  yard,  and  injured  him.  Plea,  not  guilty.  At  the  trial  before 
Lord  Tenterden,  C.  J.,  at  the  sittings  at  Guildhall  after  last  Term,  the 
following  facts  appeared: 

The  defendant  was  the  occupier  of  a  warehouse  the  windows  of  which 
opened  into  a  yard.  Having  occasion  to  remove  a  bag  of  wool  from  an  up- 
per floor  of  the  warehouse,  the  defendant,  for  the  purpose  of  saving  time  and 
expense,  directed  his  servants  to  throw  the  wool  out  of  the  window  of  the 
warehouse.  Before  the  bag  was  dropped  from  the  window,  one  of  the  defend- 
ant's servants  called  out  to  warn  passengers.  The  plaintiff,  who  happened 
to  be  in  the  yard,  looked  up  and  saw  the  wool  as  it  was  thrust  out  of  the 
window;  he  then  ran  across  the  yard,  thinking,  as  he  afterwards  said,  t«at 
he  should  have  time  to  escape.  The  wool,  however,  fell  upon  him,  and  he  sus- 
tained a  considerable  injury.  The  learned  Judge  told  the  jury,  that  if  they 
were  of  opinion  that  the  plaintiff  ran  wantonly  or  carelessly  into  danger, 
they  ought  to  find  a  verdict  for  the  defendant;  but  that  if  they  thought  the 
plaintiff  had  lost  his  presence  of  mind  by  the  act  of  the  defendant,  and 
in  the  confusion  produced  by  the  situation  in  which  he  found  himself,  had 
run  into  the  danger,  they  ought)  to  give  their  verdict  for  the  plaintiff. 

The  jury  found  a  verdict  for  the  plaintiff,  damages  il50. 

Sir  J.  Scarlett  now  moved  to  set  aside  the  verdict,  on  the  ground 
of  misdirection:  The  rule  laid  down  by  the  learned  Judge  was  very 
humane,  but  it  is  submitted  that  it  was  not  founded  in  law.  The  law 
should  not  vary  according  to  the  nerves  of  parties.  It  is  true  that 
with  respect  to  ships,  the  loss  must  be  borne  by  the  party  who  was 
first  in  the  wrong;  but  there  the  other  party  has  not  the  entire  con- 
trol over  the  motions  of  his  vessel,  which  depend  upon  the  winds  and 
waves.  (Bayley,  J.  You  complain  of  that  part  of  the  direction  in 
which  the  jury  were  told,  that  if  the  plaintiff  was  deprived  of  his 
presence  of  mind  by  the  wrongful  act  of  the  defendant,  he  was  en- 
titled to  their  verdict;  not  that  the  facts  of  the  case  did  not  warrant 
such  an  inference.) 

Lord  Tenterden,  C.  J.  The  first  fault  was  the  throwing  of  the 
wool  from  the  window  instead  of  lowering  it  by  the  usual  mode,  by 
a  crane.     This,  the  defendant  admitted,  he  did  to  save  time. 


842  CAUSAL  RELATION  (Part  2 

BaylEy,  J.  I  think  the  direction  was  right.  Whether  the  plaintiff 
was  deprived  of  his  presence  of  mind  by  the  act  of  the  defendant, 
was  a  question  for  the  jury. 

LiTTLEDALE,  J.  I  have  no  doubt  whatever  that  the  direction  was 
right.  It  is  not  surprising  that  the  plaintiff  should  have  been  alarmed, 
and  should  thereby  have  lost  his  self-possession ;  and  this  alarm  was 
occasioned  by  the  wrongful  act  of  the  defendant. 

Rule  refused. 


MUNSEY  v.   WEBB. 

(Supreme  Court  of  the  United  States,  1913.    231  U.  S.  150,  34  Sup.  Ct.  44, 

58  L.  Ed.  162.) 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court: 

This  is  an  action  brought  against  the  owner  of  a  building  for  caus- 
ing the  death  of  the  plaintiff's  intestate  in  an  elevator  in  which  the 
deceased  was  being  carried  to  his  place  of  employment.  Negligent 
construction  and  negligent  management  of  the  elevator  are  alleged. 
The  plaintiff  had  a  verdict  against  a  request  by  the  defendant  that 
one  be  directed  for  him,  the  judgment  was  affirmed  by  the  court  of 
appeals  {?)7  App.  D.  C.  185),  and  the  defendant  brought  the  case  here. 

The  elevator  car  did  not  quite  fill  the  well,  or  shaft,  and  the  bottom 
of  the  floor  that  it  was  approaching  projected  at  right  angles  into  the 
well  about  3%  inches.  The  car  was  equipped  with  a  collapsible  door, 
which  was  open  at  the  time  of  the  accident,  and  the  boy  in  charge  did 
not  have  his  arm  across  the  space  as  he  had  been  instructed  to  do. 
Between  the  fourth  and  fifth  floors  the  deceased  fell,  and  his  head 
was  caught  between  the  projecting  bottom  of  the  fifth  floor  and  the 
floor  of  the  car  and  was  crushed.  The  negligence  relied  upon  is  the 
leaving  of  the  door  open  and  failure  to  guard  the  space ;  the  not 
having  a  flange  or  piece  of  metal  inclining  from  the  projecting  floor 
to  the  shaft  wall,  and  the  failure  to  use  an  emergency  switch,  the 
([uickest  means  of  stopping  the  car,  the  boy  in  charge  not  having  been 
instructed  in  the  use  of  it. 

The  plaintiff  in  error  argued  at  some  length  that  there  was  no  neg- 
ligence, because  the  fall  of  deceased  was  something  wholly  out  of 
the  ordinary  course,  and  not  to  be  foreseen ;  or  that,  if  there  was 
negligence  in  any  sense,  it  was  not  the  proximate  cause  of  the  death, 
but  merely  a  passive  condition  made  harmful  by  the  fall.  Neither 
argument  can  be  maintained.  It  is  true  that  it  was  not  to  be  antici- 
pated specifically  that  a  man  should  drop  from  internal  causes  into 
the  open  door  of  the  car.  But  the  possibility  and  the  danger  that  in 
some  way  one  in  the  car  should  get  some  part  of  his  person  outside 
the  car  while  it  was  in  motion  was  obvious,  and  was  shown  to  have 
been  anticipated  by  the  door  being  there.     In  some  circumstances,  at 


Ch.  2)  THE   TESTS   OF   LEGAL   CAUSE  843 

least,  it  was  a  danger  that  ought  to  be  and  was  guarded  against.  It 
is  said  that  the  danger  was  manifest  only  when  the  car  was  crowded, 
and  that' the  door  was  needed  only  for  that.  If  the  duty  to  have  the 
car  shut  on  all  sides  had  been  created  with  reference  only  to  condi- 
tions different  in  kind  from  those  of  the  accident,  it  may  be  that  the 
plaintiff  could  not  avail  himself  of  a  requirement  imposed  alio  in- 
tuitu. The  Eugene  F.  Moran,  212  U.  S.  466,  476,  53  L.  Ed.  600,  604, 
29  Sup.  Ct.  339.  But  the  accident  was  similar  in  kind  to  those  against 
which  the  door  was  provided,  and  we  are  not  prepared  to  say,  con- 
trary to  the  finding  of  the  jury,  that  the  duty  to  keep  it  shut  or  to 
guard  the  space  with  the  arm  did  not  exist  in  favor  of  all  travelers 
in  an  elevator  having  the  structure  that  we  have  described.  It  was 
not  necessary  that  the  defendant  should  have  had  notice  of  the  par- 
ticular method  in  which  an  accident  would  occur,  if  the  possibility 
of  an  accident  was  clear  to  the  ordinarily  prudent  eye,  Washington 
&  G.  R.  Co.  v.  Hickey,  166  U.  S.  521,  526,  527,  41  L.  Ed.  1101-1103, 
17  Sup.  Ct.  661,  1  Am.  Neg.  Rep.  758. 

If  there  was  negligence,  it  very  properly  could  be  found  to  have 
been  the  proximate  cause  of  the  death.  See  Milwaukee  &  St.  P.  R. 
Co.  v.  Kellogg,  94  U.  S.  469,  24  L.  Ed.  256.  Even  if  it  were  true 
that  the  neglect  was  merely  a  passive  omission,  the  deceased  was  in- 
vited into  the  elevator,  and  the  principle  of  the  trap  cases  would  ap- 
ply. Corby  v.  Hill,  4  C.  B.  N.  S.  556,  563,  27  L.  J.  C  P.  N.  S.  318. 
4  Jur.  N.  S.  512,  6  Week.  Rep.  575;  Sweeny  v.  Old  Colony  &  N. 
R.  Co.,  10  Allen  (Mass.)  368,  374,  87  Am.  Dec.  644.  But  that  is  not 
the  case.  The  defendant  is  sued  for  having  crushed  the  head  of 
the  deceased  by  forces  that  he  put  in  motion.  He  replies  that  it 
would  not  have  happened  but  for  the  unforeseen  fall  of  the  deceased 
without  the  defendant's  fault,  and  to  this  the  plaintiff  rejoins  and  the 
jury  has  found  that  the  defendant  was  bound  to  take  the  easy  pre- 
caution which  he  had  provided  against  any  and  all  ways  by  which 
a  passenger's  body  could  get  outside  the  car  while  it  was  going  up. 
Hayes  v.  Michigan  C.  R.  Co.,  Ill  U.  S.  228.  241,  28  L.  Ed.  410, 
415,  4  Sup.  Ct.  369;  Choctaw,  O.  &  G.  R.  Co.  v.  Holloway,  191  U. 
S.  334,  339,  48  L.  Ed.  207,  210,  24  Sup.  Ct.  102.  The  whole  ques- 
tion comes  down  to  whether  we  are  prepared  to  say  as  matter  of  law, 
against  the  finding  of  the  jury,  that,  in  an  elevator  constructed  as 
this  was,  with  a  special  source  of  danger  in  the  shaft  outside  the 
car,  to  require  the  defendant  to  guard  the  door  space  in  transitu,  at 
his  peril,  is  too  strict  a  rule.  We  cannot  go  so  far.  McDonald  v. 
Toledo  Consol.  Street  R.  Co.,  20  C.  C.  A.  322,  43  U.  S.  App.  79,  74 
Fed.    104,    109. 

There  was,  perhaps,  evidence  sufficient  to  warrant  a  finding  that 
there  was  negligence  in  not  stopping  the  car  after  the  fall  and  be- 
fore the  harm  was  done,  and  a  finding  on  that  ground  would  not 
open  the  questions  that  have  been  discussed ;  but  we  have  preferred 
to  deal  with  the  case  on  the  matters  principally  argued,  as  they  seem 


844  CAUSAL  RELATION  (Part  2 

to  offer  the  most  obvious  reasons  for  the  verdict,  and  therefore  have 
assumed  that  the  jury  found  the  facts  and  standard  of   conduct  to 
be  as  we  have  supposed. 
Judgment  affirmed. 


TUTTLE  et  ux.  v.  ATLANTIC  CITY  R.  CO. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1901.     66  N.  J.  Law,  327, 
49  Atl.  450,  54  L.  R.  A.  5S2,  88  Am.  St.  Rep.  491.) 

This  action  was  by  Samuel  Tuttle  and  his  wife  against  the  At- 
lantic City  Railroad  Company  to  recover  damages  because  of  a  per- 
sonal injury  sustained  by  Mrs.  Tuttle  through  the  alleged  negligence 
of  the  defendant.  The  judgment  below  was  for  the  plaintiff,  and 
the  defendant  brings  error.     The  facts  were  as  follows : 

The  defendant  maintained  a  freight  yard  on  the  south  side  of  Mechanic 
Street,  in  the  city  of  Camden.  A  flying  drill  was  being  made  in  this  yard, 
and  a  car  was  derailed  and  dashed  across  Mechanic  Street,  and  broke  through 
the  front  of  the  house  opiwsite,  belonging  to  a  Mrs.  Brennan.  At  this  time, 
Mrs.  Tuttle  was  on  the  sidewalk  near  the  Brennan  house,  and  saw  the  car 
coming  across  the  street  at  full  speed.  Becoming  frightened,  she  started  to 
run,  and  when  three  or  four  doors  below,  fell  and  injured  her  left  knee.i9 

At  the  close  of  the  plaintiff's  case,  a  motion  for  a  nonsuit  was 
made,  upon  the  ground  that  if  any  negligent  conduct  had  been  proved 
on  the  part  of  the  defendant,  by  reason  of  this  car  getting  away  from 
where  it  belonged,  the  plaintiff  was  guilty  of  contributory  negligence 
in  going  away  from  a  place  of  safety  to  a  place  of  insecurity ;  that 
she  was  at  a  safe  distance  from  the  car,  and  there  was  no  occasion  for 
her  to  rem.ove  from  it.     This  motion  was  denied. 

Vroom,  J.  (after  stating  the  facts).  The  testimony  of  the  plain- 
tiff was  that  she  was  in  front  of  Mrs.  Brennan's  door,  or  had  just 
passed  it,  when  she  saw  the  car  coming  over;  and  it  was  further 
disclosed  by  the  testimony  that  this  car,  in  coming  across  the  street, 
was  not  running  on  any  track.  Is  it  reasonable,  even,  to  suppose 
that  the  plaintiff  could  have  had  any  means  of  knowing  the  direction 
the  car  would  take?  She  was  rightfully  on  the  street,  and  the  un- 
usual sight  of  a  car  crashing  across  the  street  at  full  speed  pre- 
cluded any  possibility  of  reflection  as  to  the  best  thing  to  do.  Acting 
under  the  impulse  of  fear,  she  ran,  and,  just  as  the  car  crashed  into 
the  Brennan  house,  she  fell. 

The  real  question  in  issue  in  the  case  and  to  be  determined  by 
the  jury  was  whether  the  plaintiff  (Mrs.  Tuttle),  seeing  the  car 
approaching  at  great  speed  across  this  street,  was  justified  in  run- 
ning to  escape  from  what  she  supposed  was  an  imminent  danger. 

In  the  case  of  Stokes  v.  Saltonstall,  13  Pet.  181,  10  L.  Ed.  115, 
which  was  an  action  brought  to  recover  damages  sustained  by  the 
wife  of  the  plaintiff  by  the  upsetting  of  a  stage  coach  in  which  she 

19  The  statement  of  the  case   is  abridged. 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  845 

was  a  passenger,  the  question  was  whether  the  stage  was  upset  by  the 
neghgence  of  the  driver  or  by  the  act  of  the  plaintiff  and  his  wife 
in  rashly  and  improperly  springing  from  it.  The  court  held  that  "if 
the  want  of  proper  skill  or  care  of  the  driver  placed  the  passengers 
in  a  state  of  peril,  and  they  had  at  that  time  a  reasonable  ground 
for  supposing  that  the  stage  would  upset,  or  that  the  driver  was 
incapable  of  managing  his  horses,  the  plaintiff  was  entitled  to  re- 
cover; although  the  jury  may  believe,  from  the  position  in  which 
the  stage  was  placed  from  the  negligence  of  the  driver,  the  attempt 
of  the  plaintiff  and  his  wife  to  escape  may  have  increased  the  peril 
or  even  caused  the  stage  to  upset,  and  although  they  also  find  that 
the  plaintiff'  and  his  wife  would  probably  have  sustained  little  or  no 
injury  if  they  had  remained  in  the  stage." 

And  in  the  case  of  Jones  v.  Boyce,  1  Stark.  493,  which  was  an 
action  against  a  coach  proprietor  for  so  negligently  conducting  the 
coach  that  the  plaintiff,  an  outside  passenger,  was  obliged  to  jump 
off  the  coach,  in  consequence  of  Vvhich  his  leg  was  broken,  Lord 
Ellenborough  held :  "To  enable  the  plaintiff  to  sustain  the  action  it 
is  not  necessary  that  he  should  have  been  thrown  off  the  coach ; 
it  is  sufficient  if  he  was  placed,  by  the  misconduct  of  the  defendant, 
in  such  a  situation  as  obliged  him  to  adopt  the  alternative  of  a  dan- 
gerous leap,  or  to  remain  at  a  certain  peril.  On  the  other  hand,  if 
the  plaintiff's  act  resulted  from  a  rash  apprehension  of  danger,  which 
did  not  exist,  and  the  injury  he  sustained  is  to  be  attributed  to  rash- 
ness and  imprudence,  he  is  not  entitled  to  recover." 

The  doctrine  is  concisely  stated  in  1  Shearm.  &  R.  Negl.  *89 : 
"If  one  is  placed,  by  the  negligence  of  another,  in  such  a  position 
that  he  is  compelled  to  choose  instantly,  in  the  face  of  grave  and 
apparent  peril,  between  two  hazards,  and  he  makes  such  a  choice 
as  a  person  of  ordinary  prudence  placed  in  such  a  position  might 
make,  the  fact  that  if  he  had  chosen  the  other  hazard  he  would  have 
escaped  injury,  is  of  no  importance." 

The  contention  of  the  defendant  company  was  that  the  plaintiff 
was  in  a  safe  place,  and  that,  while  it  was  true  that  the  sight  of  a 
car  coming  as  this  one  did  was  unusual,  still  that  there  was  nothing 
attendant  upon  it  which  should  lead  one  in  a  safe  position  precipitately 
to  leave  it.  The  counsel  for  the  defendant  at  the  trial  requested  the 
judge  to  charge  that,  "if  the  jury  believe  that  Mrs.  Tuttle  was  at  a 
safe  location  before  the  injury  complained  of,  and  was  afterwards 
injured  by  removing  from  such  safe  place,  she  cannot  recover";  but 
this  matter  was  correctly  disposed  of  in  the  charge  that  "safe  place" 
is  a  term  which  is  not  easy  to  define.  To  charge  that  in  this  case  she 
was  "in  a  safe  place"  would  be  to  charge  that  the  circumstances  which 
brought  about  this  fright  and  terror  under  which  she  seems  to  have 
acted  were  not  sufficient  to  warrant  her  in  removing  from  that  spot, 
and  seeking  another,  which,  in  her  judgment, — and  perhaps  a  mis- 
taken judgment, — she  might   have   deemed   safer.     There   is   hardly 


846  CAUSAL  RELATION  (Part  2 

enough  evidence  in  this  case  to  know  whether  it  was  exactly  safe 
where  she  stood.  It  turned  out  afterwards  to  have  been  a  safe 
place.  But  who  could  tell  beforehand  how  many  splinters  from  this 
car  would  fly  in  all  directions,  how  many  cobblestones  or  other  things 
would  fly  around?  You  do  not  know,  when  you  see  a  car  coming, 
just  what  the  end  will  be,  and  would  naturally  seek,  possibly,  a  safer 
place  than  you  think  you  occupy,  although,  after  it  is  all  over,  you 
may  find  that  where  you  stood  was  a  safe  place."  This  is  not  a  case 
involving  the  question  whether  an  action  can  be  sustained  for  mental 
anguish  or  injury  unaccompanied  by  injury  to  the  person.  That  this 
would  not  afiford  a  ground  of  action  is  well  settled. ^^ 

In  the  case  under  consideration  the  negligence  of  the  defendant  in 
permitting  the  derailing  and  escape  of  the  car  is  too  plain  for  argu- 
ment, and  it  was  such  negligence  as  caused  the  plaintiff  in  terror  to 
attempt  to  escape  the  peril  by  running,  and  in  so  doing  she  fell,  and 
was  injured.  The  true  rule  governing  cases  of  this  character  may 
be  stated  as  follows:  That  if  a  defendant,  by  negligence,  puts 
the  plaintiff  under  a  reasonable  apprehension  of  personal  physical 
injury,  and  plaintiff,  in  a  reasonable  effort  to  escape,  sustains 
physical  injury,  a  right  of  action  arises  to  recover  for  the  physi- 
cal injury  and  the  mental  disorder  naturally  incident  to  its  occurrence. 
The  case  below  was  properly  submitted  to  the  jury,  and  the  judgment 
below  should  be  afiirmed. 


JACKSON  V.  WISCONSIN  TELEPHONE  CO. 

(Supreme  Court  of  Wisconsin,  1894.    88  Wis.  243,  60  N.  W.  430, 

26  L.   R.  A.   101.) 

Action  against  the  telephone  company  to  recover  damages  for  a 
barn  and  its  contents,  burned,  as  plaintiff  claims,  by  reason  of  defend- 
ant's negligence. 

Near  the  city  of  Eau  Claire  there  is  a  plateau  about  eighty  feet  above 
the  level  of  the  surrounding  country.  In  August,  1889,  two  large 
frame  buildings,  about  325  feet  distant  from  each  other,  stood  upon 
this  plateau,  one  being  a  county  fair  building  known  as  Floral  Hall, 
and  the  other  being  the  barn  of  the  plaintiff.  These  buildings  were 
about  the  same  height,  and  upon  the  top  or  ridge  of  each  there  stood 
a  flagpole  or  mast  twenty  to  thirty  feet  in  height.  Prior  to  the  year 
1888  the  defendant  had  constructed  a  telephone  line  from  the  high- 
way running  past  the  fair  grounds.  In  September,  1888,  the  defend- 
ant placed  a  telephone  in  Floral  Hall,  and  connected  it  with  No.  12 
wire  with  its  telephone  line  on  the  highway.  This  connecting  wire 
ran  from  the  highway  first  to  the  flagpole  upon  the  plainlift''s  barn, 
and  was  there  tied  to  the  pole ;    from  thence  it  ran  directly  to  Floral 

2  0  The  opinion  on  thiis  point  is  omitted. 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  847 

Hall.  The  plaintiff  gave  no  permission  to  attach  the  wire  to  his  barn, 
and  testified  that  he  had  no  knowledge  that  it  was  so  attached.  A 
ground  wire  from  the  telephone  in  the  interior  of  Floral  Hall  ran 
up  to  the  flagstaff,  and  thence  a  distance  of  about  376  feet  to  the 
ground,  where  it  was  attached  to  an  iron  water  pipe.  Some  time 
in  the  fall  of  1888  the  defendant  took  out  the  telephone  from  Floral 
Hall,  together  with  the  insulated  wire  in  the  interior  of  the  building. 
The  ground  wire  was  left  intact,  and  so  was  the  wire  from  Floral 
Hall  to  the  barn.  The  wire  from  the  highway  to  Jackson's  barn 
was  taken  down,  but  it  was  claimed  by  the  plaintiff's  witnesses  that 
a  considerable  piece  of  said  wire  at  the  barn  end  thereof  was  left 
resting  upon  the  roof  of  the  barn. 

On  the  night  of  August  20th,  1889,  there  was  considerable  rain. 
At  about  4  o'clock  in  the  morning  there  was  a  flash  of  lightning, 
which  was  described  by  the  witnesses  as  a  blinding  flash,  and  which 
was  thought  by  them  to  have  descended  upon  Floral  Hall.  In  a  few 
minutes  the  roof  of  plaintiff's  barn  was  in  flames,  and  the  barn  and 
its  contents  were  destroyed.  The  plaintiff's  claim  is  that  the  lightning 
struck  Floral  Hall,  and  was  conducted  by  the  wire  to  plaintiff's  barn, 
and  set  it  on  fire,  and  that  the  defendant  was  negligent  in  leaving  the 
wire  thus  attached  to  the  barn.  Much  expert  evidence  was  adduced 
on  both  sides  as  to  the  probability  of  lightning  passing  over  such  a 
wire  and  destroying  the  barn.  A  motion  for  a  nonsuit  was  overruled, 
as  was  also  a  motion  to  direct  a  verdict  for  defendant. 

The  jury  returned  a  special  verdict,  finding: 

(1)  That  the  defendant  connected  the  plaintiff's  barn  with  Floral  Hall  by 
means  of  a  telephone  wire  attached  to  the  flagstaff  of  the  barn  and  to  the 
flagstaff  on  Floral  Hall,  without  any  intermediate  attachment;  (2)  that  the 
defendant  left  the  wire  so  located  on  the  plaintiff's  barn  that  a  iwrt'ion  of 
the  same  rested  on  the  roof ;  (3)  that  the  barn  was  thereby  subjected  to  dan- 
ger of  being  destroyed  by  Are  caused  by  lightning  electricity  passing  over  such 
wire  from  Floral  Hall  t'o  the  barn ;  (4)  that  the  fire  was  caused  by  lightning 
electricity  so  passing  over  said  wire ;  (5)  that  in  so  leaving  the  bam  con- 
nected with  Floral  Hall  the  defendant's  servants  were  guilty  of  want  of  or- 
dinary care ;  (6)  that  such  want  of  ordinary  care  was  the  proximate  cause 
of  the  fire;  (7)  that  this  result  was  one  which  a  person  reasonably  well  skill- 
ed in  the  defendant's  business  might  reasonably  have  expected  would  prob- 
ably occur ;  (8)  that  the  plaintiff  did  not  give  defendant  peiTuission  to  attach 
the  wire  to  his  bam;  (9)  that  plaintiff  did  not  know,  before  the  fire,  that  his 
barn  was  connected  with  Floral  Hall  by  the  wire;  (10)  that  he  did  not  know 
of  the  danger  before  the  fire;    (11)  that  the  plaintiff's  damages  were  $9,258.  ^i 

From  a  judgment  for  the  plaintiff  upon  this  verdict  the  defendant 
appeals. 

WiNSLOw,  J.  It  was  strenuously  and  ably  argued  by  the  appel- 
lant's counsel  that  the  evidence  did  not  show  that  the  negligent  act 
of  defendant  was  the  proximate  cause  of  the  burning  of  plaintiff's 
barn.  The  rule  is  well  settled  in  this  state  that,  in  order  to  render 
a   negligent  act  the   proximate   cause  of   an    injury,   it   must    appear 

21  The  stjitement  of  the  case  is  slightly  abridged,  and  a  part  of  Mr.  Ju.stice 
Winslow's'  opinion  Is  omitted. 


848  CAUSAL  RELATION  (Pari.  2 

"that  the  injury  was  the  natural  and  probable  consequence  of  the 
negligence  or  wrongful  act,  and  that  it  ought  to  have  been  foreseen 
in  the  light  of  the  attending  circumstances.''  Atkinson  v,  Goodrich 
Transp.  Co.,  60  Wis.  141,  156,  18  N.  W.  764,  50  Am.  Rep.  352;  Mar- 
vin V.  C,  U.  &  St.  P.  R.  Co.,  79  Wis.  140,  47  N.  W.  1123,  11  L. 
R.  A.  506.  The  jury  found  all  the  elements  necessary  to  constitute 
the  negligent  act  of  the  defendant  the  proximate  cause  of  the  burning 
of  the  barn  within  this  rule,  and  the  question  is  whether  the  evidence 
justifies  such  finding. 

It  is  said  that  the  striking  of  a  building  by  lightning  is  a  very  in- 
frequent occurrence,  and  that  it  could  not  be  reasonably  anticipated 
by  any  one.  It  is  true  that  the  number  of  buildings  which  are  struck 
by  lightning,  as  compared  with  the  whole  number  of  buildings  in 
any  given  locality,  is  very  small ;  but  this  fact  by  no  means  seems 
to  us  to  be  the  final  or  controlling  test  of  the  question  of  probability. 
In  this  case  there  was  a  building  situated  upon  a  high  plateau  from 
eighty  to  ninety  feet  above  the  level  of  the  surrounding  country,  with 
a  flagpole  upon  the  roof  about  twenty-five  feet  in  height.  Now,  there 
are  some  facts  of  common  knowledge  known  to  every  reasonable 
person  who  has  passed  the  age  of  childhood.  Among  these  facts 
are  that  in  this  latitude  there  are  at  certain  seasons  of  the  year  fre- 
quent and  violent  thunderstorms;  that  at  such  times  the  clouds  are 
heavily  charged  with  electricity,  which  constantly  finds  its  way  to 
the  earth  in  what  we  call  strokes  of  lightning;  that  these  lightning 
strokes,  in  the  great  majority  of  cases,  strike  prominent  objects,  such 
as  trees,  poles,  and  high  buildings,  and  follow  them  to  the  ground ; 
that  fire  is  frequently  the  result  of  such  strokes.  These  facts  are  well 
known  to  all  persons,  and  no  proof  of  them  by  expert  evidence  is 
necessary.  Can  we  say,  as  matter  of  law,  in  view  of  these  well-known 
facts,  that  it  was  entirely  improbable  that  a  building  situated,  as 
Floral  Hall  was,  upon  the  highest  ground  ni  the  vicinity,  with  a  flag- 
pole upon  it,  should  be  struck  by  a  discharge  of  lightning,  simply 
because  many  buildings  in  such  situations  escape  the  stroke  for  years  ? 
We  think  not. 

But  it  is  said  that  it  was  simply  a  matter  of  conjecture  whether  the 
bolt  which  struck  Floral  Hall  and  shattered  the  flagi)ole  was  the  bolt 
which  set  the  fire,  or  whether  the  barn  was  fired  by  an  independent 
stroke  of  lightning  descending  upon  the  barn  at  or  about  the  same 
time  that  Floral  Hall  was  struck.  In  considering  this  question,  ref- 
erence to  the  evidence  is  necessary.  The  evidence  seems  very  con- 
clusive that  the  barn  was  fired  by  a  stroke  of  lightning,  and  that 
Floral  Hall  was  struck  by  lightning  and  its  flagpole  shattered  a  very 
few  minutes — perhaps  only  seconds — before  the  blaze  broke  out  on 
the  roof  of  the  barn.  These  two  facts  are  not  open  to  doubt  under 
the  evidence.  There  were  two  witnesses  sleeping  in  buildings  on  the 
fair  grounds  within  a  few  hundred  feet  of  the  hall.  Both  testify 
that  they  were  awake  and  saw  the  flash  of  lightning,  and  that  it  was 


Ch.  2)  THE   TESTS  OF  LEGAL  CAUSE  849 

right  in  the  direction  of  Floral  Hall.  They  immediately  went  out. 
found  the  barn  burning  and  the  flagpole  on  Floral  Hall  shattered, 
while  tlie  flagpole  on  the  barn  was  uninjured.  Tliese  witnesses,  as 
well  as  several  others  who  claim  to  have  seen  the  flash,  say  that  there 
was  but  one  flash,  one  report,  one  "straight  streak  of  lightning,"  "like 
a  streak  of  hot  iron."  There  was  also  evidence  that  the  flagpole 
was  only  shattered  down  to  about  the  place  where  the  wire  leading  to 
the  barn  was  fastened,  and  that  the  ground  wire,  which  seems  to  have 
been  attached  to  the  flagpole  just  below  the  barn  wire,  was  burned 
for  a  distance  of  four  or  five  feet  from  the  pole.  No  damage  was 
done  to  Floral  Hall  beyond  the  shattering  of  the  pole.  If  these  facts 
were  all  true,  it  would  seem  that  they  pointed  pretty  satisfactorily  to 
the  conclusion  that  the  bolt  which  struck  Floral  Hall  was  the  same 
bolt  which  fired  the  barn.  Certainly  a  verdict  to  that  effect,  based 
on  the  evidence  establishing  these  facts,  could  not  be  said  to  be  based 
on  conjecture. 

It  is,  however,  argued  that  it  is  entirely  improbable,  if  not  well- 
nigh  impossible,  that  a  bolt  of  lightning  striking  one  building  could 
be  conducted  by  a  telephone  wire  over  a  span  of  300  feet  to  another 
building,  at  least  in  sufficient  quantity  to  fire  the  second  building. 
This  raises  a  scientific  question,  necessarily  depending  largely  upon 
the  opinions  of  expert  witnesses.  A  considerable  number  of  such  wit- 
nesses were  examined  on  both  sides.  The  experts  called  by  the  plain- 
tiff testified  that  if  the  loose  end  of  the  wire  was  left  resting  on  the 
roof  of  the  barn,  and  the  roof  and  sides  were  wet  with  rain,  the 
wire  and  wet  barn  would  form  a  relatively  good  conductor  of  elec- 
tricity; that  such  a  wire  would  carry  sufficient  electricity  to  start  a 
fire,  and  would  form,  under  the  circumstances,  a  good  path  to  the 
ground ;  that  a  part,  at  least,  of  the  bolt  would  probably  follow  this 
path  to  the  ground ;  and  that  all  these  facts  have  been  known  for 
years,  and  the  danger  to  the  barn  resulting  therefrom  was  reason- 
ably to  be  anticipated.  On  the  other  hand,  an  equal  number  of 
experts  upon  the  other  side  were  of  opinion  that  it  would  be  very 
improbable,  if  not  impossible,  for  such  a  wire,  under  the  circum- 
stances, to  carry  sufficient  lightning  to  set  the  bam  on  fire,  and  that 
the  lightning  would  undoubtedly  seek  some  shorter  path  to  the  earth. 
We  cannot  undertake  to  compare  and  decide  which  class  of  experts 
were  the  best  qualified  to  speak  authoritatively  upon  this  scientific  ques- 
tion. They  all  qualified  themselves  so  as  to  make  their  testimony 
admissible  as  expert  evidence.  Nor  can  we  undertake  to  decide  this 
question  of  science  ourselves.  It  was  properly  a  question  for  the 
jury  after  having  heard  the  circumstances  of  the  case  and  the  opin- 
ions of  the  experts,  and  we  cannot  say  that  the  jury  have  decided 
wrongly  upon  the  question. 

The   further   argument   is   made  that  the   stroke   of  lightning  was 
the  "act  of  God,"  for  which  no  one  is  responsible.     Certainly  a  stroke 
Hepb. Torts — 54 


SoO  CAUSAL  RELATION  (Part  2 

of  lightning  is  an  "act  of  God ;"  but  that  is  not  the  question  here 
presented,  or  rather  another  element — i.  e.  the  negligence  of  man — is 
added  to  the  question,  which  materially  alters  its  scope.  If  I,  owning 
a  high  mast  or  building,  which  I  know  is  so  situated  as  to  be  very 
likely  to  be  struck  by  lightning,  construct  an  attractive  path  for  the 
lightning  to  my  neighbor's  roof,  so  that  his  house  is  destroyed  by  a 
bolt  which  strikes  my  mast  or  building,  shall  I  escape  liability  for 
my  negligent  or  wrongful  act  by  pleading  that  the  lightning  was  the 
act  of  God?  Certainly  not.  I  invited  the  stroke  of  one  of  the  most 
destructive  powers  of  nature,  and  negligently  turned  its  course  to  my 
neighbor's  property.  The  principle  is  the  same  as  that  "involved  in 
the  case  of  Borchardt  v.  Wausau  Boom  Co.,  54  Wis.  107,  11  N.  W. 
440,  41  Am.  Rep.  12.  The  lightning  stroke  is  in  no  greater  degree 
the  act  of  God  than  the  usual  freshets  occurring  in  a  river. 

Our  conclusion  is  that  the  court  properly  refused  to  grant  a  non- 
suit, and  also  properly  refused  to  direct  a  verdict  for  the  defend- 
ant.    *     *     * 

By  the;  Court.     Judgment   afifirmed. 

Newman,  J,  The  cause  of  damages  is  proximate  only  when  it 
jiiight  reasonably  have  been  expected  by  a  man  of  ordinary  intelli- 
gence and  prudence  that  such  damages  would  result  from  that  cause. 
Atkinson  v.  Goodrich  Transp.  Co.,  60  \^^is.  141,  18  N.  W.  764,  50 
Am.  Rep.  352.  The  damages,  as  a  consequence  of  the  negligent  act 
or  omission,,  must  be  both  natural  and  probable.  Barton  v.  Pepin 
Co.  Agr.  Society,  83  Wis.  19,  52  N.  W.  1129.  It  cannot  be  said  of 
any  particular  building  that  it  is  probable  that  it  will  be  struck  by 
lightning.  The  chances  are  very  largely  against  it.  It  could  not 
have  been  foreseen  as  likely  to  happen  that  either  Floral  Hall  or  the 
plaintiff's  barn  would  be  struck  by  lightning.  That  might  be,  in  the 
course  of  nature,  but  could  not  be  anticipated  as  probable.  The  neglect 
of  the  defendant  to  remove  the  wire  did  not  increase  the  danger  or 
probability  that  either  building  would  be  struck.  At  most,  it  only 
rendered  it  possible  that,  in  case  either  was  struck,  fire  might  be  com- 
municated to  the  other.  It  could  not  be  the  cause  of  either  building 
being  struck.  It  was  a  condition,  rather  than  the  cause,  of  the  dam- 
ages.    If  a  cause  at  all,  it  was  a  remote  cause. 

PiNNEY,  J.  I  concur  in  the  foregoing  opinion  by  Mr.  Justice  New- 
man. 


E.  T.  &  H.  K.  IDE  V.  BOSTON  &  M.  R.  CO. 

(Supreme  Court  of  Vermont,  1909.     83  Vt.  GO,  74  Atl.  401.) 

Action  to  recover  damages  for  the  destruction  by  fire  of  a  gristmill 
and  outbuildings.  The  verdict  and  judgment  were  for  the  plaintiff. 
The  fire  was  alleged  to  have  been  communicated  by  a  locomotive  en- 
gine on  a  railroad  operated  by  the  defendant  as  lessee.     The  statute 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  851 

which  governs  reads  as  follows :  "A  person  or  corporation  owning  or 
operating  a  railroad  shall  be  responsible  in  damages  for  a  building 
or  other  property  injured  by  fire  communicated  by  a  locomotive  engine 
on  such  road,  unless  due  caution  and  diligence  are  used  and  suitable 
expedients  employed  to  prevent  such  injury.  Said  person  or  corpora- 
tion shall  have  an  insurable  interest  in  the  property  along  its  route, 
and  may  procure  insurance  thereon." 

Haseltox,  j.  *  *  *  Under  the  statute,  the  burden  was  on  the 
plaintiff  to  show  by  a  fair  balance  of  proof  that  the  fire  was  "com- 
municated" by  one  of  the  defendant's  engines,  and,  if  that  fact  was 
established,  the  plaintiff  was  entitled  to  recover  unless  the  defendant 
showed  affirmatively  by  the  same  measure  of  proof  that  it  used  "due 
caution  and  diligence"  and  employed  "suitable  expedients"  to  pre- 
vent the  injury.  Cleaveland  v.  Grand  Trunk  Ry.  Co.,  42  Vt.  449; 
Farrington  v.  Rutland  R.  Co.,  72  Vt.  24,  47  Atl.  171.     *     *     * 

The  fire  was  first  seen  on  the  roof  of  an  old  blacksmith  shop  owned 
by  the  plaintiff  standing  on  the  easterly  side  of  the  railroad  track  and, 
to  about  one-third  of  its  extent,  on  the  right  of  way  of  the  rail- 
road.    *     *     * 

After  this  fire  was  so  far  overcome  that,  as  some  of  the  evidence 
tended  to  show,  it  was  thought  to  have  been  put  out,  it  started  up 
again,  and  the  wind,  which  had  been  blowing  towards  the  east,  changed 
its  course  and  blew  strongly  towards  the  west,  carrying  fire  to  a  shed 
on  the  west  side  of  the  track,  and  thence  to  a  storehouse  and  factory 
of  the  Cushman  &  Rankin  Company,  and  thence  to  the  gristmill  and 
outbuildings  of  the  plaintiff  above  referred  to.  The  plaintiff's  evi- 
dence tended  to  show  that  the  fire  on  the  roof  of  the  blacksmith  shop 
was  communicated  to  it  from  one  of  the  defendant's  locomotives,  and, 
all  questions  of  negligence  on  the  part  of  both  parties  and  of  inter- 
vening causes  being  for  the  time  left  out  of  consideration,  the  entire 
conflagration  stands  as  an  integral  effect  of  the  cause  which  started 
the  fire  on  the  roof  of  the  blacksmith  shop.  Isham  v.  Dow's  Estate, 
70  Vt.  588,  41  Atl.  585,  45  L.  R.  A.  87,  67  Am.  St.  Rep.  691.  The 
defendant  quotes  from  Ryan  v.  New  York  Central  R.  Co.,  35  N.  Y. 
210,  91  Am.  Dec.  49,  and  also  cites  Pennsylvania  R.  R.  v.  Kerr,  62 
Pa.  353,  1  Am.  Rep.  431.  These  cases,  however,  are  pretty  generally 
discredited.  See  with  regard  to  them  [Milwaukee,  etc.,  Ry.  Co.  v.  Kel- 
logg, 94  U.  S.  469,  474,  24  L.  Ed.  256,  and  what  is  said  of  them  in 
Isham  v.  Dow's  Estate,  70  Vt^  588,  41  Atl.  585,  45  L.  R.  A.  87,  67 
Am.  St.  Rep.  691.  As  appears  from  the  Isham  Case,  these  cases  are 
not  followed  here. 

We  do  not  understand,  considering  the  argument  of  the  defendant 
as  a  whole,  that  the  doctrine  of  these  cases  is  relied  on.  The  defend- 
ant's real  claim  in  this  regard,  as  appears  from  the  brief  in  its  behalf, 
is  that  there  were  intervening  causes  in  view  of  which  the  fire  which 
started  the  blaze  on  the  blacksmith  shop  cannot  be  regarded  as  the 
proximate  cause  of  the  loss  for  which  recovery  is  sought.    The  claim 


852  CAUSAL  RELATION  (Part  2 

is  that  there  were  two  intervening  causes :  One,  the  conduct  of  the 
plaintiff  in  its  doings  and  omissions  in  respect  to  the  blacksmith  shop 
after  the  fire  had  been  practically  subdued ;  and  the  other  the  change 
of  the  wind  and  the  increase  in  its  velocity.  QThe  sudden  change  in 
the  force  and  direction  of  the  wind  cannot  be  regarded  as  an  interven- 
ing agency.  On  the  question  of  whether  or  not  one's  conduct  in  setting 
a  fire  is  or  is  not  negligent,  the  condition  of  the  grounds  and  premises, 
as  to  dryness  or  wetness,  the  time  of  starting  the  fire,  whether  in  the 
evening  or  morning,  the  condition  of  the  air,  whether  still  or  windy, 
and,  if  there  is  a  wind,  the  direction  in  which  it  is  blowing,  may  some- 
times be  proper  matters  for  consideration.  But  when  negligence  in 
setting  out  a  fire  is  established,  as  in  the  discussion  of  this  point  we 
are  to  assume  it  to  have  been  here,  changes  in  the  direction  and  force 
of  the  wind  and  in  other  conditions  may  carry  the  result  of  the  neg- 
ligence further  than  it  would  otherwise  have  gone,  and  yet  liability  Jf^ 
attach  for  the  consequent  injuries,  although  entirely  unforeseen.  The 
distinction  is  clearly  made  in  Isham  v.  Dow's  Estate,  70  Vt.  588,  591, 
41  Atl.  585,  586,  45  L.  R.  A.  87,  67  Am.  St.  Rep.  691.  It  is  there  said: 
"On  the  question  of  what  is  negligence,  it  is  material  to  consider  what 
a  prudent  man  might  reasonably  anticipate;  but,  when  negligence  is 
once  established,  that  consideration  is  entirely  immaterial  on  the  ques- 
tion of  how  far  that  negligence  imposes  liability."  Gilson  v.  Canal 
Co.,  65  Vt.  213,  26  Atl.  70,  36  Am.  St.  Rep.  802,  is  to  the  same  effect. 
So  is  Stevens  v.  Dudley,  56  Vt.  158. 

Among  the  cases  cited  in  Gilson  v.  Canal  Co.,  65  Vt.  213,  26  Atl. 
70,  36  Am.  St.  Rep.  802,  is  the  case  of  Smith  v.  London  &  Southwest- 
ern Ry.  Co.,  L.  R.  6  C.  P.  14.  That  was  a  case  of  fire  communicated 
from  a  locomotive  engine.  The  fire  broke  out  between  the  rails  aijd 
a  hedge,  from  thence  spread  to  a  stubble  field  beyond,  and  from  the 
stubble  field  was  carried  by  a  high  wind  over  a  road  to  the  plaintiff's 
cottage,  which,  was  burned.  The  cottage  was  200  yards  from  the 
place  where  the  fire  started.  Notwithstanding  a  concurrence  of  cir- 
cumstances which,  as  the  court  recognized,  no  one  could  have  been  ex- 
pected to  foresee,  the  court  held  that,  since  the  fire  was  negligently 
set,  the  railway  company  was  liable,  since,  after  all,  the  injury  pro- 
ceeded from  the  original  fire  through  the  operation  of  natural  causes. 
Doubtless  such  an  extraordinary  phenomenon  in  nature  as  in  legal 
acceptation  is  an  act  of  God  would  be  an  intervening  cause.  Stevens 
V.  Dudley,  56  Vt.  158,  167.  But  in  this  latitude  we  know  no  winds 
which  can  be  counted  on  to  blow  for  any  length  of  time  with  a  force 
and  direction  practically  unvaried  except  for  some  extraordinary  vio- 
lence of  nature.  Such  winds  as  we  ordinarily  know,  such  winds  as 
the  evidence  here  relates  to,  are  not  intervening  agents.  Milwaukee, 
etc.,  Ry.  Co.  v.  Kellogg,  94  U.  S.  469,  24  L.  Ed.  256;  Chicago,  etc., 
R.  Co.  v.  Eesh.  158  Ind.  423,  63  N.  E.  794;  Union  Pacific  Rv.  Co.  v. 
McCoUum,  2  Kan.  App.  319,  43  Pac.  97;    Chicago,  etc.,  R.  Co.  v. 


Ch.  2)  THE  TESTS   OF  LEGAL   CAUSE  853 

Williams,  131  Ind.  30,  30  X.  E.  696;  Perley  v.  Eastern  R.  Co.,  98 
Alass.  414,  96  Am.  Dec.  645 ;  Florida,  etc.,  Ry.  Co.  v.  Welch,  53  Fla. 
145,  44  South.  250,  12  Ann.  Cas.  210.     *     *     *  22 


ISHAM  V.  DOW'S  ESTATE. 

(Supreme  Court  of  Vermont,  189S.    70  Yt.  5SS,  41  Atl.  585,  45  L.  R.  A.  87, 

67  Am.  St.  Rep.  691.) 

Action  by  Charity  Isham  against  the  estate  of  Isaiah  Dow.  On 
request,  the  plaintiff  stated  what  her  evidence  would  tend  to  prove ; 
and  the  court  ruled  that  such  facts,  if  established,  would  not  entitle 
plaintiff  to  recover  and  excluded  the  evidence,  and  directed  a  verdict 
for  the  defendant. 

RowELL,  J.  Dow,  the  intestate,  a  poor  gunner,  as  he  knew,  with 
eyesight  much  impaired,  knowing  that  the  plaintiff  and  her  children 
were  alone  in  her  husband's  house,  unlawfully,  wantonly,  and  ma- 
liciously shot  at  and  wounded  her  husband's  dog,  lying  peaceably  in 
close  proximity  to  the  house,  on  the  land  of  a  third  person,  whereupon 
the  dog  sprang  up,  rushed  wildly  and  rapidly  towards  the  house,  en- 
tered it  through  an  open  door  into  the  room  where  the  plaintiff  was, 
ran  violently  and  forcibly  against  her,  knocking  her  down  and  injuring 
her ;   and  the  question  is  whether  the  estate  is  liable  for  it. 

The  defendant  says  that,  in  order  to  recover,  the  plaintiff  must  es- 
tablish two  things,  namely,  negligence  on  the  part  of  Dow,  and  that  her 
injury  resulted  proximately  therefrom,  and  that  the  case  shows  nei- 
ther, as  it  does  not  show  that  Dow  owed  her  any  legal  duty,  nor  that 
his  act  was  the  proximate  cause  of  her  injury. 

But  we  cannot  adopt  this  view.  The  intestate  unlawfully,  wantonly, 
and  maliciously  shot  at  the  dog,  intending,  we  will  assume,  to  kill  it, 
but  not  knowing  whether  he  would  or  not,  and  not  knowing  what 
would  happen  if  he  did  not ;  and  by  his  wanton  act  the  dog  was  set 
wildly  in  motion,  and  that  motion,  thus  caused,  continued,  without  the 
intervention  of  any  other  agency,  and  without  power  on  his  part  to 
control  it,  until  the  plaintift''s  injury  resulted  therefrom.  In  these 
circumstances  the  law  treats  the  act  of  intestate  as  the  proximate  cause 
of  the  injury,  whether  the  injury  was,  or  could  have  been  foreseen, 
or  not,  or  was  or  not  the  probable  consequence  of  the  act ;  for  the 
necessary  relation  of  cause  and  eft'ect  between  the  act  and  the  injury 
is  established  by  the  continuous  and  connected  succession  of  the  inter- 
vening events.  This  is  the  universal  rule  when  the  injurious  act  is 
wanton.  In  16  Am.  &  Eng.  Enc.  Law,  434,  the  true  principle  is 
said  to  be  that  he  who  does  such  an  act  is  liable  for  all  the  conse- 
quences,  however   remote,   because   the   act   is   quasi   criminal    in   its 

22  i'arts  of  the  opinion  are  omitted. 


854  CAUSAL  RELATION  (Part  2 

character,  and  the  law  conclusively  presumes  that  all  the  consequences 
were  foreseen  and  intended. 

But  it  is  not  necessary,  in  this  state,  certainly,  that  the  act  should 
be  wanton,  in  order  to  impose  liability  for  all  the  injurious  conse- 
quences. If  it  is  voluntary,  and  not  obligatory,  it  is  enough.  In 
Mncent  v.  Stinehour,  7  Vt.  66,  29  Am.  Dec.  145,  it  is  said  that  for  such 
an  act  the  doer  is  answerable  for  any  injury  that  may  happen  by  rea- 
son thereof,  whether  by  accident  or  carelessness.  In  Wright  v.  Clark, 
50  Vt.  130,  28  Am.  Rep.  496,  the  defendant  shot  at  a  fox  that  the  plain- 
tiff's dog  had  driven  to  cover,  and  accidentally  hit  the  dog ;  and  he  was 
held  liable,  because  the  shooting  at  the  fox  was  voluntary,  and  fur- 
nished no  excuse  for  hitting  the  dog,  though  he  did  not  intend  to 
hit  him.  The  same  rule  was  applied  at  nisi  prius,  without  exception, 
in  Taylor  v.  Hayes,  63  Vt.  475,  .21  Atl.  610,  where  the  defendant 
shot  at  a  partridge,  and  accidentally  hit  a  cow.  So,  in  Bradley  v. 
Andrews,  51  Vt.  530,  the  defendant  voluntarily  discharged  an  ex- 
plosive missile  into  a  crowd,  and  hurt  the  plaintiff' ;  and  it  was  held 
that,  as  the  act  was  voluntary  and  wrongful,  the  defendant  was  liable, 
and  that  his  youth  and  inexperience  did  not  excuse  him.  The  rule  is 
the  same  here  in  negligence  cases,  and  may  be  formulated  thus :  When 
negligence  is  established,  it  imposes  liability  for  all  the  injurious  con- 
sequences that  flow  therefrom,  whatever  they  are,  until  the  interven- 
tion of  some  diverting  force  that  makes  the  injury  its  own,  or  until 
the  force  set  in  motion  by  the  negligent  act  has  so  far  spent  itself  as 
to  be  too  small  for  the  law's  notice.  But,  in  administering  this  rule, 
care  must  be  taken  to  distinguish  between  what  is  negligence,  and 
what  the  liability  for  its  injurious  consequences.  On  the  question  of 
what  is  negligence,  it  is  material  to  consider  what  a  prudent  man 
might  reasonably  have  anticipated ;  but,  when  negligence  is  once  estab- 
lished, that  consideration  is  entirely  immaterial  on  the  question  of 
how  far   that   negligence   imposes   liability. 

This  is  all  well  shown  bv  Stevens  v.  Dudley,  56  Vt.  158.  and  Gilson 
V.  Canal  Co.,  65  Vt.  213,  26  Atl.  70,  36  Am.  St.  Rep.  802.  The  rule 
is  the  same  in  England,  as  will  be  seen  by  referring  to  the  leading 
case  of  Smith  v.  Railway  Co.,  L.  R.  6  C.  P.  14,  in  the  Exchequer 
Chamber.  In  Sneesby  v.  Railway  Co.,  1  O.  B.  Div.  42,  a  herd  of 
plaintiff's  cattle  were  being  driven  along  an  occupation  road  to  some 
fields.  The  road  crosses  a  siding  of  the  defendant's  railway  on  a 
level,  and  when  the  cattle  were  crossing  the  siding  the  defendant's  serv- 
ants negligently  sent  some  trucks  down  the  siding  among  them,  which 
separated  them  from  tlic  drovers,  and  so  frightened  them  that  a  few 
rushed  away  from  the  control  of  the  drovers,  fled  along  the  occupa- 
tion road  to  a  garden  some  distance  off.  got  into  the  garden  through  a 
defective  fence,  and  thence  on  to  another  track  of  the  defendant's  rail- 
way, and  were  killed ;  and  the  question  was  whether  their  death  was 
not  too  remote  from  the  negligence  to  impose  liability.  The  court 
said :    That  the  result  of  the  negligence  was  twofold :    First,  that  the 


Ch.  2)  THE  TESTS   OF   LEGAL   CAUSE  855 

trucks  separated  the  cattle ;  and,  second,  that  the  cattle  were  fright- 
ened, and  became  infuriated,  and  were  driven  to  act  as  they  would  not 
have  done  in  their  natural  state.  That  everything  that  occurred  or 
was  done  after  that  must  be  taken  to  have  occurred  or  been  done 
continuously.  And  that  it  was  no  answer  to  say  that  the  fence  was 
imperfect,  for  the  question  would  have  been  the  same,  had  there  been 
no  fence  there.  There  liability  was  made  to  depend,  not  on  the  near- 
ness of  the  wrongful  act,  but  on  the  want  of  power  to  divert  or  avert 
its  consequences,  and  it  continued  until  the  first  impulse  spent  itself 
in  the  death  of  the  cattle.  See  Ricker  v.  Freeman,  50  N.  H.  420,  9 
Am.  Rep.  267;   Railroad  Co.  v.  Chapman,  80  Ala.  615,  2  South.  738. 

Ellis  v.  Cleveland,  55  Vt.  358,  is  not  in  conflict  with  the  Vermont 
cases  above  cited,  as  is  supposed ;  for  there  there  was  no  causal  con- 
nection between  the  wrongful  act  and  the  injury  complained  of,  and 
so  there  could  be  no  recovery.  As  illustrative  of  nonliability  for  dam- 
age flowing  from  an  intermediate  and  independent  cause  operating 
between  the  wrongful  act  and  the  injury,  see  Holmes  v.  Fuller,  68 
Vt.  207,  34  Atl.  699. 

Ryan  v.  Railroad  Co.,  35  N.  Y.  210,  91  Am.  Dec.  49,  is  relied 
on  by  the  defendant.  Railroad  Co.  v.  Kerr,  62  Pa.  353,  1  Am.  Rep. 
431,  is  a  similar  case.  It  is  said  in  Railroad  Co.  v.  Kellogg,  94  U.  S. 
474,  24  L.  Ed.  256,  that  these  cases  have  been  much  criticised ;  that 
if  they  were  intended  to  hold  that  when  a  building  has  been  negligentlv 
set  on  fire  and  a  second  building  is  fired  from  the  first,  it  is  a  conclu- 
sion of  law  that  the  owner  of  the  second  has  no  remedy  against  the 
negligent  wrongdoer,  they  have  not  been  accepted  as  authority  for 
such  a  doctrine  even  in  the  states  where  they  were  made,  and  are  in 
conflict  with  numerous  cases  in  other  jurisdictions.     *     *     * 

Judgment  reversed  and  cause  remanded.-^ 


SCOTT  V.  SHEPHERD. 

(Court  of  Common  Pleas,  1772.     2  W.  Bl.  892,  .3  Wils.  403.) 
[See  ante,  p.  56,  for  a  report  of  the  case.] 


VANDENBURGH  v.  TRUAX. 

(Supreme  Court  of  New  York,  1847.     4  Denio,  404,  47  Am.  Dec.  268.) 

A  negro  boy,  about  16  or  18  years  old.  was  the  plaintiff's  ostler; 
the  boy  was  seen  in  the  street  at  Schenectady,  near  the  plaintiff's  store, 
approaching  the  defendant  with  a  stone  in  his  hand,  and  appearing, 
as  the  witness  said,  to  be  very  angry;    the  defendant  not  appearing, 

23  A  part  of  the  opinion,  referring  to  other  authoritie.s  on  the  doctrine  of 
Ryan  v.  Railroad  Co.  (1SU6)  35  N.  Y.  210,  01  Am.  Dec.  40,  is  omitted. 


856  CAUSAL  RELATION  (Part  2 

to  the  witness,  to  be  angry.  The  negro  did  not  attempt  to  throw,  or 
stril<e  with  the  stone.  The  defendant  took  hold  of  the  negro,  and  told 
him  to  throw  the  stone  down ;  and  it  may  be  inferred  from  the  case 
that  he  did  throw  it  down,  though  the  fact  is  not  expressly  stated. 
The  boy  got  loose  from  the  defendant  and  ran  away.  The  defendant 
took  up  a  pick-axe  and  followed  the  boy,  who  fled  into  the  plaintiff's 
store,  and  the  defendant  pursued  him  there,  with  the  pick-axe  in  his 
hand.  The  back  door  of  the  store  was  shut,  so  that  the  boy  could  not 
get  out  there  without  being  overtaken ;  and  he  ran  behind  the  counter, 
as  the  witness  believed,  to  save  himself  from  being  struck  with  the 
pick-axe.  In  fleeing  behind  the  counter,  the  boy  knocked  out  the 
cock,  or  faucet,  from  a  cask  of  wine,  and  about  two  gallons  of  the 
liquor,  of  the  value  of  $4,  were  spilt  and  lost.  For  that  injury 
the  action  was  brought.  The  justice  gave  judgment  for  the  plaintiff 
for  $4  damages,  which  was  affirmed  by  the  Common  Pleas.  The  de- 
fendant brings  error. 

Bronson,  C.  J.  *  *  *  In  the  case  of  the  lighted  squib  which 
was  thrown  into  the  market  house,  the  debate  was  upon  the  form  of 
the  remedy.  The  question  was  whether  the  plaintiff  could  maintain 
trespass  vi  et  armis,  or  whether  he  should  not  have  brought  an  ac- 
tion on  the  case.  His  right  to  recover  in  some  form,  seems  not  to 
have  been  disputed.  Scott  v.  Shepherd,  2  W.  Bl.  892 ;  s.  c,  3  Wils. 
403.  In  that  case,  the  impulse  was  given  to  inanimate  matter ;  while 
here,  a  living  and  rational  being  was  moved  by  fear.  But  still,  there 
is  in  some  respects  a  striking  analogy  between  the  two  cases.  There 
the  force  which  the  defendant  gave  to  the  squib  was  spent  when  it 
fell  upon  the  standing  of  Yates ;  and  it  was  afterwards  twice  put  in 
motion  and  in  new  directions,  first  by  Willis  and  then  by  Ryall,  before 
it  struck  the  plaintiff  and  put  out  his  eye.  But  as  the  throwing  of  the 
squib  was  a  mischievous  act,  which  was  likely  to  do  harm  to  some 
one;  and  as  the  two  men  who  gave  the  new  impulses  to  the  missile 
acted  from  terror  and  in  self-defense,  the  defendant  was  held  an- 
swerable as  a  trespasser  for  the  injury  which  resulted  to  the  plaintiff. 
Now  here,  although  the  negro  boy  may  have  been  wrong  at  the  first, 
yet  when  he  had  thrown  down  the  stone,  and  was  endeavoring  to  get 
away  from  the  difiiculty  into  which  he  had  brought  himself,  the  de- 
fendant was  clearly  wrong  in  following  up  the  quarrel.  When  the 
boy  ran  upon  the  cask  of  wine,  he  was  moved  with  terror  produced  by 
the  illegal  act  of  the  defendant;  he  was  fleeing  for  his  life,  from  a 
man  in  hot  pursuit,  armed  with  a  deadly  weapon.  The  injury  which 
the  plaintiff  sustained  was  not  the  necessary  consequence  of  the  wrong 
done  by  the  defendant ;  nor  was  it  so  in  the  case  of  the  lighted  squib. 
But,  in  both  instances,  the  wrong  was  of  such  a  nature  that  it  might 
very  naturally  result  in  an  injury  to  some  third  person.  It  is  true 
that  the  boy  might  have  gone  elsewhere,  instead  of  entering  the  plain- 
tiff's store;  and  it  is  equally  true  that  Willis  and  Ryall  might  have 
thrown  the  squib  out  of  the  market  house,  which  was  open  on  both 


Ch.  2)  THE   TESTS   OF   LEGAL   CAUSE  857 

sides  and  at  one  end,  instead  of  tossing  it  across  the  market  house 
among  the  people  there  assembled.  But  in  the  one  case  as  well  as  in 
the  other,  the  innocent  agents  were  moved  by  fear,  and  had  no  time  to 
reflect  upon  the  most  prudent  course  of  conduct.  It  was  quite  natural, 
however,  that  the  boy  should  flee  to  his  employer  for  protection.  And 
finally,  the  proximate  cause  of  the  injury  was,  in  both  cases,  an  intel- 
ligent agent. 

In  Guille  v.  Swan,  19  Johns.  381,  10  Am.  Dec.  234,  the  immediate 
actors  in  the  wrong  which  was  done  to  the  plaintiff,  were  moved  by 
their  sympathy  for  the  defendant,  who  had  brought  himself  into  a 
perilous  condition  by  ascending  in  a  balloon.  The  balloon  descended 
into  the  plaintiff's  garden,  which  was  near  where  it  had  gone  up,  and 
a  crowd  of  the  people,  seeing  the  defendant  hanging  out  of  the  car  in 
great  peril,  rushed  into  the  garden  to  relieve  him,  and  in  doing  so 
trod  down  the  plaintifif's  vegetables  and  flowers.  For  the  wrong  done 
by  the  crowd,  as  well  as  for  the  injur)'  done  by  himself,  the  defendant 
was  held  answerable  as  a  trespasser.  Although  the  ascent  was  not 
an  illegal  it  was  a  foolish  act,  and  the  defendant  ought  to  have  fore- 
seen that  injurious  consequences  might  follow.  The  case  seems  not 
to  have  been  put  upon  the  ground  of  a  concert  of  action  between 
the  defendant  and  the  multitude ;  but  on  the  ground  that  the  defend- 
ant's descent,  under  such  circumstances,  would  ordinarily  and  natural- 
ly draw  a  crowd  of  people  about  him,  either  from  curiosity,  or  for  the 
purpose  of  rescuing  him  from  a  perilous  situation.  It  was  added, 
however,  that  if  the  defendant  had  beckoned  to  the  crowd  to  come 
to  his  assistance,  they  would  all  have  been  cotrespassers ;  and  the 
situation  in  which  the  defendant  had  voluntarily  and  designedly  placed 
himself  was  equivalent  to  a  direct  request  to  the  crowd  to  follow  him. 

If  the  cases  of  the  squib  and  the  balloon  have  not  gone  beyond  the 
limits  of  the  law,  the  defendant  is  answerable  for  the  injury  which  he 
has  brought  upon  the  plaintiff.  And  there  is  nearly  as  much  reason 
for  holding  him  liable  for  driving  the  boy  against  the  wine  cask,  and 
thus  destroying  the  plaintiff's  property,  as  there  would  be  if  he  had 
produced  the  same  result  by  throwing  the  boy  upon  the  cask,  in  which 
case  his  liability  could  not  have  been  questioned.     *     *     * 

Judgment  affirmed.^* 


GIBNEY  V.  STATE.  ^ 

(Court!  of  Appeals  of  New  York,  1S0.3.     137  N.  Y.  1,  33  N.  E.  142.  19  L.  K.  A. 

365,  33  Am.  St.  Rep.  690.) 

The  plaintiff  with  her  husband  and  child  were  crossing  a  bridge 
over  the  Erie  Canal.  They  met  an  acquaintance  on  the  bridge,  and  the 
parents  stopped  to  talk  with  him.  The  child  remained  within  a  few 
feet  of  them  and  suddenly  fell  through  an  opening  in  the  railing  of  the 

2*  Parts  of  tlie  opinion  are  omitted. 


858  CAUSAL  RELATION  (Part  2 

bridge  into  the  canal  below.  The  father  plunged  into  the  canal  to 
recover  the  child,  and  both  father  and  son  were  drowned.  A  claim 
was  presented  to  the  Board  of  Claims  for  damages  for  the  death  of 
the  husband,  and  a  judgment  in  favor  of  the  claimant  was  entered. 
There  was  an  appeal  by  the  State.^^ 

Andrews,  C.  J.  We  have  decided  on  the  appeal  brought  for  award 
of  damages  for  the  death  of  the  infant  son  of  the  plaintiff,  that  the 
evidence  authorized  a  finding  of  negligence  on  the  part  of  the  state  au- 
thorities in  permitting  the  opening  in  the  bridge,  through  which  the 
boy  fell  into  the  canal,  to  remain  unguarded,  and  also  the  further  find- 
ing that  there  was  no  contributory  negligence  on  the  part  of  the  par- 
ents of  the  child,  and  we  therefore  affirmed  the  award.  The  present 
appeal  is  from  an  award  made  for  damages  sustained  by  the  widow 
and  next  of  kin,  arising  from  the  drowning  of  the  plaintiff's  husband 
and  the  father  of  the  child,  in  an  attempt  to  rescue  the  child  from  the 
canal,  into  which  the  child  had  fallen.     *     *     * 

It  is  contended  by  the  attorney-general  that  the  negligence  of  the 
state  in  permitting  the  bridge  to  remain  in  an  unsafe  condition,  while  it 
may  have  been  the  cause  of  the  death  of  the  boy,  cannot  be  regarded 
as  the  cause  of  the  death  of  the  father,  although  it  occurred  in  an  at- 
tempt to  save  the  life  of  the  child.  It  is  doubtless  true  that  except 
for  the  peril  of  the  child,  occasioned  by  his  falling  through  the  bridge 
into  the  canal,  there  would  have  been  no  connection  between  the  neg- 
ligence of  the  state  and  the  drowning  of  the  father.  But  the  peril  to 
which  the  child  was  exposed  was,  as  has  been  found,  the  result  of  the 
negligence  of  the  state,  and  the  peril  to  which  the  father  exposed  him- 
self was  the  natural  consequence  of  the  situation.  It  would  have  been 
in  contradiction  of  the  most  common  facts  in  human  experience  if 
the  father  had  not  plunged  into  the  canal  to  save  his  child.  But  while 
the  immediate  cause  of  the  peril  to  which  the  father  exposed  himself 
was  the  peril  of  the  child,  for  the  purpose  of  administering  legal  reme- 
dies, the  cause  of  the  peril  in  both  cases  may  be  attributed  to  the  cul- 
pable negligence  of  the  state  in  leaving  the  bridge  in  a  dangerous  con- 
dition. 

There  is  great  difficulty  in  many  cases  in  fixing  the  responsible  cause 
of  an  injury.  When  there  is  a  break  in  the  chain  of  causes  by  the 
intervention  of  a  new  agency,  and  then  an  injury  happens,  is  it  to  be 
attributed  to  the  new  element,  and  is  this  to  be  treated  as  the  originat- 
ing cause  to  the  exclusion  of  the  antecedent  one,  without  which  no 
occasion  would  have  arisen  for  the  introduction  of  a  new  element?  It 
is  impossible  to  formulate  a  rule  on  the  subject  capable  of  definite  and 
easy  application. 

The  general  rule  is  that  only  the  natural  and  proximate  results  of  a 
wrong  are  those  of  which  the  law  can  take  notice.  But  where  a  conse- 
quence is  to  be  deemed  proximate  within  the  rule  is  the  point  of  diffi- 

2  5  Tlie  statement  of  the  facts  is  abridged. 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  859 

culty.  In  this  case  these  elements  are  present:  Culpable  negligence 
on  the  part  of  the  state ;  the  falling  of  the  child  into  the  canal  through 
the  opening  which  the  state  negligently  left  in  the  bridge;  the  natural 
and  instinctive  act  of  the  father  in  plunging  into  the  canal  to  rescue 
the  child ;  the  drowning  of  both ;  the  fact  that  such  an  accident  as  that 
which  befell  the  child  might  reasonably  have  been  anticipated  as  the 
result  of  the  condition  of  the  bridge,  and  the  further  consideration 
that  a  parent  or  other  person  on  seeing  the  child  in  the  water  would  in- 
cur every  reasonable  hazard  for  its  rescue.  We  think  it  may  be  justly 
said  that  the  death  both  of  the  child  and  parent  was  the  consequence 
of  the  negligence  of  the  state,  and  that  the  unsafe  bridge  was  in  a  legal 
and  juridical  sense  the  cause  of  the  drowning  of  both. 

We  can  see  no  sound  distinction  between  this  case  and  the  Eckert 
Case,  43  N.  Y.  502,  3  Am.  Rep.  721.  In  that  case  a  railroad  train  was 
being  propelled  at  a  dangerous  speed.  The  negligence  was  active.  In 
this  case  it  consisted  of  an  omission ;  that  is,  in  the  failure  to  originally 
construct  the  bridge  properly,  or  permitting  it  to  become  dangerous. 
We  do  not  perceive  how  the  difference  in  the  circumstances  of  the 
negligence  affects  the  question  of  proximateness  between  the  cause  and 
the  result  so  as  to  distinguish  in  this  respect  the  two  cases. 

The  Balloon  Case,  19  Johns.  381,  10  Am.  Dec.  234,  and  the  case  of 
Thomas  v.  Winchester,  6  N.  Y.  397,  57  Am.  Dec.  455,  give  support  to 
our  conclusion. 

The  judgment  should  be  affirmed.^® 


BINFORD  v.  JOHNSTON. 

(Supreme  Court  of  Indiana,  1882.     82  Ind.  426,  42  Am.  Rep.  508.) 

Elliott,  J.     The  case  made  by  the  appellee's  complaint,  briefly 

stated,  is  this : 

Two  sons  of  appellee,  Allen  and  Todd,  aged  twelve  and  ten  years  respec- 
tively, bought  of  the  appellant,  a  dealer  in  such  articles,  pistol  cartridges 
loaded  with  powder  and  ball.  The  boys  purchased  the  cartridges  for  use  in 
a  toy  pistol,  and  were  instructed  by  appellant  how  to  make  use  of  them  in 
this  pistol ;  the  appellant  knew  the  dangerous  character  of  the  cartridges. 
knew  the  hazard  of  using  them  as  the  boys  proposed,  and  that  the  lads  were 
untit  to  be  entrusted  with  articles  of  such  a  character;  shortly  after  the 
sale,  the  toy  pistol,  loaded  with  one  of  the  cartridges,  was  left  by  Allen  and 
Todd  lying  on  the  floor  of  their  home.  It  was  picked  up  by  their  brother 
Bertie,  who  was  six  years  of  age,  and  discharged,  the  ball  striking  Todd  and 
inflicting  a  wound  from  which  he  died. 

A  man  who  places  in  the  hands  of  a  child  an  article  of  a  dangerous 
character  and  one  likely  to  cause  injury  to  the  child  itself  or  to  others, 
is  guilty  of  an  actionable  wrong.     If  a  dealer  should  sell  to  a  child 

2«  Accord:  Eckert  v.  Long  Island  Ry.  Co.  (1S7S)  43  N.  Y.  502,  3  Am.  Rep. 
721 ;    rerpich  v.  Leetonia  Mining  Co.  (1912)  118  Miim,  508,  137  N.  W.  12. 


860  CAUSAL  RELATION  (Part  2 

dynamite,  or  other  explosives  of  a  similar  character,  nobody  would 
doubt  that  he  had  committed  a  wrong  for  which  he  should  answer,  in 
case  injury  resulted.  So,  if  a  druggist  should  sell  to  a  child  a  deadly 
drug,  likely  to  cause  harm  to  the  child  or  injury  to  others,  he  would 
certainly  be  liable  to  an  action. 

The  more  difiicult  question  is  whether  the  result  is  so  remote  from 
the  original  wrong  as  to  bring  the  case  within  the  operation  of  the 
maxim  "Causa  proxima,  et  non  remota,  spectatur."  It  is  not  easy  to 
assign  limits  to  this  rule,  nor  to  lay  down  any  general  test  which  will 
enable  the  courts  to  determine  when  a  case  is  within  or  without  the 
rule.  It  is  true  that  general  formulas  have  been  frequently  stated,  but 
these  have  carried  us  but  little,  if  any,  beyond  the  meaning  conveyed 
by  the  words  of  the  maxim  itself. 

The  fact  that  some  agency  intervenes  between  the  original  wrong 
and  the  injury  does  not  necessarily  bring  the  case  within  the  rule;  on 
the  contrary,  it  is  firmly  settled  that  the  intervention  of  a  third  person 
or  of  other  and  new  direct  causes  does  not  preclude  a  recovery  if  the 
injury  was  the  natural  or  probable  result  of  the  original  wrong.  Bill- 
man  V.  Indianapolis,  &c.,  R.  R.  Co.,  76  Ind.  166,  40  Am.  Rep.  230. 
This  doctrine  remounts  to  the  famous  case  of  Scott  v.  Shepherd,  2  W. 
Black.  892,  commonly  known  as  the  "Squib  case."  The  rule  goes  so 
far  as  to  hold  that  the  original  wrong-doer  is  responsible,  even  though 
the  agency  of  a  second  wrong-doer  intervened.  This  doctrine  is  en- 
forced with  great  power  by  Cockburn,  C.  J.,  in  Clark  v.  Chambers,  7 
Cent.  L.  J.  11  [3  Q.  B.  D.  327  (1878)]  ;  and  is  approved  by  the  text- 
writers.    Cooley,  Torts,  70;  Addison,  Torts,  §  12. 

Although  the  act  of  the  lad  Bertie  intervened  between  the  original 
wrong  and  the  injury,  we  cannot  deny  a  recovery  if  we  find  that  the 
injury  was  the  natural  or  probable  result  of  appellant's  original  wrong. 
In  Henry  v.  Southern  Pacific  R.  R.  Co.,  50  Cal.  176,  it  was  said :  "A 
long  series  of  judicial  decisions  has  defined  proximate,  or  immediate 
and  direct  damages  to  be  the  ordinary  and  natural  results  of  the  negli- 
gence ;  such  as  are  usual,  and  as  therefore  might  have  been  expected." 
Lord  Ellenborough  said  in  Townsend  v.  Wathen,  9  East,  277,  that 
"Every  man  must  be  taken  to  contemplate  the  probable  consequences 
of  the  act  he  does."  In  Billman  v.  Indianapolis,  &c.,  R.  R.  Co.,  supra, 
very  many  cases  are  cited  declaring  and  enforcing  this  doctrine,  and 
we  deem  it  unnecessary  to  here  repeat  the  citations.  Under  the  rule 
declared  in,  the  cases  referred  to,  it  is  clear  that  one  who  sells  danger- 
ous explosives  to  a  child,  knowing  that  they  are  to  be  used  in  such  a 
manner  as  to  put  in  jeopardy  the  lives  of  others,  must  be  taken  to  con- 
template the  probable  consequences  of  his  wrongful  act.  It  is  a  prob- 
able consequence  of  such  a  sale  as  that  charged  against  appellant,  that 
the  explosives  may  be  so  used  by  children,  among  whom  it  is  natural 
to  expect  that  they  wall  be  taken,  as  to  injure  the  buyers  or  their  asso- 
ciates. A  strong  illustration  of  the  principle  here  affirmed  is  afforded 
by  the  case  of  Dixon  v.  Bell,  5  M.  &  S.  198.    In  that  case  the  defendant 


Ch.  2)  THE  TESTS  OP  LEGAL  CAUSE  861 

sent  a  child  for  a  loaded  gnn,  desiring  that  the  person  who  was  to 
deliver  it  should  take  out  the  priming.  This  was  done ;  but  the  gun 
was  discharged  by  the  imprudent  act  of  the  child,  the  plaintiff  injured, 
and  it  was  held  that  the  defendant  was  liable.  In  Lynch  v.  Nurdin, 
1  O.  B.  29,  the  doctrine  of  the  case  cited  was  approved,  and  the  same 
judgment  has  been  pronounced  upon  it  by  other  courts  as  well  as  by 
the  text-writers.  Carter  v.  Towne,  98  Mass.  567,  96  Am.  Dec.  682 ; 
\\' barton,  Xeg.  851 ;  Shearman  &  Redf.  Neg.  (3d  Ed.)  596.  *  *  * 
Judgment  [for  the  plaintiff]  affirmed.^^ 


CLARK  V.  \\^ALLACE.         ^ 

(Supreme  Court  of  Colorado,  1911.    51  Colo.  437,  118  Pac.  973, 
;       Ann.  Cas.  1913B,  349.) 

MussER,  J.  This  writ  of  error  was  sued  out  to  review  a  judgment 
in  favor  of  Wallace,  who  was  defendant  below.  Clark  owned  160 
acres  of  standing  peas,  upon  which  he  was  feeding  and  fattening  about 
1,200  sheep.  The  sheep  and  peas  were  in  charge  of  a  herder,  in  the 
employ  of  Clark.  The  herder  lived  there  with  his  wife  and  two  chil- 
dren. On  a  certain  day,  Wallace,  who  had  a  ranch  nearby,  was  en- 
gaged in  dipping  sheep,  and  it  became  necessary  for  him  to  have  more 
help.  He  caused  Clark's  herder  to  be  asked  to  come  over  and  help  in 
dipping  the  sheep,  and  stated  that  he  would  pay  the  herder.  After  a 
time,  the  herder  came  over.  While  he  was  at  Wallace's,  a  fire  started 
in  or  near  Clark's  field  of  peas.  It  was  evidently  started  by  the  herd- 
er's wife,  or  boy,  or  both.  There  was  a  high  wind  blowing,  and  the 
fire  soon  got  beyond  control,  and  extended  to  the  field  of  peas,  and 
destroyed  them.  Clark  brought  an  action  to  recover  from  Wallace  the 
damages  sustained  by  him  on  account  of  the  loss  of  the  peas.  After 
the  evidence  was  in,  the  court  instructed  the  jury  to  render  a  verdict 
in  favor  of  Wallace,  which  was  done,  and  upon  this  verdict  judgment 
was  entered  against  Clark. 

We  will  not  stop  to  consider  whether  or  not  Wallace  would  be  liable 
for  any  damage  that  might  have  resulted  to  Clark  in  consequence  of  the 
herder  being  induced  to  leave  his  work.  If  Wallace  was  liable  for  any 
damage  at  all,  which  we  do  not  determine,  it  was  only  for  such  damage 
as  was  "the  actual,  natural,  and  approximate  result  of  the  wrong  com- 
mitted." Clifford  v.  D.,  S.  P.  &  P.  R.  R.,  9  Colo.  333,  12  Pac.  219. 
"The  rule  is  general  that  a  person  is  not  to  be  held  responsible  in  dam- 
ages for  the  remote  consequences  of  his  act,  or  indeed  for  any  but  those 
which  are  proximate  or  natural."  8  Am.  &  Eng.  Ency.  of  Law,  561. 
In  D.  &  R.  G.  R.  R.  Co.  v.  Sipes,  26  Colo.  17,  55  Pac.  1093,  it  is  said 
that  proximate  cause  is  "that  cause  which,  in  natural  and  continued  se- 

2  7  Part  of  the  opinion  is  omitted. 


862  CAUSAL  RELATION  (Part  2 

quence,  unbroken  by  any  efficient,  intervening  cause,  produced  the  re- 
sult complained  of,  and  without  which  that  result  would  not  have 
occurred ;"  or  "that  cause  which  immediately  precedes  and  directly 
produces  an  effect,  as  distinguished  from  a  remote,  mediate,  or  pre- 
disposing cause." 

Whether  an  act  was  the  proximate  cause  of  damage  is  ordinarily  a 
question  for  the  jury;  but,  when  the  facts  are  undisputed,  and  are  sus- 
ceptible of  but  one  inference,  the  question  is  one  of  law  for  the  court. 
D.  &  R.  G.  R.  R.  Co.  V.  Sipes,  supra.  The  only  damage  that  Clark 
sought  to  recover,  and  of  which  there  was  any  evidence,  was  that  which 
he  had  sustained  by  reason  of  the  burning  of  the  peas.  It  cannot  be 
said  that  the  natural  result  of  the  herder's  absence  was  that  some  mem- 
ber of  his  family  would  start  a  fire  and  that  the  wind  would  be  high, 
and  would  fan  that  fire,  so  that  it  would  extend  to  and  destroy  the 
peas.  It  cannot  be  said  that  the  herder's  absence,  in  natural  and  con- 
tinued sequence,  unbroken  by  any  efficient,  intervening  cause,  produced 
the  result  complained  of ;  for  the  setting  out  of  the  fire  by  his  family 
was  not  a  natural  and  continued  sequence  of  the  herder's  absence; 
hut  it  was  an  efficient,  intervening  cause,  coming  in  after  the  absence 
of  the  herder,  and  could  not  have  been  anticipated  as  a  natural  result 
of  the  absence.  It  cannot  be  said  that,  if  the  herder  had  been  present, 
the  fire  would  not  have  been  started,  or  the  wind  not  have  been  high. 
The  cause  of  the  fire  was  not  the  absence  of  the  herder,  but  it  was 
plainly  the  action  of  his  family,  and  this  action  was  not  the  natural  and 
legitimate  sequence  of  his  absence.  The  fire  might  have  been  started 
just  as  well  with  him  present,  on  some  portion  of  the  160  acres  of  peas, 
and  the  wind  would  have  blown  just  as  hard. 

The  substantial  facts  in  this  case  are  undisputed ;  but  if  the  evidence 
on  the  part  of  the  plaintiff  be  alone  considered,  there  is  but  one  infer- 
ence to  be  drawn  from  it,  and  that  is  that  the  absence  of  the  herder 
was  not  the  proximate  cause  of  the  destruction  of  the  peas.  The 
judgment  is  therefore  affirmed. 

Judgment  affirmed. 


FERGUS  LANE  v.  ATLANTIC  WORKS.      ^ 
(Supreme  Judicial  Court  of  Massachusetts,  1872.    Ill  Mass.  136.) 

Tort.    The  declaration  was  as  follows : 

"And  the  plaintiff  says  that  the  defendants  carelessly  left  a  truck,  loaded 
with  iron,  in  Marion  Street,  a  public  hi>rh\vay  in  Boston,  tor  the  space  of 
twenty  minutes  and  more;  and  the  iron  on  said  tinick  was  so  carelessly  and 
negligently  placed  that  it  would  easily  fall  off ;  and  that  the  plaintiff  was 
walking  in  said  highway,  and  was  lawfully  in  said  highway,  and  lawfully 
using  said  highway,  and  in  the  exercise  of  due  care;  and  said  iron  upon  said 
truck  was  thrown  and  fell  therefrom  upon  the  plaintiff  in  consequence  of  the 
defendants'  carelessness,  and  the  plaintiff  was  severely  bruised  and  crip- 
pled," &c. 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  863 

The  plaintiff  introduced  evidence,^^  under  a  general  denial,  that  the 
defendants  left  a  truck  with  a  bar  of  iron  on  it  standing  in  front  of 
their  works  on  Marion  Street,  which  was  a  public  highway  in  Boston ; 
that  the  iron  was  not  fastened,  but  would  easily  roll  off  the  truck; 
that  the  plaintiff',  then  seven  years  old,  and  a  boy  about  the  same  age 
named  James  Conners,  were  walking,  between  six  and  seven  in  the 
evening,  on  the  side  of  Marion  Street  opposite  the  truck  and  the  de- 
fendants' works ;  that  Horace  Lane,  a  boy  12  years  old,  being  near  the 
truck,  called  to  them  to  come  over  and  see  him  move  it ;  that  the  plain- 
tiff and  Conners  said  they  would  go  over  and  watch  him  do  it ;  that 
they  went  over  accordingly ;  that  the  plaintiff'  stood  near  the  truck  to 
see  the  wheels  move,  as  Horace  Lane  took  hold  of  the  tongue  of  the 
truck ;  that  Horace  Lane  moved  the  tongue  somewhat ;  that  the  iron 
rolled  off  and  injured  the  plaintift''s  leg ;  and  that  neither  the  plaintiff 
nor  Conners  touched  the  iron  or  truck  at  all. 

The  defendants  introduced  evidence  tending  to  show  that  the  iron 
was  fastened  securely  on  the  truck,  which  was  drawn  from  the  defend- 
ants' works  into  the  street  at  four  o'clock  in  the  afternoon ;  that  the 
boys  removed  the  fastenings ;  that  Horace  Lane  placed  the  boys  one  on 
each  side  of  the  truck ;  that  he  turned  the  tongue  of  the  truck  round ; 
that  he  and  Conners  then  took  hold  of  the  iron  and  rolled  it  off ;  that 
the  plaintiff  had  his  hands  on  the  iron  or  on  the  truck  when  the  iron 
rolled  off  on  him ;  and  that  the  boys  were  engaged  in  the  common  en- 
terprise of  rolling  off  the  iron  and  moving  the  truck.  There  was  no 
evidence  that  Horace  Lane  had  any  lawful  purpose  or  object  in  mov- 
ing the  truck,  or  any  right  to  meddle  with  it. 

The  defendants  requested  the  judge  to  give,  besides  other  ruHngs, 
the  following : 

"2.  In  order  to  make  the  plaintiff  a  participator  or  joint  actor  with 
Horace  Lane,  in  his  conduct  in  meddling  with  the  truck  for  an  unlaw- 
ful purpose,  it  was  not  necessary  for  him  to  have  actually  taken  hold 
of  the  tongue,  or  the  iron,  or  the  truck,  to  help  or  aid  in  moving  it. 
It  is  enough  if  he  joined  with  him  in  a  common  object  and  purpose 
voluntarily,  went  across  the  street  on  his  invitation  for  that  avowed 
purpose,  and  stood  by  the  truck  to  encourage  and  aid,  by  his  presence, 
word  or  act,  the  accomplishment  of  that  purpose. 

"3.  While  it  is  true  that  negligence  alone  on  the  part  of  Horace 
Lane,  which  contributed  to  the  injury  combining  with  the  defendants' 
negligence,  would  not  prevent  a  recovery,  unless  the  plaintiff's  negli- 
gence also  concurred  as  one  of  the  contributory  causes  also;  yet,  if  the 
fault  of  Horace  Lane  was  not  negligence,  but  a  voluntary  meddling 
with  the  truck  or  iron,  for  an  unlawful  purpose,  and  wholly  as  a  sheer 
trespass,  and  this  culpable  conduct  was  the  direct  cause  of  the  injury 
which  would  not  have  happened  otherwise,  the  plaintiff'  cannot  re- 
cover." 

2  8  The  statement  of  facts  is  abridged  and  the  opinion  of  Colt,  J.,  is  omitted. 


864  CAUSAL  RELATION  (Part  2 

The  judge  did  not  give  the  ruling  requested,  but  gave  rulings,  which, 
so  far  as  they  are  now  material,  were  as  follows : 

"The  city  ordinance  is  proper  to  be  put  in  evidence  and  to  be  con- 
sidered by  the  jury  upon  the  question  of  negligence,  although  it  is 
not  conclusive  proof  that  the  defendants  were  in  point  of  fact  negli- 
gent in  the  act  of  leaving  the  truck  there.  It  is  a  matter  of  evidence,  to 
be  weighed  with  all  the  other  evidence  in  the  case. 

"If  the  sole  or  the  direct  cause  of  the  accident  was  the  act  of  Horace 
Lane,  the  defendants  are  not  responsible.  If  he  was  the  culpable  cause 
of  the  accident,  that  is  to  say,  if  the  accident  resulted  from  the  fault  of 
Horace  Lane,  they  are  not  responsible.  But  if  Horace  Lane  merely 
contributed  to  the  accident,  and  if  the  accident  resulted  from  the  joint 
negligence  of  Horace  Lane  in  his  conduct  in  regard  to  moving  the  truck 
and  the  negligence  of  the  defendants  in  leaving  it  there,  where  it  was 
thus  exposed,  or  leaving  it  so  insecurely  fastened  that  this  particular 
danger  might  be  reasonably  apprehended  therefrom,  then  the  interme- 
diate act  of  Horace  Lane  will  not  prevent  the  plaintiff  from  recovering, 
provided  he  himself  was  in  the  exercise  of  due  and  reasonable  care. 
If  the  plaintiff  himself  participated  in  the  act  of  Horace  Lane  no 
further  than  to  go  there  and  be  a  witness  to  this  transaction  which 
Horace  Lane  proposed  to  perform,  crossing  over  the  street  by  his  in- 
vitation, and  witnessing  him  move  this  truck,  that  would  not  make  him 
such  a  participator  in  the  wrongful  act  of  Horace  Lane  as  to  prevent 
his  recovery,  provided  he  himself  was  in  the  exercise  of  reasonable 
care. 

'■'If,  however,  he  was  actually  engaged  in  the  wrongful  act  of  Hor- 
ace Lane,  if  he  was  actually  engaged  in  disturbing  this  truck,  and  mov- 
ing the  fastenings  which  had  been  put  upon  it  in  order  to  prevent  it 
from  being  disturbed,  and  was  actively  participating  in  the  act  of 
Horace  Lane,  then  he  cannot  recover.  But  if  the  act  of  the  plaintiff 
was  limited  to  crossing  the  street  for  the  purpose  of  witnessing  the 
act  done  by  Horace  Lane,  in  answer  to  his  invitation,  and  no  active 
participation  was  taken  by  the  plaintiff  other  than  that,  it  would  not 
prevent  his  recovery,  provided  he  himself  was  in  the  exercise  of  due 
and  reasonable  care." 

At  the  close  of  his  charge  to  the  jury  the  judge  read  the  second  rul- 
ing'prayed  for  by  the  defendants,  and  said: 

"If  the  plaintiff  took  an  active  participation  in  it,  as  I  before  in- 
structed you,  or  went  there  as  a  joint  actor,  for  the  purpose  of  en- 
couraging Horace  Lane  in  it,  he  cannot  recover.  If  he  went  there  at- 
tracted by  curiosity  only,  at  the  invitation  of  the  party  who  was  about 
to  move  the  truck,  Horace  Lane,  then  he  may  recover ;  provided,  you 
are  further  satisfied  that,  in  what  he  did,  he  was  in  the  exercise  of  the 
due  and  reasonable  care  that  should  be  expected  of  a  person  of  his 
age. 

The  jury  returned  a  verdict  for  the  plaintiff  for  $6,000,  and  the  de- 
fendants alleged  exceptions. 


Ch.  2)  THE  TESTS  OP  LEGAL  CAUSE  865 

Colt,  J.  In  actions  of  this  description,  the  defendant  is  hable  for 
the  natural  and  probable  consequences  of  his  negligent  act  or  omission. 
The  injury  must  be  the  direct  result  of  the  misconduct  charged;  but 
it  will  not  be  considered  too  remote  if,  according  to  the  usual  experi- 
ence of  mankind,  the  result  ought  to  have  been  apprehended. 

The  act  of  a  third  person,  intervening  and  contributing  a  condition 
necessary  to  the  injurious  effect  of  the  original  negligence,  will  not  ex- 
cuse the  first  wrong-doer,  if  such  act  ought  to  have  been  foreseen. 
'J'he  original  negligence  still  remains  a  culpable  and  direct  cause  of  the 
injury.  The  test  is  to  be  found  in  the  probable  injurious  consequences 
which  were  to  be  anticipated,  not  in  the  number  of  subsequent  events 
and  agencies  which  might  arise. 

Whether  in  any  given  case  the  act  charged  was  negligent,  and  wheth- 
er the  injury  suffered  was,  within  the  relation  of  cause  and  eft"ect, 
legally  attributable  to  it,  are  questions  for  the  jury.  They  present 
oftentimes  difficult  questions  of  fact,  requiring  practical  knowledge  and 
experience  for  their  settlement,  and  where  there  is  evidence  to  justify 
the  verdict  it  cannot  be  set  aside  as  matter  of  law.  Tlie  only  question 
for  the  Court  is,  whether  the  instructions  given  upon  these  points  stat- 
ed the  true  tests  of  liability.     *     *     *  .j. 

3.  The  last  instruction  asked  was  rightly  refused.  Under  the  law  as 
laid  down  by  the  Court  the  jury  must  have  found  the  defendants  guilty 
of  negligence  in  doing  that  from  which  injury  might  reasonably  have 
been  expected,  and  from  which  injury  resulted;  that  the  plaintiff  was 
in  the  exercise  of  due  care ;  that  Horace  Lane's  act  was  not  the  sole, 
direct,  or  culpable  cause  of  the  injury;  that  he  did  not  purposely  roll 
the  iron  upon  the  plaintiff;  and  that  the  plaintiff  was  not  a  joint  actor 
with  him  in  the  transaction,  but  only  a  spectator.  This  supports  the  ver- 
dict. It  is  immaterial  whether  the  act  of  Horace  Lane  was  mere  neg- 
ligence or  a  voluntary  intermeddling.  It  was  an  act  which  the  jury 
have  found  the  defendants  ought  to  have  apprehended  and  provided 
against.  McDonald  v.  Snelling,  14  Allen,  290,  295  ;  Powell  v.  Deveney, 
3  Cush.  300;  Barnes  v.  Chapin,  4  Allen,  444;  Tutein  v.  Hurley,  98 
Mass.  211 ;  Dixon  v.  Bell,  5  M.  &  S.  198;  Mangan  v.  Atterton,  L.  R. 
1  Ex.  239;  Illidge  v.  Goodwin,  5  C.  &  P.  190;  Burrows  v.  March 
Gas  Co.,  L.  R.  5  Ex.  67,  71 ;  Hughes  v.  Macfie,  2  H.  &  C.  744. 

Exceptions  overruled. 

tPart  of  the  opinion,  on  other  points,  is  omitted.  On  the  principle  in  the 
last  instruction  compare  the  remark  of  Gibson.  J.,  in  Murphy  v.  Great  North- 
ern Ry.  Co.,  [1897]  2  I.  R.  301,  312:  "The  defendants  mij?ht  be  liable  if  the 
[baggage]  truck  was  set  in  motion  either  accidentally  or  by  that  occasional 
negligence  which,  as  Tyord  Ilalsliui-j-  has  remarked,  is  one  of  the  ordinary 
incidents  of  human  life,  and  wliich  under  the  circumstances  they  ought  to 
have  anticipated."  And  see  Noiton  v.  Chandler  &  Co.  (191"))  221  Mass.  99,  108 
N.  E.  897:  (A  defective  revolving  door  to  D.'s  store  is  spun  so  fast  by  the 
hurrj-  of  S.  that  P.,  another  customer  passing  through,  is  hurt.) 

Hepb  .  ToBTS — 55 


866  CAUSAL  RELATION  (Part  2 

IMcDOWALL  V.   GREAT  WESTERN   RY.  CO.      ^ 

(High  Court  of  Justice,  King's  Bench  Division.     [1902]  1  K.  B.  G18.    Court  of 

Appeal.     [1903]  2  K.  B.  331.) 

The  action  was  brought  by  an  infant,  suing  by  her  next  friend,  to 
recover  damages  in  respect  of  injuries  sustained  by  her  through 
the  alleged  negligence  of  the  defendants.  It  was  tried  before  Ken- 
nedy, J.,  and  a  jury,  and,  the  jury  having  answered  specific  questions 
put  to  them  by  the  judge  and  assessed  the  damages  at  £17S,  the  case 
was  adjourned  for  further  consideration. 

The  following  statement  of  facts  is  taken  from  the  written  judg- 
ment of  Kennedy,  J. : 

"The  claim  is  for  damages  for  serious  injuries  inflicted  on  the  plain- 
tiff, a  girl  of  nineteen  years  of  age,  in  July,  1900,  by  a  brake  van  be- 
longing to  the  defendants  and  under  the  management  of  their  serv- 
ants at  Pembroke. 

"The  defendants,  as  part  of  their  railway  system  at  Pembroke,  have 
a  branch  called  the  Hobbs  Point  Branch,  which  is  an  offshoot  of  the 
main  line  and  is  chiefly  used  as  a  siding.  The  Hobbs  Point  Branch 
line  crosses  on  a  level  a  highway  with  a  gate  on  either  side  across 
the  line  of  railway.  For  some  distance  from  the  highway  to  the 
eastward  there  is  a  steepish  gradient  in  the  railway  line  of  about 
one  in  fifty-five,  descending  to  a  point  where  the  line  crosses  the 
highway.  In  the  course  of  the  gradient  is  what  is  termed  a  'catch- 
point,'  which  would  arrest  and  divert  any  railway  trucks  and  car- 
riages which  from  any  cause  happened  to  run  down  the  incline  to- 
wards the  highway  and  would  prevent  them,  as  the  defendants'  witness 
phrased  it,  from  'running  wild.'  On  the  day  before  the  accident  a 
servant  of  the  company  had  taken  an  engine  with  five  trucks  and  a 
brake-van  along  the  Hobbs  Point  Branch  from  the  railway  station, 
intending  to  leave  them  there  as  on  a  siding  until  they  were  required. 
He  drew  them  beyond  and  to  the  westward  of  the  catch-point,  that 
is  to  say,  to  a  position  on  the  incline  between  the  catch-point  and  the 
highway,  and  there  left  them,  after  putting  on  the  brake  in  the  van 
and  properly  spragging,  as  the  operation  is  called,  that  is,  securing  by 
means  of  pieces  of  wood,  the  wheels  of  the  trucks.  The  van  was 
attached  to  the  trucks  by  the  screw  coupling,  which  was  not  screwed 
up  tight,  but  sufficiently  tight,  if  not  interfered  with,  to  hold  the  yan 
in  connection  with  the  trucks.  The  position  would  not  have  been 
a  safe  one  in  regard  to  the  highway  if  these  precautions  had  not 
been  taken,  but  with  the  spraggs  on  the  trucks  and  the  brake  on  the 
van  it  would  have  been  safe,  as  the  jury  have  found  by  their  verdict, 
if  things  had  remained  as  they  were  when  the  trucks  and  the 
van  were  left  in  this  condition.  The  defendants'  evidence  shewed 
that  the  reason  why  the  trucks  and  the  van  were  not  left  to  the  east- 
ward of  the  catch-point  was  that  they  wished  by  going  further  to  the 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  8G7 

westward  to  have  an  extra  space  of  line  for  shunting  other  carriages 
to  be  brought  afterwards  on  to  the  branch  from  the  mainhne  The 
Hobbs  Point  Branch  was  separated  on  the  one  side  from  some  open 
ground  belonging  to  the  defendants  by  a  wire  fence,  and  on  the  other 
it  was  bounded  by  a  field  which  was  separated  from  the  high  road 
by  a  garden.  For  years  the  defendants  had  been  troubled  by  boys 
trespassing  on  this  part  of  the  line  and  playing  in  and  about  the 
vehicles  left  standing  upon  it. 

"The  day  after  the  shunting  operations  some  boys  appear  to  have 
come  on  the  line  where  the  trucks  and  van  were  and  to  have  amused 
themselves  by  playing  with  the  vehicles  and  their  fastenings.  They 
were  seen  doing  this  or,  at  all  events,  they  were  seen  on  and  close 
to  the  van,  and  they  seem  carelessly  to  have  unfastened  the  screw 
coupling  of  the  van,  and  partially  to  have  released  the  brake.  In  con- 
sequence of  this  the  van,  loosed  from  the  trucks,  ran  down  the  in- 
cline, smashed  the  gate  which  separated  the  railway  from  the  high- 
way, as  well  as  a  gate  higher  up,  and  knocked  down  and  seriously 
injured  the  plaintift"  who  was  passing  along  the  highway. 

"It  was  to  recover  damages  for  the  negligence  of  the  defendants, 

which,  as  the  plaintiff  alleged,  caused  these  injuries,  that  the  action 

was  brought.     It  was  tried  before  me  sitting  with  a  jury  at  the  last 

assizes  at  Haverfordwest.     The  jury  assessed  the  damages  at  £.175, 

and  returned  answers  to  specific  questions  which  I  left  to  them.     The 

questions  and  the  answers  were  as  follows : 

"(1)  'Was  the  van,  in  regard  to  the  persons  using  the  highway  where  the 
plaintiff  was,  in  a  safe  position,  as  and  where  it  was  left  by  the  defendants' 
servants  on  the  20th  of  July,  unless  interfered  with  afterwards?'  The  jury 
said,  'Yes.'  (2)  'Would  the  accident  to  the  plaintiff  have  happened  if  the 
van  had  not  been  interfered  with'?'  Answer,  'No.'  (3)  'Was  the  interference 
the  act  of  trespassers,  and,  if  so  was  the  interference  with  the  wilful  intent 
of  causing  the  van  to  descend  the  incline,  or  merely  negligent?'  Answer,  'Yes; 
the  act  of  trespassers  with  negligence.'  (4)  'Was  the  danger  of  such  inter- 
ference causing  injury  to  persons  using  the  highway  known  to  the  defend- 
ants at  the  time  the  van  was  left  and  kept  where  it  was,  and  might  it  have 
been  sufficiently  guarded  against  by  the  exercise  of  reasonable  care  and 
skill  on  the  part  of  the  defendants?'  Answer,  'Yes;  it  was  known  and  could 
have  been  guarded  against  by  the  exercise  of  reasonable  care  on  the  part 
of  the  defendants.'  (5)  'Was  the  occurrence  of  the  injury  to  the  plaintiff 
materially  and  effectively  caused  by  want  of  reasonable  care  and  skill  on 
the  part  of  the  defendants'  servants  in  placing  and  keeping  the  van  as  and 
where  it  was  placed  by  them,  either  (a)  in  regard  to  its  position,  apart  from 
interference  by  trespassers;  or  (b)  in  regard  to  its  danger  if  interfered  with; 
or  (c)  in  any  other  way?'  To  that  the  jury  answer,  'Yes ;  the  company  were 
negligent  in  not  placing  the  van  to  the  east  of  the  catch-point;'  and  then 
they  assess  the  damages  as  I  have  stated." 

Kennedy,  J.,  read  the  following  judgment:  In  this  case  the  ma- 
terial facts  may  be  shortly  stated.  [The  learned  judge  stated  the 
facts  as  above  ?et  out,  and  continued :] 

I  did  not  give  judgment  at  the  time,  but  reserved  the  case,  which 
is  in  some  respects  peculiar,  for  further  consideration ;  and  the  ques- 
tions of  law  arising  upon  the  case  have  been  fully  argued  before  me. 
*     *     *     The  finding  of  the  jury  in  answer  to  the  fourth  question, 


868  CAUSAL  RELATION  (Part  2 

namely,  that  the  defendants,  at  the  time  of  placing  and  keeping  the 
van  where  they  did,  knew  of  the  danger  to  those  on  the  highway  of 
such  interference  as  caused  the  plaintiff's  hurt,  appears  to  me  to  be 
conclusive.  The  position  in  which,  with  this  knowledge,  they  placed 
and  kept  the  van  was  one  of  danger  because,  if  the  interference  hap- 
pened so  as  to  set  the  vehicles  in  motion,  there  was  nothing  there  to 
stop  the  van  running  down  the  incline  and  crashing  through  the  in- 
tervening gates  and  over  the  highway.  There  was  a  catch-point  which 
had  been  placed  to  prevent  and  which  would  in  fact  have  prevented, 
such  a  disaster.  With  a  knowledge  of  the  danger  the  defendants,  for 
the  convenience  of  their  traffic  arrangements,  preferred  not  to  use 
this  obvious  and  effective  safeguard.  There  was,  I  think,  quite  suf- 
ficient evidence  to  justify  the  finding  of  the  jury  of  defendants'  knowl- 
edge of  the  existence  of  the  danger  which  the  defendants'  servants 
thus  needlessly  imposed  upon  persons  using  the  highway. 

For  years,  according  to  the  defendants'  witnesses,  they  had  been 
troubled  by  boys  playing  with  and  on  the  trucks  and  carriages  left 
stationary  at  this  part  of  the  line.  This  portion  of  the  branch  is 
bounded  on  one  side  by  a  wire  fence,  which  separated  it  from  some 
open  ground  of  the  defendants,  and  on  the  other  side  by  a  field,  which 
was  separated  from  the  highroad  by  a  garden.  To  the  knowledge 
of  the  defendants  boys  used  to  get  into  the  trucks,  and  even  to  unlock 
the  doors  of  the  vans  on  the  siding,  for  the  purpose  either  of  theft  or 
amusement.  If  the  defendants  knew  of  this  systematic,  or  at  any 
rate,  very  frequent  interference,  it  does  not  appear  to  me  to  be  other- 
wise than  reasonable  for  the  jury  to  say  that  they  must  be  taken 
to  have  known,  as  one  of  the  risks  involved,  that  the  trucks  and  vans 
kept  in  position  on  the  down  grade  only  by  temporary  means,  which 
apparently  were  easily  movable,  might,  if  uncontrolled  by  the  catch- 
point,  cause  mischief  to  the  users  of  the  highway.  If,  as  the  jury 
have  found,  the  risk  of  interference  by  trespassers  with  the  trucks 
and  vans  in  this  locality  was  a  risk  known  to  the  defendants,  and  if 
the  consequent  danger  of  their  movement  down  the  incline  to  the 
highway  was  also  a  known  risk,  and  if,  further,  this  danger  might 
have  been  guarded  against  by  the  exercise  by  the  defendants  of  rea- 
sonable care,  as  the  jury  have  also  found,  I  can  see  no  legal  reasons 
upon  which  the  defendants  can  claim  immunity  merely  because  the 
boys  were  trespassers.  I  may  point  out  that  in  Engelhart  v.  Fer- 
rant  (1897)  1  Q.  B.  240,  the  act  which  immediately  caused  the  plain- 
tiff's hurt  was  an  unauthorized  and  improper  act  on  the  part  of  the 
person  who  did  it ;  and  in  Lynch  v.  Nurdin,  1  Q.  B.  29,  Lord  Denman 
said  (1  Q.  B.  at  p.  35) :  "If  I  am  guilty  of  negligence  in  leaving  anything 
dangerous  in  a  place  where  I  know  it  to  be  extremely  probable  that 
some  other  person  will  unjustifiably  set  it  in  motion  to  the  injury  of 
a  third,  and  if  that  injury  should  be  so  brought  about,  I  presume 
that  the  sufferer  might  have  redress  by  action  against  both  or  cither 
of  the  two,  but  unquestionably  against  the  first."     In  this  case  the 


Ch.  2)  THE  TESTS   OF  LEGAL  CAUSE  869 

van  as  placed  was  not  a  cause  of  danger,  but  the  defendants  knew 
in  effect  that  it  might  become  a  cause  of  danger,  for  they  knew  the 
risk  of  the  interference  which  would  create  danger,  and  yet  they 
omitted  to  take  a  reasonable  precaution  to  prevent  its  consequences. 
Therefore,  as  it  seems  to  me,  the  principle  of  liability  as  stated  in 
the  passage  which  I  have  read  from  Lord  Denman's  judgment,  applies. 

1  give  judgment  for  the  plaintiff  for  the  amount  found  by  the 
jury  in  their  verdict. 

From  this  judgment  the  defendant  appealed.^® 

[In  the  Court  of  Appeal] 

Rome;r,  L.  J.  Clearly,  as  found  by  the  jury  when  this  train  was 
left  where  it  was  by  the  railway  company,  with  the  precautions  taken 
by  them,  it  was  perfectly  safe.  It  was  not  left  in  any  condition  in 
which  it  could  be  said  that  there  was  any  negligence  on  the  part  of 
the  railway  company  under  the  circumstances,  unless  you  can  find 
some  evidence  of  negligence  by  reason  of  the  evidence  relating  to 
the  mischievous  boys ;  in  other  words,  unless  it  is  plain  that  the 
evidence  relating  to  the  mischievous  boys  turned  that  act  which  was 
otherwise  a  proper  act  on  the  part  of  the  company  into  a  negligent 
one.  Upon  that,  having  considered  that  evidence,  it  does  not  appear 
to  me  that  upon  it  the  jury  could  reasonably  find  that  the  railway 
company  ought,  under  the  circumstances  in  which  they  left  this  train, 
reasonably  to  have  anticipated  that  the  boys  would  do  or  might  have 
done  what  they  in  fact  did,  or  that  there  was  at  the  time,  known  to 
the  company,  any  such  risk  of  the  particular  acts  of  the  boys  which 
caused  the  accident  as  called  upon  the  railway  company  to  take  fur- 
ther precautions  against  those  particular  acts;  and  that  being  so, 
it  appears  to  me  that  the  findings  upon  which  the  learned  judge  be- 
low acted  cannot  be  relied  upon  on  behalf  of  the  plaintiff,  and  that 
the  appeal  ought  to  succeed. 

Stirling,  L.  J.  I  am  of  the  same  opinion.  The  real  question  in 
this  case  is  whether  the  findmgs  of  the  jury  in  answer  to  the  fourth 
and  fifth  questions  which  were  put  to  them  by  the  learned  judge  can 
be  supported.  In  answer  to  the  first  three  questions  the  jury  have 
found  that  the  van  was  in  a  safe  position  as  and  where  it  was  left 
by  the  defendants'  servants,  unless  interfered  with  afterwards,  and 
that  the  accident  would  not  have  happened  if  the  van  had  not  been 
interfered  with,  and  that  the  interference  was  the  act  of  trespassers, 
who  acted  negligently.  Then  what  really  happened  was  that  some 
boys  got  into  or  on  the  van  and  undid  the  brake  and  couplings,  and 
that  this  led  to  the  accident. 

Now,  was  there  any  evidence  to  shew  that  the  company  ought  rea- 
sonably to  have  anticipated  such  an  occurrence?  The  learned  judge, 
twice  in  the  course  of  his  judgment,  states  what  the  facts  are.     He 

2  9  Tart  of  the  opinion  of  Kennedy,  J.,  is  omitted. 


870  CAUSAL  RELATION  (Part  2 

says  that  for  years  the  defendants  had  been  troubled  by  boys  tres- 
passing on  this  part  of  the  hne  and  playing  in  and  about  vehicles 
standing  upon  it,  and  later  he  says  that,  to  the  knowledge  of  the 
defendants,  the  boys  used  to  get  into  trucks  and  vans  and  unlock 
the  doors  of  the  vans  on  the  siding.  That  is  the  whole  length  the 
evidence  went.  Nothing  further  has  been  called  to  our  attention. 
That  had  gone  on  for  years,  and  no  accident  of  any  kind  had  oc- 
curred. In  these  circumstances  it  does  not  seem  to  me  a  fair  infer- 
ence to  draw  that  the  company  ought  to  have  reasonably  anticipated 
any  such  act  as  was  actually  done  by  the  boys  in  this  case,  or  the 
result  which  came  from  it.  Upon  that  ground  I  think  the  appeal 
ought  to  be  allowed.^" 


ALEXANDER  v.  TOWN  OF  NEW  CASTLE. 

(Supreme  Court  of  Indiana,  18SS.    115  Ind.  51,  17  N.  E.  200.) 

This  action  was  brought  by  Alexander  to  recover  for  personal  in- 
juries sustained  by  him  through  the  alleged  negligence  of  the  defend- 
ant. The  complaint  charged  that  the  town  allowed  an  excavation  to 
be  made  in  the  side  of  one  of  the  streets,  and  negligently  suitered  this 
excavation  to  remain  open  and  uninclosed,  whereby  the  plaintiff,  with- 
out fault  on  his  part,  fell  into  this  excavation  and  was  injured.  The 
town  answered :  First,  in  denial ;  secondly,  that  the  plaintiff  had  a 
warrant  for  the  arrest  of  one  Heavenridge,  and  as  special  constable 
was  taking  Heavenridge  to  jail,  under  an  order  from  a  justice  of 
the  peace,  and  in  doing  so  attempted  to  pass  the  excavation  in  ques- 
tion, that  when  opposite  the  same  Heavenridge  seized  the  plaintiff 
and  threw  him  into  the  excavation,  whereby  he  was  injured  as  charged 
in  the  complaint,  and  Heavenridge  was  enabled  to  escape.^ ^ 

A  demurrer  to  this  answer,  on  the  ground  of  insufficiency  of  facts 
to  constitute  a  defense,  was  overruled. 

NiBLACK,  C.  J.  (after  stating  the  facts).  Complaint  is  first  made 
of  the  overruling  the  demurrer  to  the  second  paragraph  of  the  an- 
swer, and  this  complaint  is  based  upon  the  claim  that,  as  the  pit  or 
excavation  so  wrongfully  and  negligently  permitted  to  remain  open 
and  uninclosed  afforded  Heavenridge  the  opportunity  of  throwing  the 
plaintiff  into  it  as  a  means  of  escape,  it  was,  in  legal  contemplation, 
the  proximate  cause  of  the  injuries  which  the  plaintiff  received. 

However  negligent  a  person,  or  a  corporation,  may  have  been  in 
some  particular  respect,  he,  or  it,  is  only  liable  to  those  who  may  have 
been  injured  by  reason  of  such  negligence,  and  the  negligence  must 
have  been  the  proximate  cause  of  the  injury  sued  for. 

30  The  opinion  of  Vaushan  Williams,  L.  J.,  with  whom  Romer  and  Stirling, 
L.  J  J.,  concurred,  is  omitted. 

81  The  statteiiiont  of  the  case  is  abridged,  and  only  so  much  of  the  opinion 
is  given  us  relates  to  the  one  point. 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  871 

Where  some  independent  agency  has  intervened  and  been  the  irt>- 
mediate  cause  of  the  injury,  the  party  guihy  of  negligence  in  the 
first  instance  is  not  responsible.  On  that  subject  Wharton,  in  his 
work  on  the  Law  of  Negligence,  at  section  134,  says:  "Supposing 
that  if  it  had  not  been  for  the  intervention  of  a  responsible  third 
party  the  defendant's  negligence  would  have  produced  no  damage  to 
the  plaintiff,  is  the  defendant  liable  to  the  plaintiff"?  This  question 
must  be  answered  in  the  negative,  for  the  general  reason  that  causal 
connection  between  negligence  and  damage  is  broken  by  the  interposi- 
tion of  independent  responsible  human  action.  I  am  negligent  on 
a  particular  subject-matter  as  to  which  I  am  not  contractually  bound. 
Another  person,  moving  independently,  comes  in,  and  either  negli- 
gently or  maliciously  so  acts  as  to  make  my  negligence  injurious  to 
a  third  person.  If  so,  the  person  so  intervening  acts  as  a  non-con- 
ductor, and  insulates  my  negligence,  so  that  I  cannot  be  sued  for  the 
mischief  which  the  person  so  intervening  directly  produces.  He  is 
the  one  who  is  liable  to  the  person  injured.  I  may  be  liable  to  him 
for  my  negligence  in  getting  him  into  difficulty,  but  I  am  not  liable 
to  others  for  the  negligence  which  he  alone  was  the  cause  of  making 
operative." 

So,  if  a  house  has  been  negligently  set  on  fire,  and  the  fire  has 
spread  beyond  its  natural  limits  by  means  of  a  new  agency ;  for  ex- 
ample, if  a  high  wind  arose  after  its  ignition,  and  carried  burning 
brands  to  a  great  distance,  thus  causing  a  fire  and  a  loss  of  property 
at  a  place  which  would  have  been  safe  but  for  the  wind,  the  loss  so 
caused  by  the  wind  will  be  set  down  as  a  remote  consequence,  for 
which  the  person  setting  the  fire  should  not  be  held  responsible.  1 
Thompson,  Negligence,    144.     *     *     *  ^^ 

Heavenridge  was  clearly  an  intervening,  as  well  as  an  independent, 
human  agency  in  the  infliction  of  the  injuries  of  which  the  plaintiff 
complained.  The  circuit  court,  consequently,  did  not  err  in  overruling 
the  demurrer  to  the  second  paragraph  of  the  answer.     *     *     * 

Judgment   [for  the  defendant]   affirmed. 

32  JNiblack,  C.  J.,  here  referred  to  the  following  cases,  with  the  remark, 
"Our  cases  are  in  harmony  with  the  general  principles  herein  annonncetl:" 
Smith  V.  Thomas  (18G4)  2.3  Ind.  69 ;  Pennsylvania  Co.  v.  Hensil  (18S0)  70  Ind. 
569,  36  Am.  Kep.  188;  City  of  Greencastle  v.  Martin  (1881)  74  Ind.  449,  39 
Am.  Kep.  93;  Billman  v.  Indianapolis,  etc..  R.  R.  Co.  (J881)  76  Ind.  166,  40 
Am.  Rep.  230;  City  of  Crawfordsville  v.  Smith  (1881)  79  Ind.  .308.  41  Am.  Rep. 
612;  Terre  Haute,  etc.,  R.  R.  Co.  v.  Buck  (1884)  96  Ind.  .346.  49  Am.  Rep.  168; 
Bloom  V.  Franklin  Life  Ins.  Co.  (1884)  97  Ind.  478,  49  Am.  Rep.  469;  Pennsyl- 
vania Co.  V.  Whitlock  (1884)  99  Ind.  16,  50  Am.  Rep.  71. 


S72  CAUSAL  RELATION  (Part  li 


ANDREWS  V.  KINSEL.        O 

(Supi'eme  Court  of  Georgia,  1901.    114  Ga.  390,  40  S.  E.  300, 

88  Am.  St.  Rep.  25.) 

LiCwrs,  J.  Andrews  &  Co.  sued  Kinsel  for  $500  damages,  making 
by  their  petition  substantially  the  following  case :  The  plaintiffs  rented 
from  the  defendant  a  storehouse  in  the  city  of  Columbus,  in  which 
they  transacted  a  mercantile  business;  and  it  was  the  duty  of  the 
defendant,  as  the  landlord  of  the  plaintiffs,  to  keep  the  premises  in 
good  repair.  The  defendant  also  owned  the  storehouse  adjoining  that 
rented  by  the  plaintiffs,  a  partition  wall  dividing  the  two  stores.  On 
a  named  day  the  defendant,  by  his  agents  and  servants,  entered  his 
storehouse  adjoining  the  plaintiffs'  place  of  business  for  the  purpose 
of  making  certain  repairs  thereon,  and  in  making  the  repairs  the  par- 
tition between  the  two  storehouses  was  removed,  or  partly  removed, 
leaving  the  store  of  the  plaintiffs  exposed  and  unprotected ;  and  upon 
leaving  the  place  at  night  the  defendant's  agents  and  servants  negli- 
gently and  carelessly  left  open  two  rear  windows  in  the  store  next 
to  that  of  the  plaintiffs,  thereby  rendering  it  easy  to  effect  an  en- 
trance into  the  plaintiffs'  store  through  the  rear  windows  and  the 
opening  in  the  partition.  On  the  night  in  question  a  burglar  or 
burglars  did  gain  entrance  to  the  plaintiff's'  store  in  the  manner  de- 
scribed, and  steal  from  the  plaintiff's  a  large  quantity  of  merchandise, 
to  their  damage  as  aforesaid.  No  notice  was  given  to  the  plaintiff's 
that  the  partition  had  been  removed  or  that  the  windows  had  been 
left  open,  and  this,  also,  is  alleged  to  have  been  negligence.  The  de- 
fendant filed  a  demurrer  to  the  petition,  which  was  overruled,  and 
he  also  filed  an  answer,  in  which  he  denied  liability,  and  denied  that 
he  had  been  negligent  as  alleged.  The  case  went  to  trial,  and,  at  the 
•conclusion  of  the  evidence  for  the  plaintiffs,  the  court,  on  motion  of 
defendant's  counsel,  granted  a  nonsuit.  To  this  ruling  the  plaintiffs 
excepted,  and  the  defendant  filed  a  cross-bill  of  exceptions  in  which 
he  assigned  error  upon  the  overruling  of  his  demurrer. 

1.  As,  in  our  opinion,  the  court  below  should  have  sustained  the 
demurrer  filed  by  the  defendant,  and  the  refusal  to  do  so  was  reversi- 
ble, the  writ  of  error  issued  upon  the  main  bill  of  exceptions  will, 
under  the  ruling  of  this  court  in  Rives  v.  Rives,  113  Ga.  392,  39  S. 
E.  79,  be  dismissed. 

2.  It  is  unnecessary  to  argue,  or  to  cite  authorities  to  sustain,  the 
well-settled  legal  principle  that,  to  enable  one  to  recover  for  damages 
resulting  from  the  negligent  conduct  of  another,  it  must  appear  that 
the  negligence  of  the  defendant  was  the  proximate  cause  of  the  in- 
jury sustained.  It  is  also  a  well-recognized  principle  that  where 
there  has  interv^ened  between  the  defendant's  negligent  act  and  the 
injury  an  independent  illegal  act  of  a  third  person,  producing  the 
injury,  and  without  which  it  would  not  have  happened,  the  latter  is 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  873 

properly  held  the  proximate  cause  of  the  injury,  and  the  defendant 
is  excused.  8  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  580.  As  is  stated 
in  1  Shear.  &  R.  Xeg.  (5th  Ed.)  §  25,  "The  defendant's  negligence 
may  put  a  temptation  in  the  way  of  another  pe'-son  to  commit  a 
wrongful  act  by  which  the  plaintiff  is  injured,  and  yet  the  defend- 
ant's negligence  may  be  in  no  sense  a  cause  of  the  injury."  Thus,  in 
Tennessee,  a  defendant  was  held  not  liable  for  the  negligent  failure 
to  keep  a  night  watch  on  guard  over  the  property  of  the  plaintiff,  as 
a  result  of  which  an  incendiary  set  fire  to  the  property.  State  v. 
Ward,  9  Heisk.  133.  In  New  York  it  is  held  that  the  relation  of 
cause  and  eft'ect  between  the  negligence  of  the  defendant  and  the 
injury  to  the  plaintiff'  cannot  be  made  out  by  including  the  independ- 
ent illegal  acts  of  third  persons,  and  that  the  defendant  cannot  be 
made  accountable  for  the  unauthorized  illegal  acts  of  other  persons, 
although  his  own  conduct  may  have  indirectly  induced  or  incited  the 
commission  of  the  acts.  Olmsted  v.  Brown,  12  Barb.  662.  And  in 
Grain  v.  Petrie,  6  Hill,  524,  41  Am.  Dec.  765,  the  following  language 
is  used :  "To  maintain  a  claim  for  special  damages,  they  must  appear 
to  be  the  legal  and  natural  consequences  arising  from  the  tort,  and 
not  from  the  wrongful  act  of  a  third  party  remotely  induced  thereby." 
See,  also,  Shugart  v.  Egan,  83  111.  56,  25  Am.  Rep.  359;  Bo^worth 
V.  Brand.  1  Dana  (Ky.)  377 :  Carpenter  v.  Railroad  Co.,  13  App. 
Div.  328,  43  N.  Y.  Supp.  203. 

This  principle  is  also  well  established  in  Georgia  by  the  cases  of 
Belding  v.  Johnson,  86  Ga.  177,  12  S.  E.  304,  11  L.  R.  A.  53,  and 
Henderson  v.  Coal  Co.,  100  Ga.  568,  28  S.  E.  251,  40  L.  R.  A.  95. 
In  the  former  case  it  was  held  that  a  widow  could  not  recover  dam- 
ages of  a  barkeeper  for  the  homicide  of  her  husband,  who  was  killed 
in  an  encounter  with  a  third  person;  the  quarrel  leading  up  to  the 
encounter  having  been  the  result  of  intoxication  produced  by  liquor 
illegally  sold  to  the  slayer  of  plaintiff's  husband  by  the  barkeeper. 
In  the  Henderson  Case  the  lessee  of  a  convict  was  held  not  liable  for 
the  criminal  act  of  the  convict,  by  which  a  third  party  suffered  dam- 
age, although  the  lessee  negligently  placed  it  in  the  power  of  the  con- 
vict to  commit  the  crime.  These  cases,  it  will  be  seen,  are  closely  in 
point.  The  rule  is  aptly  and  rather  quaintly  stated  in  Whart.  Neg. 
(2d  Ed.)  §  134,  in  the  following  language:  "I  am  negligent  on  a  par- 
ticular subject-matter  as  to  which  I  am  not  contractually  bound.  An- 
other person,  moving  independently,  comes  in  and  either  negligently 
or  maliciously  so  acts  as  to  make  my  negligence  injurious  to  a  third 
person.  If  so,  the  person  so  intervening  acts  as  a  nonconductor,  and 
insulates  my  negligence,  so  that  I  cannot  be  sued  for  the  mischief 
which  the  person  so  intervening  directly  produces." 

Applying  these  principles  to  the  case  now  before  us,  it  is  manifest 
that  the  plaintiffs  did  not  make  out  a  cause  of  action  by  their  petition. 
Granting  as  true  all  of  their   allegations  as  to  the  negligence  of  the 


874  CAUSAL  RELATION  (Part  2 

defendant,  it  is  also  true,  upon  the  face  of  their  pleadings,  that  there 
intervened  as  a  direct  cause  between  the  negHgence  of  the  defendant 
and  the  damage  sustained  by  themselves  the  independent  criminal  act 
of  a  responsible  human  agency.  The  demurrer  to  the  petition  should 
have  been  sustained. 

Writ  of  error  on  main  bill  of  exceptions  dismissed.     Judgment  on 
cross  bill  reversed.     All  the  justices  concurring. 


WATSON  V.  KENTUCKY  &  INDIANA  BRIDGE  &  R.  CO.  et  al. 

(Court  of  Appeals  of  Kentucky,  1910.     137  Ky.  619,  126  S.  W.  146.) 

Settle,  J.  This  action  was  instituted  by  the  appellant,  John  Wat- 
son, in  the  court  below  against  the  appellees,  Kentucky  &  Indiana 
Bridge  &  Railroad  Company,  hereinafter  called  the  Bridge  &  Rail- 
road Company,  the  Southern  Railway  Company,  the  Southern  Rail- 
way Company  in  Kentucky,  and  the  Union  Tank  Line  Company,  to 
recover  $20,000  damages  for  injuries  sustained  to  his  person  on  the 
night  of  June  14,  1907,  from  an  explosion  of  gas  caused,  as  alleged, 
by  the  negligence  of  the  appellees.  It  was,  in  substance,  alleged  in 
the  petition  as  amended — 

that  wliile  a  tank  car,  owned  by  the  appellee  Union  Tank  Line  Company, 
and  tilled  with  a  highly  explosiA^e  substance  known  as  gasoline,  was  being 
transported  through  a  populous  section  of  the  city  of  Louisville  over  the 
roadbed  of  the  appellee  Bridge  &  Railroad  Company,  it  was  derailed  and 
its  valve  broken,  thereby  causing  all  the  gasoline  to  escape  and  flow  in  large 
quantities  on  the  street  and  into  the  gutters;  that  from  the  gasoline  thus 
flowing  and  standing  in  jwols  upon  the  street  and  gutters  ttiere  arose  and 
spread  over  the  neighborhood  of  the  place  of  derailment  and  into  the  houses  of 
the  residents  thereof,  great  quantities  of  highly  explosive  and  combustible 
gas  which,  three  hours  after  the  derailment  of  the  tank  car,  exploded  witli 
force  from  contact  with  a  lighted  match  thrown  on  the  street  by  one  Chas. 
Duerr,  who  claimed  to  have  used  it  in  igniting  a  cigar;  that  the  explosion 
threw  appellant  from  his  bed  and  almost  demolished  his  hoiise,  from  the  ruins 
of  which  he  was  taken  unconscious  and  bleeding  with  a  fractured  jaw  and 
one  cheek  nearly  torn  from  his  face.  It  was  further  charged  in  the  petition 
that  the  explosion  and  appellant's  consequent  injuries  resulted  from  the  neg- 
ligence of  all  the  appellees ;  the  negligence  of  the  I 'uion  Tank  Line  Com- 
jiany  lying,  as  alleged,  in  its  failure  to  provide  the  tank  car  with  proper 
trucks  and  main  valve;  that  of  the  Bridge  &  Railroad  Company  in  failing  to 
maintain  in  a  safe  condition  the  roadbed  and  track  at  the  point  of  derail- 
ment; in  permitting  the  tank  car  to  remain  at  the  place  of  derailment  in  its 
wrecked  condition  an  unreasonable  time,  and  in  allowing  i.gnorant  and  careless 
meddling  on  the  part  of  their  servants  with  the  main  valve  of  the  tank  after 
it  was  !)roken,  whereby  the  flow  of  the  gasoline  from  the  tank  was  increased 
instead  of  diminished. 

All  the  material  averments  of  the  petition  were  specifically  denied 
by  the  answer  of  the  appellees. 

As  on  the  trial  the  proof  failed  to  show  that  either  the  Southern 
Railway  Company,  or  the  Southern  Railway  Company  in  Kentucky, 
was  charged  with  the  duty  of  maintaining  the  roadbed  or  tracks  at 
the  place  of  derailment  or  that  they  had  handled  or  had  anything  to 


Ch.2)  THE  TESTS  OF  LEGAL  CAUSE  875 

do  with  the  tank  car  in  question,  appellant,  at  the  conclusion  of  all 
the  evidence,  dismissed  the  action  without  prejudice  as  to  those  two 
appellees.  At  the  conclusion  of  appellant's  evidence,  the  appellees 
Bridge  &  Railroad  Company  and  Union  Tank  Line  Company  moved 
the  court  peremptorily  to  instruct  the  jury  to  find  for  them.  The  mo- 
tion was  overruled,  but  being  renewed  by  appellees  after  the  intro- 
duction of  all  the  evidence,  it  was  sustained,  and  the  jury,  in  obedi- 
ence to  the  peremptory  instruction  then  given  by  the  court,  returned 
a  verdict  in  behalf  of  appellees,  upon  which  judgment  was  entered 
in  their  favor  for  costs.  Appellant,  being  dissatisfied  with  that  judg- 
ment and  the  refusal  of  the  Circuit  Court  to  grant  him  a  new  trial, 
has  appealed.     *     *     * 

The  lighting  of  the  match  by  Duerr  having  resulted  in  the  explo- 
sion, the  question  is,  was  that  act  merely  a  contributing  cause,  or 
the  efficient  and,  therefore,  proximate  cause  of  appellant's  injuries? 
The  question  of  proximate  cause  is  a  question  for  the  jury.  In  hold- 
ing that  Duerr  in  lighting  or  throwing  the  match  acted  maliciously 
or  with  intent  to  cause  the  explosion,  the  trial  court  invaded  the  prov- 
ince of  the  jury.  There  was,  it  is  true,  evidence  tending  to  prove 
that  the  act  was  wanton  or  malicious,  but  also  evidence  conducing  to 
prove  that  it  was  inadvertently  or  negligently  done  by  Duerr.  It 
was  therefore  for  the  jury  and  not  the  court  to  determine  from  all 
the  evidence  whether  the  lighting  of  the  match  was  done  by  Duerr 
inadvertently  or  negligently,  or  whether  it  was  a  wanton  and  malicious 
act.  As  said  in  Alilwaukee  Railroad  Co.  v.  Kellogg,  94  U.  S.  469, 
24  L.  Ed.  256:  "The  true  rule  is  that  what  is  the  proximate  cause 
of  the  injury  is  ordinarily  a  question  for  the  jury.  It  is  not  a  ques- 
tion of  science  or  legal  knowledge.  It  is  to  be  determined  as  a  fact 
in  view  of  the  circumstances  of  fact  attending  it."    Sydnor  v.  Arnold, 

122  Ky.  557,  92  S.  W.  289,  28  Ky.  Law  Rep.  1252.  In  Thompson 
on  Negligence,  §  161,  it  is  said:  "On  principle,  the  rule  must  be 
here,  as  in  other  cases,  that,  before  the  judge  can  take  the  question 
away  from  the  jury  and  determine  it  himself,  the  facts  must  not  only 
be  undisputed,  but  the  inference  to  be  drawn  from  those  facts  must 
be  such  that  fair-minded  men  ought  not  to  differ  about  them.  It 
must  be  concluded  that  this  is  so,  when  it  is  considered  that  proxi- 
mate cause  is  a  cause  which  would  probably,  according  to  the  experi- 
ence of  mankind,  lead  to  the  event  which  happened,  and  that  remote 
cause  is  a  cause  which  would  not,  according  to  such  experience,  lead 
to  such  an  event.  Now,  whether  a  given  cause  will  probably  lead  to 
a  given  result  is  plainly  to  be  determined  by  the  average  experience 
of  mankind;  that  is,  by  a  jury  rather  than  by  a  legal  scholar  on  the 
bench." 

No  better  statement  of  the  law  of  proximate  cause  can  be  given 
than  is  found  in  21  Am.  &  Eng.  Ency.  of  Law  (2d  Ed.)  490,  quoted 
with   approval  in  Louisville  Home  Telephone   Company  v.   Gasper, 

123  Ky.  128,  93  S.  W.  1057,  29  Ky.  Law  Rep.  578,  9  L.  R.  A.  (N. 


876  CAUSAL  RELATION  (Part  2 

S.)  548:  "It  is  well  settled  that  the  mere  fact  that  there  have  been 
intervening  causes  between  the  defendant's  negligence  and  the  plain- 
lift's  injuries  is  not  sufticient  in  law  to  relieve  the  former  from  lia- 
bility; that  is  to  say,  the  plaintiil's  injuries  may  yet  be  natural  and 
proximate  in  law,  although  between  the  defendant's  negligence  and 
the  injuries  other  causes  or  conditions,  or  agencies,  may  have  op- 
erated, and,  when  this  is  the  case,  the  defendant  is  liable.  So  the 
defendant  is  clearly  responsible  where  the  intervening  causes,  acts, 
or  conditions  were  set  in  motion  by  his  earlier  negligence,  or  nat- 
urally induced  by  such  wrongful  act  or  omission,  or  even,  it  is  gen- 
erally held,  if  the  intervening  acts  or  conditions  were  of  a  nature  the 
happening  of  which  was  reasonably  to  have  been  anticipated,  though 
they  may  have  been  acts  of  the  plaintift'  himself.  An  act  or  omission 
may  yet  be  negligent  and  of  a  nature  to  charge  a  defendant  with 
liability,  although  no  injuries  would  have  been  sustained  but  for  some 
intervening  cause,  if  the  occurrence  of  the  latter  might  have  been 
anticipated.  *  *  *  ^  proximate  cause  is  that  cause  which  nat- 
urally led  to  and  which  might  have  been  expected  to  produce  the 
result.  *  *  *  Xhe  connection  of  cause  and  eft'ect  must  be  estab- 
lished. It  is  also  a  principle  well  settled  that  when  an  injury  is 
caused  by  two  causes  concurring  to  produce  the  result,  for  one  of 
which  the  defendant  is  responsible,  and  not  for  the  other,  the  defend- 
ant cannot  escape  responsibility.  One  is  liable  for  an  injury  caused 
by  the  concurring  negligence  of  himself  and  another  to  the  same 
extent  as  for  one  caused  entirely  by  his  own  negligence."  Black's 
Law  &  Practice,  §21;  Thompson  on  Negligence,  §§  47-52;  Whit- 
aker's  Smith  on  Negligence,  27;    29  Cyc.  488-502. 

If  the  presence  on  Madison  street  in  the  city  of  Louisville  of  the 
great  volume  of  loose  gas  that  arose  from  the  escaping  gasoline  was 
caused  by  the  negligence  of  the  appellee  Bridge  &  Railroad  Company, 
it  seems  to  us  that  the  probable  consequences  of  its  coming  in  con- 
tact with  fire  and  causing  an  explosion  was  too  plain  a  proposition  to 
admit  of  doubt.  Indeed,  it  was  most  probable  that  some  one  would 
strike  a  match  to  light  a  cigar  or  for  other  purposes  in  the  midst  of 
the  gas.  In  our  opinion,  therefore,  the  act  of  one  lighting  and  throw- 
ing a  match  under  such  circumstances  cannot  be  said  to  be  the  efficient 
cause  of  the  explosion.  It  did  not  of  itself  produce  the  explosion, 
nor  could  it  have  done  so  without  the  assistance  and  contribution  re- 
sulting from  the  primary  negligence,  if  there  was  such  negligence, 
on  the  part  of  the  appellee  Bridge  &  Railroad  Company  in  furnish- 
ing the  presence  of  the  gas  in  the  street.  This  conclusion,  however, 
rests  upon  the  theory  that  Duerr  inadvertently  or  negligently  lighted 
and  threw  the  match  in  the  gas.  This  view  of  the  case  is  sustained 
by  the  following  leading  cases,  all  decided  by  this  court :  Sydnor  v. 
Arnold,  122  Ky.  557,  92  S.  W.  289,  28  Ky.  Law  Rep.  1252;  Louis- 
ville Gas  Co.  V.  Gutenkuntz,  82  Ky.  432;  Whitman-McNamara  To- 
bacco Co.  V.  Warren,  66  S.  W.  609,  2Z  Ky.  Law  Rep.  2120;    Louis- 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  877 

ville  Home  Telephone  Co.  v.  Gasper,  123  Ky.  128,  93  S.  W.  1057, 
29  Ky.  Law  Rep.  578,  9  L.  R.  A.  (N.  S.)  548.  The  cases  supra 
are,  indeed,  in  point  of  fact  and  principle  so  analogous  to  the  case 
under  consideration  as  to  completely  control  its  determination,  and 
to  render  further  discussion  of  it  unnecessary. 

If,  however,  the  act  of  Duerr  in  lighting  the  match  and  throwing 
it  into  the  vapor  or  gas  arising  from  the  gasoline  was  malicious,  and 
done  for  the  purpose  of  causing  the  explosion,  we  do  not  think  ap- 
pellees would  be  responsible,  for  while  the  appellee  Bridge  &  Rail- 
road Company's  negligence  may  have  been  the  efficient  cause  of  the 
presence  of  the  gas  in  the  street,  and  it  should  have  understood 
enough  of  the  consequences  thereof  to  have  foreseen  that  an  explo- 
sion was  likely  to  result  from  the  inadvertent  or  negligent  lighting 
of  a  match  by  some  person  who  was  ignorant  of  the  presence  of  the 
gas  or  of  the  eftect  of  lighting  or  throwing  a  match  in  it,  it  could 
not  have  foreseen  or  deemed  it  probable  that  one  would  maliciously 
or  wantonly  do  such  an  act  for  the  evil  purpose  of  producing  the 
explosion.  Therefore,  if  the  act  of  Duerr  was  malicious,  we  quite 
agree  with  the  trial  court  that  it  was  one  which  the  appellees  could 
not  reasonably  have  anticipated  or  guarded  against,  and  in  such  case 
the  act  of  Duerr,  and  not  the  primary  negligence  of  the  appellee 
Bridge  &  Railroad  Company,  in  any  of  the  particulars  charged,  was 
the  efficient  or  proximate  cause  of  appellant's  injuries.  The  mere  fact 
that  the  concurrent  cause  or  intervening  act  was  unforeseen  will  not 
relieve  the  defendant  guilty  of  the  primary  negligence  from  liability, 
but  if  the  intervening  agency  is  something  so  unexpected  or  extraordi- 
nary as  that  he  could  not  or  ought  not  to  have  anticipated  it,  he  will 
not  be  liable,  and  certainly  he  is  not  bound  to  anticipate  the  criminal 
acts  of  others  by  which  damage  is  inflicted  and  hence  is  not  liable 
therefor.  29  Cvc.  501-512;  Sofield  v.  Sommers,  9  Ben.  526,  22  Fed. 
Cas.  769,  Cas.  No.  13,157;  Andrews  v.  Kinsel,  114  Ga.  390,  40  S. 
E.  300,  88  Am.  St.  Rep.  25.     *     *     * 

For  the  reasons  indicated,  the  judgment  is  affirmed  as  to  the  Union 
Tank  Line  Company,  but  reversed  as  to  the  Bridge  &  Railroad  Com- 
pany, and  cause  remanded  for  a  new  trial  consistent  with  the  opin- 
ion.^^ 


RICKARDS  v.  LOTHL^N.  ^ 

(Judicial  Committee  of  the   Privy  Council.     [1913]  App.  Cas.   2a3.) 
Appeal  from  an  order  of  the  High  Court  of  Australia   (May  22. 
1911),  reversing  a  judgment  of  the  Supreme  Court  of  Victoria  (Au- 
gust 7,  1910),  and  restoring  a  judgment  of  the  County  Court  at  Mel- 
bourne (April  29,  1910).=^* 

33  Parts  of  the  opinion  are  omitted. 

3  4  The  statement  of  the  case  is  abridged,  and  the  arguments  of  counsel  and 
parts  of  the  opinion  are  omitted. 


878  CAUSAL  RELATION  (Part  2 

The  judgment  of  their  Lordships  was  delivered  by 

Lord  Moulton.  The  appellants  in  this  case  are  the  personal  rep- 
resentatives of  Harry  Rickards,  who  was  the  defendant  in  an  action 
for  damages  brought  by  the  respondent  against  him  in  the  Melbourne 
County  Court  for  damages  occasioned  to  the  stock  in  trade  of  the 
plaintiff,  who  was  the  tenant  of  the  second  floor  of  certain  premises 
belonging  to  the  defendant,  by  an  overflow  from  a  lavatory  basin 
situated  on  an  upper  floor  of  the  same  premises.  Though  the  sum 
involved  is  not  large,  the  legal  questions  raised  by  the  case  are  of 
considerable  importance,  and  the  litigation  has  been  characterized  by 
remarkable  differences  of  judicial  opinion  upon  them.  Upon  the 
findings  of  the  jury,  the  judge  at  the  trial  directed  judgment  to  be 
entered  for  the  plaintiff  for  £156,  the  amount  of  the  damages  found 
by  the  jury.  On  appeal  to  the  Supreme  Court  of  Victoria  that  judg- 
ment was  set  aside  and  judgment  entered  for  the  defendant,  in  ac- 
cordance with  the  views  of  a  majority  of  that  Court.  This  decision 
was  reversed  on  appeal  by  the  High  Court  of  Australia  in  accordance 
with  the  views  of  a  majority  of  that  Court,  and  the  present  appeal  is 
brought  by  leave  from  that  decision  of  the  High  Court  of  Australia. 
The  circumstances  out  of  which  the  action  arose  were  as  follows : 

The  defendant  was  the  lessee  under  a  long  building  lease  of  a 
building  in  Melbourne  used  for  business  purposes,  and  the  plaintiff 
was  tenant  under  him  of  part  of  the  second  floor  of  such  building. 
On  the  fourth  floor  there  was  a  room  used  as  a  men's  lavatory  in 
which  was  fixed  a  wash-hand  basin  supplied  with  water  by  a  screw-down 
tap  situated  immediately  over  it  and  connected  by  a  pipe  with  the 
mains  of  the  Metropolitan  Water  Supply  System.  The  basin  had 
the  usual  arrangements  for  getting  rid  of  the  water,  namely,  a  vent- 
hole  provided  with  a  plug  at  the  bottom  of  the  basin  and  holes  situated 
near  its  upper  edge  to  act  as  an  overflow.  Through  these  holes  the 
overflowing  water  passed  down  a  pipe  which  connected  with  the 
wastepipe  from  the  hole  at  the  bottom  of  the  basin,  some  little  distance 
below  its  upper  end.  It  was  common  ground  that  the  basin  and  fit- 
tings above  described  were  of  ordinary  construction  and  such  as  are 
in  common  use,  and  it  was  proved  that  on  their  erection  they  had 
been  inspected  and  passed  by  the  officials  of  the  Metropolitan  Board 
of  Works  in  the  regular  way.  The  lavatory  was  intended  for  the 
use  of  the  tenants  of  the  upper  floors  and  persons  in  their  employment. 

The  defendant  employed  one  Smith  as  a  caretaker  of  the  building, 
and  part  of  his  business  was  to  see  that  the  lavatory  was  in  good  work- 
ing order.  On  August  18,  1909,  he  was  on  duty  until  10:20  p.  m.  He 
gave  evidence  that  at  that  hour  he  went  to  the  lavatory  and  found  it 
in  proper  order.  On  the  plaintiff  arrWing  on  the  premises  the  fol- 
lowing morning  he  found  that  his  stock  in  trade  there  (which  consisted 
mainly  of  school-books)  was  seriously  damaged  by  water,  and  on 
examination  it  was  discovered  that  the  water  tap  of  the  basin  had  been 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  879 

turned  full  on  and  the  waste-pipe  plugged  so  that  there  had  been 
an  overflow  from  the  basin  to  the  extent  of  the  full  supply  which  the 
tap  was  capable  of  giving,  and  that  this  overflow  had  flooded  the  rooms 
below.  There  was  no  direct  evidence  as  to  the  length  of  time  that  the 
water  had  been  running  in  this  way,  but  the  extent  of  the  overflow  was 
so  great  that  it  seems  to  have  been  accepted  by  all  parties  at  the  trial 
that  it  must  have  continued  for  some  hours.  It  was  for  the  damage 
thus  caused  to  the  plaintiff's  stock  in  trade  that  the  action  was  brought. 

On  examining  the  basin  it  was  found  that  the  waste-pipe  had  been 
plugged  up  with  various  articles,  such  as  nails,  penholders,  string, 
and  soap,  and  that  the  obstruction  was  situated  so  far  down  the  pipe 
that  it  covered  its  junction  with  the  waste-pipe  from  the  overflow 
holes.  It  therefore  blocked  both  waste-pipes.  The  manner  in  which 
the  plugging  v/as  effected  furnished  strong  evidence  that  it  had  been 
intentionally  done ;  indeed,  the  materials  had  been  so  tightly  rammed 
together  that  it  was  difficult  to  clear  the  pipe.  For  the  purposes  of 
the  trial  the  capacity  of  the  waste-pipes  for  carrying  off  the  water 
which  the  tap  was  capable  of  supplying  was  tested  after  the  pipe  had 
been  cleared.  It  was  found  that  at  the  ordinary  pressure  of  the  system 
during  the  daytime  the  waste-pipes  were  able  to  carry  off  all  the  water 
which  the  tap  could  supply  even  when  fully  open,  but  that  during  the 
night  the  pressure  rose  somewhat  and  that  at  the  night  pressure  the 
waste-pipes  were  not  sufficient  to  take  off  the  whole  of  the  water 
which  the  tap  could  supply.  The  plaintiff  gave  no  evidence  to  shew 
what  fraction  of  the  water  which  the  tap  was  capable  of  so  supplying 
during  the  night  would  fail  to  pass  away  by  the  waste-pipes  if  they 
were  clear  and  unobstructed,  but  it  would  seem  probable  that  the 
amount  of  the  overflow  in  such  circumstances  would  only  be  a  com- 
paratively small  fraction  of  the  water  issuing  out  of  the  tap  and  that 
the  major  portion  would  pass  off  by  the  waste-pipes. 

In  his  plaint  the  plaintiff  claimed  to  recover  the  damage  done  to  his 
stock  in  trade  as  injury  caused  by  water  through  the  carelessness  of 
the  defendant,  his  servants  or  agents,  in  the  construction,  maintenance, 
management,  and  control  of  the  lavatory  basin  and  its  pipes,  &c.,  and 
alternatively  as  injury  arising  from  a  breach  by  the  defendant  of  an 
implied  covenant  for  quiet  enjoyment.  At  the  trial  he  was  permitted 
to  add  a  third  alternative  whereby  he  claimed  to  recover  such  damage 
as  injury  caused  by  the  defendant  wrongfully  permitting  large  quanti- 
ties of  water  to  escape  from  the  said  basin  and  to  flow  into  the  prem- 
ises occupied  by  the  plaintiff.  By  his  defence  the  defendant  denied 
the  allegations  of  negligence,  covenant,  and  duty,  and  further  denied 
that  if  any  such  covenant  existed  there  had  been  any  breach  of  it. 

At  the  trial  evidence  was  called  on  both  sides  and  the  above  facts 
were  proved.  The  claim  upon  implied  covenant  was  obviously  unsus- 
tainable and  was  apparently  abandoned.  The  substantial  case  sought 
to  be  made  on  behalf  of  the  plaintiff  was  twofold — first,  that  Smith 


880  CAUSAL  RELATION  (Part  2 

(for  whose  actions  the  defendant  was  responsible)  was  guilty  of  neg- 
ligence in  leaving  the  tap  turned  on  and  in  omitting  to  discover  that 
the  waste-pipe  was  choked ;  and,  secondly,  that  the  defendant  was 
guilty  of  negligence  in  not  placing  a  lead  safe  with  an  outlet  pipe  on 
the  floor  of  the  lavatory  underneath  the  basin.  Smith  was  called  as 
witness  on  behalf  of  the  defendant  and  gave  evidence  that  the  basin 
was  in  proper  condition  when  he  left  it  on  the  evening  before,  and 
the  tap  turned  off,  and,  as  will  presently  be  seen,  the  jury  accepted  his 
evidence.  With  regard  to  the  second  point,  namely,  whether  it  was 
necessary  or  usual  to  put  a  lead  safe  in  such  a  lavatory,  the  evidence 
was  very  conflicting,' the  views  of  the  various  expert  witnesses  called 
for  the  parties  dift'ering  widely. 

The  learned  judge  summed  up  very  carefully  and  at  considerable 
length,  calling  the  attention  of  the  jury  to  the  whole  of  the  evidence 
given.  In  the  course  of  his  summing  up  he  directed  them  that  "if 
this"  (i.  e.,  the  plugging  up)  "were  a  deliberately  mischievous  act  of 
some  outsider,  unless  it  were  instigated  by  the  defendant  himself, 
the  defendant  would  not  be  responsible.  He  would  not  be  responsible 
for  a  malicious  act  under  those  circumstances,  because  he  could  not 
guard  against  malice."  This  direction  was  in  substance  repeated  in 
that  part  of  the  summing  up  which  dealt  with  the  question  of  the  neces- 
sity of  placing  a  lead  safe  in  the  lavatory.  Referring  to  the  conten- 
tion of  the  defendant  that  the  damage  was  caused  not  by  the  absence 
of  a  safe  but  by  deliberate  mischief,  he  said:  "If  it  was,  then  the  de- 
fendant would  not  be  responsible  because  the  person  who  deliberately 
tried  to  flood  the  place  could  overcome  the  precautions.  He  could  stop 
the  plug  of  the  basin,  he  could  stop  the  overflow,  and  could  very 
easily  stop  the  escape  from  the  lead  floors.  Nobody  is  expected  to 
guard  against  deliberate  malice  or  mischief." 

At  the  end  of  the  summing  up  the  judge  handed  the  following  writ- 
ten paper  to  the  jury: 

"Questions  for  the  jury.  To  be  taken  in  reference  to  the  evidence  and  the 
judge's  direction. 

'•(1)  Was  the  defendant,  or  any  of  his  servants  or  agents  guilty  of  ne.i^li- 
genceV  (a)  In  not  providing  a  reasonalily  suOieient  escape  for  water  in  case 
of  an  overflow  resulting  from  accident  or  negligence  having  regard  to  tlie 
nature  of  the  use  of  the  rooms  beneath?  (b)  In  leaving  the  tap  turned  on 
on  the  night  of  the  18th  August.  1909,  or  in  omitting  to  discover  on  that  night 
that  the  waste-pipe  was  choked? 

"(2)  Was  such  negligence  Uf  any)  the  cause  of  the  injury  to  the  plaintiff's 
goods? 

"(3)  Damages  in  any  case?" 

And  the  jury  returned  the  following  written  answers: 

"(1)  Yes.  (a)  We  are  of  opinion  that  a  lead  safe  was  necessary  on  the  floor 
of  this  particular  lavatory,  and  that  same  would  minimize  risk,  (b)  Xo.  We 
believe  the  evidence  of  Smith  (caretaker),  who  asserts  that  the  lavatory  was 
in  thorough  order  when  he  ceased  duties. 

"(2)  Yes,  it  was. 

"('■'<)  We  assess  the  damage  done  to  Lothian's  property  at  £1.50. 

"We  are  of  opinion  that  this  was  the  malicious  act  of  some  person." 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  881 

*  *  *  These  questions  were  not  happily  framed.  For  example 
the  word  "negligence"  in  1  (a)  is  used  twice,  and  evidently  refers  to 
two  different  things  in  the  two  places  where  it  occurs.  In  the  earlier 
part  of  the  question  it  must  refer  to  negligence  in  the  construction 
of  the  apparatus,  but  in  the  latter  part  it  must  refer  to  negligence  in 
user.  But  this  is  not  the  most  serious  defect  in  these  questions.  There 
is  also  a  fatal  omission.  The  judge  had  directed  the  jury  that  if  the 
act  was  malicious  the  defendant  w'ould  not  be  liable  unless  he  instigat- 
ed it,  which  was  not  even  suggested.  Yet  this  issue  was  not  put  to 
them,  nor,  indeed,  was  any  question  asked  bearing  upon  it.  It  is 
evident  that  this  omission  puzzled  the  jury.  The  course  they  took  was, 
on  the  whole,  one  directed  by  common  sense.  They  found  a  verdict 
upon  that  vital  issue,  although  it  had  not  been  separately  left  to  them, 
and  they  then  proceeded  to  answer  the  questions  specifically  put  to 
them.  As  their  language  shews,  these  questions  related  solely  to  the 
issue  of  negligence — the  first  asking  as  to  its  existence,  the  second 
as  to  the  damage  being  a  consequence  of  it,  and  the  third  as  to  the 
amount  of  that  damage.  It  is  difficult  to  understand  the  answer  of  the 
jury  to  the  second  question,  in  view  of  the  finding  that  the  act  was 
malicious,  because  if  the  act  was  malicious  the  negligence  in  not  provid- 
ing the  lead  safe  could  not  be  legally  speaking,  the  cause  of  the  dam- 
age. But  there  can  be  no  doubt  of  the  meaning  of  the  finding  as  to 
the  act  having  been  malicious,  and  therefore  their  Lordships  con- 
sider that  the  only  reasonable  interpretation  to  be  put  upon  the  answer 
to  the  second  question  is  that  the  jury  thought  that  the  negligence  in 
omitting  to  provide  a  lead  safe  was  physically  the  cause  of  the  damage 
in  the  sense  that  the  provision  of  a  lead  safe  would  have  prevented 
the  damage  if  the  overflow  had  been  due  to  negligence  or  accident. 

Their  Lordships  are  of  opinion  that  there  was  abundant  evidence 
to  support  the  finding  of  the  jury  that  the  plugging  of  the  pipes  was 
the  malicious  act  of  some  person  and  indeed  it  is  difficult  to  see  how 
upon  the  evidence  any  other  conclusion  could  reasonably  have  been 
arrived  at.  The  answers  to  the  question  1  (a)  and  (b)  were  also  an- 
swers which  the  jury  were  competent  to  give  upon  the  evidence,  and 
no  objection  can  be  taken  to  them.  *  *  *  They  found  that  it  was 
negligent  to  omit  to  provide  a  lead  safe  on  the  floor  of  this  particular 
lavatory.  Their  Lordships  are  satisfied  that  a  finding  so  express  and 
so  carefully  limited  cannot  be  impugned. 

It  is  clear  that  on  these  findings  the  plaintiff  did  not  make  good  his 
claim  as  a  claim  in  an  ordinary  action  of  negligence.  To  sustain  such 
a  cause  of  action  it  must  be  shewn  that  the  negligence  is  the  proximate 
cause  of  the  damage.  The  proximate  cause  of  the  damage  here  was 
the  malicious  act  of  a  third  person.  The  only  negligence  which  the 
jury  found  in  this  case  was  the  omission  to  provide  against  accident 
by  placing  a  lead  safe  under  the  lavatory.  Such  automatic  devices 
are  security  against  accident  or  negligent  user,  but  they  are  inoperative 
Hepb  .  TOBTS — 56 


882  CAUSAL  RELATION  (Part  2 

against  intentional  and  mischievous  acts.  The  person  who  did  the 
maHcious  act  in  this  case  was  obHged  to  do  three  distinct  things  to 
secure  the  success  of  his  plan,  namely,  to  open  the  screw  tap  to  its 
utmost  limit,  to  block  the  waste-pipe  from  the  bottom  of  the  basin, 
and  to  block  the  waste-pipe  from  the  overflow  holes.  It  cannot  be 
doubted  that  the  presence  of  a  lead  safe  would  have  formed  no 
obstacle  to  his  plan,  because  the  outlet  from  that  safe  could  have 
been  blocked  up  as  easily  as  the  two  waste-pipes.  The  arguments  on 
behalf  of  the  plaintiff  in  the  Courts  of  Appeal  were  therefore  mainly 
directed  to  bringing  the  case  under  one  of  two  other  well-known  types 
of  action,  namely : 

(1)  It  was  contended  that  the  defendant  ought  to  have  foreseen  the 
probability  of  such  a  malicious  act  and  to  have  taken  precautions 
against  it,  and  that  he  was  liable  in  damages  for  not  having  done  so. 

i(2)  It  was  contended  that  the  defendant  was  liable  apart  from  neg- 
ligence on  the  principles  which  are  usually  associated  with  the  well- 
known  case  of  Fletcher  v.  Rylands,  L.  R.  1  Ex.  265,  and  L.  R.  3  H. 
L.  330. 

In  the  argument  on  the  first  of  these  points,  Lynch  v.  Nurdin  (1841) 
1  Q.  B.  29,  Cooke  v.  Midland  Great  Western  Railway  of  Ireland, 
[1909]  A.  C.  229,  and  other  decisions  of  the  same  type  were  relied 
upon.  There  is,  however,  a  short  and  conclusive  answer  to  this  con- 
tention. To  make  good  such  a  cause  of  action  the  plaintiff  must  shew 
that  the  defendant  ought  to  have  reasonably  anticipated  the  likelihood 
of  a  deliberate  choking  of  the  pipe  so  that  it  became  his  duty  to  take 
precautions  to  prevent  such  an  act  causing  damage  to  others.  This 
is  an  issue  of  fact  in  which  the  burden  is  upon  the  plaintiff,  and  he 
has  obtained  no  finding  from  the  jury  in  support  of  it.  It  is  perhaps 
irrelevant  to  consider  who  is  responsible  for  this  omission,  because 
it  is  for  the  plaintiff  to  see  that  the  questions  necessary  to  enable  him 
to  support  his  case  are  asked  of  the  jury.  But  in  this  case  the  defend- 
ant specifically  requested  the  judge  to  put  the  question  whether  the  de- 
fendant ought  reasonably  to  have  anticipated  the  deliberate  choking 
of  the  pipe,  and  the  plaintiff's  counsel  did  not  support  the  request,  but 
accepted  the  questions  framed  by  the  judge.  The  absence  of  this 
finding  is  fatal  to  this  part  of  the  plaintiff's  case,  and  it  is  not  neces- 
sary, therefore,  to  inquire  into  it  further.  But  it  must  be  pointed  out 
that  there  was  no  evidence  which  could  have  supported  such  a  find- 
ing, and  moreover,  that  the  only  duty  incumbent  upon  the  defendant 
in  such  a  case  would  have  been  to  take  reasonable  precautions  to  pre- 
vent such  an  act  causing  damage,  and  throughout  the  whole  of  the 
case  there  was  no  suggestion  of  any  precaution  which  would  have 
had  that  effect;  nor  was  there  any  finding  by  the  jury  that  the  defend- 
ant had  in  this  respect  omitted  to  do  anything  which  he  should  have 
done.  The  only  omission  found  against  him  was  of  something  wholly 
irrelevant  from  this  point  of  view.    It  is  impossible,  therefore,  to  sup- 


Ch.  2)    ^  THE  TESTS   OF  LEGAL   CAUSE  883 

port  the  plaintiff's  claim  so  far  as  it  is  based  upon  the  legal  principles 
illustrated  by  the  above  class  of  cases.     *     *     *  ^^ 

On  the  above  grounds  their  Lordships  are  of  opinion  that  the  di- 
rection of  the  learned  judge  at  the  trial  to  the  effect  that  "if  the 
plugging  up  were  a  deliberately  mischievous  act  by  some  outsider  un- 
less it  were  instigated  by  the  defendant  himself,  the  defendant  would 
not  be  responsible,"  was  correct  in  law,  and  that  upon  the  finding 
of  the  jury  that  the  plugging  up  was  the  malicious  act  of  some  person 
the  judge  ought  to  have  directed  the  judgment  to  be  entered  for  the 
defendant. 

The  appeal  must  therefore  be  allowed  and  judgment  entered  for  the 
defendant  in  the  action  with  costs  in  all  the  Courts,  and  the  plaintiff 
must  pay  the  costs  of  this  appeal  and  their  Lordships  will  humbly 
advise  His  Majesty  accordingly.  ^ 


SECTION  4.— CO-OPERATIVE  AGENCIES  AND  LEGAL 

CAUSE 


COREY  V.  HAVENER. 

SAME  V.  ADAMS. 
(Supreme  Judicial  Court  of  Massachusetts,  1902.    182  Mass.  250,  65  N.  E.  69.) 

Corey  brought  two  actions  of  tort  against  different  defendants  for 
injuries  to  the  plaintiff  caused  by  the  alleged  negligence  of  both  de- 
fendants, each  operating  a  separate  gasoline  motor  tricycle  at  an 
illegal  and  dangerous  rate  of  speed  and  thus  causing  the  horse  which 
plaintiff  was  driving  to  take  fright,  so  that  plaintiff  lost  control  of 
the  horse  and  was  injured  in  consequence. 

At  the  time  of  the  accident  causing  the  injuries  complained  of,  the 
plaintiff  was  driving  slowly  along  a  public  street  in  Worcester.  The 
defendants  came  up  from  behind,  on  motor  tricycles,  which  emitted 
smoke  and  made  a  loud  noise,  frightening  the  plaintiff's  horse.  The 
defendants  passed  at  a  high  rate  of  speed,  one  on  each  side  of  the 
plaintiff's  wagon. 

The  two  cases  were  tried  together.  On  cross-examination  the  plain- 
tiff and  each  of  his  witnesses  were  asked  if  he  could  tell  which  defend- 
ant or  which  motor  cycle  caused  the  plaintiff's  horse  to  talce  fright, 
and  each  witness  was  unable  to  tell. 

35  Lord  Moulton  here  reviewed  the  facts  and  the  decision  of  Fletcher  v. 
Itylands  (1866)  L.  R.  1  lOx.  265,  and  (1868)  L.  R.  3  H.  L.  ;«0,  and  held  that  its  prin- 
ciple did  not  apply  in  the  present;  case.  For  this  part  of  the  judgment  see 
ante,  p.  795. 


884  CAUSAL  RELATION  (Part  2 

The  defendants  requested  the  judge  to  instruct  the  jury  that  tlie 
evidence  showing  that  they  were  on  two  separate  vehicles  entirely 
independent  of  each  other,  and  there  being  two  different  suits  for 
the  same  injury,  the  burden  was  on  the  plaintiff  to  show  which  one, 
if  either,  v\'as  to  blame;  and  that  if  it  was  not  clearly  shown  which 
one  of  the  defendants  caused  the  accident,  the  plaintiff  could  not 
recover.    This  instruction  the  judge  refused  to  give. 

The  jury  found  for  the  plaintiff  in  each  case,  and  in  each  assessed 
the  damages  at  $700.    The  defendants  alleged  exceptions. 

LaThrop,  J,  *  *  *  fi-jg  verdict  of  the  jury  has  established  the 
fact  that  both  of  the  defendants  were  wrongdoers.  It  makes  no  dif- 
ference that  there  was  no  concert  between  them,  or  that  it  is  impossible 
to  determine  what  portion  of  the  injury  was  caused  by  each.  If  each 
contributed  to  the  injury,  that  is  enough  to  bind  both.  Whether  each 
contributed  was  a  question  for  the  jury.  Railroad  Co.  v.  Shanly, 
107  Mass.  568,  578,  and  cases  cited. 

It  makes  no  difference  that  the  defendants  were  sued  severally, 
and  not  jointly.  If  two  or  more  wrongdoers  contribute  to  the  injury, 
they  may  be  sued  either  jointly  or  severally.  McAvoy  v.  Wright,  137 
Mass.  207.  The  first  request  for  instructions  was,  therefore,  rightly 
refused. 

Nor  was  there  any  error  in  refusing  to  give  the  second  request.  If 
both  defendants  contributed  to  the  accident,  the  jury  could  not  single 
out  one  as  the  person  to  blame.  There  being  two  actions,  the  plaintiff 
was  entitled  to  judgment  against  each  for  the  full  amount.  There 
is  no  injustice  in  this,  for  a  satisfaction  of  one  judgment  is  all  that 
the  plaintiff  is  entitled  to.  Elliott  v.  Hayden,  104  Mass.  180;  Savage 
v.  Stevens,  128  Mass.  254;  Luce  v.  Dexter,  135  Mass.  23,  26;  Mc- 
Avov  V.  Wright,  137  Mass.  207;  Galvin  v.  Parker,  154  Mass.  346, 
28  N.  E.  244;  Worcester  Co.  v.  Ashworth,  160  Mass.  186,  189,  35 
N.  E.  773. 


Exceptions  overruled. 


38 


SALISBURY  et  al.  v.   PIERCHENRODER. 

(Supreme  Judicial  Court  of  Massachusetts,  1871.    106  Mass.  458, 

8  Am.  Rep.  ;]54.) 

Tort  for  injuries  to  a  building  owned  and  occupied  by  the  plaintiffs 
on  the  north  side  of  Avon  Street  in  I'oston.  The  parties  stated  the 
following  case  for  the  judgment  of  the  superior  court: 

Tlie  defendant  was  lessee  and  occupant  of  an  adjoining  building  on  the 
same  street,  and  susi)ended  what  was  called  a  banner-sign,  bearing  his  name 
urK)n  the  banner,  across  the  street,  uixni  a  wire  i*oi)e,  one  end  of  which  was 
fastened  by  an  iron  bolt  to  his  l)uikling,  and  the  other  end  in  like  manner  to 
a  building  on  tlie  south  side  of  the  street     The  sign  was  made  of  net-work 

3u  Tlie  statement  of  tlie  case  is  abridged,  and  part  of  the  opinion  is  omitted. 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  885 

tor  tlie  purpose  of  diminishing  its  resistance  of  the  wind,  and  due  care  was 
used  in  it's  construction  and  fastening.  Tlie  lowest  part  of  it  was  at  least 
twenty  feet  above  the  pavement  of  the  street;  and  it  did  not  interfere  with 
the  ordinary  enjoyment  of  the  neighl)orinj?  estates:  hut  it  was  hung  there  in 
violation  of  an  ordinance  of  the  city  of  Boston,  which  rendered  the  defend- 
ant liable  to  a  penalty  for  each  day  during  which  it  remained  suspended.  On 
iSeptember  S,  1809,  in  what  was  connnonly  known  as  the  "great  gale"  of  that 
year,  which  was  a  gale  of  extraordinary  violence,  the  wind  blew  the  sign 
away,  and  the  movement  of  the  sign,  which  remained  attached  to  the  roi)e, 
jerked  the  iron  holt  out  of  the  building  on  the  south  side  of  the  street,  and 
hurled  it  aci'oss  the  street  and  through  the  glass  of  a  window  in  the  plain- 
tiffs' building,  thus  doing  the  injuries  for  which  they  souglit  to  recover.  The 
plaintiffs'  window  was  properly  constructed,  and  they  were  in  no  way  charge- 
able with  negligence. 

Chapman,  C.  J.  If  the  defendant's  sign  had  been  rightfully  placed 
where  it  was,  the  qtiestion  would  have  been  presented  whether  he  had 
used  reasonable  care  in  securing  it.  If  he  had  done  so,  the  injury 
would  have  been  caused,  without  his  fault,  by  the  extraordinary  and 
unusual  gale  of  wind  which  hurled  it  across  the  street  and  against  the 
plaintiffs'  window.  The  party  injured  has  no  remedy  for  an  injury  of 
this  character,  because  it  is  produced  by  the  vis  major.  For  example, 
a  chimney  or  roof,  properly  constructed  and  secured  with  reasonable 
care,  may  be  blown  off  by  an  extraordinary  gale,  and  injure  a  neigh- 
boring building;   but  this  is  no  ground  of  action. 

But  the  defendant's  sign  was  suspended  over  the  street  in  violation^ 
of  a  pttblic  ordinance  of  the  city  of  Boston,  by  which  he  was  subject 
to  a  penalty.  Laws  &  Ordinances  of  Boston  (ed.  1863),  712.  He 
placed  and  kept  it  there  illegally,  and  this  illegal  act  of  his  has  con- 
tributed to  the  plaintiffs'  injury.  The  gale  would  not  of  itself  have 
caused  the  injury,  if  the  defendant  had  not  wrongfully  placed  this 
substance  in  its  way. 

It  is  contended  that  the  act  of  the  defendant  was  a  remote,  and  not 
a  proximate  cause  of  the  injury.  But  it  cannot  be  regarded  as  less 
proximate  than  if  the  defendant  had  placed  the  sign  there  while  the 
gale  was  blowing ;  for  he  kept  it  there  till  it  was  blown  away.  In 
this  respect  it  is  like  the  case  of  Dickinson  v.  Boyle,  17  Pick.  78, 
28  Am.  Dec.  281.  The  defendant  had  wrongfully  placed  a  dam  across 
a  stream  on  the  plaintiff's  land,  and  allowed  it  to  remain  there;  and 
a  freshet  came  and  swept  it  away ;  and  the  defendant  was  held  liable 
for  the  consequential  damage.  It  is  also,  in  this  respect,  like  the 
placing  of  a  spout,  by  means  of  which  the  rain  that  subsequently  falls 
is  carried  upon  the  plaintiff's  land.  The  act  of  placing  the  spout  does 
not  alone  cause  the  injury.  The  action  of  the  water  must  intervene, 
and  this  may  be  a  considerable  time  afterwards.  Yet  the  placing  of 
the  spout  is  regarded  as  the  proximate  cause.  So  the  force  of  gravi- 
tation brings  down  a  heavy  substance,  yet  a  person  who  carelessly 
places  a  heavy  substance  where  this  force  will  bring  it  upon  another's 
head  does  the  act  which  proximately  causes  the  injury  produced  by  it. 
The  fact  that  a  natural  cause  contributes  to  produce  an  injury,  which 
could  not  have  happened  without  the  unlawful  act  of  the  defendant, 


886  CAUSAL  RELATION  (Part  2 

does  not  make  the  act  so  remote  as  to  excuse  him.  The  case  of 
Dickinson  v.  Boyle  rests  upon  this  principle.  See,  also,  Woodward 
V.  Aborn,  35  Me.  271,  58  Am.  Dec.  699,  where  the  defendant  wrong- 
fully placed  a  deleterious  substance  near  the  plaintiffs'  well,  and  an 
extraordinary  freshet  caused  it  to  spoil  the  water;  also  Barnard  v. 
Poor,  21  Pick.  378,  where  the  plaintiffs'  property  was  consumed  by 
a  fire  carelessly  set  by  the  defendant  on  an  adjoining  lot;  also  Pitts- 
burgh City  V.  Grier,  22  Pa,  54,  60  Am.  Dec.  65 ;  Scott  v.  Hunter, 
46  Pa.  192,  84  Am.  Dec.  542;  Polack  v.  Pioche,  35  Cal.  416,  423,  95 
Am.  Dec.  115. 

Judgment  for  the  plaintiff's  affirmed. 


DAVIS  V.  GARRETT. 
(Court  of  Common  Pleas,  1830.    6  Bing.  716,  130  Reprint,  1456,  31  R.  R.  524.) 

The  plaintiff  delivered  to  the  defendant  on  board  his  barge  114 
tons  of  lime  to  be  conveyed  from  the  Medway  to  London.  The 
master  of  the  barge  deviated  unnecessarily  from  the  usual  course. 
Afterwards,  and  while  the  barge  was  thus  out  of  her  course,  a  tempest 
wetted  the  lime,  and  the  barge  took  fire  in  consequence.  The  master 
was  compelled,  for  the  preservation  of  himself  and  the  crew,  to  run 
the  barge  ashore,  where  both  the  lime  and  the  vessel  were  utterly 
destroyed. 

In  an  action  to  recover  the  value  of  the  lime,  there  was  a  verdict 
for  the  plaintiff. 

Taddy,  Serjt.,  obtained  a  rule  nisi  for  a  new  trial,  or  to  arrest 
the  judgment,  on  the  ground,  first,  that  the  deviation  by  the  master 
of  the  barge  was  not  a  cause  of  the  loss  of  the  lime  sufficiently  prox- 
imate to  entitle  the  plaintiff  to  recover,  inasmuch  as  the  loss  might 
have  been  occasioned  by  the  same  tempest  if  the  barge  had  proceeded 
in  her  direct  course ;  and  secondly,  that  the  declaration  contained 
no  allegation  of  any  undertaking  on  the  part  of  the  defendant  to 
carry  the  lime  directly  to  London;  an  allegation  which,  it  was  con- 
tended, on  the  authority  of  Max  v.  Roberts,  12  East,  89,  was  es- 
sential to  the  plaintiff's  recovery.* 

TiNDAL,  C.  J.  There  are  two  points  for  the  determination  of  the 
Court  upon  this  rule;  first,  whether  the  damage  sustained  by  the 
plaintiff  was  so  proximate  to  the  wrongful  act  of  the  defendant  as  to 
form  the  subject  of  an  action;  and,  secondly  whether  the  declara- 
tion is  sufficient  to  support  the  judgment  of  the  Court  for  the  plaintiff. 

As  to  the  first  point,  it  appeared  upon  the  evidence  that  the  master 
of  the  defendant's  barge  had  deviated  from  the  usual  and  customary 
course  of  the  voyage  mentioned  in  the  declaration  without  any  jus- 
tifiable cause ;  and  that  afterwards,  and  whilst  such  barge  was  out  of 
her  course,  in  consequence  of  stormy  and  tempestuous  weather,  the 

♦The  statement  of  the  case  is  abridged. 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  887 

sea  communicated  with  the  hme,  which  thereby  became  heated,  and 
the  barge  caught  fire,  and  the  master  was  compelled  for  the  preser- 
vation of  himself  and  the  crew  to  run  the  barge  on  shore,  where 
both  the  lime  and  the  barge  were  entirely  lost. 

Now  the  first  objection  on  the  part  of  the  defendant  is  not  rested, 
as  indeed  it  could  not  be  rested,  on  the  particular  circumstances  which 
accompanied  the  destruction  of  the  barge ;  for  it  is  obvious,  that 
the  legal  consequences  must  be  the  same,  whether  the  loss  was  im- 
mediately, by  the  sinking  of  the  barge  at  once  by  a  heavy  sea,  when 
she  was  out  of  her  direct  and  usual  course,  or  whether  it  happened 
at  the  same  place,  not  in  consequence  of  an  immediate  death's  wound, 
but  by  a  connected  chain  of  causes  producing  the  same  ultimate  event. 
It  is  only  a  variation  in  the  precise  mode  by  which  the  vessel  was 
destroyed,  which  variation  will  necessarily  occur  in  each  individual 
case. 

But  the  objection  taken  is,  that  there  is  no  natural  or  necessary 
connection  between  the  wrong  of  the  master  in  taking  the  barge 
out  of  its  proper  course,  and  the  loss  itself ;  for  that  the  same  loss 
might  have  been  occasioned  by  the  very  same  tempest,  if  the  barge 
had  proceeded  in  her  direct  course. 

But  if  this  argument  were  to  prevail,  the  deviation  of  the  master, 
which  is  undoubtedly  a  ground  of  action  against  the  owner,  would 
never,  or  only  under  very  peculiar  circumstances,  entitle  the  plaintiff  to 
recover.  For  if  a  ship  is  captured  in  the  course  of  deviation,  no  one 
can  be  certain  that  she  might  not  have  ];)een  captured  if  in  her  prop- 
er course.  And  yet,  in  Parker  v.  James,  4  Camp.  112,  where  the 
ship  was  captured  whilst  in  the  act  of  deviation,  no  such  ground  of 
defence  was  even  suggested.  Or,  again,  if  the  ship  strikes  against 
a  rock,  or  perishes  by  storm  in  the  one  course,  no  one  can  predicate 
that  she  might  not  equally  have  struck  upon  another  rock,  or  met 
with  the  same  or  another  storm,  if  pursuing  her  right  and  ordinary 
\oyage. 

The  same  answer  might  be  attempted  to  an  action  against  a  de- 
fendant who  had,  by  mistake,  forwarded  a  parcel  by  the  wrong  con- 
veyance, and  a  loss  had  thereby  ensued;  and  yet  the  defendant  in 
that  case  would  undoubtedly  be  liable. 

But  we  think  the  real  answer  to  the  objection  is,  that  no  wrong- 
doer can  be  allowed  to  apportion  or  qualify  his  own  wrong ;  and  that 
as  a  loss  has  actually  happened  whilst  his  wrongful  act  was.  in  oper- 
ation and  force,  and  which  is  attributable  to  his  wrongful  act,  he 
cannot  set  up  as  an  answer  to  the  action  the  bare  possibility  of  a 
loss,  if  his  wrongful  act  had  never  been  done.  It  might  admit  of 
a  different  construction  if  he  could  shew,  not  only  that  the  same  loss 
might  have  happened,  but  that  it  must  have  happened  if  the  act  com- 
plained of  had  not  been  done;  but  there  is  no  evidence  to  that  extent 
in  the  present  case. 

Rule  discharged. 


888  CAUSAL  RELATION  (Part 


WALD  V.  PITTSBURGH,  C,  C.  &  ST.  I..  R.  CO. 

(Supreme  Court  of  Illiuois,  1896.     162  111.  545,  44  N.  E.  8SS,  35  L.  K.  A.  356, 

53  Am.  St.  Rep.  332.) 

This  was  an  action  by  Wald  against  the  railway  company  to  re- 
cover the  value  of  the  plaintiff's  trunk  and  its  contents,  constituting 
his  personal  baggage,  which  had  been  lost  in  the  great  Johnstown 
flood  in  1889,  while  in  the  possession  of  the  defendant  as  a  common 
carrier.     The  facts  were  as  follows : 

On  May  30,  1889,  the  plaintiff  bought  a  ticket  at  Cincinnati  for  passage  by 
the  so-called  "Limited  Express  Train"  over  defendant's  road  to  New  York 
City.  The  limited  express  was  a  fast  train,  arriving  in  New  York  City  two 
hours  sooner  than  the  regular  day  express.  The  tickets  for  this  limited  train 
consisted  of  two  printed  slips, — one,  the  railroad  ticket,  being  green;  the 
other,  the  special  limited  sleeping-car  ticket,  being  purple.  No  pa.?senger  could 
travel  by  the  limitetl  without  having  both  of  these  tickets.  It  was  necessary 
to  present  these  tickets  at  Cincinnati  to  some  agent  of  the  railroad  company, 
in  order  to  have  a  trunk  checked  to  New  York.  Plaintiff  did  so  present  his 
tickets,  and  had  his  trunk  checked  at  Cincinnati  for  New  York.  From  Cin- 
cinnati to  Pittsburgh  passengers  and  their  baggage  for  both  the  limited  and 
day  express  traveled  on  the  same  train.  This  was  the  case  with  plaintiff  and 
his  baggage.  Both  left  Cincinnati  at  tbe  same  time.  At  Pittsburgh  the  Cin- 
cimiati  sleei^er,  carrying  passengers  for  the  limited  train,  was  attached  to- 
the  regular  limited  express,  which  had  come  from  Chicago,  and  the  Cincinnati 
baggage  for  the  limited  train  was  transferred  at  Pittsburgh  from  the  bag- 
gage car  of  the  Cincinnati  express  to  the  baggage  car  of  the  limited  train. 
In  order  to  have  baggage  intended  for  the  limited  express  so  transferred 
at  Pittsburgh,  it  was  the  practice  of  the  railroad  company  to  attach  to  each 
trunk  at  Cincinnati  a  white  pasteboard  tag  in  addition  to  the  regular  brass 
check,  and,  unless  such  a  white  tag  had  been  so  attached,  a  trunk  remained 
on  the  baggage  car  from  Cincinnati,  and  went  through  by  tlie  day  express 
from  Pittsburgh  to  New  Yoi'k.  In  the  present  case  no  such  white  tag  had 
been  attached  to  plaintiff's  trunk  at  Cincinnati,  and  as  a  result,  while  plain- 
tiff's car  was  transferred  at  Pittsburgh  to  the  limited  express,  his  trunk  re- 
mainetl  on  the  day  express,  which  followed  along  some  time  after  the  limited. 
This  day  express,  carrying  plaintiff's  baggage,  was  overtaken  by  the  flood 
at  Johnstown,  Pa.,  and  the  baggage  car,  with  the  entire  contents,  including 
plaintilf's  trunk,  was  lost.  The  limited  express  on  which  plaintiff  traveled 
passed  beyond  the  point  of  danger  before  the  flood  came,  and  w-as  uninjured. 
Tliere  was  some  conflict  in  the  testimony  as  to  whether  or  not  it  was  defend- 
ant's fault  that  the  wliite  tag  was  not  placed  on  plaintiff's  trunk  at  Cincin- 
nati. It  is  agreed  "that  there  was  no  negligence  in  the  management  of  the 
train,  or  in  the  care  of  the  baggage  while  on  the  train." 

On  the  trial  of  the  case  before  a  jury,  at  the  close  of  all  the  evidence 
the  court  instructed  the  jury,  as  requested  by  defendant,  that  plain- 
tiff was  not  entitled  to  recover,  and  that  a  verdict  should  be  returned 
for  defendant.  On  the  verdict  so  returned  judgment  was  entered, 
and  this  judgment  was  afifirmed  by  the  appellate  court.  The  case  is 
brought  to  this  court  imder  a  certificate  of  importance. ^^ 

MagrudER,  C.  J.  (after  stating  the  facts).  Appellee's  contention 
is  that  the  flood  by  reason  of  which  appellant's  baggage  was  lost  was 
an  act  of  God,  and  that  it  is  not  liable  for  such  loss  under  the  well- 

3T  The  opinion  of  the  Appellate  Court  will  be  found  in  Wald  v.  Pittsburg, 
C,  C.  &  St.  U  K.  Co.  (1895)  60  111.  App.  460. 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  889 

established  rule  that  "a  common  carrier,  liable  as  an  insurer  for  the 
property  intrusted  to  him  for  the  purpose  of  transportation,  is,  never- 
theless, excused  from  responsibility  for  losses  which  are  caused  by  an 
act  of  God."  1  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  p.  592.  It  is  appel- 
lant's contention  that  the  railroad  company  should,  by  placing-  a  white 
tag  on  his  trunk  at  Cincinnati,  or  by  some  other  means,  have  provided 
that  it  should  travel  with  him  by  the  same  train  throughout  the  jour- 
ney ;  that  it  did  not  do  so ;  that,  as  a  result  of  its  negligence  in  so  fail- 
ing properly  to  check  his  trunk,  it  was  separated  from  him  during 
the  journey,  and  was  lost;  and  that,  even  if  this  flood  was  an  act  of 
God,  yet  the  appellee's  negligence  in  failing  properly  to  check  the 
trunk  concurred  with  the  act  of  God,  and  thereby  made  appellee  liable 
for  the  resulting  loss  or  damage. 

1.  The  Johnstown  flood,  as  it  is  called,  by  reason  of  which  appel- 
lant's baggage  was  lost,  was  an  act  of  God.  In  Long  v.  Railroad  Co., 
147  Pa.  343,  23  Atl.  459,  14  L.  R.  A.  741,  30  Am.  St.  Rep.  732,  which 
w^as  an  action  brought  to  recover  the  value  of  two  trunks  and  their 
contents  delivered  to  the  Pennsylvania  Railroad  Company  in  Cincin- 
nati for  transportation  to  Washington,  and  where  it  appears  that  the 
trunks  lost  w^ere  contained  in  the  baggage  car  of  the  day  express  which 
was  destroyed  by  the  Johnstown  flood,  so  called,  on  Alay  31,  1889,  the 
supreme  court  of  Pennsylvania  held,  upon  substantially  the  same  evi- 
dence which  is  found  in  the  record  in  the  case  at  bar,  that  said  flood 
was  "an  inevitable  accident,  properly  described  as  actus  Dei."  In  the 
Long  Case,  however,  there  was  no  question  as  to  whether  or  not  the 
goods  lost  were  upon  the  right  train ;  that  is  to  say,  the  point  was  not 
there  made  that  the  personal  baggage  of  the  passenger  had  been 
shipped  upon  a  different  train  from  that  on  which  the  passenger  took 
passage. 

2.  There  is  some  conflict  among  the  authorities  as  to  the  liability  of 
a  common  carrier  where  the  loss  of  goods  in  its  or  his  possession  is 
due,  not  solely  and  only  to  an  act  of  God,  but  to  an  act  of  God  combined 
with  the  negligence  of  the  carrier.  Many  cases  hold — and  such  seems 
to  be  the  tendency  of  the  decisions  in  this  state^that  a  common  car- 
rier is  not  exempt  from  liability  for  a  loss  which  takes  place  because  of 
an  act  of  God,  if  such  carrier  has  been  guilty  of  any  previous  negli- 
gence or  misconduct  which  brings  the  property  in  contact  with  the  de- 
structive force  of  the  actus  Dei,  or  unnecessarily  exposes  it  thereto. 
A  loss  or  injury  is  due  to  the  act  of  God  when  it  is  occasioned  exclu- 
sively by  natural  causes,  such  as  could  not  be  prevented  by  human  care, 
skill,  and  foresight ;  and  where  property  committed  to  a  common  car- 
rier is  brought  by  the  negligence  of  the  carrier  under  the  operation  of 
natural  causes  that  work  its  destruction,  or  is,  by  the  negligence  of  the 
carrier,  exposed  to  such  cause  of  loss,  the  carrier  is  responsible.  "It 
is  universally  agreed  that,  if  the  damage  is  caused  by  the  concurring 
force  of  the  defendant's  negligence  and  some  other  cause  for  which  he 
is  not  responsible,  including  the  act  of  God,     *     *     *     ^\^q  defendant 


890  CAUSAL  RELATION  (Part  2 

IS  nevertheless  responsible  if  his  negligence  is  one  of  the  proximate 
causes  of  the  damage."  1  Shear.  &  R.  Neg.  (4th  Ed.)  §  39.  The  doc- 
trine is  thus  clearly  stated  by  the  supreme  court  of  Missouri  in  Wolf 
V.  Express  Co.,  43  Mo.  421,  97  Am.  Dec.  406:  "The  act  of  God  which 
excuses  the  carrier  must  not  only  be  the  proximate  cause  of  the  loss, 
but  the  better  opinion  is  that  it  must  be  the  sole  cause.  And  where 
the  loss  is  caused  by  the  act  of  God,  if  the  negligence  of  the  carrier 
mingles  with  it  as  an  active  and  cooperative  cause,  he  is  still  respon- 
sible." 

In  line  with  this  principle,  many  authorities  hold  that,  where  the  un- 
necessary delay  of  the  carrier  subjects  the  goods  in  his  possession  to 
a  loss  by  an  act  of  God  which  they  would  not  otherwise  have  met  with, 
the  delay  is  of  itself  such  negligence  as  will  make  him  liable  for  the 
loss.  Railroad  Co.  v.  Curtis,  80  111.  324;  Michaels  v.  Railroad  Co.,  30 
N.  Y.  564,  86  Am.  Dec.  415 ;  Read  v.  Spaulding,  30  N.  Y.  630,  86  Am. 
Dec.  426;  McGraw  v.  Railroad  Co.,  18  W.  Va.  361,  41  Am.  Rep.  696; 
Deming  v.  Railroad  Co.,  48  N.  H.  455,  2  Am.  Rep.  267 ;  Read  v.  Rail- 
road Co.,  60  Mo.  199;  Davis  v.  Garrett,  6  Bing.  716;  Williams  v.  Grant, 
1  Conn.  487,  7  Am.  Dec.  235;  Crosby  v.  Fitch,  12  Conn.  410,  31  Am. 
Dec.  745 ;  Rodgers  v.  Railroad  Co.,  67  Cal.  607,  8  Pac.  377 ;  Salisbury 
V.  Herchenroder,  106  Mass.  458,  8  Am.  Rep.  354;  Pliggins  v.  Dewey, 
107  Mass.  494,  9  Am.  Rep.  63 ;  Railroad  Co.  v.  Anderson,  94  Pa.  360, 
39  Am.  Rep.  787;  Baltimore  &  O.  R.  Co.  v.  Sulphur  Springs  Independ- 
ent School  Dist.,  96  Pa.  65,  42  Am.  Rep.  529.  We  are  inclined  to 
think  that  this  is  the  correct  doctrine.  There  are  cases  which  hold  to 
the  contrary,  among  which  are  the  leading  cases  of  Denny  v.  Railroad 
Co.,  13  Gray  (Mass.)  481,  74  Am.  Dec.  645  and  Morrison  v.  Davis,  20 
Pa.  171,  57  Am.  Dec.  695,  upon  the  ground  that  such  delay,  whethei 
justifiable  or  not,  should  not  be  regarded  as  the  proximate,  but  only  as 
the  remote,  cause  of  the  loss.  It  will  be  found,  however,  upon  exam- 
ination, that  most  of  these  cases  are  cases  where  mere  delay,  witliout 
other  negligence,  brings  the  property  lost  within  the  operation  of  the 
natural  cause  defined  to  be  an  act  of  God.  1  Am.  &  Eng.  Enc.  Law 
(2d  Ed.)  p.  596. 

In  the  case  at  bar,  when  the  appellant  bought  his  tickets  for  a  pass- 
age upon  the  limited  express  train,  and  applied  to  have  his  baggage 
checked,  there  was  an  implied  undertaking  on  the  part  of  appellee  that 
his  baggage  should  go  on  the  same  train  on  which  he  took  passage ; 
and  appellee  was  bound  to  send  his  baggage  on  the  same  train  on  which 
he  went,  unless  the  appellant  gave  some  direction,  or  did  something,  or 
omitted  to  do  something,  which  authorized  appellee  to  send  his  baggage 
by  some  other  train.  "The  implied  undertaking  of  the  passenger  car- 
rier as  to  transporting  baggage  is  that  passenger  and  baggage  shall  go 
together,  since  all  baggage  is  taken  with  reference  to  the  wants  of  a 
particular  journey.  *  *  *  Nor  ought  the  carrier,  without  permis- 
sion, to  send  the  baggage  by  later  trains  or  a  diiTerent  route,  unless  in 
a  strong  case  of  necessity.    We  need  hardly  add  that  if,  through  the 


Ch.  2)  THE  TESTS   OP   LEGAL   CAUSE  891 

carrier's  own  action,  passenger  and  baggage  become  separated,  the 
carrier  bears  the  risk."  Schouler,  Bailm.  &  Car.  (2d  Ed.)  §  675 ;  Wil- 
son V.  Raih'oad  Co.,  56  Me.  60,  96  Am.  Dec.  435 ;  Fairfax  v.  Railroad 
Co.,  7Z  N.  Y.  167,  29  Am.  Rep.  119;  Railroad  Co.  v.  Tapp,  6  Ind.  App. 
304,  ZZ  N.  E.  462. 

It  was  a  question  of  fact  in  this  case  whether  or  not  appellee  was 
guilty  of  a  violation  of  its  implied  undertaking  or  contract  to  send  the 
baggage  on  the  same  train  with  appellant ;  in  other  words,  whether  or 
not  appellee  was  guilty  of  negligence  in  not  taking  proper  steps  to  have 
the  baggage  carried  by  the  train  on  which  appellant  traveled,  and  to 
have  it  so  carried  throughout  the  whole  length  of  the  journey;  or 
whether  the  failure  to  have  the  baggage  transferred  to  the  baggage 
car  of  the  limited  express  train  at  Pittsburg  was  in  any  way  the  fault 
of  the  appellant.  We  think  that  the  court  erred  in  not  submitting  this 
question  of  fact  to  the  jury,  and  in  directing  a  verdict  for  the  defend- 
ant without  permitting  the  jury  to  pass  upon  such  question.  If  appel- 
lant's trunk  had  been  transferred  at  Pittsburg  to  the  baggage  car  at- 
tached to  the  limited  express  train  from  Chicago,  as  was  done  with  the 
sleeping  car  in  which  appellant  was  traveling,  the  trunk  would  have 
passed  through  the  place  of  danger  before  the  flood  occurred,  and 
would  not  have  been  destroyed  or  lost  by  reason  of  the  flood.  If  the 
appellee  was  guilty  of  negligence  in  failing  to  put  the  trunk  upon  the 
right  train, — upon  the  train  where  its  implied  contract  with  appellant 
required  it  to  put  the  trunk, — it  was  guilty  of  negligence  which  brought 
the  trunk  in  direct  contact  with  the  force  known  as  an  act  of  God.  "If 
the  superior  force  would  have  produced  the  same  damage  whether  the 
defendant  had  been  negligent  or  not,  his  negligence  is  not  deemed  the 
cause  of  the  injury."  Shear.  &  R.  Neg.  (4th  Ed.)  §  39.  But  here  it 
cannot  be  said  that  the  flood  would  have  caused  the  loss  if  the  trunk 
had  been  transferred  to  the  limited  express  train  at  Pittsburg. 

It  is  said,  however,  that  the  contract  of  transportation  was  made  at 
Cincinnati,  Ohio ;  that  such  a  contract,  and  the  liabilities  of  the  parties 
under  it,  are  governed  by  the  law  of  the  place  where  the  contract  is 
made;  that  the  contract  to  transport  appellant's  trunk,  having  been 
made  in  Ohio,  must  be  governed  by  the  law  of  Ohio ;  that,  by  the  law 
of  that  state,  loss  of  goods  in  the  possession  of  a  common  carrier,  oc- 
curring by  reason  of  an  act  of  God,  even  though  such  loss  would  not 
have  been  met  with  but  for  unnecessary  delay  on  the  part  of  the  car- 
rier, relieves  the  carrier  of  liability  for  the  loss ;  and  that  the  case  of 
Daniels  v.  Ballantine,  23  Ohio  St.  532,  13  Am.  Rep.  264,  which  was 
introduced  in  evidence,  shows  what  the  law  of  Ohio  is  upon  this  sub- 
ject. If  the  doctrine  of  lex  loci  contractus  is  applicable  to  this  case,  and 
if  the  case  referred  to  is  the  law  of  Ohio,  we  do  not  think  that  the 
contention  set  up  can  be  maintained,  because  the  doctrine  of'  the  Dan- 
iels Case  is  not  applicable  here.  In  that  case  the  action  was  brought 
to  recover  the  value  of  a  barge,  which  defendant  contracted  to  tow  by 
means  of  a  steam  tug  from  Bay  City,  Mich.,  to  Buffalo,  N.  Y.,  and 


S92  CAUSAL  RELATION  (Part  2' 

which  was  lost  in  a  storm  on  Lake  Erie.  It  appears  that  after  the  voy- 
age was  begun  the  defendants  delayed  on  the  route  three  days,  and  then 
began  the  voyage  again,  and  while  on  such  delayed  voyage  the  barge 
and  tug  were  overtaken  by  the  storm  and  lost.  The  court  expressly 
states  that  the  defendants  in  that  case  were  not  common  carriers,  and 
that,  although  they  had  such  control  of  the  barge  as  was  necessary  to 
enable  them  to  move  it,  yet  the  plaintiffs  had  possession  of  it,  "and 
for  most  purposes  it  remained  in  their  custody  and  care." 

The  case,  however,  presents  an  instance  of  mere  delay  without  other 
negligence.  If,  in  the  case  at  bar,  the  trunk  had  been  placed  upon  the 
right  train,  and  that  train  had  been  delayed  on  the  way,  and  by  reason 
of  such  delay  had  come  in  contact  with  the  flood,  then,  perhaps,  there 
would  be  a  resemblance  between  this  case  and  the  Ohio  case.  But 
here  the  delay  did  not  result  simply  from  a  halting  or  stopping  in  the 
movement  of  a  train  which  was  carrying  the  trunk  in  pursuance  of  the 
contract  of  carriage,  but  it  resulted  from  negligence  in  failing  to  keep 
an  implied  contract  to  carry  the  trunk  upon  a  particular  train,  and  in 
violating  that  contract  by  carrying  the  trunk  upon  a  different  train 
from  the  one  agreed  upon ;  that  is,  upon  the  assumption  that  the  facts 
would  show  no  excuse  for  not  keeping  the  contract.  It  is  like  a  devia- 
tion from  the  usual  course  by  the  master  of  a  vessel,  during  which  a 
cargo  is  injured  by  a  storm  at  sea.  In  such  case  the  deviation  is  re- 
garded as  a  sufficiently  proximate  cause  of  the  loss  to  entitle  the  freight- 
er to  recover,  as  it  brings  the  vessel  in  contact  with  the  storm,  in  itself 
the  act  of  God.  Davis  v.  Garrett,  6  Bing.  716.  Here  was  a  deviation 
from  the  contract  by  the  use  of  one  agency  of  transportation  not 
agreed  upon,  instead  of  the  use  of  another  agency  of  transportation 
which  was  agreed  upon,  thereby  bringing  the  property  in  transit  in 
contact  with  the  flood,  in  itself  the  act  of  God.  In  Davis  v.  Garrett, 
supra,  it  was  urged  that  there  was  no  natural  or  necessary  connection 
between  the  wrong  of  the  master  in  taking  the  barge  out  of  its  proper 
course  and  the  loss  itself,  "for  that  the  same  loss  might  have  been  oc- 
casioned by  the  very  same  transit  if  the  barge  had  proceeded  in  her 
direct  course" ;  but  the  court  held  the  objection  untenable,  and  Tindall, 
C.  J.,  there  said :  "The  same  answer  might  be  attempted  to  an  action 
against  a  defendant  who  had  by  mistake  forwarded  a  parcel  by  the 
wrong  conveyance,  and  a  loss  had  thereby  ensued;  and  yet  the  defend- 
ant in  that  case  would  undoubtedly  be  liable." 

The  language  last  quoted  is  precisely  applicable  to  the  case  at  bar, 
which  is  not  a  case  of  delay  in  the  transportation  of  goods  being  carried 
by  the  right  conveyance,  as  in  Daniels  v.  Ballantine,  supra,  but  a  case 
of  neglect  in  forwarding  a  trunk  by  the  wrong  conveyance,  to  wit,  by 
the  day  express,  instead  of  the  limited  express.  Of  course,  in  all  that 
is  here  said  it  is  not  intended  to  express  any  opinion  as  to  whether  the 
failure  to  ship  the  trunk  by  the  right  train  at  Pittsburg  was  or  was  not 
the  fault  of  the  appellee,  in  view  of  the  conflict  in  the  testimony  as  to 
the  circumstances  attending  the  checking  and  shipment  of  the  trunk. 


Ch.  2)  THE   TESTS   OF   LEGAL  CAUSE  893 

But,  if  there  was  nothing  in  such  circumstances  which  excused  appel- 
lee from  its  implied  obligation  to  ship  the  trunk  from  Pittsburg  upon 
the  train  carrying  appellant  eastward  from  that  point,  then  we  think 
that  the  property  was  unnecessarily  exposed  to  the  destructive  power 
of  the  flood  in  question  through  the  previous  negligence  or  misconduct 
of  appellee,  and  consequently  that  appellee  is  not  excused.  Williams 
V.  Grant,  1  Conn.  487,  7  Am.  Dec.  235.  Hence  the  case  should  have 
been  allowed  to  go  to  the  jury  under  the  instructions  asked  by  appellant 
upon  this  question. 

For  the  reason  thus  indicated,  the  judgments  of  the  appellate  court 
and  of  the  superior  court  of  Cook  county  are  reversed,  and  the  cause 
is  remanded  to  said  superior  court  for  further  proceedings  in  accord- 
ance with  the  views  herein  expressed.     Reversed  and  remanded. 


FOTTLER  v.  MOSELEY. 

(Supreme  Judicial  Court  of  Massacliusetts,  1904.    185  Mass.  563.  70  X.  E.  1040.) 

Fottler  brought  this  action  in  tort  for  deceit,  alleging  that,  in  reli- 
ance upon  certain  false  representations  by  the  defendant,  a  broker,  as  to 
the  stock  of  the  Franklin  Park  Land  Improvement  Company,  the  plain- 
tiff had  revoked  an  order  for  the  sale  of  his  shares  in  that  company, 
by  the  defendant,  whereby,  through  a  subsequent  diminution  in  the 
selling  price  of  this  stock,  the  plaintiff  had  suff'ered  loss.  There  was 
a  verdict  for  the  defendant,  and  the  plaintiff  alleged  exceptions. 

Knowlton,  C.  J.  The  parties  and  the  court  seem  to  have  assumed 
that  the  evidence  was  such  as  to  warrant  a  verdict  for  the  plaintiff, 
under  the  law  stated  at  the  previous  decision  of  this  case,  reported  in 
179  Mass.  295,  60  N.  E.  788,  if  the  diminution  in  the  seUing  price  of 
the  stock  came  from  common  causes.  The  defendant's  contention  is 
that  the  embezzlement  of  an  officer  of  a  corporation,  being  an  unlawful 
act  of  a  third  person,  should  be  treated  as  a  new  and  independent  cause 
of  the  loss,  not  contemplated  by  the  defendant,  for  which  he  is  not 
liable.  To  create  a  liability,  it  is  never  necessary  that  a  wrongdoer 
should  contemplate  the  particulars  of  the  injury  from  his  wrongful 
act,  nor  the  precise  way  in  which  the  damages  will  be  inflicted.  He 
need  not  expect  even  that  damage  will  result  at  all,  if  he  does  that 
which  is  unlawful,  and  which  involves  a  risk  of  injury.  An  embezzler 
is  criminally  liable,  notwithstanding  that  he  expects  to  return  the  money 
appropriated  after  having  used  it.  H  the  defendant  fraudulently  in- 
duced the  plaintiff'  to  refrain  from  selling  his  stock  when  he  was  about 
to  sell  it,  he  did  him  a  wrong;  and  a  natural  consequence  of  the  wrong, 
for  which  he  was  liable,  was  the  possibility  of  loss  from  diminution 
in  the  value  of  the  stock  from  any  one  of  numerous  causes.  Most,  if 
not  all,  of  the  causes  which  would  be  likely  to  affect  the  value  of  the 
stock,  would  be  acts  of  third  persons,  or  at  least  conditions  for  which 


894  CAUSAL  RELATION  (Part  2 

neither  the  plaintiff  nor  the  defendant  would  be  primarily  responsible. 
Acts  of  the  officers,  honest  or  dishonest,  in  the  management  of  the  cor- 
poration, would  be  among  the  most  common  causes  of  a  change  in 
value.  The  defendant,  if  he  fraudulently  induced  the  plaintiff  to  keep 
his  stock,  took  the  risk  of  all  such  changes.  The  loss  to  the  plaintiff 
from  the  fraud  is  as  direct  and  proximate,  if  he  was  induced  to  hold 
his  stock  until  an  embezzlement  was  discovered,  as  if  the  value  had 
been  diminished  by  a  fire  which  destroyed  a  large  part  of  the  property 
of  the  corporation,  or  by  the  unexpected  bankruptcy  of  a  debtor  who 
owed  the  corporation  a  large  sum.  Neither  the  plaintiff  nor  the  de- 
fendant would  be  presumed  to  have  contemplated  all  the  particulars  of 
the  risk  of  diminution  in  value  for  which  the  defendant  made  himself 
liable  by  his  fraudulent  representations.  It  would  be  unjust  to  the 
plaintiff  in  such  a  case,  and  impracticable,  to  enter  upon  an  inquiry  as 
to  the  cause  of  the  fall  in  value,  if  the  plaintiff  suffered  from  the  fall 
wholly  by  reason  of  the  defendant's  fraud.  The  risk  of  a  fall,  from 
whatever  cause,  is  presumed  to  have  been  contemplated  by  the  defend- 
ant when  he  falsely  and  fraudulently  induced  the  plaintiff  to  retain 
his  stock. 

We  do  not  intimate  that  these  circumstances,  as  well  as  others,  may 
not  properly  be  considered  in  determining  whether  the  plaintiff  was 
acting  under  the  inducement  of  the  fraudulent  representations  in  con- 
tinuing to  hold  the  stock  up  to  the  time  of  the  discovery  of  the  embez- 
zlement. The  false  representations  may  or  may  not  have  ceased  to 
operate  as  an  inducement  as  to  the  disposition  of  his  stock  before  that 
time.  Of  course,  there  can  be  no  recovery  except  for  the  direct  re- 
sults of  the  fraud.  But  if  the  case  is  so  far  established  that  the  plain- 
tiff, immediately  upon  the  discovery  of  the  embezzlement,  was  entitled 
to  recover  on  the  ground  that  he  was  then  holding  the  stock  in  reliance 
upon  the  fraudulent  statements,  and  if  the  great  diminution  in  value 
came  while  he  was  so  holding  it,  the  fact  that  this  diminution  was 
brought  about  by  the  embezzlement  of  an  officer  leaves  the  plaintiff's 
right  no  less  than  if  it  had  come  from  an  ordinary  loss. 

Exceptions  sustained. 


GREEN- WHEELER  SHOE  CO.  v.  CHICAGO,  R.  I.  &  P.  RY.  CO. 

(Supreme  Court  of  Iowa,  1906.     130  Iowa,  123,  106  N.  W.  498,  5  L.  R.  A. 

[N.  S.]  882,  8  Ann.  Cas.  45.) 

This  action  was  brought  against  the  railway  company  to  recover  the 
value  of  two  parcels  of  goods  delivered  by  plaintiff  to  defendant  at 
Ft.  Dodge,  Iowa,  one  parcel  to  go  to  Booneville,  Mo.,  and  the  other  to 
Chanute,  Kan.,  one  of  which  it  is  alleged  was  lost  and  the  other  dam- 
aged by  defendant's  negligence.  The  case  was  tried  on  an  agreed 
statement  of  facts  and  judgment  was  rendered  for  defendant.  Plain- 
tiff appeals. 


Ch.  2)  THE  TESTS  OF  LEGAL  CAUSE  895 

McClain,  C.  J.  In  the  agreed  statement  on  which  the  case  was 
tried  without  other  evidence  being  introduced  it  is  stipulated  that 
the  defendant  was  guilty  of  negligent  delay  in  the  forwarding  of  the 
goods  of  plaintiff  from  Ft.  Dodge  to  Kansas  City,  where  they  were 
lost  or  injured  on  May  30,  1903,  by  a  flood  which  was  so  unusual  and 
extraordinary  as  to  constitute  an  act  of  God,  and  that  if  there  had  been 
no  such  negligent  delay  the  goods  would  not  have  been  caught  in  the 
flood  referred,  to  or  damaged  thereby. 

We  have  presented  for  our  consideration,  therefore,  the  simple 
question  whether  a  carrier  who  by  a  negligent  delay  in  transporting 
goods  has  subjected  them,  in  the  course  of  transportation,  to  a  peril 
which  has  caused  their  damage  or  destruction,  and  for  the  consequence 
of  which  the  carrier  would  not  have  been  liable  had  there  been  no  neg- 
ligent delay  intervening,  is  liable  for  the  loss.  On  this  question  there  is 
a  well-recognized  conflict  in  the  authorities.  In  several  well-considered 
cases  decided  by  courts  of  high  authority  it  was  decided,  while  the  ques- 
tion was  still  new,  that  the  negligent  delay  of  the  carrier  in  transpor- 
tation could  not  be  regarded  as  the  proximate  cause  of  an  ultimate  loss 
by  a  casualty  which  in  itself  constituted  an  act  of  God,  as  that  term 
is  used  in  defining  the  carrier's  exemption  from  liability,  although  had 
the  goods  been  transported  wath  reasonable  diligence  they  would  not 
have  been  subjected  to  such  casualty,  and  these  cases  are  very  similar 
to  the  one  before  us  inasmuch  as  the  loss  in  each  instance  was  due  to 
the  goods  being  overtaken  by  an  unprecedented  flood  for  the  conse- 
quence of  which  the  carrier  would  not  be  responsible.  Morrison  v. 
Davis,  20  Pa.  171,  57  Am.  Dec.  695 ;  Denny  v.  New  York  Cent.  R.  Co., 
13  Gray  (Mass.)  481,  74  Am.  Dec.  645;  Railroad  Co.  v.  Reeves,  10 
Wall.  176,  19  L.  Ed.  909;  Daniels  v.  Ballantine,  23  Ohio  St.  532,  13 
Am.  Rep.  264;  Hunt  v.  Missouri,  K.  &  T.  R.  Co.  (Tex.  Civ.  App.)  74 
S.  W.  69;  Gleeson  v.  Virginia  Midland  R.  Co.,  5  Mackey  (D.  C.)  356. 
These  cases  are  predicated  upon  the  view  that  if  the  carrier  could  not 
reasonably  have  foreseen  or  anticipated  that  the  goods  would  be  over- 
taken by  such  a  casualty  as  a  natural  and  probable  result  of  the  delay, 
then  the  negligent  delay  was  not  the  proximate  cause  of  the  loss,  and 
should  be  disregarded  in  determining  the  liability  for  such  loss.  A 
similar  course  of  reasoning  has  been  applied  in  other  cases,  where  the 
loss  has  been  due  immediately  to  some  cause  such  as  accidental  fire  in- 
volving no  negligence  on  the  part  of  the  carrier  and  within  a  valid 
exception  in  the  bill  of  lading,  but  the  goods  have  been  brought  within 
the  peril  stipulated  against  by  negligent  delay  in  transportation.  Hoad- 
ley  v.  Northern  Transp.  Co.,  115  Mass.  304,  15  Am.  Rep.  106;  Yazoo 
&  M.  V.  R.  Co.  V.  Millsaps,  76  Miss.  855,  25  South.  672,  71  Am.  St. 
Rep.  543 ;  General  Fire  Extinguisher  Co.  v.  Carolina  &  N.  W.  R.  Co., 
137  N.  C.  278,  47  S.  E.  208.  For  similar  reasons  it  has  been  held  that 
loss  of  or  injury  to  the  goods  by  reason  of  their  inherent  nature,  as  by 
freezing  or  the  like,  will  not  render  the  carrier  liable,  even  after  negli- 
gent delay  in  transportation,  if  such  casualty  could  not  have  been  fore- 


S96  CAUSAL  RELATION  (Part  2 

seen  or  anticipated  as  the  natural  and  probable  consequence  of  such 
delay.  Michigan  Cent.  R.  Co.  v.  Burrows,  33  Mich.  6;  Herring  v. 
Chesapeake  &  W.  R.  Co.,  101  Va.  778,  45  S.  E.  322. 

On  the  other  hand,  it  was  held  by  the  Court  of  Appeals  of  New- 
York  in  a  case  arising  out  of  the  same  flood  which  caused  the  destruc- 
tion of  the  goods  involved  in  Denny  v.  New  York  Cent.  R.  Co.,  13 
Gray  (Mass.)  481,  74  Am.  Dec.  645,  supra,  that  the  preceding  negligent 
delay  on  the  part  of  the  carrier,  in  consequence  of  which  the  goods 
were  overtaken  by  the  flood,  was  sufficient  ground  for  holding  the  car- 
rier to  be  liable  for  the  loss.  Michaels  v.  New  York  Cent.  R.  Co.,  30 
N.  Y.  564,  86  Am.  Dec.  415 ;  Read  v.  Spaulding,  30  N.  Y.  630,  86  Am. 
Dec.  426.  And  the  same  court  has  adhered  to  this  view  in  case  of  a 
loss  by  fire  covered  by  valid  exception  in  the  bill  of  lading.  Condict 
V.  Grand  Trunk  R.  Co.,  54  N.  Y.  500.  The  Illinois  Supreme  Court  has 
consistently  followed  the  rule  of  the  New  York  cases  in  holding  that 
negligent  delay  subjecting  the  goods  to  loss  by  the  Johnstown  flood  ren- 
dered the  carrier  liable  (Wald  v.  Pittsburg,  C,  C.  &  St.  L.  R.  Co.,  162 
111.  545,  44  N.  E.  888,  35  L.  R.  A.  356,  53  Am.  St.  Rep.  332)  and  like- 
wise that  similar  delay  rendered  the  carrier  liable  for  damage  to  the 
goods  by  freezing.  Michigan  Cent.  R.  Co.  v.  Curtis,  80  111.  324.  The 
Alabama  and  Kentucky  courts  have  held  that  a  destruction  by  fire 
within  a  valid  exception  in  the  bill  of  lading  would  not  excuse  the  car- 
rier if  by  negligent  delay  in  transportation  the  goods  had  been  sub- 
jected to  such  casualty.  Louisville  &  N.  R.  Co.  v.  Gidley,  119  Ala. 
523,  24  South.  753 ;  Hernsheim  v.  Newport  News  &  M.  V.  Co.,  35  S. 
W.  1115,  18  Ky.  Law  Rep.  227.  In  Missouri  the  Supreme  Court  has 
followed  or  approved  of  what  may  be  designated  as  the  New  York 
rule,  under  a  variety  of  circumstances.  Davis  v.  Wabash,  St.  L.  &  P. 
R.  Co.,  89  Mo.  340,  1  S.  W.  327;  Pruitt  v.  Hannibal  &  St.  J.  R.  Co.,  62 
Mo.  527 ;  Read  v.  St.  Louis,  K.  C.  &  N.  R.  Co.,  60  Mo.  199.  And  the 
St.  Louis  Court  of  Appeals  in  that  state  has  applied  the  same  rule  in 
case  of  a  loss  by  freezing.  Armentrout  v.  St.  Louis,  K.  C.  &  N.  R.  Co., 
1  Mo.  App.  158.  But  the  Kansas  City  Court  of  Appeals  in  a  case  of 
loss  by  flood  has  followed  the  Massachusetts  and  Pennsylvania  cases. 
Moffatt  Com.  Co.  v.  Union  Pac.  R.  Co.,  113  Mo.  App.  541,  88  S.  W. 
117.  And  the  St.  Louis  Court  of  Appeals  seems  to  have  recently 
recognized  the  same  rule.  Grier  v.  St.  Louis  Merchants'  Bridge  Ter- 
minal R.  Co.,  108  Mo.  App.  565,  84  S.  W.  158.  In  West  Virginia  the 
Supreme  Court  has  held  that  negligent  delay  renders  the  carrier  liable 
for  a  subsequent  loss  by  freezing.  McGraw  v.  Baltimore  &  O.  R.  Co., 
18  W.  Va.  361,  41  Am.  Rep.  696.  In  Minnesota  the  court  has  recently 
reviewed  the  whole  question  in  a  case  involving  the  loss  of  goods  by 
the  same  flood  which  caused  the  loss  for  which  the  present  suit  is 
brought  and  has  reached  the  conclusion  that  the  previous  negligent  de- 
lay of  the  carrier  wdiich  caused  the  goods  to  be  subjected  to  the  peril 
of  the  flood  "concurred  and  mingled  with  the  act  of  God"  to  such  an 
extent  that  the  carrier  was  precluded  from  relying  upon  the  act  of 


Ch.  2)  THE  TESTS   OF  LEGAL   CAUSE  897 

God  as  a  defense.  Bibb  Broom  Corn  Co.  v.  Atchison,  T.  &  S.  F.  R. 
Co.,  94  Minn.  269,  102  N.  W.  709,  69  L.  R.  A.  509,  110  Am.  St.  Rep. 
361,3  Ann.  Cas.  450. 

The  irreconcilable  conflict  in  the  authorities  is  recognized  by  text- 
writers,  and  while  the  weight  of  general  authority  has  in  many  cases 
been  said  to  support  the  rule  announced  in  Massachusetts  and  Penn- 
sylvania cases  (1  Thompson,  Negligence,  §  74;  Schouler,  Bailments 
[Ed.  1905]  §  348;  Hale,  Bailments  and  Carriers,  361;  6  Cyc.  382; 
notes  in  36  Am.  St.  Rep.  838),  other  authorities  prefer  the  New  York 
rule  (Hutchinson,  Carriers  [2d  Ed.]  §  200;  Ray,  Negligence  of  Im- 
posed Duties,  177).  In  the  absence  of  any  express  declaration  of  this 
court  on  the  very  point,  and  in  view  of  the  fact  that  in  most  recent 
cases  the  conflict  of  authority  is  still  recognized  (see  5  Cur.  Law,  517) 
it  seems  necessary  that  the  reasons  on  which  the  two  lines  of  cases  are 
supported  shall  be  considered  in  order  that  we  may  now  reach  a  con- 
clusion which  shall  be  satisfactory  to  us.  Mere  negligence  will  not  ren- 
der one  person  liable  to  another  for  a  loss  which  the  latter  would  not 
have  sustained  had  there  been  no  such  negligence,  unless  the  negligence 
consists  in  some  violation  of  a  duty  which  the  one  person  owes  to  the 
other.  Dubuque  Wood  &  Coal  Ass'n  v.  City  and  County  of  Dubuque, 
30  Iowa,  176;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Commercial  Ins.  Co., 
139  U.  S.  223,  11  Sup.  Ct.  554,  35  L.  Ed.  154.  And,  on  the  other 
hand,  it  is  well  settled  that  if  the  negligence  of  one  person  with  refer- 
ence to  the  duty  owed  to  another  concurs  with  an  accidental  cause  re- 
sulting in  injury  to  another  to  whom  such  duty  is  owed  the  negligent 
person  must  answer  for  the  consequences  as  though  his  negligence 
were  the  sole  cause  of  the  loss.  Savannah,  F  &  W.  R.  Co.  v.  Commer- 
cial Guano  Co.,  103  Ga.  590,  30  S.  E.  555 ;  Thomas  v.  Lancaster  Mills, 
71  Fed.  481,  19  C.  C.  A.  88;  New  Brunswick  Steamboat  Co.  v.  Tieres, 
24  N.  J.  Law,  697,  64  Am.  Dec.  394;  Tierney  v.  New  York  Cent.  &  H. 
R.  R.  Co.,  76  N.  Y.  305 ;  Williams  v.  Grant",  1  Conn.  487,  7  Am.  Dec. 
235 ;  1  Thompson,  Negligence,  §§  68,  7Z. 

The  real  difficulty  seems  to  be  in  determining  to  what  extent,  if  at 
all,  it  is  necessary  that  the  negligent  party  must  have  been  able  to 
foresee  and  anticipate  the  result  of  his  negligent  act  in  order  to  render 
him  liable  for  the  consequences  thereof  resulting  from  a  concurrence 
of  his  negligence  and  another  cause  for  which  he  is  not  responsible. 
In  an  action  on  contract  the  party  who  is  at  fault  is  only  liable  for 
such  consequences  as  arise  according  to  the  usual  course  of  things  from 
his  breach,  or  such  as  may  reasonably  be  supposed  to  have  been  in  the 
contemplation  of  both  parties  at  the  time  the  contract  was  made  as 
the  probable  result  of  the  breach.  Hadley  v.  Baxendale,  9  Exch.  341 ; 
Sedgwick,  Elements  of  Damage,  17.  But  in  an  action  for  tort,  and  the 
present  action  is  of  that  character,  recovery  is  not  limited  to  the  con- 
sequences within  the  contemplation  of  the  parties  or  either  of  them, 
but  includes  all  the  consequences  "resulting  by  ordinary  natural  se- 
Hepb. Torts — 57 


898  CAUSAL  RELATION  (Part  2 

quence,  whether  foreseen  by  the  wrongdoer  or  not,  provided  that  the 
operation  of  the  cause  of  action  is  not  interrupted  by  the  intervention 
of  an  independent  agent  or  overpowering  force,  and  that  but  for  the 
operation  of  the  cause  of  action  the  consequence  would  not  have  en- 
sued." Sedgwick,  Elements  of  Damage,  §  54.  It  is  true  that  for  the 
purpose  of  determining  whether  the  injury  suffered  by  the  party  com- 
plaining was  the  natural  and  probable  result  of  the  wrong  complained 
of  a  convenient  test  is  to  consider  whether  in  general  such  a  result 
might  have  been  foreseen  as  the  consequence  of  the  wrong,  but  it  is 
not  necessary  "that  the  injury  in  the  precise  form  in  which  it  in  fact  re- 
sulted should  have  been  foreseen.  It  is  enough  that  it  now  appears  to 
have  been  the  natural  and  probable  consequence."  Hill  v.  Winsor, 
118  Mass.  251;  Schumaker  v.  St.  Paul  &  D:  R.  Co.,  46  Minn.  39,  42, 
48  N.  W.  559,  12  L.  R.  A.  257.  And  see  Railroad  Co.  v.  Kellogg,  94 
U.  S.  469,  24  L.  Ed.  256;  McPeek  v.  Western  Union  Tel.  Co.,  107 
Iowa,  356,  78  N.  W.  6?>,  43  L.  R.  A.  214,  70  Am.  St.  Rep.  205 ;  Hoag 
V.  Railroad  Co.,  85  Pa.  293,  27  Am.  Rep.  653 ;  Empire  State  Cattle  Co. 
V.  Atchison,  T.  &  S.  F.  R.  Co.  (C.  C.)  135  Fed.  135 ;  Chicago,  St.  P.,  M. 
&  O".  R.  Co.  V.  Elliott,  55  Fed.  949,  5  C.  C.  A.  347,  20  L.  R.  A.  582 ; 
Miller  V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  90  Mo.  389,  2  S.  W.  439;  Smith 
V.  Railroad,  L.  R.  6  C.  P.  21 ;  1  Thompson,  Negligence,  §  59. 

Now,  while  it  is  true  that  defendant  could  not  have  anticipated  this 
particular  flood  and  could  not  have  foreseen  that  its  negligent  delay  in 
transportation  would  subject  the  goods  to  such  a  danger,  yet  it  is  now 
apparent  that  such  delay  did  subject  the  goods  to  the  danger,  and  that 
but  for  the  delay  they  would  not  have  been  destroyed ;  and  defendant 
should  have  foreseen,  as  any  reasonable  person  could  foresee,  tliat  the 
negligent  delay  would  extend  the  time  during  which  the  goods  would 
be  liable  in  the  hands  of  the  carrier  to  be  overtaken  by  some  such 
casualty,  and  would  therefore  increase  the  peril  that  the  goods  should 
be  thus  lost  to  the  shipper.  This  consideration  that  the  peril  of  acci- 
dental destruction  is  enhanced  by  the  negligent  extension  of  time  dur- 
ing which  the  goods  must  remain  in  the  carrier's  control  and  out  of  the 
control  of  the  owner,  and  during  which  some  casualty  may  overtake 
them,  has  not,  we  think,  been  given  sufficient  consideration  in  the  cases 
in  which  the  carrier  has  been  held  not  responsible  for  a  loss  for  which 
he  is  not  primarily  liable,  but  which  has  overtaken  the  goods  as  a  con- 
sequence of  the  preceding  delay  in  their  transportation. 

It  is  not  sufficient  for  the  carrier  to  say  by  way  of  excuse  that  while 
a  proper  and  diligent  transportation  of  the  goods  would  have  kept  them 
free  from  the  peril  by  which  they  were  in  fact  lost  it  might  have  sub- 
jected them  to  some  other  peril  just  as  great.  He  cannot  speculate  on 
mere  possibilities.  A  pertinent  illustration  is  furnished  by  the  well- 
settled  rule  with  reference  to  deviation  which  is  that  if  the  carrier 
transports  the  goods  over  some  other  route  than  that  specified  in  the 
contract  or  reasonably  within  the  contemplation  of  the  parties,  he 
must  answer  for  any  loss  or  damage  occurring  during  such  deviation, 


CIl.  2)  THE  TESTS   OF  LEGAL   CAUSE  899 

although  it  is  from  a  cause  which  would  not  in  itself  render  him  liable. 
In  such  a  case  it  is  said  "that  no  wrongdoer  can  be  allowed  to  appor- 
tion or  qualify  his  own  wrong,  and  that  as  a  loss  has  actually  happened 
whilst  his  wrongful  act  was  in  operation  and  force,  and  which  is  at- 
tributable to  his  wrongful  act,  he  cannot  set  up  as  an  answer  to  the 
action  the  bare  possibility  of  a  loss  if  his  wrongful  act  had  never  been 
done.  It  might  admit  of  a  different  construction  if  he  could  show,  not 
only  that  the  same  loss  might  have  happened,  but  that  it  must  have 
happened  if  the  act  complained  of  had  not  been  done."  Davis  v.  Gar- 
rett, 6  Bing.  716.  And  see  Merchants'  D.  Transp.  Co.  v.  Kahn,  76 
111.  520;  Crosby  v.  Fitch,  12  Conn.  410,  31  Am.  Dec.  745;  U.  S.  Exp. 
Co.  v.  Kountze,  8  Wall.  342,  19  L.  Ed.  457,  6  Cyc.  383.  It  is  true  that 
the  analogy  to  the  case  of  a  deviation  is  denied  in  the  case  which  an- 
nounce the  rule  of  the  Pennsylvania  and  Massachusetts  cases  but  the 
distinction  attempted  to  be  made  that  a  deviation  amounts  to  a  con- 
version rendering  the  carrier  absolutely  liable  is  too  technical  to  be 
considered  as  persuasive.  The  analogy  between  the  two  classes  of 
cases  has  been  recognized  in  Constable  v.  National  Steamship  Co.,  154 
U.  S.  51,  14  Sup.  Ct.  1062,  38  L.  Ed.  903,  and  in  Hutchinson,  Carriers 
(2d  Ed.)  §  200.  This  court  has  expressed  itself  in  favor  of  the  lia- 
bility of  the  carrier  in  classes  of  cases  very  analogous  to  that  of  devia- 
tion. Where  goods  were  shipped  with  the  agreement  that  they 
should  be  carried  to  their  destination  without  change  of  cars,  and  in 
violation  of  this  contract  the  goods  were  unloaded  at  Chicago  which 
was  not  their  destination,  for  the  purpose  of  transporting  them  in 
other  cars,  and  they  were  destroyed  by  the  Chicago  fire,  it  was  held 
that  the  carriers  were  liable  although  the  loss  by  fire  was  within  a 
valid  exemption  from  liability  contained  in  the  bill  of  lading.  Robin- 
son V.  Merchants'  Dispatch  Transp.  Co.,  45  Iowa,  470;  Stewart  v. 
Merchants'  Dispatch  Transp.  Co.,  47  Iowa,  229,  29  Am.  Rep.  476. 

Certainly  the  act  of  the  carrier  in  unloading  the  goods  at  Chicago, 
instead  of  carrying  them  through  to  their  destination  in  the  cars  in^ 
which  they  were  originally  loaded,  would  not  amount  even  to  a  tech- 
nical conversion,  nor  could  it  have  been  anticipated  that  the  result  of 
such  an  act  would  be  the  destruction  of  the  goods;  nevertheless  this 
court  reached  the  conclusion  that  such  a  departure  from  the  terms  of 
the  contract  rendered  the  carrier  liable  for  a  loss  for  which  it  would 
not  have  been  liable  had  it  resulted  without  such  departure.  We  think 
that  in  principle  tiicse  cases  support  the  general  proposition  that  the 
wrongful  act  of  the  carrier  which  in  fact  subjects  the  goods  to  loss 
renders  him  liable  for  such  loss  although  the  circumstances  under 
which  it  occurred  could  not  have  been  anticipated.  This  is  plainly 
right,  for  the  detention  due  to  the  transfer  of  the  goods  to  the  other 
cars  did  increase  thei  hazard  of  fire ;  but  it  is  equally  true  in  the  case 
before  us  that  the  negligent  delay  increased  the  hazard  of  the  loss  by 
flood.  As  supporting  the  same  view  we  may  also  refer  to  Hewett  v. 
Chicago,  B.  &  Q.  R.  Co.,  63  Iowa,  611,  19  N.  W.  790,  in  which  it  was 


900  CAUSAL  RELATION  (Part  2 

held  that  neghgent  delay  in  forwarding  goods  which  were  liable  to 
damage  by  freezing  rendered  the  carrier  accountable  for  the  loss  thus 
resulting.  In  that  case  it  is  said  that  while  the  carrier  is  responsible 
for  such  damages  only  as  are  the  proximate  consequence  of  his  own 
acts  and  is  not  accountable  for  such  loss  as  is  occasioned  by  the  inter- 
vention of  the  vis  major,  yet  "one  of  the  undertakings  of  the  common 
carrier  is  that  he  will  not  expose  the  property  entrusted  to  his  care  to 
any  improper  hazards  or  extraordinary  perils,  and  if,  by  his  act  or 
omission,  it  is  exposed  to  perils  or  hazards  which  ordinary  foresight 
could  have  apprehended  and  provided  against,  he  is  accountable  for 
such  injury  as  may  be  occasioned  by  such  exposure."  See,  also, 
Whicher  v.  Steam  Boat  Ewing,  21  Iowa,  240. 

We  are  satisfied  that  the  sounder  reasons,  supported  by  good  au- 
thority, require  us  to  hold  that  in  this  case  the  carrier  is  liable  for  the 
loss  of  and  damage  to  plainti^'s  goods,  and  the  judgment  of  the  trial 
court  is  therefore  reversed.* 

*  Accord,  among  later  cases:  Alabama  G.  S.  R.  Co.  y.  Quarles  &  Coutnrie 
(l»0(j)  145  Ala.  436,  40  South.  120,  5  L.  R.  A.  (N.  S.)  867,  117  Am.  St.  Rei).  54, 
8  Ann.  Cas.  308 ;  Wabash  R.  Co.  v.  Sharpe  (1906)  76  Neb.  424,  107  N.  W.  758, 
124  Am.  St.  Rep.  823 ;  Alabama  G.  S.  R.  Co.  v.  J.  A.  Elliott  &  Son  (1907)  150 
Ala.  381,  43  South.  738,  9  L.  R.  A.  (N.  S.)  1264,  124  Am.  St.  Rep.  72 ;  Central  of 
Georgia  R.  Co.  v.  Sigma  Lumber  Co.  (1910)  170  Ala.  627,  54  South.  205,  Ann. 
Cas.  1912D,  965;  Tate  v.  Missouri  Pac.  Ry.  Co.  (1910)  157  111.  App.  105; 
Sunderland  Bro.s.  Co.  v.  Chicago,  B.  &  Q.  R.  Co.  (1911)  89  Neb.  660,  131  N. 
W.  1047 ;  Jonesboro,  L.  C.  &  E.  R.  Co.  v.  Dunnavant  (1915,  Ark.)  174  S.  W.  1187. 

Contra,  among  later  cases:  Rodgers  v.  Missouri  I'ac.  R.  Co.  (1907)  75  Kan. 
222,  88  Pac.  885,  10  L.  R.  A.  (N.  S.)  658,  121  Am.  St.  Rep.  416,  12  Ann.  Cas. 
441:  (P.  delivered  to  D.  a  railway  company,  at  Frankfort,  Mo.,  on  May  22, 
1903,  a  carload  of  corn,  for  transiX)rtation  and  delivery  to  P.'s  agent  at 
Kansas  City,  Mo.  Through  D.'s  negligence  this  loaded  car  remained  at 
Frankfort  until  May  28,  when  it  was  hauled  to  its  destination.  It  was  there 
destroyed  by  "the  unprecedented  flood  of  May  .30,  1903."  The  court  reviews 
the  authorities  and  holds  the  defendant  not  liable.  The  cases  permitting  a 
recovery  are  disapproved  as  ignoring  "the  justice  and  policy"  of  the  proxi- 
mate cause  principle.)  And  see  the  comment  on  this  case  in  Henry  v.  Atchi- 
son, T.  &  S.  F.  R.  Co.  (1910)  83  Kan.  104,  109  Pac.  1005,  28  L.  R.  A.  (N.  S.)  1088. 


PART  III 

TORTS  THROUGH  ACTS  OF  CONDITIONAL 

LIABILITY 


CHAPTER  I 
NEGLIGENCE 


SECTION  1.— THE  PLACE  OF  NEGLIGENCE  IN  THE  FIELD 

OF  TORTS 

I.  Origin  ojf  Our  Doctrine  of  Ne:guge:nce 


The  original  notion  of  a  tort  to  one's  person  or  property  was  an  In- 
jury caused  by  an  act  of  a  stranger,  in  which  the  plaintiff  did  not  in 
any  way  participate.  A  battery,  an  asportation  of  a  chattel,  an  entry 
upon  land  were  the  typical  torts.  If,  on  the  other  hand,  one  saw  fit 
to  authorize  another  to  come  into  contact  with  his  person  or  property, 
and  damage  ensued,  there  was,  without  more,  no  tort.  The  person 
injured  took  the  risk  of  all  injurious  consequences,  unless  the  other  ex- 
pressly assumed  the  risk  himself,  or  unless  the  peculiar  nature  of  one's 
calling,  as  in  the  case  of  a  smith,  imposed  a  customary  duty  to  act  with' 
reasonable  skill.     *     *     * 

It  is  believed  that  the  view  here  suggested  will  explain  the  following 
passage  in  Blackstone,  which  has  puzzled  many  of  his  readers:  "If  a 
smith's  servant  lames  a  horse  while  he  is  shoeing  him,  an  action  lies 
against  the  master,  but  not  against  the  servant."  ^  This  is,  of  course, 
not  law  to-day,  and  probably  was  not  law  when  written.  Blackstone 
simply  repeated  the  doctrine  of  the  Year-Books.  The  servant  had  not 
expressly  assumed  to  shoe  carefully ;  he  was,  therefore,  no  more  liable 
than  the  surgeon,  the  barber,  and  the  carpenter,  who  had  not  under- 
taken, in  the  cases  already  mentioned.  This  primitive  notion  of  legal 
liability  has,  of  course,  entirely  disappeared  from  the  law.     An  as- 

1  1  HI.  Com.  431. 

(901) 


902  TORTS  THROUGH   ACTS  OF  CONDITIONAL   LIABILITY         (Part  3 

sumpsit  ^  is  no  longer  an  essential  allegation  in  these  actions  of  tort, 
and  there  is,  therefore,  little  or  no  semblance  of  analogy  between- 
these  actions  and  actions  of  contract. 

Tames  Barr  Ames,  "History  of  Assumpsit,"  2  Harv.  Law  Rev.  3,  4 
(1888).^ 


In  later  days,  slowly  and  with  difficulty,  the  court  gave  an  action 
against  the  clumsy  smith  who  lames  the  horse  that  he  is  shoeing,  against 
the  stupid  surgeon  who  poisons  the  wound  that  he  should  cure.  Such 
persons  could  not  be  charged  with  breaking  the  king's  peace  by  force 
and  arms.  We  may  well  doubt  whether  Bracton  or  any  contemporary 
lawyer  would  have  told  them  that  they  had  committed  no  tort;  we 
may  perhaps  doubt  whether  they  could  not  have  successfully  sued  in 
some  of  the  local  courts ;  but  the  king's  justices  were  not  as  yet  busied 
with  these  questions,  and  such  records  of  the  lowlier  tribunals  as  are 
in  print  do  not  hold  out  much  encouragement  to  the  investigator 
who  is  in  search  of  a  medieval  law  of  negligence,  though  he  might 
find  some  rules,  probably  severe  rules,  about  damage  done  by  straying 
cattle,  goring  oxen,  biting  dogs  and  fire.  Hardly  a  germ  is  to  be  found 
of  any  idea  which  will  answer  to  the  Roman  culpa  or  become  our  mod- 
ern negligence. 

Pollock  and  Maitland,  ''History  of  English  Law,"  vol.  2,  527  (1899). 


The  word  "negligentia"  as  used  in  earlier  times,  meant  apparently 
(as  has  been  seen  in  the  action  for  fire)  *  merely  "failure  to  do"  a 
duty  already  determined  to  exist;  thus,  though  the  Courts  constantly 
said  that  "a  man  is  bound  to  keep  his  cattle  in  at  his  peril,"  he  is  some- 
times said  to  be  held  for  "defaut  de  bon  garde" — meaning,  not  care- 
less keeping,  but  merely  failure  to  keep  as  bound;   and  the  misappre- 

2  "The  earliest  cases  in  which  an  'assumpsit'  was  laid  in  the  declaration  were 
cases  against  a  ferryman  who  undertook  to  carry  the  plaintiff's  horse  over  the 
river,  but  who  overloaded  the  boat,  whereby  the  horse  was  drowned;  against 
surgeons  who  undertook  to  cure  the  plaintiff  or  his  animals,  but  who  adminis- 
tered contrary  medicines  or  otherwise  unskillfuUy  treated  their  patient; 
against  a  smith  for  laming  a  horse  wliile  shoeing  it;  against  a  barber  who  un- 
dertook to  shave  the  beard  of  the  plaintiff  with  a  clean  and  wholesome  razor, 
but  who  performed  his  work  negligently  or  unskillfuUy  to  the  great  injury 
of  the  plaintiff's  face ;  against  a  carpenter  who  undertooli  to  build  well  and 
faithfully,  but  who  built'  unskillfuUy.  In  all  these  cases,  it  will  be  observed, 
the  plaintiff'  sought  to  recover  damages  for  a  physical  injury  to  his  person 
or  property  caused  by  the  active  misconduct  of  tlie  defendant.  The  state- 
ment of  the  'assumpsit'  of  the  defendant  was  for  centuries,  it  is  true,  deemed 
essential  in  the  count.  But  the  actions  were  not  originally,  and  are  not 
to-day,  regarded  as  actions  of  contract.  They  have  always  sounded  in 
tort."     James  Barr  Ames,  2  Harv.  Law  Rev.  2,  3  Anglo-Am.  Leg.  Essays,  2G0. 

3  Keprlnted  in  3  Anglo-American  Legal  Essays,  2G1,  262. 
*  See  ante,  "Other  Acts  at  reril," 


Ch.  1)  NEGLIGENCE  903 

hension  of  this  was  probably  the  source  of  Blackstone's  well  known 
misstatement  that  the  action  was  for  "negligently  keeping"  his  cattle. 
It  seems,  then,  that  the  action  on  the  case  based  on  a  mere  negligent 
doing  was  of  little  or  no  consequence  until  the  1800's,  and  that  it  then 
came  about,  partly  through  the  principle  of  consequential  damage  noted 
above,  and  partly  through  the  growing  application  of  the  test  of  negli- 
gence in  Trespass. 

John  H.  Wigmore,  "Tortious  Responsibility,"  7  Harv.  Law  Rev.  453 
(1894).^ 


The  action  on  the  case  was  stretched  to  cover  a  large  number  of  of- 
fences. It  thus,  in  common  speech,  became  the  parent  of  many  special 
actions ;  though  these  differed  from  the  older  actions  in  this  important 
point,  that,  as  they  were  all  commenced  by  the  same  writ,  the  plaintiff 
could  not,  even  before  the  abolition  of  forms  of  action,  be  nonsuited 
for  confusing  one  with  the  other.  Thus  we  get  the  so-called  actions  of 
Trover,  Nuisance,  Assumpsit,  Malicious  Prosecution,  Seduction,  Def- 
amation and  Deceit;  some  of  which,  (e.  g.  Nuisance,  Malicious  Pros- 
ecution, and  Deceit)  have  to  be  rather  carefully  distinguished  from 
older  remedies  for  similar  offences,  which  had,  for  one  reason  or  anoth- 
er, become  obsolete  or  inconvenient.  But  it  is  worth  remarking  that  no 
variation  of  the  Action  on  the  Case  acquired  the  title  of  "Negligence" ; 
and  the  reason  is  substantial  and  interesting.  For  if  we  look  at  those 
early  examples  of  writs  or  declarations  in  Case  which  contain  allega- 
tions of  negligence,  we  shall  find  that,  with  scarcely  an  exception,  they 
are  confined  to  cases  in  which  the  ground  of  the  action  was  an  undertak- 
ing by  the  defendant  and  a  failure  to  perform  that  undertaking.  It  is  fa- 
miliar knowledge,  to  all  who  have  studied  the  history  of  Contract  in 
English  Law,  that  the  grafting  of  the  doctrine  of  Consideration  onto 
this  form  of  action  gave  us  our  law  of  simple  contract.  In  other  words, 
as  the  late  Professor  Ames  has  so  brilliantly  demonstrated,*^  the  insti- 
tution of  the  simple  contract  grew  out  of  the  action  of  Assumpsit, 
which  alleged  negligence  on  the  part  of  the  defendant.  But  what  is 
this  but  to  say  that,  so  far  as  we  can  see,  the  Common  Law  refused  to 
recognize  negligence,  i.  e.  omission  of  a  positive  duty,  as  the  ground 
of  legal  liability ;  except  where  the  defendant  had  expressly  taken 
upon  himself  such  duty,  or  where  (as  in  the  case  of  surgeons,  common 

5  Keprinted  in  3  Anglo-American  Lregal  Essays,  517. 

6  Harvard  l>a\v  Keview,  ii,  pp.  1,  etc. ;  Select  Essays  in  A.-A.  L.  H.  iii,  259. 
"i'rofessor  Ames  seems  to  think  that  charges  of  deceit  and  malice  were  more 
common  than  charges  of  negligence  in  this  direction.  But  charges  of  neg- 
ligence are  not  uncommon  (see  Fitzherbert,  Natura  Brevium,  94b ;  Rastell. 
Entries,  ff.  3b,  3d,  Sa,  9a,  13a,  463b,  4G3c,  463d;  Aston,  pp.  13,  16,  56,  etc.) 
And  the  point  is,  that  charges  of  negligence  were  only  made  in  actions  really 
conti'actual.  Actions  for  breach  of  a  prescriptive  duly  would  fall  under  this 
description ;  for  prescription  at  the  common  law  was  based  on  a  lost  grant. 
But  here,  again,  the  allegation  was  usually  of  malice  and  deceit."  26  Law 
Quarterly  Kev.  162,  note. 


t)04  TORTS   THROUGH   ACTS  OF  CONDITIONAL   LIABILITY         (Part  3 

carriers,  innkeepers,  &c.)  his  profession  or  calling  was  deemed  a  "hold- 
ing out"  to  that  effect  ?     *     *     * 

The  substantial  result  appears  to  be  that,  until  the  end  of  the  eight- 
eenth century,  no  one,  apart  from  statute  and  the  possible  case  of  Nui- 
sance, could  be  held  civilly  liable  for  the  mere  omission  to  perform 
any  positive  duty ;  unless  he  had,  expressly  or  by  implication,  under- 
taken to  perform  that  duty.  The  well  known  decision  in  Ashby  v. 
White,  2  Ld.  Raym.  938,  1  Sm.  L.  C.  (11th  Ed.)  240,  92  Re- 
print, 126,  forbids  us  to  say  that  a  wilful  refusal  to  perform 
a  common  law  duty  was  not  actionable ;  but  Ashby  v.  White  occupied 
a  somewhat  solitary  position  until  the  end  of  the  eighteenth  century. 
With  the  appearance  of  changed  industrial  conditions  in  the  early  nine- 
teenth century,  the  Law  of  Negligence  began  to  expand ;  but,  with  all 
allowance  for  this  recent  expansion,  the  legal  scope  of  non-contractual 
negligence  is  still  far  narrower  than  is  commonly  supposed.     *     *     *  7 

Edward  Jenks,  "On  Negligence  and  Deceit  in  the  Law  of  Torts,"  26 
Law  Quarterly  Review,  160,  165  (1910). 


So.  far  from  being  a  specific  tort,  Negligence  in  itself  is  not  a  tort 
at  all,  but  is  merely  one  of  the  commonest  grounds  of  liability  in  spe- 
cific torts.  Putting  aside  the  few  cases,  such  as  Malicious  Prosecution 
and  Deceit,  where  there  is  no  liability  without  intentional  wrong  doing, 
there  is  no  class  of  tort  that  cannot  be  committed  negligently  as  well 
as  intentionally,  e.  g.  trespass  to  the  person.  Conversely,  every  act 
which  is  a  tort  if  committed  negligently,  will  be  equally  a  tort  if  com- 
mitted intentionally.^  It  would  seem,  then,  that  to  classify  Negligence 
among  specific  torts,  is  like  a  classification  which  would  put  contracts 
for  valuable  consideration  among  specific  contracts,  such  as  Sale,  Hire, 
and  Insurance.'' 

It  is  true  that  in  some  of  the  cases  we  read  of  an  "action  for 
negligence."  This  is  due  to  the  fact  that,  excluding  Trespass,  and  a 
few  of  the  actions  (originally  Actions  on  the  Case)  which  received  dis- 
tinctive names,  e.  g.  Libel,  Trover,  Deceit,  &c.,  no  systematic  classifi- 
cation of  torts  was  attempted  by  the  Common  Law.    There  was  no  ne- 

7  "In  all  probability  it  was  the  general  introduction  of  industrial  machin- 
ery, and  especially  of  mechanical  transit,  which,  for  the  first  time  in  the  His- 
tory of  tlie  English  Law  of  Tort,  produced  the  purely  non-contractual  and  non- 
trespassory  action  founded  on  negligence."  Edward  Jenks,  26  Law  Quarterly 
Keview,  l(j5  (lUlO).  And  see  the  remarks  of  the  same  author  in  his  "Short 
History  of  English  Law,"  311,  312  (1912). 

8  Hut  the  effect  of  the  historic  forms  of  action  in  creating  causes  of  action 
which  stiu  endure  is  to  be  kept  in  mind  in  considering  the  present  doctrine 
of  torts  in  many  American  States.  See  the  cases  given  infra,  "Negligence 
Distinguished  from  Other  Torts."— Ed. 

»  However,  "nearly  all  writers  in  Tort  treat  negligence  as  a  specific  ground 
of  action." 

Compare  Sir  Frederick  Pollock's  Classification  of  Torts,  in  Law  of  Torts 
(7th  Ed.)  pp.  7,  '20.— Ed. 


Ch.  1)  NEGLIGENCE  905 

cessity  to  specify  in  pleading  whether  a  special  Action  on  the  Case  was 
an  action  for  damage  to  the  person,  or  to  the  property,  or  to  some 
other  interest  affected  by  the  wrong.  All  fell  equally  under  the  head- 
ing "Actions  on  the  Case."  But  when  it  was  recognized  that  (in  the 
absence  of  intention)  damage  to  the  plaintiff  was  not  a  ground  of  lia- 
bility, unless  there  was  negligence  on  the  part  of  the  defendant,  negli- 
gence came  to  be  spoken  of  as  the  "gist  of  the  action"  ;  and  an  action  for 
negligence  became  a  common  type  of  Action  on  the  Case. 

The  treatment  of  negligence  as  a  special  kind  of  tort  is  therefore 
a  survival  of  a  classification  of  torts  based  on  the  forms  of  action. 

J.  C.  Miles  "On  the  Treatment  of  Negligence,"  Digest  Eng.  Civil 
Law,  545  (1910). 


II.  Neglige;nce  Distinguished  from  Other  Forms  of  Tort 

MITCHIL  V.  ALESTREE. 

(Court  of  Kings  Bench,  1676.    1  Vent.  29-5,  86  Reprint,  190.) 

In  an  action  upon  the  case  brought  against  the  defendant,  for  that 
he  did  ride  an  horse  into  a  place  called  Lincoln's  Inn  Fields  (a  place 
much  frequented  by  the  King's  subjects,  and  unapt  for  such  purposes) 
for  the  breaking  and  taming  of  him,  and  that  the  horse  was  so  unruly, 
that  he  broke  from  the  defendant,  and  ran  over  the  plaintiff,  and  griev- 
ously hurt  him.  to  his  damages,  &c. 

Upon  not  guilty  pleaded,  and  a  verdict  for  the  plaintiff,  it  was  moved 
by  Simpson  in, arrest  of  judgment,  that  here  is  no  cause  of  action:  for 
it  appears  by  the  declaration,  that  the  mischief  which  happened  was 
against  the  defendant's  will,  and  so  damnum  absque  injuria;  and  then 
not  shewn  what  right  the  King's  subjects  had  to  walk  there;  and  if  a 
man  digs  a  pit  in  a  common  into  which  one  that  has  no  right  to  come 
there,  falls  in,  no  action  lies  in  such  case. 

Curia,  contra.  It  was  the  defendant's  fault,  to  bring  a  wild  horse 
into  such  a  place  where  mischief  might  probably  be  done,  by  reason 
of  the  concourse  of  people.  Lately,  in  this  court  an  action  was  brought 
against  a  butcher,  who  had  made  an  ox  run  from  his  stall  and  gored 
the  plaintiff;  and  this  was  alleged  in  the  declaration  to  be  in  default 
of  penning  him. 

Wylde  said,  If  a  man  hath  an  unruly  horse  in  his  stable,  and 
leaves  open  the  stable  door,  whereby  the  horse  goes  forth  and  does 
mischief ;  an  action  lies  against  the  master. 

TwiSDEX.  If  one  hath  kept  a  tame  fox,  which  gets  loose  and  goes 
wild,  he  that  hath  kept  him  before  shall  not  answer  for  the  damage  the 
fox  doth  after  he  hath  lost  him,  and  he  hath  resumed  his  wild  nature. 
Vide  Hobart's  Reports,  134,  the  case  of  Weaver  and  Ward. 

Judgment  for  the  plaintiff. 


906  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

DAY  V.  EDWARDS. 
(Court  of  King's  Beuch,  1794.     5  Term  R.  648,  101  Repriut,  361.) 

This  was  an  action  on  the  case,  wherein  the  plaintiff  declared,  that 
whereas  on  a  certain  day  he  was  possessed  of  a  certain  four-wheeled 
carriage  called  a  landaulet,  and  of  a  horse  drawing  the  same  along  the 
King's  highway,  called,  &c.  and  the  defendant  on  the  same  day,  &.c. 
was  possessed  of  a  certain  cart  and  horse  drawing  the  same  along  the 
highway  aforesaid,  and  which  were  then  and  there  under  the  direction 
of  the  said  defendant,  nevertheless  the  said  defendant  then  and  there 
so  furiously,  negligently  and  improperly  drove  the  said  cart  and  horse 
of  him  the  said  defendant,  that  by  and  through  the  furious,  negligent, 
and  improper  conduct  of  the  said  defendant  in  that  behalf,  the  said 
cart  was  then  and  there,  to  wit,  &c.  driven  and  struck  with  great  force 
and  violence  upon  and  against  the  said  carriage  of  the  plaintiff,  and 
thereby,  then  and  there  overturned  and  damaged  the  same,  to  the  loss 
of  the  plaintiff',  &c. 

To  this  there  was  a  special  demurrer,  assigning  for  causes,  that  the 
plaintiff,  by  his  said  declaration,  complained  against  the  defendant  as 
if  the  supposed  cause  of  action  in  the  declaration  mentioned  had  been 
a  mere  consequential  injury,  whereas  it  appeared  to  have  been  an  im- 
mediate and  direct  trespass  committed  by  the  defendant  on  the  property 
of  the  plaintiff;  that  the  plaintiff  complained  against  the  defendant,  as 
in  a  plea  of  trespass  on  the  case,  whereas  the  declaration  ought  to  have 
been  in  a  plea  of  trespass  vi  et  armis :  that  the  defendant  was  not,  by 
the  said  declaration,  positively  charged  with  any  of  the  facts  therein  con- 
tained, and  the  same  were  only  charged  by  way  of  recital,  whereas  they 
ought  to  have  been  positively  averred  upon  him ;  and  also,  that  it  was 
not  alleged  that  the  supposed  trespass  was  committed  with  force  and 
arms  nor  against  the  peace,  &c.    Joinder  in  demurrer. 

Baldwin  in  support  of  the  demurrer  was  stopped  by  the  Court. 

Wood  contra.  The  action  on  the  case  for  consequential  damage  is 
properly  conceived,  because  the  act  of  driving  along  the  highway,  in 
consequence  of  which  the  injury  arose,  was  a  legal  one  in  itself,  al- 
though negligently  exercised.  And  where  the  act  itself  is  legal,  and  an 
injury  happens  from  an  improper  exercise  of  it,  an  action  on  the  case 
is  the  proper  remedy.  If  the  declaration  indeed  had  alleged  that  the 
defendant  had  driven  against  the  plaintiff,  there  might  have  been  some 
ground  for  contending  that  trespass  should  have  been  brought :  but 
all  that  is  here  stated  is,  that  he  droVe  furiously  along  the  highway,  in 
consequence  of  which  the  mischief  ensued.  Vide  Slater  v.  Baker,  2 
Wils.  359,  and  Scott  v.  Shepherd,  2  Black.  Rep.  892,  and  3  Wils.  403. 

Lord  Kenyon,  C.  J.  The  distinction  between  the  actions  of  tres- 
pass vi  et  armis  and  on  the  case  is  perfectly  clear.  If  the  injury  be 
committed  by  the  immediate  act  complained  of,  the  action  must  be  tres- 


Ch.  1)  NEGLIGENCE  907 

pass;  if  the  injury  be  merely  consequential  upon  that  act,  an  action 
upon  the  case  is  the  proper  remedy.  In  1  Str.  636,  it  is  said,  "If  a  man 
throw  a  log  into  the  highway,  and  in  that  act  it  hits  me,  I  may  maintain 
the  trespass,  because  it  is  an  immediate  wrong :  but  if,  as  it  lies  there, 
I  tumble  over  it,  and  receive  an  injury,  I  must  bring  an  action  upon 
the  case."  In  the  present  case  the  plaintiff  complains  of  the  immediate 
act,  therefore  he  should  have  brought  trespass. 
Pdr  Curiam.    Judgment  for  the  defendant. 


LEAME  V.  BRAY. 

(Court  of  King's  Bench,  1803.    3  East  593,  102  Reprint,  724.) 

This  was  an  action  of  trespass,  in  which  the  plaintiff  declared  that 
the  defendant  with  force  and  arms  drove  and  struck  a  single-horse 
chaise  which  the  defendant  was  then  driving  along  the  king's  high- 
way with  such  great  force  and  violence  upon  and  against  the  plain- 
tift''s  curricle  drawn  by  two  horses,  and  upon  and  against  the  said 
horses  so  drawing,  &c.,  and  in  which  said  curricle  the  plaintiff  was 
then  and  there  riding  with  his  ser\'ant,  which  servant  was  then  driv- 
ing the  said  curricle  and  horses  along  the  king's  highway  aforesaid, 
that  by  means  thereof  the  plaintiff's  servant  was  thrown  out  of  the 
curricle  upon  the  ground,  and  the  horses  ran  away  with  the  curricle, 
and  while  the  horses  were  so  running  away  with  the  curricle  the 
plaintiff,  for  the  preservation  of  his  life,  jumped  and  fell  from  the 
curricle  upon  the  ground  and  fractured  his  collar  bone,  &c.  Plea,  not 
guilty. 

It  appeared  in  evidence  at  the  trial  before  Lord  Ellenborough,  C. 
J.,  at  the  last  sittings  at  Westminster,  that  the  accident  described  in  the 
declaration  happened  in  a  dark  night,  owing  to  the  defendant  driving 
his  carriage  on  the  wrong  side  of  the  road,  and  the  parties  not  being 
able  to  see  each  other;  and  that  if  the  defendant  had  kept  his  right 
side  there  was  ample  room  for  the  carriages  to  have  passed  without 
injury.  But  it  did  not  appear  that  blame  was  imputable  to  the  de- 
fendant in  any  other  respect  as  to  the  manner  of  his  driving.  It  was 
therefore  objected  for  the  defendant,  that  the  injury  having  happened 
from  negligence,  and  not  wilfully,  the  proper  remedy  was  by  an  action 
on  the  case  and  not  of  trespass  vi  et  armis;  and  the  plaintiff  was 
thereupon  nonsuited. 

Gibbs  and  Park  shewed  cause  against  a  rule  for  setting  aside  the 
non-suit.     *     *     * 

Lord  Ellenborough,  C.  J.  The  true  criterion  seems  to  be  ac- 
cording to  what  Lord  C.  J.  de  Grey  says  in  Scott  v.  Shepherd,  whether 
the  plaintiff  received  an  injury  by  force  from  the  defendant.  If  the 
injurious  act  be  the  immediate  result  of  the  force  originally  applied  by 


908  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

the  defendant,  and  the  plaintiff  be  injured  by  it,  it  is  the  subject  of 
an  action  of  trespass  vi  et  armis  by  all  the  cases  both  ancient  and 
modern.  It  is  immaterial  whether  the  injury  be  wilful  or  not.  As  in 
the  case  alluded  to  by  my  Brother  Grose,  where  one  shooting  at  butts 
for  a  trial  of  skill  with  the  bow  and  arrow,  the  weapon  then  in  use, 
in  itself  a  lawful  act,  and  no  unlawful  purpose  in  view ;  yet  hav- 
ing accidentally  wounded  a  man,  it  was  holden  to  be  a  trespass, 
being  an  immediate  injury  from  an  act  of  force  by  another.  Such 
also  was  the  case  of  Weaver  v.  Ward,  in  Hob.  134,  where  a  like 
unfortunate  accident  happened  whilst  persons  were  lawfully  exer- 
cising themselves  in  anus.  So  in  none  of  the  cases  mentioned  in  Scott 
V.  Shepherd,  2  Black.  895,  did  wilfulness  make  any  difference.  If  the 
injury  were  received  from  the  personal  act  of  another,  it  was  deemed 
sufficient  to  make  it  trespass.  In  the  case  of  Day  v.  Edwards,  5  Term 
Rep.  649,  the  allegation  of  the  act  having  been  done  furiously  was 
understood  to  imply  an  act  of  force  immediately  proceeding  from  the 
defendant.  As  to  the  case  of  Ogle  v.  Barnes,  8  Term  Rep.  188,  I 
incline  to  think  it  was  rightly  decided ;  and  yet  there  are  words  there 
which  imply  force  by  the  act  of  another ;  but,  as  was  observed,  it 
does  not  appear  that  it  must  have  been  the  personal  act  of  the  de- 
fendants ;  it  is  not  even  alleged  that  they  were  on  board  the  ship  at 
the  time :  it  is  said  indeed  that  they  had  the  care,  direction,  and  man- 
agement of  it;  but  that  might  be  through  the  medium  of  other  per- 
sons in  their  employ  on  board.  That  therefore  might  be  sustained  as 
an  action  on  the  case,  because  there  were  no  words  in  the  declaration 
which  necessarily  implied  that  the  damage  happened  from  an  act  of 
force  done  by  the  defendants  themselves.  I  am  not  aware  of  any 
case  of  that  sort  where  the  party  himself  sued  having  been  on  board 
this  question  has  been  raised.  But  here  the  defendant  himself  was 
present,  and  used  the  ordinary  means  of  impelling  the  horse  forward, 
and  from  that  the  injury  happened.  And  therefore  there  being  an  im- 
mediate injury  from  an  immediate  act  of  force  by  the  defendant,  the 
proper  remedy  is  trespass ;  and  wilfulness  is  not  necessary  to  constitute 
trespass. 

LawrKxcU,  J.  I  am  of  the  same  opinion.  It  is  more  convenient 
that  the  action  should  be  trespass,  than  case ;  because  if  it  be  laid  in 
trespass,  no  nice  points  can  arise  upon  the  evidence  by  which  the 
plaintiff  may  be  turned  round  upon  the  form  of  the  action,  as  there 
may  in  many  instances  if  case  be  brought;  for  there  if  any  of  the 
witnesses  should  say  that  in  his  belief  the  defendant  did  the  injury 
wilfully,  the  plaintiff'  will  run  the  risk  of  being  nonsuited.  But  in 
actions  of  trespass  the  distinction  has  not  turned  either  on  the  law- 
fulness of  the  act  from  whence  the  injury  happened,  or  the  design  of 
the  party  doing  it  to  commit  the  injury :  but,  as  mentioned  by  I\Ir.  Jus- 
tice Blackstone  in  the  case  of  Scott  v.  Shepherd,  2  Black.  Rep.  895, 
on  the  difference  between  injuries  direct  and  immediate,  or  mediate 


Ch.  1)  NEGLIGENCE  909 

and  consequential;  in  the  one  instance  the  remedy  is  by  trespass,  in 
the  other  bv  case.  The  same  principle  is  laid  down  in  Reynolds  v. 
Clarke,  2  Ld.  Raym.  1402.     *     *     * 

LE  Blaxc,  J.  *  *  *  If  the  defendant  had  simply  placed  his 
chaise  in  the  road,  and  the  plaintiff  had  run  against  it  in  the  dark, 
the  injury  would  not  have  been  direct,  but  in  consequence  only  of 
the  defendant's  previous  improper  act.  Here  however  the  defendant 
was  driving  the  carriage  at  the  time  with  the  force  necessary  to  move 
it  along,  and  the  injury  to  the  plaintiff  happened  from  that  immediate 
act :  therefore  the  remedy  must  be  trespass :  and  all  the  cases  will 
support  that  principle.  It  is  chiefly  in  actions  for  running  down  vessels 
at  sea  that  difficulties  may  occur ;  because  certainly  the  force  which 
occasions  the  injury  is  not  so  immediate  from  the  act  of  the  person 
steering.  The  immediate  agents  of  the  force  are  the  wind  and  waves, 
and  the  personal  act  of  the  party  rather  consists  in  putting  the  vessel 
in  the  way  to  be  so  acted  upon :  and  w^hether  that  may  make  any  dif- 
ference in  that  case  I  will  not  now  take  upon  me  to  determijie.  But 
here,  where  the  personal  force  is  immediately  applied  to  the  horse 
and  carriage,  the  things  acted  upon  and  causing  the  damage,  like  a 
finger  to  the  trigger  of  a  gun,  the  injury  is  immediate  from  the  act 
of  driving,  and  trespass  is  the  proper  remedy  for  an  immediate  injury 
done  by  one  to  another :  but  where  the  injury  is  only  consequential 
from  the  act  done,  there  it  is  case. 

Rule  absolute.^" 


MORETON  v.  HARDERN  et  al. 
(Court  of  King's  Bench,  1825.    4  Barn.  &  C.  223,  107  Reprint,  1042.) 

Case.  Plea,  general  issue.  At  the  trial,  it  appeared  that  the  defend- 
ants were  the  proprietors  of  a  stage  coach  travelling  from  Congleton 
to  Manchester.  The  plaintiff,  at  the  time  wdien  the  accident  happened, 
was  driving  a  cart  along  the  highroad.  The  coach  was  driven  by  the 
defendant  Hardern,  and  the  coachman  employed  by  the  proprietors  to 
drive  w^as  sitting  by  his  side.  The  coach  ran  against  the  plaintiff,  and 
thereby  caused  the  injury  stated  in  the  declaration.  It  did  not  appear 
that  Hardern  saw  the  plaintiff  at  the  time.  The  jury  found  a  verdict 
for  the  plaintiff,  damages  £200,  and  that  the  accident  was  occasioned  by 
the  negligence  of  the  defendant  Hardern.  A  nonsuit  w-as  thereupon 
entered  and  the  plaintiff"  had  leave  to  move  to  enter  a  verdict  in  his 
favor  for  £200.     A  rule  nisi  for  that  purpose  was  obtained. 

BaylEy,  J.  I  am  of  opinion  that  this  rule  must  be  made  ab- 
solute. The  second  count  of  the  declaration  alleges  that  the  defend- 
ants were  possessed  of  a  certain  coach  and  horses,  which  w^ere  under 

10  Ttie  opinion  of  Grose,  J.,  and  part  of  the  opinions  of  Lawrence  and  Le 
Blanc,  J. J.,  are  omitted. 


910  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

their  care  and  management,  and  that  they  so  carelessly  and  improperly 
governed  and  directed  the  said  horses  and  coach,  that  through  their  cai-e- 
lessness,  negligence,  and  improper  conduct  the  coach  ran  against  the 
plaintiff,  and  injured  him.    The  objection  made  to  that  count  was  that  as 
one  of  the  defendants  was  driving,  the  injury  was  immediate,  and  that, 
consequently,  the  action  should  have  been  trespass,  and  not  case.    It  is 
sufficient  answer  to  say  that  the  plaintiff  had  a  right  to  sue  all  the  de- 
fendants, and  that  trespass  clearly  would  not  lie  against  them  all.      Such 
an  action  might,  perhaps,  have  been  maintained  against  Hardern,  but 
not  against  the  other  defendants.    It  was  long  vexata  qugestio  whether 
an  action  on  the  case  could  be  brought  when  the  defendant  was  per- 
sonally  present   and   acting   in   that    which   occasioned    the   mischief. 
Early  in  my   professional   experience,   case  was  the   form  of   action 
usually  adopted  for  such  injuries.     In  Lord  Kenyon's  time  a  doubt 
was  raised  upon  the  point,  and  he  thought  that  where  the  act  was  im- 
mediately injurious,  trespass  was  the  only  action  that  could  be  main- 
tained for  that  injury.     Leame  v.  Bray  [3  East,  593]  was  an  action 
of  trespass.     At  the  trial  Lord  Ellenborough  thought  it  should  have 
been  case,  but  on  further  consideration  this  court  was  of  opinion  that 
trespass  was  maintainable,  but  they  did  not  decide  that  an  action  on 
the  case  would  have  been  improper.     Looking  at  the  other  cases  on 
the  subject  it  is  difficult  to  say  that  an  action  on  the  case  will  not  lie 
for  an  injury  sustained  through  the  negligent  driving  of  a  coach,  al- 
though  one  of   the   proprietors   was   the  person   guilty  of  that   neg- 
ligence.    In  Ogle  V.  Barnes,  8  T.  R.  188,  which  was  a  case  for  neg- 
ligently steering  a  ship,  the  declaration  alleged  that  the  ship  was  under 
the  care  of  Barnes,  one  of  the  defendants,  and  of  certain  servants  of 
the  defendants,  and  that  through  their  negligence  the  injury  was  sus- 
tained, and  it  was  never  urged  that  the  action  should  have  been  trespass 
and  not  case,  because  one  of  the  defendants  was  on  board,  but  on  the 
ground  of  the  injury  being  immediate.     In  Rogers  v.  Imbleton,  2  N. 
R.  117,  (which  was  decided  after  Leame  v.  Bray,)  it  was  alleged  that 
the  defendant  was  driving  a  cart,  and  took  such  bad  care  of  the  cart 
and  horse,  that  it  ran  with  great  force  against  the  plaintift"'s  horse.    To 
that  there  was  a  demurrer,  upon  the  authority  of  Leame  v.  Bray,  the 
action  being  in  case,  but  the  court  was  clearly  of  the  opinion  that  case 
would  lie,  and  the  demurrer  was  overruled.     In  Huggett  v.   Mont- 
gomery, 2  N.  R.  446,  although  the  defendant  was  on  board,  yet  the 
ship  was  not  under  his  immediate  care  and  management,  but  under 
that  of  a  pilot,  and  on  that  ground,  case  was  held  to  be  the  proper 
form  of  action.     It  is  not  necessary  to  say  that  trespass  could  not,  in 
this  case,  have  been  sustained  against  Hardern.     No  doubt  that  action 
lies  when  the  injury  is  inflicted  by  the  wilful  act  of  the  defendant, 
but  is  also  clear  that  case  will  lie  where  the  act  is  negligent,  and  not 
wilful.     Here  the  report  says,  that  the  injury  was  occasioned  by  the 
negligent  driving  of  the  defendant  Hardern.    I  think,  therefore,  that  as 


Ch.  1)  NEGLIGENCE  911 

the  plaintiff  had  a  right  to  sue  all  the  proprietors  of  the  coach,  and  as 
trespass  would  not  lie  against  them  all,  case  was  the  proper  form  of 
action  to  be  adopted. 
Rule  absolute/^ 


SIMON  et  al.  v.  HExNRY  et  al. 
(Supreme  Court  of  New  Jersey,  1898.    62  N.  J.  Law,  486,  41  Atl.  692.) 

In  this  action  there  was  a  judgment  for  defendants.  Rule  to  show 
cause  why  a  new  trial  should  not  be  granted. 

Dixon,  J  The  plaintiffs  were  the  owners  of  a  factory  on  the 
corner  of  Gardner  street  and  the  boulevard  in  the  town  of  Union, 
Hudson  county ;  and  the  defendants  contracted  with  the  authorities  of 
the  town  to  construct  a  public  sewer  in  the  boulevard.  To  make  the 
necessary  trench,  the  removal  of  trap  rock  was  required,  and  the  de- 
fendants removed  it  by  blasting  with  dynamite.  The  plaintiffs  claim- 
ed that  the  concussion  resulting  from  the  blasts  cracked  the  walls  of 
their  factory,  and  they  brought  this  suit  to  recover  compensation  for 
the  damage.  The  court  charged  the  jury,  in  substance,  that  if,  in 
the  prosecution  of  the  work,  the  defendants  had  exercised  reasonable 
care  and  skill,  they  could  not  be  held  responsible.  On  this  topic  the 
learned  judge  said  to  the  jury: 

"Keasonable  care  *  *  *  is  that  care  which  reasonably  prudent  men  ac- 
quainted with  this  character  of  work,  *  *  *  acting  cautiously  and  pru- 
dently, with  a  desire  to  avoid  injury  to  others,  would  exercise  in  the  per- 
formance of  it.  *  *  *  You  can  take  into  consideration  all  the  circum- 
stances, as  bearing  on  the  question  whether  the  defendants  have  exercised 
that  care  or  not, — the  character  of  the  soil,  the  character  of  the  rock,  what 
they  used  in  blasting  the  rock,  how  they  blasted  it,  the  manner  of  doing  it, 
whether  too  much  of  explosives  was  used,  whether  the  drill  holes  were  too  far 
apart,  whether  they  endeavored  to  take  out  too  much  rock  at!  one  time,  in 
length  or  in  depth,  the  ijroximity  to  the  building,  and  the  injury.  All  of  the 
conditions  there  are  for  you  to  determine,  as  bearing  upon  the  question  of 
the  exercise  of  reasonable  care.  Blasting  close  by  a  building  necessarily 
would  require  a  high  degree  of  care — perhaps  the  highest  degree  of  care — 
to  protect  the  building  from  injury.  It  all  comes  under  the  term  'reasonable,' 
after  all,  dei>ending  upon  all  the  circumstances  surrounding  it." 

Under  this  charge  the  jury  found  for  the  defendants,  and  the  plain- 
tiffs now  seek  to  set  aside  the  verdict,  on  the  ground,  mainly,  that 
the  defendants  are  responsible  even  though  they  did  exercise  reason- 
able care  and  skill.  To  support  this  position,  they  rely  chiefly  on  the 
case  of  McAndrews  v.  Collerd,  42  N.  J.  Law,  189,  36  Am.  Rep.  508. 
where  the  court  of  errors  held  that  one  who  maintains  a  public  nui- 
sance is  liable  for  the  damage  thereby  caused,  notwithstanding  his 
exercise  of  all  possible  skill  and  care  to  prevent  harm.  To  come  with- 
in the  range  of  this  decision,  the  plaintiffs  must  make  out  that  the 

11  The  statement  of  facts  is  abridged.  The  arguments  of  counsel  and  the 
opinions  of  Holroyd  and  Littledale,  JJ.,  concurring  with  Bayley,  J.,  are  omit- 
ted. 


912  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

blasting  of  rock  by  dynamite  in  the  construction  of  a  public  sewer 
through  a  highway  is  per  se  a  nuisance.  The  evidence  in  this  case  by 
no  means  tended  to  establish  such  a  proposition.  On  the  contrary, 
it  was  to  the  effect  that  blasting  was  the  only  practicable  mode  of 
removing  the  rock ;  that  dynamite  was  an  explosive  often  used  in 
such  work;  and  that,  if  used  with  reasonable  care  and  skill,  it  was 
as  safe  as  other  explosives.  The  proposition  therefore  would  fall, 
unless  it  should  be  held  that  the  building  of  public  sewers  in  streets 
laid  over  rock  would  necessarily  create  a  nuisance ;  and  for  this  the 
plaintiffs  do  not  contend.  Nor  do  we  think  it  accords  with  common 
experience  that  the  careful  and  skillful  use  of  these  explosives  in- 
volves more  danger  to  person  or  property  than  such  use  of  various 
other  forces  which  science  has  discovered,  and  which,  in  their  general 
effect,  promote  the  convenience  and  progress  of  society,  and  are  there- 
fore recognized  as  lawful  agencies.  In  McAndrews  v.  CoUerd,  ubi 
supra,  the  nuisance  consisted,  not  in  the  use  of  explosives,  but  in  the 
maintenance  of  a  magazine  where  a  large  quantity  was  stored.  In 
Booth  V.  Railroad  Co.,  140  N.  Y.  267,  35  N.  E.  592,  24  L.  R.  A.  105, 
37  Am.  St.  Rep.  552,  and  in  French  v.  \'ix.,  143  N.  Y.  90,  Z7  N.  E. 
612,  it  was  held  that  the  temporary  use  of  explosives  in  the  blasting 
of  rock,  provided  reasonable  care  be  exercised,  is  lawful,  and  damage 
resulting  from  concussion  thereby  produced  is  damnum  absque  injuria. 
\\'e  find  no  contrary  decision.  On  this  point,  therefore,  the  plaintiffs 
have  no  cause  of  complaint.^ ^  *  *  * 
The  rule  to  show  cause  is  discharged. 


O'BRIEN  v.  LOOMIS. 

(St.  IxMiis  Court  of  Appeals,  Missouri,  1S90.    43  Mo.  App.  29.) 

This  was  a  joint  action  against  father  and  son,  the  latter  an  infant 
of  about  ten  years,  to  recover  damages,  for  an  injury  to  the  plaintiff, 
caused  by  a  gunshot  wound,  inflicted  by  the  son.  A  demurrer  by  the 
father  having  been  sustained,  final  judgment  was  rendered  upon  it  in 
his  favor,  and  the  case  proceeded  against  the  son  alone.  The  answer 
contained  a  general  denial.  There  was  a  verdict,  with  judgment  for 
$2,500,  from  which  the  defendant  prosecutes  this  appeal.  Errors  were 
assigned  in  the  following  instructions,  among  others: 

"If  the  jury  find  from  the  evidence  in  this  case  that  the  act  of  the  boy 
in  shooting  plaintiff  was  either  intentional  or  done  without  the  exercise  of 
ordinary  care  on  the  part  of  the  defendant,  and  was  a  nesHsent  act,  consid- 
eriii},'  his  ajre  and  discretion,  then  plaintiff  is  entitled  to  recover." 

"If  the  jury  find  from  the  evidence  that  the  defendant  Henry  T^oomis  shot 
plaintiff"  with  a  bullet  fired  from  the  gun  mentioned  in  the  evidence ;  and 
if  the  jury  further  find  from  the  evidence  tliat  the  said  Henry  Ixiomis  in- 
tentionally fired  said  gun  at  the  plaintiff",  intending  to  wound  or  injure  the 

li  I'arts  of  the  opinion  are  omitted. 


Ch.  1)  NEGLIGENCE  913 

plaintiff,  then  plaintiff  is  entitled  to  recover  such  dainases  as  the  .iury  may 
Relieve  from  the  evidence  will  be  a  fair  compensation  to  her  for  the  injury 
received."  is 

Thompson,  J.  We  are  of  opinion  that  there  is  a  fundamental  er- 
ror running  through  these  instructions,  in  that  they  authorize  a  re- 
covery on  the  hypothesis  of  the  injury  having  been  "intentional."  or 
that  the  gun  was  fired  "intentionally"  at  the  plaintiflf,  the  defendant 
"intending  to  wound  and  injure  her" ;  whereas  the  petition  does  not 
allege  that  the  injury  was  wilful  or  intentional,  but  alleges  that  it  was 
negligent.  Rectirring  to  the  petition,  it  will  be  seen  that  it  is  un- 
fortunate in  having  been  drawn  to  charge  both  the  father  and  the  son, 
and  in  being  the  petition  on  which  the  case  proceeded  after  final  judg- 
ment had  been  rendered  for  the  father  on  demurrer.  It  charges  that 
the  defendant,  Henry,  was  "reckless,"  and  that  he  "had  little  or  no 
discretion,"  and  it  also  charges  that  the  injury  happened  "through  his 
said  reckless  habit  and  want  of  discretion" ;  and  it  does  not  charge 
that  it  happened  in  any  other  manner.  Webster  defines  the  word 
"reckless,"  as  "rashly  or  indifferently  negligent ;  careless ;  heedless ; 
mindless."  The  petition,  therefore,  claims  damages  for  an  injury  the 
result  of  negligence,  and  the  instruction  authorizes  the  jury  to  give 
damages  on  the  hypothesis  of  wilfulness,  and  an  intent  to  injure.  We 
are  of  opinion  that  this  case  falls  within  the  well-settled  rule  that  the 
issues  made  by  the  pleadings  cannot  be  broadened  by  the  instructions. 

It  is  true  that,  under  our  system,  as  at  common  law,  the  plaintiff 
may  bring  an  action  for  a  direct  injury,  such  as  shooting  and  wound- 
ing, by  a  petition  in  the  form  of  a  declaration  in  the  common-law  ac- 
tion of  trespass,  charging  in  the  barest  terms  that  the  defendant  un- 
lawfully and  wrongfully  inflicted  the  injury  upon  the  plaintiff',  and 
that  he  can  then  recover  on  proof  that  the  injury — provided  it  be  the 
direct  injury  alleged — was  the  result  of  negligence  merely.  Conway 
V.  Reed,  66  Mo.  346,  27  Am.  Rep.  354.  The  reason  was  that  in  the 
case  of  a  direct  injury  proceeding  from  the  plaintiff  to  the  defendant, 
nothing  excused  it  short  of  proof  that  the  injury  was  unavoidable. 
Weaver  v.  W^ard,  Hobart,  134.  That  a  plaintiff  could  sue  in  tres- 
pass and  recover  for  a  direct  injury,  either  on  proof  that  the  injury 
was  intentional  or  negligent  has  been  familiar  learning  to  the  pro- 
fession ever  since  the  celebrated  "Squib  Case,"  Scott  v.  Sheppard,  2 
W.  Bl.  892.  See  Morgan  v.  Cox,  22  Mo.  Z7Z,  66  Am.  Dec  623; 
Castle  V.  Duryee,  *41  N.  Y.  (2  Keyes)  169. 

But  the  policy  of  our  code  of  procedure  is  to  require  the  party  to 
state  in  his  pleadings  his  real  ground  of  action  or  defense;  and,  if  he 
chooses  one  ground,  he  cannot  so  enlarge  it  as  to  recover  on  another. 
This  is  in  accordance  with  what  is  said  on  one  of  the  opening  pages 
of  a  standard  work  in  respect  of  actions  for  damages  for  negligence : 

13  The  statement  of  the  facts  is  abridged. 
Hepb. Torts — 58 


914  TORTS  THROUGH   ACTS   OF  CONDITIONAL   LIABILITY         (Part  3 

"It  is  clear  that  a  plaintiff  may  elect  between  suing  upon  a  charge 
of  wilful  injury,  or  a  mere  charge  of  negligence,  wherever  the  facts 
are  susceptible  of  a  double  construction.  It  does  not  lie  with  the 
defendant  to  insist  that  he  has  been  criminal  instead  of  merely  care- 
less. In  making  his  election,  however,  the  plaintiff  must  remember 
that  he  will  be  bound  by  it.  If  the  complaint  sets  up  a  case  of  wilful 
injury,  it  cannot  be  sustained  by  evidence  of  mere  negligence,  however 
gross ;  while,  on  the  other  hand,  if  it  charges  negligence  only,  the 
plaintiff  cannot  put  in  evidence,  the  only  relevancy  of  which  consists 
in  proving  intentional  injury,  such  as  would  sustain  an  entirely  differ- 
ent action."    Shearman  and  Redfield  on  Negligence  (4th  Ed.)  §  7. 

We  have  been  able  to  find  no  case,  decided  in  this  state,  in  which  a 
party  sued  on  the  theory  of  negligence  and  recovered  on  the  theory  of 
wilfulness  or  malice,  nor  indeed  any  case  where  such  a  thing  was 
attempted.  But  this  is  probably  evidence  of  an  understanding  on  the 
part  of  the  profession  that  such  a  thing  cannot  be  done.  We  have, 
however,  been  referred  to  several  decisions  of  the  supreme  court  of 
Indiana,  which  proceed  on  the  distinction  between  actions  grounded 
on  negligence  and  actions  grounded  on  wilfulness,  which  is  stated  by 
the  above-named  authors.  Pennsylvania  Co.  v.  Sinclair,  62  Ind.  301, 
30  Am.  Rep.  185 ;  Pennsylvania  Co.  v.  Smith,  98  Ind.  42 ;  Cincinnati, 
etc.,  R.  Co.  V.  Eaton,  53  Ind.  307;  Terre  Haute,  etc.,  R.  Co.  v.  Graham, 
95  Ind.  286,  48  Am.  Rep.  719.  In  Pennsylvania  Co.  v.  Smith,  supra, 
it  is  held  that  under  an  averment  of  negligence  there  can  be  no  recovery 
for  a  wilful  injury. 

The  decisions  in  this  state  present  many  analogous  rulings,  which 
go  to  show  that  such  a  recovery  cannot  be  had.  Thus  Hubbard  v. 
Railroad,  63  Mo.  68,  is  to  the  effect  that  a  plaintiff  cannot  sue  in 
trespass  for  a  wrongful  entering  and  recovery  on  proof  that  posses- 
sion was  obtained  by  fraud.  In  Martin  v.  Miller,  20  Mo.  391  (which 
was  an  action  commenced  before  the  code),  it  was  held  that  the  plain- 
tiff could  not  set  out  in  his  declaration  that,  on  a  certain  day  of 
the  month,  in  a  certain  year,  the  defendant,  "wrongfully,  negligently 
and  unjustly,"  set  out  a  certain  fire  which  did  damage  to  the  plaintiff, 
and  then  recover  by  merely  proving  that  that  day  was  Sunday,  and 
that  the  defendant,  in  setting  the  fire,  was  at  work  on  Sunday  in 
violation  of  the  statute.  And  cases  in  this  state  are  numerous,  where 
it  has  been  held  that  a  plaintiff  cannot  sue  for  damages  for  negli- 
gence consisting  of  a  particular  thing,  and  then  recover  for  negligence 
consisting  in  something  else.  That  the  action  for  negligence  is  es- 
sentially dift'erent  from  the  action  for  a  wilful  and  intentional  injury, 
is  suggested  by  the  last  of  the  above  instructions,  where  the  learned 
judge  correctly  told  the  jury  that  contributory  negligence  was  a  de- 
fense in  the  former  case,  but  not  in  the  latter. 

If,  then,  the  issues  made  by  the  pleadings  were  not  large  enough 
to  embrace  the  hypothesis  of  a  wilful  or  intentional  injury,  it  was 
error  for  the  court  to  instruct  the  jury  on  such  a  theory,   although 


Ch.  1)  NEGLIGENCE  915 

the  evidence,  in  a  proper  state  of  the  pleadings,  might  have  warrant- 
ed such  an  instruction ;  for  our  procedure  is  very  strict  to  the  effect 
that  it  is  error  to  submit  to  the  jury  an  issue  of  fact  not  made  by 
the  pleadings.  ]\Ielvin  v.  Railroad,  89  Mo.  106,  1  S.  W.  286;  Kenney 
V.  Railroad,  70  Mo.  252;  Benson  v.  Railroad,  78  Mo.  504,  513; 
Fulkerson  v.  Thornton,  68  ]\Io.  468. 


BARRETT  v.  CLEVELAND,  C,  C.  &  ST.  L.  RY.  CO. 
(Appellate  Court  of  Indiana,  1911.    48  Ind.  App.  668,  96  N.  E.  490.) 

Action  against  the  railway  company  to  recover  damages  for  break- 
ing down  a  tile  drain  on  the  right  of  way  and  under  the  tracks  of 
the  defendant  From  a  judgment  for  the  defendant,  the  plaintiff 
appeals. 

Adams,  j,  *  *  *  Xhe  sufficiency  of  the  complaint,  therefore, 
is  the  only  question  to  be  determined  upon  this  appeal.  Preliminary 
to  the  consideration  of  the  main  question,  however,  the  nature  of 
the  action  set  forth  in  the  complaint  must  be  determined.  It  will  be 
noted  that  the  act  complained  of  is  that  the  tile  in  the  ditch  was 
negligently,  willfully,  and  purposely  broken  by  the  appellee  at  a  point 
under  its  main  track  and  on  its  right  of  way.  It  is  clear  that  an  act 
could  not  be  done  both  willfully  and  negligently.  Willfulness  and 
negligence  are  diametrically  opposite  to  each  other.  One  imports 
inattention,  inadvertence,  and  indifference,  while  the  other  imports 
intention,  purpose,  and  design.  There  can  be  no  negligence  with  in- 
tent, and  no  willfulness  without  intent.  It  does  not  strengthen  a 
pleading  to  allege  both  negligence  and  willfulness.  The  action  must 
be  predicated  upon  one  theory  or  the  other.  Miller  v.  Miller,  17  Ind. 
App.  608,  609,  47  N.  E.  338;  Louisville,  etc.,  R.  Co.  v.  Bryan,  107 
Ind.  51,  54,  7  N.  E.  807.  "'The  pleader  is  not  at  liberty  to  leave 
his  pleading  open  to  different  constructions,  and  then  take  his  choice 
between  them.'  [Van  Etten  v.  Hurst  (1844),  6  Hill  (N.  Y.)  311,  41 
Am.  Dec.  748.]  Facts  must  be  stated  directly  and  positively,  and 
not  indirectly  nor  in  the  alternative."  Langsdale  v.  Woollen,  Adm'r, 
120  Ind.  78,  80,  21  N.  E.  541.  *  *  *  in  Gregory,  Adm'r,  v. 
C,  C,  C.  &  I.  Ry.  Co.,  112  Ind.  387,  14  N.  E.  229,  it  is  said: 
"There  is  a  clear  distinction  between  the  cases  which  count  upon  neg- 
ligence as  a  ground  of  action  and  those  which  are  founded  upon  acts 
of  aggressive  wrong  or  willfulness,  and  a  pleading  should  not  be  tol- 
erated which  proceeds  upon  the  idea  that  it  may  be  good  either  for 
a  willful  injury  or  as  a  complaint  for  an  injury  occasioned  by  negli- 
gence. It  should  proceed  upon  one  theory  or  the  other,  and  is  to  be 
judged  from  its  general  tenor  and  scope."  In  the  same  case,  at 
page  387,  of  112  Ind.,  at  page  229  of  14  N.  E.,  it  is  said:  "It  is 
only  necessary  to  charge  in  a  complaint  which  seeks  redress  for  a 
willful  injury  that  the  injurious  act  was  purposely  and  intentionally 


916  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

committed  with  the  intent  willfully  and  purposely  to  inflict  the  injury 
complained  of."     *     *     * 

To  constitute  a  willful  injury,  the  act  which  produced  it  must  have 
been  intentional,  or  must  have  been  done  under  such  circumstances 
as  evinced  a  reckless  disregard  for  the  safety  of  others,  and  a  will- 
ingness to  inflict  the  injury  complained  of.  It  involves  conduct  which 
is  quasi  criminal.  Louisville,  etc.,  R.  Co.  v.  Bryan,  107  Ind.  51,  7 
N.  E.  807.  The  breaking  of  the  tile  is  declared  in  the  complaint  be- 
fore us  to  have  been  done  negligently  and  willfully.  As  we  have 
seen,  the  injury  could  not  have  resulted  from  both  negligence  and 
willfulness,  and  it  is  for  the  court  to  determine  the  theory  of  the 
complaint  from  its  tenor  and  scope,  without  reference  to  the  charac- 
terization of  the  act  complained  of.  In  this  we  are  not  greatly  aided 
by  the  averments  of  the  complaint.  It  is  not  shown  in  what  manner 
the  tile  was  broken,  nor  the  means  employed  in  the  breaking,  but  it 
is  averred  that  the  same  was  broken  under  the  main  track,  and  upon 
the  appellee's  right  of  way.  This,  as  well  as  the  fact  that  the  word 
"negligently"  is  given  precedence,  would  seem  to  negative  the  idea 
of  willfulness.  It  is  highly  improbable  that  appellee  would  seek  to 
injure  the  appellant  at  a  place  and  in  a  manner  involving  danger  and 
inconvenience  to  it,  when  the  same  thing  might  have  been  done  more 
easily  elsewhere  on  the  right  of  way.  We  are,  therefore,  constrained 
to  hold  that  the  words  "willfully  and  purposely"  do  not  control,  but 
that  the  complaint  is  one  for  injury  occasioned  by  negligence.  Miller 
V.  Aliller,  supra;  Chicago,  etc.,  Ry.  Co.  v.  Hedges,  Adm'x,  105  Ind. 
398,  7  N.  E.  801 ;    Cleveland,  etc.,  Ry.  Co.  v.  Asbury,  120  Ind.  289, 

22  N.  E.   140;    Louisville,  etc.,  Ry.  Co.  v.  Schmidt,   106  Ind.  7Z,  5 
N.  E.  684;    Sherfey,  AdnVr,  v.  Evansville,  etc.,  R.  Co.,  121  Ind.  427, 

23  N.  E.  273.^* 


SECTION  2.— ELEMENTS  OF  A  PRIMA  FACIE  CASE  IN 

NEGLIGENCE 

I.  The:  Defendant's  Duty  to  Use  Car^ 

(A)  hi  General 


GILES  v.  WALKER. 

(Queen's  Bench  Division,  1890.     24  Q,  B.  Div.  C5G.) 

Appeal  from  the  Leicester  County  Court. 

The  defendant,  a  farmer,  occupied  land  which  had  originally  been 
forest  land,  but  which  had  some  years  prior  to  1883,  when  the  defend- 
ant's occupation  of  it  commenced,  been  brought  into  cultivation  by  the 

n  I'arts  of  the  opinion  are  omitted. 


Ch.  1)  NEGLIGENCE  917 

then  occupier.  The  forest  land  prior  to  cultivation  did  not  bear 
thistles;  but  immediately  upon  its  being  cultivated  thistles  sprang 
up  all  over  it.  The  defendant  neglected  to  mow  the  thistles  periodi- 
cally so  as  to  prevent  them  from  seeding,  and  in  the  years  1887  and 
1888  there  were  thousands  of  thistles  on  his  land  in  full  seed.  The 
consequence  was  that  the  thistle  seeds  were  blown  by  the  wind  in 
large  quantities  on  to  the  adjoining  land  of  the  plaintiff,  where  they 
took  root  and  did  damage.  The  plaintiff  sued  the  defendant  for  such 
damage  in  the  county  court.  The  judge  left  to  the  jury  the  question 
whether  the  defendant  in  not  cutting  the  thistles  had  been  guilty 
of  negligence.  The  jury  found  that  he  was  negligent,  and  judgment 
was  accordingly  entered   for  the  plaintiff.     The  defendant  appealed. 

Toller,  for  the  defendant.  The  facts  of  this  case  do  not  establish 
any  cause  of  action.  The  judge  was  wrong  in  leaving  the  question 
of  negligence  to  the  jury.  Before  a  person  can  be  charged  with 
negligence,  it  must  be  shewn  that  there  is  a  duty  on  him  to  take 
care.  But  here  there  is  no  such  duty.  The  defendant  did  not  bring 
the  thistles  on  to  his  land ;  they  grew  there  naturally.  (He  was  stop- 
ped by  the  Court.) 

R.  Bray,  for  the  plaintiff.  *  *  *  The  case  resembles  that  of 
Crowhurst  v.  Amesham  Burial  Board,  4  Ex.  D.  5,  where  the  de- 
fendants were  held  responsible  for  allowing  the  branches  of  their 
3'ew  trees  to  grow  over  their  boundary,  whereby  a  horse  of  the 
plaintiff,  being  placed  at  pasture  in  the  adjoining  field,  ate  some  of 
the  yew  twigs  and  died. 

Lord  Coleridge,  C.  J.  I  never  heard  of  such  an  action  as  this. 
There  can  be  no  duty  as  between  adjoining  occupiers  to  cut  the 
thistles,  which  are  the  natural  growth  of  the  soil.  The  appeal  must 
be  allowed. 

T.ORD  EshEr.  M.  R.     I  am  of  the  same  opinion. 

Appeal  allowed.^^ 

15  Accord:  Harndon  v.  Stnltz  (1904)  124  Iowa,  734,  100  N.  W.  851:  (P.  com- 
plains that  1).  bas  allowed  noxious  weeds  to  grow  in  large  quantities  upon  his 
land  in  close  proximity  to  the  division  line  between  the  farms  of  P.  and  D., 
and  that  the  wind  has  carried  the  seeds  over  P.'s  land,  to  his  damage.) 

Langer  v.  Goode  (1911)  21  N.  D.  462,  131  N.  W.  258,  Ann.  Cas.  1913D,  429: 
(P.  sued  to  recover  his  damage  because  D.  had  neglected  to  destroy  wild  mus- 
tard seed  growing  in  his  fann.  A  statute  required  that  every  person  destroy 
upon  all  lands  owned  or  occupied  by  him  all  wild  mustard  there  growing, 
when  the  board  of  county  commissioners  had  prescribed  the  time  and  manner 
of  destruction.  "Therefore,"  said  P>urr,  J.,  delivering  the  opinion,  "no  duty 
devolves  upon  any  one  to  destroy  these  noxious  weeds  until  the  board  of 
county  commissioners  prescribes  the  time  and  manner  of  destruction.  It  being 
concedetl  that  such  action  was  never  taken  by  the  board,  then  no  duty  devolv- 
ed upon  the  defendant.") 


918  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

HADWELL  V.  RIGHTON. 

(King's  Bench  Division.     [1907]  2  K.  B.  345.) 

Appeal  from  the  Birmingham  County  Court. 

The  plaintiff  was  riding  a  bicycle  at  the  rate  of  about  six  miles 
an  hour  down  a  highway  called  Bordesley  Park  Road,  when  he  saw 
in  front  of  him,  on  the  footpath  three  fowls.  When  he  got  abreast 
of  the  fowls  all  three  suddenly  fluttered  up,  and  one  of  them  flew 
into  the  spokes  of  his  bicycle  and  he  was  upset,  with  the  result  that 
he  suffered  personal  injuries  and  his  bicycle  was  damaged.  The 
fowls  were  the  property  of  the  defendant,  who  occupied  premises 
on  the  side  of  the  road  opposite  to  the  footpath  on  which  the  fowls 
were  immediately  before  the  accident.  The  cause  of  the  fowls  start- 
ing to  fly  across  the  road  was  that  they  were  frightened  by  a  dog 
which  came  out  of  the  premises  adjoining  those  of  the  defendant  on 
which  the  fowls  were  kept,  and  either  ran  at  or  barked  at  them.  The 
plaintiff  was  riding  carefully,  and  the  accident  happened  through  no 
fault  of  his.  The  defendant  knew  that  the  fowls  were  in  the  habit 
of  straying  out  into  the  road.  The  county  court  judge  held  that  the 
damage  was  too  remote  a  consequence  of  their  being  allowed  to 
stray  there,  and  gave  judgment  for  the  defendant.  The  plaintiff  ap- 
pealed. 

Avory,  K.  C,  and  Siniey,  for  the  plaintiff.  The  owner  of  an  ani- 
mal is  liable  for  its  trespasses.  He  keeps  it  at  his  peril,  and  if  it 
escapes  from  his  premises  he  is  responsible  for  any  damage  that  natu- 
rally results  from  its  escape.  *  *  *  The  case  of  Lee  v.  Riley 
(1865)  18  C.  B.  (N.  S.)  722,  supports  the  plaintift"'s  contention.  There 
the  defendant's  mare  strayed  into  a  field  of  the  plaintiff'  in  which 
was  a  horse.  From  some  unexplained  cause  the  animals  quarrelled, 
and  the  defendant's  mare  kicked  the  plaintiff's  horse  and  damaged 
it.  It  was  held  that  the  damage  was  not  too  remote.  And  the  case 
of  Ellis  V.  Loftus  Iron  Co.  (1874)  L.  R.  10  C.  P.  10,  where  the 
facts  were  very  similar,  was  decided  in  the  same  way.     *     *     * 

Bray,  J.  I  am  of  the  same  opinion.  We  cannot  decide  this  case 
in  the  plaintiff's  favor  without  overruling  Cox  v.  Burbidge,  13  C.  B. 
(N.  S.)  430.  We  have  no  power  to  overrule  it,  nor  should  I  be  in- 
clined to  exercise  that  power  if  we  could.  It  is  said  that  the  fowl 
was  trespassing.  But  the  cases  which  were  relied  upon  as  shewing 
that  that  would  give  a  cause  of  action  were  cases  in  which  the  plain- 
tiff was  the  owner  of  the  soil  on  which  the  trespass  was  committed, 
and  are  consequently  not  in  point,  for  here  the  cyclist  had  no  interest 
in  the  soil  of  the  highway.  The  plaintiff's  case  could  only  be  rested 
on  the  ground  of  negligence,  as  in  the  case  of  Harris  v.  Mobbs,  3 
Ex.  D.  268,  where  the  defendant  left  a  house  van  on  the  gras- 
sy side  of  the  highway  for  the  night,  and  a  horse  being  driven 
along  the  road  was  frightened  by  it  and  bolted.     Denman,  J.,  there 


Ch."  1)  NEGLIGENCH  919 

held  the  defendant  responsible  for  the  consequences,  but  he  did  so 
on  the  ground  that  the  jury  had  in  effect  found  "that  there  was  an 
unreasonable  and  dangerous  occupation  of  a  part  of  the  highway 
amounting  to  an  obstruction  and  preventing  of  its  free  user  by  the 
public  to  an  extent  which  was  unreasonable."  Where  is  there  any- 
thing dangerous  in  letting  fowls  stray  on  a  highway?  The  business 
of  farming  could  not  be  conveniently  carried  on  if  such  an  act  were 
not  permissible.  Homesteads  are  usually  near  a  road,  and  it  is  prac- 
tically impossible  to  keep  fowls  in.  I  should  not  hesitate  to  find 
that  there  was  no  danger  at  all  in  allowing  them  so  to  stray.  Such 
an  accident  as  this  I  have  never  heard  of  before.  And,  in  the  ab- 
sence of  anticipated  danger,  there  is  no  room  for  the  suggestion  of 
negligence. 

Appeal  dismissed.^* 


PITTSBURG,  FT.  W.  &  C.  RY.  CO.  et  al.  v.  BINGHAM. 
(Supreme  Court  of  Ohio,  1876.    29  Ohio  St.  364.) 

The  original  action  was  brought  by  the  defendant  in  error,  as  the 
personal  representative  of  her  deceased  husband,  against  the  railway 
company,  under  the  act  requiring  compensation  to  be  made  for  caus- 
ing death  by  a  wrongful  act,  neglect  or  default.  The  deceased  was 
at  the  defendant's  station-house  in  Massillon,  on  December  5,  1870, 
and  while  there  was  struck  by  a  portion  of  its  roof,  torn  off  by  the 
wind,  and  blown,  during  a  violent  storm,  from  the  building,  with 
such  force  against  him  as  to  cause  his  death.  The  defendants  were 
charged  with  negligence  in  the  construction  and  maintenance  of  the 
station-house. 

Issue  was  joined  upon  the  question  of  negligence.  The  evidence 
tended  to  show  that  the  deceased,  at  the  time  of  receiving  the  injury 
resulting  in  his  death,  was  at  this  passenger  station,  not  for  the  pur- 
pose of  transacting  any  business  with  the  company,  its  agents  or  serv- 
ants, or  with  any  one  rightfully  there,  nor  on  business  in  any  wise 
connected  with  the  operation  of  the  road;  but  being  out  of  employ- 
ment was  there  for  pastime  or  pleasure,  or  as  a  place  of  safety  dur- 
ing the  continuance  of  a  violent  storm.  After  the  testimony  was 
concluded,  the  court  instructed  the  jury: 

That  if  the  deceased  was  at,  in  or  near  the  said  depot,  not  on  any  business, 
but  "was  there  by  the  tacit  permission  of,  and  without  objection  from."  the 
company  operating  the  road,  "its  aj-'ents  and  servants,  and  there  peaceably  and 
innocently,  relying  upon  such  station-house  as  a  place  of  security,"  and  was 
free  from  negligence  contributing  to  his  injury-  and  consequent  death,  and 
ordinary  care  and  skill  was  not  employed  in  the  construction  and  mainte- 
nance of  the  station-house,  but  from  want  of  such  care  and  skill  it  was  de- 
fectively and  insufficiently  constructed,  and  huprudently  and  negligently  main- 
tained and  used,  and  by  reason  thereof  the  deceased  lost  his  life,  the  company 
was  liable. 


16  The  opinion  of  I'hillimore,  J.,  is  omitted. 


920  TORTS  THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  ? 

The  defendant  excepted  to  that  part  of  the  charge  that  held  it 
to  be  the  duty  of  the  company  to  have  exercised  due  care  in  the  con- 
struction and  maintenance  of  the  building,  if  the  deceased  entered 
and  was  there  by  "mere  permission  and  without  objection";  and  from 
a  judgment  against  it,  carried  the  cause  to  the  district  court,  where 
the  judgment  of  the  common  pleas  was  affirmed.  A  petition  in 
error  is  now  prosecuted  to  reverse  both  judgments.^^ 

BoYNTON,  J.  We  find  in  the  record  of  the  present  case  among  the 
questions  argued,  but  one  deserving  consideration ;  and  that  one  may 
be  stated  as  follows :  "Is  a  railroad  company  bound  to  exercise  ordi- 
nary care  and  skill  in  the  erection,  structure,  or  maintenance  of  its  sta- 
tion-house or  houses,  as  to  persons  who  enter  or  are  at  the  same,  not 
on  any  business  with  the  company  or  its  agents,  nor  on  any  business 
connected  with  the  operation  of  its  road;  but  are  there  without  objec- 
tion by  the  company,  and  therefore  by  its  mere  sufferance  or  permis- 
sion ? "     *     *     * 

Actional  negligence  exists  only  where  the  one  whose  act  causes  or 
occasions  the  injury  owes  to  the  injured  person  a  duty,  created  either 
by  contract  or  by  operation  of  law,  which  he  has  failed  to  discharge. 
In  Burdick  v.  Cheadle,  26  Ohio  St.  393,  20  Am.  Rep.  767,  the  owner 
of  a  store  building  had  leased  it  to  a  tenant,  who  was  in  occupancy  of 
the  same,  selling  goods  therein.  Certain  shelvings  and  fixtures  not  prop- 
erly secured,  fell,  and  injured  the  plaintiff,  a  customer  of  the  tenant, 
for  which  injury  the  customer  brought  action  against  the  landlord.  It 
was  said  by  Mcllvaine,  J.,  that  there  was  no  privity  between  the  owner 
of  the  property  and  the  plaintiff,  and  that  the  former  owed  no  duty  to 
the  latter  which  was  violated  by  a  careless  construction  or  fastenings 
of  the  fixtures ;  and  that  the  fact  that  the  room  was  kept  open  for  the 
customers  of  the  tenant  did  not  aft'ect  the  question. 

But  the  question  naturally  arises,  to  what  extent  does  the  right  of  a 
railroad  company  to  the  control  and  use  of  its  real  property  differ  from 
that  of  a  general  owner  of  land  not  burdened  or  encumbered  with  a 
public  charge?  What  restrictions  and  limitations  are  imposed  upon 
the  use  and  enjoyment  of  the  real  property  of  the  company  that  do 
not  exist  in  the  case  of  ownership  of  property  not  employed  for  public 
purposes?  These  questions  are  not  difficult  to  answer.  The  right  to 
the  possession  and  control  of  the  property  of  a  railroad  corporation 
for  all  purposes  contemplated  by  its  charter,  and  to  enable  it  to  accom- 
plish the  objects  for  which  it  was  created,  is  indispensable  to  the  prop- 
er discharge  of  the  duties  it  owes  to  the  public.  By  accepting  a  grant 
of  corporate  power  from  the  state,  it  bound  itself  to  do  and  perform 
certain  things  conducive  to  the  public  welfare.  And  these  things  con- 
sist principally  in  the  duty  to  carry  and  transport  persons  and  property 
from  one  point  on  its  road  to  another,  under  such  reasonable  rules  and 

17  The  statement  of  tlie  facts  is  abridged  and  parts  of  the  opinion  are  omit- 
ted. 


Ch.  1)  NEGLIGENCE  921 

regulations  as  it  may  prescribe  to  itself,  or  as  may  be  prescribed  by 
more  general  law.  The  obligation  to  carry,  thus  assumed,  can  not  be 
disregarded  or  rejected  at  pleasure.  It  is  an  indispensable  condition  to 
the  right  to  exercise  corporate  functions.  The  duty  to  carry  is  correl- 
ative to  the  existence  of  the  corporate  power  of  the  company,  and  ceas- 
es only  with  the  surrender  of  its  corporate  privileges.  It  is,  therefore, 
a  right  that  the  public  have  to  enter  upon  the  premises  of  the  company 
at  points  designed  or  designated  for  receiving  passengers,  and  upon 
compliance  with  the  rules  governing  the  transportation  of  persons  to 
be  carried  over  its  road  to  such  points  thereon  as  they  may  desire.  The 
right  of  the  public  to  enter  is  coextensive  with  the  duty  of  the  company 
to  receive  and  carry.  It,  however,  cannot  be  extended  beyond  this. 
For  all  purposes  not  connected  with  the  operation  of  its  road,  the  right 
of  the  company  to  the  exclusive  use  and  enjoyment  of  the  corporate 
property  is  as  perfect  and  absolute  as  is  that  of  an  owner  of  real  prop- 
erty not  burdened  with  public  or  private  easements  or  servitudes.   *    *  * 

His  [the  deceased's]  presence  at  the  depot  was  uninvited,  and  the 
company  did  not  owe  him  the  duty  to  keep  its  station-house  in  a  safe 
and  secure  condition.  Its  negligence,  if  any,  was  necessarily  negligence 
of  omission,  negligence  in  having  omitted  the  exercise  of  ordinary  care 
to  ascertain  the  dangerous  character  of  the  building.  If  the  question 
was  between  the  company  and  its  employes,  whose  duty  it  was  to  oc- 
cupy the  building,  or  if  it  arose  between  the  company  and  those  who 
came  to  take  passage  on  its  cars,  or  to  accompany  a  friend  about  to  de- 
part, or  to  await  the  arrival  of  one  expected,  or  to  engage  in  any  busi- 
ness connected  with  the  operation  of  the  road,  or  business  with  those 
engaged  in  its  service  and  having  a  legal  right  to  be  and  remain  there ; 
or,  if  the  company  had  possessed  knowledge,  in  fact,  of  the  dangerous 
character  or  condition  of  the  building,  and  gave  no  notice  thereof  to 
those  it  permitted  to  enter  or  occupy,  other  considerations  would  arise. 
It,  however,  is  not  charged  with  intentional  wrong,  nor  with  that  gross 
or  reckless  misconduct  that  is  difficult  to  distinguish  from  it,  and 
therefore  is  equivalent  to  it.  All  it  could  have  done,  when  the  storm 
approached,  to  save  the  deceased  from  harm,  was  to  see  that  he  left 
the  building  and  thereby  escaped  the  danger.  This  was  not  a  legal 
duty.  He  was  injured  by  no  act  of  the  company,  or  its  servants  or 
agents,  occurring  at  the  time.  The  fault  w^as  of  past  origin  and  nega- 
tive in  character,  consisting  in  not  previously  overhauling  the  building, 
ascertaining  its  defects  and  weaknesses,  and  supplying  the  needed 
strength  and  support.  For  this  omission,  or  its  resulting  consequences, 
a  stranger  has  no  right  to  call  it  to  account. 

Judgment  of  the  district  court  and  of  the  common  pleas  reversed, 
and  cause  remanded. 


922  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

LANE  V.  cox. 

(In  the  Court  of  Appeal.     [1897]  1  Q.  B.  415.) 

The  defendant  was  owner  of  a  house  which  he  let  unfurnished  to  a 
weekly  tenant.  There  were  no  covenants  to  repair  on  the  part  of  either 
the  landlord  or  the  tenant.  The  plaintiff  was  a  workman,  who  came  upon 
the  premises  at  the  request  of  the  tenant  for  the  purpose  of  moving 
some  furniture.  While  so  employed  the  plaintiff  was  injured  owing 
to  the  defective  state  of  the  staircase  in  the  house.  There  was  evidence 
that  at  the  time  the  house  was  let  the  staircase  was  in  an  unsafe  con- 
dition. The  plaintiff  brought  this  action  to  recover  damages  for  the 
injuries  he  had  sustained,  and  it  was  tried  before  the  Lord  Chief  Jus- 
tice, who  entered  a  nonsuit.    The  plaintiff  appealed. 

Lord  EshEr,  M.  R.  *  *  *  There  was  evidence  that  the  de- 
fendant was  owner  of  the  house,  but  that  it  was  let  at  the  time  of  the 
accident  to  a  tenant  who  was  in  possession  of  it.  There  was  evidence 
that  at  the  time  the  house  was  let  it  was  in  an  unsafe  condition.  The 
plaintiff  was  in  the  house  to  remove  furniture  of  the  tenant's,  and  he 
sustained  an  injury  owing  to  the  defect  in  the  staircase.  \The  question 
is  raised  whether  the  defendant  under  these  circumstances  is  liable  to 
the  plaintiff.  There  was  no  contractual  relation  between  the  plaintiff 
and  the  defendant,  and  it  was  not  like  the  case  of  a  person  who  keeps 
a  shop  to  which  he  intends  people  to  come. 

f  It  is  said  however  that  the  defendant  was  guilty  of  negligence  which 
red~to  the  accident  because  he  left  the  house  in  a  defective  condition^ 
(__It  has  been  often  pointed  out  that  a  person  cannot  be  held  liable  for 
negligence  unless  he  owed  some  duty  to  the  plaintiff  and  that  duty  was 
neglected-^ There  are  many  circumstances  that  give  rise  to  such  a  duty, 
as,  for  instance,  in  the  case  of  two  persons  using  a  highway,  where 
proximity  imposes  a  duty  on  each  to  take  reasonable  care  not  to  inter- 
fere with  the  other.  So  if  a  person  has  a  house  near  a  highway,  a  duty 
is  imposed  on  him  towards  persons  using  the  highway;  and  similarly 
there  is  a  duty  to  an  adjoining  owner  or  occupier,  and  if  by  the  negligent 
management  of  his  house  he  causes  injury,  in  either  of  these  cases  he  is 
liable.  In  this  case  the  negligence  alleged  is  letting  the  house  in  an 
unsafe  condition.  It  has  been  held  that  there  is  no  duty  imposed  on  a 
landlord,  by  his  relation  to  the  tenant,  not  to  let  an  unfurnished  house 
in  a  dilapidated  condition,  because  the  condition  of  the  house  is  the 
subject  of  contract  between  them.  If  there  is  no  duty  in  such  a  case 
to  the  tenant,  there  cannot  be  a  duty  to  a  stranger.  There  was,  there- 
fore, no  duty  on  the  part  of  the  defendant  to  the  plaintiff,  and  there 
could  be  no  liability  for  negligence,  and  the  nonsuit  was  rigiit. 

Lopes,  L.  J.  I  am  of  the  same  opinion.  What  is  complained  of 
in  this  case  is  a  defect  in  a  staircase  of  a  house  let  by  the  defendant  to 
a  tenant.  It  is  said  that  the  lessor  is  liable  for  an  injury  sustained  by 
a  workman  employed  by  the  tenant.    There  is  no  liability  either  on  the 


Ch.  1)  NEGLIGENCE  923 

landlord  or  the  tenant  to  put  or  keep  the  demised  premises  in  repair, 
unless  such  liability  is  created  between  them  by  contract.  No  cofitrac- 
tual  relation  in  this  respect  is  implied  on  the  letting  of  an  unfurnished 
house.  A  landlord  who  lets  a  house  in  a  dangerous  or  unsafe  state  in- 
curs no  liability  to  his  tenant,  or  to  the  customers  or  guests  of  the  ten- 
ant, for  any  accident  which  may  happen  to  them  during  the  term,  un- 
less he  has  contracted  to  keep  the  house  in  repair.  That  disposes  of 
this  case  so  far  as  any  liability  of  the  landlord  arising  out  of  contract 
is  concerned.  But  then  it  is  said  that  the  claim  of  the  plaintiff  may  be 
grounded  on  the  negligence  of  the  defendant.  There  cannot  be  a  lia- 
bility for  negligence  unless  there  is  a  breach  of  some  duty ;  and  no  duty 
exists  in  this  case  to  the  tenant,  and  none  can  be  alleged  to  strangers. 
The  case  differs  entirely  from  those  in  which  property  is  in  a  danger- 
ous state  by  reason  of  which  an  injury  happens  to  one  of  the  public 
on  a  highway,  or  to  the  occupier  of  an  adjoining  house.  I  think  the 
appeal  should  be  dismissed. 

RiGBY,  Iv.  J.,  concurred. 

Appeal  dismissed.^® 

18  Part  of  opinion  of  Lord  Esher,  M.  R.,  is  omitted. 

Compare:  Cavalier  v.  Pope,  [1906]  A.  C.  42S:  (D.,  the  owner  of  a  dilapidated 
house,  rented  it  furnished,  on  an  oral  agreement,  to  H.  The  floor  of  the 
liitchen  being  out  of  repair,  H.  and  his  wife,  W.,  threatened  t'o  leave,  but  re- 
mained after  D.  had  promised  H.  to  repair  it.  No  repairs  were  made  and  as 
a  result  W.  fell  through  the  kitchen  floor  and  was  hurt.  An  action  by  H. 
and  W.  against  D.  resulted  in  a  verdict  of  £25  for  H.  and  £75  for  W.  The 
trial  judge  entered  judgment  accordingly,  holding  that,  although  W.  could  not 
recover  against  D.  in  contract,  she  could  recover  in  tort.  The  Court  of  Ap- 
peal [one  judge  dissenting]  reversed  this  decision  as  to  the  £75  and  entered 
judgment  for  D.  on  W.'s  claim,  and  against  D.  on  H.'s  claim.  There  was  an 
appeal  to  the  House  of  Lords. 

Lord  James  of  Hereford.  "My  Lords,  I  have  with  regret  arrived  at  the 
conclusion  that  this  appeal  must  fail.  In  my  opinion,  the  verdict  for  the  ap- 
pellant cannot  be  maintained.  There  was  but  one  contract  and  that  was  made 
with  the  husband.  The  wife  cannot  sue  upon  it.  Then,  is  there  any  other 
form  in  which  her  claim  can  be  maintained?  It  was  ably  argued  at  the 
Bar  that,  as  the  premises  belonged  to  the  defendant,  he  must  be  taken  to  be  in 
possession  of  them,  and  that,  therefore,  a  duty  arose  to  maintain  them  in 
a  condition  tliat  would  not  cause  injury  to  anyone  who  came  upon  them. 
But  there  seems  to  be  a  fallacy  in  this  argument.  The  defendant  was  not 
in  actual  possession  of  the  house  in  question  and  did  not  occupy  it.  The 
plaintiffs  were  the  occupiers  and  the  statement  of  claim  so  alleges.  No  duty 
is  cast'  upon  a  landlord  to  effect  internal  repairs  unless  he  contracts  to  do  so. 
Then  all  that  remains  on  which  to  found  liability  is  the  contract,  and  it  was 
urged  that  the  contract  to  repair  placed  the  premises  constructively  in  the 
I)ossession  of  the  defendant  and  under  his  conti-ol.  But  the  actual  posses- 
sion by  the  plaintiffs  seems  to  negative  this  constructive  control.  The  case 
so  presented  also  does  not  come  within  the  claim  on  the  contract  under 
which  the  husband  has  recovered.  I  therefore  feel  that  the  judgment  of  the 
majority  of  the  Court  of  Appeal  must  be  maintained.  I  regret  this  result,  be- 
cause the  female  plaintiff  was  injured  entirely  through  tlie  failu.re  of  the 
defendant's  agent  to  fulflll  the  contract  he  made.  But  moral  responsibility, 
however  clearly  established,  is  not  identical  with  legal  liability."  The  order  of 
the  Court  of  Appeal  was  affirmed,  and  the  appeal  dismissal.) 


924:  TORTS  THROUGH  ACTS   OF   CONDITIONAL  LIABILITY         (Part  3" 


J     RICHARDSON  v.  BABCOCK  &  WILCOX  CO. 

(Circuit  Court  of  Appeals  of  the  United  States,  First  Circuit,  1910.    175  Fed. 

897,  99  C.  C.  A.  3o.3.) 

Aldrich,  District  Judge.  The  records  before  us  present  two  cases 
of  Mrs.  Richardson,  administratrix,  against  the  Babcock  &  Wilcox 
Company,  one  for  the  death  of  her  husband  and  the  other  for  conscious 
suffering.  Both  cases  are  controlled  by  the  conclusion  which  we  reach, 
that  of  nonliability.  The  liability  in  personal  injury  cases  speaking 
generally,  springs  either  from  relationship  or  duty,  as,  for  instance,  in 
one  class  of  cases,  the  obligation  grows  out  of  the  relationship  between 
employer  and  employe.  The  obligation  of  the  employer  is  to  furnish 
a  reasonably  safe  place  and  reasonably  safe  appliances,  and  the  obli- 
gation of  the  employe  is  to  exercise  reasonable  care.  And  the  rule  of 
care  is  that  which  a  person,  similarly  situated,  would  exercise,  and  this 
means  ordinary  care  and  prudence.  These  obligations  result  from  the 
relationship  through  implication  of  law.  The  same  is  true  of  the  lia- 
bility of  the  carrier  for  hire.  And  as  to  one  who,  in  the  exercise  of 
his  right  or  business,  injures  a  member  of  the  public,  who  is  in  the 
exercise  of  his  right,  or  while  in  the  line  of  duty,  it  is  the  duty  in 
respect  to  the  relative  rights  which  creates  or  implies  the  obligation  to 
exercise  reasonable  care.  If,  in  view  of  relationship  or  duty,  a  given 
party  fails  to  discharge  his  obligation,  the  liability  results  in  tort. 

There  are  several  counts  in  each  writ.  Some  of  them  allege  that  the 
plaintiff"  was  in  the  employ  of  the  New  York,  New  Haven  &  Hart- 
ford Railroad  Company,  and  was  in  the  line  of  duty,  and  that  he  was 
injured  through  the  defendant's  negligence;  and  some  of  the  counts 
expressly  allege  that  he  was  not  in  the  employ  or  service  of  the  defend- 
ant. Therefore  we  assume  that  the  plaintiff's  case  is  not  within  the 
rules  which  govern  where  the  existing  relationship  is  that  of  em- 
ployer and  employe,  and  this  assumption  is  made  because  the  relation- 
ship from  which  the  ordinary  implied  obligations  arise  is  wholly  want- 
ing. 

The  evidence  shows  that  at  the  time  of  the  accident  the  defendant 
was  installing  heavy  boilers  in  the  power  house  of  the  New  York,  New 
Haven  &  Hartford  Railroad  Company  in  Readville,  IMass.,  under  spe- 
cial contract.  Mr.  Richardson  was  a  stationary  engineer  in  the  em- 
ploy of  the  railroad  company  in  its  railroad  shops  at  Readville,  and  on 
the  day  in  question  had  occasion  to  pass  from  one  part  of  the  shops 
to  another  part,  on  business  connected  with  his  duty  to  the  railroad, 
his  employer.  When  he  came  to  a  doorway,  through  which  he  would 
ordinarily  pass  on  such  a  journey,  he  found  that  the  defendants  were 
lowering  a  section  of  tubing,  some  eighteen  feet  in  length,  which  had 
entered  the  doorway  some  three  or  four  feet.  When  Mr.  Richardson 
reached  this  point  he  stepped  on  stringers  and  passed  safely  over  or 
by  the  tubing  into  the  yard  beyond.    There  was  some  lack  of  harmony 


Ch.  1)  NEGLIGENCE  925 

in  the  evidence  as  to  just  how  far  the  tubing  had  entered  the  door- 
way, and  just  how  much  of  an  obstruction  it  was;  but  we  pass  over 
the  details  of  such  controversy  as  of  no  controlhng  consequence,  be- 
cause Mr.  Richardson  had  passed  safely  beyond  the  obstruction,  into 
an  open  yard  between  the  buildings,  and  because  we  think  the  case  is 
controlled  by  what  followed. 

Those  in  the  employ  of  the  defendant  w^ere  having  some  difficulty 
in  passing  the  tubing  through  the  doorway,  and,  without  any  request 
from  the  defendant's  servants  for  him  to  do  so,  and  without  any 
duty  by  reason  of  the  relationship  between  him  and  the  defendant  as 
their  employe,  or  as  the  employe  of  the  railroad,  because  the  defend- 
ants were  doing  the  work  under  special  contract,  ]\Ir.  Richardson  vol- 
unteered to  lend  a  helping  hand,  and.  w^hile  lifting,  as  the  tubing  was 
beginning  to  pass  through  the  doorway,  it  started  down  an  incline  and 
a  rope  parted,  and  ]\Ir.  Richardson  was  jammed  between  the  tubing 
and  the  doorway  and  fatally  injured.  Thus  it  appears  that  ^^Ir.  Rich- 
ardson was  not  injured  while  in  the  line  of  duty.  He  had  passed  the 
place  of  hazard  in  safety,  and,  departing  from  his  duty,  returned  to 
help  another. 

The  law  does  not  furnish  redress  in  damages  for  every  misfortune. 
In  order  to  create  liability  for  personal  injury,  the  plaintiff  must  not 
only  show  that  he  was  in  the  exercise  of  due  care,  but  that  the  defend- 
ant was  lacking  in  some  duty  which  it  owed  to  him,  either  as  an  em- 
ploye or  as  a  member  of  the  public.  This  case,  as  already  observed,  is 
not  within  the  class  governed  by  the  rules  of  ordmary  care,  because 
there  was  no  contractual  relationship  between  Air.  Richardson  and  the 
defendant.  Xor  is  it  the  case  of  invitation,  where  a  member  of  the 
public  by  invitation  comes  to  help.  The  facts  plainly  show,  and  there 
was  no  dispute  about  it,  that  he  took  hold  to  help,  as  men  oftentimes 
give  a  lift  at  the  wheel  wdien  they  find  a  neighbor  stuck  in  the  mud ; 
and  under  such  circumstances  there  is  no  liability  on  the  part  of  the 
neighbor  for  an  injury  received,  unless  the  injured  party  establishes 
gross  negligence,  willfulness,  or  wantonness  in  respect  to  his  safety. 
In  a  legal  sense  the  plaintiff's  intestate  was  a  volunteer,  a  stranger  to 
the  operations  involved  in  moving  the  heavy  articles  in  question,  and 
so  far  as  the  relationship  and  the  duties  between  the  parties  are  con- 
cerned, this  case  is  within  the  principle  of  Currier  v.  Trustees  of  Dart- 
mouth College,  117  Fed.  44,  54  C.  C.  A.  430,  and.  while  that  case  had 
some  strong  suggestions  of  invitation,  it  was  said  by  Judge  Putnam, 
speaking  for  the  Court  of  Appeals,  that  the  plaintiff  was  "of  the  class 
of  those  who  must  take  care  of  themselves,  except  as  against  wanton- 
ness or  willfulness,  or  except  under  peculiar  conditions  of  some  undis- 
covered danger."  We  think  it  very  plain,  and  so  plain  that  we  need 
not  cite  authorities,  that  if  a  plaintiff  recovers  at  all  under  the  circum- 
stances of  this  case,  it  must  be  on  the  ground  that  the  defendant  was 
grossly  negligent  in  the  selection  of  appliances,  or  that  there  was  some 
wanton  or  willful  conduct  which  caused  the  hurt.     It  is  apparent  that 


926  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

counsel  drawing  the  writs  were  aware  of  the  distinction  between 
a  case  like  this  and  the  case  of  an  injured  employe,  because  in  several 
of  the  counts  they  alleged  that  Richardson  was  not  in  the  employ  of 
the  defendants,  and  that  the  defendants  were  grossly  negligent. 

The  Circuit  Court  directed  a  verdict  upon  the  ground  of  contril)u- 
tory  negligence ;  but  it  is  a  familiar  rule  that  an  order  for  a  verdict 
may  be  sustained,  not  only  upon  the  reason  expressed  but  upon  any 
ground  which  warrants  the  result.  We  think  there  was  no  evidence 
of  gross  negligence  in  this  case  in  respect  to  appliances,  and  there  was 
no  suggestion  of  wanton  or  wilful  conduct  on  the  part  of  the  defend- 
ant. Therefore  the  plaintiff  was  not  entitled  to  go  to  the  jury,  and  the 
situation  justifies  the  order  directing  a  verdict  for  the  defendant. 
Having  reached  this  conclusion,  there  is  no  occasion  for  dealing  with 
the  question  of  contributory  negligence. 

In  each  case:  The  judgment  of  the  Circuit  Court  is  affirmed,  with 
costs. 


CARLISLE  &  CUMBERLAND  BANKING  CO.  v.  BRAGG. 
(In  the  Court  of  Appeal.     [1911]  1  K.  B.  489.) 

Application  by  plaintiffs  for  judgment  or  a  new  trial  in  an  action 
tried  before  Pickford,  J.,  with  a  jury. 

The  action  was  upon  a  document  which  purported  to  be  a  continu- 
ing guarantee  by  the  defendant,  up  to  the  amount  of  il50,  of  the  pay- 
ment by  one  Rigg  to  the  plaintiffs  of  any  sum  which  might,  at  any  time 
thereafter,  be  or  become  due  from  him  to  the  plaintiffs  on  the  general 
balance  of  his  banking  account  with  them.  The  defendant  in  his  de- 
fence denied  that  he  signed  the  guarantee  upon  which  the  action 
was  brought,  and  alleged  that  if  he  did,  his  signature  to  the  same  was 
fraudulently  obtained  by  Rigg,  who  falsely  represented  to  him  that 
the  said  guarantee  was  an  insurance  paper.  The  evidence,  so  far  as 
material  to  this  report,  appeared  to  be  in  substance  as  follows. 

The  signature  to  the  document  was  in  fact  the  defendant's.  Before 
the  document  was  signed,  the  plaintiffs  had  required  from  Rigg  a  guar- 
antee of  his  overdraft  with  them.  On  the  occasion  when  the  document 
was  signed  the  defendant  and  Rigg  had  been  drinking  together.  Rigg 
produced  a  paper,  and  asked  the  defendant  to  sign  it ;  he  did  not  read 
it  to  the  defendant,  or  tell  him  it  was  a  guarantee.  He  told  the  defend- 
ant that  the  paper  which  the  defendant  had  signed  on  a  previous  day 
had  got  wet  and  blurred  in  the  rain.  The  defendant  did  not  read  the 
paper  which  he  was  asked  to  sign,  and  stated  in  evidence  that  he  did 
not  know  that  it  was  a  guarantee ;  that  he  thought  that  Rigg  was  re- 
ferring to  a  paper  which  he,  the  defendant,  had  previously  signed  con- 
cerning some  insurance  matter,  and  that  the  paper  which  he  was  asked 
by  Rigg  to  sign  was  to  the  same  effect  as  that  paper.  Rigg,  having  pro- 
cured the  defendant's  signature  to  the  document,  subsequently  forged 


Ch.  1)  NEGLIGENCE  927 

the  signature  of  an  attesting  witness  to  it,  and  handed  it  to  the  plain- 
tiffs. It  was  not  disputed  that  Rigg  was  indebted  to  the  plaintiffs  on  his 
banking  account  to  the  amount  claimed  in  the  action.  The  questions 
left  by  the  learned  judge  to  the  jury  and  their  answers  thereto  were  as 
follows : 

(1)  Was  the  defendant  induced  to  sign  tlie  guarantee  by  the  fraud  of  Rigg? 
— Yes.  (2)  Did  the  defendant  Ivnow  that  the  document  which  he  signed  was 
a  guarantee? — No.  (3)  Was  the  defendant  negligent  in  signing  the  guarantee? 
— Yes.     (4)  Was  Rigg  the  agent  of  the  bank? — No. 

Upon  these  findings,  the  learned  judge,  on  the  authority  of  Swan 
V.  North  British  Australasian  Co.  (1862)  7  H.  &  N.  603,  (1863)  2  H. 
&  C.  175,  gave  judgment  for  the  defendant. 

Vaughan  Williams,  L.  J.  In  my  opinion  the  judgment  of  Pick- 
ford,  J.,  in  this  case  was  quite  right.  He  held  that  the  finding  of  neg- 
ligence by  the  jury  was  immaterial,  and  he  did  so  after  discussing  the 
case  of  Foster  v.  Mackinnon,  L.  R.  4  C.  P.  704,  and  coming  to  the  con- 
clusion that  the  doctrine  there  laid  down  as  regards  negligence  really 
has  reference  to  the  particular  case  of  a  negotiable  instrument,  to  an 
action  on  which  the  defence  that  the  defendant  was  induced  to  sign 
the  instrument  by  fraud  and  misrepresentation  as  to  its  nature  is  set 
up  as  against  a  bona  fide  holder  for  value.  As  I  understand  it,  that 
doctrine  is  limited  to  negotiable  instruments,  and  that  was  really  the 
judgment  of  Pickford,  J.,  in  this  case. 

Now  let  me  deal  with  the  matter  apart  from  any  question  of  nego- 
tiable instruments.  In  this  case  the  finding  of  the  jury  is  that  the  sig- 
nature of  the  defendant  to  this  document  was  obtained  by  fraud.  The 
jury  was  asked  "Was  the  defendant  induced  to  sign  the  guarantee  by 
the  fraud  of  Rigg?"  They  answered  that  he  was.  They  then  were 
asked :  "Did  the  defendant  know  that  the  document  he  signed  was  a 
guarantee?"  They  answered  in  the  negative.  It  seems  to  me  that  on 
these  findings  alone  the  defendant  would  be  entitled  to  say  in  respect 
of  this  guarantee  that  it  was  not  in  contemplation  of  the  law  signed  by 
him.  His  signature  was  obtained  by  fraud,  and  it  is  manifest  on  the 
evidence  and  the  findings  of  the  jury,  that  he  was  not  intending  to  sign 
any  such  document.  What  he  was  intending  to  sign  was  some  document 
with  reference  to  insurance.  It  appears  to  me  that  under  the  circum- 
stances of  this  case  the  mere  fact  that  the  jury  have  found  that  there 
was  negligence  on  the  part  of  the  defendant  does  not  raise  such  an 
estoppel  as  prevents  the  defendant  from  setting  up  the  defence  that 
he  never  signed  the  guarantee  and  that  his  signature  to  the  document 
was  obtained  from  him  by  fraud ;  that  he  did  not  know  of  its  nature,  or 
intend  to  sign  a  document  of  that  description.  If  the  document 
in  question  had  not  been  a  guarantee,  but  a  bill  of  exchange,  and  the 
question  had  arisen  what  was  the  position  of  a  holder  for  value  with- 
out notice  of  the  fraud,  the  matter  might  have  been  different,  because 
the  law  merchant,  and  now  the  statute  law,  puts  persons  who  in  such 
circumstances  take  bills  of  exchange  and  such  like  instruments  in  tlie 


928  TORTS  THEOUGH   ACTS  OF   CONDITIONAL  LIABILITY         (Part  3 

position  that  they  have  to  prove  that  they  gave  value  for  the  bill  or 
other  like  instrument  honestly,  but,  if  they  prove  that,  it  does  not  mat- 
ter that  it  was  originally  procured  by  fraud. 

The  only  other  thing  which  I  wish  to  say  is  on  the  question  of  neg- 
ligence. I  do  not  know  whether  the  jury  understood  that  there  could 
be  no  material  negligence  unless  there  was  a  duty  on  the  defendant  to- 
wards the  plaintiff.  Even  if  they  did  understand  that,  in  my  opinion  in 
the  case  of  this  instrument,  the  signature  to  which  was  obtained  by 
fraud,  and  which  was  not  a  negotiable  instrument,  Pickford,  J.,  was 
right  in  saying  that  the  finding  of  negligence  was  immaterial.  I  wish 
to  add  for  myself  that  in  my  judgment  there  is  no  evidence  whatso- 
ever to  shew  that  the  proximate  cause  of  the  plaintiffs'  advancing  mon- 
ey on  this  document  was  the  mere  signature  of  it  by  the  defendant.  In 
my  opinion  the  proximate  cause  of  the  plaintiffs'  making  the  advance 
was  that  Rigg  fraudulently  took  the  document  to  the  bank,  having 
fraudulently  altered  it  by  adding  the  forged  signature  of  an  attesting 
witness,  and  but  for  Rigg  having  done  those  things,  the  plaintiffs  would 
never  have  advanced  the  money  at  all.  Under  these  circumstances  I 
think  the  appeal  fails  and  must  be  dismissed. 

BucKLKY,  L.  J.  *  *  =!=  There  remains  the  question  whether  the 
defendant  is  estopped.  On  that  question  I  agree  that  the  existence 
of  negligence  may  be  relevant.  I  do  not  wish  to  add  anything 
to  wh.at  Vaughan  Williams,  L.  J.,  has  said  on  the  subject.  I  do  not 
think  that  there  was  in  this  case  proof  of  any  such  negligence  as  would 
avail  the  plaintiffs  as  between  themselves  and  the  defendant.  The  de- 
fendant did  not  owe  any  duty  to  the  plaintiffs,  and  the  act  of  the  de- 
fendant was  not  the  act  which  involved  the  plaintiffs  in  loss.  What 
involved  the  plaintiff's  in  loss  was  the  act  of  Rigg,  a  rogue,  who  ob- 
tained from  the  defendant  his  signature  to  an  instrument  which  he 
never  intended  to  sign,  and  having  thus  defrauded  the  defendant,  pro- 
ceeded to  do  another  act,  which  was  what  caused  the  plaintiffs  loss. 
He  took  the  document  thus  fraudulently  obtained,  and  pretended  to  the 
plaintiffs  that  it  was  a  genuine  guarantee  given  by  the  defendant.  In 
point  of  fact  it  was  not.  He  knew  how  he  had  procured  it  and  that  he 
had  forged  the  signature  of  an  attesting  witness.  It  was  that  act  which 
involved  the  plaintiffs  in  loss.  Upon  these  grounds  I  think  the  appeal 
fails  and  should  be  dismissed. 

Application  dismissed.^® 

19  Fart  of  the  opinion  of  Buckley,  L.  J.,  and  the  opinion  of  Kennedy,  L.  .7., 
are  omitted. 


Ch.  1)  NEGLIGENCE  929 

BARRETT  v.  CLEVELAND,  C,  C.  &  ST.  L.  RY.  CO. 

(Appellate  Court  of  ludiaim,  1911.     48  Ind.  App.  66S,  96  N.  E.  490.) 

Barrett  brought  this  action  against  the  railway  company  to  recover 
damages  for  the  breaking  down  of  a  tile  drain  on  the  right  of  way 
and  under  the  tracks  of  the  defendant.  After  alleging  that  the  de- 
fendant was  a  corporation  operating  a  line  of  railway  over  and 
through  the  lands  of  the  plaintiff  in  Rush  county,  the  complaint 
averred : 

"That  before  said  railway  was  constructed  there  was  a  good  and  sufficient 
tile  drain  across  the  lauds  of  plaintiff,  running  from  a  westerly  to  an  easter- 
ly direction  to  the  lands  of  Frederick  Leisure,  and  thence  to  Blue  river ;  that 
said  drain  was  ample  and  sufficient  properly  to  drain  said  lauds  of  plaintiif, 
but  tliat  said  defendant  constructed  its  said  railway  across  said  lands  from 
a  northeasterly  to  a  southwesterly  direction  over  and  across  said  tile  drain; 
that  on  or  about  April  1,  1906,  said  railway  company  negligently,  willfully 
and  purposely  broke  the  tile  in  said  drain  at  a  point  under  its  main  track, 
on  its  right  of  way  on  said  lands,  thereby  causing  said  drain  to  cave  in  and 
obsti'uct  the  free  flow  of  water  therethrough;  that,  as  a  further  obstruction 
to  the  flow  of  water  through  said  drain,  said  railway  company,  by  its  officers, 
agents  and  employes,  filled  said  drain  with  dirt  and  gravel,  so  as  wholly  to 
obstruct  the  flow  of  water  through  said  drain,  and  thereby  caused  the  water 
that  should  flow  through  said  drain  to  back  and  overflow  the  lands  of  plaintitf, 
so  as  to  render  said  lands  uuflt  for  farming  or  for  any  purpose  whatever; 
that  before  said  drain  was  so  broken  and  filled  by  defendant,  said 
lands  were  fertile,  dry  and  veiy  productive,  and  in  fit  and  proper  con- 
dition to  raise  all  kinds  of  farm  products,  but  by  the  action  of  defendant, 
aforesaid,  said  lands  were  rendered  wet  and  unfit  for  farming  or  for  any 
other  purpose:  that  by  reason  of  the  action  of  defendant,  its  agents  and  em- 
ployes, said  plaintiff's  lands  and  all  growing  crops  thereon  were  overflowed 
each  and  every  year  since  tlie  obstruction  was  made,  and  a  large  tract  of 
land,  to  wit,  twenty-five  acres,  was  rendered  useless  and  of  uo  value,  to  the 
injury  and  damage  of  the  plaintiff  in  the  sum  of  $1,000." 

A  demurrer  to  this  complaint,  for  want  of  facts  sufficient  to  consti- 
tute a  cause  of  action,  being  overruled,  the  defendant  answered  in 
two  paragraphs.  The  first  was  in  denial;  the  second  set  out  certain 
affirmative  facts.  A  demurrer  to  this  second  paragraph  of  the  an- 
swer was  carried  back  by  the  court,  and  sustained  to  the  complaint. 
The  plaintiff  thereupon  refused  to  plead  further  and  elected  to  stand 
by  his  exception  to  carrying  the  demurrer  back,  and  sustaining  it  to 
the  complaint.     Judgment  was  rendered  against  the  plaintiff  for  costs. 

Adams,   J.^°     *     *     *     'plig   error   relied   on   for   reversal   in  this  . 
court  relates   to  the  overruling  of   appellant's   demurrer  to   the   sec- 
ond paragraph  of  answer,  and  the  action  of  the  court  in  carrying  said 
demurrer  back,  and  sustaining  it  to  the  complaint. 

If  there  was  no  error  in  sustaining  the  demurrer  to  the  complaint, 
then  the  action  of  the  court  in  overruling  the  demurrer  to  thf  second 

2  0  The  statement  of  facts  is  abridged,  and  only  so  much  of  the  opinion  is 
given  as  relates  to  the  one  point. 

Hepb.Tobts — 59 


930  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

paragraph  of  answer  would  not  be  error,  even  if  said  paragraph  were 
bad,  under  the  well-recognized  rule  that  a  bad  answer  is  good  enough 
for  a  bad  complaint.  Alexander  v.  Spaulding  (1903)  160  Ind.  176, 
66  N.  E.  694;  Grace  v.  Cox  (1896)  16  Ind.  App.  150,  44  N.  E. 
813.     *     *     *  -^ 

The  question  then  for  determination  is.  Does  the  complaint  state 
a  cause  of  action  for  negligence?  *  *  *  fhe  complaint  only 
states  that,  before  the  construction  of  appellee's  railroad,  there  was 
a  good  and  sufficient  tile  drain  from  the  lands  of  appellant  through 
the  lands  of  another,  and  thence  to  the  outlet ;  that  at  a  subsequent 
date  the  appellee  broke  down  the  tile  under  its  main  track,  and  on 
its  right  of  way,  and  also  filled  up  the  ditch.  It  is  not  shown  how  or 
from  whom  the  right  of  way  was  obtained.  It  is  not  shown  that  the 
appellee  had  any  knowledge  of  the  existence  or  the  location  of  the 
tile  ditch.  No  contractual  or  prescriptive  right  is  claimed  by  the  ap- 
pellant, and  it  does  not  appear  that  the  ditch  was  a  natural  water 
course  or  a  public  drain. 

The  evident  theory  of  the  complaint  is  that  appellee,  having  come 
into  possession  of  a  right  of  way  across  which  a  private  tile  drain 
extended,  and  through  which  appellant  secured  an  outlet  for  the 
surface  water  accumulating  upon  his  lands,  was  bound  to  keep  such 
tile  drain  open  and  in  working  order  for  the  benefit  of  appellant.  The 
law  does  not  impose  such  a  burden  upon  the  appellee.  This  subject 
was  fully  discussed  in  the  well-considered  case  of  Cleveland,  etc.,  R. 
Co.  v.  Huddleston,  21  Ind.  App.  621,  52  N.  E.  1008,  69  Am.  St.  Rep. 
385,  and  the  principle  stated  as  follows :  "An  artificial  waterway  may 
not  be  constructed  or  maintained,  except  by  authority  of  law,  or  un- 
der a  contract,  in  any  case  where  it  imposes  a  burden  upon  the  prop- 
erty of  an  adjacent  owner."  In  the  same  case,  21  Ind.  App.  625, 
52  N.  E.  1010,  69  Am.  St.  Rep.  385,  the  court  quoted  with  approval 
the  following  from  O'Connor  v.  Fond  du  Lac,  etc.,  Ry.  Co.,  52  Wis. 
526,  9  N.  W.  287,  38  Am.  Rep.  753:  "The  company  has  only  ob- 
structed a  ditch  which  drained  or  carried  oft  surface  water  from  the 
plaintiff's  premises.  We  do  not  think  the  defendant  was  bound  to 
keep  that  ditch  open  on  its  own  land  for  the  convenience  of  the  plain- 
tiff ;  in  other  words,  the  owner  of  the  land  is  under  no  legal  obliga- 
tion to  provide  a  way  for  the  escape  of  mere  surface  water  coming 
onto  his  land  from  the  land  of  his  neighbor,  but  has  the  right  to 
change  the  surface  of  the  ground  so  as  to  interfere  with  or  obstruct 
the  flow  of  such  water."  See,  also,  Jean  v.  Pennsv.  Co.,  9  Ind.  App. 
56,   36  N.  E.    159;    New  York,  etc.,   R.   Co.   v.  'Speelman,    12  Ind. 

21  In  the  omitted  portion  of  the  opinion  the  ooiu't  considers  the  question 
whether  the  complaint  sliows  a  cause  in  neiili.irence  or  a  cause  for  intentional 
injury,  and  reached  tlie  conclusion  that  the  cause  alleg:ed  is  for  nej^liirenf  e. 
On  the  principle  involved,  see  ante,  "The  I'lace  of  Negligence  in  the  Field  of 
Torts." 


Ch.  1)  NEGLIGENCE  931 

App.  372,  40  N.  E.  541;  Cairo,  etc.,  R.  Co.  v.  Stevens,  73  Ind,  278, 
38  Am.  Rep.  139;  Clay  v.  Pittsburg,  etc.,  Ry.  Co.,  164  Ind.  443,  73 
N.  E.  904;  Atchison,  etc.,  R.  Co.  v.  Hammer,  22  Kan.  763,  31  Am. 
Rep.   216. 

The  complaint  does  not  state  a  cause  of  action,  and  there  was  no 
error  in  carrying  back  and  sustaining  a  demurrer  thereto.  Judgment 
affirmed. 


HURLEY  V.  EDDINGFIELD.        ^ 

(Supreme  Court  of  Indiana,  1901.    156  Ind.  416,  59  N.  E.  1058,  53  L.  R, 
A.    135,    83   Am.   St.    Kep.   198.) 

Action  by  Hurley,  as  administrator,  against  Eddingfield.  From  a 
judgment  in  favor  of  the  defendant,  the  plaintiff  appeals. 

Baker,  J.  The  appellant  sued  appellee  for  $10,000  damages  for 
wrongfully  causing  the  death  of  his  intestate.  The  court  sustained 
appellee's  demurrer  to  the  complaint,  and  this  ruling  is  assigned  as 
error. 

The  material  facts  alleged  may  be  summarized  thus :  At  and  for 
years  before  decedent's  death  appellee  was  a  practicing  physician  at 
Mace,  in  Montgomery  county,  duly  licensed  under  the  laws  of  the 
state.  He  held  himself  out  to  the  public  as  a  general  practitioner  of 
medicine.  He  had  been  decedent's  family  physician.  Decedent  be- 
came dangerously  ill,  and  sent  for  appellee.  The  messenger  informed 
appellee  of  decedent's  violent  sickness,  tendered  him  his  fee  for  his 
services,  and  stated  to  him  that  no  other  physician  was  procurable  in 
time,  and  that  decedent  relied  on  him  for  attention.  No  other  physi- 
cian was  procurable  in  time  to  be  of  any  use,  and  decedent  did  rely  on 
appellee  for  medical  assistance.  Without  any  reason  whatever,  appel- 
lee refused  to  render  aid  to  decedent.  No  other  patients  were  requir- 
ing appellee's  immediate  service,  and  he  could  have  gone  to  the  relief 
of  decedent  if  he  had  been  willing  to  do  so.  Death  ensued,  without 
decedent's  fault,  and  wholly  from  appellee's  wrongful  act.  The  al- 
leged wrongful  act  was  appellee's  refusal  to  enter  into  a  contract  of 
employment. 

Counsel  do  not  contend  that,  before  the  enactment  of  the  law  regu- 
lating the  practice  of  medicine,  physicians  were  bound  to  render  pro- 
fessional service  to  every  one  who  applied.  Whart.  Neg.  §  731.  The 
act  regulating  the  practice  of  medicine  provides  for  a  board  of  ex- 
aminers, standards  of  qualification,  examinations,  licenses  to  those 
found  qualified,  and  penalties  for  practicing  without  license.  Acts 
1S97,  p.  255 ;  Acts  1899,  p.  247.  The  act  is  a  preventive,  not  a  com- 
pulsive, measure.  In  obtaining  the  state's  license  (permission)  to  prac- 
tice medicine,  the  state  does  not  require,  and  the  licensee  does  not  en- 
gage, that  he  will  practice  at  all  or  on  other  terms  than  he  may  choose 


932  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

to  accept.     Counsel's  analogies,   drawn   from   the   obligations   to   the 
public  on  the  part  of  innkeepers,  common  carriers,  and  the  like,  are 
beside  the  mark.* 
Judgment  affirmed. 

♦ITnrley  v.  E(klin?f1old,  althonsh  not  a  negligence  case,  indicates  the  scope  of 
/the  priiu  iple  in  negligence  which  is  under  examination  here. 

See  also:  Union  Pacific  R.  Co.  v.  Cappier  (1903)  GO  Kan.  649,  72  Pac.  281, 
69  L.  R.  A.  51.3:  While  trespassing  on  defendant's  railway  track  C.  was 
struck  hy  a  freight  car  pushed  by  a  locomotive ;  a  leg  and  an  arm  were  cut 
off  hy  the  Avheels.  The  engine  was  stopped  and  the  wounded  man  was  moved 
to  the  side  of  tlie  right  of  way,  when  the  engine  and  the  crew  left.  \vith(nit 
Immediately  binding  up  C.'s  wounds  or  trying  to  stop  the  blood.  But  they 
telei)honcd  from  the  railway  yards  for  an  ambulance,  which  reached  C.  about 
30  minutes  later.  He  died  a  few  hours  after  reaching  the  hospital.  In  an 
action  to  recover  damages  for  C.'s  death,  Smith,  J.,  delivering  the  opinion, 
remarks  as  follows:  "We  are  unable,  however,  to  approve  the  doctrine  that 
when  the  acts  of  a  trespasser  lilmself  result  in  his  injury,  where  his  own 
negligent  conduct  is  alone  the  cause,  those  in  charge  of  the  instrument  which 
inflicted  the  hurt,  being  innocent  of  wrongdoing,  are  nevertheless  blamable  in 
law  if  they  neglect  to  administer  to  the  sufferings  of  him  whose  woiuids  we 
might  say  were  self-imposed.  With  the  liumane  side  of  the  question  courts 
are  not  concerned.  It  is  the  omission  or  negligent  discharge  of  legal  duties 
only  which  come  \Adthin  the  sphere  of  judicial  cognizance.  For  withholding 
relief  from  the  suffering,  for  failure  to  respond  to  the  calls  of  worthy  char- 
ity, or  for  faltering  in  the  bestowment  of  brotherly  love  on  the  unfortunate, 
penalties  are  found  not  in  the  laws  of  men,  but  in  that  higher  law,  the  viola- 
tion of  \Ahich  is  condemned  by  the  voice  of  conscience,  whose  sentence  of  pun- 
ishment for  the  recreant  act  is  swift  and  sure.  In  the  law  of  contracts  it  is 
now  well  understood  that  a  promise  founded  on  a  moral  obligation  will  not  be 
enfoi'ced  in  the  courts.  Bishop  states  that  some  of  the  older  authorities  rec- 
ognize a  moral  obligation  as  valid,  and  says:  'Such  a  doctrine,  carried  to  its 
legitimate  results,  would  release  the  trilmnals  from  the  duty  to  administer 
the  law  of  the  land,  and  put  in  the  place  of  law  the  varying  ideas  of  morals 
w^hich  the  changing  incumbents  of  the  bench  might  from  time  to  time  enter- 
tain.' Bishop  on  Contracts,  §  44.  Ezelle's  injuries  were  inflicted,  as  the 
court  below  held,  without  the  fault  of  the  yardmaster,  engineer,  or  flreman 
in  charge  of  the  car  and  locomotive.  The  railway  company  was  no  more  re- 
sponsible than  it  would  have  been  had  the  deceased  been  run  down  l)y  the 
ears  of, another  i-ailroad  company  on  a  track  parallel  with  that  of  plaintiff'  in 
error.  If  no  duty  was  imposed  on  the  servants  of  defendant  below  to  take 
charge  of  and  care  for  the  wounded  man  in  such  a  case,  how  could  a  duty 
arise  under  the  circumstances  of  the  case  at  bar?" 

For  limitations,  see  Bradshaw  v.  Frazier  (1901)  113  Iowa  579.  85  N.  W. 
752.  55  Ia  R.  a.  258,  86  Am.  St.  Rep.  394  (involving  an  abuse  of  legal  process), 
and  Depue  v.  Flatau  (1907)  100  Minn.  299,  111  i\.  W.  1,  8  L.  It.  A.  (N.  S.) 
485  (P.,  on  a  very  cold  night,  was  invited  by  D.  to  remain  at  his  house  for 
supper.  While  there  P.  was  taken  suddenly  ill  and  fell  to  the  floor.  He  asked 
permission  to  remain  over  night,  but  L).  refused.  D.  assisted  P.  to  get  into 
his  sleigh,  and,  as  he  could  not  hold  the  reins,  D.  threw  them  over  P.'s  shoul- 
ders. He  was  found  the  next  morning,  about  a  mile  from  D.'s  house,  nearly 
frozen  to  death,  having  been  again  attacked  by  his  ailment  and  fallen  from 
the  sleigh). 

Compare  the  remark  of  Prof.  James  Barr  Ames  in  22  Harv.  Law  Review, 
112  (1908):  "As  I  am  walking  over  a  bridge  a  man  falls  into  the  water.  He 
cannot  swim  and  calls  for  heip.  I  am  strong  and  a  good  swimmer,  or,  if  you 
please,  there  is  a  rope  on  the  bridge,  and  I  might  easily  throw  him  an  end 
and  pull  him  asliore.  I  neither  juui]v  in  nor  throw  him  the  rope,  but  see  him 
drown.  Or,  again,  I  see  a  child  on  tlie  raih-oad  track  too  young  to  ai)preciate 
the  danger  of  the  approaching  train.  I  might  easily  save  the  child,  but  do 
nothing,  and  the  child,  tliough  it  lives,  loses  both  legs.  Am  I  guilty  of  a 
crime,  and  must  I  make  compensation  to  the  widow  and  children  of  the  man 
drowned  and  to  the  wounded  child?     Macaulay,  in  <ommenting  upon  his  In- 


Ch.  1)  NEGLIGENCE  933 

(B)  Legal  Degrees  of  Care 
WILSON  V.  BRETT. 

(Court  of  Exchequer,  1S43.     11  Mees.  &  W.  113,  03  R.  R.  528.) 

Case.  Plea,  not  guilty.  At  the  trial,  before  Rolfe,  B.,  it  appeared 
that  the  plaintiff  had  entrusted  his  horse  to  the  defendant,  request- 
ing him  to  ride  it  to  Peckham,  for  the  purpose  of  showing  it  for  sale 
to  a  Mr.  IMargetson.  The  defendant  accordingly  rode  the  horse  to 
Peckham,  and  for  the  purpose  of  showing  it,  took  it  into  the  East 
Surrey  Race  Ground,  where  Mr,  Margetson  was  engaged  with  others 
playing  the  game  of  cricket:  and  there,  in  consequence  of  the  slip- 
pery nature  of  the  ground,  the  horse  slipped  and  fell  several  times, 
and  in  falling  broke  one  of  his  knees.  It  was  proved  that  the  de- 
fendant was  a  person  conversant  with  and  skilled  in  horses.  The 
learned  Judge  in  summing  up,  left  it  to  the  jury  to  say  whether  the 
nature  of  the  ground  was  such  as  to  render  it  a  matter  of  culpable 
negligence  in  the  defendant  to  ride  the  horse  there;  and  told  them, 
that  under  the  circumstances,  the  defendant,  being  shown  to  be  a 
person  skilled  in  the  management  of  horses,  was  bound  to  take  as 
much  care  of  the  horse  as  if  he  had  borrowed  it;  and  that,  if  they 
thought  the  defendant  had  been  negligent  in  going  upon  the  ground 
wdiere  the  injury  was  done,  or  had  ridden  the  horse  carelessly  there, 
they  ought  to  find  for  the  plaintiff.  The  jury  found  for  the  plaintiff, 
damages  £5.  10s. 

Byles,  Serjt.,  now  moved  for  a  new  trial,  on  the  ground  of  mis- 
direction :  There  was  no  evidence  here  that  the  horse  was  ridden 
in  an  unreasonable  or  improper  manner,  except  as  to  the  place  where 
he  was  ridden.  The  defendant  was  admitted  to  be  a  mere  gratuitous 
bailee;    and  there  being  no  evidence  of  gross  or  culpable  negligence, 

dian  Criminal  Code,  puts  the  case  of  a  surgeon  refusing  to  go  from  Calcutta 
to  Meerut  to  perform  an  operation,  although  it  shoukl  be  absolutely  cei'tain 
that  this  surgeon  was  the  only  person  in  India  who  could  perform  it  and 
that,  if  it  were  not  performed,  the  person  who  required  it  would  die.  We 
may  suppose  again  that  the  situation  of  imminent  danger  of  death  was  creat- 
ed liy  the  act,  but  the  innocent  act,  of  the  person  who  refuses  to  prevent  the 
death.  The  man,  for  example,  whose  eye  was  penetrated  by  the  glancing 
shot  of  the  careful  pheasant  hunter,  stunned  by  the  shot,  fell  face  downward 
into  a  shallow  pool  by  which  he  was  standing.  The  hunter  might  easily  save 
him,  but  lets  him  drown.  In  the  first  three  illustrations,  however  revolting 
tlie  conduct  of  the  man  who  declined  to  interfere,  he  was  in  no  way  respon- 
sible for  the  perilous  situation,  he  did  not  increase  the  peril,  he  took  away 
nothing  from  the  person  in  jeopardy,  he  simply  failed  to  confer  a  benelit  upon 
a  stranger.  As  the  law  stand-s  to-day  tliere  would  be  no  legal  liability,  eitlier 
civilly  or  criminally,  in  any  of  these  cases.  The  law  does  not  compel  active 
benevolence  between  man  and  man.  It  is  left  to  one's  conscience  whether 
he  shall  be  the  good  Samai'itan  or  not." 

And  see  the  remarks  of  Carpenter,  C.  J.,  in  Buch  v.  Amory  Mfg.  Co.  (1898) 
69  N.  H.  257,  44  Atl.  809,  811,  76  Am.  «t.  Uep.  163. 


934  TORTS   THROUGH   ACTS   OF  CONDITIONAL   LIABILITY         (Part  3 

the  learned  Judge  misdirected  the  jury,  in  stating  to  them  that  there 
was  no  difference  between  his  responsibihty  and  that  of  a  borrower. -- 

Parks,  B.  I  think  the  case  was  left  quite  correctly  to  the  jury. 
The  defendant  was  shown  to  be  a  person  conversant  with  horses, 
and  was  therefore  bound  to  use  such  care  and  skill  as  a  person  con- 
versant with  horses  might  reasonably  be  expected  to  use :  if  he  did 
not,  he  was  guilty  of  negligence.  The  whole  effect  of  what  was 
said  by  the  learned  Judge  as  to  the  distinction  between  this  case  and 
that  of  a  borrower,  was  this;  that  this  particular  defendant,  being 
in  fact  a  person  of  competent  skill,  was  in  effect  in  the  same  situation 
as  that  of  a  borrower,  who  in  point  of  law  represents  to  the  lender 
that  he  is  a  person  of  competent  skill.  In  the  case  of  a  gratuitous 
bailee,  where  his  profession  or  situation  is  such  as  to  imply  the  pos- 
session of  competent  skill,  he  is  equally  liable  for  the  neglect  to 
use  it. 

RoLFE,  B.  The  distinction  I  intended  to  make  was,  that  a  gratu- 
itous bailee  is  only  bound  to  exercise  such  skill  as  he  possesses,  where- 
as a  hirer  or  borrower  may  reasonably  be  taken  to  represent  to  the 
party  who  lets,  or  from  whom  he  borrows,  that  he  is  a  person  of 
competent  skill.  If  a  person  more  skilled  knows  that  to  be  danger- 
ous which  another  not  so  skilled  as  he  does  not,  surely  that  makes 
a  difference  in  the  liability.  I  said  I  could  see  no  difference  between 
negligence  and  gross  negligence — that  it  was  the  same  thing,  with  the 
addition  of  a  vituperative  epithet,  and  I  intended  to  leave  it  to  the  jury 
to  say  whether  the  defendant,  being,  as  appeared  by  the  evidence,  a 
person  accustomed  to  the  management  of  horses,  was  guilty  of  cul- 
pable negligence. 

Rule  refused. ^^ 

22  The  statement  is  abriflged.  The  opinions  of  Lord  Ahiugrer,  C.  B.,  and 
Alderson,  B.,  are  omitted. 

23  "It  is  further  complained  that  the  Lord  Chief  Justice  misdirected  the 
jury  because  he  made  no  distinction  in  this  case  between  gross  and  ordinary 
negligence.  No  information,  however,  has  been  given  us  as  to  the  meaning 
to  be  attaclied  to  gross  negligence  in  this  case ;  and  I  quite  agree  with  the 
dictum  of  Lord  Cranworth  in  Wilson  v.  Brett  (181:3)  11  M.  &  W.  113,  that 
gross  negligence  is  ordinary  negligence  with  a  vituperative  epithet, — a  view 
held  by  the  E.xchequer  Chamber.  Beal  v.  South  Devon  Railway  Company 
(18(v4)  3  H.  &  C.  337.  Confusion  has  arisen  from  regarding  negligence  as  a 
positive  instead  of  a  negative  word.  It  is  really  the  absence  of  such  care 
as  it  was  the  duty  of  the  defendant  to  use.  A  bailee  is  only  bound  to  use 
the  ordinary  care  of  a  man,  and  so  the  absence  of  it  is  called  gross  negli- 
gence. A  person  who  undertakes  to  do  some  work  for  reward  to  an  artit'le 
nmst  exercise  the  care  of  a  skilletl  workman,  and  the  absence  of  such  care 
in  him  is  negligence.  'Gross,'  therefore,  is  a  word  of  description,  and  not  a 
definition,  and  it  would  have  been  only  introducing  a  source  of  confusion  to 
use  the  expression,  'gross  negligence,'  instead  of  the  equivalent,  a  want  of 
due  care  and  skill  in  navigathig  the  vessel,  which  was  again  and  again  used 
l>y  the  Ivord  Chief  Justice  in  his  summing  up."'  AVilles,  J.,  in  Grill  v.  Iron 
Screw  Collier  Co.  (istitj)  L.  K.  1  C.  P.  (JUO,  (Jli.'. 

"The  theory  that  there  are  three  degrees  of  negligence,  described  by  the 
teiTus,  'sliglit,'  'ordinary,'  and  'gross,'  has  been  introduced  into  the  common 
law  from  some  of  the  commentators  on  the  Roman  law.     It  may  be  doubted 


Ch.  1)  NEGLIGENCE  935 

:meredith  v.  reed. 

(Supreme  Court  of  Indiana,  1806.    26  Ind.  ?.34.) 

Action  to  recover  damages  due  to  the  alleged  negligence  of  the  de- 
fendant. The  jury  returned  a  verdict  for  the  defendant,  on  which 
judgment  was  entered. 

Gregory,  C.  J.  *  *  *  In  I\Iay,  1865,  the  defendant  owned  a 
stallion,  which  had  previously  been  let  to  mares,  but,  owing  to  the 
sickness  of  the  owner,  was  not  so  let  during  the  spring  of  1865. 
He  was  a  gentle  stallion,  and  had  never  been  known  by  the  owner 
to  be  guilty  of  any  vicious  acts.  Not  being  in  use,  he  had  been  kept 
up  in  a  stable  for  four  or  five  months.  He  was  secured  in  the  stable 
by  a  strong  halter  and  chain  fastened  through  an  iron  ring  in  the 
manger.  The  stable  door  was  securely  fastened  on  the  inside  by  a 
strong  iron  hasp,  passed  over  a  staple,  and  a  piece  of  chain  passed 
two  or  three  times  through  the  staple  over  the  hasp,  and  the  ends 
firmly  tied  together  with  a  strong  cord.     It  was  also  fastened  on  the 

if  these  terms  can  be  usefully  applied  in  practice.  Their  meaning  is  not 
fixed,  or  capable  of  being  so.  One  degree,  thus  descrilied.  not  only  may  be 
confounded  with  another,  but  it 'is  quite  impracticable  exactly  to  distinguish 
them.  Their  signification  necessarily  varies  according  to  circumstances,  to 
whose  influence  the  courts  have  been  forced  to  yield,  until  there  are  so 
many  real  exceptions  that  the  rules  themselves  can  scarcely  be  said  to  have 
a  general  operation.  In  Storer  v.  Goweu  (1841)  18  Me.  177,  the  Supreme  Court 
of  Maine  say:  "How  much  care  will,  in  a  given  case,  relieve  a  party  from  the 
imputation  of  gross  negligence,  or  what  omission  will  amount  to  the  charge,  is 
necessarily  a  question  of  fact,  depending  on  a  great  variety  of  circumstances 
which  the  law  cannot  exactly  define.'  Mr.  Justice  Story  (Bailments,  §  11) 
says:  'Indeed,  what  is  common  or  ordinary  diligence  is  more  a  matter  of 
fact  than  of  law.'  If  the  law  furnishes  no  definition  of  the  terms  gross  neg- 
ligence, or  ordinary  negligence,  which  can  be  applied  in  practice,  but  leaves 
it  to  the  juiT  to  determine,  in  each  case,  what  the  duty  was,  and  what  omis- 
sions amount  to  a  breach  of  it,  it  would  seem  that  imperfect  and  confessedly 
unsuccessful  attempts  to  define  that  duty  had  better  be  abandoned.  Recently  the 
judges  of  several  courts  have  expressed  their  disapprobation  of  these  attempts 
to  fix  the  degrees  of  diligence  by  legal  definitions,  and  have  complained  of 
the  impracticability  of  applying  them.  Wilson  v.  Brett  (1843)  11  Mees.  &  Wels. 
113 ;  Wylde  v.  Pickford  (1841)  8  Mees.  &  Wels.  443.  461,  462 ;  Hinton  v.  Dib- 
bin  (1842)  2  Q.  B.  646,  651.  It  must  be  confessed  that  the  ditiiculty  in  defin- 
ing gross  negligence,  which  is  api)arent  in  perusing  such  cases  as  Tracv  et  al. 
V.  Wood  (ISL'2)  3  Mason,  132,  Fed.  Cas.  No.  14.1:^.0.  and  Foster  v.  Essex  Bank 
(1S21)  17  Mass.  479,  9  Am.  Dec.  168,  would  alone  be  sufficient  to  justify  these 
complaints.  It  may  be  added  that  some  of  the  ablest  commentators  on  the 
Roman  law,  and  on  the  Civil  Code  of  Franc-e,  have  wholly  repudiated  this 
theijry  of  three  degrees  of  diligence,  as  unfounded  in  principles  of  natural 
justice,  useless  in  practice,  and  presenting  iuextrioable  embarrassments  and 
difficulties.  See  TouUier's  Droit  Civil,  6th  vol.,  p.  2.39,  &c.;  11th  vol.,  p.  203, 
&c.:  Makeldey,  Man.  Du  Droit  Romain,  191.  &c."  Per  Mr.  Justice  Curtis, 
in  The  New  World  v.  King  (1853)  16  How.  (U.  S.)  469,  474,  14  L.  Ed.  1019. 

"Counsel  make  frefjuent  use  of  the  phrase  'gross  negligence'  in  their  discus- 
sion of  this  case.  In  this  state,  as  is  well  known,  the  actionable  character 
of  negligence  is  not  dependent  upon  its  'degree,'  and  the  ancient  difi'erentiatiou 
into  'gross,'  'ordinary,'  and  'slight'  has  come  to  mean  little  more  than  a  mat- 
ter of  comparative  enii)hasis  in  the  discussion  of  tostiniony."  Weaver,  .T., 
in  Denny  v.  Chicago,  etc.,  Ry.  Co.  (1911)  150  Iowa,  460,  l.'iO  N.  W.  363,  364. 


936  TORTS   THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

outside  by  a  piece  of  timber,  one  end  of  which  was  planted  in  the 
ground,  while  the  other  rested  against  the  door.  The  horse  was  thus 
secured  on  the  day  and  night  the  injury  occurred.  The  gate  of  the 
inclosure  surrounding  the  stable  was  shut  and  fastened  as  usual. 
About  11  o'clock  that  night  the  horse  was  found  loose  on  the  high- 
way, and  did  the  injury  complained  of.  Early  the  following  morning 
the  outside  gate  was  found  open ;  the  stable  door  was  found  open, 
with  the  log  prop  lying  some  distance  to  one  side,  and  the  chain 
which  had  been  passed  through  the  staple  was  gone,  and  the  cord 
with  which  it  had  been  tied  was  'found  cut  and  the  pieces  lying  on 
the  floor.     *     *     * 

It  is  contended,  on  the  one  hand,  that  ordinary  care  was  all  the 
law  required  of  the  defendant  in  this  case.  On  the  other  it  is  claimed 
that  the  utmost  care  was  necessary  to  free  him  from  liability.  Or- 
dinary care  is  all  that  the  law  required  in  the  case  in  judgment.  What 
is  ordinary  care  in  some  cases,  would  be  carelessness  in  others.  The 
law  regards  the  circumstances  surrounding  each  case,  and  the  nature 
of  the  animal  or  machinery  under  control.  Greater  care  is  required 
to  be  taken  of  a  stallion  than  of  a  mare ;  so  in  the  management  of 
a  steam  engine,  greater  care  is  necessary  than  in  the  use  of  a  plow. 
Yet  it  is  all  ordinary  care ;  such  care  as  a  prudent,  careful  man 
would  take  under  like  circumstances.  The  degree  of  care  is  always 
in  proportion  to  the  danger  to  be  apprehended.  The  case  at  bar  was 
properly  sent  to  the  jury,  and  the  verdict  is  fully  sustained  by  the 
evidence. 

The  judgment  is  affirmed,  with  costs.^* 


HILL  V.  CITY  OF  GLENWOOD. 
(Supreme  Court  of  Iowa,  1904.    124  Iowa,  479,  100  N.  W.  522.) 

Action  to  recover  damages  due  to  the  negligence  of  the  defendant, 
the  city  of  Glenwood.  Judgment  for  plaintiff  and  defendant  ap- 
peals. 

Weaver,  J.  The  plaintiff  claims  to  have  been  injured  upon  one 
of  the  public  walks  of  the  city  of  Glenwood,  and  that  such  injury 
was  occasioned  by  reason  of  the  negligence  of  the  city  in  the  main- 
tenance of  the  walk  at  the  place  of  the  accident,  and  without  fault 
on  his  own  part  contributing  thereto.  From  verdict  and  judgment 
in  his  favor  for  $665,  the  city  appeals.  In  this  court  the  appellant 
makes  no  claim  that  the  city  was  not  negligent,  but  a  reversal  is  sought 
on  other  grounds.     *     *     * 

It  was  shown  without  dispute  that  plaintiff  had  been  blind  for  many 
years,  and  this  fact  is  the  basis  of  the  criticism  upon  the  charge  given 

-*  i'arts  of  the  opiuiou  are  omitted. 


Ch.  1)  NEGLIGENCE  937 

to  the  jury.    In  the  third  paragraph  of  the  charge,  the  court,  definmg 
negligence,  said : 

"(3)  Negligence  is  defined  to  be  the  want  of  ordinary  care;  that  is,  such 
care  as  an  ordinary  prudent  person  would  exercise  under  like  circumstances. 
There  is  no  precise  definition  of  ordinary  care,  but  it  may  be  said  that  it  is 
such  care  as  an  ordinarily  prudent  person  would  exercise  under  like  circum- 
stances, and  should  be  proportioned  to  the  danger  and  peril  reasonable  to  be 
apprehended  from  a  lack  of  proper  pnidence.  This  rule  ai)plies  alike  to  both 
parties  to  this  action,  and  may  be  used  in  determining  whether  either  was 
negligent." 

In  the  eighth  paragraph,  referring  to  the  plaintiff's  duty  to  exercise 
care  for  his  own  safety,  the  following  language  is  used : 

"(8)  It  must  also  appear  from  the  evidence  that  the  plaintiff  did  not  in  any 
way  contribute  to  the  happening  of  the  accident  in  question  by  any  negligence 
on  his  pai't ;  that  is,  by  his  own  want  of  ordinary  care.  Tlie  plaintiff,  on  his 
part,  was  under  obligation  to  use  ordinary  care  to  prevent  injury  when  passing 
over  any  sidewalk,  and  if  he  failed  so  to  do,  and  his  failure  in  any  way  con- 
tributed to  the  happening  of  the  accident  in  question,  then  lie  cannot  recover 
herein.  The  evidence  shows  without  dispute  that  he  was  blind,  and  this  fact 
should  be  considered  by  you  in  detenuining  what  ordinary  care  on  his  part 
would  require  when  he  was  attempting  to  pass  over  one  of  the  sidewalks 
of  this  city." 

Counsel  for  appellant  does  not  deny  that  the  rules  here  laid  down 
would  be  a  correct  statement  of  the  law  of  negligence  and  contribu- 
tory negligence  as  applied  to  the  ordinary  case  of  sidewalk  accident, 
but  it  is  urged  that  the  conceded  fact  of  plaintiff's  blindness  made  it 
the  duty  of  the  court  to  say  to  the  jury  that  a  blind  person  who 
attempts  to  use  the  public  street  "must  exercise  a  higher  degree  of 
care  and  caution  than  a  person  ordinarily  would  be  expected  or  re- 
quired to  use  had  he  full  possession  of  his  sense  of  sight." 

We  cannot  give  this  proposition  our  assent.  It  is  too  well  estab- 
lished to  require  argument  or  citation  of  authority  that  the  care  which 
the  city  is  bound  to  exercise  in  the  maintenance  of  its  streets  is  ordi- 
nary and  reasonable  care,  the  care  which  ordinarily  marks  the  con- 
duct of  a  person  of  average  prudence  and  foresight.  So,  too,  it  is 
equally  well  settled  that  the  care  which  a  person  using  the  street  is 
bound  to  exercise  on  his  own  part  to  discover  danger  and  avoid  acci- 
dent and  injury  is  of  precisely  the  same  character,  the  ordinary  and 
reasonable  care  of  a  person  of  average  prudence  and  foresight.  The 
streets  are  for  the  use  of  the  general  public  without  discrimination ; 
for  the  weak,  the  lame,  the  halt  and  the  blind,  as  well  as  for  those 
possessing  perfect  health,  strength  and  vision.  The  law  casts  upon 
one  no  greater  burden  of  care  than  upon  the  other.  It  is  true,  how- 
ever, that  in  determining  what  is  reasonable  or  ordinary  care  we 
must  look  to  the  circumstances  and  surroundings  of  each  particular 
case.  As  said  by  us  in  Graham  v.  Oxford,  105  Iowa,  708.  75  N.  W. 
474:  "There  is  no  fixed  rule  for  determining  what  is  ordinary  care 
applicable  to  all  cases,  but  each  case  must  be  determined  according  to 
its  own  facts." 


938  TORTS  THROUGH   ACTS  OF  CONDITIONAL   LIABILITY         (Part  3 

In  the  case  before  us  the  plaintiff's  blindness  is  simply  one  of  the 
facts  which  the  jury  must  give  consideration  in  finding  whether  he 
did  or  did  not  act  with  the  care  which  a  reasonably  prudent  man  would 
ordinarily  exercise  when  burdened  by  such  infirmity.  In  other  words, 
the  measures  which  a  traveler  upon  the  street  must  employ  for  his  own 
protection  depend  upon  the  nature  and  extent  of  the  peril  to  which  he 
knows,  or  in  the  exercise  of  reasonable  prudence  ought  to  know,  he  is 
exposed.  The  greater  and  more  imminent  the  risk,  the  more  he  is 
required  to  look  out  for  and  guard  against  injury  to  himself ;  but  the 
care  thus  exercised  is  neither  more  nor  less  than  ordinary  care — the 
care  wdiich  men  of  ordinary  prudence  and  experience  may  reasonably 
be  expected  to  exercise  under  like  circumstances.  See  cases  cited  in 
21  A.  &  E.  Enc.  Law  (2d  Ed.)  465,  note  1.  In  the  case  at  bar  the 
plaintiff  was  rightfully  upon  the  street,  and  if  he  was  injured  by  rea- 
son of  ihe  negligence  of  the  city,  and  without  contributory  negligence 
on  his  part,  he  was  entitled  to  a  verdict.  In  determining  whether  he 
did  exercise  due  care  it  was  proper  for  the  jury,  as  we  have  already 
indicated,  to  consider  his  blindness,  and  in  view  of  that  condition,  and 
all  the  surrounding  facts  and  circumstances,  find  whether  he  exercised 
ordinary  care  and  prudence.  If  he  did,  he  was  not  guilty  of  contribu- 
tory negligence.  This  view  of  the  law  seems  to  be  fairly  embodied 
in  the  instructions  to  which  exception  is  taken.  If  the  appellant  be- 
lieved, as  it  now  argues,  that  the  charge  should  have  been  more  spe- 
cific, and  dwelt  with  greater  emphasis  upon  the  fact  of  plaintiff's 
blindness  as  an  element  for  the  consideration  of  the  jury  in  finding 
whether  he  exercised  reasonable  care,  it  had  the  right  to  ask  an  in- 
struction framed  to  meet  its  views  in  that  respect.  No  such  request 
was  made,  and  the  omission  of  the  court  to  so  amplify  the  charge  on 
its  own  motion  was  not  error.-^ 


DIMAURO  V.  LINWOOD  ST.  RY.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1908.    200  Mass.  147,  85  N.  E.  S9i.) 

Action  by  Dimauro,  brought  under  Revised  Laws  Mass.  c.  Ill,  § 
267,-"  to  recover  for  the  alleged  wrongful  death  of  the  plaintift''s  in- 
testate.    Verdict  ordered  for  the  defendant,  and  the  plaintiff  appeals. 

25  A  portion  of  the  opinion,  on  other  points,  is  omitted. 

26  This  statute  provided  that  "if  a  corporation  which  operates  a  railroad 
or  a  street  railway,  hy  reason  of  its  nejrli^'ciice  or  hy  reason  of  the  unfitness  or 
gross  negligence  of  its  agents  or  servants  wliile  engaged  in  its  business,  causes 
the  death  of  a  passenger,  or  of  a  person  wiio  is  in  the  exercise  of  due  care  and 
who  is  not  a  passenger  or  in  the  employ  of  such  corporation,  it  sliall  be  punished 
by  a  fine  of  not  less  than  $.'00  nor  more  than  .frj,0(U>.  *  *  *  Such  corporation 
shall  also  be  liatile  in  damages  in  the  sum  of  not  less  than  .$500  nor  more  than 
.i;5,000,  which  shall  be  assessed  wilh  reference  to  the  degree  of  culpaiiility  of 
the  corporation  or  of  its  servant's  or  agents,  and  shall  be  rcx;overeil  in  an  ac- 
tion of  tort  commenced  within  one  year  after  the  injury  which  caused  the 
death,  by  executor  or  administrator  of  the  deceased,"  etc.  Rev.  Laws  Mass. 
(lUUli)  c*  111,  §  207. 


Ch.  1)  NEGLIGENCE  039 

LoRixG,  J.  We  are  of  opinion  that  the  evidence  did  not  warrant 
a  finding  of  gross  neghgence  on  the  part  of  the  defendant's  servants. 

In  view  of  the  argument  made  in  the  case  at  bar  we  repeat  what  has 
been  decided:   (1)  It  was  decided  in  Banks  v.  Braman,  188  Mass.  367, 

74  N.  E.  594,  that  gross  neghgence  under  Rev.  Laws,  c.  Ill,  §  267, 
is  not  the  same  thing  as  a  wanton  act  which  dis])enses  with  proof  by 
a  plaintiff  of  the  fact  that  his  neghgence  was  not  a  contributory  cause 
of  the  accident.  See  in  this  connection  Lanci  v.  Boston  Elevated  Ry. 
Co.,  197  Mass.  32,  83  N.  E.  1,  a  note  to  Dolphin  v.  Worcester  Consol- 
idated St.  Ry.,  189  Mass.  270,  272,  75  N.  E.  635,  and  a  note  to  Fitz- 
maurice  v.  N.  Y.,  N.  H.  &  H.  R.  R.,  192  Mass.  159,  162,  78  N.  E. 
418,6  L.  R.  A.  (N.  S.)  1146,  116  Am.  St.  Rep.  236,  7  Ann.  Cas.  586. 
(2)  Gross  negligence,  as  distinguished  from  ordinary  negligence,  was 
created  by  the  act  under  which  this  action  was  brought  (Rev.  Laws, 
c.  Ill,  §  267),  and  exists  by  force  of  the  provisions  of  that  statute. 
See  Dolphin  v.  Worcester  Consolidated  St.  Ry.,  189  Mass.  270,  273, 

75  N.  E.  635.  (3)  In  Dolphin  v.  Worcester  Consolidated  St.  Ry.,  ubi 
supra,  where  the  degree  of  care  due  was  the  highest  degree  of  care, 
the  defendant  being  a  carrier  and  the  plaintiff  one  of  its  passengers,  it 
was  held  by  the  court  that  gross  negligence  means  a  gross  failure  to 
exercise  the  highest  degree  of  care.  Where  the  duty  owed  by  the  de- 
fendant is  to  exercise  ordinary  care,  gross  negligence  has  been  defined  to 
be  "a  materially  greater  degree  of  negligence  than  the  lack  of  ordinary 
care."  See  Lanci  v.  Boston  Elevated  Ry.  Co.,  supra ;  Brennan  v. 
Standard  Oil  Co.,  187  Mass.  376,  378,  7Z  N.  E.  472;  Manning  v. 
Conway,  192  Mass.  122,  125,  78  N.  E.  401.  In  such  a  case  gross  neg- 
ligence may  also  be  defined  to  be  a  failure  to  exercise  a  slight  degree 
of  care. 

The  evidence  introduced  by  the  plaintiff  showed  that  one  Paciello, 
his  intestate,  was  killed  by  a  car  of  the  defendant  railway  under  the 
following  circumstances.  He  was  a  member  of  a  gang  of  some  25  to 
30  Italians  engaged  in  digging  a  trench  for  sewer  pipes.  This  trench 
was  in  a  public  way  between  Linwood,  a  station  on  a  steam  rail- 
road, and  the  town  of  Whitinsville.  In  this  same  public  way  the 
tracks  of  the  defendant  railway  were  laid.  On  the  day  in  question  a 
heap  of  gravel  and  cobblestones,  some  three  feet  high  in  the  middle 
of  the  heap,  had  been  made  by  the  dumping  of  material  which  came 
from  the  digging  of  the  trench.  Several  teams  had  dumped  loads  at 
this  point  before  the  team  in  question  came  there  to  dump  its  load. 
The  method  of  dumping  had  been  for  the  successive  teams  to  drive  up 
on  to  the  gravel  previously  dumped,  and  then  dump  its  load.  The 
plaintift"s  intestate  and  another  Italian,  Delgrosso  by  name,  were  dig- 
ging in  the  trench  when  the  team  in  (|uestion  drove  up  on  to  the  heap 
of  gravel.  It  was  a  four-wheel  dump  cart.  Paciello  and  Delgrosso 
left  the  trench  to  help  dump  this  load  of  gravel.  The  horses  and 
cart  had  come  to  a  stop  parallel  to  the  defendant's  track,  with  the 
tracks  on  the  left  of  the   team  as   the  team   stood  facing  Linwood. 


940  TORTS  THROUGH  ACTS  OF   CONDITIONAL  LIABILITY         (Part  3 

Rosetti,  the  foreman  of  the  gang,  stood  at  the  front  of  the  team, 
prying  up  the  forward  end  of  the  dump  cart  with  an  iron  bar.  Paciello 
and  Delgrosso  Avere  at  the  back  of  the  cart,  one  on  each  side  of  it, 
bearing  down  on  that  end  to  help  dump  the  gravel. 

The  evidence  put  the  hub  of  the  rear  wheel  of  the  dump  cart  "about 
3  to  4  feet  from  the  track,"  and  the  overhang  of  the  defendant's  car 
at  10  to  12  inches.  This  left  a  clearance  of  2  to  3  feet  between  the 
hub  of  the  wheel  and  the  defendant's  car.  Paciello  was  on  the  side  of 
the  dump  cart  facing  toward  Linwood,  that  is  to  say,  with  his  back 
toward  Whitinsville,  where  the  car  in  question  was  coming  from.  He 
was  bending  over,  bearing  down  on  the  end  of  the  car  (as  we  have 
said),  wdien  Rosetti  the  foreman  called  out  to  him,  "Guarda  tevo  per 
carro,"  or  "Guarda  tevo  del  carro,"  which  being  translated  means 
"Look  out  for  the  car"  or  "Look  out  for  the  cart."  Thereupon  Pa- 
ciello straightened  up,  looked  round  over  his  right  shoulder,  and  in 
doing  so  brought  his  body  over  the  line  of  the  outside  of  the  defend- 
ant's car,  was  struck  on  the  hip,  rolled  over  and  was  killed  by  the  rear 
wheels.  Rosetti's  exact  words  were:  "He  moved  his  body  or  the 
car  would  not  have  touched  him."  The  distance  from  the  place  where 
Paciello  was  struck  to  the  place  where  he  lay  dead  was  8  to  10  feet, 
and  the  back  end  of  the  car,  when  it  came  to  a  stop,  was  10  to  12 
feet  from  the  body  of  Paciello  where  it  lay  dead.  The  car  was  28 
feet  long,  so  that  from  the  place  where  Paciello  was  struck  to  the 
place  where  the  car  stopped  was  about  50  feet. 

Rosetti  testified  that  he  saw  the  defendant's  car  when  it  was  100 
feet  away,  and  that  he  then  called  out  for  it  to  stop.  Seeing  that  there 
was  no  change  in  its  speed  he  signaled  it  to  stop  by  raising  his  hand, 
but  the  car  continued  to  come  on  at  the  same  rate  of  speed.  He  also 
testified  that  the  motorman  was  looking  in  his  direction  all  the  time. 

It  was  proved  that  the  defendant  had  issued  an  order,  properly 
posted,  that  cars  "should  not  run  exceeding  4  miles  an  hour  by  the 
sewer  construction." 

In  addition  there  was  evidence  from  an  expert  as  to  a  hypothetical 
case,  covering  what  the  jury  were  warranted  in  finding  to  be  the  facts 
in  the  case  at  bar,  that  a  motorman  with  a  slack  brake  chain  ought 
to  have  been  able  to  stop  the  car  running  4  miles  an  hour  within  20 
feet,  and  at  5  miles  an  hour  within  27  feet. 

The  only  testimony  as  to  the  speed  at  which  the  defendant's  car  was 
running,  in  addition  to  Avhat  has  been  stated,  came  from  Delgrosso, 
who  said  that  the  car  was  coming  all  the  time  at  the  same  rate  of 
speed ;    "in  a  hurry ;    fast." 

This  warranted  a  finding  that  the  defendant's  car  was  going  faster 
than  5  miles  an  hour.  That  fact  in  connection  with  the  defendant's 
rule  that  its  cars  should  not  run  over  4  miles  an  hour  while  going  by 
sewer  construction,  would  have  warranted  a  finding  that  the  motorman 
was  negligent  within  the  rule  established  in  Stevens  v.  Boston  Elevated 
R.,  184  Alass.  476,  69  N.  E.  338. 


Ch.  1)  NEGLIGENCE  94] 

But  the  question  here  is  whether  the  evidence  warranted  a  finding 
of  gross  neghgence  on  the  part  of  the  motorman,  and  we  are  of  opin- 
ion that  it  did  not.  It  is  true  that  the  jury  were  warranted  in  finding 
that  the  motorman  saw  or  ought  to  have  seen  Paciello.  But  it  is  also 
true  that  there  was  a  clearance  of  2  to  3  feet  between  the  hub  of  the 
wheel  and  the  motorman's  car,  and  that  Paciello  would  not  have 
been  hurt  if  he  had  stayed  where  he  was  and  not  swung  himself  out 
into  the  line  of  the  side  of  the  car  just  as  the  car  reached  him.  To 
run.  a  car  at  something  over  5  miles  an  hour  under  these  circumstances 
is  not,  in  our  opinion,  evidence  of  gross  negligence. 

The  plaintift"'s  counsel  contended  that  the  evidence  in  the  case  at 
bar  was  stronger  than  that  in  the  following  cases :  Com.  v.  Vermont  & 
Massachusetts  Ry.,  108  i\Iass.  9,  11  Am.  Rep.  301 ;  Tilton  v.  Boston  & 
Albany  R.  R.,  169  Mass.  253,  47  N.  E.  998 :  Young  v.  N.  Y.,  N.  H. 
&  H.  R.  R.,  171  Mass.  33,  50  N.  E.  455,  41  L.  R.  A.  193 ;  Walsh  v. 
Boston  &  Maine  R.  R.,  171  Mass.  52-56,  50  N.  E.  453;  Lutolf  v. 
United  Electric  Light  Co.,  184  :Mass.  53-58,  67  N.  E.  1025 ;  Hartford 
V.  N.  Y.,  N.  H.  &  H.  R.  R.,  184  Mass.  365,  68  N.  E.  835 ;  Hale  v. 
N.  Y.,  N.  H.  &  H.  R.  R.,  190  Mass.  85,  76  N.  E.  656.  We  have  ex- 
amined these  cases  and  find  that  they  do  not  support  that  contention. 

Exceptions  overruled. 


WALTHER  V.  SOUTHERN  PAC.  CO.     %^ 

(Supreme  Court  of  California,  1911.     159  Cal.  769,  116  Pae.  51,  37  L.  R.  A. 

[N.  S.]  769.) 

The  plaintiff's  intestate  was  killed,  on  March  28,  1907,  in  the  de- 
railment of  a  Southern  Pacific  passenger  train.  The  accident  occurred 
in  the  defendant's  yard,  and  was  caused  by  the  train  running  from 
the  main  track  into  an  open  switch  at  a  speed  of  some  45  miles  an  hour. 
The  switch  had  been  left  open  by  the  switch  foreman,  who,  with  his 
crew,  were  working  on  the  siding  at  the  time,  and  who  had  neglected 
to  keep  himself  advised  of  the  whereabouts  of  the  train,  which  was 
long  overdue,  and  had  left  the  switch  open  in  violation  of  the  rules  of 
the  defendant.  Deceased  was  an  employe  of  defendant,  but  at  the 
time  of  the  accident  and  for  some  months  next  preceding  the  same 
was  absent  on  leave.  At  the  time  of  the  accident  he  was  returning 
from  a  journey  to  an  Eastern  state  to  his  home  in  California.  He 
was  riding  on  a  pass,  good  until  jMarch  31,  1907,  which  had  been 
issued  to  him  by  defendant  for  the  purposes  of  his  journey.  It  was 
found  by  the  trial  court,  in  accord  with  a  stipulation  of  the  parties, 
that  the  pass  was  issued  to  him  as  an  employe,  "in  accordance  with  the 
long  established  practice  of  the  company,  and  one  well  known  to  its 
employes,  to  furnish  passes  from  time  to  time  to  its  employes."  There 
was  no  other  consideration  for  such  pass.  It  contained  the  following 
statements,  subscribed  by  the  deceased :    "This  is  a  free  pass  based 


942  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  8 

upon  no  consideration  wliatever.  The  person  accepting  and  using  this 
pass,  in  consideration  of  receiving  the  same,  agrees  that  the  Southern 
Pacific  Company  shall  not  be  liable  under  any  circumstances,  whether 
of  negligence — criminal  or  otherwise — of  its  agents  or  others,  for  any 
injury  to  the  person,  or  for  any  loss  or  damage  to  the  property  of  the 
individual  using  this  pass ;  and  that  as  to  such  person  the  company 
shall  not  be  considered  as  a  common  carrier,  or  liable  as  such." 

This  action  was  brought  by  plaintifif  to  recover  the  damage  caused 
her  by  the  death  of  her  husband,  being  based  upon  section  Z77 ,  Code 
of  Civil  Procedure,  which  provides  that,  when  the  death  of  a  person 
not  being  a  minor  is  caused  by  the  wrongful  act  or  neglect  of  another, 
his  heirs  or  personal  representatives  may  maintain  an  action  for  dam- 
ages against  the  person  causing  the  death,  or,  if  such  person  be  em- 
ployed by  another  person  who  is  responsible  for  his  conduct,  then  also 
against  such  person.  In  her  complaint  she  alleged  that  the  accident 
and  the  consequent  death  of  deceased  were  caused  by  the  "gross  neg- 
ligence" of  defendant,  and  these  allegations  were  found  by  the  trial 
court,  which  tried  the  case  without  a  jury,  to  be  true.  Damages  were 
assessed  at  the  sum  of  $8,000,  and  judgment  was  given  in  favor  of 
plaintiff  for  that  amount.  This  is  an  appeal  by  defendant  from  such 
judgment. 

Angellotti,  J,  *  *  *  The  ultimate  question  presented  by  this 
appeal  is  whether  the  provision  in  the  pass  purporting  to  exempt  de- 
fendant from  liability  for  the  negligence  of  its  agents  precluded  a  re- 
covery under  the  circumstances  of  this  case.     *     *     * 

We  think  that  the  question  of  public  policy  in  regard  to  such  con- 
tracts of  exemption,  even  as  to  passengers  carried  gratuitously,  has 
been  settled  in  this  state  by  legislative  enactment.  Section  2175,  Civil 
Code,  provides :  "A  common  carrier  cannot  be  exonerated,  by  any 
agreement  made  in  anticipation  thereof,  from  liability  for  the  gross 
negligence,  fraud,  or  wilful  wrong  of  himself  or  his  servants."  Aside 
from  the  question  of  the  meaning  of  the  term  "gross  negligence"  as 
used  in  this  section,  it  is  earnestly  contended  that  the  section  has  no 
application  in  the  case  of  one  carried  without  consideration  of  any 
kind,  and  that  as  to  such  a  passenger  the  carrier  is  not  a  common 
carrier  at  all.  We  arc  of  the  opinion  that  the  question  of  considera- 
tion cuts  no  figure  in  determining  the  applicability  of  the  section. 
Section  2168,  Civil  Code,  contained  in  the  same  chapter,  which  is  en- 
titled "Common  Carriers  in  General,"  declares  that  "every  one  who 
offers  to  the  public  to  carry  persons,  property,  or  messages,  excepting 
only  telegraphic  messages,  is  a  common  carrier  of  whatever  he  thus 
offers  to  carry,"  and,  of  course,  the  defendant  was  under  this  defini- 
tion a  common  carrier  of  persons.  As  such,  under  other  provisions 
of  the  same  chai)ter  and  other  chapters,  it  was  entitled  to  refuse  to 
carry  any  person  except  upon  compliance  with  certain  requirements, 
including  the  payment  of  a  prescribed  reasonable  compensation,  but 
at  the  time  of  this  accident  at  least  it  could  legally  waive  any  of  these 


Ch.  1)  NEGLIGENCE  943 

requirements  on  the  part  of  the  passenger,  and  could  receive  and 
carry  him  for  a  reduced  or  different  consideration,  or  aUogether  with- 
out consideration. 

But,  on  whatever  terms  a  common  carrier  of  persons  voluntarily 
receives  and  carries  a  person,  the  relation  of  common  carrier  and  pas- 
senger exists.  This  is  recognized  by  some  of  the  authorities  uphold- 
ing the  exemption  from  liability  for  negligence  provision  in  the  case 
of  a  passenger  carried  gratuitously.  See  Rogers  v.  Kennebec  Steam- 
boat Co.,  supra  [86  Me.  261,  29  Atl.  1069,  25  L.  R.  A.  491].  The 
sole  inquiry  in  this  regard  is,  as  has  been  said,  whether  the  person 
was  law^fully  on  the  vehicle  (see  Ohio  &  Miss.  R.  Co.  v.  Muhling,  30 
111.  9,  81  Am.  Dec.  336),  has  been  voluntarily  received  by  the  com- 
mon carrier  on  any  terms  for  the  purpose  of  carriage,  and  is  not,  as 
was  the  case  in  Sessions  v.  Southern  Pacific  Co.,  159  Cal.  599,  114 
Pac.  982,  a  mere  trespasser  on  the  vehicle. 

The  voluntary  waiver  of  all  claim  for  compensation  for  carriage 
of  a  person  does  not  take  away  from  the  status  of  the  carrier  as  a 
common  carrier  so  far  as  the  person  carried  is  concerned,  any  more 
than  would  a  special  reduction  in  the  amount  of  compensation  charged 
or  a  special  concession  as  to  some  other  authorized  requirement  ac- 
complish such  effect.  The  carrier  is  still  a  common  carrier  as  to 
such  person,  with  all  the  obligations  of  a  common  carrier,  except  in 
so  far  as  those  obligations  are  limited  by  contract  provisions  which 
are  not  inhibited  by  law.  Other  sections  of  our  Civil  Code  permit 
such  limitations  as  to  certain  matters  not  here  involved,  but  section 
2175  expressly  prohibits  limitations  of  liability  for  gross  negligence 
on  the  part  of  the  common  carrier  or  his  servants,  wdiatever,  as  we 
read  the  various  sections  bearing  upon  this  matter,  may  be  the  terms 
upon  w^hich  it  receives  and  undeitakes  to  carry  a  passenger. 

This  brings  us  to  a  consideration  of  the  question  of  the  meaning 
of  the  term  "gross  negligence,"  as  used  in  section  2175,  Civil  Code, 
for  under  the  views  already  stated  the  exemption  provision  in  the 
pass  of  deceased  was  not  effectual  to  free  defendant  from  liability  for 
damages  resulting  from  "gross  negligence"  of  the  defendant  or  its 
servants,  within  the  meaning  of  the  term  "gross  negligence,"  as  used 
in  said  section.  The  contention  of  learned  counsel  for  defendant  is 
that  these  words,  in  the  connection  in  which  they  are  used,  imply 
something  in  the  nature  of  willful  wrong,  and  do  not  include  any- 
thing in  the  nature  of  a  mere  omission  to  exercise  care  without  knowl- 
edge that  such  omission  will  probably  result  in  injury  to  others.  Sec- 
tion 2175  was,  as  it  now  stands,  a  part  of  the  original  Civil  Code 
adopted  in  the  year  1872.  This  Code  contained  two  sections  declar- 
ing that  there  are  three  degrees  of  care  and  diligence,  "slight,"  "or- 
dinary," and  "great,"  and  three  degrees  of  negligence,  "slight,"  "ordi- 
nary," and  "gross."  "Slight  care"  was  defined  as  that  "which  is  such 
as  persons  of  ordinary  prudence  usually  exercise  about  their  own 
affairs  of  slight  importance,"  and  "gross  negligence"  was  defined  as 


9-4'i:  TORTS  THROUGH  ACTS   OF  CONDITIONAL   LIABILITY         (Part  3 

that  "which  consists  in  the  want  of  sHght  care  and  diligence."  Sec- 
tions 16  and  17.  These  sections  were  repealed  outright  in  1874,  but 
such  repeal  cannot  alTect  the  question  of  the  construction  of  the 
words  "gross  negligence"  in  section  2175,  Civil  Code,  as  it  is  the  in- 
tention of  the  Legislature  at  the  time  of  the  adoption  of  the  latter 
section  that  must  control. 

We  see  no  warrant  for  holding  that  the  term  "gross  negligence" 
as  used  therein  was  intended  to  miean  other  than  the  "gross  negligence" 
defined  in  section  17  of  the  same  act  "to  establish  a  Civil  Code," 
which  was  simply  "the  want  of  slight  care  and  diligence."  This  must 
necessarily  have  been  the  view  of  this  court  in  Donlon  Bros.  v.  South- 
ern Pacific  Co.,  151  Cal.  763,  766,  91  Pac.  603,  11  L.  R.  A.  (N.  S.) 
811,  12  Ann.  Cas.  1118,  for  an  examination  of  the  record  shows  that 
there  could  have  been  no  other  ground  for  the  expression  of  opinion 
"that  there  was  sufficient  evidence  in  the  case  warranting  the  jury  in 
finding  that  the  defendant  was  guilty  of  gross  negligence  occasioning 
the  loss  and  injury  complained  of."  It  was  also  recognized  in  Mer- 
rill V.  Pacific  Transfer  Co.,  131  Cal.  582,  589,  63  Pac.  915,  upon 
evidence  that  was  utterly  destitute  of  anything  in  the  nature  of  a 
showing  of  willful  or  wanton  wrong,  that  the  question  whether  or 
not  the  common  carrier  was  guilty  of  gross  negligence  was  one  for 
the  jury  to  pass  upon  under  proper  instructions.  But  regardless  of 
these  expressions  of  opinion,  both  of  which  were  made  under  such 
circumstances  that  they  may  reasonably  be  claimed  not  to  constitute 
binding  authority  on  the  question,  we  are  satisfied  that  the  definition 
of  the  "gross  negligence"  of  section  2175,  Civil  Code,  must  be  found 
in  sections  16  and  17  of  the  Civil  Code,  as  the  same  were  adopted  in 
1872. 

Accepting  this  definition  of  gross  negligence,  it  cannot  reasonably 
be  contended  that  the  evidence  was  not  legally  sufficient  to  support 
the  finding  of  the  trial  court  that  the  deceased  was  killed  by  the  gross 
negligence  of  defendant's  servants.  The  question  of  the  existence 
of  such  gross  negligence  was  one  for  the  trial  court,  and,  the  facts 
being  legally  sufficient  to  warrant  the  inference  drawn,  an  appellate 
court  cannot  properly  disturb  the  conclusion  reached  by  that  tribunal. 

The  conclusion  we  have  arrived  at  upon  the  points  already  discussed 
renders  it  unnecessary  to  consider  other  questions  argued  in  the  briefs, 
and  compels  an  affirmance  of  the  judgment. 

The  judgment  is   affirmed.^'' 

2  7  The  statement  is  abridged  and  parts  of  the  opinion  are  omitted.  Sloss 
and  Shaw,  JJ.,  concurred.  Beatty,  C.  J.,  dissented  on  the  ground  that  the 
opinion  lays  down  too  broad  a  rule,  because  "the  issuance  of  a  free  pass  to  a 
railway  employ^  rests  upon  a  valuable  consideration." 


Ch.  1)  NEGLIGENCE  945 


GEORGE  N.  PIERCE  CO.  v.  WELLS  EARGO  &  CO. 

(Circuit  Court  of  Appeals  of  the  United  States,  Second  Circuit,  1911. 
189  I'ed.  501,  110  C.  C.  A.  645.) 

Ward,  Circuit  Judge.  The  plaintiff,  a  manufacturer,  brought  this 
action  at  law  to  recover  of  the  defendant,  an  express  company,  the 
value  of  a  car  load  of  automobiles  and  appurtenances  which  it  had 
delivered  to  the  defendant  to  be  carried  from  Buffalo  to  San  Fran- 
cisco. The  defendant  admitted  its  liability,  and  the  trial  judge  di- 
rected the  jury  to  find  a  verdict  in  favor  of  the  plaintiff  for  $50,  the 
agreed  value  of  the  shipment,  with  interest  and  costs.  The  plaintiff 
took  out  this  writ  of  error  to  the  judgment  entered  on  the  verdict  on 
the  ground  that  the  jury  should  have  been  directed  to  find  a  verdict 
for  the  actual  value  of  the  shipment,  which  was  over  the  sum  of  $15,- 
000. 

The  bill  of  lading  under  which  the  goods  were  carried  provided : 
"  *  *  *  Nor  shall  said  company  be  liable  for  any  loss  of  or  dam- 
age to  said  property  in  any  event  or  for  any  cause  whatever  unless 
said  loss  or  damage  shall  be  proved  to  have  been  caused  by  or  to  have 
resulted  from  the  fraud  or  gross  negligence  of  said  company  or  its 
servants ;  nor  in  any  event  shall  said  company  be  held  liable  beyond 
the  sum  of  fifty  dollars,  at  not  exceeding  which  sum  the  said  prop- 
erty is  hereby  valued,  unless  a  dift"erent  value  is  hereinabove  stat- 
ed.    *     *     *" 

There  is  nothing  against  public  policy  in  the  first  clause  above  quot- 
ed. The  federal  courts  recognize  no  difference  between  gross  and 
ordinary  negligence.  Railway  Co.  v.  Arms,  91  U.  S.  489,  23  L.  Ed. 
374.  In  all  cases  negligence  is  failure  to  exercise  the  care  appropriate 
to  the  circumstances  of  the  particular  case.  Greater  care  is  called 
for  in  transporting  eggs  than  in  transporting  pig  iron.  Therefore  the 
clause,  though  it  exempts  the  defendant  from  its  liability  as  insurer, 
which  is  lawful,  does  not  exempt  it  from  the  consequences  of  its  own 
fraud  or  negligence,  which  would  be  unlawful  as  against  public  pol- 
icy. It  remained  liable  for  its  negligence  to  the  full  amount  agreed 
upon.     Such  a  contract  is  valid  in  the  federal  courts.     *     *     * 

The  judgment  is  affirmed.^ ^ 

2s  Only  so  much  of  the  case  is  given  as  relates  to  the  one  point. 

JNoyes,  Circuit  Judge,  dissented,  on  the  ground  that  the  weight  of  author- 
ity in  this  country  is  to  the  effect  that  the  same  principles  of  public  policy 
which  condemn  total  exemptions  from  liability  for  negligence  condemn  par- 
tial exemptions,  and  that  such  limitations,  as  distinguished  from  agreed  valu- 
ations, are  invalid. 

Hepb. Torts — 60 


946  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

II.  De;fsndant's  Failure;  to  Use  Care 
SHERMAN  V.  WESTERN  TRANSP.  CO. 

(Supreme  Court  of  New  York,  1861.     62  Barb.  150.) 

This  action,  on  the  issues  raised  by  a  general  denial,  was  referred 
to  a  ref er\;e,  who  found : 

That  the  plaintiff  and  the  defendant,  in  the  boating  season  of  1859  were 
each  lawfully  navigating  the  Erie  Canal,  the  plaintiff  with  the  canal  boat 
Sarah,  the  defendant  with  tlie  Rosebud :  that  while  these  boats  were  pass- 
ing each  otlier,  the  tow-line  of  the  plaintiff's  boat  Sai"ah  caught  underneath 
the  defendant's  boat  Rosebud,  without  any  fault  on  the  part  of  the  plaintiff', 
and  in  conse(iuence  the  horses  of  the  plaintiff  were  drawn  into  the  canal  and 
one  of  them  was  drowned  and  the  other  injured:  that  the  plaintiff's  tow-line 
caught  on  some  part  of  the  l)ottom  of  the  defendant's  hoat  as  the  boats  were 
passing;  and  that  the  defendant  was  careless  and  negligent  in  not  having 
the  bottom  of  bis  boat  in  such  condition  at  all  times  wliile  navigating  the  ca- 
nal as  to  i>ermit  tow-lines  to  pass  underneath  it  without  catching;  and  that 
tlie  injury  in  question  occurred  in  consequence  of  this  negligence. 

Upon  this  report  judgment  was  entered  for  the  plaintiff;  the  de- 
fendant appealed. 

MuLLiN,  J.^**  *  *  *  It  is  of  the  essence  of  negligence  that  the 
party  charged  should  have  knowledge  that  there  was  a  duty  for  him 
to  perform,  or  he  must  have  omitted  to  inform  himself  as  to  what 
his  duty  was,  in  a  given  case.  Knowledge  is  presumed  in  a  great 
number  of  cases,  and  the  party  will  not  be  permitted  to  prove  that  he 
had  not  knowledge  of  his  duty.  Every  man  is  presumed  to  know  the 
law ;  and  hence,  when  the  law  imposes  a  duty  on  a  man,  it  presumes 
that  he  knew  of  it ;  and  it  will  not  permit  him  to  prove  that  he  did 
not.  When  the  specific  duty  is  not  imposed,  by  either  the  statute 
or  the  common  law,  the  party  alleging  negligence  must  show  that  the 
accused  was  cognizant  of  the  duty  he  is  charged  with  having  neg- 
lected. It  is  not  necessary  that  this  should  be  established  by  direct 
evidence ;  it  may  be,  and  almost  universally  is,  inferred  from  the 
nature  of  the  duty,  or  the  facts  and  circumstances  of  the  case. 

1  am  not  aware  of  any  statute  requiring  those  navigating  boats  on 
the  canals  to  have  the  bottoms  of  such  boats  so  made  as  to  permit 
tow-lines  to  pass  under  them  without  obstruction.  But  the  duty  is 
most  obvious  the  moment  a  person  becomes  acquainted  with  the  man- 
ner in  which  canal  boats  pass  each  other  in  the  canal.  And  the  per- 
son omitting  to  keep  the  bottom  of  his  boat  in  the  condition  required 
to  permit  the  free  passage  of  the  tow-line  of  another  boat  under  her 
is  responsible  for  whatever  damages  naturally  and  necessarily  flow 
from  his  neglect. 

To  perfect  his  liability  several  things  must  concur:  1.  Pie  must  be 
the  owner,  lessee,  or  captain  of  the  boat.     2.  The  bottom  of  his  boat 

2  0  Tarts  of  the  opinion  are  omitted.  The  statement  of  facts  has  been 
abridged. 


Ch.  1)  NEGLIGENCE  947 

must  be  such  as  not  to  permit  the  free  passage  of  the  towing  hne. 
3.  He  must  have  known  of  it  before  the  accident  a  sufficient  length 
of  time  to  enable  him  to  avoid  the  injury;  or,  4.  The  defect  must 
have  continued  so  long  as  to  satisfy  a  court  or  jury  that  if  he  had 
l)aid  proper  attention  to  his  boat  he  must  have  discovered  it.  5. 
Damage  must  have  been  sustained  by  reason  of  the  defect. 

There  is  no  question  made,  in  this  case,  but  that  the  defendant  is 
the  proper  party  defendant,  if  the  action  can  be  maintained.  The 
towing  line  of  the  plaintiff's  boat  was  caught  on  the  bottom  of  the 
defendant's  boat,  and  damages  have  been  sustained  by  the  plaintiff 
by  reason  of  the  catching  of  said  line.  Three  of  the  four  conditions 
necessary  to  be  proved  in  order  to  maintain  the  suit  have  been  estab- 
lished, in  this  case,  and  it  only  remains  to  inquire  whether  the  referee 
was  justified  in  finding  the  fourth. 

When  did  the  catch  attach  to  said  boat?  There  is  no  proof  that 
it  was  put  on  by  the  defendant,  or  anyone  in  its  employ.  It  is  not 
proved  that  it  w^as  on  an  hour  before  the  accident  happened ;  nor  that 
it  was  know^n  to  be  there  by  the  defendant,  or  any  of  its  agents, 
until  the  moment  it  occurred. 

I  admit  it  w^as  the  duty  of  the  defendant  to  so  construct  the  boat 
as  that  towing  lines  could  pass  freely  under  it,  and  that  it  should 
cause  examination  to  be  made,  from  time  to  time,  to  see  that  the  bot- 
tom of  the  boat  continued  in  such  condition.  The  boat,  in  passing 
through  a  lock,  or  over  a  stone  or  other  hard  substance  in  the  bottom 
of  the  canal,  might  tear  up  the  planking  on  the  bottom  so  as  to  catch 
and  retain  a  rope  passing  along  it.  The  end  of  a  plank  might  have 
become  loosened  and  sprung  off — a  spike  or  bolt  might  become  loose 
and  be  projected  beyond  the  surface  of  the  plank  and  catch  and  re- 
tain a  towing  line — and  the  defect  not  have  existed  ten  minutes  before 
the  accident. 

It  is  not  shown,  in  this  case,  but  that  the  injury  was  occasioned  in 
one  of  the  ways  suggested,  and  from  a  cause  originating  wdthin  the 
period  named. 

Nor  can  we  presume  that  the  bottom  of  this  boat  was  known  to 
the  defendant  to  be  in  a  condition  not  to  allow  the  free  passage  of 
towing  lines,  for  such  a  length  of  time  as  to  have  made  it  their  duty 
to  put  it  in  proper  order.  If  they  had  such  knowledge,  they  were 
guilty  of  negligence  in  not  putting  the  boat  in  good  order.  But  neg- 
ligence is  never  presumed.     1  Cowen  &  Hill's  Notes,  298,  478. 

In  the  case  of  Olmsted  v.  The  Watertowni  and  Rome  Railroad  Com- 
pany, decided  at  the  general  term  in  this  district  in  October,  1855, 
the  plaintiff  sued  the  defendant  for  damages  for  negligence  in  killing 
his  horse.  The  negligence  charged  consisted  in  the  company's  not 
maintaining  a  fence  of  the  requisite  height  along  the  side  of  their 
road,  whereby  the  horse  strayed  on  to  the  railroad  track  and  was  killed 
by  an  engine.  The  only  evidence  of  a  defect  in  the  fence  w^as  that 
one  of  the  stakes  which  supported  the  upper  rail  was  split,  and  one 


948  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

of  the  rails  had  fallen  down,  so  that  it  was  as  low  as  the  rail  next 
below  it,  thus  leaving  the  fence,  at  that  point,  below  the  required 
height  of  a  sufficient  fence.  It  was  further  proved  that  there  were 
marks  of  the  horse's  foot  on  the  top  of  the  upper  rail,  showing,  as 
the  plaintiff's  counsel  argued,  that  the  horse  had  gone  over  at  that 
place.  It  was  insisted  on  the  part  of  the  defendant,  that  there  was  no 
evidence  of  negligence ;  that  it  did  not  appear  that  the  fence  had  been 
defective  an  instant  before  the  horse  had  passed  over;  but  on  the  con- 
trary, the  marks  of  the  horse's  foot  being  left  on  the  rail  demonstrated 
that  he  had  struck  in  passing  over,  and  thus  splitting  the  stake,  and  let- 
ting down  the  bar.  The  court  so  held,  and  reversed  the  judgment  of 
the  county  court  affirming  that  of  the  justice,  which  was  in  favor  of 
the  plaintiff,  for  the  value  of  the  horse. 

The  principle  decided  in  that  case  is  decisive  of  this.  The  defective 
condition  of  the  bottom  of  the  boat  may  not  have  existed  sufficiently 
long  to  have  imposed  any  duty,  in  reference  to  it,  on  the  defendant. 
x\nd  if  its  condition  was  not  known,  or  had  not  existed  long  enough 
to  charge  the  defendant  with  notice  of  the  defect,  it  was  not  guilty 
of  neglect.  And  there  is  no  evidence  in  this  case  from  which  any 
such  inference  can  be  drawn.     *     *     * 

The  judgment  must  therefore  be  reversed,  and  a  new  trial  ordered; 
costs  to  abide  the  event. 

New  trial  granted. 


INDIANAPOLIS  TRACTION  CO.  v.   PRESSELL. 

(Appellate  Court  of  Indiana,  1906.    39  Ind.  App.  472,  77  N.  E.  357.) 

Action  against  the  traction  company  for  damages  sustained  by  a 

passenger  in  alighting  from  the  defendant's  open  car.     The  complaint 

in  its  first  paragraph  alleged  that  the  only  exit  from  the  car  was  at  its 

side,  by  means  of  a  single  step  extending  the  full  length  of  the  car; 

that  this  step  was  two  feet  above  the  top  of  the  rail ;  that  at  a  certain 

point  plaintiff  informed  the  conductor  that  she  wished  to  alight ;  that 

the  conductor  accordingly  stopped  the  car  to  enable  her  to  alight,  but 

that 

"Owing  to  the  condition  of  the  streets,  and  the  surface  of  the  earth  at  said 
point,  said  step  stood  at  a  point  three  feet  above  the  leA'el  of  the  eartli,  upon 
which  plaintiff  wasi  compelled  to  step  in  disonibarking:  that  the  defendant, 
notwithstanding  its  duty  to  furnish  and  piovide  a  safe  place  of  exit,  *  *  • 
negligently,  carelessly,  and  wrongfully  failed  and  refused  to  furnish  and  pro- 
vide any  additional  step  or  steps,  or  any  contrivance  other  than  said  single 
step,  whereby  the  egress  of  plaintiff  from  said  car  might  be  made  in  safety ; 
that  the  plaintiff,  in  the  due  and  proper  exercise  of  care,  attempted  to  dis- 
emliark  from  said  car  at  said  point,  l)ut  because  of  said  negligence  of  the  de- 
fendant, and  its  failure  and  refusal  to  do  and  perform  its  said  duties,  this 
plaintiff"  was  thrown,  and  fell  heavily  upon  the  earth." 

A  demurrer  to  each  paragraph  of  the  complaint  was  overruled  by  the 
court,  and  a  trial  by  jury  resulted  in  a  verdict  and  judgment  for  the 
plaintiff  for  $1000.    The  defendant  appealed. 


Ch.  1)  NEGLIGENCE  949 

Wiley,  J.     *     *     *  ^o     By  section  5454,  Burns'  1901  (section  4147, 
R.  S.  1881),  it  is  required  that  a  street  railway  track  within  city  lim- 
its "shall  conform  exactly  to  the  established  grade  of  such   street." 
There  is  no  allegation  in  the  complaint  that  appellant's  track  at  the 
place  of  injury  did  not  conform  to  the  established  grade.     We  may 
assume,  therefore,  as  against  the  pleading,  that  it  did.     There  is  no 
fact  averred   which   shows  a  negligent  construction   or  operation   of 
the  car,  and  neither  is  there  any  negligence  charged  as  to  the  con- 
struction of  the  track.     As  appellee  approached  the  point  where  "she 
desired  to  alight,  she  gave  the  signal  for  the  car  to  stop.     She  avers 
that  it  did  stop,  and  that  she  immediately  undertook  to  get  off.     It 
is  not  averred  that  the  car  stopped  at  any   improper  or   dangerous 
place,  or  that  there  was  a  safer  or  more  convenient  place  for  it  to 
stop.    There  are  no  facts  pleaded  from  which  it  can  be  said  that  appel- 
lant could  have  anticipated,  or  with  reasonable  care  have  prevented, 
the  accident.     It  appears   from  the  complaint  that  the  cause  of  the 
accident  was  the  distance  from  the  step  of  the  car  to  the  surface  of 
the  street,  and  that  that  distance  was  so  great  that  appellee  fell,  etc. 
The  surface  of  the  street  at  that  point  was  lower  than  the  top  of  the 
rail.     Assuming  that  the  track  was  laid  to  conform  to  the  established 
grade  of  the  street,  it  appears  that  the  surface  of  the  street  had  not 
been  maintained  in  that  condition.     Appellant  is  not  charged  with  the 
maintenance  of  streets  occupied  by  its  tracks,  outside  of  that  part  of 
the  street  actually  occupied  by  it.     It  is  not  averred  that  appellant  was 
old  or  infirm,  or  that  she  required  any  assistance  in  alighting  from  the 
car.     Ordinarily  it  is  not  the  duty  of  those  in  charge  of  a  street  car 
to  aid  passengers  to  get  on  and  off,  but  such  duty  would  only  arise 
where  there  is   an  apparent  necessity  for   such  assistance,   and  such 
necessity  is  brought  to  the  attention  of  the  servants.     If  there  is  any 
negligence  charged  in  the  first  paragraph,  it  is  the  failure  of  appel- 
lant to  furnish  an  extra  step  to  enable  appellee  to  alight  safely.     The 
facts  exhibited  do  not  justify  us  in  holding  that  such  a  legal  duty  de- 
volved upon  appellant.     In  Young  v.  Missouri  Pac.  R.  Co.  (1902)  93 
Mo.  App.  267,  it  was  said :    "We  know  of  no  law,  nor  has  our  atten- 
tion been  called  to  any,  w'hich  required  the  defendant  to  furnish  port- 
able steps  for  the  use  of  its  passengers  in  entering  or  leaving  any  of 
its  cars."     See,  also,  Barney  v.  Hannibal,  etc.,  R.  Co.  (1895)  126  Mo. 
372,  28  S.  W.   1069,  26  L.  R.  A.  847;    Texas,  etc.,  R.  Co.  v.  Frev 
(1901)  25  Tex.  Civ.  App.  386,  61  S.  W.  442.    In  this  paragraph  there 
are  no  facts  pleaded  which  show  that  there  was  any  necessity  existing 

3  0  The  statement  is  abridged.  Only  so  much  of  the  opinion  is  given  as  re- 
lates to  the  one  point.  The  court  expressed  an  opinion  nlso  that  the  plaintiff 
was  guilty  of  contributory  negligence,  on  the  ground  that  the  plaintiff  "is 
deemed  actually  to  have  seen  what  she  could  have  seen,  if  she  had  looked; 
and  also,  if  she  did  not  look,  or  if  she  did  look,  but  did  not  heed  what  she  saw, 
such  conduct  was  negligent  on  her  part." 


950  TORTS  THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

which  would  require  appellant  to  furnish  an  extra  step  at  the  place 
of  the  accident.     *     *     * 

The  judgment  is  reversed,  and  the  trial  court  is  directed  to  sustain 
the  demurrer  to  each  paragraph  of  the  complaint. 


/  SCOTT  V.  LONDON  &  ST.  KATHERINE  DOCKS  CO. 

(Court  of  Exchequer  Chamber,  1S65.    3  Hurl.  &  C.  596,  140  R.  R.  627.) 

This  was  an  appeal  against  the  decision  of  the  Court  of  Exchequer 
in  making  absolute  a  rule  to  set  aside  the  verdict  for  the  defendants 
and  for  a  new  trial. 

The  declaration  stated  that  the  defendants  were  possessed  of  a 
warehouse,  and  of  a  certain  crane  or  machine  for  lowering  goods 
therefrom,  and  at  the  time  of  the  grievances  committed  by  them  as 
hereinafter  mentioned,  they,  by  their  servants  in  that  behalf,  were 
lowering  by  the  said  crane  or  machine  from  the  said  warehouse  cer- 
tain bags  of  sugar  on  to  the  ground  and  stone  pavement  in  the  docks 
of  the  said  company,  and  on  and  along  which  the  plaintiff  was  then 
lawfully  passing;  and  the  defendants,  by  their  servants,  so  negligently, 
carelessly  and  improperly  lowered  the  said  bags  of  sugar  and  con- 
ducted themselves  in  that  behalf  that  the  same  came  and  fell  upon  and 
against  the  plaintiff :  Whereby  the  plaintiff  was  greatly  wounded, 
bruised,  hurt  and  permanently  injured,  &c.  Plea.  Not  guilty,  and 
issue   thereon. 

At  the  trial,  before  Martin,  B.,  at  the  London  sittings  after  Trinity 

Term,  1864,  the  plaintiff  deposed  as  follows : 

"I  am  an  officer  of  the  cuistoms.  I  am  an  auxiliary  examiner.  I  superin- 
tend weighing  gootls.  On  the  10th  of  January  I  had  performed  duty  at  the 
East  Quay  of  tlie  London  Docks.  I  was  directed  to  go  from  tihe  East  Quay 
to  the  Spirit  Quay  by  Mr.  Lilley,  the  surveyor.  I  went  to  tlie  Spirit  Quay 
in  order  to  do  duty.  I  proceeded  on  my  way.  There  are  wareliouses  on  the 
Spirit  Quay.  I  went  to  the  entrance  of  one  of  the  warehouses,  and  could  not 
lind  Mr.  Lilley.  I  was  told  he  was  in  anotlier  warehouse.  I  was  proceeding 
to  where  I  was  told  he  was  at  the  time  of  the  accident.  I  proceeded  to  the 
first  door  I  met  upon  the  quay.  I  went  into  the  warehouse  of  which  it  was 
the  door.  I  met  a  labouring  man  about  two  yards  within  the  waroliouse.  I 
asked  him  if  Mr.  Lilley  was  there.  He  said.  'No.  sir;  yon  will  find  him  in  the 
]X.ext  doorway.'  In  passing  from  one  doorway  to  the  other  I  was  felled  to  the 
ground  by  six  bags  of  sugar  falling  on  me.  (lie  then  de.scribed  the  injuries 
he  had  received. I  No  one  but  myself  was  at  the  place.  1  had  no  warning. 
There  was  no  fence  or  barrier.  No  one  called  out.  I  heard  the  rattling  of  a 
chain." 

At  the  conclusion  of  the  plaintiff's  examination  in  chief  the  learned 
Judge  expressed  his  opinion  that,  even  assuming  that  the  bags  of 
sugar  were  being  dealt  with  by  the  servants  of  the  defendants  in  the 
course  of  their  employment,  and  that  the  plaintiff  was  lawfully  pass- 
ing through  the  docks,  there  was  not  sufficient  evidence  of  negligence 
on  the  part  of  the  defendants  to  entitle  him  to  leave  the  case  to  the 


Ch.  1)  NEGLIGENCE  951 

jury;  and  his  Lordship  then  directed  the  jury  to  find  a  verdict  for 
the  defendants. 

The  SoHcitor-General,  in  the  following  Michaelmas  Term,  obtained 
a  rule  nisi  to  set  aside  the  verdict  and  for  a  new  trial,  on  the  ground 
that  there  was  evidence  for  the  jury  of  negligence  by  the  defendants' 
servants  ;  which  rule  was  made  absolute  in  the  same  Term  :  whereupon 
the   defendants   brought   this   appeal. 

Field  (]\Iurphy  with  him)  argued  for  the  defendants:  There  was 
no  evidence  of  negligence  which  ought  to  have  been  submitted  to  the 
jury.  This  case  is  distinguishable  from  Byrne  v.  Boadle,  2  H.  &  C. 
722,  because  the  place  in  which  the  accident  occurred  w^as  not,  as 
there,  a  public  highway,  but  a  dock  the  property  of  a  company,  and  the 
public  had  no  right  to  walk  in  front  of  the  warehouses.  If,  upon  the 
evidence,  the  facts  are  as  consistent  with  the  absence  of  negligence  as 
with  negligence,  there  is  no  evidence  for  the  jury.  *  *  *  The  ac- 
cident may  be  accounted  for  in  many  ways  consistent  wath  the  ab- 
sence of  negligence.  If  a  custom-house  officer,  in  the  performance  of 
his  duty,  boarded  a  ship  and  fell  down  an  open  hatchway,  the  fact  of 
the  accident  would  be  no  evidence  of  negligence.  (Blackburn,  J. 
There  is  an  old  pleading  rule,  that  less  particularity  is  required  when 
the  facts  lie  more  in  the  knov.dedge  of  the  opposite  party  than  of  the 
party  pleading.  Applying  that  here,  is  not  the  fact  of  the  accident 
sufficient  evidence  to  call  upon  the  defendants  to  prove  that  there  was 
no  negligence?) 

The  Solicitor-General,  for  the  plaintifif :  It  is  conceded  that  where 
the  evidence  is  as  equally  consistent  w^ith  due  care  as  with  negligence, 
there  is  no  case  for  the  jur}^  It  is  also  conceded  that  it  is  not  enough 
to  show  a  mere  scintilla  of  evidence.  No  rule  can  be  laid  down  that 
the  mere  fact  of  an  accident  is  evidence  of  negligence;  for  each  case 
must  depend  on  its  own  circumstances.  In  determining  what  evi- 
dence a  plaintiff  must  give,  regard  must  be  had  to  what  a  person  in 
his  position  may  be  reasonably  expected  to  give.  Assuming  that  there 
was  negligence  on  the  part  of  the  defendants  in  hiring  incompetent 
servants,  what  more  evidence  could  the  plaintiff  have  given  unless 
he  called  adverse  witnesses  to  prove  facts  peculiarly  within  the  knowl- 
edge of  the  defendants?  *  *  *  Xhe  true  test  is,  w^hether  the  case 
is  more  consistent  wdth  negligence  than  care.  Looking  at  the  simple 
fact  that  the  bags  of  sugar  fell  violently  upon  the  plaintiff,  this  case 
is  more  consistent  with  negligence  than  care.^^ 

Erle,  C.  J.  The  majority  of  the  Court  have  come  to  the  follow- 
ing conclusions : 

There  must  be  reasonable  evidence  of  negligence.  But  where  the 
thing  is  shown  to  be  under  the  management  of  the  defendant  or  his 
servants,  and  the  accident  is  such  as  in  the  ordinary  course  of  things 
does  not  happen  if  those  who  have  the  management  use  proper  care, 

31  The  arguments  of  counsel  are  slightly  abridged. 


952  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

it  affords  reasonable  evidence,  in  the  absence  of  explanation  by  the 
defendants,  that  the  accident  arose  from  want  of  care. 

We  all  assent  to  the  principles  laid  down  in  the  cases  cited  for  the 
defendants;  but  the  judgment  turns  on  the  construction  to  be  put  on 
the  Judge's  notes.  As  my  Brother  Mi;llor  and  myself  read  them 
we  cannot  find  that  reasonable  evidence  of  negligence  which  has  been 
apparent  to  the  rest  of  the  Court. 

The  judgment  of  the  Court  below  must  be  afifirmed,  and  the  case 
must  go  down  to  a  new  trial,  when  the  effect  of  the  evidence  will  in 
all  probability  be  more  correctly  ascertained. 

Judgment  affirmed. ^- 

32  "In  Scott  V.  London  Dock  Co.,  the  rule  now  known  by  the  catch-word  'res 
ipsa  loquitur'  was  clearly  laid  dowu,  it  is  thought  for  the  first  time,  by  the 
Exchequer  Chamber.  The  two  judges  who  did  not  agree  in  the  result  do  not 
/  appear  to  have  dissented  from  tJie  general  statement  of  the  law :  they  can 
J  hardly  have  thought,  on  the  facts,  that  the  falling  of  six  bags  of  sugar  on  a 
cjistoms  officer  did  not  call  for  some  explanation;  but  the  dissent  is  indi- 
cated with  seemingly  studious  obscurity,  and  may  well  be  left  in  that  condi- 
tion."    Sir  Frederick  Pollock.  140  R.  R.  vi. 

Compare:  Byrne  v.  Boadle  (1S63)  2  H.  &  C.  722,  133  R.  R.  701:  (P.  was 
walking  in  a  public  street  past  the  shop  of  D.,  a  dealer  in  flour,  when  a  bar- 
rel of  flour  fell  upon  P.  from  a  window  in  D.'s  premises,  above  his  shop. 
Pollock,  C.  B.,  remarked:  "The  learned  counsel  was  quite  right  in  saying 
that  there  are  many  accidents  from  which  no  presumption  of  negligence  can 
arise,  but  I  think  it  would  be  wrong  to  lay  down  as  a  rule  that  in  no  case 
can  presumption  of  negligence  arise  from  the  fact  of  an  accident.  Suppose 
in  this  case  the  barrel  had  rolled  out  of  the  warehouse  and  fallen  on  the 
plaintiff,  how  could  he  possibly  ascertain  from  what  cause  it  occurred?  It 
is  the  duty  of  persons  who  keep  barrels  in  a  warehouse  to  take  care  that  they 
do  not  roll  out,  and  I  think  that  such  a  case  \^■ould,  beyond  all  doubt,  afford 
prima  facie  evidence  of  negligence.  A  barrel  could  not  roll  out  of  a  ware- 
house without  some  negligence,  and  to  say  that  a  plaintiff  who  is  injured  by 
it  must  call  witnesses  from  the  warehouse  to  prove  negligence  seems  to  me 
preposterous.  *  *  *  ^^  man  is  passing  in  front  of  the  premises  of  a  dealer 
in  flour,  and  there  falls  do^^^l  upon  him  a  barrel  of  flour.  I  think  it  appai'ent 
that  the  barrel  was  in  the  custody  of  the  defendant  who  occupied  the  prem- 
ises, and  who  is  responsible  for  the  acts  of  his  servants  who  had  the  controul. 
of  it;  and  in  my  opinion  the  fact  of  its  falling  is  prima  facie  evidence  of 
negligence,  and  the  i)laintiff  who  was  injured  by  it  is  not  bound  to  show  that 
it  could  not  fall  without  negligence,  but  if  there  are  any  facts  inconsistent 
with  negligence  it  is  for  the  defendant  to  prove  them.") 
/^  Kearney  v.  London,  etc.,  Ry.  Co.  (1S71)  L.  R.  6  Q.  B.  760 :  (As  P.  was  pass- 
ing along  a  highway  under  D.'s  railway  bridge — a  girder  bridge  resting  on  a 
perpendicular  bric-k  wall  with  pilasters — a  brick  fell  from  the  top  of  the  wall 
and  struck  him.  There  was  no  assignable  cause  except  the  slight  vibration 
caused  by  a  passing  train.  The  bridge  had  been  built  and  in  use  for  three 
years.) 

Cincinnati,  etc.,  Ry.  Co.  v.  South  Fork  Coal  Co.  (1905)  71  C.  C.  A.  316,  130 
Fed.  528,  1  L.  R.  A.  (N.  S.)  533:  (Defendant's  train,  following  another  of  de- 
fendant's trains,  ran  into  it  with  such  force  that  the  engine  of  the  rear  train 
telescoi)ed.  several  oil  cars  in  the  forward  train.  The  oil  escaped  and  spark.s 
from  tlie  engine  fell  on  it  and  started  a  fire  which  spread  to  and  destroyed 
the  plaintiff's  property  50  feet  away.  Said  Lurton,  J.,  delivering  the  opinion 
of  the  Circuit  Court  of  Appeals:  "According  to  all  human  experience  such 
a  collision  cannot  occur  ^^^thout  something  abnormal.  It  may  be  that  that 
abnormal  cau.se  may  be  one  for  which  the  defendant  may  not  be  legally  liable, 
but  the  question  is  whether  the  burden  of  showing  this  to  be  the  fact  is  not 
legally  shifted  to  the  defendant  by  evidence  showing  a  state  of  things  most 
unlikely  to  occur  unless  caused  by  the  absence  of  due  care.    It  cannot  be  iin- 


Ch.  1)  NEGLIGENCE  953 

MULLEN  V.  ST.  JOHN. 

(Commission  of  Appeals  of  New  York,  1874.    57  N.  Y.  5G7,  15  Am.  Rep.  530.) 

This  was  an  action  to  recover  damages  for  injuries  sustained  by 
the  plaintiff,  by  the  falHng  of  a  building  in  Brooklyn. 

The  defendants  were  the  owners  of  a  building  called  the  Hamilton 
]\Iarket,  standing  on  the  corner  of  Hamilton  avenue  and  Van  Brunt 
street,  in  the  city  of  Brooklyn.  It  was  built  in  1854,  of  brick,  w^as 
leased  to  the  defendants  in  1863,  and  purchased  by  them  in  1866.  On 
the  26th  of  June,  1870,  the  building  being  then  unoccupied,  a  part  of 
its  walls  fell  outward  into  Van  Brunt  street,  and  the  plaintiff',  who  was 
on  the  sidewalk,  about  twenty-five  feet  from  the  rear  of  the  building, 
was  knocked  down  by  the  bricks  and  mortar,  and  received  injuries 
for  which  this  action  was  brought.  There  was  a  verdict  in  favor  of 
the  plaintiff,  with  a  judgment  thereon.    The  defendant  appealed. 

DwiGHT,   C.     The  question  in   the  present   case  arises   upon  the 

charge  of  the  judge,  which  is  in  the  following  terms,  as  far  as  an 

exception  was  taken,  to  Avit : 

"When  the  plaintiff  proved  that  the  building  fell  into  the  street  and  injured 
her,  she  had  made  out  a  case,  in  the  absence  of  any  explanation  on  the  part 
of  the  defendants,  as  buildings  do  not  usually  or  necessarily  fall,  and  it  is 
for  the  jury  to  say,  under  all  the  evidence,  whether  that  explanation,  on  the 
part  of  the  defendants,  is  reasonably  made." 

This  passage  is  an  extract  from  the  charge,  and  was  preceded  by  a 
statement,  that  when  the  cause  of  an  accident  is  under  the  management 
of  a  person,  and  the  accident  is  one  which  does  not  happen  in  the 
ordinary  course  of  things  if  those  who  have  this  management  use 
ordinary  care,  it  is  a  reasonable  presumption,  in  the  absence  of  any 
explanation,  that  the  accident  resulted  from  a  w^ant  of  such  care. 
It  was  followed  by  w^ords  to  this  effect :  If  the  defendant  by  the  ex- 
ercise of  ordinary  care — the  care  a  prudent  person  exercises  in  his 
own  affairs — could  have   discovered  and  remedied  this   defect  so  as 

reasonable  to  ascribe  to  negligence  the  happening  of  a  catastrophe,  which 
was  not  likely  to  occur  if  due  care  had  been  exercised,  until  the  cause  is  ex- 
plained by  other  evidence.  If,  therefore,  the  nature  of  the  accident  is  such 
as  to  make  it  altogether  probable  that  it  was  caused  by  negligence,  it  makes  a 
case  which  falls  within  the  maxim  res  ipsa  loquitur.  Manifestly,  a  presumi>- 
tion  of  negligence  does  not  arise  upon  mere  evidence  of  an  injury  sustained. 
The  inference  logically  as  well  as  legally  deducible  is  necessjirily  dependent 
upon  the  nature  of  the  accident,  the  surrounding  circumstances  which  char- 
acterize it  and  the  relation  of  the  parties.  21  Am.  &  Eng.  Ency.  of  Law,  521. 
Many  accidents  do  not  speak  for  themselves.  The  maxim  res  ipsa  loquitur 
does  not,  therefore,  apply  when  the  circumstances  in  evidence  are  of  doubtful 
solution.  That  there  should  not  be  unifonnity  of  opinion  as  to  the  applica- 
bility of  the  maxim  is  due  not  only  to  the  infinite  variety  of  circumstances 
under  which  injuries  are  inflicted,  but  to  differences  in  respect  of  the  standard 
of  diligence  applicable  in  different  situations.  In  cases  between  pas.sengers 
and  carriers  it  has  been  most  often  applied,  and  sometimes  in  such  sweeping 
terms  as  sut;gest  application  only  to  an  action  for  breach  of  contract,  rather 
than  one  grounded  upon  tort." 


954  TORTS   THROUGH   ACTS   OP   CONDITIONAL   LIABILITY         (Part  3 

to  have  prevented  this  accident,  then  he  is  liable.  If  he  could  not,  by 
such  ordinary  care,  then  he  is  not  liable.  The  whole  of  the  charge 
must  be  considered,  and  the  question  is,  whether  any  erroneous  rule 
was  announced  to  the  jury. 

The  solution  of  this  question  wall  depend  upon  the  fact,  whether 
there  was  any  duty  imposed  upon  the  owners  of  the  building  in  re- 
spect to  persons  passing  along  the  highway,  and  whether  a  presump- 
tion of  negligence  can  be  raised  from  the  circumstances  under  which 
its  fall  occurred.  In  regard  to  the  question  of  duty  there  can  be 
no  reasonable  doubt.  If  a  person  erects  a  building  upon  a  city  street, 
or  an  ordinary  highway,  he  is  under  a  legal  obligation  to  take  reason- 
able care  that  it  shall  not  fall  into  the  street  and  injure  persons  law- 
fully there.  It  cannot  be  affirmed  that  he  is  liable  for  any  injury 
that  may  occur,  whether  by  inevitable  accident  or  the  wrongful  act 
of  others.  It  is  not  to  be  disputed  however  that  he  is  liable  for  want 
of  reasonable  care.     *     *     * 

Assuming  the  foregoing  propositions  to  be  true,  it  may  be  further 
insisted  that  the  question,  whether  an  owner  has  used  reasonable 
care  or  not,  will  depend  on  all  the  circumstances  of  the  case.  Build- 
ings properly  constructed  do  not  fall  without  adequate  cause.  If 
there  be  no  tempest  prevailing  or  no  external  violence  of  any  kind, 
the  fair  presumption  is,  that  the  fall  occurred  through  adequate  caus- 
es, such  as  the  ruinous  condition  of  the  building,  which  could  scarcely 
have  escaped  the  observation  of  the  owner.  The  mind  is  thus  led  to 
a  presumption  of  negligence  on  his  part,  which  may,  of  course,  be 
rebutted.  In  the  absence  of  explanatory  evidence,  negligence  may 
be  presumed.     *     *     *  33 

In  the  case  at  bar  the  walls  of  the  building,  without  any  special 
circumstances  of  storm  or  violence,  fell  into  the  street.  There  was 
some  evidence  tending  to  show  that  it  was  out  of  repair.  Without 
laying  any  stress  upon  the  affirmative  testimony,  it  is  as  impossible 
to  conceive  of  this  building  so  falling  unless  it  was  badly  constructed 
or  in  bad  repair,  as  it  is  to  suppose  that  a  seaworthy  ship  would  go 
to  the  bottom  in  a  tranquil  sea  and  without  collision.  The  mind, 
necessarily,  seeks  for  a  cause  for  the  fall.  That  is,  apparently,  the 
bad  condition  of  the  structure.  This,  again,  leads  to  the  inference  of 
negligence  which  the  defendant  should  rebut. 

The  same  principle  prevails  in  the  Roman  law.  Thus,  it  is  laid 
down  in  1  Domat  on  Civil  Law  (1557):  "If  tiles  fall  from  the 
roof  of  a  house,  which  was  in  good  case,  and  by  the  bare  effect  of 
a  storm,  the  damage  which  may  happen  by  such  fall  is  an  accident, 
for  which  the  proprietor  or  tenant  of  the  house  cannot  be  made  ac- 
countable.   But,  if  the  roof  was  in  a  bad  condition,  he  who  was  bound 

83  111  an  omitted  portion  of  the  oi)inion,  the  Conrt  referred  I0  and  quoted 
from  Kearney  v.  London,  etx:,  Ky.  (1.S71)  L.  U.  G  Q.  B.  7(i0 :  liyrne  v.  lioadle 
(18(;:{)  2  II.  A:  C.  722:  Scott  v.  London  Dock  Company  (1805)  3  IL  &  C.  r.'Mi, 
the  fact.s  of  which  api)ear  ante. 


Ch.  1)  NEGLIGENCE  955 

to  keep  it  in  repair  may  be  liable  to  make  good  the  damage  that  has 
bappened,  according  to  the  circumstances." 

The  case  of  Losee  v.  Buchanan,  51  N.  Y.  476,  10  Am.  Rep.  623. 
is  not  opposed  to  these  views.  There  the  question  was,  whether  one 
was  liable  for  the  explosion  of  a  steamboiler  which  he  had  operated 
with  care  and  skill ;  or,  in  other  words,  whether  he  was  bound,  at 
all  events,  to  prevent  the  effects  of  an  explosion  from  injuring  another. 
The  present  question  is  one  simply  of  presumptions  in  the  law  of  evi- 
dence, which  was  not  at  all  involved  in  Losee  v.  Buchanan,  supra ; 
while  that  case  holds  that  there  must  be  evidence  of  negligence,  it 
does  not  at  all  prescribe  the  mode  of  proving  it,  which,  as  has  been 
abundantly  shown,  may  in  such  cases  as  the  present  be  by  presump- 
tion. The  cases  concerning  the  management  of  railroads  concur  with 
this  view ;  holding  that  where  the  company  has  the  control  of  the 
car  and  the  track,  and  the  car  leaves  the  track,  the  presumption  of 
negligence  may  arise.  Edgerton  v.  New  York  &  Harlem  Railroad 
Co.,  39  N.  Y.  227;  Curtis  v.  Rochester  &  Syracuse  Railroad  Co.,  18 
N.  Y.  534,  75  Am.  Dec.  258. 

There  was  no  error  in  the  charge  of  the  judge,  and  the  judgment 
of  the  court  below  should  be  affirmed. 

Judgment  affirmed. 


PIEHL  V.  ALBANY  RY.  ^ 

(Supreme  Coin-t  of  New  York,   Appellate  Division,  1S9S.     30  App.  Div.  166, 

51  N.  Y.   yupp.  755.) 

.  The  action  was  against  the  Albany  Railway,  to  recover  damages 
for  the  death  of  the  plaintiff's  intestate,  caused,  as  alleged,  by  the 
defendant's  negligence.  The  defendant  operated  a  street  railway 
by  means  of  electrical  power,  and  had  a  power  house  in  which  five 
steam  engines  were  used  to  generate  this  power.  On  November  12, 
1895,  the  fly  wheel,  18  feet  in  diameter  and  weighing  50,000  pounds, 
attached  to  one  of  these  engines,  burst,  while  in  operation,  and  one 
of  its  fragments  was  thrown  across  a  public  street  into  a  saloon,  and 
there  struck  and  killed  the  plaintiff's  intestate. 

Landon,  J.  Upon  the  former  appeal  from  a  judgment  in  favor  of 
the  plaintiff'  entered  upon  the  verdict  of  a  jury,  the  single  question 
presented  by  the  record  was  whether  the  evidence  supported  the  find- 
ing that  the  bursting  of  the  fly  wheel  was  due  to  the  negligence  or 
incompetency  of  the  defendant's  servant  in  charge  of  the  engine,  and 
we  held  that  it  did  not.  19  App.  Div.  471,  46  N.  Y.  Supp.  257.  Upon 
the  trial  now  under  review  the  plaintiff  was  nonsuited  at  the  close 
of  her  case.  She  asked  to  go  to  the  jury,  upon  all  the  facts  in  the 
case,  upon  the  questions  whether  the  defendant  was  negligent,  or 
was  maintaining  and  operating  a  nuisance,  and  her  request  was  de- 
nied.    The  question  whether  the  explosion  was  due  to  the  negligence 


956  TORTS  THROUGH  ACTS   OF   CONDITIONAL  LIABILITY         (Part  3 

or  incompetency  of  the  defendant's  servant  in  charge  is  not  now 
urged.  The  learned  counsel  for  the  plaintiff  insists  (1)  that  the  fact 
that  the  fly  wheel  burst  is  of  itself  presumptive  evidence  of  negli- 
gence ;  (2)  that  its  maintenance  and  operation  in  the  midst  of  a  dense- 
ly inhabited  part  of  the  city  was  a  nuisance ;  (3)  that  the  evidence 
tended  to  show  that  the  engine  was  out  of  order  at  the  time  of  the 
explosion,  and  some  time  prior  to  it,  and  that  defendant  knew  it. 

The  general  rule  is  that  proof  of  an  accident  is  not  of  itself  proof 
of  negligence.  There  are  some  exceptions  to  the  rule.  Thus,  in 
Hogan  V.  Railway  Co.,  149  N.  Y.  23,  43  N.  E.  403,  it  is  said  that, 
"if  a  person  erects  a  building,  bridge,  or  other  structure  upon  a  city 
street  or  an  ordinary  highway,  he  is  under  a  legal  obligation  to  take 
reasonable  care  that  nothing  shall  fall  into  the  street  and  injure  per- 
sons lawfully  there.  This  being  so,  it  is  further  assumed  that  build- 
ings, bridges,  and  other  structures  properly  constructed  do  not  or- 
dinarily fall  upon  the  wa3^farer.  So,  also,  if  anything  falls  from  them 
upon  a  person  lawfully  passing  along  the  street  or  highway,  the  ac- 
cident is  prima  facie  evidence  of  negligence," — citing  Mullen  v.  St. 
John,  57  N.  Y.  567,  15  Am.  Rep.  530;  Volkmar  v.  Railway  Co.,  134 
N.  Y.  418,  31  N.  E.  870,  30  Am.  St.  Rep.  678,  and  cases  there  cited. 
It  is  also  presumed  in  favor  of  a  passenger  that  a  well  constructed 
and  managed  railway  train  will  not  leave  the  track.  Edgerton  v. 
Railroad  Co.,  39  N.  Y.  227;  Curtis  v.  Railway  Co.,  18  N.  Y.  534,  75 
Am.  Dec.  25§ ;  Guldseth  v.  Carlin,  19  App.  Div.  588,  46  N.  Y.  Supp. 
357;  Gerlach  v.  Edelmeyer,  47  N.  Y.  Super.  Ct.  292,  affirmed  88  N. 
Y.  645.  Also,  if  a  passenger  is  injured  by  some  unusual  action  or 
defect  in  the  appliances  of  conveyance,  that  the  carrier  is  negligent. 
Poulsen  v.  Railroad  Co.,  18  App.  Div.  221,  45  N.  Y.  Supp.  941; 
Gilmore  v.  Railroad  Co.,  6  App.  Div.  119,  39  N.  Y.  Supp.  417.  The 
traveler  upon  the  highway  ought  to  be  reasonably  free  from  the  inflic- 
tion by  others  of  injuries  by  external  violence,  and  hence,  when  a 
span  wire  supporting  defendant's  trolley  broke  and  injured  plain- 
tiff, the  defendant  should  be  put  to  an  explanation.  Jones  v.  Rail- 
way Co.,  18  App.  Div.  267,  46  N.  Y.  Supp.  321 ;  Clarke  v.  Railroad 
Co.,  9  App.  Div.  51,  41  N.  Y.  Supp.  78;  Gall  v.  Railway  Co.  (Super. 
N.  Y.)  5  N.  Y.  Supp.  185;  Cole  v.  Bottling  Co.,  23  App.  Div.  177, 
48  N.  Y.  Supp.  893.  Some  injuries  are  of  such  a  nature  that  the 
first  thought  that  occurs  to  the  mind  is  that  nothing  but  carelessness 
or  willfulness  could  have  produced  them.  The  law  adopts  the  same 
idea.  "Res  ipsa  loquitur."  Stallman  v.  Steam  Co.,  17  App.  Div. 
397,  45  N.  Y.  Supp.  161.  Sometimes  the  situation  is  such  as  to  sug- 
gest negligence,  and  the  defendant  alone  is  able,  or  is  presumed  to 
be  able,  to  furnish  the  facts.  W'intringham  v.  Haves,  144  N.  Y.  1, 
38  N.  E.  999,  43  Am.  St.  Rep.  725 ;   Collins  v.  Benn'ett,  46  N.  Y.  490. 

Now,  in  all  these  cases,  although  the  burden  rests  upon  the  plain- 
tiff to  prove  negligence,  he  does  prove  it,  prima  facie,  by  proving 
what  happened,  not  what  caused  it  to  happen.     This  fly  wheel  burst. 


Ch.  1)  NEGLIGENCE  957 

There  is  no  affirmative  proof  of  negligence,  other  than  the  explosion. 
There  is  evidence  showing  the  situation  of  the  power  house,  and  a 
general  description  of  the  fly  wheel  and  engine,  and  of  their  uses. 
The  engine  with  its  fly  wheel,  was  used  in  generating  the  electrical 
power  by  which  the  defendant  operated  its  street  cars,  and  had  been 
so  used  for  two  years  before  the  explosion.  It  was  purchased  from 
the  manufacturers.      In   such   case   the   authorities   are   to   the  effect 

• 

that  the  mere  fact  of  the  explosion  is  not  prima  facie  evidence  of 
negligence.  Losee  v.  Buchanan,  51  N.  Y.  476,  10  Am.  Rep.  623; 
Cosulich  V.  Oil  Co.,  122  N.  Y.  118,  25  N.  E.  259,  19  Am.  St.  Rep. 
475;  Reiss  v.  Steam  Co.,  128  N.  Y.  103,  28  N.  E.  24.  Why  dis- 
tinguish this  class  of  cases  from  the  others?  The  better  question  is, 
why  make  it  an  exception  to  the  general  rule?  I  assume  it  is  not 
excepted,  because  such  are  the  limitations  upon  human  foresight  that 
every  reasonable  care  does  not  always  prevent  accidents,  and  that 
such  is  the  nature  of  steam  and  electricity,  and  of  the  engines  by  or 
upon  which  they  operate,  that,  when  such  an  explosion  as  this  occurs, 
our  experience,  or  even  expert  experience,  is  not  sufficiently  uniform 
to  justify  us  in  presuming  that  negligence  is  the  cause.  The  explo- 
sion does  not,  in  fact,  speak  for  itself  and  tell  us  its  cause.  *  *  * 
Judgment  affirmed.^* 

3  4  Compare:    Griff  en  v.  Manioe  (1901)  166  X.  T.  ISS,  59  N.  E.  925,  52  L.  R. 
A.  922,  S2  Am.  St.   Rep.  6.30,  where  Cullen,  J.,   discussing  the  principle,  re-   %/ 
ma  rived: 

"In  Mullen  v.  St.  John  [1874]  57  K  Y.  567  [15  Am.  Rep.  530],  it  was 
held  that  the  falling  of  an  adjacent  Imilding  into  the  street  whereby  the 
plaintiff  traveling  on  tlie  street  Avas  injured,  was  prima  facie  evidence  of  neg- 
ligence. In  Piehl  v.  Albanv  Railwav  Co.  [1898]  30  App.  Div.  166  [51  N.  Y. 
Supp.  755],  affirmed  [1900]  162  N.  Y.  617  [57  N.  E.  1122],  a  fly  wheel  was  dis- 
rupted and  a  portion  of  it  cast  across  the  street  into  a  *iloon,  killing  the 
plaintiff's  intestate.  It  was  held  that  the  mere  bursting  of  the  fly  wheel  was 
not  sufficient  to  warrant  an  inference  of  negligence.  These  two  cases  pro- 
ceeded on  the  differing  views  that  this  court  took  as  to  the  nature  of  the  re- 
spective accidents,  not  on  the  situation  of  the  parties.  I  think  it  may  be 
safely  said  that  we  would  not  have  held  the  defendant  liable  in  the  latter 
case  had  Piehl  been  killed  in  tlie  street,  or  in  the  earlier  case,  the  defendant 
exempt,  had  the  plaintiff  been  injured  while  In  a  neighboring  building.  To 
put  it  tersely,  the  court  thought  that  in  the  absence  of  tempest  or  external 
violence  a  building  does  not  ordinarily  fall  without  negligence ;  while  it  also 
thought  that  the  disruption  of  a  fly  wheel  proceeds  so  often  from  causes  which 
science  has  been  unable  to  discover  or  against  which  art  cannot  guard,  that 
negligence  cannot  be  inferred  from  the  occurrence  alone.  Authority  is  not 
wanting  on  the  point.  In  Green  v.  Banta  [1882]  48  N.  Y.  Super.  Ct.  156,  a 
workman  was  injured  by  the  breaking  down  of  a  scaffold.  In  a  suit  against 
his  master,  the  court  charged:  'The  fact  that  the  scaffold  gave  way  is  some 
evidence — it  is  what  might  be  called  prima  facie  evidence — of  negligence  on 
the  part  of  the  person  or  persons  who  were  bound  to  provide  a  safe  and  projv 
er  scaffold.'  This  charge  was  held  correct  by  the  General  Term  of  the  Su- 
I'cnor  Court  of  the  citv  of  New  York  and  the  decision  affirmed  bv  this  court, 
97  N.  Y.  627.  In  Mulcaims  v.  City  of  Janesville  (1886)  67  Wis.  24,  29  N.  W. 
5(j5,  the  fall  of  a  wall  was  held  prosum])tive  evidence  of  negligence  in  a  suit 
by  a  servant  against  his  master.  In  Smith  v.  Boston  Gasliglit  Co.,  129  Mass. 
318,  it  was  held  that  the  escape  of  gas  from  the  pipes  of  a  gas  company  was 
prima  facie  evidence  of  negligence.  In  tliat  case  there  seems  to  have  been  no 
contractual  relations  whatever  between  the  parties.     In  Peck  v.  N.  Y.  Central 


958  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

/      PATTON  V.  TEXAS  &  P.  RY.  CO. 

(Supreme  Court  of  the  United  States,  1901.    179  U.  S.  65S,  21  Sup.  Ct.  275, 

45  L.  Ed.  361.) 

Patton  brought  this  action  against  the  railway  company  to  re- 
cover for  injuries  sustained  by  him  while  in  its  employment  as  fire- 
man. A  judgment  in  his  favor  was  reversed  by  the  Circuit  Court 
of  Appeals.  9  C.  C.  A.  487,  23  U.  S.  App.  319,  61  Fed.  259.  On 
a  second  trial  in  the  Circuit  Court  the  judge  directed  a  verdict  for 
the  defendant,  upon  which  judgment  was  rendered.  This  judgment 
was  affirmed  by  the  Circuit  Court  of  Appeals.  37  C.  C.  A.  56,  95 
Fed.  244.     Thereupon  the  plaintiff  brought  error. 

The  facts  were  that  the  plaintiff'  was  a  fireman  on  a  passenger 
train  of  the  defendant,  running  from  El  Paso  to  Toyah  and  return. 
Some  three  or  four  hours  after  one  of  those  trips  had  been  made, 

R.  R.  Co.  (1901)  165  N.  Y.  ?,47,  59  N.  E.  206,  which  was  an  action  for  injury 
to  plaintiff's  property  by  fire,  it  was  said:  'But  while  it  was  necessary  for 
the  plaintiff  to  affirmatively  establish  negligence  on  the  iiart  of  the  defendant, 
eitlier  in  the  condition  or  in  the  operation  of  its  engine,  for  which  the  mere 
occurrence  of  the  fire  was  not  sufficient,  it  was  not  necessary  that  he  should 
prove  either  the  specific  defect  in  the  engine  or  the  particular  act  of  miscon- 
duct in  its  management  or  operation  constituting  the  negligence  causing  the 
injury  complained  of.  It  was  sufficient  if  he  proved  facts  and  circumstances 
from  which  the  jury  might  fairly  infer  that  the  engine  was  either  defective 
in  its  condition  or  negligently  operated.'  This  is  the  principle  which  under- 
lies the  maxim  of  "res  ipsa  loquitur."  When  the  facts  and  circumstances 
from  which  the  jury  is  asked  to  infer  negligence  are  those  immediately  at- 
tendant on  the  occurrence,  we  speak  of  it  as  a  case  of  'res  ipsa  loquitur' ; 
when  not  immediately  connected  with  the  occurrence,  then  it  is  an  ordinary 
case  of  circumstantial  evidence.  In  Benedick  v.  Potts  (1S08)  8.S  Md.  52.  40 
Atl.  1067,  41  L.  R.  A.  478,  it  is  said:  'In  no  instance  can  the  bare  fact  that 
an  injury  has  happened,  of  itself  and  divorced  from  all  the  surrounding  cir- 
cumstances, justify  the  inference  that  the  injury  was  caused  by  negligence. 
It  is  true  that  direct  proof  of  negligence  is  not  necessary.  Like  any  other 
fact,  negligence  may  be  estalilished  by  the  proof  of  circumstances  from  which 
its  existence  may  be  inferred.  *  *  *  This  phrase  (res  ipsa  lo<]uitur), 
which  literally  translated  means  that  'the  thing  speaks  for  itself,'  is  merely 
a  short  way  of  saying  that  the  circumstances  attendant  upon  an  accident  are 
theniselves  of  such  a  chnracter  as  to  justify  a  jury  in  inferring  negligence  as 
the  cause  of  that  accident.' 

"Returning  now  to  the  case  before  us,  it  appears  that  the  deceased  was  pres- 
ent by  the  implied  invitation  of  the  defendant,  extended  to  him  and  all  others 
who  might  have  lawful  business  on  the  premises,  to  use  the  elevator  as  a 
means  of  proceeding  from  one  story  to  another.  The  defendant,  therefore, 
owed  the  plaintiff  the  duty  of  using  at  least  reasonnble  care  in  seeing  that 
the  premises  were  safe.  Tlie  death  of  tlie  ]ilaintiff's  intestate  was  caused  by 
the  fall  of  the  counterbalance  weights.  Tliese  weights  were  held  in  a  frame, 
to  which  was  attached  a  rope  or  calile  passing  around  a  drum.  The  weights 
fell  down  from  the  frame  and  the  rope  was  thrown  oft"  the  drum.  That  no 
such  accident  coidd  ordinaiMly  have  occurred  had  tlie  elevator  machinery  been 
in  proper  condition  and  propeiiy  operated  seems  to  me  very  itlain.  The  court 
was,  therefore,  justified  in  permitting  the  jury  to  infer  negligence  from  tlie 
accident,  construing,  as  I  do,  the  term  accident  to  include  not  only  the  injury 
J)ut  the  attendant  circumstances." 

See  also  29  Cvc.  590.  tlie  notes  to  Mullen  v.  St.  John  (1874)  57  N.  Y.  567, 
15  Am.  Kep.  'jW,  in  0  N.  Y.  Ann.  Dig.  289,  and  Key  Xo.  "Negligence,"  §§  121 
(2),  136(6). 


Ch.  1)  NEGLIGENCE  959 

and  while  the  engine  of  which  he  was  fireman  was  being  moved  in 
the  railroad  yards  at  El  i'aso,  plaintitit"  attempted  to  step  off  the 
engine,  and  in  doing  so  the  step  turned,  and  he  fell  so  far  under 
the  engine  that  the  wheels  passed  over  his  right  foot.  Plaintiff  al- 
leged that  the  step  turned  because  the  nut  which  held  it  was  not 
securely  fastened;  that  the  omission  to  have  it  so  fastened  was  neg- 
ligence on  the  part  of  the  company,  for  which  it  was  liable. 

Mr.  Justice  BrDWEr.  The  plaintift"'s  contention  is  that  the  trial 
court  erred  in  directing  a  verdict  for  the  defendant,  and  in  failing 
to  leave  the  question  of  negligence  to  the  jury.     *     *     * 

Upon  these  facts  we  make  these  observations :  First.  That  while 
in  the  case  of  a  passenger  the  fact  of  an  accident  carries  with  it 
a  presumption  of  negligence  on  the  part  of  the  carrier,  a  presump- 
tion which,  in  the  absence  of  some  explanation  or  proof  to  the  con- 
trary, is  sufficient  to  sustain  a  verdict  against  him,  for  there  is  prima 
facie  a  breach  of  his  contract  to  carry  safely  (Stokes  v.  Saltonstall, 
13  Pet.  181,  10  L.  Ed.  115  ;  New  Jersey  R.  &  Transp.  Co.  v.  Pollard, 
22  Wall.  341,  22  L.  Ed.  877;  Gleeson  v.  Virginia  Midland  R.  Co., 
140  U.  S.  435,  443,  35  L.  Ed.  458,  463,  11  Sup.  Ct.  859),  a  different 
rule  obtains  as  to  an  employe.  The  fact  of  accident  carries  with 
it  no  presumption  of  negligence  on  the  part  of  the  employer;  and 
it  is  an  affirmative  fact  for  the  injured  employe  to  establish  that  the 
employer  has  been  guilty  of  negligence  (Texas  &  P.  R.  Co.  v.  Bar- 
rett, 166  U.  S.  617,  41  L.  Ed.  1136,  17  Sup.  Ct.  707).  Second. 
That  in  the  latter  case  it  is  not  sufficient  for  the  employe  to  show 
that  the  employer  may  have  been  guilty  of  negligence ;  the  evidence 
must  point  to  the  fact  that  he  was.  And  where  the  testimony  leaves 
the  matter  uncertain  and  shows  that  any  one  of  half  a  dozen  things 
may  have  brought  about  the  injury,  for  some  of  which  the  employer 
is  responsible  and  for  some  of  which  he  is  not,  it  is  not  for  the  jury 
to  guess  between  these  half  a  dozen  causes  and  find  that  the  negli- 
gence of  the  employer  was  the  real  cause  when  there  is  no  satis- 
factory foundation  in  the  testimony  for  that  conclusion.  If  the  em- 
ploye is  unable  to  adduce  sufficient  evidence  to  show  negligence  on 
the  part  of  the  employer,  it  is  only  one  of  the  many  cases  in  which 
the  plaintiff'  fails  in  his  testimony;  and  no  mere  sympathy  for  the 
unfortunate  victim  of  an  accident  justifies  any  departure  from  set- 
tled rules  of  proof  resting  upon  all  plaintiffs.  Third.  That  while  the 
employer  is  bound  to  provide  a  safe  place  and  safe  machinery  in  which 
and  with  which  the  employe  is  to  work,  and  while  this  is  a  positive 
duty  resting  upon  him,  and  one  which  he  may  not  avoid  by  turn- 
ing it  over  to  some  employe,  it  is  also  true  that  there  is  no  guaranty  by 
the  employer  that  place  and  machinery  shall  be  absolutely  safe.  Hough 
V.  Texas  &  P.  R.  Co.,  100  U.  S.  213,  218,  25  L.  Ed.  612,  615;  Balti- 
more &  O.  R.  Co.  V.  Baugh,.149  U.  S.  368,  386,  Z7  L.  Ed.  772,  780, 
13  Sup.  Ct.  914;  Baltimore  &  P.  R.  Co.  v.  Mackey,  157  U.  S.  72, 
87,  39  L.  Ed.  624,  630,   15  Sup.   Ct.  491;    Texas  &   P.  R.   Co.  v. 


9G0  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

Archibald,  170  U.  S.  665,  669,  42  L.  Ed.  1188,  1190,  18  Sup.  Ct.  177. 
He  is  bound  to  take  reasonable  care  and  make  reasonable  effort ; 
and  the  greater  the  risk  which  attends  the  work  to  be  done  and 
the  machinery  to  be  used,  the  more  imperative  is  the  obligation  rest- 
ing upon  him.  Reasonable  care  becomes,  then,  a  demand  of  higher 
supremacy ;  and  yet,  in  all  cases,  it  is  a  question  of  the  reasonable- 
ness of  the  care;  reasonableness  depending  upon  the  danger  attending 
the  place  or  the  machinery. 

The  rule  in  respect  to  machinery,  which  is  the  same  as  that  in 
respect  to  place,  was  thus  accurately  stated  by  Mr.  Justice  Lamar, 
for  this  court,  in  Washington  &  Georgetown  Railroad  v.  McDade, 
135  U.  S.  554,  570,  34  L.  Ed.  235,  241,  10  Sup.  Ct,  1044: 

"Neither  individuals  nor  corporations  are  bound,  as  employers,  to 
insure  the  absolute  safety  of  machinery  or  mechanical  appliances  which 
they  provide  for  the  use  of  their  employes.  Nor  are  they  bound  to 
supply  the  best  and  safest  or  newest  of  those  appliances  for  the  pur- 
pose of  securing  the  safety  of  those  who  are  thus  employed.  They 
are,  however,  bound  to  use  all  reasonable  care  and  prudence  for  the 
safety  of  those  in  their  service,  by  providing  them  with  machinery 
reasonably  safe  and  suitable  for  the  use  of  the  latter.  If  the  employer 
or  master  fails  in  this  duty  of  precaution  and  care,  he  is  responsible 
for  any  injury  which  may  happen  through  a  defect  of  rnachinery 
which  was,  or  ought  to  have  been,  known  to  him,  and  was  unknown 
to  the  employe  or  servant." 

Tested  by  these  rules  we  do  not  feci  justified  in  disturbing  the 
judgment,  approved  as  it  was  by  the  trial  judge  and  the  several  judges 
of  the  Circuit  Court  of  Appeals.  Admittedly,  the  step,  the  rod,  the 
nut,  were  suitable  and  in  good  condition.  Admittedly,  the  inspectors 
at  El  Paso  and  Toyah  were  competent.  Admittedly,  when  the  en- 
gine started  on  its  trip  from  El  Paso  the  step  was  securely  fastened, 
the  plaintiff  himself  being  a  witness  thereto.  The  engineer  used 
it  in  safety  up  to  the  time  of  the  engine's  return  to  El  Paso.  The 
plaintiff  was  not  there  called  upon  to  have  anything  to  do  with  the 
engine  until  after  it  had  been  inspected  and  repaired.  He  chose,  for 
his  own  convenience,  to  go  upon  the  engine  and  do  his  work  prior 
to  such  inspection.  No  one  can  say  from  the  testimony  how  it  hap- 
pened that  the  step  became  loose.  Under  those  circumstances  it  would 
be  trifling  with  the  rights  of  parties  for  a  jury  to  find  that  the  plain- 
tiff had  proved  that  the  injury  was  caused  by  the  negligence  of  the 
employer. 

The  judgment  is  affirmed.^ ° 

sn  The  statement  of  tlie  facts  is  slightly  abridged  and  part  of  the  opinion 
is  omitted. 


Ch.  1)  NEGLIGENCE  9G1 


CARNEY  V.  BOSTON  ELEVATED  RY.  CO. 

(Supreme  Judicial  Court  of   Massachusetts,  1912.     212  INIass.   179,  98   N.  E. 
605,  42  L.  R.  A.  [N.  S.]  90,  Ann.  Cas.  19130,  302.) 

Action  against  the  Elevated  Railway  for  damages  because  of  a  per- 
sonal injury  through  the  defendant's  alleged  negligence.  There  was  a 
judgment  for  defendant ;    the  plaintiff  brings  exceptions. 

She:ldon,  J.  The  plaintiff  was  injured  while  she  was  riding  in  an 
open  surface  car  beneath  the  defendant's  elevated  structure.  She 
heard  the  rumble  of  an  elevated  train  over  her  car,  "saw  the  sparks 
flying,"  Ipoked  up  and  was  struck  in  the  eye  by  a  spark,  which  could  be 
found  to  have  been  a  minute  piece  of  hot  iron,  about  as  large  as  the 
fine  end  of  a  pin,  coming  from  the  elevated  road,  and,  as  we  assume, 
from  the  contact  shoe  of  the  train  which  was  passing  thereon.  The 
structure  was  properly  in  the  street  and  the  defendant  was  authorized 
to  operate  its  road  by  electricity.  There  was  no  evidence  that  it  was 
a  frequent  occurrence  for  sparks  to  fall  from  its  passing  trains  into 
the  street,  or  indeed  that  this  had  ever  before  happened.  There  was 
nothing  to  indicate  that  the  defendant  ought  to  have  foreseen  this  dan- 
ger and  to  have  guarded  against  it  or  given  warning  of  its  existence. 
There  was  no  evidence  that  there  was  any  practicable  method  or  de- 
vice for  checking  the  emission  of  sparks  from  its  trains  or  its  electrical 
apparatus,  or  preventing  their  fall  to  the  street,  which  the  defendant 
had  failed  to  adopt.  There  was  nothing  to  show  any  lack  of  proper 
care  on  the  part  of  the  defendant  in  the  operation  of  its  trains  or  cars. 
Under  these  circumstances  it  is  manifest  that  the  cases  of  Woodall  v. 
Boston  Elev.  St.  Ry.,  192  Mass.  308,  78  N.  E.  446,  and  Walsh  v.  Bos- 
ton Elev.,  192  Mass.  423,  78  N.  E.  451,  cannot  help  the  plaintiff.  The 
ground  on  which  those  cases  were  decided,  that  there  was  evidence  of 
an  existing  danger  and  of  negligence  on  the  part  of  the  defendant  in 
not  providing  an  appliance  to  prevent  the  falling  of  sparks  into  the 
street,  and  in  not  applying  to  the  railroad  commissioners  for  the  ap- 
proval of  a  plan  to  accomplish  that  object,  is  lacking  here.  Either  she 
has  chosen,  or  the  facts  of  the  case  have  compelled  her,  to  rest  her 
claim  simply  upon  the  ground  that  she  has  been  injured  by  a  spark 
falling  on  her  eye  and  that  this  spark  came  from  a  train  of  the  defend- 
ant lawfully  operated  upon  its  elevated  railroad. 

She  contends  accordingly  that  these  facts  present  a  case  for  the  ap- 
plication of  the  doctrine  res  ipsa  loquitur — that  negligence  of  the  de- 
fendant may  be  inferred  from  the  bare  fact  that  she  has  been  injured 
in  the  manner  stated.  It  is  true  no  doubt  that  the  cause  of  her  injury 
could  be  found  to  have  come  from  the  operation  of  apparatus  which 
had  been  furnished  and  applied  by  the  defendant  and  was  wholly  un- 
der its  management  and  control.  McDonough  v.  Boston  Elevated  Ry., 
208  Mass.  436,  94  N.  E.  809;  Le  Barron  v.  East  Boston  Ferry  Co.,  11 
Hepb.Toets — 61 


962  TORTS  THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

Allen,  312,  317,  87  Am.  Dec.  717;  Miller  v.  Ocean  Steamship  Co.,  118 
N.  Y.  199,  23  N.  E.  462 ;  Gleeson  v.  Virginia  Midland  R.  R.,  140  U.  S. 
435,  11  Sup.  Ct.  859,  35  L.  Ed.  458;  Scott  v.  London  Dock  Co.,  3  H. 
&  C.  596;  Kearney  v.  London,  Brighton  &  South  Coast  Ry.,  L.  R.  5 
Q.  B.  411.  But  this  single  circumstance  is  not  always  enough.  Where 
as  here  the  cause  of  the  accident  has  come  from  the  lawful  operation 
by  lawful  means  of  an  authorized  instrumentality,  and  where  any  dam- 
age or  injury  that  has  resulted  may  have  come  without  any  negligence 
of  the  defendant,  but  may  have  arisen  merely  as  an  unavoidable  acci- 
dent from  the  careful  and  skillful  exercise  of  its  lawful  rights  in  spite 
of  the  obsen-ance  of  all  proper  precautions,  there  no  liability  can  arise 
without  some  affirmative  evidence  of  negligence.  In  such  a  case  the 
happening  of  the  accident  with  the  resulting  injury  is  as  likely  to  have 
come  without  the  fault  of  the  defendant  as  to  have  been  due  to  its  neg- 
ligence, and  the  presumption  of  fact  upon  which  the  doctrine  res  ipsa 
loquitur  is  based  does  not  arise ;  the  inference  of  negligence  cannot  be 
drawn  without  some  evidence  to  support  it.  Beattie  v.  Boston  Elev. 
St.  Ry.,  201  Mass.  3,  6,  86  N.  E.  920;  Minihan  v.  Boston  Elev.  St.  Ry., 
197  Mass.  367,  373,  83  N.  E.  871 ;  Thomas  v.  Boston  Elev.  St.  Ry.,  193 
Mass.  438,  79  N.  E.  749;  Wadsworth  v.  Boston  Elev.  St.  Ry.,  182 
Mass.  572,  574,  66  N.  E.  421 ;  Clare  v.  New  York  &  New  England  R. 
R.,  167  ]\Iass.  39,  44  N.  E.  1054;  Graham  v.  Badger,  164  Mass.  42.  47, 
41  N.  E.  61.  For  this  reason  we  recently  have  held  that  in  the  absence 
of  a  statutory  liability  a  railroad  company  is  not  liable,  without  evidence 
of  negligence  on  its  part,  for  damage  done  by  fire  caused  by  sparks 
from  its  locomotive  engines.  Wallace  v.  N.  Y.,  N.  H.  &  H.  R.  R.,  208 
Mass.  16,  94  N.  E.  306. 

For  the  same  reasons,  in  two  cases  closely  resembling  that  which  is 
here  presented,  it  was  held  that  no  inference  of  negligence  could  be 
drawn  from  the  happening  of  the  accident,  and  the  plaintiflF  was  not  al- 
lowed to  recover.  Searles  v.  Manhattan  Ry.,  101  N.  Y.  661,  5  N.  E. 
66;  Wiedmer  v.  New  York  Elev.  R.  R.,  114  N.  Y.  462,  21  N.  E.  1041. 
In  the  last  cited  case,  the  court  said  that  the  evidence  disclosed  a  single 
colorless  fact,  the  emission  of  a  coal  smaller  than  a  pinhead,  and  that 
the  rule  res  ipsa  loquitur  has  not  been  extended  for  enough  to  authorize 
from  this  fact  an  inference  of  actionable  negligence. 

It  is  perfectly  consistent  with  the  evidence  that  the  defendant  has 
taken  all  the  precautions  that  were  suggested  in  Woodall  v.  Boston 
Elev.  St.  Ry.,  192  Mass.  308.  78  N.  E.  446,  or  which  since  have  been 
discovered  to  be  possible.  If  so,  it  has  not  been  guilty  of  negligence. 
It  follows  that  the  judge  at  the  trial  acted  rightly  in  ordering  a  verdict 
in  its  favor. 

Exceptions  overruled. 


Ch.  1)  NEGLIGENCE  9G3 

III.  PLAiNTiifif's  Actual  Damagi^ 
ASHBY  V.  WHITE. 

(Court  of  King's  Bench,  1703.     Holt,  5L'4,  2  r^.  Raym.  938,  90  Reprint, 

IISS,  92  Reprint,  126.) 

In  an  action  upon  the  case  against  the  constables  of  Ailesbury,  the 
plaintiff  declared,  that  such  a"  day  the  late  King's  writ  issued  and  was 
delivered  to  the  Sheriff  of  B.  for  election  of  members  of  Parliament 
in  his  county;  whereupon  the  said  sheriff  made  out  his  precept  or 
warrant  to  the  defendants,  being  constables  of  A.,  to  chuse  two 
burgesses  for  that  borough,  which  precept  was  delivered  to  the  said 
constables ;  and  that  in  pursuance  thereof,  the  burgesses  were  duly 
assembled,  etc.,  and  the  plaintiff',  being  then  duly  qualified  to  vote 
for  the  election  of  two  burgesses,  offered  to  give  his  voice  to  Sir  T. 
L.  and  S.  M.  Esq. ;  to  be  burgesses  of  Parliament  for  the  said  bor- 
ough; but  the  defendants  knowing  the  premisses,  with  malice,  etc., 
obstructed  him  from  voting,  and  refused  and  would  not  receive  his 
vote,  nor  allow  it;  and  that  two  burgesses  were  chose,  without 
allowing  or  receiving  his  voice. 

After  a  verdict  for  the  plaintiff  on  not  guilty  pleaded,  it  was  moved 
in  arrest  of  judgment  by  Serjeant  Whitacre,  that  this  action  was  not 
maintainable.  And  for  the  difficulty  it  was  ordered  to  stand  in  the 
paper,  and  was  argued  Trin.  1  Q.  Anne  by  Mr.  Weld  and  Mr. 
Mountague  for  the  defendants,  and  this  term  judgment  was  given 
against  the  plaintiff,  by  the  opinion  of  Powell,  Powys,  and  Gould, 
Justices,  Holt,  Chief  Justice  being  of  opinion  for  the  plaintiff.    *    *    * 

Holt,  Chief  Justice.  The  single  question  in  this  case  is,  whether, 
if  a  free  burgess  of  a  corporation,  who  has  an  undoubted  right  to 
give  his  vote  in  the  election  of  a  burgess  to  serve  in  Parliament,  be 
refused  and  hindered  to  give  it  by  the  officer,  if  an  action  on  the  case 
will  lie  against  such  officer.     *     *     * 

And  I  am  of  opinion,  that  this  action  on  the  case  is  a  proper  action. 
My  brother  Powell  indeed  thinks,  that  an  action  upon  the  case  is 
not  maintainable  because  there  is  no  hurt  or  damage  to  the  plain- 
tiff; but  surely  every  injury  imports  a  damage,  though  it  does  not 
cost  the  party  one  farthing,  and  it  is  impossible  to  prove  the  con- 
trary; for  a  damage  is  not  merely  pecuniary,  but  an  injury  imports 
a  damage,  when  a  man  is  thereby  hindered  of  his  right.  As  in  an 
action  for  slanderous  words,  though  a  man  does  not  lose  a  penny  by 
reason  of  the  speaking  them,  yet  he  shall  have  an  action.  So  if  a 
man  gives  another  a  cuff  on  the  ear,  though  it  cost  him  nothing,  no 
not  so  much  as  a  little  diachylon,  yet  he  shall  have  his  action,  for 
it  is  a  personal  injury.  So  a  man  shall  have  an  action  against  another 
for  riding  over  his  ground,  though  it  do  him  no  damage ;  for  it  is 
an  invasion  of  his  property,  and  the  other  has  no  right  to  come  there. 


964  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

And  in  these  cases  the  action  is  brought  vi  et  armis.  But  for  invasion 
of  another's  franchise,  trespass  vi  et  armis  does  not  He,  but  an  action 
of  trespass  on  the  case;  as  where  a  man  has  retorna  brevium,  he 
shall  have  an  action  against  any  one  who  enters  and  invades  his 
franchise,  though  he  lose  nothing  by  it.  So  here  in  the  principal 
case,  the  plaintiff  is  obstructed  of  his  right,  and  shall  therefore  have 
his  action.  And  it  is  no  objection  to  say,  that  it  will  occasion  multi- 
plicity of  actions;  for  if  men  will  multiply  injuries,  actions  must  be 
multiplied  too;  for  every  man  that  is  injured  ought  to  have  his 
recompence.  *  *  *  So  the  case  of  Hunt  and  Dowman,  2  Cro. 
478,  where  an  action  on  the  case  is  brought  by  him  in  reversion 
against  lessee  for  years,  for  refusing  to  let  him  enter  into  the  house, 
to  see  whether  any  waste  was  committed.  In  that  case  the  action  is 
not  founded  on  the  damage,  for  it  did  not  appear  that  any  waste 
was  done,  but  because  the  plaintiff  was  hindered  in  the  enjoyment 
of  his  right,  and  surely  no  other  reason  for  the  action  can  be  sup- 
posed.    *     *     *  f 

tThe  statement  of  facts  is  from  Holt,  524;  tbe  rest  of  the  case  is  from 
Lord  Raymond. 

The  opiiious  of  Gould  and  Powell,  J  J.,  reported  in  Lord  Raymond,  are 
omitted  ;    only  a  portion  of  Chief  Justice  liolt's  opinion  is  given. 

The  judgment  of  the  King's  Bench,  for  the  defendant,  "was  reversed  in 
the  House  of  Lords  and  judgment  given  for  the  plaintrBC  by  fifty  Lords 
agahist  sixteen."     See  2  Ld.  Raym.  958,  92  Reprint,   i;:58. 

The  principle  of  Ashby  v.  "White  has  a  wider  range  than  negligence  case. 
For  its  application  in  a  negligence  case,  see  Clifton  v.  Hooper  (1S44)  6  Q.  B. 
468,  115  Reprint,  175. 

See  the  remarks  of  IMr.  Justice  Story,  in  Webb  v.  Portland  Mfg.  Co.  (1838) 
3  Sumn.  189,  Fed  Cas.  No.  17,322:  "I  can  very  well  understand  that  no  ac- 
tion lies  in  a  case  where  there  is  a  damnum  abs(iue  injuria,  that  is,  where 
there  is  a  damage  done  without  any  wrong  or  violation  of  any  right  of  the 
plaintitf.  But  I  am  not  able  to  understand  how  it  can  correctly  be  said,  in 
a  legal  sense,  that  an  action  will  not  lie,  even  in  case  of  a  wrong  or  violation 
of  a  right,  unless  it  is  followed  by  some  perceptible  damage,  which  can  be  es- 
tablished, as  a  matter  of  fact ;  in  other  words,  that  injuria  sine  damno  is 
not  actionable.  See  Mayor  of  Lynn  v.  Mayor  of  London,  4  Term  R.  l.'tO.  141, 
143,  144 ;  Com.  Dig.  'Action  on  the  Case,'  B,  1,  2.  On  the  contrary,  from 
my  earliest  reading,  I  have  considered  it  laid  up  among  the  very  elements 
of  the  common  law  that,  wherever  there  is  a  wrong,  there  is  a  remedy  to 
redress  it;  and,  that  every  injury  imports  damage  in  the  nature  of  it;  and, 
if  no  other  damage  is  established,  the  party  injured  is  entitled  to  a  verdict 
for  nominal  damages.  A  fortiori  this  doctrine  applies  where  there  is  not  only 
a  violation  of  a  right  of  the  plaintiff,  but  the  act  of  the  defendant,  if  con- 
tinued, may  become  the  foundation,  by  lapse  of  time,  of  an  adverse  right  in 
the  defendant;  for  then  it  assumes  the  character,  not  merely  of  a  violation 
of  a  right  tending  to  diminish  its  value,  but  it  goes  to  the  absolute  destruction 
and  extinguishment  of  it.  Under  such  circumstances,  unless  the  party  in- 
jured can  protect  his  right  from  such  a  violation  by  an  action,  it  is  plain  that 
it  may  be  lost  or  destroyed,  witliout  any  possible  remedial  redress.  In  my 
judgment,  the  common  law  countenances  no  such  inconsistency,  not  to  call 
it  by  a  stronger  name.  Actual,  perceptible  damage  is  not  indispensable  as 
the  foundation  of  an  action.  The  law  tolerates  no  farther  inqniry  tlian 
whether  there  has  been  tbe  violation  of  a  right.  If  so,  the  party  injured  is 
entitled  to  maintain  his  action  for  nominal  damages,  in  vindication  of  his 
right,  if  no  other  damages  are  fit  and  proper  to  remunerate  him." 

But  see  the  reasoning  of  Baron  Parlie  in  Embrey  v.  Owen  (1851)  (!  Kx. 
353,  368,  86  R.  R.  331,  343:    "It  was  very  ably  argued  before  us  by  the  learned 


Ch.  1)  NEULIGEXCB  965 

HOBSON  et  al.  v.  THELLUSON. 

(Court  of  Queen's  Bench,  1S67.     L.  R.  2  Q.  B.  G12.) 

Declaration  against  the  defendant  as  sheriff  of  Yorkshire  for  not 
duly  executing  a  writ  of  fi.  fa.  at  the  suit  of  the  plaintiffs  against  the 
goods  of  John  Bower,  and  for  falsely  returning  that  Bower  had  no 
goods  in  the  defendant's  bailiwick  whereon  the  defendant  could  levy. 
Pleas:  (1)  Not  guilty;  (2)  that  there  were  not  at  the  time,  or  after 
the  delivery  of  the  writ,  any  goods  of  Bower  in  the  defendant's  baili- 
wick whereon  the  defendant  could  have  levied ;  (3)  that  the  plaintiffs 
sustained  no  damage  by  reason  of  the  matters  alleged  in  the  declara- 
tion.   Issue  joined. 

At  the  trial,  it  appeared  that  the  plaintiffs  obtained  judgment  for 
i284  against  John  Bower,  a  cloth  merchant  at  Huddersfield,  and  a 
trader  within  the  bankruptcy  laws ;  and  a  writ  of  fi.  fa.  was  issued  and 
lodged  in  London  with  the  undersheriff  for  Yorkshire  on  the  23d  of 
May,  1866 ;  and  a  warrant  was  sent  down  to  Air.  Thornton,  an  officer 
of  the  sheriff'  at  Huddersfield,  by  the  evening  post  of  that  day,  and  was 
delivered  at  his  office  there  at  half  past  seven  in  the  morning  of  the 
24th  of  May.  Jaggar,  the  assistant  to  Air.  Thornton,  went  to  the  office 
about  a  quarter  past  nine.  Jaggar  opened  the  warrants,  and  on  coming 
to  the  warrant  against  Bower's  goods,  which  he  had  reason  the  day  be- 
fore to  expect,  he  at  once  sent  off  one  Sizer  to  watch  Bower's  ware- 
house, which  was  400  or  500  yards  off ;  and  on  Mr.  Thornton  coming 
in  about  five  minutes  afterwards  Jaggar  went  off  himself  to  the  ware- 
house with  the  warrant.  He  got  to  the  warehouse  at  twenty-five  min- 
utes past  nine,  and  found  the  outer  door  fastened  with  two  locks.  Si- 
zer was  left,  and  remained  on  the  watch  till  just  before  ten  o'clock, 
when  he  withdrew  in  consequence  of  a  message  from  Thornton,  the 
door  being  still  locked.    Bower,  it  appeared,  had  had  notice  of  the  writ, 

counsel  for  the  plaintiffs,  that  the  plaintiffs  had  a  right  to  the  full  flow  of  the 
water  in  its  natural  course  and  abundance,  as  an  incident  to  their  property  in 
the  land  through  which  it  flowed ;  and  that  any  abstraction  of  the  water, 
however  inconsiderable,  by  another  riparian  proprietor,  and  though  produc- 
tive of  no  actual  damage,  would  be  actionable,  because  it  was  an  injury  to  a 
right,  and,  if  continued,  would  be  the  foundation  for  a  claim  of  adverse  right 
in  that  proprietor.  We  by  no  means  dispute  the  truth  of  this  proposition, 
with  respect  to  every  description  of  right.  Actual  perceptible  damage  is  not 
indispensable  as  the  foundation  of  an  action ;  it  is  sufficient  to  show  a  viola- 
tion of  a  right,  in  which  case  the  law  will  presume  damage ;  injuria  sine 
damno  is  actionable,  as  was  laid  down  in  the  case  of  Ashby  v.  White.  2  Ld. 
Ray.  938,  by  Lord  Holt,  and  in  many  subsequent  casesj  which  are  all  referred 
to,  and  the  truth  of  the  proposition  powerfully  enforced,  in  a  veiT  able  judg- 
ment of  the  late  Mr.  Justice  Story  in  Webb  v.  Portland  Mfg.  Co.,  8  Sumn. 
Rep.  189,  Fed.  Cas.  No.  17,322.  But  in  applying  this  admitted  rule  to  the 
case  of  rights  to  running  water,  and  the  analogous  cases  of  rights  to  air  and 
light,  it  must  be  considered  what  the  nature  of  those  rights  is,  and  what  is 
a  violation  of  them."  In  this  case  it  was  held  that,  as  no  actual  damage  had 
been  caused  to  the  plaintiff  by  the  defendant's  act,  there  had  been  "no  in- 
jury in  fact  or  in  law  in  this  ease,  and  consequently  that  the  verdict  for  the 
defendant  ought  not  to  be  disturbed." 


966  TORTS  THROUGH   ACTS   OF  CONDITIONAL   LIABILITY         (Part  3 

and  had  had  the  warehouse  kept  closed  in  consequence;  and  he  went 
to  the  office  of  Mr.  Learoyd,  his  attorney,  on  the  morning  of  the  24th 
of  May,  and  told  him  that  an  execution  was  out  against  his,  Bower's 
goods ;  and  at  Mr,  Learoyd's  suggestion  a  deed  of  assignment  was 
drawn  up,  in  form  schedule  D  to  the  Bankruptcy  Act,  1861,  and  exe- 
cuted by  Bower  at  a  few  minutes  before  ten,  by  which  Bower  conveyed 
all  his  goods  to  Robert  Wood  and  Thomas  Hirst,  two  of  his  creditors, 
to  be  applied  for  the  benefit  of  themselves  and  all  the  other  creditors. 
Thornton,  the  sheriff's  officer,  was  at  once  informed  of  the  deed,  and 
took  possession  of  the  goods  in  the  warehouse  by  Learoyd's  direction 
on  behalf  of  the  trustees  under  the  deed.  Learoyd  was  not  at  this  time 
employed  by  the  trustees,  but  he  became  their  attorney  soon  after- 
wards. Neither  of  the  trustees  assented  to  the  deed  at  the  time  of  exe- 
cution, but  Wood  executed  it  on  the  afternoon  of  the  24th  of  May,  and 
Hirst  a  few  days  afterwards.  A  meeting  of  Bower's  creditors  was 
held  on  the  4th  of  June  as  to  what  was  the  best  course  to  pursue,  and 
most  of  the  requisite  assents  to  the  deed  were  given  on  that  day,  but 
the  plaintiffs  refused  theirs ;  and  it  was  determined  that  no  preference 
of  any  kind  should  be  allowed  to  any  creditor,  and  bankruptcy  was  sug- 
gested as  the  alternative  if  some  arrangement  was  not  come  to.  Meet- 
ings were  again  held  on  the  12th  and  19th  of  June,  and  on  the  last  oc- 
casion the  plaintiffs  agreed  to  suspend  their  proceedings,  and  it  was 
determined  to  wind  up  under  the  deed ;  and  the  requisite  assents  hav- 
ing been  obtained,  the  deed  was  registered  on  the  21st  of  June. 

The  learned  judge  told  the  jury  that  a  sheriff's  officer  might  break 
open  the  door  of  a  warehouse,  but  was  not  bound  in  law  to  do  so  at 
once ;  and  he  left  it  to  them  to  say  whether  the  sheriff  had  used  due 
diligence  in  executing  the  warrant,  that  is,  could  the  officer,  with  due 
diligence,  have  made  the  levy  before  ten  o'clock?  If  they  thought  the 
officer  ought  to  have  broken  the  locks  at  once  they  would  find  for  the 
plaintiffs,  otherwise  for  the  defendant.  The  jury  found  for  the  de- 
fendant, leave  being  reserved  to  move  to  enter  a  verdict  for  the  plain- 
tiffs, for  such  sum  (if  any)  as  the  Court  should  think  them  entitled  to, 
the  Court  to  have  power  to  draw  any  inference  of  fact  not  inconsist- 
ent with  the  finding  of  the  jury  as  to  the  breaking  of  the  locks. 

A  rule  was  obtained  to  enter  the  verdict  for  the  amount  of  the  judg- 
ment, or  for  the  costs  of  action  and  execution,  or  for  nominal  damages. 

Blackburn,  J,  *  *  *  ^°  Notwithstanding  the  execution  of 
the  deed,  the  sheriff  might  and  ought  to  have  levied  on  the  goods  dur- 
ing any  part  of  the  24th  of  May.  Next  comes  the  question,  what  dam- 
age have  the  plaintiffs  sustained?  Prima  facie,  the  damage  is  meas- 
ured by  the  whole  value  of  the  goods  which  might  have  been  seized. 
But  at  ten  o'clock,  before  the  sheriff  might  and  ought  to  have  levied, 

86  The  argument  of  counsel,  a  portion  of  the  opinion  of  Blackburn,  J.,  and 
the  concurring  opinion  of  ^lellor,  .7,,  are  omitted. 


Ch.  1)  NEGLIGENCE  9G7 

Bower  executed  the  deed  of  assignment  of  all  his  goods,  and  this  was 
for  the  very  purpose  of  defeating  and  delaying  the  execution  creditors, 
and  it  was  therefore  an  act  of  bankruptcy.  *  *  *  Therefore,  at  ten 
in  the  morning  of  the  24th  of  May,  before  the  sheriff  was  in  default, 
that  had  happened  which  would  have  been  available  as  an  act  of  bank- 
ruptcy, and  if  the  officer  had  proceeded  afterwards  to  levy,  instead  of 
taking  possession  under  the  deed,  by  section  74  of  the  Bankruptcy  Act, 
1861,  he  could  not  have  sold  till  after  three  days,  and  then  only  by 
public  auction ;  so  that  I  cannot  doubt,  when  drawing  inferences  of 
fact,  that  if  the  sheriff  had  proceeded  with  the  execution  and  had  lev- 
ied and  had  then  advertised  the  sale,  as  he  was  bound  to  do  under  sec- 
tion 74,  the  very  first  thing  that  would  have  happened  would  have  been 
that  the  execution  would  have  been  brought  to  the  notice  of  the  trus- 
tees, or  some  other  of  the  creditors,  and  they  would  infallibly  have 
made  the  present  plaintiffs  and  their  attorney  fully  aware  of  the  deed, 
setting  it  up  in  all  probability,  as  in  fact  they  did,  as  a  valid  transfer. 
What,  then,  would  have  been  the  consequence  of  this  state  of  facts? 
Why,  that  by  section  133  of  the  Bankruptcy  Act  of  1849  the  plaintiffs 
would  have  got  no  benefit  at  all  from  their  execution ;  for  if  they  had 
proceeded  with  it  there  would  have  been  an  adjudication  of  bankrupt- 
cy, and  then  there  would  have  been  execution  levied,  but  not  completed 
by  sale  until  after  notice  of  the  previous  act  of  bankruptcy. 

Mr.  Manisty  says  that  these  probable  facts  ought  not  to  be  taken 
into  consideration,  and  that  we  ought  not  to  speculate  on  probabilities, 
or  whether  or  not  the  creditors  would  have  made  Bower  a  bankrupt. 
If  that  position  were  followed  out  to  its  consequences,  the  damages 
would  in  every  case  be  the  value  of  the  goods  which  ought  to  have  been 
seized.  But  if  you  may  take  any  facts  into  consideration  which  go  to 
show  that  the  execution  creditor  would  not  have  reaped  the  full  ad- 
vantage of  his  execution,  I  do  not  see  why  you  may  not  take  all  the 
facts  that  would  probably  occur  as  against  the  execution  creditor's 
prima  facie  presumption  that  the  damages  are  the  full  value  of  the 
goods.  It  appears  to  me,  as  a  juryman,  an  absolute  certainty  that  no- 
tice of  the  act  of  bankruptcy  would  have  been  brought  home  to  the 
plaintiff's  before  sale;  and  balancing  the  weight  of  probabilities,  I  think 
there  is  the  strongest  probability  that  had  the  defendant  levied  there 
would  have  been  an  adjudication  of  bankruptcy;  and  I  accordingly 
draw  the  inference  that  the  plaintiffs  would  have  derived  no  benefit 
from  their  execution  had  it  been  proceeded  with.  Consequently  they 
have  suffered  no  damage  from  the  defendant's  breach  of  duty. 

The  question  remains,  are  they  entitled  to  a  verdict  for  nominal  dam- 
ages? I  think  not.  The  one  case  is  anomalous  and  exceptional,  that 
a  creditor  may  maintain  an  action  for  nominal  damages  for  an  escape 
on  a  ca.  sa.,  although  the  custody  of  the  debtor  would  have  been  of 
no  value  to  him,  and  the  ground  seems  to  be  that  the  creditor  has  a 
right  to  have  the  body  of  his  debtor.     Whether  the  reasoning  is  satis- 


9GS  TORTS   THROUGH  ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

factory  or  not,  it  has  no  application  to  the  case  of  not  levying  on  goods. 
On  the  whole,  therefore,  it  appears  to  me  that  the  verdict  for  the  de- 
fendant must  stand,  and  the  rule  be  discharged. 
Rule  discharged. 


J 


SULLIVAN  V.  OLD  COLONY  ST.  RY.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  190S.    200  Mass.  303,  86  N.  E.  511.) 

Tort.  The  first  count  in  the  declaration  alleged  that  while  the  plain- 
tiff was  a  passenger  on  an  electric  car  of  the  defendant  the  car  was  de- 
railed owing  to  the  defendant's  negligence  "whereby  the  plaintiff  was 
jolted  and  in  many  ways  injured  externally  and  internally."  *  *  * 
The  jury  returned  a  verdict  for  the  defendant,  and  the  plaintiff  alleged 
exceptions. 

She;ldon,  J.  No  question  was  made  at  the  trial  but  that  the  de- 
fendant was  liable  for  an  injury  done  to  the  plaintiff  by  reason  of  its 
car  having  left  the  track.  But  if  no  injury  was  caused  by  this  to  the 
plaintiff,  if  he  suffered  no  damage  whatever  from  the  defendant's  neg- 
ligence, then  he  would  not  be  entitled  to  recover.  Although  there  has 
been  negligence  in  the  performance  of  a  legal  duty,  yet  it  is  only  those 
who  have  suffered  damage  therefrom  that  may  maintain  an  action 
therefor.  Heaven  v.  Pender,  11  Q.  B.  D.  503,  507;  Farrell  v.  Water- 
bury  Horse  R.  Co.,  60  Conn.  239,  246,  21  Atl.  675,  22  Atl.  544;  Salmon 
V.  Delaware,  etc.,  R.  Co.,  38  N.  J.  Law,  5,  11,  20  Am.  Rep.  356;  2 
Cooley  on  Torts  (3d  Ed.)  791 ;  Wharton  on  Negligence  (2d  Ed.)  §  3. 
In  cases  of  negligence,  there  is  no  such  invasion  of  rights  as  to  entitle 
a  plaintiff'  to  recover  at  least  nominal  damages,  as  in  Hooten  v.  Bar- 
nard, 137  Mass.  36,  and  McAneany  v.  Jewett,  10  Allen,  151.     *     *     *  " 

3  7  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitfed. 

Compare  the  remark  of  Bowen,  L.  J.,  in  Brunsden  v.  Humphrey  (1884)  14 
Q.  B.  D.  141,  149:  "Actions  for  the  negligent  uiauagemeut  of  any  animal, 
or  any  personal  or  movable  chattel,  such  as  a  ship  or  machine,  or  instrument, 
ail  are  based  upon  the  same  principle,  viz.,  that  a  person,  who,  contrary  to 
his  duty,  conducts  himself  negligently  in  the  management  of  that  which  con- 
tains in  itself  an  element  of  danger  to  otliers  is  liable  for  all  injury  caused 
by  his  want  of  care  or  sUill.  Such  an  action  is  based  upon  the  union  of  the 
negligence  and  the  injuries  caused  thereby,  which  in  such  an  instance  will  as  a 
rule  involve  and  have  been  accompanied  by  specific  damage.  Without  re- 
mounting to  the  Roman  law,  or  discussing  the  refinements  of  scholastic  juris- 
prudence and  the  various  uses  that  have  been  made,  either  by  judges  or 
juridical  writers,  of  the  terms  'injuria'  and  'damnum,'  it  is  sufliciont  to  say 
that  the  gist  of  an  action  for  negligence  seems  to  me  to  be  the  harm  to  i)er- 
son  or  property  negligently  perpetrated.  In  a  certain  class  of  cases  the  mere 
violation  of  a  legal  right  imiwrts  a  damage.  'Actual  perceptible  damage,' 
says  Parke,  B.,  in  ICmbrey  v.  Owen  [1851]  0  Exch.  353,  368,  'is  not  indisi>ensa- 
ble,  as  the  foundation  of  an  action;  it  is  suHicient  to  shew  the  violation  of  a 
right,  in  which  case  the  law  will  presume  damage.'  But  this  principle  is 
not  as  a  rule  applicable  to  actions  for  negligence,  which  are  not  l)rougbt  to 
establisli  a  bare  right,  but  to  recover  compensation  for  substantial  injury. 
'Generally  speaking,'  says  Littledale,  J.,  in  Williams  v.  ISIorland  [1824]  2  B. 
&  C.  91(3,  'there  must  be  temporal  loss  or  damage  accruing  from  the  wrongful 


Ch.  1)  NEGLIGENCE  9G*J 


IV.  Whether  Freedom  from  Contributory  Fault  is  Part  oe 

THE  Prima  Facie  Case  in  Negligence 

LANE  V.  CROMBIE. 
(Supreme  Judicial  Court  of  Massacliusett&,  1831.     12  Piclc  177.") 

Action  on  the  case,  alleging  negligence  on  the  part  of  the  defendants' 
servant  when  driving  a  four-horse  sleigh  in  the  highway,  whereby  the 
plaintiff  was  run  over  and  injured.  A  verdict  being  found  in  favor  of 
the  plaintiff,  a  motion  was  made  to  set  it  aside,  for  a  misdirection.^* 

Per  Curiam.  We  consider  the  rule  to  be  well  settled,  that  to  ena- 
able  a  plaintiff  to  recover  under  such  circumstances,  he  must  not  only 
show  some  negligence  and  misconduct  on  the  part  of  the  defendant, 
but  ordinary  care  and  diligence  on  his  own  part.  Butterfield  v.  For- 
rester, 11  East,  61  ;  Harlow  v.  Humiston,  6  Cow.  (N.  Y.)  191;  Smith 

V.  Smith,  2  Pick.  621,  13  Am.  Dec.  464. 

The  judge  who  tried  the  cause  so  instructed  the  jury;  but  in  the 
course  of  the  charge,  he  further  stated  to  the  jury,  that  the  burden  of 
proof  was  upon  the  plaintiff  to  prove  negligence  in  the  defendants, 
that  being  the  gist  of  the  case;  but  that  when  the  defendants  relied 
upon  the  fact,  that  the  plaintiff'  conducted  herself  carelessly,  the  bur- 
den of  proof  was  upon  the  defendants  to  show  that  the  plaintiff  had 
not  used  ordinary  care. 

The  latter  part  of  this  direction,  we  think,  was  incorrect  in  point  of 
law,  and  that  the  burden  of  proof  was  upon  the  plaintiff  to  show  that 
the  accident  was  not  occasioned  by  her  own  negligence,  in  placing  her- 
self in  a  hazardous  position,  without  due  precaution.  In  the  actual 
state  of  the  evidence,  it  is  extremely  probable  that  this  direction  made 
no  dift"erence  in  regard  to  the  result ;  still,  if  the  evidence  was  such 
that  the  jury  might  have  decided  the  other  way  upon  this  point,  without 
going  decidedly  against  the  weight  of  the  evidence,  or  in  other  words, 

act  of  anotlier  in  order  to  entitle  a  party  to  maintain  an  action  on  the  case.' 
See  Fay  v.  Prentice  (1845)  1  C.  B.  So5"'  [where  Maule,  J.,  in  an  action  on  the 
case  remarks:  "I  think  there  is  no  doubt  that  trespass  woud  lie  here;  Ijut 
can  the  plaintiff  maintain  case  without  showing  some  consequential  damage?"] 

Accord:  Commercial  Bank  v.  Ten  Eyck  (1872)  48  N.  Y.  305:  (Action  against 
the  cashier  of  a  bank  for  neglect  of  duty.  The  neglect  was  proved,  but  there 
was  no  evidence  that  the  plaintiff  had  suffered  damage.) 

Lalaurie  v.  Southern  Bank  (1873)  25  La.  Ann.  330:  (A  note  for  $60  made  by 
Lalaurie  was  deposited  in  the  Southern  Bank  for  collection.  The  employes 
of  the  bank  were  not  able  to  decipher  the  maker's  signature,  and  guessing  at 
it  entered  the  name  in  the  bank  book  Icept  for  the  purjiose  as  Labalos.  As 
a  result,  when  the  clerk  of  the  maker  called  to  pay  the  note,  he  was  informed 
by  the  cashier  that  no  such  note  was  deposited  with  the  bank.  A  few  days 
later  the  note  was  protested.  Early  the  next  day  the  note  was  paid.  The 
maker  sued  to  recover  damages  because  of  the  protest  due  to  the  defendant's 
negligence.  The  jury  awarded  him  $500  damages  and  judgment  was  entered 
for  this  by  the  trial  court.  "But,"  said  the  reviewing  court,  "no  actual  in- 
jury or  damage  to  the  plaintiff  has  been  proved.*') 

88  The  statement  of  the  case  is  slightly  abridged. 


970  TORTS  THROUGH   ACTS   OF   CONDITIONAL  LIABILITY         (Part  3 

if  the  evidence  was  doubtful  and  balanced,  such  a  direction  may  have 
had  an  influence  to  mislead  the  jury ;  and  therefore  the  Court  are  now 
all  of  opinion,  that  the  verdict  must  be  set  aside  and  a  new  trial 
granted.^* 
n 

39  "The  first  error  assigned,  on  which  tlie  plaintiff  in  error,  the  defendant 
below,  relies,  is  that  the  county  court  omitted  to  charge  the  jury  that  the 
burden  was  on  the  plaintiff  below  of  proving  that,  when  tlie  injury  complained 
of  was  committed,  he  was  in  the  exercise  of  reasonable  care  and  prudence.  We 
j  accord,  entirely,  with  the  decisions,  cited  by  him  to  show  that,  in  this  suit, 
^  the  burden  of  showing  that  the  injury  was  not  attributable  to  the  want  of 
reasonable  care  on  his  part,  rested  on  the  plaintiff.  The  reason  of  this  rule  is, 
that  the  plaintiff'  must  prove  all  the  facts  which  are  necessary  to  entitle  him 
to  recover,  and  this  is  one  of  those  facts.  It  was  necessary  for  tlae  plain- 
tiff" to  prove,  first,  negligence  on  the  part  of  the  defendant,  in  respect  to  the 
collision  alleged,  and,  secondly,  that  the  injury  to  tlie  plaintiff"  occurred  in 
consequence  of  that  negligence.  But  in  order  to  prove  this  latter  part,  the 
plaintiff  miist  show  that  such  injury  was  not  caused,  in  whole,  or  in  part, 
by  his  own  negligence ;  for,  although  tlie  defendant  was  guilty  of  negligence, 
it  the  plaintiff's  negligence  contributed  essentially  to  the  injury,  it  is  obvious 
that  it  did  not  occur  by  reason  of  the  defendant's  negligence.  Therefore 
the  plaintiff  would  not  prove  enough  to  entitle  him  to  recover,  by  merely  show- 
ing negligence  on  the  part  of  the  defendant ;  but  he  must  go  further  and  also 
prove  the  injury  to  liave  been  caused  by  such  negligence  by  showing  a  want 
of  concurring  negligence  on  his  own  part,  contributing  materially  to  the  in- 
jury. Hence,  to  say  that  the  plaintiff  must  show  the  latter,  is  only  saying 
that  he  must  show  that  the  injury  was  owing  to  the  negligence  of  the  de- 
fendant. And  as  the  defendant  had  a  riglit  to  liave  the  jury  informed,  as  to 
what  facts  the  plaintiff  must  prove  in  order  to  recover,  he  had  a  right  to 
require  the  court  to  instnict  them,  that  it  was  incumbent  on  the  plaintiff  to 
prove  a  want  of  such  concurring  negligence  on  his  part."  Per  Storrs,  J., 
in  Park  v.  O'Brien  (1854)  23  Conn.  339,  345. 

The  decisions  cited  by  the  plaintiff  in  error  were  Lane  v.  Croiubie  (1831) 
12  Pick.  I  (Mass.)  177;  Adams  v.  Carlisle  (183S)  21  Pick.  (Mass.)  140;  Parker 
V.  Adams  (1847)  12  Mete.  (Mass.)  415,  4G  Am.  Dec.  694 ;  Bosworth  v.  Swansey 
(1845)  10  Mete.  (Mass.)  363,  43  Am.  Dec.  441. 

Compare  O'Connor  v.  Connecticut,  etc.,  Co.  (1909)  82  Conn.  120,  72  Atl.  934:  (P. 
sued  for  injuries  sustained  by  him  from  a  collision  between  liis  cart  and  D.'s 
street  car.  Tlie  Supreme  Court  sustained  a  judgment  in  favor  of  P.  under  the  ap- 
plication of  this  i>rinciple  :  "We  held  in  Fay  v.  Hartford  St.  Ry.  Co.  [1908]  81 
Conn.  330,  71  Atl.  364,  that  under  an  answer  denying  the  averments  of  the  com- 
plaint, in  an  action  of  this  character,  the  jury  were  never  at  liberty  to  guess 
or  surmise  the  existence  of  the  claimed  negligence  of  the  defendant,  or  due 
care  of  the  plaintiff,  but  that  the  burden  rested  upon  the  plaintiff  to  prove 
them  either  by  direct  evidence,  or  by  the  proof  of  facts  or  circumstances 
from  which  they  could  fairly  and  reasonably  be  inferred,  and  that,  when 
upon  tlie  trial  there  was  no  evidence  from  which  the  jury  could  reasonably 
conclude  that  there  was  a  prepon<lerance  of  proof  of  the  nlloged  negligence 
of  the  defendant,  or  of  the  due  care  of  the  injured  person,  the  court,  if  a  non- 
suit was  not  granted,  should  either  direct  a  verdict  for  the  deftnidant  upon 
his  request,  or,  if  a  verdict  should  be  returned  for  the  plaintiff,  should  upon 
motion  set  it  aside  as  against  the  evidence.") 

The  doctrine  that  it  is  part  of  the  plaintiff's  prima  facie  case  to  show  that 
his  damage  was  not  caused  l)y  his  own  negligence  is  recognized  in  a  number 
of  states.  See  29  Cyc.  576,  577,  and  tlie  cases  cited  there,  and  in  the  subse- 
quent Annotation  volumes,  for  the  following  jurisdictions:  Connecticut,  Idaho, 
Illinois,  Indiana  (until  1899,  when  a  statute  excepted  actions  for  negligence 
causing  jxirsonal  injury  or  death),  Iowa,  Maine,  Massachusetts,  Michigan, 
New  York,  North  Carolina  (until  the  statute  of  1887,  applicalile  to  all  actions 
for  negligence;  Revisal  of  1905,  S  is:',),  OUlalionia,  -mvX  N'r-rmont.  The  cases, 
however,  even  in  the  same  state,  are  not  always  in  accord.  See  also  Cent. 
Dig.  "Negligence,"  §§  186-189,  229-232 ;    Key-No.  "Negligence,''  §§  113,  122. 


Ch.  1)  KEGLIGENCB  971 

WAKELIN  V.  LONDON  &  S.  W.  RY.  CO. 
(House  of  Lords,  1886.     L.  R,  12  App.  Cas.  41.) 

Appeal  from  a  decision  of  the  Court  of  Appeal. 

The  action  was  brought  by  the  administratrix  of  Henry  Wakelin  on 
behalf  of  herself  and  her  children  under  Lord  Campbell's  Act,  9  &  10 
Vict.  c.  93. 

The  statement  of  claim  alleged  that  the  defendant's  line  between 
Chiswich  Station  and  Chiswich  Junction  crossed  a  public  footway,  and 
that  on  the  1st  of  May,  1882,  the  defendants  so  negligently  and  un- 
skilfully drove  a  train  on  the  line  across  the  footpath  and  so  neglected 
to  take  precautions  in  respect  of  the  train  and  the  crossing  that  the 
train  struck  and  killed  one  Henry  Wakelin,  the  plaintiff's  husband, 
whilst  lawfully  on  the  footpath. 

The  statement  of  defence  admitted  that  on  that  day  the  plaintiff's 
husband  whilst  on  or  near  the  footpath  was  struck  by  a  train  of  the  de- 
fendants, and  so  injured  that  he  died,  but  denied  the  alleged  negligence  ; 
did  not  admit  that  the  deceased  was  lawfully  crossing  the  line  at  the 
time  in  question ;  and  alleged  that  his  death  was  caused  by  his  own 
negligence  and  that  he  might  by  the  exercise  of  reasonable  caution  have 
seen  the  train  approaching  and  avoided  the  accident. 

At  the  trial  before  Manisty,  J.,  and  a  special  jury  in  Middlesex  in 
December,  1883,  the  following  evidence  was  given  on  behalf  of  the 
plaintiff.  It  appeared  from  defendants'  answers  to  interrogatories 
that  the  crossing  was  a  level  crossing  open  to  all  foot  passengers : 
that  the  approaches  to  the  crossing  on  each  side  of  the  line  were  guard- 
ed by  hand  gates :  that  there  was  a  slight  curve  at  the  crossing :  that 
assuming  the  deceased  to  have  been  crossing  the  line  from  the  down 
side  and  standing  inside  the  hand  gates  but  not  on  the  line  he  could 
have  seen  a  train  approaching  on  the  down  side  at  a  distance  of  nearly 
if  not  quite  half  a  mile,  but  that  when  standing  in  the  centre  of  the 
line  he  could  have  seen  a  train  approaching  on  the  down  side  at  a  dis- 
tance of  more  than  one  mile :  that  the  body  of  the  deceased  was  found 
on  the  down  side  of  the  line  and  that  he  was  run  upon  and  killed  by  a 
down  train:  that  the  engine  carried  the  usual  and  proper  headliglits 
which  were  visible  at  the  distances  above  mentioned :  that  the  company 
did  not  give  any  special  signal  or  take  any  extraordinary  precautions 
while  their  trains  were  travelling  over  the  crossing:  that  a  watchman 
in  the  company's  employ  was  on  duty  from  8  a.  m.  to  8  p.  m.  to  take 
charge  of  the  gates  and  crossing  and  amongst  other  duties  to  provide 
for  the  safety  of  foot  passengers. 

Oral  evidence  was  given  that  from  the  cottage  where  the  deceased 
lived  it  would  take  about  ten  minutes  to  walk  to  the  crossing ;  that  he 
left  his  cottage  on  the  evening  of  the  1st  of  May  after  tea,  and  that  he 


972  TORTS  THROUGH  ACTS   OF   CONDITIONAL  LIABILITY         (Part  3 

was  never  seen  again  till  his  body  was  found  the  same  night  on  the 
down  line  near  the  crossing.  There  was  no  evidence  as  to  the  circum- 
stances under  w^hich  he  got  on  to  the  line. 

The  defendants  called  no  witnesses,  and  submitted  that  there  was, 
no  case.  Manisty,  J.,  left  the  case  to  the  jury  wdio  returned  a  verdict 
for  the  plaintiff  for  £800.  The  Divisional  Court  (Grove,  J.,  Huddle- 
ston,  B.,  and  Haw^kins,  J.)  set  aside  the  verdict  and  entered  judgment 
for  the  defendants.  The  Court  of  Appeal  (Brett,  M.  R.,  and  Bowen 
and  Fry,  L.  JJ.)  on  the  16th  of  May,  1884,  affirmed  this  decision.  In 
the  course  of  his  judgment  Brett,  M.  R.,  said  that  in  his  opinion  the 
plaintiff  in  this  case  was  not  only  bound  to  give  evidence  of  negligence 
on  the  part  of  the  defendants  which  was  a  cause  of  the  death  of  the 
deceased,  but  was  also  bound  to  give  prima  facie  evidence  that  the  de- 
ceased was  not  guilty  of  negligence  contributing  to  the  accident ;  and 
that  by  reason  of  the  plaintiff  having  been  unable  to  give  any  evidence 
of  the  circumstances  of  the  accident  she  had  failed  in  giving  evidence 
of  that  necessary  part  of  her  prima  facie  case. 

From  this  decision  the  plaintiff  appealed. 

Lord  Watson.  My  Lords,  in  the  view  which  I  take  of  the  evi- 
dence adduced  at  the  trial  before  Manisty,  J.,  it  may  not  be  absolutely 
necessary  to  say  anything  in  regard  to  the  onus  which  attaches  to  the 
plaintiff'  in  this  and  similar  cases.  I  shall  nevertheless  express  my  opin- 
ion upon  the  point,  because  it  was  discussed  in  the  judgments  deliv- 
ered in  the  Court  of  Appeal,  and  has  been  fully  and  ably  argued  at 
your  Lordships'  bar. 

It  appears  to  me  that  in  all  such  cases  the  liability  of  the  defendant 
company  must  rest  upon  these  facts, — in  the  first  place  that  there  was 
some  negligent  act  or  omission  on  the  paft  of  the  company  or  their 
servants  which  materially  contributed  to  the  injury  or  death  com- 
plained of,  and,  in  the  second  place,  that  there  was  no  contributory 
negligence  on  the  part  of  the  injured  or  deceased  person.  But  it  does 
not,  in  my  opinion,  necessarily  follow^  that  the  whole  burden  of  proof 
is  cast  upon  the  plaintiff".  That  it  lies  with  the  plaintiff'  to  prove  the 
first  of  these  propositions  does  not  admit  of  dispute.  Mere  allegation 
or  proof  that  the  company  were  guilty  of  negligence  is  altogether  irrel- 
evant; they  might  be  guilty  of  many  negligent  acts  or  omissions,  which 
might  possibly  have  occasioned  injury  to  somebody,  but  had  no  con- 
nection whatever  with  the  injury  for  which  redress  is  sought,  and 
therefore  the  plaintiff  must  allege  and  prove,  not  merely  that  they  were 
negligent,  but  that  their  negligence  caused  or  materially  contributed 
to  the  injury. 

I  am  of  opinion  that  the  onus  of  proving  affirmatively  that  there  was 
contributory  negligence  on  the  part  of  the  person  injured  rests,  in  the 
first  instance,  upon  the  defendants,  and  that  in  the  absence  of  evidence 
tending  to  that  conclusion,  the  plaintiff"  is  not  bound  to  prove  the 
negative  in  order  to  entitle  her  to  a  verdict  in  her  favor.    That  opin- 


Ch.  ])  NEGLIGENCE  973 

ion  was  expressed  by  Lord  Hatherley  and  Lord  Penzance  in  the  Dub- 
lin, Wicklow,  and  Wexford  Railway  Company  v.  Slattery,  3  App.  Cas. 
1169,  1180.  I  agree  with  these  noble  Lords  in  thinking  that,  whether 
the  question  of  such  contributory  negligence  arises  on  the  plea  of  "not 
guilty,"  or  is  made  the  subject  of  a  counter  issue,  it  is  substantially  a 
matter  of  defence,  and  I  do  not  find  that  the  other  noble  Lords,  who 
took  part  in  the  decision  of  Slattery's  Case,  said  anything  to  the  con- 
trary. In  expressing  my  own  opinion,  I  have  added  the  words  "in 
the  first  instance,"  because  in  the  course  of  the  trial  the  onus  may  be 
shifted  to  the  plaintiff  so  as  to  justify  a  finding  in  the  defeHdants' 
favour  to  which  they  would  not  otherwise  have  been  entitled. 

The  difficulty  of  dealing  with  the  question  of  onus  in  cases  like  the 
present  arises  from  the  fact  that  in  most  cases  it  is  well  nigh  impos- 
sible for  the  plaintiff  to  lay  his  evidence  before  a  jury  or  the  Court 
without  disclosing  circumstances  which  either  point  to  or  tend  to  rebut 
the  conclusion  that  the  injured  party  was  guilty  of  contributory  negli- 
gence. If  the  plaintift''s  evidence  were  sufficient  to  shew  that  the  neg- 
ligence of  the  defendants  did  materially  contribute  to  the  injury,  and 
threw  no  light  upon  the  question  of  the  injured  party's  negligence,  then 
I  should  be  of  opinion  that,  in  the  absence  of  any  counter-evidence 
from  the  defendants,  it  ought  to  be  presumed  that,  in  point  of  fact, 
there  was  no  such  contributory  negligence.  Even  if  the  plaintiff''s  evi- 
dence did  disclose  facts  and  circumstances  bearing  upon  that  question, 
which  were  neither  sufficient  per  se  to  prove  such  contributor}'  negli- 
gence, nor  to  cast  the  onus  of  disproving  it  on  the  plaintiff",  I  should  re- 
main of  the  same  opinion.  Of  course  a  plaintiff  who  comes  into  Court 
with  an  unfounded  action  may  have  to  submit  to  the  inconvenience  of 
having  his  adversary's  defence  proved  by  his  own  witnesses ;  but  that 
cannot  affect  the  question  upon  whom  the  onus  lies  in  the  first  instance. 
As  Lord  Hatherley  said  in  Dublin,  \\'icklow  &  Wexford  Railway 
Company  v.  Slatterly,  3  App.  Cas.  1169:  "If  such  contributory  negli- 
gence be  admitted  by  the  plaintiff,  or  be  proved  by  the  plaintiff's  wit- 
nesses while  establishing  negligence  against  the  defendants,  I  do  not 
think  there  is  anything  left  for  the  jury  to  decide,  there  being  no  con- 
test of  fact." 

In  the  present  case,  I  think  the  appellant  must  fail,  because  no  at- 
tempt has  been  made  to  bring  evidence  in  support  of  her  allegations 
up  to  the  point  at  which  the  question  of  contributory  negligence  be- 
comes material.  The  evidence  appears  to  me  to  shew  that  the  inju- 
ries which  caused  the  death  of  Henry  Wakelin  were  occasioned  by 
contact  with  an  engine  or  a  train  belonging  to  the  respondents,  and  I 
am  willing  to  assume,  although  I  am  by  no  means  satisfied,  that  it  has 
also  been  proved  that  they  were  in  certain  respects  negligent.  The 
evidence  goes  no  further.  It  affords  ample  materials  for  conjecturing 
that  the  death  may  possibly  have  been  occasioned  by  that  negligence, 
but  it  furnishes  no  data  from  which  an  inference  can  be  reasonably 
drawn  that  as  a  matter  of  fact  it  was  so  occasioned. 


974  TORTS  THROUGH   ACTS   OF   CONDITIONAL  LIABILITY         (Part  3 

I  am  accordingly  of  opinion  that  the  order  appealed  from  must  be 
affirmed.*" 

Lord  Blackburn.  My  Lords,  I  have  had  the  advantage  of  perus- 
ing in  print  the  opinion  just  delivered  by  my  noble  and  learned  friend. 
In  it  I  perfectly  agree. 

Order  appealed  from  affirmed,  and  appeal  dismissed. 


J    WASHINGTON  &  G.  R.  CO.  v.  GLADMON. 
(Supreme  Court  of  the  United  States,  1872.    15  Wall.  401,  21  L.  Ed.  114.) 

Oliver  Gladmon,  by  his  next  friend,  brought  an  action  in  the  Su- 
preme Court  of  the  District  of  Columbia  against  the  railroad  com- 
pany to  recover  for  personal  injuries  alleged  to  have  been  caused  by 
the  defendant's  negligence.  Judgment  for  the  plaintiff ;  the  defendant 
sued  out  a  writ  of  error. 

Mr.  Justice:  Hunt.  Oliver  Gladmon,  a  child  of  the  age  of  seven 
years,  while  crossing  a  street  in  Georgetown,  was  injured  by  the  cars 
of  the  Company,  the  original  defendant  in  this  suit.  Sufficient  proof 
was  given  to  establish  the  negligence  of  the  driver  of  the  car,  and 
no  point  is  raised  on  that  branch  of  the  case.  The  alleged  errors  arise 
from  refusals  to  give  certain  instructions  upon  the  effect  of  the  con- 
duct of  the  child,  and  of  the  charge  as  actually  made  on  that  sub- 
ject. The  first  prayer  for  instructions  is  stated  in  the  record  in  the 
words  following: 

"After  the  close  of  the  testimony  the  defendants  by  their  counsel  asked 
the  court  to  give  the  following  instructions  to  the  jury:  if  the  jury  find  from 
the  evidence  that  the  plaintiff's  injuries  resulted  from  his  attempting  to  cross 
a  street  in  front  of  an  approaching  car,  driven  by  an  agent'  of  defendants, 
the  burden  of  proof  is  on  the  plaintiff  to  show  affirmatively,  not  only  the 
want  of  ordinary  care  and  caution  on  the  part  of  the  driver,  but  the  exercise 
of  due  care  and  caution  on  his  own  part;  and  if  the  jury  find  from  tlie  evi- 
dence that  the  negligence  or  want  of  due  care  or  caution  of  the  plaintiff 
caused  the  accident,  or  even  contributed  to  it,  or  that  it  could  have  been 
avoided  by  the  exercise  of  due  care  on  his  own  part,  then  the  plaintiff  is  not 
entitled  to  recover,  whether  the  driver  of  the  car  was  guilty  of  negligence  or 
not,  but  the  jury  must  find  for  defendant." 

As  applied  to  adult  parties,  the  first  branch  of  this  proposition  is 
not  correct.  While  it  is  true  that  the  absence  of  reasonable  care  and 
caution,  on  the  part  of  one  seeking  to  recover  for  an  injury  so  re- 
ceived, will  prevent  a  recovery,  it  is  not  correct  to  say  that  it  is  in- 
cumbent upon   him  to  prove   such   care   and  caution.     The  want  of 

4  0  The  opinions  of  Lord  Halsbury,  L.  C,  and  Lord  FitzGerald  are  omitted. 

On  the  position  taken  by  Brett,  INI.  R.,  in  the  Court  of  Appeal,  see  the  re- 
mark in  Clerk  «Sc  Lindsell's  Law  of  Torts  (4th  Ed.)  510,  text  and  note:  "Uix»u 
the  issue  of  contributory  negligence  the  burden  of  proof  at  the  commencement 
of  the  trial  is  upon  the  defendant,  and  the  plaintiff  is  not  bound  in  the  first 
instance  to  give  any  evidence  to  negative  the  existence  of  it.  *  *  *  Lord 
Esher  has  indeed  uniformly  held  the  contrary,  but  he  seems  to  be  the  only 
judge  in  this  country  who  has  supported  that  doctrine." 


Ch.  1)  NEGLIGENCE  975 

such  care,  or  contributory  negligence  as  it  is  termed,  is  a  defense  to 
be  proved  by  the  other  side. 

The  plaintiff  may  establish  the  negligence  of  the  defendant,  his  own 
injury  in  consequence  thereof,  and  his  case  is  made  out.  If  there  are 
circumstances  which  convict  him  of  concurring  negligence,  the  de- 
fendant must  prove  them,  and  thus  defeat  the  action.  Irrespective  of 
statute  law  on  the  subject,  the  burden  of  proof  on  that  point  does  not 
rest  upon  the  plaintiff.  Oklfield  v.  N.  Y.  &  Har.  R.  R.  Co.,  3  E.  D. 
Smith  (N.  Y.)  103,  affirmed  14  N.  Y.  310;  Johnson  v.  Hud.  Riv.  R. 
R.  Co.,  20  N.  Y.  65,  75  Am.  Dec.  375 ;  Button  v.  Same,  18  N.  Y.  248 ; 
Wilds  V.  Same,  24  N.  Y.  430.    In  the  case  first  cited  Denio,  J.,  says : 

"I  am  of  opinion  that  it  is  not  a  rule  of  law  of  universal  applica- 
tion that  the  plaintiff  must  prove  affirmatively  that  his  own  conduct, 
on  the  occasion  of  the  injury,  was  cautious  and  prudent.  The  onus 
probandi,  in  this  as  in  most  other  cases,  depends  upon  the  position  of 
the  aft'air  as  it  stands  upon  the  undisputed  facts.  Thus,  if  a  carriage 
be  driven  furiously  through  a  crowded  thoroughfare,  and  a  person 
is  run  over,  he  would  not  be  obliged  to  prove  that  he  was  cautious  and 
attentive,  and  he  might  recover,  though  there  were  no  witness  of  his 
actual  conduct.  The  natural  instinct  of  self-preservation  would  stand 
in  the  place  of  positive  evidence,  and  the  dangerous  tendency  of  the 
defendant's  conduct  would  create  so  strong  a  probability  that  the 
injury  happened  through  his  fault  that  no  other  evidence  would  be 
required.  *  *  *  'pj^g  culpability  of  the  defendant  must  be  affirma- 
tively proved  before  the  case  can  go  to  the  jury,  but  the  absence  of 
any  fault  on  the  part  of  the  plaintiff  may  be  inferred  from  circum- 
stances :  and  the  disposition  of  men  to  take  care  of  themselves  and 
keep  out  of  difficulty  may  properly  be  taken  into  consideration." 

The  later  cases  in  the  New  York  Court  of  Appeals  I  think  will  show 
that  the  trials  have  almost  uniformly  proceeded  upon  the  theory  that 
the  plaintiff'  is  not  bound  to  prove  affirmatively  that  he  was  himself 
free  from  negligence,  and  this  theory  has  been  accepted  as  the  true 
one.  Generally,  as  here,  the  proof  which  shows  the  defendant's  neg- 
ligence, shows  also  the  negligence  or  the  caution  of  the  plaintiff.  The 
question  of  the  burden  of  proof  is,  therefore,  not  usually  presented 
with  prominence.  In  some  of  the  States  it  has  been  held  that  the 
plaintiff  was  bound  to  make  affirmative  proof  of  his  freedom  from 
negligence.  In  many  cases  it  is  so  held  by  virtue  of  local  statutes. 
Shear.  &  Red.  Neg.  §§  43  and  44,  and  note,  where  the  cases  are  col- 
lected.    *     *     *  " 

Upon  the  case,  as  it  comes  before  us,  the  judgment  must  be  af- 
firmed.*- 

4  1  In  the  omitted  portion  of  the  opinion,  the  court  held  that  the  charse 
re(iucsted  was  properly  refused  because  it  ignored  the  difforenco  in  the  rule 
in  regard  to  the  negligence  of  an  gdult  and  the  negligence  of  a  child  of  tender 
years. 

4  2  "By  the  settled  law  of  this  court,  not  controverted  at  the  bar,  contribu- 
tory negligence  on  the  part  of  the  plaintiff  need  not  be  negatived  or  disproved 


97G  TOUTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  o 

by  him,  but  the  burden  of  proving  it  is  upon  the  defendant."  Mr.  Justice 
Grav,  delivering  the  opinion  in  Texas,  etc.,  Ry.  Co.  v.  Volli  (1S94)  151  U.  S. 
73,  74,  14  Sup.  Ct.  239,  38  L.  Ed.  78. 

See,  also,  O'Hara  v.  Central  R.  Co.  of  New  Jersey  (1910)  183  Fed.  739,  106 
C.  C.  A.  177:  (Plaintiff's  decedent  was  struck  by  defendant's  train  at  a  cross- 
ing in  New  Jersey.  The  defendant's  liability  turned  on  the  question  of  con- 
tributory negligence  in  the  decedent.  Said  Lacombe,  J.,  delivering  the  opinion 
of  the  Circuit  Court  of  Appeals:  "In  the  state  coui'ts  it  is  incumbent  on  the 
plaintiff,  in  actions  of  this  kind,  to  satisfy  the  jury  as  part  of  his  case  that 
the  person  injured  was  free  from  contributory  uegliTCUce.  Evidence  to  estab- 
lish this  proposition  is  not  always  direct.  The  exercise  of  proper  care  may  be 
inferred  from  facts  showing  what  occurred,  even  though  death  or  other  cause 
may  prevent  the  introduction  of  any  proof  as  to  the  mental  processes  of  the 
person  injured.  .  In  the  federal  courts  contributory  negligence  is  an  aflirma- 
tive  defense.  The  burden  of  establishing  it  rests  on  the  defendant.  This 
rule  does  not  ret^uire  defendant  to  establish  contributory  negligence  by  wit- 
nesses whom  defendant  calls  to  the  stand.  If  the  plaintiff's  own  witnesses 
testify  to  undisputed  facts  from  which  that  inference  must  be  drawn,  de- 
fendant may  rest  on  their  testimony  and  ask  for  a  dismissal ;  but  if  the  un- 
disputed facts  might  reasonably  support  an  inference  as  to  the  injured  per- 
son's conduct  which  would  leave  it  doubtful  whether  he  was  or  was  not  neg- 
ligent, the  question  whether  or  not  the  defense  is  proved  will  be  one  for  the 
jury  to  determine.") 

The  doctrine  of  the  principal  case,  treating  contributory  negligence  as 
regularly  matter  of  defense,  is  the  rule  in  the  federal  courts,  and  in  most 
of  the  state  courts.  See  29  Cyc.  575,  576,  and  the  cases  cited  there,  and  in 
the  subsequent  Annotation  volumes,  for  the  following  jurisdictions:  Alabama, 
Arizona,  Arkansas,  California,  Colorado,  Delaware,  District  of  Columbia, 
Florida,  Georgia,  Indiana  (since  1899,  by  stutute,  if  the  action  is  for  negligence 
causing  personal  injury  or  death ;  Act  Feb.  17,  1S99,  Burns'  Rev.  Stats.  Ind. 
[1914]  §  362),  Kansas,  Kentucky,  Louisiana,  Maryland,  IMinnesota,  Mississippi, 
Missouri,  Montana.  Nebraska,  Nevada,  New  Hampshire,  New  Jersey.  North 
Carolina  (since  1887.  by  statute,  applicable  to  all  actions  for  negligence; 
Revisal  of  1905,  §  483),  North  Dakota,  Ohio,  Oregon,  Pennsylvania,  South 
Carolina,  Tennessee,  Texas,  Utah,  Virginia,  Washington,  West  Virginia,  Wis- 
consin, United  States.  The  cases,  however  even  in  the  same  state,  are  not  al- 
ways in  accord. 

See,  also.  Cent.  Dig.  "Negligence,"  §§  186-189,  229-232;  Key-No.  "Negli- 
gence," §§  113,  122. 

Compare:  Smith  v.  Delaware  River  Amusement  Co.  (1908),  76  N.  J.  Law, 
46,  69  Atl.  970:  (Minturn,  J.:  "The  declaration  alleges  that  *  *  *  the 
plaintiff  purchased  a  ticket  of  admission  to  a  grand  stand  in  an  amusement 
park  maintained  by  defendant  *  *  *  and  that  while  leaving  the  stand 
with  other  people  she,  without  notice  of  the  existence  of  any  danger,  walked 
into  a  hole  in  the  flooring  and  severely  injured  herself.  *  *  *  We  can- 
not say  from  an  inspection  of  tliis  declaration  that  it  shows  the  plaintiff  to 
have  contributed  to  her  own  injury ;  nor  will  the  law  presume  that  she  was 
negligent  in  that  respect.  *  *  *  The  requirement  in  some  jurisdictions 
that  the  declaration  shall  allege  that  due  care  was  exercised  by  the  plaintiff, 
or,  in  other  words,  that  contributory  negligence  shall  be  negatived  by  an  al- 
legation of  due  care  [Cooley  on  Torts.  673],  has  never  been  the  rule  in  this 
state ;  but,  on  the  contrary,  it  has  l>een  determined  that  a  declaration  is 
good  if  it  contains  all  that  is  necessary  for  the  plaintiff  to  prove  under  a  plea 
of  the  general  issue  in  order  to  entitle  him  to  recover.  Beardsley  v.  South- 
mayd,  14  N.  J.  Law,  534.  The  plaintiff,  therefore,  is  entitled  to  judgment  on 
the  demurrer.") 


Ch.  1)  NEGLIGENCE  977 

WHALEN  V.  CITIZENS'  GASLIGHT  CO. 

(Court  of  Appeals  of  New  York,  1896.    151  N.  Y.  70,  45  N.  E.  363.) 

Appeal  from  a  judgment  of  the  General  Term  of  the  City  Court  of 
Brooklyn,  which  affirmed  a  judgment  in  favor  of  the  plaintiff,  en- 
tered upon  a  verdict. 

Haight,  J.  This  action  was  brought  to  recover  damages  for  a 
personal  injury. 

On  the  12th  day  of  September,  1893,  the  defendant  was  engaged 
in  laying  a  gas  pipe  across  the  sidev/alk  in  Court  street  in  the  city  of 
Brooklyn,  connecting  its  gas  main  in  that  street  with  the  premises  on 
the  northeast  corner  of  Court  and  Sackett  streets.  For  this  purpose  it 
had  obtained  the  consent  of  the  city  authorities  for  the  removal  of 
the  flagstones  of  the  sidewalk  in  order  to  dig  a  trench  in  which  to  lay 
the  pipe.  At  the  time  of  the  accident  complained  of  it  had  caused  a 
flagstone  next  to  the  building  to  be  removed,  and  another  flagstone, 
four  feet  two  inches  in  length  by  three  feet  four  inches  in  breadth 
and  between  three  and  four  inches  in  thickness  in  the  center  of  the 
walk,  to  be  taken  up  and  placed  upon  an  adjoining  flagstone  upon  the 
walk,  and  its  employees  were  engaged  in  digging  a  pit  next  to  the 
house,  intending  to  tunnel  through  the  intervening  space  so  as  not  to 
necessitate  the  removal  of  any  more  of  the  sidewalk.  The  space  be- 
tween the  two  openings  undisturbed  was  about  five  feet.  Whilst  the 
w-alk  was  in  this  condition  the  plaintiff  approached,  tripped  her  foot 
upon  the  flagstone  that  had  been  removed,  fell  upon  it  and  sustained 
the  injury  for  which  this  action  was  brought.  It  was  about  a  quarter 
before  eleven  o'clock  in  the  forenoon,  and  was  a  nice  day.  She  was 
about  seventy  years  of  age,  and  had  been  engaged  in  doing  general 
housework  and  sewing,  and  used  to  go  out  to  wash,  iron  and  clean 
house.  She  testified  that  her  eyesight  was  very  good  and  that  she 
did  not  notice  the  flagstone  or  the  excavation  beside  it  as  she  came 
near  the  place  where  she  fell;  that  she  was  looking  along  the  street  as 
she  walked. 

It  is  the  well-settled  law  of  this  state  that,  in  actions  of  this  char- 
acter, the  absence  of  negligence  on  the  part  of  the  plaintiff  contribut- 
ing to  the  injury  must  be  affirmatively  shown  by  the  plaintiff,  and  that 
no  presumption  of  freedom  from  such  negligence  arises  from  the  mere 
happening  of  an  injury.  Reynolds  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co., 
58  N.  Y.  248;  Weston  v.  City  of  Troy,  139  N.  Y.  281,  34  N.  E. 
780.  If  this  law  as  to  be  recognized  and  followed  we  are  unable  to 
see  how  this  judgment  can  be  sustained ;  for  to  hold  otherwise  would 
practically  overrule  and  annul  the  rule  of  contributory  negligence.  As 
we  have  seen,  it  was  a  bright  day  and  about  eleven  o'clock  in  the  fore- 
noon. The  obstacle  over  which  the  plaintiff  fell  was  a  large  flagstone 
over  four  feet  in  length  and  three  in  breadth.  There  was  nothing  to 
Hepb.Tokts — 62 


978  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

obscure  her  vision;  her  eyesight  was  good  and  she  could  see  as  she 
was  walking  along  the  walk.  It  is  not  pretended  that  anything  oc- 
curred that  momentarily  obstructed  her  vision,  and  it  is  difhcult  to  con- 
ceive how  she  could  have  avoided  seeing  the  obstacle  unless  she  was 
heedlessly  proceeding  in  utter  disregard  of  the  precautions  usually 
taken  by  careful  and  prudent  people. 

To  our  minds  the  negligence  here  is  greater  than  that  of  the  plain- 
tiff in  the  Weston  Case,  supra.  In  that  case  the  plaintiff  stepped  upon 
a  ridge  of  ice  which  was  partially  covered  with  snow.  Andrews,  C.  J., 
in  delivering  the  opinion,  says :  "Whether  the  plaintiff  saw  the  ridge 
before  stepping  upon  it  does  not  appear.  Nor  was  it  shown  whether 
she  was  walking  fast  or  slow,  or  what  attention  she  was  paying,  if 
any,  to  the  condition  of  the  sidewalk.  If  she  discovered  the  ridge  she 
was  not  required  to  leave  the  sidewalk,  but  she  might,  without  being 
subject  to  the  charge  of  negligence,  using  due  care  and  prudence,  have 
kept  on  her  way.  But  she  could  not  heedlessly  disregard  the  pre- 
cautions which  the  obvious  situation  suggests  and  proceed  as  if  the 
sidewalk  was  free  and  unobstructed.  The  presumption  which  a  way- 
farer m.ay  indulge,  that  the  streets  of  a  city  are  safe  and  which  ex- 
cuses him  from  maintaining  a  vigilant  outlook  for  dangers  and  defects, 
has  no  application  where  the  danger  is  known  and  obvious."  See, 
also,  Beltz  v.  City  of  Yonkers,  148  N.  Y.  67,  42  N.  E.  401,  and  cases 
there  cited.     *     *     *  *3 

Judgment  reversed.** 

43  Tart  of  the  opinion,  on  the  question  of  assumption  of  risk,  is  omitted. 

4  4  See  the  remark  of  Gray,  J.,  in  Specht  v.  Waterbm-y  Co.  ^91.3)  208  N.  Y. 
374,  380,  102  N.  E.  569,  570 :  "Notwithstanding  that  slie  [planitiff's  intestate, 
a  child  six  years  of  age,  whose  death  had  been  caused  by  the  alleged  negli- 
gence of  the  defendant  in  starting  a  fire  on  a  vacant  lot]  may  have  been  non 
sui  juris,  the  defendant  was  entitled  to  have  it  appear  that  she  had  acted 
with  such  care  as  was  commensurate  with  a  child  of  her  age.  According  to 
the  plaintiff  his  daughter  was  a  bright,  intelligent  child  and  while,  in  the  case 
of  the  death  of  an  injured  person,  less  evidence  is  refpiired  upon  the  question 
of  freedom  from  contributory  negligence,  nevertheless,  evidence  of  facts  cannot 
be  wholly  dispensed  with,  upon  which  an  inference  might  rest  that  tlie  de- 
ceased was  fairly  free  from  fault.  Wendell  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co. 
[1883]  91  N.  Y.  420." 

Compare  the  remark  of  Strong,  J,  in  Button  v.  Hudson  River  R.  Co.  (1858) 
18  X.  Y.  248,  251 :  "The  other  point  presents  the  question  upon  whom  was 
the  burden  of  proof,  in  reference  to  negligence  of  the  intestate  conducing  to 
the  injury — whether  it  belonged  to  the  plaintifE  to  prove  afSrmatively  the  ab- 
sence, or  to  the  defendants  to  prove  affirmatively  the  presence,  of  such  negli- 
gence. In  regard  to  all  the  circumstances  essential  to  the  cause  of  action  the 
plaintiff  held  and  was  required  to  sustain  the  affirmative.  Among  those  cir- 
cumstances were,  that  the  defendants  were  negligent,  and  that  the  injury 
resulted  from  that  negligence.  If  the  intestate  was  negligent,  and  his  negli- 
gence concurred  with  that  of  the  defendants  in  producing  the  injury,  the 
plaintifE  had  no  cause  of  action.  The  reason  why  no  right  of  action  would 
exist  is  that,  both  the  intestate  and  the  defendants  being  guilty  of  negligence, 
they  were  the  common  authors  of  what  immediately  flowed  from  it,  and  it 
was  not  a  consequence  of  the  negligence  of  either.  The  court  cannot  accu- 
rately, and  will  not  undertake  to,  discriminate  between  them  as  to  the  extent 
of  the  negligence  of  each  and  the  share  of  the  result  produced  by  each ;    uei- 


Ch.  1)  NEGLIGENCE  979 

HUDSON  V.  WABASH  WESTERN  RY.  CO. 

(Supreme  Court  of  Missouri,  1S90.    101  Mo.  13,  14  S.  W.  15.) 

This  action  was  against  the  railway  company  for  damages  for  a  per- 
sonal injury  alleged  to  have  been  caused  by  the  defendant's  negligence. 
It  appeared  that  the  defendant's  freight  train  had  been  negligently  left 
standing  across  a  public  street  without  a  watchman  to  warn  persons 
using  the  crossing,  that  plaintiff  tried  to  cross  by  climbing  on  to  the 
cars  and  stepping  on  the  coupling  pins,  that  as  plaintiff  was  thus 
crossing,  the  defendant  suddenly  and  negligently  started  the  train, 
whereby  plaintiff's  foot  was  caught  and  crushed.  The  petition  alleged 
that  "the  plaintiff,  without  any  fault  on  his  part,  was  caught  between 
two  of  said  cars,  then  and  there,  and  had  his  foot  smashed,  torn  and 


ther,  therefore,  could  allege  against  the  other  any  wrong,  and  without  a  wrong 
there  can  be  no  legal  injurj'.  In  this  view,  the  exercise  of  due  care  by  the 
intestate  was  an  element  of  the  cause  of  action.  Without  proof  of  it,  it  would 
not  appear  that  the  negligence  of  the  defendants  caused  the  injury.  *  *  * 
It  must  not  be  understood  that  it  was  incumbent  on  the  plaintiff,  in  the  first 
instance,  to  give  evidence  for  the  direct  and  .special  object  of  establishing  the 
observance  of  due  care  by  the  intestate;  it  would  be  enough  if  the  proof  in- 
troduced of  the  negligence  of  the  defendants  and  the  circumstances  of  the 
injury,  prima  facie,  established  that  the  injury  was  occasioned  by  the  negli- 
gence of  the  defendants ;  as  such  e^-idence  would  exclude  the  idea  of  a  want 
of  due  care  by  the  intestate  aiding  to  the  result.  Ordinarily,  in  similar  ac- 
tions, when  there  has  been  no  fault  on  the  part  of  the  plaintiff,  it  will  suffi- 
ciently appear  in  showing  the  fault  of  the  defendant,  and  that  it  was  a  cause 
of  the  injury  and  when  it  does  so,  no  further  evidence  on  the  subject  is  nec- 
essary." 

See  also  the  reporter's  note  on  the  foregoing  case  (page  259):  "Selden,  J., 
objected  to  an  implication  which  he  conceived  to  lurk  in  the  opinion  of  Strong, 
J.  (but  which  Strong,  J.,  disclaimed),  that,  in  the  absence  of  proof  of  any  cir- 
cumstances importing  negligence  on  the  part  of  the  plaintiff,  there  might  be 
a  presumption  thereof  which  he  is  required  to  repel ;  whereas  his  negligence 
must  be  inferred  from  evidence,  and  is  not  to  be  presumed." 

In  Lee  v.  Troy  Gaslight  Co.  (1SS5)  98  N.  T.  115,  the  complaint  alleged  that 
the  plaintiff's  horse  had  been  killed  by  gas  escaping  from  a  leak  in  the  gas 
pipe  under  plaintiff's  barn,  and  that  the  leak  was  occasioned  by  the  negli- 
gence of  defendant's  employes  in  twisting  the  pipe  while  engaged  in  chang- 
ing its  position.  The  defendant  contended  that  the  complaint  was  insufficient 
because  it  nowhere  alleged  the  absence  of  contributory  negligence  in  the  plain- 
tiff. Said  Finch,  J.,  delivering  the  opinion:  "Such  separate  and  direct  aver- 
ment in  the  pleading  was  unnecessary.  Hackford  v.  N.  Y.  C.  R.  R.  Co.  [1S71] 
6  Lans.  [N.  Y.]  381,  affirmed  [1873]  53  N.  Y.  654.  Substantially  that  allegation 
is  always  involved  in  the  averment  that  the  injury  set  out  was  occasioned  by 
the  defendant's  negligence.  To  prove  that,  it  is  necessary  for  the  plaintiff  to 
show,  and  the  burden  is  upon  him  to  establish,  that  his  own  negligence  did  not 
cau.se  or  contribute  to  the  injury.  Hale  v.  Smith  [1879]  78  N.  Y.  480.  In  the 
multitude  of  eases  of  this  general  character  we  know  of  none  which  re<iuires 
of  the  pleader  any  independent  or  explicit  allegation  that  the  plaintiff  himself 
was  without  fault" 

For  the  application  of  this  rule  of  pleading  see.  also,  Rogardus  v.  MetroiX)li- 
tan  St.  Ry.  Co.  (1901)  62  App.  Div.  370,  70  N.  Y.  Supp.  1094 ;  Klein  v.  Burleson 
(1910)  138  App.  Div.  407,  122  N.  Y.  Supp.  752. 


9S0  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

broken."    The  answer  denied  each  and  every  allegation  in  the  petition. 
The  following  instruction  was  given : 

"The  court  instructs  tlie  jury  that  defendant  has  not  pleaded  as  a  defense 
in  this  case  contributory  negligence  on  the  part  of  plaintiff;  and  therefore  the 
e][uestion  whether  plaintiff  himself  was  negligent  or  not  is  not  before  the  jury, 
and  must  not  be  considered  by  it." 

To  this  instruction  the  defendant  excepted.  The  trial  resulted  in 
a  verdict  for  the  plaintiff  for  $2,500  and  judgment  thereon.*^ 

She;rwood,  J.  It  is  the  unquestioned  law  of  this  state  that  con- 
tributory negligence,  strictly,  is  an  affirmative  defense,  and,  in  or- 
der to  avail  a  defendant  as  a  matter  of  pleading,  it  must  be  affirma- 
tively pleaded.  O'Connor  v.  Railway  Co.,  94  Mo.  155,  7  S.  W.  106, 
4  Am.  St,  Rep.  364,  and  cases  cited;  Donovan  v.  Railroad  Co.,  89 
Mo.  147,  1  S.  W.  232;  Schlereth  v.  Railway  Co.,  96  Mo.  509,  10 
S.  W.  66.  The  contention  is,  however,  made  by  the  defendant  that, 
as  the  petition,  among  other  things,  alleged  concerning  plaintiff  "that 
by  said  negligent  acts,  and  without  any  fault  on  his  part,  he  was  then 
and  there  caught  between  two  of  said  cars,"  etc.,  and  the  answer 
denied  this  averment,  that  therefore  the  defense  of  contributory  neg- 
hgence  was  raised.  This  is  a  mistake.  True,  the  case  of  Karle  v. 
Railroad  Co.,  55  Mo.  482,  apparently  supports  this  contention;  but 
the  utterance  there  was  only  obiter,  and  should  not  be  regarded  as 
possessing  any  authoritative  value.     *     *     * 

But,  while  contributory  negligence  as  a  matter  of  defense  has  to 
be  pleaded  in  order  for  a  defendant  to  avail  himself  of  it  by  the  in- 
troduction of  evidence  to  sustain  that  issue,  yet  it  does  not  thence 
follow  that,  if  the  plaintiff's  own  testimony  shows  circumstances  of 
contributory  negligence  which  absolutely  defeat  his  right  of  action, 
and  disprove  his  own  case,  that  the  defendant  is  not  at  liberty  to  take 
advantage  of  such  testimony,  though  produced  by  the  adversary.  On 
the  contrary,  it  is  well  settled  in  this  state,  as  well  as  elsewhere,  that 
such  advantage  may  be  taken  of  the  plaintiff's  testimony,  regardless 
of  whether  the  special  defense  be  pleaded  or  not.  ISIilburn  v.  Rail- 
road Co.,  86  Mo.  104,  and  cases  cited;  Schlereth  v.  Railway  Co., 
96  Mo.  509,  10  S.  W.  66.  When  this  occurs  it  is  the  duty  of  the 
trial  court  to  declare  this  result  to  the  jury  as  a  matter  of  law.  1 
Shear.  &  R.  Neg.  (4th  Ed.)  56,  112,  note;   2  Ror.  R.  R.  1054,  1055. 

This  duty,  it  is  claimed,  the  court  should  have  performed,  and 
that  the  first  instruction  of  the  defendant,  in  the  nature  of  a  demur- 
rer to  the  evidence,  should  have  been  given.  The  text-books  lay  it 
down  as  undoubted  law  that  the  act  of  climbing  over  stationary  cars, 
without  looking  to  see  whether  they  were  attached  to  an  engine  or 
not,  has  been  held  so  grossly  negligent  as  to  preclude  a  recovery  for 

4  5  The  statement  of  the  case  is  abridged.  Parts  of  the  opinion,  on  other 
points,  are  omitted. 


Ch.  1)  NEGLIGENCE  981 

injuries  received  while  making  such  attempt.  1  Thomp.  Neg.  429; 
2  Ror.  R.  R.  1055;  Beach,  Contrib.  Neg.  §  72.  And  the  reported 
cases  take  the  same  view  of  the  matter.     *     *     *  *« 

In  the  light  of  these  authorities  there  seems  no  room  to  question 
that  the  judgment  should  be  reversed,  and  it  is  so  ordered. 

46  Accord :  Orient  Ins.  Co.  v.  Northern  Pac.  Ry.  Co.  (190.5)  31  Mont.  502, 
78  Pac.  1036. 

And  see  Fitchbnrg:  R.  Co.  v.  Nichols  (189S)  29  C.  C.  A.  500,  85  Fed.  945,  947, 
where  Pntnam,  Circuit  Judge,  remarks :  "The  defendant  below  excepted  to  a 
refusal  of  the  court  to  rule  that  the  burden  was  on  the  plaintiff  below  to 
prove  that  he  was  not  guilty  of  contributory  negligence,  claiming  that  the 
case  is  excepted  from  the  general  rule  of  the  federal  courts,  because  the  plain- 
tiff below  alleges  in  his  declaration  that  he  was  'in  the  exercise  of  due  care.' 
None  of  the  numerous  rulings  of  the  Supreme  Court  to  the  effect  that,  on  this 
question,  the  burden  is  on  the  defendant,  commencing  with  Railroad  Co.  v. 
Gladmon  [1872]  15  Wall.  401,  42  L.  Ed.  114,  have  ever  deemed  it  necessary 
to  notice  the  state  of  the  pleadings  in  this  particular;  and  the  rule  has  been 
constantly  applied  in  this  circuit  to  cases  removed  from  the  state  courts, 
where  this  allegation  frequently  appears.  The  rule  has  more  relation  to  the 
orderly  trial  of  a  case  than  to  the  state  of  the  pleadings,  and  to  shift  from 
and  to  it  from  time  to  time  would  cause  a  great  judicial  inconvenience,  wholly 
unnecessary,  as  the  allegation  referred  to  may  better  be  regarded  as  surplus- 
age than  as  leading  to  a  variance." 

Compare :  Lake  Erie  &  W.  R.  Co.  v.  Mackey  (1895),  53  Ohio  St.  370,  41  N. 
E.  980,  29  L.  R.  A.  757,  53  Am.  St  Rep.  641.  It  was  contended  that  the  com- 
plaint was  not  good,  as  against  a  general  demurrer,  because  "the  presumption 
of  contributory  negligence  arising  from  the  facts  stated  is  not  overcome  by 
proper  averments."  The  petition  alleged  in  substance:  That  the  plaintiff  was 
a  minor  of  the  age  of  nine  years.  That  defendant's  track  through  tlie  village 
of  Coldwater  intersects  and  crosses  Main  street  at  grade.  That  Main  street 
is  a  common  thoroughfare  and  highway,  the  principal  street  of  said  village, 
and  the  point  of  junction  of  both  a  public  highway  and  street  crossing,  neces- 
sarily much  used  and  frequented  by  the  public.  On  June  5,  1S90,  the  defend- 
ant'did  negligently  and  unlawfully,  and  without  due  care  on  the  part  of  the 
servants  of  said  defendant  in  charge  thereof,  leave  a  long  train  of  freight 
cars,  attached  to  a  locomotive,  standing  upon  and  over,  obstructing  and  block- 
ing, said  crossing,  for  a  period  of  more  than  five  minutes  without  any  atten- 
tion to  said  crossing  or  the  consequences  to  the  convenience  or  life  and  limb 
of  persons  having  occasion  to  pass  such  obstruction.  That  at  the  time  afore- 
said, during  the  hour  of  noon  of  said  day,  while  said  train  was  so  unlawfully 
standing  on  said  crossing,  the  plaintiff,  a  child  of  tender  years  and  immature 
exi>erience  and  judgment,  was  lawfully  passing  along  said  street  going  to  a 
point  beyond  said  crossing  on  Main  street.  When  arri\-iug  at  said  crossing, 
and  in  full  view  of  the  engineer's  position,  aud  in  full  view  of  any  servant 
being  on  the  lookout  or  keeiiing  watch  o^•er  said  train,  he  found  said  crossing 
so  obstructed  and  blocked  by  said  defendant's  train.  That  after  remaining 
at  said  cros.sing  for  more  than  five  minutes,  and  receiving  no  warning,  plain- 
tiff, in  full  view  of  the  engineer's  proper  position,  and  within  the  knowledge 
of  ordinary  prudence  of  defendant's  servants,  attempted  to  pass  over  and 
cross  such  obstruction.  While  so  passing  over  said  cars,  defendant's  serv- 
ants, without  any  care  or  attention  to  said  crossing,  or  the  consequence  to 
any  one  attempting  to  pass  such  unlawful  obstruction,  without  due  care,  with- 
out signal,  without  notice,  without  warning,  did  then  and  there  imprudently, 
carelessly  negligently,  and  wrongfully  start  said  cars  suddenly  and  violently 
backward,  wherebj'  said  plaintiff's  right  foot  was  caught  between  the  cou- 
plings of  t^^•o  cars,  and  the  injury  followed.  Held  a  sufficient  statement  as 
against  a  demurrer  for  lack  of  facts. 


982  TORTS  THROUGH   ACTS  OF  CONDITIONAL   LIABILITY         (Part  3 

SECTION  3.— THE  SCOPE  OF  THE  DUTY  TO  USE  CARE 

I.  In  Rklation  to  thk  Ownership  or  Possession  of  Property 

(A)  Duty  of  Care  Tozvards  a  Trespasser 
(a)  In  General 


BLYTH  V.  TOPHAM. 
(Court  of  King's  Bench,  1607.    Cro.  Jac.  158,  79  Repi-int.  139.) 

Action  on  the  case ;  for  that  he  digged  a  pit  in  such  a  common, 
by  occasion  whereof  his  mare,  being  straying  there,  fell  into  said  pit 
and  perished.  The  defendant  pleaded  not  guilty;  and  it  was  found 
for  him. 

The  plaintiff,  to  save  costs,  now  moved  in  arrest  of  judgment  upon 
the  verdict,  that  the  declaration  was  not  good ;  for  when  the  mare 
was  straying,  and  he  shews  not  any  right  why  his  mare  should  be 
in  the  said  common,  the  digging  of  the  pit  is  lawful  as  against  him : 
and  although  his  mare  fell  therein,  he  hath  not  any  remedy ;  for  it 
is  damnum  absque  injuria:    wherefore  an  action  lies  not  by  him. 

The  whole  Court  was  of  that  opinion.  It  was  therefore  judged 
upon  the  declaration  that  the  bill  should  abate,  and  not  upon  the 
verdict. 


PONTING  v.  NOAKES  et  al. 

(Queen's  Bench  Division.     [1894]  2  Q.  B.  281.) 

Appeal  against  the  verdict  and  judgment  for  the  plaintiff  in  an 
action,  tried  before  the  deputy  judge  of  Andover  County  Court  and 
a  jury,  to  recover  as  damages  the  value  of  the  plaintiff's  horse,  which 
was  alleged  to  have  died  through  eating  of  the  defendant's  yew  tree. 

The  following  statement  of  the  facts  proved  or  admitted  at  the 
trial  is  taken  from  the  judgment  of  Charles,  J.: 

The  plaintiff  was  a  farmer  and  occupied  a  field  separated  from  the  premises 
of  the  defendants  by  a  fence.  On  the  side  of  the  fence  next  the  plaintiff's  field 
was  a  ditch  belonging  to  the  defendants.  On  the  defendants'  land  near  the 
fence  grew  a  yew  tree,  the  branches  of  which  projected  over  the  diteh,  but  not 
beyond  it.  They  did  not  overhang  the  plaintiff's  field.  At  the  distance  of  about 
120  yards  grew  another  yew  tree  in  the  garden  of  one  Hunt,  which  overliung 
the  plaintiff's  field,  and  in  the  hedge  of  the  plaintiff's  field,  about  fifty  yards 
from  the  defendants'  yew  tree,  there  was  a  small  yew  bush.  On  June  '2~), 
1893,  the  colt  and  several  other  horses  were  in  the  plaintill's  field.  On  the 
26th  the  colt  was  found  dead  five  yards  from  the  defendants'  yew,  and  Ihere 
was  no  doubt  from  the  examination  made  of  the  body  that  it  had  died  from 


Ch.  1)  NEGLIGENCE 


983 


eating  yew  leaves.  All  the  three  trees,  the  defendants',  Hunt's,  and  the  plain- 
tifif's  yew  bush,  presented  appearances  of  having  been  recently  eaten.  A  vet- 
erinary surgeun  stated  that  it  was  a  fact  within  his  liuowledge  that  horses 
have  been  Ivnown  to  walk  a  mile  after  eating  yew  leaves  before  dying,  and 
then  to  drop  down  dead.  Such  a  case,  however,  he  said,  would  be  exception- 
al :  the  animal  most  often  drops  down  dead  directly  after  the  eating,  or  after 
walking  a  short  distance. 

On  the  above  evidence  the  deputy  judge  left  the  case  to  the  jury, 
who  gave  a  verdict  for  damages  claimed,  and  judgment  for  the  plain- 
tiff was  given  accordingly.     The   defendants  appealed. 

Horace  Browne,  for  the  defendants.  *  *  *  No  duty  on  their 
part  to  fence  against  their  neighbour's  cattle  was  shewn,  nor  was 
there  any  duty  to  protect  such  cattle  from  having  access  to  the  tree. 
The  deputy  judge,  therefore,  ought  to  have  given  judgment  for  the 
defendants. 

Charles,  j.  *  *  *  Can  it  be  said  that  there  is  any  duty  on  a 
man,  either  not  to  grow  a  poisonous  tree  so  near  the  boundary  of 
his  property  as  to  be  accessible  to  the  stock  of  his  neighbour,  or,  if 
he  does  so.  to  take  precautions  to  prevent  any  danger  to  the  stock 
arising?  Now  here  it  must  be  remembered  that  no  liability  on  the  part 
of  the  defendants  to  fence  against  the  cattle  of  their  neighbour  was 
proved.  Had  any  such  liability  been  shown  to  exist,  and  had  the  fence 
been  defective,  it  might  well  have  been  found  by  the  jury  that  the 
colt  had  obtained  access  to  the  defendants'  land  through  breach  of  his 
obligation  to  fence,  and  the  poisonous  tree  being  immediately  with- 
in the  fence  that  the  eating  of  its  leaves  by  the  colt  was  the 
natural  consequence  of  the  defendants'  breach  of  duty.  But,  there 
being  no  liability  on  the  part  of  the  defendants  to  repair  the  fence, 
I  do  not  see  that  they  can  be  made  responsible  for  the  eating  of  those 
yew  leaves  by  an  animal  which,  in  order  to  reach  them,  had  come 
upon  their  land.  The  hurt  which  the  animal  received  was  due  to 
its  wrongful  intrusion.  It  had  no  right  to  be  there,  and  its  owner, 
therefore,  had  no  right  to  complain.  The  true  test  in  such  a  case  is 
pointed  out  by  Gibbs,  C.  J.,  in  Deane  v.  Clayton,  7  Taunt.  489,  at 
p.  533,  in  a  judgment  which  was  emphatically  approved  by  the  Court 
of  Exchequer  in  Jordin  v.  Crump,  8  'M.  &  W.  782,  though  on  the 
facts  proved  in  Deane  v.  Clayton,  7  Taunt.  489,  at  p.  533,  the  Court 
were  equally  divided  as  to  what  judgment  should  be  entered.  We 
must  ask,  he  says,  "in  each  case  whether  the  man  or  the  animal 
which  suffered  had,  or  had  not,  a  right  to  be  where  he  was  when  he 
received  the  hurt."  If  he  had  not,  then  (unless,  indeed,  the  element 
of  intention  to  injure,  as  in  Bird  v.  Holbrook,  4  Bing.  628,  or  of 
nuisance,  as  in  Barnes  v.  Ward,  9  C.  B.  392,  is  present)  no  action  is 
maintainable.  It  was,  however,  urged  that  there  was  here  something 
in  the  nature  of  nuisance,  and  that  the  growing  of  this  yew  tree 
so  near  to  the  boundary  was  actionable,  in  case  damage  was  caused 
by  it,  on  the  same  ground  as  that  on  which  Townsend  v.  Wathen. 
9  East,  277,  was  decided.    It  was  there  held  that  if  a  man  places  traps 


9S-1  TORTS   THROUGH    ACTS   OF   CONDITIONAL   LIABILITY  (Part  ^ 

baited  with  flesh  on  his  own  ground  so  near  to  the  premises  of  another 
that  dogs  kept  on  his  neighbour's  premises  must  probably  be  attract- 
ed by  their  instinct  into  the  traps,  and  if  in  consequence  his  neigh- 
bour's dogs  are  so  attracted  and  are  injured,  an  action  Hes.  But  no 
evidence  whatever  was  offered  in  this  case  that  the  yew  tree  could  be 
regarded  as  a  trap  in  this  sense  to  the  plaintiff's  horses,  and  in  the 
absence  of  any  such  evidence  it  was,  I  think,  the  plaintiff's  business 
to  keep  his  horses  from  going  too  near  the  tree,  and  not  the  defend- 
ants' duty  to  take  any  precautions  against  their  doing  so.  In  the  re- 
sult, therefore,  I  think,  that  this  appeal  must  be  allowed,  and  judg- 
ment entered  for  the  defendant. 
Judgment  for  the  defendant.*^ 


/ 


BAKER  V.  BYRNE. 
(Supreme  Court  of  New  York,  1S71.     58  Barb.  4.3S.) 

Appeal  by  the  plaintiff  from  a  judgment  dismissing  the  complaint, 
and  from  an  order  denying  a  motion  for  a  new  trial. 

This  action  was  brought  by  the  plaintiff  to  recover  damages  for 
an  injury  suffered  by  liim  from  falling  down  a  hatchway  of  the 
barge  Pilgrim.  It  was  admitted  by  the  defence  that  the  barge  was 
owned  by  the  defendant  George  C.  Byrne.  The  accident  occurred 
at  Jersey  City,  New  Jersey,  in  August,  1863.  The  plaintiff  was  then 
mate,  and  in  charge  of  the  steamer  Oriel.  At  the  time  of  the  in- 
jury, there  was  next  to  the  dock,  in  Jersey  City,  a  steamer  named 
Carnac.  The  barge  Pilgrim  was  lying  next  to  the  Carnac,  and  the 
Oriel  was  lying  outside  of  and  next  to  the  Pilgrim.  The  evidence 
showed  that  there  was  no  way  of  getting  aboard  the  Oriel  except 
by  going  over  the  Carnac  and  Pilgrim,  unless  it  was  by  means  of  a 
small  boat. 

The  plaintiff  had  been  going  over  the  Carnac  and  the  Pilgrim  to 
get  to  his  own  boat  for  a  day  or  two  previous  to  the  accident.  The 
accident  occurred  at  about  nine  o'clock  in  the  evening  of  August  23. 
That  evening  was  dark  and  the  upper  deck  of  the  Pilgrim  a  little 
wet  and  slippery,  and  the  plaintiff  went  from  the  upper  deck  to  the 
main  deck  of  the  Pilgrim  to  pass  over  to  his  own  boat.  The  hatch- 
ways on  board  the  Pilgrim  were  on  the  main  deck.  The  plaintiff  had 
usually  gone  over  the  upper  deck  of  the  Pilgrim,  and  in  doing  so 
would  not  have  observed  the  hatchways.  On  the  evening  in  ques- 
tion, the  hatchways  of  the  Pilgrim  had  been  left  open,  and  the  plain- 
tiff fell  through  one  of  them,  and  thereby  had  his  hip  dislocated  or 
very  much  injured. 

4  7  Only  so  much  of  the  opinion  is  given  as  relates  to  the  one  point.  In  an 
omitted  portion,  the  question  was  raised  whether  Fletcher  v.  Rylands  (18GG) 
L.  R.  1  Exch.  265  (1868)  3  H.  L.  330,  applies  to  the  facts  of  this  case.  It  was 
answered  in  the  negative. 


Ch.  1)  NEGLIGENCE  985 

The  defense  was  a  general  denial,  and  a  specific  denial  of  any  neg- 
ligence in  respect  to  the  hatchways  or  any  other  part  of  the  Pilgrim. 

By  the  Court,  Ingraham,  P.  J.  The  plaintiff,  when  crossing  the 
•defendant's  vessel,  had  no  right  or  license  to  be  there,  and  the  de- 
fendants owed  him  no  duty  which  threw  on  them  the  obligation  to 
close  the  hatches  of  their  vessel  at  night,  so  as  to  protect  a  trespasser 
from  injury. 

The  principle  on  which  persons  are  held  liable  for  such  acts,  is  that 
they  are  in  duty  bound  to  keep  their  property  in  such  a  condition  that 
persons  who  are  lawfully  there  shall  not  be  injured;  but  it  does  not 
extend  to  persons  on  the  defendant's  premises  without  right,  or  with- 
out permission. 

The  cases  of  Roulston  v.  Clark,  3  E.  D.  Smith,  366,  Bush  v. 
Brainard,  1  Cow.  78,  13  Am.  Dec.  513,  and  Mentges  v.  New  York 
■&  H.  R.  Co.,  1  Hilt.  425,  are  cases  exemplifying  this  rule. 

Judgment   affirmed. 


DUDLEY  v.  NORTHAMPTON  ST.  RY.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1906.    202  Mass.  443,  89  N.  E.  25, 

23  L.  R.  A.  LN.  S.]  561.) 

In  this  action  a  verdict  was  directed  for  the  defendant,  the  North- 
ampton Street  Railway  Company.     The  plaintiff  excepts. 

Shkldon,  J.  It  was  provided  by  the  statutes  in  force  at  the  time 
of  this  accident  that  no  person  should  operate  an  automobile  or  motor 
cycle  upon  any  public  highway  or  private  way  laid  out  under  authority 
of  statute  unless  he  had  been  licensed  to  do  so  and  unless  his  automo- 
bile or  motor  cycle  had  been  registered  as  prescribed.  St.  1903,  p.  507, 
c.  473;  St.  1905,  p.  227,  c.  311.  But  it  was  also  provided  by  section  2 
of  the  act  last  cited  that  "any  automobile  or  motor  cycle  owned  by  a 
nonresident  of  this  state  who  has  complied  with  the  laws  relative  to 
motor  vehicles  and  the  operation  thereof  of  the  state  in  which  he  re- 
sides may  be  operated  by  such  owner  on  the  roads  and  highways  of 
this  state  for  a  period  not  exceeding  fifteen  days  without  the  license," 
etc.,  required  in  other  cases.  The  first  question  presented  in  this  case 
is  whether  the  plaintiff  in  operating  his  machine  in  this  state  on  the 
day  of  the  accident  was  acting  in  violation  of  law. 

He  was  a  resident  of  Connecticut.  He  had  complied  with  all  the 
laws  of  that  state,  and  had  a  right  to  operate  his  machine  on  the  high- 
ways of  this  state  for  a  period  not  exceeding  15  days.  He  came  into 
this  state  in  his  automobile  on  Wednesday,  September  13th,  and  re- 
mained here  until  the  day  of  the  accident,  September  29th,  except  that 
on  September  14th  he  drove  to  West  Suffield,  Conn.,  returning  to  Mass- 
achusetts the  same  evening,  and  that  he  went  to  Brattlcboro,  Vt.,  on 
one  day  to  attend  a  fair,  staying  there  that  day,  but  not  overnight. 
Each  of  these  absences  was  merely  a  temporary  visit  to  the  other 


9S6  TORTS  THROUGH   ACTS  OF   CONDITIONAL  LIABILITY         (Part  3 

state,  made  with  no  intention  of  a  permanent  stay,  and  followed  by  a 
speedy  return;  and  on  each  of  these  days  he  did  actually  operate  his 
machine  in  this  state.  After  his  return  from  Vermont  and  before 
the  accident,  his  machine  needed  repairs,  and  was  kept  in  a  repair  gar- 
age a  day  and  a  half  for  that  purpose. 

It  is  not  necessary  to  determine  whether  the  statute  before  us  should 
be  interpreted  as  giving  to  nonresident  owners  of  motor  cars  who  have 
complied  with  the  laws  of  their  own  state  merely  one  period  of  15  days 
after  once  coming  into  the  state  before  being  forbidden  to  operate 
their  machines  on  the  roads  of  this  state  without  a  license  under  its  au- 
thority, and  allowing  only  one  total  period  of  grace  during  the  whole 
of  the  license  year,  or  whether  it  should  be  construed  more  liberally  by 
allowing  nonresident  owners  to  operate  their  cars  without  a  license 
for  a  period  of  not  more  than  15  days  upon  any  and  every  occasion 
when  they  shall  come  into  this  commonwealth.  In  either  event,  this 
plaintiff  had  exceeded  his  privilege.  He  made  one  visit  here ;  and  the 
running  of  his  15  days  was  not  interrupted  by  Hs  temporary  calls  into 
other  states.  Nor  can  the  period  be  extended  by  not  counting  the  days 
on  which  his  machine  was  laid  up  for  repairs  or  on  which  for  any 
other  reason  he  did  not  actually  operate  it.  He  had  driven  it  into  this 
commonwealth ;  within  the  meaning  of  the  statute  he  was  operating  it 
during  the  whole  of  his  stay.  By  no  process  of  computation  can  it  be 
claimed  that  his  stay  had  lasted  for  less  than  16  days.  It  follows  that 
he  was  acting  unlawfully,  in  violation  of  the  statutes  referred  to,  at 
the  time  of  the  collision  between  his  machine  and  the  defendant's  trol- 
ley car ;  and  it  must  be  determined  whether  his  violation  of  law  is  nec- 
essarily fatal  to  his  right  of  action.     *     *     * 

The  legislature,  in  the  opinion  of  a  majority  of  the  court,  intended 
to  outlaw  unregistered  machines,  and  to  give  them,  as  to  persons  law- 
fully using  the  highways,  no  other  right  than  that  of  being  exempt 
from  wanton  or  willful  injury.  They  were  to  be  no  more  travelers 
than  is  a  runaway  horse.  Richards  v.  Enfield,  13  Gray,  344;  Higgins 
V.  Boston,  148  Mass.  484,  20  N.  E.  105.  The  plaintiff  as  a  mere  tres- 
passer upon  the  highway  was  there  not  only  against  the  right  of  the 
owner  of  the  soil  and  so  liable  to  an  action  by  him,  but  also  against  the 
rights  of  all  other  persons  who  were  lawfully  using  the  highway.  He 
was  violating  a  law  made  for  their  protection  against  him ;  according- 
ly, he  was  a  trespasser  as  to  them.  It  follows  that  the  defendant,  which 
was  lawfully  using  the  highway  with  its  cars,  owed  to  the  plaintiff  no 
other  or  further  duty  than  that  which  it  would  owe  to  any  trespasser 
upon  its  property,  that  is,  not  the  duty  of  ordinary  care,  as  those  words 
are  commonly  used,  but  merely  the  duty  to  abstain  from  injuring  him 
by  wantonness  or  gross  negligence.  Sullivan  v.  Boston  Elevated  Ry., 
199  Mass.  7Z,  76,  84  N.  E.  844,  21  L.  R.  A.  (N.  S.)  36;  Fitzmauricc  v. 
N.  Y.,  N.  H.  &  H.  R.  R.,  192  Mass.  159,  162,  78  N.  E.  418,  6  L.  R.  A. 
(N.  S.)  1146,  116  Am.  St.  Rep.  236,  7  Ann.  Cas.  586;  Massell  v.  Bos- 
ton Elevated  Ry.,  191  Mass.  491,  493,  78  N.  E.  108.     *     *     * 


Ch.  1)  NEGLIGENCE  987 

Of  course  the  defendant  would  have  had  no  right  to  run  its  car  into 
the  plaintiff's  machine  wantonly  or  recklessly ;  and  that  is  the  point  of 
such  cases  as  Welch  v.  Wesson,  6  Gray,  505,  and  McKeon  v.  N.  Y.,  N. 
H.  &  H.  R.  R.,  183  Mass.  271,  67  N.  E.  329,  97  Am.  St.  Rep.  437. 
But  there  was  no  evidence  in  the  case  at  bar  to  warrant  a  finding  for 
the  plaintiff  upon  this  ground. 

Accordingly,  the  verdict  for  the  defendant  was  rightly  ordered ;  and 
we  need  not  consider  the  somewhat  doubtful  question  whether  upon 
the  evidence  it  could  have  been  found  that  the  plaintiff's  conduct  at  the 
time  of  the  collision  was  in  other  respects  consistent  with  the  exercise 
of  due  care  on  his  part. 

Exceptions  overruled.^^ 


(b)  Modifications  of  the  Rule 

McVOY  V.  OAKES  et  al.      •^ 
(Supreme  Court  of  Wisconsin,  1895.    91  Wis.  214,  64  N.  W.  748.) 

The  action  was  by  McVoy,  to  recover  damages  for  personal  injuries 
sustained  by  the  plaintift''s  ward,  through  the  negligence  of  the  de- 
fendants. A  demurrer  to  the  complaint  was  overruled,  and  the 
defendants  appealed.  The  complaint,  in  addition  to  appropriate  alle- 
gations to  show  the  liability  of  the  defendants,  if  plaintiff  is  entitled  to 
recover  at  all,  alleges,  in  substance,  that  on  the  4th  day  of  October, 
1893,  plaintiff's  ward,  a  little  boy  seven  years  of  age,  while  on  his  way 
home  from  school,  had  traveled  out  of  the  public  way,  along  the  rail- 
way track,  for  some  distance,  on  account  of  such  way  being  obstructed 
by  defendants'  train  of  cars,  when  he  climbed  upon  one  of  the  cars  by 
invitation  of  the  conductor,  and  was  induced  by  such  conductor  to  re- 
main on  such  car  while  the  train  moved  several  hundred  feet ;  that  the 
cars  stopped,  and  the  boy  then  jumped  off  on  the  side  furthest  from 
his  home,  and,  as  the  cars  moved  back,  he  walked  along  the  side  of 
the  train,  on  a  path  commonly  used  and  traveled  by  the  public,  by 
consent  of  the  defendants ;  that,  while  so  walking,  he  took  hold  of  one 
of  the  brake  rods  and  proceeded  in  that  way  for  a  distance  of  500  feet ; 
that  defendants'  servants  saw  him  as  he  was  walking  with  the  moving 
train,  with  one  hand  hold  of  the  brake  rod,  and  recklessly  and  wanton- 
ly caused  the  train  to  be  propelled  at  a  rapid  and  increasing  rate  of 
speed,  in  such  a  way  as  to  violently  jerk  him  from  his  feet,  and  throw 
him  under  the  cars,  and  injure  him. 

Marshall,  J.  (after  stating  the  facts).  According  to  the  allega- 
tion of  the  complaint,  defendants'  servants,  with  knowledge  that  the 
plaintiff's  ward,  a  boy  of  such  tender  years  that  he  could  not  be  held  to 
a  very  high  degree  of  care,  too  young  certainly  to  be  held  guilty  of 
contributory  negligence  as  a  matter  of  law,  was  in  a  dangerous  situa- 
te Parts  of  the  opinion  are  omitted. 


988  TORTS  THROUGH   ACTS  OF  CONDITIONAL   LIABILITY         (Part  3 

tion,  recklessly  and  wantonly  gave  speed  to  the  moving  train,  and 
suddenly  jerked  the  child  from  his  feet,  and  threw  him  under  the  cars. 
It  needs  no  argument  or  citation  of  authority  to  support  the  proposi- 
tion that  such  conduct,  under  the  circumstances  alleged,  constitutes 
actionable  negligence.  We  do  not  deem  it  necessary  to  consider  how 
the  boy  happened  to  be  in  the  position  he  was  at  the  time  of  the  injury. 
Without  any  reference  as  to  how  he  came  to  be  in  such  situation,  de- 
fendants' servants  at  least  owed  to  him  the  duty  not  to  knowingly,  reck- 
lessly, and  wantonly  injure  him.  The  order  of  the  superior  court  is 
affirmed,  and  the  cause  remanded  for  further  proceedings  according 
to  law. 


J 


PALMER  V.  GORDON. 


(Supreme  Judicial  Ck)urt  of  Massachusetts,  1S99.    173  Mass.  410,  53  N.  E.  900, 
^  73  Am.  St  Kep.  302.) 

In  this  action,  the  jury  returned  a  verdict  for  the  plaintiff,  and  the 
defendant  alleged  exceptions. 

Holmes,  J.  This  is  an  action  of  tort  for  personal  injuries.  We 
are  to  take  it  that  the  plaintiff,  a  boy,  was  a  trespasser,  with  some  other 
boys,  in  the  kitchen  attached  to  the  defendant's  restaurant,  and  that 
the  defendant  spilled  water  upon  the  stove  for  the  purpose  of  frighten- 
ing the  boys  away.  He  did  not  intend  to  scald  them,  but  the  water  flew 
from  the  stove  upon  the  legs  of  the  boys.  The  question  raised  by  the 
exceptions  is  whether  the  jury  were  warranted  in  finding  the  defendant 
liable. 

It  will  be  seen  that  this  case  falls  between  the  cases  of  spring  guns 
and  the  like,  where  the  defendant  is  or  may  be  in  the  same  position  as  if 
he  had  been  personally  present,  and  had  shot  the  plaintiff,  and  the 
cases  where,  as  against  trespassers  or  licensees,  railroads  are  held  en- 
titled to  run  trains  in  their  usual  way  without  special  precautions. 
Chenery  v.  Railroad  Co.,  160  Mass.  211,  213,  35  N.  E.  554,  22  L.  R.  A. 
575.  In  the  case  at  bar  the  defendant,  although  not  contemplating  or 
intending  actual  damage,  did  an  act  specifically  contemplating  the  plain- 
tiff's presence,  and  directed  against  him.  He  left  the  safe  position  of 
a  landowner,  simply  pursuing  his  own  convenience,  and  assuming  that 
no  one  would  break  the  law,  and  thereby  bring  himself  into  danger. 

Just  as  a  man,  may  make  himself  liable  to  a  negligent  plaintiff  by  a 
later  negligence  (Pierce  v.  Steamship  Co.,  153  Mass.  87,  89,  26  N.  E. 
415),  he  may  make  himself  liable  to  a  trespasser  by  an  act  that  is  done 
with  reference  to  the  trespasser's  presence,  and  that  sufficiently  clearly 
threatens  the  danger  which  it  brings  to  pass.  A  trespasser  is  not  caput 
lupinum.  In  the  present  case  the  only  element  of  doubt  was  whether 
the  danger  to  the  plaintiff  was  sufficiently  obvious  under  the  circum- 
stances.   That  question  properly  was  left  to  the  jury. 

Exceptions  overruled. 


Ch.  1)  NEGLIGENCE  989 

HERRICK  V.  WIXOM. 
(Supreme  Court  of  Michigan,  1^99.     121  Mich.  384,  80  N.  W.  117.) 

This  was  an  action  of  trespass  on  the  case.  The  defendant  was  pos- 
sessed of  and  managed  a  tent  circus.  On  the  afternoon  of  September 
18,  1897,  when  the  defendant  was  exhibiting  his  circus  the  plaintiff 
went  to  the  circus,  and  entered  the  tent,  the  entertainment  being  in 
progress,  and  took  a  seat  on  the  lower  tier  of  seats.  There  was  testi- 
mony that  the  plaintiff  entered  without  right.  One  feature  of  the  en- 
tertainment consisted  in  the  ignition  and  explosion  of  a  giant  firecracker 
attached  to  a  pipe  set  in  an  upright  position  in  one  of  the  show  rings. 
This  was  done  by  one  of  the  clowns.  There  is  testimony  to  show  that 
plaintiff'  sat  30  or  40  feet  from  the  place  where  the  cracker  was  ex- 
ploded, but,  when  the  same  was  exploded,  a  part  of  the  firecracker 
flew  and  struck  plaintiff  in  the  eye,  putting  it  out,  whereby  he  lost  the 
sight  and  use  of  the  eye.  For  this  injury  action  was  brought  against 
defendant  for  damages  as  a  result  of  defendant's  negligence  in  per- 
mitting a  dangerous  explosive  to  be  used  in  a  dangerous  manner,  which 
subjected  those  present  to  hazard  and  risk  of  injury.  Upon  the  trial 
a  verdict  was  rendered  for  the  defendant,  and  judgment  was  entered 
accordingly.    Plaintiff  brings  error.     *     *     * 

The  circuit  judge  charged  the  jury  as  follows: 

"The  negligence  charged  in  this  case,  gentlemen,  is  that  Mr.  Wixom  ex- 
ploded a  fii'ecracker,  of  the  dimensions  that  tlie  plaintiff  claims  this  fire- 
cracker was,  in  the  inside  of  this  tent,  and  in  the  presence  of  his  audience. 
They  claim  that  was  negligence.  And  that  is  the  question  for  you  to  deter- 
mine, under  the  evidence,  and  under  the  rules  of  law  that  I  have  given  you 
and  that  I  shall  give  you  hereafter.  Now,  you  must  further  find,  in  order 
that  the  plaintiff  recover,  that  the  plaintiff  was  in  the  tent,  where  he  was 
injured,  by  the  invitation  of  some  person  having  authority  to  allow  him  to 
go  in  there.  If  he  was  a  mere  trespasser,  who  forced  his  way  in,  then  the  de- 
fendant owed  him  no  duty  that  would  enable  him  to  recover  under  the  dec- 
laration and  proofs  in  this  case.     *     *     *  49 

Montgomery,  J.  (after  stating  the  facts).  We  think  this  instruc- 
tion faulty  in  so  far  as  it  was  intended  to  preclude  recovery  in  any 
event  if  the  plaintiff  was  found  to  be  a  trespasser.  It  is  true  that  a 
trespasser  who  suffers  an  injury  because  of  a  dangerous  condition  of 
premises  is  without  remedy.  But,  where  a  trespasser  is  discovered 
upon  the  premises  by  the  owner  or  occupant,  he  is  not  beyond  the  pale 
of  the  law,  and  any  negligence  resulting  in  injury  will  render  the  per- 
son guilty  of  negligence  liable  to  respond  in  damages.  Beach,  Contrib. 
Neg.  §  50;  Whart.  Neg.  §  346;  Marble  v.  Ross,  124  Mass.  44;  Hous- 
ton, etc.,  R.  Co.  v.  Sympkins,  54  Tex.  615,  38  Am.  Rep.  632;  Brown  v. 
Lynn,  31  Pa.  510,  72  Am.  Dec.  768;  Needham  v.  Railroad  Co.,  37  Cal. 
409;  Davies  v.  Mann,  10  Mees.  &  W.  546;  1  Shear.  &  R.  Neg.  §  99. 
In  this  case  the  negligent  act  of  the  defendant's  servant  was  commit- 
ted after  the  audience  was  made  up.     The  presence  of  plaintiff'  was 

4  0  The  statement  of  the  case  is  abridged. 


990  TORTS   THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

known,  and  the  danger  to  him  from  a  negligent  act  was  also  known. 
The  question  of  whether  a  dangerous  experiment  should  be  attempted 
in  his  presence,  or  whether  an  experiment  should  be  conducted  with 
due  care  and  regard  to  his  safety,  cannot  be  made  to  depend  upon 
whether  he  had  forced  himself  into  the  tent.  Every  instinct  of  hu- 
manity revolts  at  such  a  suggestion. 

For  this  error  the  judgment  will  be  reversed,  and  a  new  trial  or- 
dered. 


DAVIS'  ADM'R  v.  OHIO  VALLEY  BANKING  &  TRUST  CO. 

(Court  of  Appeals  of  Kentucky,  1908.     127  Ky.  800,  106  S.  W.  843,  15  L.  R.  A. 

[N.  S.]  402.) 

Carroll,  J.  Alleging  that  his  intestate,  Johnnie  Davis,  a  boy  about 
12  years  of  age,  was  killed  by  the  negligence  of  the  servants  of  appel- 
lee in  operating  an  elevator  in  its  building,  this  suit  was  brought  by 
the  administrator  to  recover  damages  for  his  death.  The  petition 
charged  that  decedent  lost  his  life  "by  the  gross  negligence  of  the  de- 
fendant, its  agents,  servants,  and  employes  while  conducting  and  man- 
aging the  said  elevator."  In  amended  petitions  it  was  alleged  that  the 
decedent  at  the  time  of  his  death  was,  by  the  consent,  knowledge,  and 
permission  of  the  agents  and  servants  of  defendant,  riding  on  top  of 
the  elevator,  and  was  there  for  the  purpose  of  carrying  dinner  tO'  his 
sister,  who  was  employed  in  one  of  the  office  rooms  of  the  building  in 
which  the  elevator  was  located,  and  while  in  this  dangerous  position 
was  carried  to  the  fourth  floor  of  the  building,  and  brought  back  to 
the  first  floor,  when  the  elevator  was  stopped,  and  while  it  was  stand- 
ing, and  decedent  was  in  the  act  of  getting  off,  the  employes  of  defend- 
ant suddenly  started  the  elevator,  with  the  result  before  stated.  The 
answer,  after  controverting  generally  the  affirmative  matter  in  the  peti- 
tion, pleaded  contributory  negligence  on  the  part  of  the  decedent.    *    * 

The  elevator  is  situated  on  the  ground  floor  of  the  building.  The 
elevator  cage  is  constructed  of  iron  openwork,  through  which  any  per- 
son might  be  seen,  and  the  top  of  the  elevator  was  also  made  of  open- 
work, with  probably  a  solid  piece  in  the  center  of  the  top.  A  person 
in  the  elevator  could  plainly  see  through  the  openwork  a  person  riding 
on  the  top  of  it.  Immediately  by  the  side  of  the  elevator  is  a  stairway 
leading  to  the-  upper  stories  of  the  building,  and  when  the  elevator  is 
standing  at  the  ground  floor  a  person  on  top  of  the  elevator  can  crawl 
through  an  open  space  in  the  net  work  surrounding  the  elevator  shaft 
onto  the  stairway.  The  elevator  was  in  charge  of  a  boy,  but  the  rec- 
ord does  not  show  his  age.  In  the  elevator  with  the  operator  was  an- 
other boy,  Johnnie  Davis,  who  had  been  riding  on  top  of  the  elevator, 
was  in  the  act  of  crawling  out,  feet  foremost,  to  the  stairway,  when 
the  elevator,  which  at  this  moment  was  stationary  on  the  ground  floor, 
was  suddenly  started.    His  head  was  caught  by  the  elevator  in  its  up- 


Ch.  1)  NEGLIGENCE  991 

ward  movement,  and  almost  severed  from  his  body,  death  resulting  in- 
stantly. The  proof  showed  that  Johnnie  Davis  was  12  years  of  age; 
that  his  sister  was  working  in  a  telephone  office  in  the  building  in  which 
the  elevator  was  located;  and  that  he  had  gone  there  on  the  day  of 
his  death  for  the  purpose  of  taking  dinner  to  her,  she  being  employed 
in  one  of  the  top  stories  of  the  building  that  could  be  conveniently 
reached  by  taking  the  elevator.  The  proof  of  one  witness  was  that 
Johnnie  Davis  was  in  the  act  of  getting  off  of  the  elevator,  which  was 
standing  at  the  ground  floor,  through  the  opening  in  the  shaft,  when 
it  suddenly  started;  by  another  witness,  who  had  been  looking  at  the 
elevator  for  a  few  minutes,  that  there  were  two  boys  in  the  elevator, 
and  one  on  top  of  the  elevator;  that  it  went  up  to  about  the  fourth 
story,  and  came  down  and  stopped,  and  the  boy  on  top  of  the  elevator 
was  in  the  act  of  getting  out  when  the  elevator  boy  started  it  and  killed 
him.  This  witness  said  the  boys  in  the  elevator  were  laughing  and 
talking  to  the  boy  on  top  of  the  elevator,  that  he  heard  them  as  the  ele- 
vator went  up  and  when  it  came  down,  that  the  boy  on  top  did  not  try 
to  get  out  until  the  elevator  stopped.  Another  witness,  who  came  in 
the  building  just  as  the  accident  happened,  said  he  asked  what  was  the 
matter,  and  the  elevator  boy  said :  "I  have  killed  little  Johnnie  Davis, 
and  didn't  go  to  do  it.  We  were  just  playing  with  the  elevator,  and 
he  went  to  get  ofif  and  got  killed."  The  boy  who  was  in  the  elevator 
when  the  accident  happened  said  that  John  Gillum  was  the  operator  and 
that  Johnnie  Davis  was  on  top;  that  he  went  up  to  the  second  floor 
and  got  on ;  that  he  could  have  seen  him  if  he  had  been  looking,  and 
heard  him  talking  at  the  fifth  floor.  He  didn't  know  w^hether  the  boy 
operating  the  elevator  saw  him  when  he  started  the  elevator  or  not.  It 
will  thus  be  seen  that  there  was  evidence  conducing  to  establish  two 
propositions,  first,  that  the  operator  was  a  boy ;  second,  that  he  knew 
Johnnie  Davis  was  riding  on  top  of  the  elevator  just  before  he  was 
killed,  and  could  have  seen  him  in  the  act  of  getting  off  if  he  had  looked 
before  starting  it  on  its  upward  journey. 

Counsel  for  appellee  insist  that  the  little  boy  who  was  killed  was  a 
trespasser,  and  that  the  operator  owed  him  no  duty  except  to  prevent 
injury  to  him  after  his  peril  was  actually  discovered.  The  correctness 
of  this  principle,  as  applied  to  trespassers,  will  be  conceded.  It  has 
been  so  adjudged  in  a  nuinber  of  cases  by  this  court  (C.  &  O.  Ry.  Co. 
V.  Barbour's  Adm'r,  93  S.  W.  24,  29  Ky.  Law  Rep.  339;  Davis  v.  L. 
H.  &  St.  L.  Ry.  Co.,  97  S.  W.  1122,  30  Ky.  Law  Rep.  172),  and  we 
have  no  disposition  to  modify  it.  But,  under  the  evidence,  Johnnie 
Davis,  although  riding  in  a  dangerous  place  not  intended  or  set  apart 
for  passengers,  was  not  a  trespasser  when  he  was  killed,  or  while  rid- 
ing on  the  top  of  the  elevator.  He  was  there  with  the  knowledge,  and 
at  least  implied  permission  and  consent,  of  the  operator.  The  operator 
may  not  have  known  that  he  was  in  the  act  of  escaping  from  the  top 
of  the  elevator  at  the  very  time  it  was  started,  but  he  did  know  he  was 
there  a  few  moments  before,  and,  knowing  his  perilous  position,  it 


992  TORTS  THROUGH  ACTS  OF  CONDITIONAL   LIABILITY         (Part  3 

was  his  duty  under  the  circumstances  to  have  exercised  ordinary  care 
for  his  safety.  It  would  be  a  cruel  and  inhuman  doctrine  to  announce 
that  a  person  operating  a  dangerous  instrumentality  like  an  elevator 
might  have  actual  knowledge  of  the  fact  that  some  person  was  riding 
on  it  in  an  unsafe  place,  where  he  was  likely  to  be  injured  at  any  time, 
and  yet  not  be  responsible  for  his  injury  or  death,  on  the  theory  that 
at  the  very  moment  of  the  accident,  caused  by  his  sudden  starting  of 
the  machine,  he  did  not  actually  know  the  person  was  yet  in  his  peril- 
ous position,  although  he  could  have  known  it  merely  by  looking  in 
the  direction.  McVoy  v.  Oakes,  91  Wis.  214,  64  N.  W.  748.  Indeed 
we  might  with  propriety  say  that,  although  Davis  be  treated  as  a  tres- 
passer, and  the  rule  of  nonliability  be  applied  to  him  that  was  laid  down 
in  the  Barbour  and  Davis  Cases,  yet,  under  the  facts,  this  case  should 
have  gone  to  the  jury.  A  trespasser  is  not  an  outlaw,  nor  are  persons 
upon  whose  premises  he  intrudes  at  liberty  to  kill  or  cripple  him  at 
pleasure.  The  same  care  must  be  taken  to  avoid  injury  to  him  after 
his  peril  is  discovered  as  is  exercised  towards  other  persons.  The  peril 
of  Davis  was  discovered  when  the  operator  knew  he  was  riding  on 
top  of  the  elevator.  With  this  knowledge,  it  was  his  duty  to  have  ex- 
ercised ordinary  care  to  prevent  injury  to  him.  We  may  safely  add 
that,  when  an  employe  in  charge  of  a  dangerous  agency  permits  per- 
sons to  take  places  or  positions  in  or  about  it  that  are  hazardous,  and 
that  he  knows  or  should  know  may  result  in  their  injury  or  death,  if 
they  remain  where  they  are,  the  master  will  be  responsible  if  the  serv- 
ant fails  to  exercise  ordinary  care  to  prevent  injury  to  them. 

Our  attention  is  called  by  counsel  for  appellee  to  the  case  of  Dalton's 
Adm'r  v.  L.  &  N.  R.  Co.,  56  S.  W.  657,  22  Ky.  Law  Rep.  97.  Dalton, 
while  riding  on  a  freight  train  with  the  consent  of  the  persons  in 
charge  of  it,  was  killed  in  a  collision  between  the  train  he  was  riding 
on  and  another  train.  In  the  course  of  the  opinion,  denying  a  recov- 
ery, the  court  said :  "The  only  obligation  appellant  owed  to  him  was 
not  to  injure  him  after  knowledge  of  his  danger.  There  is  no  allega- 
tion that  anything  was  omitted  which  might  have  been  done  for  the  in- 
testate's safety  after  the  danger  was  discovered."  The  material  dis- 
tinction between  the  cases  is  that  in  the  Dalton  Case,  as  well  as  in  L. 
&  N.  R.  Co.  V.  Thornton,  58  S.  W.  796,  22  Ky.  Law  Rep.  778,  and  in 
Thornton  v.  L.  &  N.  R.  Co.,  70  S.  W.  53,  24  Ky.  Law  Rep.  854,  noth- 
ing was  omitted  which  might  have  been  done  in  the  exercise  of  ordi- 
nary care  to  prevent  the  injury  after  the  danger  was  discovered.  In 
the  case  at  bar  the  liability  of  appellee  company  grows  out  of  the  fail- 
ure of  its  servant  to  exercise  ordinary  care  to  prevent  injury  to  John- 
nie Davis  after  his  peril  was  discovered.  Whether  it  did  or  not  exer- 
cise this  degree  of  care  was  a  question  for  the  jury.     *     *     *  so 

Wherefore  the  case  is  reversed,  with  directions  for  a  new  trial  in 
conformity  with  this  opinion. 

0  0  Parts  of  the  opinion  are  omitted. 


Ch.  1)  NEGLIGENCE  993 

LYNCH  V.  NURDIN. 
(Court  of  Queen's  Bench,  1S41.     1  Q.  B.  29,  113  Reprint,  1041,  55  R.  R.  191.) 

Case.  The  declaration  stated  that  defendant,  on  &c.,  was  possessed 
of  a  cart,  and  of  a  horse  then  harnessed  to  the  same.  That  defendant 
carelessly  behaved  and  conducted  himself  in  and  about  the  manage- 
ment of  said  cart  and  horse,  and  carelessly,  negligently,  and  improper- 
ly left  the  said  cart  and  horse  in  a  certain  common  highway  without 
anybody  to  look  after  the  same ;  and  the  said  cart  and  horse  of  de- 
fendant, by  and  through  his  carelessness,  negligence,  and  improper  con- 
duct in  that  behalf,  then  ran  and  struck  with  great  force  and  violence 
against  plaintiff,  then  lawfully  being  in  the  said  highway,  and  with 
great  force  &c. :  various  injuries  were  then  stated,  by  means  of  which 
plaintiff  became  and  was  sick,  lame  &c.  Pleas,  Not  guilty,  and  that 
defendant  was  not  possessed  of  the  cart  and  the  horse.  Issues  thereon. 
Verdict  for  the  plaintiff.  A  rule  nisi  for  a  new  trial  was  obtained  and 
argued.^  ^ 

Lord  Denman,  C.  J.°^  This  case  was  tried  before  my  brother 
Williams  at  the  sittings  in  the  Easter  Term,  1839.  It  was  an  action  of 
tort  for  negligence  by  the  defendant's  servant,  in  leaving  his  cart  and 
horse  for  half  an  hour  in  the  open  street  at  the  door  of  a  house  where 
the  servant  remained  during  that  period.  The  evidence  for  the  plain- 
tiff proved  that,  at  the  end  of  the  first  half  hour,  he,  a  child  of  very  ten- 
der age,  being  between  six  and  seven  years  old,  was  heard  crying,  and, 
on  the  approach  of  the  witnesses,  was  found  on  the  ground  and  a  wheel 
of  the  defendant's  cart  going  over  his  leg,  which  was  thereby  frac- 
tured. The  defendant's  counsel  first  applied  for  a  nonsuit.  The 
learned  judge  refused  the  application;  and  no  question  was  made  be- 
fore us  that  these  facts  afforded  prima  facie  evidence  of  the  mischief 
having  been  occasioned  by  the  negligence  of  the  defendant's  servant 
in  leaving  the  horse  and  cart.  Witnesses  were  then  called  to  establish 
a  defence  by  a  fuller  explanation  of  the  facts  that  had  occurred.  They 
proved  that,  after  the  servant  had  been  about  a  quarter  of  an  hour  in 
the  house,  the  plaintiff,  and  several  other  children  came  up,  and  began 
to  play  with  the  horse,  and  climb  into  the  cart  and  out  of  it.  While 
the  plaintiff  was  getting  down  from  it,  another  boy  made  the  horse 
move,  in  consequence  of  which,  the  plaintiff  fell  and  his  leg  was  broken 
as  before  mentioned.  On  this  undisputed  evidence,  (for  there  was  no 
cross  examination  of  the  witnesses),  the  defendant's  counsel  claimed 
the  Judge's  direction  in  his  favor,  contending  that,  as  the  plaintiff'  had 
obviously  contributed  to  the  calamity,  it  could  not  be  said  in  point  of 
law  to  have  been  caused  by  the  negligence  of  the  defendant's  servant. 

ei  The  reporter's  statement  of  the  facts  and  the  arguments  of  counsel  are 
omitted. 

5  2  Part  of  the  opinion,  dealing  with  other  questions,  is  omitted. 
Hepb.Tobts— 63 


994  TORTS   THROUGH   ACTS   OF   CONDITIONAL  LIABILITY  (Part  3 

My  learned  brother,  however,  thought  himself  bound  to  lay  all  the 
facts  before  the  jury,  and  take  their  opinion  on  that  general  point. 
They  found  a  verdict  for  the  plaintiff.  It  is  now  complained  that  such 
direction  was  not  given;  and  at  all  events  the  jury  are  said  to  have 
given  a  verdict  contrary  to  the  evidence.  The  case  came  on  in  the  new 
trial  paper  last  Term,  and  has  been  fully  argued  before  us.     *     *     * 

A  distinction  may  here  be  taken  between  the  wilful  act  done  by  the 
defendant  in  those  cases,  in  deliberately  planting  a  dangerous  weapon 
in  his  ground  with  the  design  of  deterring  trespassers,  and  the  mere 
negligence  of  the  defendant's  servant  in  leaving  his  cart  in  the  open 
street.  But  between  wilful  mischief  and  gross  negligence  the  bound- 
ary line  is  hard  to  trace :  I  should  rather  say,  impossible.  The  law 
runs  them  into  each  other,  considering  such  a  degree  of  negligence  as 
some  proof  of  malice.  It  is  then  a  matter  strictly  within  the  province 
of  a  jury  deciding  on  circumstances  of  each  case.  They  would  natu- 
rally enquire  whether  the  horse  was  vicious  or  steady :  whether  the  oc- 
casion required  the  servant  to  be  so  long  absent  from  his  charge,  and 
whether  in  that  case  no  assistance  could  have  been  procured  to  watch 
the  horse:  whether  at  that  hour  the  street  was  likely  to  be  clear  or 
thronged  with  a  noisy  multitude  (it  appeared  in  the  present  case  that 
Compton  street  was  more  thronged  than  usual,  in  consequence  of  a 
neighbouring  street  being  stopped) :  especially  whether  large  parties  of 
young  children  might  be  reasonably  expected  to  resort  to  the  spot.  If 
this  last  mentioned  fact  were  probable,  it  would  be  hard  to  say  that  a 
case  of  gross  negligence  was  not  fully  established. 

But  the  question  remains,  can  the  plaintiff  then,  consistently  with  the 
authorities,  maintain  his  action,  having  been  at  least  equally  in  fault. 
The  answer  is  that,  supposing  that  fact  ascertained  by  the  jury,  but  to 
this  extent,  that  he  merely  indulged  the  natural  instinct  of  a  child  in 
amusing  himself  with  the  empty  cart  and  deserted  horse,  then  we  think 
that  the  defendant  cannot  be  permitted  to  avail  himself  of  that  fact. 
The  most  blamable  carelessness  of  his  servant  having  tempted  the 
child,  he  ought  not  to  reproach  the  child  with  yielding  to  that  tempta- 
tion. He  has  been  the  real  and  only  cause  of  the  mischief.  He  has 
been  deficient  in  ordinary  care :  the  child,  acting  without  prudence,  or 
thought,  has,  however,  shown  these  qualities  in  as  great  a  degree  as  he 
could  be  expected  to  possess  them.  His  misconduct  bears  no  propor- 
tion to  that  of  the  defendant  which  produced  it. 

For  these  reasons,  we  think  that  nothing  appears  in  the  case  which 
can  prevent  the  action  from  being  maintained.  It  was  properly  left  to 
the  jury,  with  whose  opinion  we  fully  concur. 

Rule  discharged. ^^ 

63  See  the  comment  on  this  case  by  Collins,  J.,  in  Pontine  v.  Noakes  (1894) 
2  Q.  B.  281,  290,  and  by  Pollock,  C.  B.,  in  Lygo  v.  Newbold  (1853)  9  Exch.  303, 
96  R.  R.  727. 


Ch.  1)  NEGLIGENCE  995 


STOUT  V.  SIOUX  CITY  &  P.  R.  CO. 

(Circuit  Court  of  the  United  States,  D.  Nebraska,  1872.     23  Fed.  Cas.  180, 

2  Dill.  294,  23  Fed.  Cas.  183.) 

SIOUX  CITY  &  P.  R.  CO.  V.  STOUT.  ^ 

(Supreme  Court  of  the  United  States,  1874.    17  Wall.  657,  21  L.  Ed.  74.5.) 

This  was  an  action  brought  in  the  name  of  an  infant,  by  his  father 
as  next  friend,  to  recover  $15,000  damages  from  the  railroad  company 
for  an  injury  to  the  foot  of  the  child,  received  while  playing  upon  the 
turntable  of  the  defendant.  The  action  was  begun  in  a  state  court  in 
Nebraska,  but  was  removed  by  the  railroad  company  into  the  United 
States  Circuit  Court. 

The  plaintiff's  petition  alleged  that  the  defendant,  at  the  time  when 

the  injuries  complained  of  were  received,  was  operating  a   railroad 

through  the  town  of  Blair,  in  Nebraska,  and  in  connection  with  this 

railroad  used  and  operated  a  turntable  which  was 

"so  constructed  and  arranged  as  to  be  easily  turned  around  and  revolved  in 
a  horizontal  direction :  that  across  the  upper  surface  thereof  there  were  fas- 
tened two  large  and  heavy  bars  of  iron  corresponding  with  the  iron  rails  of 
the  railroad  track  used  in  connection  with  said  turntable,  and  so  placed  and 
arranged  that  when  the  turntable  revolved,  the  ends  of  the  iron  bars  running 
across  the  face  of  the  same  passed  by  the  ends  of  the  rails  on  the  railroad 
track ;  that  said  turntable  was  situated  in  a  public  place,  and  in  immediate 
proximity  to  a  passenger  depot  of  the  defendant" ;  that  many  children  were 
in  the  habit  of  going  upon  said  turntable  to  play;  that  the  turntable  was  un- 
fastened and  in  no  way  protected  to  prevent  it  being  turned  around  at  the 
pleasure  of  small  children ;  that  the  defendant  had  notice  of  these  facts ; 
that  the  plaintiff  was  a  child  of  tender  years  without  judgment  or  discretion, 
and  that  in  consequence  of  the  carelessness  and  negligence  of  the  defendant 
in  not  locking  said  turntable,  it  was  revolved,  and  wliile  it  was  being  so  re- 
volved by  other  children,  "the  plaintiff  had  his  right  foot  caught  between  the 
ends  of  one  of  the  iron  bars  on  said  turntable  and  the  end  of  one  of  said 
rails  upon  the  railroad  track"  and  his  foot  was  crushed  and  the  plaintiff  per- 
manently injured. 

The  defendant's  answer  denied  all  the  averments  of  the  petition  and 
alleged  that  the  plaintiff  had  no  right  upon  the  turntable,  that  he  was  a 
trespasser,  and  that  neither  law,  nor  usage,  nor  reasonable  prudence 
required  the  defendant  to  keep  its  turntable  locked  or  guarded. 

A  jury  trial  upon  the  issue  thus  arising  resulted  in  a  disagreement. 

At  a  second  trial  the  following  charge  was  given  by  John  F.  Dillon, 

Circuit  Judge: 

This  is  both  a  novel  and  important  case.  The  injury  for  which  this  action 
is  brought  happened  in  the  tov^Ti  of  Blair,  in  this  state,  on  the  29th  day  of 
March,  1869.  The  plaintiff  was  then  a  boy  of  the  tender  age  of  six  years  and 
two  or  three  months.  The  undisputed  testimony  shows  that  the  town  of 
Blair  was,  at  that  time,  a  new  place,  had  been  recently  laid  off,  and  contained 
a  population  of  about  one  hundred  people.  On  the  plat  of  the  town  of  Blair 
is  a  tract  of  land  of  variable  width,  extending  almost  the  entire  length  of 
the  plat,  owned  and  used  by  the  defendants  for  their  road-bed  and  depot 
grounds,  and  which  divides  the  town  into  two  portions.  The  cross  streets  of 
the  town  run  up  to  this  railroad  ground  and  there  stop,  with  tlie  exception 
of  one  or  two  streets,  which  were  laid  out  across  it.     On  this  ground,  which 


996  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

was  not  enclosed,  was  situated  the  defendant's  depot  house,  and,  about  one- 
quarter  of  a  mile  distant  from  the  depot  house,  was  located  the  turntable,  on 
which  the  plaintiff  was  injured.  There  were  but  few  houses  in  the  immediate 
neighborhood  of  the  turntable,  and  the  plaintiff's  parents  lived  in  another 
portion  of  the  town,  and  about  three-fourths  of  a  mile  distant  from  the  turn- 
table. 

The  circumstances  under  wliich  the  accident  to  the  plaintiff  occurred  are 
not  in  the  main,  if  in  any  respect,  in  dispute.  The  plaintiff",  without,  as  it 
appears,  the  knowledge  of  his  parents,  started  with  one  or  two  other  boys  to 
go  to  the  defendant's  depot,  about  half  a  mile  away,  with  no  definite  purpose 
in  view.  "When  the  boys  had  arrived  at  the  depot,  it  was  proposed  by  some 
of  them  to  go  to  the  turntable  to  play ;  and  the  boys  proceeded  to  the  turn- 
table, about  a  quarter  of  a  mile  distant,  traveling  along  the  defendant's  i-oad- 
b6d  or  track.  When  the  boys  had  reached  the  turntable,  which  was  not  at- 
tended or  guarded  by  any  employs  of  the  company,  and  which  was  not  then 
fastened  or  locked,  and  which  revolved  easily  on  its  axis,  two  of  them  com- 
menced to  turn  it.  and  the  plaintiff,  in  attempting  to  get  upon  it  (being  at  the 
time  upon  the  railroad  track),  had  the  misfortune  to  get  his  foot  caught  be- 
tween the  end  of  the  rail  on  the  turntable,  as  it  was  revolving,  and  the  end 
of  the  iron  rail  on  the  main  track  of  the  defendant's  road,  and  his  foot  was 
badly  cut  and  crushed,  resulting  in  a  serious  and  permanent  injury. 

There  is  the  evidence  of  one  witness  (Quimby)  then  an  employe  of  the  com- 
pany, that  he  had  previously  seen  boys  playing  at  the  turntable,  and  had  for- 
bidden his  children  to  play  there.  But  this  witness  had  no  charge  of  the  turn- 
table, as  he  says,  and  did  not,  as  he  testified,  comnuniicate  the  fact  to  any  of 
the  officers  or  employes  of  the  company  having  charge  of  the  turntable.  It 
appears,  from  the  plaintiff's  testimony,  that  he  had  not  before  that  day  been 
engaged  in  playing  at  the  turntable.  The  turntable  was  constmcted  on  the 
defendant's  own  land,  and  the  testimony  tends  to  show  that  it  was  constructed 
in  the  usual  and  ordinary  manner. 

Now  the  ground  of  complaint  against  the  defendant,  as  set  out  in  the  peti- 
tion, is  that  the  turntable,  as  it  was  constructed,  was  of  a  dangerous  nature 
and  character,  when  unlocked  or  unguarded,  and  that  being,  as  it  is  alleged, 
in  a  place  much  resorted  to  by  the  public,  and  where  children  were  wont  to 
go  and  play,  it  was  the  duty  of  the  defendant  to  keep  the  same  securely  locked 
or  fastened,  so  as  to  prevent  it  from  being  turned  or  played  with  by  children, 
or  to  keep  the  same  guarded,  so  as  to  prevent  injuries  such  as  befell  the  plain- 
tiff. 

The  basis  of  this  action,  therefore,  is  that  the  defendant  owed  the  plaintiff 
a  duty  of  this  kind;  that,  in  failing  to  discharge  this  duty,  the  defendant  was 
guilty  of  negligence ;  that  this  neglect  caused  the  injui-y  to  the  plaintiff,  and 
that,  therefore,  the  defendant  is  liable  in  damages  therefor. 

Now,  if  this  action  had  been  brought,  under  the  circumstances  disclosed  in 
the  evidence,  by  an  adult,  who.  himself,  meddled  with  and  set  in  motion  the 
turntable  which  caused  the  injury,  we  should  have  no  hesitation  in  saying 
that  the  law  would  not  allow  it  to  be  maintained.  And  we  confess  that  we 
have  had  serious  doubts  whether,  under  the  circumstances,  the  action  was 
any  more  maintainable,  being  brought  by  an  infant  of  tender  years. 

On  retlection  it  is  our  judgment,  and  we  so  instruct  you,  that  this  action 
may  be  maintained,  if  certain  facts  be  established  by  the  evidence. 

Jn  the  first  place,  it  is  alleged  In  the  petition,  and  it  must  appear  by  the 
evidence,  that  this  turntable,  in  the  condition,  situation,  and  place  where  it 
tlien  was,  was  a  dangerous  machine,  one  which,  if  loft  unguarded  or  unlocked, 
would  be  likely  to  cause  injury  to  children.  You  have  heard  described  the 
manner  in  which  this  turntable  was  constructed  and  left,  and  very  much  evi- 
dence has  been  adduced  to  show  that  turntables  are  constructed  and  left  in 
this  manner  elsewhere;  and  the  evidence  is  quite  undisputed  that  it  is  not 
the  practice  of  railroads  to  guard  or  lock  them.  The  circumstance  that  other 
roads  throughout  the  counti-y  do  not  guard  or  fasten  turntables  (if  you  find 
such  to  be  the  fact),  is  not  conclusive  in  tlie  defendant's  favor  that  there  was 
or  could  be  no  negligence  on  its  part  as  respects  the  turntable  in  question, 
but,  while  not  conclusive,  it  is  still  a  very  important  fact  or  circumstance  to 
be  considered  by  the  jury  in  determining  the  question  of  tlie  defendant's  neg- 
ligence. 


Ch.  1)  NEGLIGENCE  997 

This  action  rests,  and  rests  alone,  upon  the  alleged  negligence  of  the  defend- 
ant, and  this  negligence  consists,  as  alleged,  in  not  keeping  the  turntable 
guarded  or  locked.  Negligence  is  the  omission  to  do  something  which  a  rea- 
sonable, prudent  nian,  guided  I>y  tliose  considerations  which  ordinarily  regu- 
late the  conduct  of  human  affairs,  would  do:  or  doing  something  which  a 
prudent  or  reasonable  man  would  not  do,  under  all  the  circumstances  sur- 
rounding the  particular  transaction  under  judicial  investigation. 

If  the  turntable,  in  the  manner  it  was  constructed  and  left,  was  not  dan- 
gerous in  its  nature,  then  of  course  the  defendants  would  not  he  guilty  of 
any  negligence  in  not  locking  or  guarding  it.  But  even  if  it  was  dangerous 
in  its  nature  in  some  situations,  you  are  further  to  consider  whether,  situated 
as  it  was  on  the  defendant's  property,  in  a  small  town,  and  distant  or  some- 
what remote  from  habitations,  the  defendants  are  guilty  of  negligence  in  not 
anticipating  or  foreseeing,  if  left  unlocked  or  unguarded,  that  injuries  to  the 
children  of  the  place  would  be  likely  to  or  would  probably  ensue. 

The  machine  in  question  is  part  of  the  defendant's  road,  and  was  lawfully 
constructed  where  it  was.  If  the  railroad  company  did  not  know,  and  had 
no  good  reason  to  suppose,  that  children  would  resort  to  the  turntable  to  play, 
or  did  not  know,  or  had  no  good  reason  to  suppose,  that  if  they  resorted  there, 
they  would  be  likely  to  get  injured  thereby,  then  you  cannot  find  a  verdict 
against  them. 

But  if  the  defendant  did  know,  or  had  good  reason  to  believe,  under  the  cir- 
cumstances of  the  case,  that  children  of  the  place  would  resort  to  the  turnta- 
ble to  play,  and  that  if  they  did  they  would  or  might  be  injured,  then,  if  they 
took  no  means  to  keep  the  children  away,  and  no  means  to  prevent  accidents, 
they  would  be  guilty  of  negligence,  and  would  be  answerable  for  damages 
caused  to  children  by  such  negligence.  Counsel  for  the  defendant  disclaim 
resting  their  defense  on  the  ground  that  the  plaintiff's  parents  were  negligent. 
or  that  the  plaintiff  (considering  his  tender  age)  was  negligent,  but  rest  tlieir 
defense  upon  the  ground  that  the  company  was  not  negligent,  and  claim  that 
the  injury  to  the  plaintiff  was  accidental,  or  brought  upon  himself.  The  de- 
fendants are  not  insurers  of  the  limbs  of  those,  whether  adults  or  children, 
who  may  resort  to  their  grounds ;  and  there  are  many  injuries  continually 
happening  which  involve  no  pecuniary'  liability  to  any  one. 

To  find  against  the  defendant  you  must  find  that  it  has  been  guilty  of  neg- 
lect, of  a  wrong,  of  a  want  of  due  and  proper  care  in  the  construction  of  ma- 
chinery of  a  dangerous  character,  and,  so  leaving  it  exposed  as  before  ex- 
plained, that,  as  reasonable  men,  the  officers  of  the  road  ought  to  have  fore- 
seen that  an  accident,  happening  as  this  happened,  would  probably  occur,  or 
be  likely  to  happen. 

The  second  trial  resulted  in  a  verdict  for  the  plaintiff  for  $7,500. 
The  court  signed  a  bill  of  exceptions,  a  writ  of  error  was  sued  out, 
and  the  case  was  carried  to  the  Supreme  Court  of  the  United  States. 
Here  the  opinion  was  delivered  by 

Mr.  Justice;  Hunt.  *  *  *  Was  there  negligence  on  the  part 
of  the  railway  company  in  the  management  or  condition  of  its  turn- 
table ? 

On  this  point  the  judge  charged  the  jury  that  to  maintain  the  action 
it  must  appear  by  the  evidence  that  the  turntable,  in  the  condition, 
situation  and  place  where  it  then  was,  was  a  dangerous  machine, 
one  which,  if  unguarded  or  unlocked,  would  be  likely  to  cause  injury 
to  children ;  that  if  in  its  construction  and  the  manner  in  which  it 
was  left  it  was  not  dangerous  in  its  nature,  the  defendant  was  not 
liable  for  negligence ;  that  it  was  further  to  consider  whether,  sit- 
uated as  was  the  defendant's  property,  in  a  small  town,  somewhat 
remote  from  habitations,  there  was  negligence  in  not  anticipating  that 
injury   might  occur   if   it  was   left   unlocked  or  unguarded;    that  if 


998  TORTS  THROUGH   ACTS   OF   CONDITIONAL  LIABILITY         (Part  3 

it  did  not  have  reason  to  anticipate  that  children  would  be  likely  to 
resort  to  it  or  that  they  would  be  likely  to  be  injured  if  they  did  resort 
to  it,  then  there  was  no  negligence. 

The  charge  was  an  impartial  and  intelligent  one.  Unless  the  defend- 
ant was  entitled  to  an  order  that  the  plaintiff  be  nonsuited,  or,  as  it 
is  expressed  in  the  practice  of  the  United  States  courts,  to  an  order 
directing  a  verdict  in  its  favor,  the  submission  was  right.  If,  upon 
any  construction  which  the  jury  was  authorized  to  put  upon  the 
evidence,  or  by  any  inferences  they  were  authorized  to  draw  from 
it,  the  conclusion  of  negligence  can  be  justified,  the  defendant  was 
not  entitled  to  this  order,  and  the  judgment  cannot  be  disturbed.  To 
express  it  affirmatively,  if  from  the  evidence  given  it  might  justly 
be  inferred  by  the  jury  that  the  defendant,  in  the  construction,  loca- 
tion, management  or  condition  of  its  machine  had  omitted  that  care 
and  attention  to  prevent  the  occurrence  of  accidents  which  prudent 
and  careful  men  ordinarily  bestow,  the  jury  was  at  liberty  to  find 
for  the  plaintiff. 

That  the  turntable  was  a  dangerous  machine,  which  would  be 
likely  to  cause  injury  to  the  children  who  resorted  to  it,  might  fairly 
be  inferred  from  the  injury  which  actually  occurred  to  the  plaintiff. 
There  was  the  same  liability  to  injury  to  him,  and  no  greater,  that 
existed  with  reference  to  all  children.  When  the  jury  learned  from 
the  evidence  that  he  had  suffered  a  serious  injury,  by  his  foot  being 
caught  between  the  fixed  rail  of  the  road-bed  and  the  turning  rail 
of  the  table,  they  were  justified  in  believing  that  there  was  a  proba- 
bility of  the  occurrence  of  such  accidents. 

So,  in  looking  at  the  remoteness  of  the  machine  from  inhabited 
dwellings,  when  it  was  proved  to  the  jury  that  several  boys  from  the 
hamlet  were  at  play  there  on  this  occasion,  and  that  they  had  been 
at  play  upon  the  turntable  on  other  occasions,  and  within  the  ob- 
servation and  to  the  knowledge  of  the  employes  of  the  defendant,  the 
jury  were  justified  in  believing  that  children  would  probably  resort 
to  it,  and  that  the  defendant  should  have  anticipated  that  such  would 
be  the  case. 

As  it  was  in  fact,  on  this  occasion,  so  it  was  to  be  expected  that 
the  amusement  of  the  boys  would  have  been  found  in  turning  this 
table  while  they  were  on  it  or  about  it.  This  could  certainly  have 
been  prevented  by  locking  the  turntable  when  not  in  use  by  the  com- 
pany. It  was  not  shown  that  this  would  cause  any  considerable  ex- 
pense or  inconvenience  to  the  defendant.  It  could  probably  have 
been  prevented  by  the  repair  of  the  broken  latch.  This  was  a  heavy 
catch  which,  by  dropping  into  a  socket,  prevented  the  revolution  of 
the  table.  There  had  been  one  on  this  talkie  weighing  some  eight 
or  ten  pounds,  but  it  had  been  broken  off  and  had  not  been  replaced. 
It  was  proved  to  have  been  usual  with  railroad  companies  to  have 
upon  their  turntables  a  latch  or  bolt,  or  some  similar  instrument.  The 
jury  may  well  have  beheved  that  if  the  defendant  had  incurred  the 


Ch.  1)  NEGLIGEXCE  999 

trifling  expense  of  replacing  this  latch,  and  had  taken  the  sHght 
trouble  of  putting  it  in  its  place,  these  very  small  boys  would  not  have 
taken  the  pains  to  lift  it  out,  and  thus  the  whole  difficulty  have  been 
avoided.  Thus  reasoning,  the  jury  would  have  reached  the  conclusion 
that  the  defendant  had  omitted  the  care  and  attention  it  ought  to 
have  given,  that  it  was  negligent,  and  that  its  negligence  caused  the 
injury  to  the  plaintiff.  The  evidence  is  not  strong  and  the  negli- 
gence is  slight,  but  we  are  not  able  to  say  that  there  is  not  evidence 
sufficient  to  justify  the  verdict.  We  are  not  called  upon  to  weigh, 
to  measure,  to  balance  the  evidence,  or  to  ascertain  how  we  should 
have  decided  if  acting  as  jurors.  The  charge  was  in  all  respects 
sound  and  judicious,  and  there  being  sufficient  evidence  to  justify 
the  finding  we  are  not  authorized  to  disturb  jt.     *     *     *  ^* 


Upon  the  whole  case,  the  judgment  must  be  affirmed.  ^ 


^^ 


lE 


FROST  V.  EASTERN  R.  R. 


/ 


(Supreme  Court  of  New  Hampshire,  1886.     64  N.  H.  220,  9  Atl.  790,  10  Am. 

St.  Eep.  396.) 

Case,  for  personal  injuries  from  the  alleged  negligence  of  the  de- 
fendants in  not  properly  guarding  and  securing  a  turn-table.  The 
plaintiff,  Avho  sues  by  his  father  and  next  friend,  was  seven  years 
old  when  the  accident  occurred.  Plea,  the  general  issue.  A  motion 
for  a  nonsuit  was  denied,  and  the  defendants  excepted.  Verdict 
for  the  plaintiff. ^^ 

Clark  j.  *  *  *  'Tiie  ground  of  the  action  is,  that  the  defend- 
ants were  guilty  of  negligence  in  maintaining  a  turn-table  insecurely 

5  4  Parts  of  the  opinion  of  Justice  Hunt  are  omitted. 

"Ownership  of  property  may  carry  with  it  the  right  of  the  owner  to  use,  and 
to  exclude  others  from  the  use  of,  the  property;  but,  however  exclusive  may  be 
the  owner's  rights,  he  is  subject  always  to  the  maxim,  'Sic  utere  tuo  ut  alien- 
um  non  Isedas.'  Common  prudence  forbids  that  one  may  arrange,  even  on 
his  own  premises,  that  which  he  knows,  or  in  the  exercise  of  common  judg- 
ment and  prudence  ought  to  know,  will  naturally  attract  others  into  unsus- 
l>ected  danger  of  great  bodily  harm.  It  is  the  apparent  probability  of  danger, 
rather  than  rights  of  property,  that  determines  the  duty  and  measure  of 
care  required  of  the  author  of  such  a  contrivance ;  for  ordinarily  the  duty 
of  avoiding  known  danger  to  others  may,  under  some  circumstances,  operate 
to  require  care  tor  persons  who  may  be  at  the  place  of  danger  without  right. 

"The  averments  o^  this  complaint  bring  the  case  within  the  influence  of  Rail- 
road Co.  V.  Stout  (1873)  17  'Wall.  657,  21  L.  Ed.  745.  which  is  a  leading  au- 
thority in  affirmation  of  the  possible  liabilitj'  of  railroad  companies  for  neg- 
ligence in  cases  of  injury  to  infants  trespassing  on  turntables.  As  appears 
from  cases  cited  in  briefs  of  counsel,  there  has  been  a  parting  of  the  ways 
of  judicial  opinion  concerning  the  soundness  of  the  decision  in  Stout's  Case. 
Some  courts  have  repudiated,  though  numerous  others  have  followed,  it. 
We  adopt  as  sound  the  doctrine  there  announced  concerning  both  the  duty  of 
railroad  companies  towards  infants,  and  the  mode  in  which  the  (luestion  of 
negligence  should  be  tried."  Per  Sharpe,  J.,  in  Alabama  G.  S.  R.  Co.  v. 
Crocker  (1901)  131  Ala.  584,  31  South.  561,  563. 

5  3  Only  so  much  of  the  case  is  given  as  relates  to  the  one  iwint. 


1000  TORTS  THROUGH  ACTS   OF   CONDITIONAL  LIABILITY         (Part  B 

guarded,  which,  being  wrongfully  set  in  motion  by  older  boys,  caused 
an  injury  to  the  plaintiff,  who  was  at  that  time  seven  years  old,  and 
was  attracted  to  the  turn-table  by  the  noise  of  the  older  and  larger 
boys  turning  and  playing  upon  it.  The  turn-table  was  situated  on  the 
defendants'  land,  about  sixty  feet  from  the  public  street,  in  a  cut 
with  high,  steep  embankments  on  each  side ;  and  the  land  on  each 
side  was  private  property  and  fenced.  It  was  fastened  by  a  toggle, 
which  prevented  its  being  set  in  motion  unless  the  toggle  was  drawn 
by  a  lever,  to  which  was  attached  a  switch  padlock,  which  being  locked 
prevented  the  lever  from  being  used  unless  the  staple  was  drawn. 
At  the  time  of  the  accident  the  turn-table  was  fastened  by  the  toggle, 
but  it  was  a  controverted  point  whether  the  padlock  was  then  locked. 
When  secured  by  the  toggle  and  not  locked  with  the  padlock,  the 
turn-table  could  not  be  set  in  motion  by  boys  of  the  age  and  strength 
of  the  plaintiff. 

Upon  these  facts  we  think  the  action  cannot  be  maintained.  The 
alleged  negligence  complained  of  relates  to  the  construction  and  con- 
dition of  the  turn-table,  and  it  is  not  claimed  that  the  defendants 
were  guilty  of  any  active  misconduct  towards  the  plaintiff.  The  right 
of  a  landowner  in  the  use  of  his  own  land  is  not  limited  or  qualified  like 
the  enjoyment  of  a  right  or  privilege  in  which  others  have  an  interest, 
as  the  use  of  a  street  for  highway  purposes  under  the  general  law,  or 
for  other  purposes  under  special  license  (Aloynihan  v.  Whidden,  143 
Mass.  287,  9  N.  E.  645),  where  care  must  be  taken  not  to  infringe 
upon  the  lawful  rights  of  others.  At  the  time  of  his  injury  the  plain- 
tiff was  using  the  defendants'  premises  as  a  playground  without  right. 
The  turn-table  was  required  in  operating  the  defendants'  railroad. 
It  was  located  on  its  own  land  so  far  removed  from  the  highway  as 
not  to  interfere  with  the  convenience  and  safety  of  the  public  travel, 
and  it  was  not  a  trap  set  for  the  purpose  of  injuring  trespassers.  Aid- 
rich  V.  Wright,  53  N.  H.  404,  16  Am.  Rep.  339.  Under  these  circum- 
stances, the  defendants  owed  no  duty  to  the  plaintiff;  and  there  can 
be  no  negligence  or  breach  of  duty  where  there  is  no  act  or  service 
which  the  party  is  bound  to  perform  or  fulfil.  A  landowner  is  not 
required  to  take  active  measures  to  insure  the  safety  of  intruders, 
nor  is  he  liable  for  an  injury  resulting  from  the  lawful  use  of  his 
premises  to  one  entering  upon  them  without  right.  A  trespasser  or- 
dinarily assumes  all  risk  of  danger  from  the  condition  of  the  prem- 
ises; and  to  recover  for  an  injury  happening  to  him  he  must  show 
that  it  was  wantonly  inflicted,  or  that  the  owner  or  occupant,  being 
present  and  acting,  might  have  prevented  the  injury  by  the  exercise 
of  reasonable  care  after  discovering  the  danger.  Clark  v.  Man- 
chester, 62  N.  H.  577;  State  v.  Railroad,  52  N.  H.  528;  Sweeny  v. 
Railroad,  10  Allen,  368,  87  Am.  Dec.  644;  Morrisscy  v.  Railroad,  126 
Mass.  377,  30  Am.  Rep.  686;  Severy  v.  Nickerson,  120  Mass.  306, 
21  Am.  Rep.  514;  Morgan  v.  Hallowell,  57  Me.  375;  Pierce  v. 
Whitcomb,  48  Vt.  127,  21  Am.  Rep.  120;    McAlpin  v.  Powell,  70  N. 


Ch.  1)  NEGLIGENCE  1001 

Y.  126,  26  Am.  Rep.  555 ;  St.  L.,  V.  &  T.  H.  R.  R.  Co.  v.  Bell,  81 
III.  76,  25  Am.  Rep.  269;  Gavin  v.  Chicago,  97  111.  66,  37  Am.  Rep. 
99;  \\'ood  V.  School  District,  44  Iowa,  27;  Gramlich  v.  Wurst,  86 
Pa.  74,  27  Am.  Rep.  684 ;  Cauley  v.  P.  C.  &  St.  Louis  Railway  Co., 
95  Pa.  398,  40  Am.  Rep.  664;  Gillespie  v.  AIcGowan,  100  Pa.  144, 
45  Am.  Rep.  365 ;  Mangan  v.  Atterton,  L.  R.  1  Ex.  239.  The  maxim 
that  a  man  must  use  his  property  so  as  not  to  incommode  his  neigh- 
bor, only  applies  to  neighbors  who  do  not  interfere  with  it  or  enter 
upon  it.  Knight  v.  Abert,  6  Pa.  472,  47  Am.  Dec.  478.  To  hold  the 
owner  liable  for  consequential  damages  happening  to  trespassers  from 
the  lawful  and  beneficial  use  of  his  own  land  would  be  an  unreasonable 
restriction  of  his  enjoyment  of  it. 

We  are  not  prepared  to  adopt  the  doctrine  of  Railroad  Co.  v.  Stout, 
17  Wall.  657,  21  L.  Ed.  745,  and  cases  following  it,  that  the  owner 
of  machinery  or  other  property  attractive  to  children  is  liable  for 
injuries  happening  to  children  wrongfully  interfering  with  it  on  his 
own  premises.^®     The  owner  is  not  an  insurer  of  the  safety  of  infant 

66  On  the  diversity  of  doctrine  here  see  29  Cyc.  447,  448,  and  the  cases 
there  cited. 

The  "turntable"  doctrine  was  elaborately  considered  in  Ryan  v.  Towar 
(1901)  128  Mich.  463,  87  X.  W.  644.  .55  L.  R.  A.  310,  92  Am.  St.  Rep.  481.  The  . 
court,  by  a  majority  of  one,  ruled  against  the  new  doctrine.  Said  Hooker,  ^ 
J.,  speaking  for  the  majority:  "Mere  toleration  of  a  trespass  does  not  alone 
constitute  a  license  even,  certainly  not  an  invitation.  1  Thomp.  Xeg.  (2d  Ed.) 
§  10-50,  and  note.  The  pedestrians  who  insist  upon  risking  their  lives  by 
making  a  footpath  of  a  railroad  track,  and  others  who  habitually  shorten 
distances  by  making  footi>aths  across  the  corners  of  village  lots,  are  none  the 
less  trespassers  because  the  owners  do  not  choose  to  resent  such  intrusion, 
and  be  to  the  expense  and  trouble  of  taking  effective  measures  to  prevent 
it.  There  is  no  more  lawless  class  than  children,  and  none  more  annoyingly 
resent  an  attempt  to  prevent  their  trespasses.  The  average  citizen  has  learn- 
ed that  the  surest  way  to  be  overrun  by  children  is  to  give  them  to  under- 
stiind  that  their  presence  is  distasteful.  The  consequence  is  that  they  roam  at 
will  over  private  premises,  and,  as  a  rule,  this  is  tolerated  so  long  as  no  dam- 
age is  done.  The  remedy  which  the  law  affords  for  the  trifling  trespasses  of 
children  is  inadequate.  Xo  one  ever  thinks  of  suing  them,  and  to  attempt 
to  remove  a  crowd  of  boys  from  private  premises  by  gently  lajing  on  of  hands, 
and  using  no  more  force  than  necessary  to  put  them  off,  would  be  a  roaring 
farce,  with  all  honors  to  the  juveniles.  For  a  coi-poration  with  an  empty 
treasury,  and  overwhelmed  with  debt,  to  be  required  to  be  to  the  expense  of 
preventing  children  from  going  across  its  lots  to  school,  lest  it  be  said  that 
it  invited  and  licensed  them  to  do  so,  is  to  our  minds  an  unreasonable  proix)si- 
tion.  As  to  this  question  of  license  or  invitation,  there  is  no  difference  be- 
tween children  and  adults.  *  *  *  May  a  man  keep  a  ladder,  or  a 
grindstone,  or  a  scythe,  or  a  plow,  or  a  reaper,  without  danger  of  being  called 
upon  to  reward  trespassing  children,  whose  parents  owe  and  may  be  pre- 
sumed to  perform  the  duty  of  restraint?  Does  the  new  rule  go  still  further, 
and  make  it  necessary  for  a  man  to  fence  his  gravel  pit  or  quarry?  And,  if 
so,  will  an  ordinary  fence  do,  in  view  of  the  known  propensity  and  ability  of 
boys  to  climb  fences?  Can  a  man  nowadays  safely  own  a  small  lake  or  tish- 
pond?  and  must  he  guard  ravines  and  precipices  upon  his  land?  Such  is  the 
evolution  of  the  law,  less  than  20  years  after  the  decision  of  Railroad  Co.  v. 
Stout  (1873)  17  Wall.  057,  21  L.  Ed.  745,  when,  with  due  deferenc-e,  we  think 
some  of  the  courts  left  the  solid  ground  of  the  rule  that  trespassers  cannot 
recover  for  injuries  received,  and  due  merely  to  negligence  of  the  persons 
trespassed  upon.     *     *     * " 


1002  TORTS  THROUGH  ACTS   OF  CONDITIONAL   LIABILITY         (Part  3 

trespassers.  One  having  in  his  possession  agricultural  or  mechanical 
tools  is  not  responsible  for  injuries  caused  to  trespassers  by  careless 
handling,  nor  is  the  owner  of  a  fruit  tree  bound  to  cut  it  down  or 
enclose  it,  or  to  exercise  care  in  securing  the  staple  and  lock  with 
which  his  ladder  is  fastened,  for  the  protection  of  trespassing  boys 
who  may  be  attracted  by  the  fruit.  Neither  is  the  owner  or  occupant 
of  premises  upon  which  there  is  a  natural  or  artificial  pond,  or  a  blue- 
berry pasture,  legally  required  to  exercise  care  in  securing  his  gates 
and  bars  to  guard  against  accidents  to  straying  and  trespassing  chil- 
dren. The  owner  is  under  no  duty  to  a  mere  trespasser  to  keep 
his  premises  safe ;  and  the  fact  that  the  trespasser  is  an  infant  cannot 
have  the  effect  to  raise  a  duty  where  none  otherwise  exists.  "The  sup- 
posed duty  has  regard  to  the  public  at  large,  and  cannot  well  exist 
as  to  one  portion  of  the  public  and  not  to  another,  under  the  same 
circumstances.  In  this  respect  children,  women,  and  men  are  upon 
the  same  footing.  In  cases  where  certain  duties  exist,  infants  may 
require  greater  care  than  adults,  or  a  different  care ;  but  precautionary 
measures  having  for  their  object  the  protection  of  the  public  must  as  a 
rule  have  reference  to  all  classes  alike."  Nolan  v.  N.  Y.  &  N.  H.  &  H. 
Railroad  Co.,  53  Conn.  461,  4  Atl.  106. 

There  being  no  evidence  to  charge  the  defendants  with  negligence, 
the  motion  for  a  nonsuit  should  have  been  granted. 


COOKE  V.  MIDLAND  GREAT  WESTERN  RY.  OF  IRELAND. 
^  (House  of  Lords.    [1909]  A.  C.  229.) 

A  railway  company  kept  a  turntable  unlocked  on  their  land  close  to 
a  public  road.  The  company's  servants  knew  that  children  were  in 
the  habit  of  trespassing  and  playing  with  the  turntable,  to  which  they 
obtained  easy  access  through  a  well-worn  gap  in  a  fence  which  the 
railway  company  were  bound  by  statute  to  maintain.  A  four  year 
old  boy  playing  with  other  children  on  the  turntable  was  seriously 
hurt  under  circumstances  disclosed  in  the  opinions  which  follow. 
The  child  by  his  father  brought  an  action  against  the  railway  company 
for  the  injury  thus  sustained. 

At  the  trial  before  Lord  O'Brien,  C.  J.,  the  jury  found  a  verdict 
for  the  plaintiff  for  £550,  and  judgment  was  entered  accordingly.  The 
jury  found  that  the  fence  was  in  a  defective  condition  through  the 
negligence  of  the  defendants ;  that  the  plaintiff  was  allured  through 
the  hedge  and  up  to  the  turntable  by  the  negligence  of  the  defendants ; 
and  that  it  was  by  reason  of  the  defendants'  negligence  that  the  mis- 
fortune occurred.  This  judgment  was  affirmed  by  the  King's  Bench 
Division  in  Ireland  (Palles,  C.  B.,  and  Johnson,  J. ;  Kenny,  J.,  dissent- 
mg),  but  was  set  aside  by  the  Court  of  Appeal   in   Ireland   (Sir  S. 


Ch.  1)  NEGLIGENCE  1003 

Walker,  L.  C,  and  Fitz  Gibbon  and  Holmes,  L.  JJ.).  Hence  this 
appeal  by  the  plaintiff.^^ 

Lord  Macnaghte:n.  My  Lords,  the  only  question  before  your 
Lordships  is  this :  Was  there  evidence  of  negligence  on  the  part  of 
the  company  fit  to  be  submitted  to  the  jury?  If  there  was,  the  ver- 
dict must  stand,  although  your  Lordships  might  have  come  to  a  dif- 
ferent conclusion  on  the  same  materials. 

I  cannot  help  thinking  that  the  issue  has  been  somewhat  obscured 
by  the  extravagant  importance  attached  to  the  gap  in  the  hedge,  both 
in  the  arguments  of  counsel  and  in  the  judgments  of  some  of  the 
learned  judges  who  have  had  the  case  under  consideration.  That  there 
was  a  gap  there,  that  it  was  a  good  broad  gap  some  three  feet  wide, 
is,  I  think,  proved  beyond  question.  But  of  all  the  circumstances  at- 
tending the  case  it  seems  to  me  that  this  gap  taken  by  itself  is  the  least 
important.  I  have  some  difficulty  in  believing  that  a  gap  in  a  road- 
side fence  is  a  strange  and  unusual  spectacle  in  any  part  of  Ireland. 
But  however  that  may  be,  I  quite  agree  that  the  insufficiency  of  the 
fence,  though  the  company  was  bound  by  Act  of  Parliament  to  main- 
tain it,  cannot  be  regarded  as  the  effective  cause  of  the  accident. 

The  question  for  the  consideration  of  the  jury  may,  I  think,  be 
stated  thus :  Would  not  a  private  individual  of  common  sense  and 
ordinary  intelligence,  placed  in  the  position  in  which  the  company  were 
placed,  and  possessing  the  knowledge  which  must  be  attributed  to 
them,  have  seen  that  there  was  a  likelihood  of  some  injury  happening 
to  children  resorting  to  the  place  and  playing  with  the  turntable,  and 
would  he  not  have  thought  it  his  plain  duty  either  to  put  a  stop  to 
the  practice  altogether,  or  at  least  to  take  ordinary  precautions  to  pre- 
vent such  an  accident  as  that  which  occurred  ? 

This  I  think  was  substantially  the  question  which  the  Lord  Chief 
Justice  presented  to  the  jury.  It  seems  to  me  to  be  in  accordance  with 
the  view  of  the  Court  of  Queen's  Bench  in  Lynch  v.  Nurdin,  1  Q.  B. 
29,  and  the  opinion  expressed  by  Romer  and  Stirling,  L.  JJ.,  in  Mc- 
Dowall  V.  Great  Western  Ry.  Co.,  [1903]  2  K.  B.  331. 

The  Lord  Chancellor  of  Ireland  puts  Lynch  v.  Nurdin  aside.  He 
holds  that  it  bears  no  analogy  to  the  present  case,  because  the  thing 
that  did  the  mischief  there  was  a  "cart  in  the  public  street — a  nui- 
sance." But  no  question  of  nuisance  was  considered  in  Lynch  v. 
Nurdin.  That  point  was  not  suggested.  The  ground  of  the  deci- 
sion is  a  very  simple  proposition.  "If,"  says  Lord  Denman,  "I  am 
guilty  6f  negligence  in  leaving  anything  dangerous  in  a  place  where 
I  know  it  to  be  extremely  probable  that  some  other  person  will  un- 
justifiably set  it  in  motion  to  the  injury  of  a  third,  and  if  that  injury 
should  be  so  brought  about,  I  presume  that  the  sufferer  might  have 
redress  by  action  against  both  or  cither  of  the  two,  but  unquestionably 

B7  The  statement  of  the  facts  is  abridged  and  the  arguments  of  counsel 
and  parts  of  the  opinions  of  Lord  Macuaghten  and  Lord  Loreburu,  L.  C,  are 
omitted. 


lOOi  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

against  the  first."  If  that  proposition  be  sound,  surely  the  character 
of  the  place,  though,  of  course,  an  element  proper  to  be  considered,  is 
not  a  matter  of  vital  importance.  It  cannot  make  very  much  differ- 
ence whether  the  place  is  dedicated  to  the  use  of  the  public  or  left 
open  by  a  careless  owner  to  the  invasion  of  children  who  make  it 
their  playground. 

I  think  the  jury  were  entitled  and  bound  to  take  into  consideration 
all  the  circumstances  of  the  case, — the  mode  in  which  the  turntable 
was  constructed ;  its  close  proximity  to  the  wall  by  which  the  plaintiff's 
leg  was  crushed;  the  way  in  which  it  was  left,  unfenced,  unlocked, 
and  unfastened;  the  history  of  this  bit  of  ground  and  its  position, 
shut  off  as  it  was  by  an  embankment  from  the  view  of  the  company's 
servants  at  the  station,  and  lying  half  derelict.  Aher  the  construction 
of  the  embankment  it  served  no  purpose  in  connection  wath  the  com- 
pany's undertaking,  except  that  at  one  time  a  corner  of  it  was  used 
as  a  receptacle  for  some  timber  belonging  to  the  company,  and  after- 
wards as  a  site  for  this  turntable.  In  other  respects,  and  apart  from 
these  uses,  it  seems  to  have  been  devoted  or  abandoned  to  the  suste- 
nance of  the  railway  inspector's  goat  and  the  diversion  of  the  youth 
of  Navan.  It  is  proved  that  in  spite  of  a  notice  board  idly  forbidding 
trespass  it  was  a  place  of  habitual  resort  for  children,  and  that  children 
were  frequently  playing  with  the  timber,  and  afterwards  with  the 
turntable.  At  the  date  of  the  trial,  twelve  months  after  the  acci- 
dent, a  beaten  path  leading  from  the  gap  bore  witness  both  to  the 
numbers  that  flocked  to  the  spot  and  to  the  special  attraction  that 
drew  children  to  it.  It  is  remarkable  that  not  a  single  word  of  cross 
examination  as  to  either  of  these  points  was  addressed  to  the  prin- 
cipal witnesses  for  the  plaintiff,  Tully,  the  herd,  and  Gertrude  Cooke, 
the  plaintiff's  sister;  nor  was  any  explanation  or  evidence  offered  on 
the  part  of  the  company.  Now  the  company  knew,  or  must  be  deemed 
to  have  known,  all  the  circumstances  of  the  case  and  what  was  going 
on.  Yet  no  precaution  was  taken  to  prevent  an  accident  of  a  sort  that 
might  well  have  been  foreseen  and  very  easily  prevented.  They  did 
not  close  up  the  gap  until  after  the  accident.  Then  it  was  the  first 
thing  thought  of.  But  it  was  too  late.  They  did  not  summon  any  of 
the  children  who  played  there,  or  bring  them  before  the  magistrates, 
as  a  warning  to  trespassers  and  a  proof  that  they  were  really  in 
earnest  in  desiring  to  stop  an  objectional  practice  which  had  gone 
on  so  long  and  so  openly.  They  did  not  have  their  turntable  locked 
automatically  in  the  way  in  which  Mr.  Barnes,  C.  E.,  whose  evidence 
is  uncontradicted,  says  it  is  usual  to  lock  such  machines.  -The  table, 
it  seems,  was  not  even  fastened.  There  was  a  bolt;  but  if  Cooke, 
the  father  of  the  plaintiff  is  to  be  believed,  the  bolt  was  rusty  and  un- 
workable.    *     *     * 

It  seems  to  me  that  the  Chief  Justice  would  have  been  wrong  if  he 
had  withdrawn  the  case  from  the  jury.  I  think  the  jury  were  entitled, 
in  view  of  all  the  circumstances,  on  the  evidence  before  them,  uncon- 


Ch.  1)  NEGLIGENCE  1005 

tradicted  as  it  was,  to  find  that  the  company  were  guilty  of  negligence. 
I  am  therefore  of  the  opinion  that  the  finding  of  the  jury  should  be 
upheld,  and  judgment  under  appeal  reversed,  with  pauper  costs  here, 
and  costs  below ;  and  I  move  your  Lordships  accordingly. 

I  will  only  add  that  I  do  not  think  that  this  verdict  will  be  followed 
by  the  disastrous  consequences  to  railway  companies  and  landowners 
which  the  Lord  Chancellor  of  Ireland  seems  to  apprehend.  Persons 
may  not  think  it  worth  their  while  to  take  ordinary  care  of  their  own 
property,  and  may  not  be  compellable  to  do  so ;  but  it  does  not  seem 
unreasonable  to  hold  that,  if  they  allow  their  property  to  be  open  to 
all  comers,  infants  as  well  as  children  of  maturer  age,  and  place  upon 
it  a  machine,  attractive  to  children  and  dangerous  as  a  plaything,  they 
may  be  responsible  in  damages  to  those  who  resort  to  it  with  their 
tacit  permission,  and  who  are  unable,  in  consequence  of  their  tender 
age,  to  take  care  of  themselves. 

Lord  Collins.  My  Lords,  this  case  has  given  rise  to  much  differ- 
ence of  view,  the  Lord  Chief  Justice,  who  tried  the  case,  the  Lord 
Chief  Baron,  and  Johnson,  J'.,  being  in  favour  of  the  plaintiff,  and 
three  judges  of  the  Court  of  Appeal  and  Kenny,  J.,  in  the  Divisional 
Court,  in  favour  of  the  defendants.  I  am  of  opinion  that  there  was 
evidence  of  actionable  negligence  fit  for  the  consideration  of  a  jury.  I 
think  there  was  evidence  that  the  turntable,  fastened  as  it  was  only 
by  a  bolt  so  easily  withdrawn,  was  a  dangerous  thing  for  young  chil- 
dren to  play  with,  and  that  the  defendants,  as  reasonable  men,  ought 
to  have  known  it;  and  that,  situate  as  it  was  in  such  a  conspicuous 
place,  and  frequented  so  largely  by  young  people  without  remonstrance 
by  the  defendants,  with  easy  access  from  the  Bridge  Road  through  a 
gap  in  the  hedge  and  along  a  well-trodden  path  down  the  embank- 
ment, it  could  hardly  fail  to  present  an  irresistible  attraction  to  young 
persons.  I  think  all  these  facts  in  combination  were  evidence  from 
which  the  jury  might  well  infer  not  merely  a  license,  but  an  invita- 
tion, which  fixed  the  defendants  with  a  high  responsibility  towards 
those  people  to  whom  such  an  invitation  would  mainly  appeal,  namely, 
those  who  from  their  tender  age  would  be  deemed  incapable  of  caution 
and  therefore  of  contributory  negligence.  I  have  not  forgotten  the 
evidence  that  on  one  occasion  persons  playing  on  the  spot  were  warned 
off,  or  that  there  was  a  notice  board  near  the  gate  leading  from  the 
high  road  which  may  have  contained  a  caution,  but  the  bearing  of 
these  facts  was  for  the  jury.  I  am  aware  of  the  mischief,  so  much 
dwelt  upon  by  Mr.  Ronan  in  his  brilliant  argument,  of  making  it  diffi- 
cult for  landowners  to  admit  the  public  to  enjoy  the  amenities  of  their 
private  domains.  But  every  case  of  this  kind  must  be  dealt  with  on 
its  special  facts,  and  the  line  of  legal  immunity  will.  I  think,  be  found 
to  coincide  with  the  line  of  common  sense,  of  which  juries  are  very 
capable  judges.  Tempting  or  even  allowing  children  to  make  a  play- 
thing of  a  dangerous  machine  without  taking  adequate,  or  indeed  any 
precautions,   against  the   probable   danger  of   mischief   through   their 


1006  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY         (Part  P. 

imprudence  is  a  form  of  benevolence  which  ought  not  to  be  encouraged. 
The  Supreme  Court  of  America  has  afifirmed  the  Habihty  of  the  rail- 
way company  in  a  case  as  nearly  as  possible  identical  in  its  facts  with 
that  under  appeal:  Railway  Co.  v.  Stout  (1873)  17  Wall.  657,  21  L. 
Ed.  745,  and  the  principle  of  allurement  in  the  case  of  children  has 
been  recognized  in  our  own  Court  of  Appeal :  Jewson  v.  Gatti,  2  Times 
L.  R.  441. 

With  unfeigned  respect  to  the  Court  of  Appeal,  I  think  they  have 
hardly  given  sufificient  weight  to  the  special  considerations  applicable 
in  the  case  of  young  children  as  distinguished  from  adults. 

Lord  Loreburn,  L.  C.  My  Lords,  I  am  content  to  act  upon  the 
opinion  of  my  learned  and  noble  friend  Lord  Macnaghten,  having 
regard  to  the  peculiar  circumstances,  namely  that  this  place,  on  which 
the  defendants  had  a  machine,  dangerous  unless  protected,  was  to 
the  defendants'  knowledge  an  habitual  resort  of  children,  accessible 
from  the  high  road  near  thereto,  as  well  as  attractive  to  the  youthful 
mind ;  and  that  the  defendants  took  no  steps  either  to  prevent  the  chil- 
dren's presence  or  to  prevent  their  playing  on  the  machine,  or  to  lock 
the  machine  so  as  to  avoid  accidents,  though  such  locking  was  usual. 
I  must  add  that  I  think  this  case  is  near  the  line.  The  evidence  is 
very  weak,  though  I  cannot  say  there  was  none.  It  is  the  combina- 
tion of  the  circumstances  to  which  I  have  referred  which  alone  en- 
ables me  to  acquiesce  in  the  judgment  proposed  by  my  noble  and 
learned  friend  Lord  Macnaghten.     *     *     *  ^^ 

Order  of  the  Irish  Court  of  Appeal  reversed,  and  the  verdict  and 
judgment  entered  for  the  plaintiff  by  the  Lord  Chief  Justice  of  Ire- 
land restored,  with  pauper  costs  here  and  costs  below. 


ANDERSON  v.  FT.  DODGE,  D.  M.  &  S.  R.  CO. 

(Supreme  Court  of  Iowa,  1911.     150  Iowa,  465,  130  N.  W.  391.) 

Weaver,  J.  The  defendant  operates  an  electric  railway  through 
the  city  of  Boone.  At  or  near  its  station  in  that  city  and  by  the  side 
of  one  of  its  tracks  the  company  maintains  or  uses  a  storage  house  or 
building,  the  roof  of  which  is  about  on  a  level  with  the  roof  of  an 
ordinary  box  car  standing  on  the  adjacent  track.  At  the  height  of 
four  feet  above  the  top  of  this  building  there  are  strung  some  of  the 
company's  electric  wires  which  do  not  appear  to  have  been  protected 
by  insulation.  The  injury  of  which  plaintiff  complains  occurred  May 
22,  1909.  He  was  then  a  lad  of  12  years  and  3  months.  On  the 
evening  in  question  a  box  car  was  standing  near  the  storage  building, 
and  plaintiff,  with  three  other  boys,  was  idling  or  playing  in  that 
vicinity.  Climbing  to  the  top  of  the  box  car,  one  of  his  companions 
dared  or  "stumped"  plaintiff  to   follow  him,  and  jumped  across  the 

0  8  Lord  Atkinson's  opinion,  concurring  in  the  result,  is  omitted. 


Ch.  1)  NEGLIGENCE  1007 

intervening  space  to  the  roof  of  the  building.  Plaintiff  performed  the 
feat,  and  in  turning  to  jump  back  again  came  into  contact  with  a 
wire,  receiving  a  severe  shock,  and,  as  he  claims,  resulting  injury.  Re- 
covery of  damages  from  the  defendant  is  demanded  on  the  theory 
that  it  was  negligent  in  the  construction  and  maintenance  of  the 
building  and  track  and  in  its  manner  of  caring  for  and  managing  its 
said  premises ;  that  it  was  also  negligent,  in  that  with  knowledge  of  the 
danger  to  be  apprehended  from  said  wires  it  placed  and  left  its  cars 
in  such  manner  as  to  invite  children  to  play  thereon,  and  expose  them 
to  injur}';  and  that  it  was  further  negligent  in  leaving  the  wires  un- 
covered without  notice  or  warning  to  put  the  plaintiff  or  other  persons 
passing  that  way  upon  their  guard  to  avoid  injury.  These  allegations 
are  stated  with  many  repetitions,  but  to  the  same  substantial  effect. 

The  plaintiff,  who  seems  to  be  a  boy  of  average  intelligence  and 
quickness  of  perception,  says  he  and  other  boys  had  frequently  been 
at  or  about  this  railway  station,  and  had  there  indulged  in  more  or 
less  of  youthful  sport  and  play.  They  had  at  times  jumped  back  and 
forth  between  the  station  platform  and  standing  cars,  but,  so  far  as 
the  record  shows,  had  never  before  attempted  the  jump  from  a  car 
top  to  the  roof  of  the  storage  building.  He  says  he  did  not  play  there 
thinking  he  had  any  right  to  do  so,  and  knew  the  railway  men  would 
drive  him  off  if  they  saw  him.  It  does  not  appear  that  he  was  aware 
of  the  wires  strung  above  the  roof,  and  either  from  heedlessness  or 
from  the  darkness  of  the  evening  failed  to  discover  them  before  his 
injury,  though  he  says  he  knew  there  was  danger  in  electric  wires. 
The  testimony  of  the  boys  who  were  playing  with  plaintiff  at  the  time 
of  his  injury  corroborates  his  story  in  most  respects.  The  evidence 
tends  to  show  that  the  wires  were  not  insulated,  and  were  not  guarded 
to  prevent  contact  with  them  by  any  person  crossing  the  roof,  and  no 
warning  notice  was  posted  there.  There  was  also  expert  testimony 
that  the  defendant's  wires  were  strung  lower  than  is  usually  done  in 
building  such  systems,  and  that  they  are  "too  low  to  be  safe." 

The  motion  for  a  directed  verdict  which  the  trial  court  sustained 
was  based  on  the  grounds:  (1)  That  the  evidence  did  not  tend  to 
show  negligence  on  the  part  of  the  defendant.  (2)  That  the  evidence 
did  show  plaintiff  to  have  contributed  to  his  injury  by  his  own  reck- 
lessness and  negligence.  (3)  That  plaintiff  at  the  time  of  his  injury 
was  a  trespasser  and  upon  defendant's  premises  without  license,  and 
that  defendant  owed  him  no  duty  or  care  under  the  circumstances  as 
shown  and  admitted  by  his  own  testimony. 

Giving  plaintiff  the  benefit  of  the  most  favorable  construction  which 
can  be  placed  upon  the  testimony,  we  are  compelled  to  hold  that  he 
failed  to  make  a  case  upon  which  a  verdict  in  his  favor  could  be  sus- 
tained. It  is  true  that  the  courts  of  the  several  states  are  arrayed  in 
apparently  irreconcilable  conflict  upon  the  question  how  far,  if  at 
all,  the  ancient  doctrine  which  exonerates  a  property  owner  from  the 
duty  of  considering  or  caring  for  the  safety  of  a  trespasser  upon  his 


1008  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

premises  is  applicable  where  the  injured  person  is  a  young  child  who 
has  been  attracted  to  the  place  of  danger  by  conditions  and  circum- 
stances created  or  permitted  by  the  owner,  and  especially  where  the 
owner  knows,  or  as  a  reasonable  person  ought  to  apprehend,  the  dan- 
ger of  resultant  injury  to  children  too  young  and  inexperienced  to  un- 
derstand the  fact  or  meaning  of  trespass  or  to  exercise  judgment  or 
care  for  their  own  safety.  This  court  has  definitely  committed  itself 
to  the  doctrine  first  clearly  affirmed  in  this  country  by  Dillon,  J.,  in 
Stout  V.  Railroad  Co.,  2  Dill.  294,  Fed.  Cas.  No.  13,504,  and  affirmed 
on  appeal  in  17  Wall.  657,  21  L.  Ed.  745.  That  under  some  circum- 
stances the  rule  as  to  injury  to  trespassers  will  not  be  applied  to  young 
children  who  are  led  or  attracted  to  the  premises  of  another  by  the 
act  or  omission  of  the  owner.  See  Edgington  v.  Railroad  Co.,  116 
Iowa,  410,  90  N.  W.  95,  57  L.  R.  A.  561 ;  Fishburn  v.  Railroad  Co., 
127  Iowa,  483,  103  N.  W.  481.  But  the  rule  of  these  cases  has  never 
been  so  far  extended  as  to  cover  injuries  received  in  the  manner  dis- 
closed by  this  record.  The  plaintiff  in  this  case  was  in  his  thirteenth 
year,  and,  while  it  would  perhaps  be  too  much  to  say  that  we  can 
assume  as  a  matter  of  law  that  a  boy  of  such  age  is  sufficiently  mature 
to  be  chargeable  with  contributory  negligence,  his  evidence  clearly 
discloses  that  he  appreciated  the  fact  that  he  was  a  trespasser,  and 
that  he  would  be  ordered  away  if  discovered.  It  shows,  also,  that  he 
knew  the  railroad  was  operated  by  electric  power,  and  knew  the  dan- 
gerous character  of  wires  charged  with  electricity.  So  far  as  appears, 
this  roof  had  never  been  used  by  him  or  any  of  his  companions  as 
a  resort  for  play  or  frolic.  There  was  nothing  to  suggest  to  the 
railway  company  any  necessity  for  guarding  the  roof  of  its  building 
against  such  visitors  or  to  indicate  the  propriety  of  placarding  its 
property  with  notices  or  warning  against  injury  from  wires  stretched 
far  above  the  ground  where  contact  was  possible  only  by  climbing 
to  the  top  of  its  storehouse. 

To  say  that  a  property  owner  must  guard  against  such  injury  to  a 
trespassing  boy  simply  because  it  is  possible  for  him  in  a  venturesome 
spirit  to  climb  into  the  zone  of  danger  would  be  intolerable.  In  every 
dooryard  and  on  every  street  side  are  shade  and  ornamental  trees. 
To  climb  trees  is  as  natural  to  the  average  boy  as  to  a  squirrel.  Such 
sport  is  always  attended  with  danger  that  the  climber  may  lose  his 
hold  or  break  a  branch  and  fall  to  his  severe  injury.  Not  infrequently 
it  may  bring  him  to  an  elevation  where  he  is  exposed  to  contact  with 
wires  carrying  electric  currents  of  greater  or  less  intensity.  If  he 
falls  and  breaks  his  bones,  or  if  he  receives  a  stunning  shock  of  elec- 
tricity, ought  the  owner  of  the  tree  to  be  held  liable  in  damages  be- 
cause he  did  not  guard  it  against  the  approach  of  the  lad,  or  because 
he  did  not  give  notice  or  warning  in  some  way  of  the  dangers  to  be  ap- 
prehended in  climbing  it?  No  court  has  ever  gone  to  such  an  extent, 
and  the  establishment  of  such  rule  would  render  the  ownership  of  real 
estate  a  very  undesirable  investment.    See  Merryman  v.  Railroad  Co., 


Ch.  1)  NEGLIGENCE  1009 

85  Iowa,  634,  52  N.  W.  545 ;  Masser  v.  Railroad  Co.,  68  Iowa,  602, 
27  N.  W.  776;  Carson  v.  Railroad  Co.,  96  Iowa,  583,  65  N.  W.  831 ; 
Brown  v.  Canning  Co.,  132  Iowa,  634,  110  N.  W.  12;  Keefe  v.  Elec- 
tric Co.,  21  R.  I.  575,  43  Atl.  542;  Sullivan  v.  Railroad  Co.,  156  Mass. 
378,  31  N.  E.  128. 

As  the  plaintiff's  own  case  reveals  him  as  a  conscious  trespasser 
upon  defendant's  premises,  and  there  is  an  utter  absence  of  testimony 
that  defendant  kept  or  maintained  anything  on  the  roof  of  its  building 
to  attract  or  draw  children  thereto,  or  that  it  in  any  manner  en- 
couraged, invited,  or  permitted  such  use  of  the  roof,  he  was  not  en- 
titled to  go  to  the  jury,  and  the  court  did  not  err  in  directing  a  verdict 
against  him.  The  same  result  would  have  to  be  reached  on  the  ground 
of  contributory  negligence  had  there  been  anything  in  the  record  tend- 
ing to  show  negligence  on  the  part  of  the  defendant. 

Affirmed. 


BJORK  v.  CITY  OF  TACOMA.     ^ 

(Supreme  Court  of  Washington,  1913.    76  Wash.  225,  135  Pac.  1005, 

48  L.  R.  A.  [N.  S.]  331.) 

Ellis,  J.  In  this  action,  the  plaintiff  seeks  to  recover  damages  on 
account  of  the  death  of  his  minor  son,  alleged  to  have  been  caused 
through  the  negligence  of  the  defendant.  It  is  admitted  that  the  city 
of  Tacoma  was,  at  the  time  of  the  accident  in  question,  and  for  years 
had  been,  the  owner  of  and  operating  a  water  system  for  supplying 
water  to  its  inhabitants  and,  as  a  part  of  its  system,  maintained  a 
wooden  flume  carrying  water  from  the  sources  of  supply  to  its  reser- 
voir. This  flume  runs  along  the  middle  of  an  uninclosed  right  of 
way  between  Clement  and  Alder  streets  in  the  city.  The  flume  was 
in  the  form  of  a  box  about  24  inches  square,  and  the  top,  at  the  place 
of  the  accident,  was  level  with  or  a  little  above  the  surface  of  the 
ground.  Prior  to  1908,  before  the  city  water  pipes  had  been  laid 
along  Clement  avenue,  residents  of  that  district  were  accustomed, 
with  the  city's  permission  and  for  pay,  to  obtain  water  from  the  flume 
through  a  hole  24  inches  square  cut  in  the  top  of  the  flume.  The 
v.'ooden  cover  over  this  hole  was  on  hinges  and  furnished  with  a 
padlock,  and  the  people  so  supplied  with  water  were  provided  with 
keys  and  required  by  the  city  to  keep  the  cover  at  all  times  locked. 
When  the  city  water  was  piped  to  the  various  residences  in  this  sec- 
tion, this  use  of  the  flume  was  abandoned  and  the  cover  of  the  open- 
ing was  nailed  down.  At  the  time  of  the  accident,  the  hinges  had 
rusted  ofif,  there  was  no  padlock,  and  the  nails  which  had  held  the 
cover  in  place  had  rusted  and  were,  as  one  witness  testified,  "stubs 
of  nails."  One  witness,  a  boy  of  ten,  testified  that  this  cover  had  been 
off  and  the  hole  open  continuously  for  two  or  three  weeks.  Other 
Hepb. Torts — 64 


1010  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

witnesses  contradicted  this,  and  the  plaintiff  and  his  wife  testified 
that  they  had  never  seen  it  open  at  any  time  before  the  accident.  The 
water  running  in  the  flume  was  about  18  inches  in  depth.  The  right 
of  way  was  open  so  that  any  one  who  desired  had  access  to  it,  and 
it  had  become,  prior  to  the  accident,  a  regular  playground  for  the 
children  of  the  neighborhood.  The  plaintilT  lived  with  his  family 
on  the  east  side  of  Clement  avenue  in  sight  of  the  flume,  and  there 
was  no  fence  or  obstruction  of  any  kind  between  his  residence  and 
the  flume  right  of  way  which  ran  parallel  with  and  contiguous  to  tlie 
avenue  on  the  west. 

On  the  morning  of  June  23,  1911,  the  deceased,  a  child  a  little  un- 
der three  years  old,  and  another  boy  of  about  the  same  age,  were 
playing  along  the  flume.  A  witness  who  was  working  on  the  roof 
of  a  house  about  300  feet  from  the  scene  of  the  accident  saw  the 
boys  running  along  the  flume,  and,  when  they  came  to  the  spot  where 
the  witness  supposed  the  cover  to  be,  they  "took  a  jump,"  as  he  said, 
and  then  ran  back,  repeating  the  performance.  Finally  he  saw  only 
one  of  the  boys  running  toward  the  Bjork  house,  evidently  seeking 
assistance,  and  Mrs.  Bjork,  the  boy's  mother,  came  out  screaming  and 
ran  toward  the  hole.  Several  persons,  attracted  by  her  cries,  ran  to 
the  place  where  the  boy  had  fallen  in,  and  one  of  them,  surmising  what 
had  happened,  ran  down  to  another  opening  in  the  flume  near  the 
power  house,  where,  with  the  assistance  of  one  of  the  employes  of  the 
power  plant,  he  lifted  the  cover  from  that  opening  and  found  the 
child  lying  face  downward,  drowned. 

At  the  conclusion  of  the  testimony  on  behalf  of  the  plaintiiT,  the 
defendant  moved  for  a  nonsuit  on  the  ground  that  the  evidence  failed 
to  establish  actionable  negligence  on  the  city's  part.  The  motion  was 
granted.  From  the  judgment  of  nonsuit  the  plaintiff  prosecutes  this 
appeal. 

Eliminating  the  questions  of  notice  to  the  city  and  contributory 
negligence  of  the  parents  of  the  child,  which,  under  the  evidence, 
were  clearly  for  the  jury,  there  is  but  one  question  presented  for  our 
consideration :  Was  the  opening  in  the  flume,  exposing  a  constantly 
flowing  stream  of  water  beneath,  in  an  unfenced  right  of  way  con- 
tiguous for  a  long  distance  to  a  public  street  in  the  city  and  permit- 
ted to  be  used  as  a  common  playground  bv  the  children  of  the  neigh- 
borhood, a  thing  of  such  location  and  character  as  to  be  attractive 
and  alluring  to  small  children  so  that  danger  therefrom  should  have 
been  reasonably  anticipated  and  guarded   against  by  the  city? 

The  city,  in  the  maintenance  and  operation  of  its  waterworks,  was 
acting  in  a  proprietary  and  not  a  governmental  capacity.  Its  liability 
must  therefore  be  the  same  as  that  of  a  private  owner  under  the  same 
circumstances. 

That  the  child,  a  mere  baby,  was  a  technical  trespasser,  or  at  most 
a  mere  licensee,  is  an  immaterial  circumstance.  A  child  attracted 
to  premises  open  and  unguarded  in  a  populous  neighborhood  by  things 


Ch.  1)  NEGLIGENCE  1011 

maintained  thereon  enticing  to  the  childish  curiosity  and  instincts 
is  not  a  culpable  trespasser  in  any  sound  sense.  This  is  against  the 
weight  of  authority  when  measured  in  mere  numbers,  which  holds 
the  child  to  the  rule  applied  to  the  adult  who,  when  injured  while  tres- 
passing upon  the  premises  of  a  defendant,  can  recover  damages  only 
when  the  injury  was  wanton  or  was  due  to  recklessly  careless  con- 
duct on  the  defendant's  part.  But,  as  said  by  a  candid  text-writer: 
"This  cruel  and  wicked  doctrine,  unworthy  of  a  civilized  jurispru- 
dence, puts  property  above  humanity,  leaves  entirely  out  of  view 
the  tender  years  and  infirmity  of  understanding  of  the  child,  in- 
deed his  inability  to  be  a  trespasser  in  sound  legal  theory,  and  visits 
upon  him  the  consequences  of  his  trespass  just  as  though  he  were  an 
adult,  and  exonerates  the  person  or  corporation  upon  whose  property 
he  is  a  trespasser  from  any  measure  of  duty  towards  him  which  they 
would  not  owe  under  the  same  circumstances  towards  an  adult."  1 
Thompson  on  Negligence  (2d  Ed.)  §  1026.  The  same  writer,  after 
admitting  the  fact  that  in  many  jurisdictions  the  doctrine  of  trespass 
as  a  defense,  even  as  applied  to  small  children,  must  be  regarded  as 
established  law,  scathingly  reprobating  the  doctrine  as  barbarous,  says : 
"Nevertheless,  a  few  decisions  of  enlightened  and  humane  courts  are 
found,  more  or  less  tending  to  the  conclusion  that  the  owner  of  any 
machine  or  other  thing  which,  from  its  nature,  is  especially  attractive 
to  children,  who  are  likely  to  play  with  it  in  obedience  to  their  child- 
ish instincts,  and  yet  which  is  especially  dangerous  to  them,  is  under 
the  duty  of  exercising  reasonable  care  to  the  end  of  keeping  it  fast- 
ened, guarded,  or  protected  so  as  to  prevent  them  from  injuring  them- 
selves while  playing  or  coming  in  contact  with  it."  1  Thompson  on 
Negligence  (2d  Ed.)  §  1031. 

The  more  humane  rule,  as  expressed  in  another  text,  has  met  with 
our  unqualified  approval:  "The  owner  of  land  where  children  are 
allowed  or  accustomed  to  play,  particularly  if  it  is  unfenced,  must 
use  ordinary  care  to  keep  it  in  a  safe  condition,  for  they,  being  with- 
out judgment  and  likely  to  be  drawn  by  childish  curiosity  into  places 
of  danger,  are  not  to  be  classed  with  trespassers,  idlers,  and  mere 
licensees."  Shearman  &  Redfield  on  Negligence  (6th  Ed.)  §  705.  "A 
child  of  tender  years,  who  meets  with  an  injury  upon  the  streets  or 
upon  the  premises  of  a  private  owner,  though  a  technical  trespasser, 
may  recover  for  such  injury  if  the  thing  causing  it  has  been  left  ex- 
posed and  unguarded  near  the  playgrounds  or  haunts  of  children  and 
is  of  such  a  character  as  to  be  alluring  or  attractive  to  them,  or  such 
as  to  appeal  to  childish  curiosity  and  instincts ;  this  on  the  principle 
that  children  of  tender  years,  'being  without  judgment  and  likely  to 
be  drawn  by  childish  curiosity  into  places  of  danger,  are  not  to  be 
classed  with  trespassers,  idlers,  and  mere  licensees.'  "  Haynes  v.  Seat- 
tle, 69  Wash.  419,  125  Pac.  147. 

The  above  quotation  and  the  sustaining  citations  show  that  the 
fact  that  the  accident  there  involved  happened  in  a  public  street  was 


1012  TORTS  THROUGH   ACTS  OF  CONDITIONAL   LIABILITY         (Part  3 

not  regarded  as  a  controlling  or  even  material  circumstance.  Ilwaco 
Ry.  &  Nav.  Co.  v.  Hedrick,  1  Wash.  446,  25  Pac.  335,  22  Am.  St. 
Rep.  169;  McAllister  v.  Seattle  Brewing  &  Malting  Co.,  44  Wash. 
179,  87  Pac.  68. 

We  intentionally  refrain  from  citing  Nelson  v.  McLellan,  31  Wash. 
208,  71  Pac.  747,  60  L.  R.  A.  793,  96  Am.  St.  Rep.  902,  Akin  v.  Brad- 
ley Eng.  &  Mach.  Co.,  48  Wash.  97,  92  Pac.  903,  14  L.  R.  A.  (N.  S.) 
586,  and  Olson  v.  Gill  Home  Invest.  Co.,  58  Wash.  151,  108  Pac.  140, 
^-^    27  L.  R.  A.  (N.  S.)  884,  the  dynamite  cases,  as  sustaining  this  rule, 
■^  because,  though  they  do  sustain  it  in  principle,  the  agency  there  in- 
<^-'  y  \olved  was  so  inherently  dangerous  as  to  render  those  cases  in  any 
-  '^y^^p^ent  soundly  sustainable  upon  the  ground  of  reckless  conduct  on  the 
^^i^"^iyefp«dants'  part. 

^"^^x^^he  turntable  and  machinery  cases,  however,  are  in  no  just  sense 
sui  generis.  They  rest,  as  it  seems  to  us,  upon  the  one  broad  prin- 
ciple common  to  all  cases  of  injury  from  dangerous  premises  and  all 
cases  of  so-called  "attractive  nuisances" — that  there  is  always  a  duty 
due  to  society  upon  the  owner  of  premises  to  take  reasonable  care 
to  so  use  his  own  as  not  to  injure  another,  a  failure  to  observe  which 
is  negligence.  1  Thompson,  Negligence  (2d  Ed.)  §§  1033  and  1036; 
Hydraulic  Works  v.  Orr,  83  Pa.  332;  Bransom's  Adm'r  v.  Labrot, 
81  Ky.  638,  50  Am.  Rep.  193;  Union  Pac.  Ry.  Co.  v.  McDonald,  152 
U.  S.  262,  14  Sup.  Ct.  619,  38  L.  Ed.  434;  Biggs  v.  Consolidated 
Barb-Wire  Co.,  60  Kan.  217,  56  Pac.  4,  44  L.  R.  A.  655. 

We  cannot  say,  as  a  matter  of  law,  that  the  opening  in  the  flume 
was  not  in  its  nature  a  thing  reasonably  to  be  anticipated  as  enticing 
to  young  children.  Whether  it  was  or  not  is  a  question  for  the  jury. 
This  case  is  closely  analogous  to  that  of  Pekin  v.  McMahon,  Adm'r, 
154  III.  141,  39  N.  E.  484,  27  L.  R.  A.  206.  45  Am.  St.  Rep.  114. 
That  case  arose  from  the  drowning  of  a  child  of  tender  years  in  a 
pond  on  uninclosed  premises  owned  by  the  city.  The  pond  was  in  a 
populous  part  of  the  city  near  a  driveway  where  children  were  ac- 
customed to  play.  The  city  was  held  liable  upon  the  doctrine  of  the 
turntable  cases,  and  the  question  whether  the  attractiveness  of  the 
dangerous  premises  was  such  as  to  entice  children  and  such  as  to 
suggest  to  the  defendant  the  probability  of  such  an  occurrence  was 
held  one  for  the  jury.  See,  also.  Price  v.  Atchison  Water  Co.,  58 
Kan.  551,  50  Pac.  450,  62  Am.  St.  Rep.  625. 

We  are  not  impressed  with  the  argument  based  upon  Salladay  v. 
Old  Dominion  Copper  Mining  &  Smelting  Co.,  12  Ariz.  124,  100 
Pac.  441,  in  which  it  was  held  that  maintaining  an  open  flume  on 
private  premises  did  not  render  the  owner  liable  for  the  drowning 
therein  of  a  small  child.  The  court  seems  to  have  been  influenced  by 
the  fact  that  there  are  many  open  flumes  and  ditches  in  Arizona  neces- 
sary to  irrigation  and  mining,  and  held  that  it  would  be  against  pub- 
lic policy  to  extend  the  doctrine  of  the  turntable  cases  to  such  flumes 


Ch.  1)  NEGLIGENCE  1013 

and  ditches.  But,  assuming  the  soundness  of  that  decision,  it  seems 
to  us  that  a  distinction  between  an  open  flume  carrying  a  stream 
of  shallow  water  or  an  irrigating  ditch,  and  an  inclosed  box  with 
an  opening  such  as  is  here  maintained  on  premises  used  as  a  common 
playground  in  a  populous  city,  may  be  soundly  made,  both  by  reason 
of  its  location  and  its  greater  danger.  A  child  falling  into  such  a 
hole  obviously  had  no  chance  either  of  rescue  or  escape 

The  case  of  Gordon  v.  Snoqualmie  Lumber  &  Shingle  Co.,  59 
Wash.  272,  109  Pac.  1044,  29  L.  R.  A.  (N.  S.)  88,  chiefly  relied  upon 
by  the  respondent,  though  carrying  the  doctrine  of  immunity  as  a 
matter  of  law  to  a  considerable  extent,  by  no  means  goes  as  far  as 
we  are  asked  to  extend  it  in  this  case.  It  was  there  held  that  the 
safeguards  were  such  and  the  location  of  the  barrel  of  hot  water 
was  such  that  the  defendant  could  not  reasonably  be  expected  to  an- 
ticipate the  danger.  In  fact,  there  was  no  danger  if  the  plug  in  the 
barrel  had  been  secure,  and  there  was  no  evidence  imputing  notice 
to  the  defendant  that  the  plug  was  not  secure.  That  this  was  the 
determinative  factor  in  that  case  is  shown  by  the  following  language 
there  used:  "It  is  not  shown  what  caused  the  plug  to  come  out,  and 
there  is  no  showing  of  notice  or  opportunity  of  notice  to  respondent 
of  a  defective  condition  of  the  barrel  or  plug." 

In  the  case  before  us,  there  was  evidence  that  the  hole  had  been 
open  continuously  for  two  or  three  weeks  before  the  accident — a  time 
amply  sufficient  to  warrant  a  jury  in  imputing  notice.  While  there 
was  evidence  to  the  contrary,  the  credibility  of  the  witnesses  and  the 
weight  of  the  evidence  were  for  the  jury. 

The  case  of  Curtis  v  Tenino  Stone  Quarries,  37  Wash.  355,  79 
Pac.  955,  is  also  distinguishable.  The  quarry  was  not  in  a  city  and 
was  200  feet  from  any  highway  or  public  ground.  It  was  not  per- 
mitted to  be  used  as  a  common  playground,  nor  was  it  near  one.  The 
child  had  been  driven  away  a  short  time  before  the  accident.  The 
distinction  is  plain. 

We  will  not  attempt  a  review  of  the  many  authorities  cited  from 
other  jurisdictions.  As  we  have  seen,  the  rule  in  many  jurisdictions 
is  contrary  to  that  adopted  here,  and  the  decisions  cannot  be  har- 
monized We  are  constrained  to  hold  that  a  cause  of  action  was 
stated  and  supported  by  sufficient  proof  to  put  the  respondent  to  its 
defense. 

The  judgment  is  reversed. 


1014  TORTS  THROUGH   ACTS  OF  CONDITIONAL   LIABILITY         (Part  3 

(B)  Duty  of  Care  Towards  a  Licensee 
CORBY  V.  HILL. 

(Court  of  Common  Pleas,  1858.    4  C.  B.  [N.  S.]  556,  114  R.  R.  849, 

140  Reprint,  1200.) 

This  was  an  action  against  the  defendant  for  negligently  leaving 

certain  slates  upon  a  certain  road,  whereby  the  plaintiff's  horse  was 

injured.    The  declaration  stated 

that  before  and  at  the  time  when  &c.,  the  plaintiff  was  lawfully  possessed 
of  a  certain  carriage,  and  of  a  certain  horse  drawing  the  said  carriage  which 
said  horse  and  carriage  were  under  the  government  and  direction  of  a  serv- 
ant of  the  plaintiff,  and  which  said  horse  and  carriage  were  then,  with  the 
consent  of  the  owners  and  occupiers  of  the  land  and  road  and  carriage  line 
thereinafter  mentioned,  during  the  night  time,  under  such  care  and  govern- 
ment as  aforesaid,  lawfully  in  and  lawfully  being  driven  along  certain  land 
and  along  a  certiiin  road  or  carriage  line,  part  of  and  crossing  the  said  land 
then  belonging  to  and  occupied  by  certain  persons  other  than  the  plaintiff 
and  the  defendant,  and  leading  to  a  certain  public  building  known  as  the 
HanweU  Lunatic  Asylum,  for  the  purpose  of  proceeding  to  the  said  building, 
that  the  defendant  then,  negligently,  carelessly,  and  improperly  kept  and 
continued  upon  and  across  the  said  road  or  carriage  line,  part  of  tlie  said 
land,  a  stack  of  slates,  and  divers  other  things  and  materials,  without  placing 
or  keeping  any  light  or  signal  near  them,  or  adopting  any  means  whatever 
to  show  that  the  said  slates  and  other  material  were  upon  or  across  the  said 
land,  road  or  carriage  line;  by  reason  whereof  it  was  then  impossible  for  the 
servant  of  the  plaintiff  to  see  or  avoid  the  said  slates,  materials  or  other 
things;  and  that,  by  reason  thereof,  the  said  horse,  drawing  the  said  car- 
riage, while  being  driven  by  the  said  servant  as  aforesaid,  ran  into,  upon,  and 
against  the  said  stack  of  slates  or  other  materials  and  things,  and  was  greatly 
bruised,  wounded,  and  injured:    special  damage. 

The  fourth  plea  stated  that  the  defendant  had  lawfully  placed,  kept 
and  continued  the  said  slates,  and  other  things  and  materials  across 
the  said  land  and  road  or  carriage  line,  by  the  license  of  the  owners 
and  occupiers  of  said  land,  road  or  carriage  line,  before  the  consent 
of  the  owners  and  occupiers  of  the  said  land,  road,  or  carriage  line 
as  in  the  declaration  alleged ;  and  that  the  said  consent  so  given  to 
the  defendants  was  in  full  force  at  the  time  when  &c. ;  and  that  the 
alleged  damage  was  not  sustained  by  any  breach  of  duty  of  the  de- 
fendant.   Issue  thereon. 

The  cause  was  tried  before  Byles,  J.,  at  the  sittings  in  London  after 
the  last  Term.  The  facts  which  appeared  in  evidence  were  as  fol- 
lows: The  carriage  road  or  way  in  question  was  a  private  road  lead- 
ing from  the  turnpike  road  to  the  HanweU  Lunatic  Asylum  and  to 
the  residence  of  the  superintendent.  Dr.  Saunders.  The  defendant, 
a  builder,  was  employed  to  do  certain  work  at  the  asylum,  and,  with 
the  consent  of  the  owners  of  the  land,  stacked  certain  slates  and  other 
materials  upon  a  portion  of  the  road,  without  taking  the  precaution 
of  placing  a  light  near  them  at  night,  in  consequence  of  which,  the 
plaintiff's  servant,  who   was  driving  a  horse  and  carriage  along  the 


Ch.  1)  NEGLIGENCE  1015 

private  road  to  the  residence  of  Dr.  Saunders,  not  seeing  the  slates, 
drove  against  them,  and  seriously  injured  the  horse. 

In  answer  to  the  questions  put  to  them  by  the  learned  Judge,  the 
jury  found  that  the  defendant  had  the  consent  of  the  owners  of  the 
property  for  placing  the  slates  and  materials  where  he  placed  them, 
but  upon  the  usual  terms  of  properly  providing  for  the  safety  of 
the  public,  or  of  such  of  the  public  as  had  permission  to  use  the  way ; 
that  there  was  negligence  in  leaving  the  stack  without  a  proper  light ; 
and  that  negligence  was  chargeable  upon  the  defendant,  in  conjunc- 
tion with  the  owners  of  the  soil. 

It  was  insisted  on  the  part  of  the  defendant  that  the  fourth  plea 
was  an  answer  to  the  action. 

The  learned  judge  directed  a  verdict  to  be  entered  for  the  plain- 
tiff, reserving  leave  to  the  defendant  to  move  to  enter  a  verdict  for 
him  upon  the  fourth  plea,  if  the  court  should  be  of  opinion  that  the 
action  would  not  lie  under  the  circumstances. 

Huddleston,  Q.  C,  now  moved  to  enter  a  verdict  for  the  defend- 
ant pursuant  to  the  leave  reserved,  or  to  arrest  the  judgment. 

WiLLES,  J.  I  am  of  the  same  opinion.  In  substance  the  case  is 
this :  There  was  a  road  leading  to  a  certain  building,  along  which 
road  persons  having  occasion  to  go  to  the  building  were  accustomed 
to  pass  by  leave  of  the  owners  of  the  soil,  and  were  likely  to  pass ; 
and  the  defendant,  being  engaged  in  some  work  upon  the  adjoining 
land,  obtained  leave  to  place  slates  and  other  materials  there,  either 
absolutely  or  modified  in  the  way  found  by  the  jury,  so  as  not  to  endan- 
ger persons  using  the  road.  Under  that  leave,  the  defendant  placed  cer- 
tain slates  across  the  road  in  such  a  way  as  to  be  likely  to  occasion 
injury  to  persons  using  the  road.  It  is  not  suggested  that  the  de- 
fendant did  not  know  that  the  road  was  likely  to  be  used  in  the 
way  mentioned,  or  that  he  gave  any  notice  or  warning  to  the  per- 
sons, including  the  plaintiff,  who  wxre  accustomed  and  likely  to  use 
the  road.  The  question  is,  whether  there  is  any  legal  remedy  for  a 
person  lawfully  using  the  road,  to  whom  injury  results  from  the  act 
of  a  third  person  in  negligently  placing  an  obstruction  upon  the  road. 

I  should  have  thought  that  bare  statement  of  the  proposition  was 
enough.  The  defendant  had  no  right  to  set  a  trap  for  the  plaintiff. 
One  who  comes  upon  another's  land  by  the  owner's  permission  or 
invitation  has  a  right  to  expect  that  the  owner  will  not  dig  a  pit 
thereon,  or  permit  another  to  dig  a  pit  thereon,  so  that  persons  law- 
fully coming  there  may  receive  injur}^  That  is  so  obvious  that  it 
is  needless  to  dwell  upon  it.  The  form  of  declaration  which  I  should 
have  drawn  upon  such  a  state  of  facts,  would  have  been  something 
like  this, — that  there  was  a  certain  road  over  which  the  plaintiff  and 
others  having  occasion  to  go  to  a  certain  building  by  license  of  the 
owners  were  accustomed  and  likely  to  pass,  and  that  the  defendant, 
knowing  that,  wrongfully  and  negligently  placed  certain  slates  and 
materials  across  the  road  in  such  a  manner  as  to  be  likely  to  prove 


1016  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

dangerous  to  persons  driving  along  the  road,  and  that  the  plaintiff, 
being  lawfully  on  the  road  on  his  way  to  the.  building,  ran  against 
the  obstruction  and  was  injured.  The  objections  urged  by  Mr.  Hud- 
dleston  assume  that  the  present  declaration  does  in  substance  state 
all  these  facts.  As  to  the  fourth  plea,  it  seems  to  me  that  the  defend- 
ant failed  to  prove  that  he  had  leave  and  license  of  the  owners  of 
the  soil  to  place  the  slates  across  the  road  in  the  way  he  did.  I  also 
think  there  is  no  ground  for  arresting  the  judgment.  The  declara- 
tion, as  I  read  it,  discloses  a  perfectly  good  cause  of  action,  and  it  is 
not  open  to  any  of  the  objections  urged  against  it.  It  is  true  it  does 
not  allege  that  the  defendant  had  knowledge  of  the  way  in  which  the 
road  was  used.  But  it  is  perfectly  clear  that  he  did  know  it,  and 
therefore  the  declaration  would  at  once  be  amended  if  it  were  neces- 
sary. But  after  the  remarks  of  my  Brother  Williams,  the  absence 
of  that  allegation  would  not  I  think  make  the  declaration  bad. 
Rule  refused.^" 


GAUTRET  V.  EGERTON  et  al. 
JONES  V.  EGERTON  et  al. 

(Court  of  Common  Pleas,  1867.     L.  R.  2  C.  P.  371.) 

The  declaration  in  the  first  of  these  actions  stated 

tliat  the  defendants  were  possessed  of  a  close  of  land,  and  of  a  certain  canal 
and  cuttings  intersecting  the  same,  and  of  certain  bridges  across  the  said 
canal  and  cuttings,  communicating  with  and  leading  to  certain  doclis  of  the 
defendants,  which  said  land  and  bridges  had  been  and  were  from  time  to 
time  used  with  the  consent  and  permission  of  the  defendants  by  persons  pro- 
ceeding towards  and  coming  from  the  said  docks;  that  the  defendants,  well 
knowing  the  premises,  wrongfully,  negligently  and  improperly  kept  and  main- 
tained the  said  land,  canal,  cuttings  and  bridges,  and  suffered  them  to  continue 
and  be  in  so  improper  a  state  and  condition  as  to  render  them  dangerous 
and  unsafe  for  persons  lawfully  passing  along  and  over  said  land  and  bridges, 
towards  the  said  docks,  and  using  the  same  as  aforesaid;  and  that  Leon 
Gautret,  whilst  he  was  lawfully  in  and  passing  and  walking  along  the  said 
close  and  over  the  said  bridge,  and  using  the  same  in  the  manner  and  for  the 
purpose  aforesaid,  by  and  through  the  said  wrongful,  negligent  and  improper 
conduct  of  the  defendants  as  aforesaid,  fell  into  one  of  the  said  cuttings  of 
the  defendants,  intersecting  the  said  close  as  aforesaid,  and  thereby  lost  his 
life  within  twelve  calendar  months  next  before  the  suit:  and  the  plaintiff, 
as  administratrix,  for  the  benelit  of  herself,  the  widow  of  the  said  Leon 
Gautret,  and  A.  (Jautret,  &c.,  according  to  the  statute  in  such  case  made 
and  provided,  claimed  £2500. 

The  defendants  demurred  to  the  declaration,  on  the  ground  that  "it 
does  not  appear  that  there  was  any  legal  duty  or  obligation  on  the  part 
of  the  defendants  to  take  means  for  preventing  the  said  land,  &c.,  be- 
ing dangerous  and  unsafe."    Joinder. 

The  declaration  in  Jones  v.  Egerton  was  the  same  as  the  above,  and 
there  was  a  like  demurrer. 

6  8  The  opinions  of  Cockburn,  C.  J.,  and  Williams  and  Byles,  JJ.,  are  omit- 
ted. 


Ch.  1)  KEGLIGENCE  1017 

Herschell,  for  the  plaintiff  Gautret:  The  question  raised  upon  this 
declaration  is,  whether  there  is  any  duty  on  the  part  of  the  defendants 
towards  persons  using  their  land  as  the  deceased  here  did.  That  may 
be  negligence  in  the  case  of  a  license,  which  would  not  be  negligence 
as  against  a  mere  trespasser :  and  if  there  can  be  any  case  in  which  the 
law  would  imply  a  duty,  it  is  sut^ciently  alleged  here.     *     *     * 

Potter,  for  the  plaintiff  Jones,  submitted  that  the  implied  request  on 
the  part  of  the  defendants  to  persons  having  occasion  to  go  to  the  docks 
to  pass  by  the  way  in  question,  raised  a  duty  in  them  to  keep  it  in  a 
safe  condition. 

WiLLES,  J.  I  am  of  opinion  that  our  judgment  must  be  for  the 
defendants  in  each  of  these  cases.  The  argument  urged  on  behalf  of 
the  plaintiffs,  when  analyzed,  amounts  to  this,  that  we  ought  to  con- 
strue the  general  words  of  the  declaration  as  describing  whatever  sort 
of  negligence  the  plaintiffs  can  prove  at  the  trial.  The  authorities, 
however,  and  reason  and  good  sense,  are  the  other  way.  The  plaintiff 
must,  in  his  declaration,  give  the  defendant  notice  of  what  his  com- 
plaint is.  He  must  recover  secundum  allegata  et  probata.  What  is  it 
that  a  declaration  of  this  sort  should  state  in  order  to  fulfill 
these  conditions?  It  ought  to  state  the  facts  upon  which  the  supposed 
duty  is  founded,  and  the  duty  to  the  plaintiff  with  the  breach  of  which 
the  defendant  is  charged.  It  is  not  enough  to  show  that  the  defendant 
has  been  guilty  of  negligence,  without  showing  in  what  respect  he  was 
negligent,  and  how  he  became  bound  to  use  care  to  prevent  injury 
to  others.  All  that  these  declarations  allege  is,  that  the  defendants 
were  possessed  of  land,  and  of  a  canal  and  cuttings  intersecting  the 
same,  and  of  certain  bridges  across  the  canal  and  cuttings,  communi- 
cating with  and  leading  to  certain  docks  of  theirs ;  that  they  allowed 
persons  going  to  and  from  the  docks,  whether  upon  the  business  or  for 
the  profit  of  the  defendants  or  not,  to  pass  over  the  land ;  and  that  the 
deceased  persons,  in  pursuance  of  and  using  that  permission,  fell  into 
one  of  the  cuttings  and  so  met  their  deaths.  The  consequences  of  these 
accidents  are  sought  to  be  visited  upon  the  defendants,  because  they 
have  allowed  persons  to  go  over  their  land,  not  alleging  it  to  have  been 
upon  the  business  or  for  the  benefit  of  the  defendants,  or  as  the  serv- 
ants or  agents  of  the  defendants;  nor  alleging  that  the  defendants 
have  been  guilty  of  any  wrongful  act,  such  as  digging  a  trench  on  the 
land,  or  misrepresenting  its  condition,  or  anything  equivalent  to  laying 
a  trap  for  the  unwary  passengers ;  but  simply  because  they  permitted 
these  persons  to  use  a  way  with  the  condition  of  which,  for  anything 
that  appears,  those  who  suffered  the  injury  were  perfectly  well  ac- 
quainted.   That  is  the  whole  sum  and  substance  of  these  declarations. 

If  the  docks  to  which  the  way  in  question  led  were  public  docks,  the 
way  would  be  a  public  way,  and  the  township  or  parish  would  be  bound 
to  repair  it,  and  no  such  liability  as  this  could  be  cast  upon  the  defend- 
ants merely  by  reason  of  the  soil  of  the  way  being  theirs.  That  is  so 
not  only  in  reason  but  also  upon  authority.    It  was  so  held  in  Robbins 


1018  TORTS  THROUGH   ACTS  OP   CONDITIONAL   LIABILITY         (Part  3 

V.  Jones,  15  C.  B.  N.  S.  221,  where  a  way  having  been  for  a  number 
of  years  dedicated  to  the  public,  we  held  that  the  owner  of  an  adjoin- 
ing house  was  not  responsible  for  death  resulting  to  a  person  through 
the  giving  way  of  the  pavement,  partly  in  consequence  of  its  being 
over-weighted  by  a  number  of  persons  crowding  upon  it,  and  partly 
from  its  having  been  weakened  by  user. 

Assuming  that  these  were  private  docks,  the  private  property  of  the 
defendants,  and  that  they  permitted  persons  going  to  or  coming  from 
the  docks,  whether  for  their  own  benefit  or  that  of  the  defendants,  to 
use  the  way,  the  dedication  of  a  permission  to  use  the  way  must  be 
taken  to  be  in  the  character  of  a  gift.  The  principle  of  law  as  to  gifts 
is,  that  the  giver  is  not  responsible  for  damage  resulting  from  the  in- 
security of  the  thing,  unless  he  knew  of  its  evil  character  at  the  time, 
and  omitted  to  caution  the  donee.  There  must  be  something  like  fraud 
on  the  part  of  the  giver  before  he  can  be  made  answerable.  It  is  quite 
consistent  with  the  declarations  in  these  cases  that  this  land  was  in 
the  same  state  at  the  time  of  the  accident  that  it  was  at  the  time  the  per- 
mission to  use  it  was  originally  given.  To  create  a  cause  of  action, 
something  like  fraud  must  be  shown.  No  action  will  lie  against  a  spite- 
ful man,  who  seeing  another  running  into  a  position  of  danger,  merely 
omits  to  warn  him.  To  bring  the  case  within  the  category  of  actional 
negligence,  some  wrongful  act  must  be  shown,  or  a  breach  of  some 
positive  duty ;  otherwise,  a  man  who  allows  strangers  to  roam  over  his 
property  would  be  held  to  be  answerable  for  not  protecting  them 
against  any  danger  which  they  might  encounter  whilst  using  the  li- 
cense. Every  man  is  bound  not  wilfully  to  deceive  others,  or  to  do 
any  act  which  may  place  them  in  danger.  It  may  be,  as  in  Corby  v. 
Hill.  4  C.  B.  N.  S.  556,  that  he  is  responsible  if  he  puts  an  obstruction 
in  the  way  which  is  likely  to  cause  injury  to  those  who  by  his  permis- 
sion use  the  way :  but  I  cannot  conceive  that  he  would  incur  any  re- 
sponsibility merely  by  reason  of  his  allowing  the  way  to  be  out  of  re- 
pair. For  these  reasons  I  think  these  declarations  disclose  no  cause  of 
action  against  the  defendants,  and  that  the  latter  are  therefore  entitled 
to  judgment. 

Keating,  J.  I  am  of  the  same  opinion.  It  is  not  denied  that  a 
declaration  of  this  sort  must  show  a  duty  and  a  breach  of  that  duty. 
fjut  it  is  said  that  these  declarations  are  so  framed  that  it  would 
be  necessary  for  the  plaintiffs  at  the  trial  to  prove  a  duty.  I 
am,  however,  utterly  unable  to  discover  any  duty  which  the  defend- 
ants have  contracted  towards  the  persons  whom  the  plaintiffs  represent, 
or  what  particular  breach  of  duty  is  charged.  It  is  said  that  the  con- 
dition of  the  land  and  bridges  was  such  as  to  constitute  them  a  kind 
of  trap.  I  cannot  accede  to  that.  The  persons  who  used  the  way  took 
it  with  all  its  imperfections. 

Herschell  asked  and  obtained  leave  to  amend  within  ten  days,  on 
payment  of  costs;   otherwise  judgment  for  the  defendants. 

Judgment  accordingly. 


Ch.  1)  NEGLIGENCE  1019 

BRINILSON  V.  CHICAGO  &  N.  W.  RY.  CO.        / 

(Supreme  Court  of  Wisconsin,  1911.     144  Wis.  614,  129  jN\  W    664,  32  L.  B. 

A.  [N.  S.]  359.) 

The  plaintiff's  intestate,  a  boy  of  the  age  of  five  and  a  half  years, 
on  February  22,  1906,  fell  into  a  steam  and  hot  water  pit,  constructed 
by  the  defendant  in  a  breakwater  which  it  maintained  to  protect  its 
property  along  the  shore  of  Lake  Michigan  in  the  city  of  Milwaukee. 
The  boy  was  so  badly  scalded  by  the  steam  and  hot  water  discharged 
into  this  pit  from  the  roundhouse  of  the  defendant  near  by  that  he 
died  on  March  5,  1906.  The  pit  into  which  the  boy  fell  was  in  the  cen- 
ter of  a  crib  in  the  breaku'ater,  was  about  three  feet  in  diameter  at  the 
bottom,  possibly  five  feet  in  diameter  at  the  top,  and  six  or  seven  feet 
deep.  In  the  previous  October  the  defendant  had  removed  the  stone 
from  the  crib  so  as  to  form  the  pit  above  described  and  had  laid  an 
underground  conduit  from  the  roundhouse  to  the  center  of  the  pit. 
The  pit  was  covered  by  planks  which  were  a  part  of  the  planking  cov- 
ering the  breakwater.  The  child  fell  into  the  pit  through  an  opening 
about  a  foot  wide  and  from  six  to  seven  feet  long  made  by  the  removal 
of  part  of  a  plank  of  that  size  in  the  breakwater  covering.  The  boy 
and  an  older  brother  were  walking  over  part  of  the  breakwater  and 
into  the  railroad  yards,  where  they  looked  for  tin  plates  and  some  col- 
ored glass  thrown  from  the  dining  cars  of  the  defendant.  The  com- 
plaint alleges  that  the  breakwater  was  made  a  pleasant  promenade  by 
being  covered  with  planking,  that  no  obstructions  were  so  placed  as  to 
prevent  its  use  by  the  public,  and  that  the  people  were  not  excluded 
from  walking  upon  it.  It  is  alleged  that  the  death  of  the  boy  was  due 
to  the  negligence  of  the  defendant  in  permitting  a  dangerous  hole  to 
exist  in  the  covering  of  the  pit  in  the  manner  stated,  and  damages  are 
asked  for  the  death  of  the  boy,  thus  caused,  and  for  the  pain  and  suf- 
fering endured  by  him  in  consequence  of  his  injuries  during  his  life- 
time. 

The  evidence  tends  to  show  that  the  defendant's  agents  and  servants 
knew  that  the  public  were  using  the  breakwater  and  the  adjacent 
grounds  for  walking,  fishing,  and  swimming,  but  that  notices  of  "No 
thoroughfare"  were  posted  to  warn  people  off  the  tracks,  and  people, 
boys  particularly,  were  expelled  from  the  tracks.  There  was  evidence 
that  the  hole  m  the  planking  on  the  breakwater  had  existed  for  some 
weeks  before  and  up  to  the  time  of  the  accident,  and  that  it  was  a  dan- 
gerous trap  to  persons  walking  on  the  breakwater.  There  was  evi- 
dence tending  to  show  that  this  opening  was  difficult  to  see  because 
of  the  steam  arising  from  the  hole  and  from  the  cracks  between  the 
other  planks,  and  because  of  the  conditions  surrounding  it.  The  jury 
found  that  the  defendant  was  negligent  and  that  it  caused  the  injury, 
and  awarded  damages.  This  is  an  appeal  from  the  judgment  on  the 
verdict  in  plaintiff's  favor. 


1020  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

SiEBECKER,  J.  *  *  *  It  is  undisputed  that  the  appellant  main- 
tained a  breakwater  at  the  place  designated  to  protect  its  grounds  from 
the  action  of  the  waters  of  the  lake ;  that  it  had  filled  with  earth  the 
area  between  the  breakwater  and  the  dry  land;  and  that  it  used  and 
occupied  this  area  for  railroad  purposes.  As  appears  in  the  above 
statement  of  facts,  the  appellant  had  covered  the  surface  of  the  break- 
water with  planking,  which  formed  a  firm  and  even  walk  or  pathway 
along  and  above  the  waters  of  the  lake,  which  was  used  by  the  public 
as  a  footpath  to  pass  and  repass  over  these  grounds  and  for  walking 
along  the  edge  of  the  lake.  Boys  had  made  a  practice  of  so  using  it 
and  as  a  place  for  boating,  fishing,  and  swimming.  The  evidence  fully 
justified  the  jury  in  finding  that  appellant's  agents  and  servants  knew 
that  the  premises  were  being  so  used.  It  appears  that  there  was  a 
fence  along  the  south  line  of  appellant's  grounds  abutting  on  Polk 
street,  but  the  evidence  is  in  conflict  as  to  whether  or  not  the  fence  ex- 
tended onto  the  breakwater,  and  the  jury  may  well  have  found  that  this 
end  of  the  breakwater  was  unobstructed  and  open  so  that  people  could 
pass  without  interference  in  going  to  and  from  the  street  onto  the  rail- 
road grounds,  and  that  an  open  passageway  over  the  breakwater  was 
thus  afforded  them. 

In  the  light  of  such  facts  and  circumstances,  it  cannot  be  said  that 
persons  who  passed  onto  the  breakwater  and  adjacent  grounds  were 
there  under  such  forbidding  circumstances  as  to  make  them  trespass- 
ers. It  seems  reasonably  clear  that  people  customarily  used  this  place 
as  a  footpath,  and  that  boys  especially  used  it  as  a  place  for  the  pur- 
poses of  boating  and  swimming.  These  uses  of  the  premises  must  be 
held  to  have  been  within  the  knowledge  of  the  railroad's  agents  and 
servants,  and  that  an  implied  permission  existed  which  justified  per- 
sons in  so  using  the  breakwater  and  adjacent  grounds.  Under  these 
circumstances,  the  persons  so  passing  over  this  place  on  these  premises 
cannot  be  considered  trespassers.  They  must  be  considered  as  having 
entered  onto  the  premises  with  the  implied  permission  of  the  railroad 
company  for  the  customary  purposes.  The  license  to  so  use  the  prem- 
ises implies  permission  to  so  use  them,  and  the  railroad  company  can- 
not now  be  heard  to  charge  that  such  use  constitutes  a  trespass.  Un- 
der these  circumstances,  persons  making  such  customary  use  of  the 
premises  are  licensees.  The  evidence  sustains  the  claim  that  the  dece- 
dent at  the  time  of  injury  was  using  this  place  in  the  customary  way, 
namely,  as  a  footpath  in  passing  over  the  breakwater,  and  his  relation 
to  the  railroad  comj^any  was  that  of  its  licensee.  See  Hupfer  v.  Na- 
tional D.  Co.,  114  Wis.  279,  90  N.  W  191;  Gorr  v  Mittlestaedt,  96 
Wis.  296,  71  N.  W.  656;  Muench  v.  Heinemann,  119  Wis.  441,  96  N. 
W.  800.  With  this  relation  existing  between  the  appellant  and  the  de- 
cedent, the  legal  duty  devolving  on  the  company  is  as  recognized  and 
declared  in  the  Muench  Case  that  a  licensee  must  be  deemed  to  take  the 
premises  as  he  finds  them,  "and  the  licensor  owes  him  no  duty,  save  to 


Ch.  1)  NEGLIGENCE  1021 

refrain  from  acts  of  active  negligence  rendering  the  premises  danger- 


ous." 


The  case  of  Klix,  Adm'r,  etc.,  v.  Nieman,  68  Wis.  271,  32  N.  W. 
223,  60  Am.  Rep.  854,  is  not  at  variance  with  this  rule.  The  facts  of 
that  case  show  that  the  danger  complained  of  was  one  connected  with 
an  unfenced  natural  pond  on  a  private  lot,  but  so  remote  from  the  street 
and  sidewalk  as  not  to  make  their  use  dangerous;  nor  was  it  shown 
that  the  owner  had  done  anything  to  this  pond  to  create  a  pitfall  or 
snare  liable  to  injure  persons  going  onto  the  lot.  In  the  instant  case 
the  facts  are  different,  in  that  the  alleged  dangerous  condition  was  cre- 
ated by  the  company,  and  the  question  is  whether  or  not,  in  view  of 
the  fact  that  the  company  knew  or  ought  to  have  known  that  both 
adults  and  children  were  resorting  to  and  using  the  place  for  travel 
and  amusement,  the  omission  to  keep  the  pit  covered  created  a  danger 
likely  to  cause  injury  to  persons  so  using  the  premises  with  ordinary 
care.  That  the  opening  or  hole  in  the  cover  of  the  steam  pit  as  de- 
scribed in  the  evidence  was  dangerous  seems  self-evident  from  its  very 
nature  and  condition.  It  is  also  clear  that  the  hole  in  the  planking  that 
covered  the  excavation  was  not  readily  observed,  and  was  obscured  by 
the  steam  rising  therefrom  through  this  hole  and  the  cracks  between 
the  planks  covering  the  pit.  This  condition  of  the  place  made  the  pit 
a  dangerous  trap  or  pitfall  to  persons  on  the  premises,  and  the  omission 
to  observe  and  repair  the  planking  constitutes  active  negligence  on  the 
part  of  the  railroad  toward  them. 

It  is  contended  that  it  is  not  shown  that  the  company  was  negligent 
in  permitting  this  hole  to  exist,  because  it  had  no  notice  or  knowledge 
thereof  prior  to  the  day  of  the  accident.  The  evidence  discloses  that 
a  hole  had  been  observed  by  various  persons  two  or  three  months,  one 
month,  two  weeks,  and  on  the  day  before  the  accident.  These  evi- 
dentiary facts  furnish  a  sufficient  basis  for  the  conclusion  of  the  jury 
that  the  railroad  company  was  guilty  of  a  want  of  ordinary  care  in  fail- 
ing to  discover  the  hole  in  the  plank  covering  over  the  steam  pit  and  in 
neglecting  to  repair  it  before  the  time  of  the  accident. 

It  is  probable  that  the  decedent  had  not  observed  the  hole.  His  con- 
duct in  this  respect  must  be  viewed  in  the  light  of  his  age  and  the  sur- 
rounding conditions,  and  of  the  danger,  and,  when  so  considered,  it 
cannot  be  held  as  matter  of  law  to  show  that  he  was  guilty  of  contrib- 
utory negligence  in  producing  the  injuries  complained  of.  Cases  illus- 
trating the  principles  and  grounds  of  liability  under  the  circumstances 
disclosed  here  are:  Kinchlow  v.  Midland  Elevator  Co.,  57  Kan.  374, 
46  Pac.  703;  Penso  v.  McCormick,  125  Ind.  116,  25  N.  E.  156,  9  L.  R. 
A.  313,  21  Am.  St.  Rep.  211 ;  Railway  Co.  v.  McDonald,  152  U.  S.  262, 
14  Sup.  Ct.  619,  38  L.  Ed.  434.  We  find  no  reversible  error  in  the 
record. 

Judgment  affirmed.®** 

«o  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


1022  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

HARRIS  V.  PERRY  &  CO. 

(In  the  Court  of  Appeal.     [1903]  2  K.  B.  219.) 

The  action  was  brought  to  recover  damages  for  personal  injuries 
alleged  to  be  due  to  the  defendant's  negligence.  The  trial  resulted 
in  a  verdict  of  f  150,  and  judgment  for  that  amount  was  entered  for 
the  plaintiff.     The  defendant  appealed. 

Collins,  M.  R.,  read  the  following  judgment: 

This  is  a  motion  by  the  defendant  for  judgment  or  a  new  trial 
in  a  case  tried  before  Wills,  J.,  and  a  special  jury.  The  action  was 
brought  for  personal  injuries  occasioned  by  the  negligence  of  the 
defendant.  The  jury  answered  certain  questions  submitted  to  them 
by  the  learned  judge,  and  upon  their  answers  he  entered  judgment 
for  the  plaintiff  with  damages. 

The  plaintiff  was  one  of  the  inspectors  appointed  by  the  engineer 
for  the  tube  railway  which  is  now  in  course  of  construction  from 
Waterloo  to  Baker  Street.  At  the  time  in  question  the  tube  had  been 
completed  from  Waterloo  up  to  the  neighbourhood  of  Baker  Street, 
where  the  work  of  excavation  was  still  going  on.  The  defendant, 
who  trades  under  the  name  of  Perry  &  Co.,  was  the  contractor  for 
the  making  of  a  portion  of  the  tube  and  railway,  and  was  engaged 
in  carrying  out  the  work  of  excavation  at  Baker  Street.  For  the 
purpose  of  the  works  he  had  laid  a  temporary  contractor's  railway 
from  Waterloo  up  to  the  point  where  the  work  of  excavation  was 
going  on,  and  he  employed  in  the  works  a  small  electric  locomotive, 
whose  function  was  to  draw  the  excavated  material  from  the  works 
down  to  a  shaft  in  the  neighbourhood  of  Charing  Cross,  through 
which  the  excavated  matter  had  to  be  passed  up  to  the  surface.  This 
locomotive  was  not  fitted  or  intended  for  the  carriage  of  passengers. 
It  was  worked  by  a  driver,  accompanied  by  a  person  whose  name  was 
Thacker,  and  who  filled  the  function  of  a  guard,  or  "rope-runner," 
as  he  is  described  in  the  evidence.  For  the  purpose  of  enabling  the 
work  of  inspection  to  be  carried  on  the  contractors  had  placed  a 
wooden  platform  all  along  one  side  of  the  tunnel,  and  on  the  day  in 
question  the  plaintiff,  who  had  been  engaged  in  inspecting,  was  pro- 
ceeding along  this  platform  in  the  direction  of  Waterloo.  In  the 
neighbourhood  of  Charing  Cross  he  was  overtaken  by  the  locomotive ; 
and  one  Shaw,  a  timekeeper  in  the  defendant's  service,  who  was  riding 
thereon,  inquired  where  he  was  going,  and  proposed  that  he  should 
ride  with  him  on  the  locomotive  to  his  destination.  There  was  on 
the  locomotive,  in  addition  to  the  driver,  the  guard  Thacker,  and  Shaw, 
one  other  person,  so  that  the  plaintiff  made  the  fifth  person  on  an 
engine  which,  as  I  have  said,  was  designed  for  the  purpose  of  trac- 
tion of  materials  only.  The  plaintiff  got  upon  the  engine,  which 
proceeded  in  the  direction  of  Waterloo.  After  it  had  gone  about 
one  hundred  yards  it  came  in  contact  with  a  truck  which  was  stand- 


Ch.  1)  NEGLIGENCE  1023 

ing  on  the  rails,  and  had  upon  it  rails  which  had  been  taken  up  for 
the  purpose  of  repairs  on  the  Hne  between  Charing  Cross  and  Water- 
loo, and  the  plaintiff  sustained  serious  injuries,  for  which  he  has 
brought  this  action.  There  were  lights  along  the  tunnel  at  intervals 
of  about  twenty-five  yards. 

The  defendant  contended  that  he  was  under  no  liability  to  the 
plaintiff",  on  the  ground  that  the  plaintiff  had  got  upon  the  engine 
without  any  permission  from  him,  and  that  he  was  there  at  his  own 
risk  only  and  could  not  hold  the  defendant  responsible  for  damage, 
the  risk  of  which  he  must  be  taken  to  have  accepted  himself.  It  was 
proved  that  the  proper  business  of  the  engine  at  the  time  of  the  ac- 
cident was  to  draw  the  material  and  trucks  between  Baker  Street  and 
Charing  Cross  only,  and  that  it  should  not  have  been  used  at  all 
upon  the  part  of  the  line  between  Charing  Cross  and  Waterloo,  which 
was,  in  fact,  at  that  time  undergoing  repairs.  There  was  evidence 
that  the  defendant  had  only  visited  the  line  himself  on  one  or  two 
occasions,  and  that  he  had  expressly  forbidden  any  person,  other 
than  the  driver  and  guard,  to  travel  upon  the  locomotive ;  but  it 
was  proved  that  the  defendant's  workmen  and  others  were  in  the 
habit,  notwithstanding  this  prohibition,  of  frequently  riding  upon  it. 
The  defendant  had  a  representative  called  Rowell,  whose  business 
it  w^as  to  supervise  generally  the  underground  works  which  were 
being  carried  out  by  the  defendant.  There  was  evidence,  from  which 
an  inference  might  be  drawn,  that  Rowell  sanctioned  the  use  of  the 
locomotive  by  the  superior  officers  of  the  contractor,  of  whom  Shaw 
was  one,  for  the  purpose  of  transit  along  the  line,  and  further,  that 
he  knew  that  those  officers  invited  the  officers  of  the  company  to  travel 
with  tliem. 

The  learned  judge  left  to  the  jury  three  questions: 

(1)  Was  the  plaintiff  on  tlie  engine  with  the  permission  of  Rowell?  (2) 
Was  he  there  for  his  own  convenience  or  for  the  benefit  of  the  defendant? 
(3)  Was  the  accident  due  to  the  negligence  of  the  defendant's  servant.^?  The 
jury  answered  the  first  and  third  questions  in  the  afBrmative,  and  to  the 
second  they  answered,  "For  his  own  convenience." 

Without  admitting  that  the  finding  that  the  plaintiff  was  a  licensee 
was  supported  by  the  evidence,  Mr.  Bray,  for  the  defendant,  insisted 
that  inasmuch  as  the  plaintiff  was  at  most  a  bare  licensee,  there  was 
no  evidence  that  the  defendant  had  in  any  way  fallen  short  of  his 
duty  to  him  as  such  so  as  to  justify  a  finding  of  negligence  causing 
the  accident.  I  was  very  much  impressed  by  this  argument  at  the 
hearing,  and  was  at  one  time  disposed  to  think  that  the  plaintiff",  for 
whom  a  platform  had  been  provided  as  the  proper  means  of  locomo- 
tion for  purposes  of  inspection  in  the  tunnel,  in  riding  on  the  engine 
merely  for  his  own  convenience  must  be  taken  to  have  accepted  all 
risks  incident  thereto.  I  must  deal  with  the  case,  however,  on  the 
footings  of  the  findings  of  the  jury,  unless  there  was  no  reasonable 


1024  TORTS   THROUGH   ACTS   OF   CONDITIONAL  LIABILITY  (Part  3 

evidence  upon  which  they  could  be  supported.     It  was  urged  that, 
the  plaintiff  being  a  bare  licensee,  there  was  no  higher  duty  imposed 
upon  the  defendant  than  that  he  should  not  set  a  trap  for  the  plain- 
tiff, as  laid  down  by  the  late  Willes,  J.,  in  his  memorable  judgment 
in  Gautret  v.  Egerton,  L.  R.  2  C.  P.  371 ;   that  there  was  in  this  case 
no  evidence  of  anything  of  the  kind ;   that  the  plaintiff  himself  ought 
to  have  known  that  the  line  was  subject  to  repair,  and  that  in  leaving 
the  truck  and  rails  where  they  were  the   defendant's  servants  had 
acted  quite  reasonably,  inasmuch  as  they  had  no  reason  to  anticipate 
that  the  engine   which  they  knew  was   employed   elsewhere   on  that 
day  would  travel  over  that  part  of  the  line,  and  that  they  were  in 
fact  merely  availing  themselves  of  a  proper  opportunity  of  carrying 
out  repairs  which  were  necessarily  frequent  on  a  temporary  line  of 
the  nature  described.     Wills,  J.,  in  his  summing-up,  gave  the  defend- 
ant the  benefit  of  this  latter  contention,  and  pointed  the  attention  of 
the  jury  to  the  circumstances  under  which  the  engine  was  allowed 
by  those  on  it  to  proceed,  as  it  had  done,  to  the  place  where  the 
accident  occurred.    I  am  unable  to  discover  any  flaw  whatever  in  the 
summing-up.     I  think  the  learned  judge,  in  his  analysis  of  the  evi- 
dence, put  the  facts  quite  as  favourably   for  the  defendant  as  they 
were  capable  of  being  put;  and  his  exposition  of  the  law  leaves  noth- 
ing to  be  desired.     He  suggested  that  the  measure  of  duty  towards 
a  bare  licensee  is  different,  where  the  licensor  accepts  the  duty  of 
carrying  him,  from  what  it  is  where  he  merely  permits  him  to  pass 
through  his  premises ;    and  I  think  the  cases  support  this  view.     But 
there  is  evidence  in  this  case  that  Thacker  was  the  person  from  whom 
the  driver  of  the  locomotive  was  bound  to  take  his  orders,  and  that 
Thacker  was  aware  of  the  fact  that  the  line  had  been  taken  up  and 
was  under  repair  between   Charing  Cross  and   Waterloo,   and   that 
he  did  not  impart  this  fact  to  the  plaintiff  or  the  other  occupants  of 
the  engine,  probably  having  forgotten  it  for  the  moment  himself.     I 
think,  therefore,  that,  even  if  the  standard  of  liability  were  the  same 
as  it  would  have  been  to  a  bare  licensee  merely  walking  across  the 
defendant's  land,  there  was  evidence  upon  which  the  jury  might  have 
found  that  a  trap  within  the  meaning  of  the   authorities  had  been 
set  for  the  plaintiff.     See  Corby  v.  ITill,  4  C.  B.  (N.  S.)  556.    At  all 
events,  I  think  it  was  competent  for  the  jury  to  find,  as  they  must 
be  taken  to   have   found,   a   failure  of   that  ordinary   care   which   is 
due  from  a  person  who   undertakes  the  carriage  of   another  gratu- 
itously.    The  principle  in  all  cases  of  this  class  is  that  the  care  exer- 
cised must  be  reasonable ;  and  the  standard  of  reasonableness  natural- 
ly must  vary  according  to  the  circumstances  of  the  case,  the  trust 
reposed,  and  the  skill  and  appliances  at  the  disposal  of  the  person  to 
whom  another  confides  a  duty.     There  is  an  obvious  difference  be- 
tween the  measure  of  confidence  reposed  and  responsibility  accepted 
in  the  case  of  a  person  who  merely  receives  permission  to  traverse 


Ch.  1)  NEGLIGENCE  1025 

the  premises  of  another,  and  in  the  case  where  a  person  or  his  prop- 
erty is  received  into  the  custody  of  another  for  transportation.  See 
in  the  case  of  goods,  Southcote's  Case,  (1601)  4  Rep.  83  b,  cited  in 
Coggs  V.  Bernard,  1  Sm.  L.  C.  (11th  Ed.)  p.  173,  and  the  notes  there- 
to. In  the  case  of  persons  received  for  carriage,  Parke,  B.,  says  in 
Lygo  V.  Newbold,  (1854)  9  Ex.  302,  at  p.  305:  "A  person  who 
undertakes  to  provide  for  the  conveyance  of  another,  although  he 
does  so  gratuitously,  is  bound  to  exercise  due  and  reasonable  care." 
In  Austin  v.  Great  Western  Ry.  Co.,  (1867)  L.  R.  2  Q.  B.  442,  at  p. 
445,  Blackburn,  J.,  says :  "I  think  that  what  was  said  in  the  case 
of  Marshall  v.  York,  Newcastle  and  Berwick  Ry.  Co.,  (1851)  11  C. 
B.  655,  was  quite  correct.  It  was  there  laid  down  that  the  right  which 
a  passenger  by  railway  has  to  be  carried  safely  does  not  depend  on 
his  having  made  a  contract,  but  that  the  fact  of  his  being  a  passenger 
casts  a  duty  on  the  company  to  carry  him  safely."  It  seems  to  me 
that  these  authorities  imply  a  larger  obligation  than  that  of  merely 
not  setting  a  trap:  see  also,  per  Baggallay,  L.  J.,  Foulkes  v.  Metro- 
politan District  Ry.  Co.,  (1880)  5  C.  P.  D.  157,  at  p.  165.  The  whole 
subject  will  be  found  exhaustively  treated  with  reference  to  the 
English  and  American  authorities  in  Mr.  Beven's  valuable  work  on 
Negligence  in  Law  (2d  Bd.)  vol.  2,  pp.  1154  et  seq.  The  defendant, 
therefore,  through  Rowell,  must  be  taken  to  have  constructively  per- 
mitted the  plaintiff  to  travel  on  the  engine.  There  was  certainly 
evidence  fit  for  the  consideration  of  the  jury  on  this  point.  And 
there  was  evidence  of  such  a  failure  of  due  care  on  the  part  of  the 
defendant's  servants  as  to  render  the  defendant  responsible  to  the 
plaintiff*  for  the  damage  arising  therefrom. 

I  am  of  opinion  that  the  appeal  must  be  dismissed. 

I  have  to  add  that  Stirling,  L.  J.,  and  Mathdw,  L.  J.,  concur  in 
the  judgment  that  I  have  read. 

Appeal  dismissed.®^ 

61  Compare:  Grimsbaw  v.  Lake  Shore  Ry.  Co.  (1912)  205  N.  Y.  371,  98 
N.  E.  762,  40  L.  R.  A.  (N.  S.)  563,  Anu.  Cas.  1913E,  571:  (P.  was  riding  upon 
the  locomotive  of  a  Wabash  freiglit  train,  with  the  consent  of  those  in  charge 
but  against  a  rule  of  the  Wabash  Company,  of  which  rule,  however,  P.  had 
no  knowledge.  At  an  intersecting  track  a  Lake  Shore  freight  train  negligently 
struck  the  Wabash  train  and  P.  was  killed  in  the  collision.  Held,  that  P.  was 
a  licensee  on  the  train  and  as  such  had  a  right,  as  against  the  Wabash  Com- 
pany, and  therefore  as  against  the  Lake  Shore  Company,  to  the  exercise  of 
ordinary  care  on  its  part  not  to  injure  him.) 

Hepb. Torts — 65 


1026  TOUTS   THKOUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

(C)  Duty  of  Care  Tozcards  an  Invitee 

INDERMAUR  v.  DAMES. 

(Court  of  Common  Tloas,  H.  T.  1S66.     L.  R.  1  C.  P.  274.     In  the  Exchequer 
Chamber,  H.  T.  1S67.     L.  R.  2  C.  P.  311.) 

The  judgment  of  the  Court  [of  Common  Pleas]  *'-  was  deHvered  by 

WiLLES,  J.  This  was  an  action  to  recover  damages  for  hurt  sus- 
tained by  the  plaintiff's  falling  down  a  shaft  at  the  defendant's  place 
of  business,  through  the  actionable  negligence,  as  it  was  alleged,  of  the 
defendant  and  his  servants. 

At  the  trial  before  the  Lord  Chief  Justice  "^  at  the  sittings  here  after 
Michaelmas  Term,  the  plaintiff'  had  a  verdict  for  400/.  damages,  sub- 
ject to  leave  reserved. 

A  rule  was  obtained  by  the  defendant  in  last  term  to  enter  a  nonsuit, 
or  to  arrest  the  judgment,  or  for  a  new  trial  because  of  the  verdict  be- 
ing against  the  evidence.  The  rule  was  argued  during  the  last  term, 
before  Erie,  C.  J.,  Keating  and  Montague  Smith,  JJ.,  and  myself,  when 
we  took  time  to  consider.  We  are  now  of  opinion  that  the  rule  ought 
to  be  discharged. 

It  appears  that  the  defendant  was  a  sugar-refiner,  at  whose  place  of 
business  there  was  a  shaft  four  feet  three  inches  square,  and  twenty- 
nine  feet  three  inches  deep,  used  for  moving  sugar.  The  shaft  was  nec- 
essary, usual,  and  proper  in  the  way  of  the  defendant's  business. 
Whilst  it  was  in  use,  it  was  necessary  and  proper  that  it  should  be 
open  and  unfenced.  When  it  was  not  in  use,  it  was  sometimes  neces- 
sary, with  reference  to  ventilation,  that  it  should  be  open.  It  was  not 
necessary  that  it  should,  when  not  in  use,  be  unfenced ;  and  it  might 
then  without  injury  to  the  business  have  been  fenced  by  a  rail.  Wheth- 
er it  was  usual  to  fence  similar  shafts  when  not  in  use  did  not  dis- 
tinctly appear;  nor  is  it  very  material,  because  such  protection  was 
unquestionably  proper,  in  the  sense  of  reasonable,  with  reference  to 
the  safety  of  persons  having  a   right  to  move  about  upon  the  floor 

62  Erie,  C.  J.,  and  Willes,  Keating,  and  Montague  Smith,  ,T.T. 

83  Tliat  is,  Lord  Chief  Justice  Erie,  at  the  sittinj,'.s  in  Middlesex.  In  his 
summing  up,  Erie,  C.  J.,  liad  remarked  as  follows:  "The  plaintiff  has  to 
establish  that  there  was  negligence  on  the  part  of  the  defendant;  that  the 
premises  of  the  defendant,  to  which  he  was  sent  in  the  course  of  liis  business 
as  a  gas-fitter,  were  in  a  dangerous  state;  and  that,  as  between  hlmsi>lf 
and  tile  defendant,  there  was  a  want  of  due  and  proper  prei-iution  in  re- 
spect to  the  hule  in  the  tlooi-.  To  my  mind,  there  would  not  be  the  least  symp- 
tom of  want  of  due  care  as  l)etweeu  the  defendant  and  a  person  [permanent- 
ly] employed  on  his  premises,  because  the  sugar  baking  business  requires  a 
lift  on  the  premises,  wbich  must  be  as  well  known  to  the  persons  enq)b)yod 
tlieiv  as  the  top  of  a  staii'case  in  every  dwelling  house.  But  tbat  wliich 
may  be  no  negligence  towards  men  ordinarily  enq)l()yed  upon  the  i»reniises, 
may  be  negligence  towards  strangers  lawfully  coming  upon  the  premises,  in 
the  course  of  their  business." 


Ch.  1)  NEGLIGENCE  1027 

where  the  shaft  in  fact  was,  because  in  its  nature  it  formed  a  pitfall 
there.  At  the  time  of  the  accident  it  was  not  in  use,  and  it  was  open 
and  unfenced. 

The  plaintiff  was  a  journeyman  gas-fitter  in  the  employ  of  a  patentee 
who  had  supplied  the  defendant  with  his  patent  gas-regulator,  to  be 
paid  for  upon  the  terms  that  it  effected  a  certain  saving:  and,  for  the 
purpose  of  ascertaining  whether  such  a  saving  had  been  effected,  the 
plaintiff's  employer  was  required  to  test  the  action  of  the  regulator. 
He  accordingly  sent  the  plaintiff  to  the  defendant's  place  of  business 
for  that  purpose ;  and,  whilst  the  plaintiff'  was  engaged  upon  the  floor 
where  the  shaft  was,  he  (under  circumstances  as  to  which  the  evidence 
was  conflicting,  but)  accidentally,  and,  as  the  jury  found,  without  any 
fault  or  negligence  on  his  part,  fell  down  the  shaft,  and  was  seriously 
hurt. 

It  was  argued,  that,  as  the  defendant  had  objected  to  the  plaintiff's 
working  at  the  place  upon  a  former  occasion,  he  (the  plaintiff)  could 
not  be  considered  as  having  been  in  the  place  with  the  defendant's  leave 
at  the  time  of  the  accident :  but  the  evidence  did  not  establish  a  peremp- 
tory or  absolute  objection  to  the  plaintiff's  being  employed,  so  as  to 
make  the  sending  of  him  upon  the  occasion  of  the  accident  any  more 
against  the  defendant's  will  than  the  sending  of  any  other  workman : 
and  the  employment,  and  the  implied  authority  resulting  therefrom 
to  test  the  apparatus,  were  not  of  a  character  involving  personal  pref- 
erence (dilectus  personre),  so'  as  to  make  it  necessary  that  the  patentee 
should  himself  attend.  It  was  not  suggested  that  the  work  was  not 
journeyman's  work. 

It  was  also  argued  that  the  plaintiff  was  at  best  in  the  condition  of 
a  bare  licensee  or  guest  who,  it  was  urged,  is  only  entitled  to  use  the 
place  as  he  finds  it,  and  whose  complaint  may  be  said  to  wear  the 
colour  of  ingratitude,  so  long  as  there  is  no  design  to  injure  him. 
See  Hounsell  v.  Smyth,  7  C.  B.  N.  S.  371. 

We  think  this  argument  fails,  because  the  capacity  in  which  the 
plaintiff  was  there  was  that  of  a  person  on  lawful  business,  in  the 
course  of  fulfilling  a  contract  in  which  both  the  plaintiff  and  the  de- 
fendant had  an  interest,  and  not  upon  bare  permission.  No  sound 
distinction  was  suggested  between  the  case  of  the  servant  and  the 
case  of  the  employer,  if  the  latter  had  thought  proper  to  go  in  person ; 
nor  between  the  case  of  a  person  engaged  in  doing  the  work  for  the 
defendant  pursuant  to  his  employment,  and  that  of  a  person  testing 
the  work  which  he  had  stipulated  with  the  defendant  to  be  paid  for 
if  it  stood  the  test ;  whereby  im])liedly  the  workman  was  to  be  allowed 
an  onstand  to  apply  that  test,  and  a  reasonable  opportunity  of  doing 
so.  Any  duty  to  enable  the  workman  to  do  the  work  in  safety,  seems 
equally  to  exist  during  the  accessory  employment  of  testing:  and  any 
duty  to  provide  for  the  safety  of  the  master  workman,  seems  equally 
owing  to  the  servant  workman  whom  he  may  lawfully  send  in  his 
place. 


1028  TORTS  THROUGH  ACTS  OF  CONDITIONAL   LIABILITY         (Part  3 

It  is  observable  that  in  the  case  of  S'outhcote  v.  Stanley,  1  H.  &  N. 
247,  upon  which  much  reliance  was  properly  placed  for  the  defendant, 
Alderson,  B.,  drew  the  distinction  between  a  bare  licensee  and  a  person 
coming  on  business,  and  Bramwell,  B.,  between  active  negligence  in 
respect  of  unusual  danger  known  to  the  host  and  not  to  the  guest,  and 
a  bare  defect  of  construction  or  repair,  which  the  host  was  only  negli- 
gent in  not  finding  out  or  anticipating  the  consequence  of. 

There  is  a  considerable  resemblance,  though  not  a  strict  analogy,  be- 
tween this  class  of  cases  and  those  founded  upon  the  rule  as  to  volun- 
tary loans  and  gifts,  that  there  is  no  remedy  against  the  lender  or  giver, 
for  damage  sustained  from  the  loan  or  gift,  except  in  case  of  unusual 
danger  known  to  and  concealed  by  the  lender  or  giver:  Macarthy  v, 
Younge,  6  H.  &  N.  329.  The  case  of  the  carboy  of  vitriol  '^^  was  one 
in  which  this  court  held  answerable  the  bailor  of  an  unusually  danger- 
ous chattel,  the  quality  of  which  he  knew,  but  did  not  tell  the  bailee, 
who  did  not  know  it,  and  wdio,  as  a  proximate  consequence  of  his  not 
knowing,  and  without  any  fault  on  his  part,  suffered  damage. 

The  cases  referred  to  as  to  the  liability  for  accidents  to  servants 
and  persons  employed  in  other  capacities  in  a  business  or  profession 
which  necessarily  and  obviously  exposes  them  to  danger,  as  in  Sey- 
mour v.  Maddox,  16  Q.  B.  326,  also  have  their  special  reasons.  The 
servant  or  other  person  so  employed  is  supposed  to  undertake  not  only 
all  the  ordinary  risks  of  the  employment  into  which  he  enters,  but  also 
all  extraordinary  risks  which  he  knows  of  and  thinks  proper  to  incur, 
including  those  caused  by  the  misconduct  of  his  fellow-servants,  not 
however  including  those  which  can  be  traced  to  mere  breach  of  duty 
on  the  part  of  the  master.  In  the  case  of  a  statutory  duty  to  fence, 
even  the  knowledge  and  reluctant  submission  of  the  servant  who  has 
sustained  an  injury,  are  held  to  be  only  elements  in  determining  wheth- 
er there  has  been  contributory  negligence :  how  far  this  is  the  law  be- 
tween master  and  servant,  where  there  is  danger  known  to  the  servant, 
and  no  statute  for  his  protection,  we  need  not  now  consider,  because 
the  plaintiff  in  this  case  was  not  a  servant  of  the  defendant,  but  the 
servant  of  the  patentee.  The  question  was  adverted  to,  but  not  decid- 
ed, in  Clarke  v.  Holmes,  7  H.  &  N.  937. 

The  authorities  respecting  guests  and  other  bare  licensees,  and  those 
respecting  servants  and  others  who  consent  to  incur  a  risk,  being  there- 
fore inapplicable,  we  are  to  consider  what  is  the  law  as  to  the  duty  of 
the  occupier  of  a  building  with  reference  to  persons  resorting  thereto 
in  the  course  of  business,  upon  his  invitation,  express  or  implied.  The 
common  case  is  that  of  a  customer  in  a  shop:  but  it  is  obvious  that  this 
is  only  one  of  a  class ;  for,  whether  the  customer  is  actually  chaffering 
at  the  time,  or  actually  buys  or  not,  he  is,  according  to  an  undoubted 

e*  Farrant  v.  Barnes  (1862)  11  C.  B.  N.  S.  553,  142  Reprint  912,  132  R.  R. 
667:  (The  defendant  delivered  to  a  carrier  a  carboy  of  nitric  acid,  witliout 
informing  him  of  the  dangerous  nature  of  its  contents.  For  the  bearings  of 
the  doctrine  see  Salmond  on  Turt.s  (2d  Ed.)  pp.  375,  376.) 


Ch.  1)  NEGLIGENCE  1029 

course  of  authority  and  practice,  entitled  to  the  exercise  of  reasonable 
care  by  the  occupier  to  prevent  damage  from  unusual  danger,  of  which 
the  occupier  knows  or  ought  to  know,  such  as  a  trap-door  left  open,  un- 
fenced,  and  unlighted :  Lancaster  Canal  Company  v.  Parnaby,  11  Ad. 
&  E.  223  ;  per  cur.  Chapman  v.  Rothwell,  E.  B.  &  E.  168,  where  South- 
cote  V.  Stanley,**^  was  cited,  and  the  Lord  Chief  Justice,  then  Erie,  J., 
said :  "The  distinction  is  between  the  case  of  a  visitor  (as  the  plaintiff 
was  in  Southcote  v.  Stanley),  who  must  take  care  of  himself,  and  a 
customer,  who,  as  one  of  the  public,  is  invited  for  the  purposes  of  busi- 
ness carried  on  by  the  defendant."  This  protection  does  not  depend 
upon  the  fact  of  a  contract  being  entered  into  in  the  way  of  the  shop- 
keeper's business  during  the  stay  of  the  customer,  but  upon  the  fact 
that  the  customer  has  come  into  the  shop  in  pursuance  of  a  tacit  invita- 
tion given  by  the  shopkeeper,  with  a  view  to  business  which  concerns 
himself.  And,  if  a  customer  were,  after  buying  goods,  to  go  back  to 
the  shop  in  order  to  complain  of  the  quality,  or  that  the  change  was 
not  right,  he  would  be  just  as  much  there  upon  business  which  con- 
cerned the  shopkeeper,  and  as  much  entitled  to  protection  during  this 
accessory  visit,  though  it  might  not  be  for  the  shopkeeper's  benefit,  as 
during  the  principal  visit,  which  was.  And  if,  instead  of  going  him- 
self, the  customer  were  to  send  his  servant,  the  servant  would  be  en- 
titled to  the  same  consideration  as  the  master. 

The  class  to  which  the  customer  belongs  includes  persons  who  go 
not  as  mere  volunteers,  or  licensees,  or  guests,  or  servants,  or  persons 
whose  employment  is  such  that  danger  may  be  considered  as  bargined 
for,  but  who  go  upon  business  which  concerns  the  occupier,  and  upon 
his  invitation,  express  or  implied. 

And,  with  respect  to  such  a  visitor  at  least,  we  consider  it  settled 
law  that  he,  using  reasonable  care  on  his  part  for  his  own  safety,  is 
entitled  to  expect  that  the  occupier  shall  on  his  part  use  reasonable 
care  to  prevent  damage  from  unusual  danger,  which  he  knows,  or 
ought  to  know ;  and  that,  where  there  is  evidence  of  neglect,  the  ques- 
tion whether  such  reasonable  care  has  been  taken,  by  notice,  lighting, 
guarding,  or  otherwise,  and  whether  there  was  contributory  negligence 
in  the  sufferer,  must  be  determined  by  a  jury  as  matter  of  fact. 

In  the  case  of  Wilkinson  v.  Fairrie,  1  H.  &  C.  633,  rehed  upon  for 
the  defendant,  the  distinction  was  pointed  out  between  ordinary  acci- 
dents, such  as  falling  down  stairs,  which  ought  to  be  imputed  to  the 
carelessness  or  misfortune  of  the  sufferer,  and  accidents  from  unusual, 
covert  danger,  such  as  that  of  falling  down  into  a  pit. 

65  1  H.  &  N.  247  (ISOG)  lOS  R.  R.  .549.  "Whether  the  invited  private  guest  is 
to  be  classed  with  licensees  or  with  invited  persons  is  a  question  upon  which 
jiulicial  opinion  is  somewhat  at  variance.  In  England  it  is  well  settled  that 
he  is  a  licensee  (Southcote  v.  Stanley).  This,  it  is  submitted  is  the  true  doc- 
trine, whenever  he  is  enjoying  gratuitous  hospitality.  In  some  of  our  juris- 
dictions, however,  there  is  a  disposition  to  work  out  a  species  of  estoppel 
against  even  a  private  host."  Francis  M.  Burdick,  Law  of  Torts  (3d  Ed.)  517, 
518,  and  cases  there  cited. 


1030  TORTS   THROUGH   ACTS   OF   CONDITIONAL  LIABILITY  (Part  3 

It  was  ably  insisted  for  the  defendant  that  he  could  only  be  bound 
to  keep  his  place  of  business  in  the  same  condition  as  other  places  of 
business  of  the  like  kind,  according  to  the  best  known  mode  of  con- 
struction. And  this  argument  seems  conclusive  to  prove  that  there  was 
no  absolute  duty  to  prevent  danger,  but  only  a  duty  to  make  the  place 
as  little  dangerous  as  such  a  place  could  reasonably  be,  having  regard 
to  the  contrivances  necessarily  used  in  carrying  on  the  business.  But 
we  think  the  argimient  is  inapplicable  to  the  facts  of  this  case ;  first, 
because  it  was  not  shown,  and  probably  could  not  be,  that  there  was 
any  usa^  never  to  fence  shafts ;  secondly,  because  it  was  proved,  that, 
when  the  shaft  was  not  in  use,  a  fence  might  be  resorted  to  without  in- 
convenience :  and  no  usage  could  establish,  that  what  was  in  fact  un- 
necessarily dangerous  was  in  law  reasonably  safe,  as  against  persons 
towards  whom  there  was  a  duty  to  be  careful. 

Having  fully  considered  the  notes  of  the  Lord  Chief  Justice,  we 
think  there  was  evidence  for  the  jury  that  the  plaintiff  was  in  the  place 
by  the  tacit  invitation  of  the  defendant,  upon  business  in  which  he 
was  concerned ;  that  there  was  by  reason  of  the  shaft  unusual  danger, 
known  to  the  defendant;  and  that  the  plaintiff  sustained  damage  by 
reason  of  that  danger,  and  of  the  neglect  of  the  defendant  and  his 
servants  to  use  reasonably  sufficient  means  to  avert  or  warn  him 
of  it ;  and  we  cannot  say  that  the  proof  of  contributory  negligence  was 
so  clear  that  we  ought  on  this  ground  to  set  aside  the  verdict  of  the 
jury. 

As  for  the  argument  that  the  plaintiff  contributed  to  the  accident  by 
not  following  his  guide,  the  answer  may  be  that  the  guide,  knowing  the 
place,  ought  rather  to  have  waited  for  him ;  and  this  point,  as  matter 
of  fact,  is  set  at  rest  by  the  verdict. 

For  these  reasons,  we  think  there  was  evidence  of  a  cause  of  action 
in  respect  of  which  the  jury  were  properly  directed;  and,  as  every 
reservation  of  leave  to  enter  a  nonsuit  carries  with  it  an  implied  con- 
dition that  the  Court  may  amend,  if  necessary,  in  such  a  manner  as  to 
raise  the  real  question,  leave  ought  to  be  given  to  the  plaintiff,  in  the 
event  of  the  defendant  desiring  to  appeal  or  to  bring  a  writ  of  error, 
to  amend  the  declaration  by  stating  the  facts  as  proved, — in  effect, 
that  the  defendant  was  the  occupier  of  and  carried  on  business  at 
the  place ;  that  there  was  a  shaft,  very  dangerous  to  persons  in  the 
place,  which  the  defendant  knew  and  the  plaintiff  did  not  know ;  that 
the  plaintiff',  by  invitation  and  permission  of  the  defendant,  was  near 
the  shaft,  upon  business  of  the  defendant,  in  the  way  of  his  own  craft 
as  a  gas-fitter,  for  hire,  &c.,  stating  the  circumstances,  the  negligence, 
and  that  by  reason  thereof  the  plaintiff  was  injured.  The  details  of 
the  amendment  can,  if  necessary,  be  settled  at  chambers.  *  *  * 
Rule  discharged. 

Against  this  decision  of  the  Court  of  Common  Pleas,  the  defendant 
appealed. 


Ch.  1)  NEGLIGENX'B  1031 

[In  the  Exchequer  Chamber.] 

Kelly,  C.  B.  *  *  *  The  question  has  been  raised  whether  the 
plaintiff  at  the  time  of  the  accident  and  under  the  special  circumstances 
of  the  case,  was  more  than  a  mere  volunteer.  Let  us  see  what  the 
case  really  was.  The  work  had  been  done  on  Saturday,  and  at  the  con- 
clusion of  it  an  appointment  was  made  for  the  plaintiff's  employer  or 
some  other  workman  to  come  on  the  following  Tuesday  to  see  if  the 
work  was  in  proper  order,  and  all  the  parts  of  it  acting  rightly.  The 
plaintiff  by  his  master's  directions  went  for  that  purpose,  and  I  own 
I  do  not  see  any  distinction  between  the  case  of  a  w^orkman  going 
upon  the  premises  to  perform  his  employer's  contract,  and  that  of  his 
going  after  the  contract  is  completed,  but  for  a  purpose  incidental  to 
the  contract,  and  so  intimately  connected  with  it,  that  few  contracts 
are  completed  without  a  similar  act  being  done.  The  plaintiff  went 
under  circumstances  such  as  those  last  mentioned,  and  he  comes,  there- 
fore, strictly  within  the  language  used  by  Willes,  J.,  "a.  person  on 
lawful  business  in  the  course  of  fulfilling  a  contract,  in  which  both 
the  plaintiff  and  defendant  have  an  interest." 

What  then  is  the  duty  imposed  by  law  on  the  owner  of  these  prem- 
ises? They  were  used  for  the  purpose  of  a  sugar  refinery,  and  it 
may  very  likely  be  true  that  such  premises  usually  have  holes  in  the 
floors  of  the  different  stories,  and  that  they  are  left  without  any 
fence  or  safeguard  during  the  day  while  the  workpeople,  who  it  may 
well  be  supposed  are  acquainted  with  the  dangerous  character  of  the 
premises,  are  about;  but  if  a  person  occupying  such  premises  enters 
into  a  contract,  in  the  fulfilment  of  which  workmen  must  come  on  the 
premises  who  probably  do  not  know  what  is  usual  in  such  places,  and 
are  unacquainted  with  the  danger  they  are  likely  to  incur,  is  he  not 
bound  either  to  put  up  some  fence  or  safeguard  about  the  hole,  or, 
if  he  does  not,  to  give  such  workmen  a  reasonable  notice  that  they 
must  take  care  and  avoid  the  danger?  I  think  the  law  does  impose 
such  an  obligation  on  him.  That  view  w^as  taken  in  the  judgment  in 
the  court  below,  where  it  is  said :  "With  respect  to  such  a  visitor  at 
least,  we  consider  it  settled  law  that  he,  using  reasonable  care  on  his 
part  for  his  ow^n  safety,  is  entitled  to  expect  that  the  occupier  shall  on 
his  part  use  reasonable  care  to  prevent  damage  from  unusual  danger 
W'hich  he  knows  or  ought  to  know ;  and  that,  when  there  is  evidence 
of  neglect,  the  question  whether  such  reasonable  care  has  been  taken 
by  notice,  lighting,  guarding,  or  otherwise,  and  w^hether  there  was 
such  contributory  negligence  in  the  sufferer,  must  be  determined  by 
a  jury  as  a  matter  of  fact." 

It  was  so  determined  in  this  case,  and  though  I  am  far  from  saying 
that  there  was  not  evidence  that  the  plaintiff  largely  contributed  to  the 
accident  by  his  own  negligence,  yet  that  \\  as  for  the  jury ;  and  I 
think  there  was  clearly  some  evidence  for  them  that   the  defendant 


1032  TORTS  THROUGH  ACTS   OF  CONDITIONAL   LIABILITY         (Part  3 

had  not  used  reasonable  precautions,  and  that  the  judge  therefore 
would  have  been  wrong  if  he  had  nonsuited  the  plaintiff. 

Channell,  B.,  Blackburn,  J,,  Meli^or,  J.,  and  Pigott,  B.,  con- 
curred. 

Judgment  affirmed,^® 


/ 


PLUMMER  V.  DILL. 


(Supreme  Judicial  Court  of  Massachusetts,  1S92.     156  Mass.  426,  31  N.  E. 

12S,  32  Am,  St.  Rep.  463.) 

Tort,  for  personal  injuries  occasioned  to  the  plaintiff  by  striking 
her  head  upon  a  projecting  sign  placed  against  a  post  at  the  outside 
corner  of  the  landing  of  the  defendant's  building.  A  verdict  was  di- 
rected for  the  defendant;   and  the  plaintiff  alleged  exceptions. 

Knowlton,  J.  If  we  assume  that  it  was  the  duty  of  the  defend- 
ant to  keep  the  entrance,  stairway,  and  halls  of  his  building  reason- 
ably safe  for  persons  using  them  on  an  invitation  express  or  implied, 
and  if  we  further  assume  that  he  negligently  permitted  them  to  be 
unsafe,  and  that  his  negligence  caused  the  injury  to  the  plaintiff, 
and  that  she  was  in  the  exercise  of  due  care, — some  of  which  propo- 
sitions are  at  least  questionable, — we  come  to  the  inquiry  whether  the 
plaintiff'  was  a  mere  licensee  in  the  building,  or  was  there  by  the  de- 
fendant's implied  invitation. 

She  did  not  go  there  to  transact  with  any  occupant  of  the  build- 
ing any  kind  of  business  in  which  he  was  engaged,  or  in  the  transac- 
tion of  which  the  building  was  used  or  designed  to  be  used.  She  was 
in  search  of  a  servant ;  and  for  her  own  convenience  she  went  there 
to  inquire  about  a  matter  which  concerned  herself  alone. 

It  has  often  been  held  that  the  owner  of  land  or  a  building,  who  has  it 
in  charge,  is  bound  to  be  careful  and  diligent  in  keeping  it  safe  for  those 
who  come  there  by  his  invitation  express  or  implied,  but  that  he  owes  no 
such  duty  to  those  who  come  there  for  their  own  convenience,  or  as 
mere  licensees.  Sweeny  v.  Old  Colony  &  Newport  Railroad,  10  Allen, 
368,  87  Am.  Dec.  644 ;  Metcalfe  v.  Cunard  Steamship  Co.,  147  Mass.  66, 
16  N.  E.  701;  Gordon  v.  Cummings,  152  Mass.  513,  25  N.  E.  978,  9 
L.  R.  A.  640,  23  Am.  St.  Rep.  846.  One  who  puts  a  building  or  a  part 
of  a  building  to  use  in  a  business,  and  fits  it  up  so  as  to  show  the  use 
to  which  it  is  adapted,  impliedly  invites  all  persons  to  come  there 
whose  coming  is  naturally  incident  to  the  prosecution  of  the  business. 
If  the  place  is  open,  and  there  is  nothing  to  indicate  that  strangers 
are  not  wanted,  he  impliedly  permits  and  licenses  persons  to  come 
there  for  their  own  convenience,  or  to  gratify  their  curiosity.  The 
mere  fact  that  premises  are  fitted  conveniently  for  use  by  the  owner 
or  his  tenants,  and  by  those  who  come  to  transact  such  business  as  is 

6  0  The  statcMnent  of  facts  and  part  of  the  opinions  of  Willes,  J.,  and  Kelly, 
C.  B.,  are  omitted. 


Ch.  1)  NEGLIGENCE  1033 

carried  on  there,  does  not  constitute  an  implied  invitation  to  strangers 
to  come  and  use  the  place  for  purposes  of  their  own.  To  such  persons 
it  gives  no  more  than  an  implied  license  to  come  for  any  proper  pur- 
pose. 

It  is  held  in  England  that  one  who  comes  on  an  express  invitation 
to  enjoy  hospitality  as  a  guest  must  take  the  house  as  he  finds  it;  and 
that  his  right  to  recover  for  an  injury  growing  out  of  dangers  on  the 
premises  is  no  greater  than  that  of  a  mere  licensee.  Southcote  v. 
Stanley,  1  H.  &  N.  247.  The  principle  of  the  decision  seems  to  be 
that  a  guest,  who  is  receiving  the  gratuitous  favors  of  another,  has 
no  such  relation  to  him  as  to  create  a  duty  to  make  the  place  where 
hospitality  is  tendered  safer  or  better  than  it  is.  It  is  well  settled 
there  that  to  come  under  an  implied  invitation,  as  distinguished  from 
a  mere  license,  the  visitor  must  come  for  a  purpose  connected  with 
the  business  in  which  the  occupant  is  engaged,  or  which  he  permits 
to  be  carried  on  there.  There  must  at  least  be  some  mutuality  of 
interest  in  the  subject  to  which  the  visitor's  business  relates,  although 
the  particular  thing  which  is  the  object  of  the  visit  may  not  be  for  the 
benefit  of  the  occupant.  Pollock  on  Torts,  417;  Holmes  v.  North 
Eastern  Railway,  L.  R.  4  Ex.  254;  S.  C.  L.  R.  6  Ex.  123;  White  v. 
France,  2  C.  P.'  D.  30S;    Burchell  v.  Hickisson,  50  L.  J.  Q.  B.  101. 

The  rule  in  regard  to  an  implied  invitation  to  places  of  business 
is  held  with  equal  strictness  in  New  York.  In  Larmore  v.  Crown 
Point  Iron  Co.,  101  N.  Y.  301,  4  N.  E.  752,  54  Am.  St.  Rep.  718,  it 
was  decided  that  a  person,  who  entered  on  the  defendant's  premises 
to  see  if  the  defendant  would  give  him  employment,  was  a  mere 
licensee,  and  that  the  defendant  was  not  liable  to  him  for  an  injury 
caused  by  the  unsafe  condition  of  the  place.  The  diligence  of  counsel 
and  an  extended  examination  of  the  authorities  have  failed  to  bring 
to  our  attention  any  case  in  which  the  owner  or  occupant  of  a  place 
fitted  up  for  ordinary  use  in  business  has  been  held  by  the  condition 
of  his  premises  impliedly  to  invite  persons  to  come  there  for  a  pur- 
pose in  which  the  occupant  had  no  interest,  and  which  had  no  con- 
nection wath  the  business  actually  or  apparently  carried  on  there. 
Precisely  how  far,  under  all  circumstances,  an  implied  invitation  ex- 
tends, in  reference  to  the  persons  to  be  included  in  it,  has  not  been 
the  subject  of  very  full  consideration  in  this  Commonwealth,  and  is 
hardly  capable  of  exact  statement.  But  in  many  cases  there  is  lan- 
guage indicating  that  the  invitation  extends  only  to  those  who  come 
on  business  connected  with  that  carried  on  at  the  place,  and  for  the 
transaction  of  which  the  place  is  apparently  intended.  In  Severy  v. 
Nickerson,  120  Mass.  306,  21  Am.  Rep.  514,  Mr.  Justice  Devens  says: 
"There  is  no  duty  imposed  upon  an  owner  or  occupant  of  premises 
to  keep  them  in  a  suitable  condition  for  those  who  come  there  for 
their  own  convenience  merely,  without  any  invitation,  cither  express  or 
which  may  fairly  be  implied  from  the  preparation  and  adaptation  of 
the  premises  for  the  purposes  for  which  they  are  appropriated."     In 


1034  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

Marwedel  v.  Cook,  154  Mass.  235,  236,  28  N.  E.  140,  we  find  this 
language :  "The  general  duty  which  the  defendants  owed  to  third 
persons,  in  respect  to  the  passages  of  the  building,  is  well  expressed  in 
the  instructions  to  the  jury  at  the  trial:  'If  the  defendants  leased 
rooms  in  the  building  to  different  tenants,  reserving  to  themselves  the 
control  of  the  halls,  stairways,  and  elevator,  by  and  through  which 
access  was  to  be  had  to  these  rooms,  and  the  general  Hghting  arrange- 
ments of  those  passages,  then  the  defendants  were  bound  to  take 
reasonable  care  that  such  approaches  were  safe  and  suitable  at  all 
times,  and  for  all  persons  who  were  lawfully  using  the  premises,  and 
using  due  care,  so  far  as  they  ought  to  have  reasonably  anticipated 
such  use  as  involved  in  and  necessarily  arising  out  of  the  purposes 
and  business  for  which  said  rooms  were  leased.'  "  In  Learoyd  v.  God- 
frey, 138  ]\fass.  315,  323,  the  plaintiff,  a  police  officer,  was  expressly 
invited  to  the  premises  by  a  daughter  of  the  occupant  to  arrest  an  in- 
toxicated person  who  was  making  disturbance  in  the  house.  In  Curtis 
V.  Kiley,  153  Mass.  123,  26  N.  E.  421,  no  question  was  considered  or 
clearly  raised  about  the  invitation  to  the  plaintiff.  In  Davis  v.  Central 
Congregational  Society,  129  Mass.  367,  Z7  Am.  Rep.  368,  the  plaintiff 
went  to  the  defendant's  church  under  an  express  invitation  authorized 
by  the  defendant,  and  the  object  of  her  visit  was  among  those  con- 
templated by  the  defendant  when  the  building  was  erected.  The  lan- 
guage used  in  the  cases  in  this  Commonwealth  and  in  other  States 
indicates  that  the  rule  in  regard  to  the  extent  of  the  invitation  im- 
plied from  the  preparation  of  property  for  use  in  business  is  the  same 
here  as  laid  down  in  the  cases  above  cited  from  the  courts  of  New 
York  and  of  England.  Sweeny  v.  Old  Colony  &  Newport  Railroad, 
10  Allen,  368,  87  Am.  Dec.  644;  Elliott  v.  Pray,  10  Allen,  378,  87 
Am.  Dec.  653 ;  Carleton  v.  Franconia  Iron  &  Steel  Co.,  99  Mass. 
216;  Metcalfe  v.  Cunard  Steamship  Co.,  147  Mass.  66,  16  N.  E.  701; 
Ileinlein  v.  Boston  &  Providence  Railroad,  147  Mass.  136,  16  N.  E. 
698,  9  Am.  St.  Rep.  676;  Reardon  v.  Thompson,  149  Mass.  267,  21 
N.  E.  369;  Gordon  v.  Cummings,  152  Mass.  513,  25  N.  E.  978,  9  L. 
R.  A.  640,  23  Am.  St.  Rep.  846;  Curtis  v.  Kiley,  153  Mass.  123,  26 
N.  E.  421;  Stevens  v.  Nichols,  155  Mass.  472,  29  N.  E.  1150,  15 
L.  R.  A.  459;  Campbell  v.  Portland  Sugar  Co.,  62  Me.  552,  16  Am. 
Rep.  503;  Parker  v.  Portland  Publishing  Co.,  69  Me.  173,  31  Am. 
Rep.  262. 

In  Low  v.  Grand  Trunk  Railway,  72  Me.  313,  24  Am.  Rep.  331,  it 
was  held  that  the  owner  of  a  wharf  was  liable  to  a  customhouse  officer, 
who  was  upon  it  in  the  performance  of  his  duty  to  prevent  smuggling 
in  the  nighttime,  for  an  injury  resulting  from  a  defective  condition 
of  the  wharf.  The  officer  was  there  to  prevent  unlawful  conduct  in 
connection  with  the  business  carried  on  at  the  wharf  with  the  consent 
of  the  owner,  and  the  owner  might  fairly  be  supposed  to  anticipate 
and  desire,  and  impliedly  to  invite,  his  presence  there  to  protect  the 
defendant's  property  from  those  who  would  unlawfully  use  it.     Nei- 


Ch.  1)  NEGLIGENCE  1035 

ther  the  decision  nor  the  cases  cited  in  the  opinion,  when  carefully 
examined,  will  be  found  to  give  any  countenance  to  the  view  that  one 
who  visits  a  building  for  a  purpose  not  connected  with  the  use  for 
which  the  building  was  fitted,  or  to  which  it  is  put,  is  impliedly  in- 
vited to  come  there.     *     *     *  "^ 

On  the  facts  of  the  case  before  us,  we  are  of  opinion  that  the  plain- 
tiff was  a  mere  licensee  in  the  defendant's  building,  and  that  the  rul- 
ings at  the  trial  were  correct. 

Exceptions  overruled. 


STEISKAL  V.  MARSHALL  FIELD  &  CO. 

(Supreme  Court  of  Illinois,  1908.    238  111.  92,  87  N.  E.  117.) 

Action  on  the  case  against  Marshall  Field  &  Company  for  a  per- 
sonal injury  sustained  by  the  plaintiff  through  the  alleged  negligence 
of  the  defendant.  The  jury  returned  a  verdict  in  favor  of  the  plaintiff 
for  the  sum  of  $10,000,  upon  which  the  trial  court  rendered  judg- 
ment. This  judgment  was  affirmed  by  the  Appellate  Court,  and  a 
further  appeal  is  prosecuted  in  this  court. 

Hand,  J.     The  declaration  contained  one  count  which  alleged : 

That  the  appellant  carried  on  a  retail  dry  goods  and  general  store  in  its 
store  building  in  the  city  of  Chicago,  and  used  and  operated,  in  connection 
with  its  business  therein,  a  certain  passenger  elevator  to.cari*j'  passengers 
from  floor  to  floor  in  said  building ;  that  the  plaintiff:'  was  rightfully  in  said 
store  and  a  passenger  in  said  elevator ;  that  he  entered  said  elevator  at 
the  ninth  floor  for  the  purpose  of  being  carried  to  the  first  or  main  floor  of 
the  building;  that  it  was  the  duty  of  the  defendant  to  carry  him  safely 
from  said  ninth  floor  to  his  destination,  but  in  this  the  defendant  failed  and 
was  guilty  of  negligence,  in  that  while  the  plaintiff;  was  in  the  exercise  of  due 
care  for  his  own  safety  and  was  in  said  elevator  as  a  passenger,  the  said  ele- 
vator, and  the  machinery  by  which  the  same  was  oi^erated,  broke  and  gave 
way,  and  precipitated  said  elevator,  with  plaintiff,  into  the  basement  of  said 
building,  and  he  was  injured,  etc. 

The  first  contention  of  the  appellant  is  that  the  declaration  is  not 
sufficient  to  support  the  judgment,  in  this:  That  the  plaintiff  has  not 
averred  facts  therein  which  show  that  he  was  rightfully  in  said  eleva- 
tor, or  that  the  relation  of  passenger  and  carrier  existed  between  the 
plaintiff  and  the  defendant  at  the  time  of  the  accident.  The  suffi- 
ciency of  the  declaration  is  challenged  by  motion  in  arrest  of  judgment. 
The  relation  averred  to  exist  between  the  plaintiff'  and  the  defendant 
at  the  time  the  plaintiff  was  injured  was  that  of  passenger  and  car- 
rier, and  we  are  of  the  opinion  the  declaration,  after  verdict,  was 
sufficient  to  support  the  judgment.  In  Chicago  &  Alton  Railroad  Co. 
V.  Clausen,  173  111.  100,  50  X.  E.  680,  where  the  same  contention  was 
made  as  is  made  here,  the  declaration  averred  that  the  plaintiff'  became 

6"  In  the  omitted  portion  of  the  opinion,  the  learned  .judge  comments  on 
Sweeny  v.  f)ld  Colony  &  Newp(jrt  Railroad  (ISfl.-))  10  Allen,  3G8,  87  Am.  Dec. 
644,  and  Holmes  v.  Drew  (l,s90)  151  Mass.  578,  25  N.  E.  22. 


1036  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

a  passenger  on  a  passenger  train  of  the  defendant  at  Dwight  to  be 
carried  from  that  place  to  Gardner,  and  that  while  he,  with  due  care, 
caution,  and  diligence,  was  about  to  alight  from  the  train  at  Gardner, 
the  defendant  carelessly  and  negligently  caused  the  train  to  be  violent- 
ly and  suddenly  moved  for^vard,  and  thereby  he  was  thrown  from 
and  off  the  train  to  and  upon  the  wooden  platform  of  defendant;  and 
in  dift'erent  counts  it  was  alleged  that  defendant  did  not  stop  the 
train  at  Gardner  a  sufficient  length  of  time  to  receive  and  let  off  pas- 
sengers, but  suddenly  started  the  train,  whereby  the  plaintiff,  who  was 
attempting  to  alight,  was  thrown  off.  The  averments  of  the  declara- 
tion in  that  case  were  held  sufficient  after  verdict,  and,  if  that  dec- 
laration was  good  after  verdict,  we  are  unable  to  see  why  the  dec- 
laration in  this  case  is  not. 

It  is  next  contended  that  the  facts  proven  do  not  establish  that  the 
relation  of  passenger  and  carrier  existed  between  the  parties  at  the 
time  appellee  was  injured.  The  appellee  testified :  He  went  to  the 
store  of  the  appellant  to  obtain  employment ;  that  he  inquired  of  an 
emplove  of  the  defendant  on  the  first  floor  for  the  superintendent ;  that 
he  was  told  the  superintendent  was  on  the  ninth  floor  and  was  directed 
to  take  the  elevator  to  that  floor;  that  he  got  off  the  elevator  at  the, 
ninth  floor  and  inquired  for  the  superintendent  and  was  informed  that 
he  was  not  in  his  office ;  that  he  returned  to  the  elevator,  the  door  of 
which  was  open,  and  entered  the  elevator;  that  the  operator  closed 
the  door  behind  him  and  turned  on  the  power,  and  the  elevator  im- 
mediately dropped  to  the  basement  floor ;  that  the  elevator  was  wreck- 
ed, the  operator  killed,  and  he  was  severely  injured.  We  think  this  evi- 
dence fairly  tended  to  show  that  the  appellee  was  rightfully  in  the  ele- 
vator, and  that  the  relation  of  passenger  and  carrier  existed  between  the 
parties  at  the  time  the  appellee  was  injured.  In  an  establishment  like 
that  of  the  appellant  there  is  a  general  invitation  to  persons  to  enter 
who  have  business  with  the  appellant.  The  appellant  employs  a  large 
number  of  persons,  and  it  was  clearly  lawful  for  the  appellee  to 
enter  its  store  for  the  purpose  of  seeking  employment,  and  upon  be- 
ing directed  to  the  office  of  the  superintendent  and  invited  to  use  the 
elevator  in  going  to  his  office  he  clearly  was  rightfully  upon  the 
elevator,  and  upon  finding  the  superintendent  out  of  his  office  he 
had  the  right  to  return  to  the  first  or  main  floor  in  the  elevator.  There 
was,  at  least,  evidence  introduced  by  the  plaintiff  fairly  tending  to 
show  that  the  relation  of  passenger  and  carrier  existed  between  the 
parties  at  the  time  the  elevator  fell,  and  that  the  appellee  was  right- 
fully upon  the  elevator;  and  as  those  questions  were  questions  of 
fact,  or  at  most,  of  mixed  law  and  fact  (Springer  v.  Ford,  189  111. 
430,  59  N.  E.  953,  52  L.  R.  A.  930,  82  Am.  St.  Rep.  464),  we  think  it 
cannot  now,  in  view  of  the  holding  of  the  trial  and  Appellate  Courts, 
be  successfully  contended  in  this  court,  as  a  matter  of  law,  that  such 
relation  did  not  exist,  or  that  the  appellee  was  wrongfully  upon  the 
elevator,  at  the  time  it  fell.     This  case  is  not  like  that  of  Walsh  v. 


Ch.  1)  NEGLIGENCE  1037 

CuUen,  235  111.  91,  85  N.  E.  223,  18  L.  R.  A.  (N.  S.)  911.  In  that 
case  the  relation  of  master  and  servant  existed  between  the  parties, 
while  here  the  appellee  was  a  passenger,  and  the  duty  which  the  ap- 
pellant owed  the  appellee  was  the  duty  growing  out  of  the  relation  of 
carrier  and  passenger.  This  court  has  held  (Hartford  Deposit  Co.  v. 
Sollitt,  172  111.  222,  50  N.  E.  178,  64  Am.  St.  Rep.  35,  and  Springer 
V.  Ford,  supra)  that  a  person  operating  a  passenger  elevator,  under 
the  circumstances  under  which  the  elevator  in  question  was  being 
operated  at  the  time  of  the  accident,  is  a  carrier  of  persons,  and  bound 
to  exercise  a  high  degree  of  care  in  transporting  passengers,  and  that 
the  fact  that  the  elevator  falls  when  persons  are  being  carried  thereon 
is  evidence  that  the  elevator  w^as  mismanaged,  or  was  out  of  repair, 
or  of  faulty  construction. 

Judgment  affirmed. 

Dunn,  J.  (dissenting).  The  single  count  in  the  declaration  alleged 
that  the  appellant  carried  on  a  store,  and  used  and  operated  in  con- 
nection therewith  a  passenger  elevator  for  carrying  passengers  from 
floor  to  floor,  and  that  the  appellee  was  rightfully  in  said  store  and 
a  passenger  in  said  elevator.  These  averments  amount  to  no  more 
than  a  statement  that  the  appellee  was  in  the  elevator  for  the  purpose 
of  being  carried  and  was  not  a  trespasser.  The  evidence  showed  that 
the  appellee  went  to  the  store  for  the  purpose  of  obtaining  employ- 
ment. It  did  not  show  that  he  went  in  response  to  any  advertisement 
or  request  of  the  appellant,  that  the  appellant  desired  to  employ  any 
help,  or  that  the  appellee  had  any  reason  to  suppose  it  did.  In  re- 
sponse to  his  inquiry  he  was  informed  that  the  superintendent  was 
on  the  ninth  floor,  and  was  directed  to  take  the  elevator  to  that  floor. 
Finding  that  the  superintendent  was  not  in  his  office,  he  returned  to 
the  elevator,  when  it  fell,  and  he  was  injured. 

The  operators  of  passenger  elevators  in  buildings  for  the  use  of 
the  occupants  and  those  having  business  with  or  visiting  them  are 
common  carriers  of  passengers,  with  the  same  obligations  as  car- 
riers bv  other  modes  of  convevance.  Hartford  Deposit  Co.  v.  Sollitt, 
172  111'  222,  50  N.  E.  178,  64  Am.  St.  Rep.  35;  Springer  v.  Ford,  189 
111.  430,  59  N.  E.  953,  52  L.  R.  A.  930,  82  Am.  St.  Rep.  464;  Beidler 
V.  Branshaw,  200  111.  425,  65  N.  E.  1086.  But  these  obligations  do 
not  extend  to  the  case  of  employes  of  the  operator  using  the  eleva- 
tor in  the  course  of  their  employment.  Walsh  v.  Cullen,  235  111.  91, 
85  X.  E.  223,  18  L.  R.  A.  (N.  S.)  911.  As  to  such  persons  and  others 
using  the  elevator,  not  in  connection  with  the  business  of  the  opera- 
tor or  the  occupants  of  the  building  or  by  their  invitation,  the  law 
does  not  require  that  high  degree  of  care  which  common  carriers  of 
passengers  must  use.  One  who  goes  upon  the  premises  of  another 
to  seek  employment  of  the  owner,  not  in  response  to  any  invitation, 
is  not  engaged  in  the  business  of  the  owner.  He  goes  solely  for  his 
own  benefit.  There  was  no  invitation,  express  or  implied,  for  the  ap- 
pellee to  visit  the  appellant's  store.     He  went  there  on  his  own  busi- 


1038  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

ness  and  for  his  own  purposes  only.  The  appellant  was  under  no 
obligation  to  the  appellee,  under  such  circumstances,  to  exercise  the 
high  degree  of  care  recjuired  of  a  common  carrier.  Larmore  v.  Crown 
Point  Iron  Co.,  101  N.  Y.  391,  4  N.  E.  752,  54  Am.  Rep.  718. 

Cartwright,  C.  J.,  and  Scott,  J.,  concur  in  the  foregoing  dissent- 
ing opinion. 


COWEN  V.  KIRBY  et  al. 

(Supreme  Judicial  Court  of  Massachusetts,  1902.    180  Mass.  504,  62  N.  E.  968.) 

Tort  for  personal  injuries  by  Cowen  against  Kirby  and  others.     A 

verdict  was  directed  for  the  defendants.     The  plaintiff  excepts.     The 

facts  were  as  follows : 

The  defeiulaiits  kept  a  stable  situated  at  the  corner  of  two  streets,  and 
as  a  part  of  their  business  toolv  in  for  l^eeping  and  care  the  vehicles  and 
horses  of  those  persons  who  might  come  for  that  service.  Upon  the  ground 
floor  was  a  large  room,  into  which  teams  were  driven  from  one  of  the  streets, 
and  in  which  horses  were  unhitched  and  hitched  up  and  vehicles  were  stored. 
Out  of  tliis  room  opened  a  number  of  doors,  one  of  which  led  to  stalls  where 
the  horses  were  kept,  two  led  to  harness  rooms,  one  to  a  ladies'  waiting  room, 
and  one  to  an  office.  The  two  latter  doors  were  near  the  team  entrance,  and 
the  waiting  room  and  the  office  had  outer  doors,  also,  giving  enti-ance  from 
the  other  street.  The  plaintiff  drove  his  hoi'se  and  wagon  into  the  stable,  and. 
got  out  of  the  wagon.  Hostlers  unhitched  the  horse,  and  backed  the  wagon 
to  the  wall  opposite  the  entrance.  The  plaintiff  foUowed  the  wagon  back, 
and  put  his  driving  gloves  into  it,  and  upon  receiving  a  numbered  check  for  his 
team  left  the  stable.  It  does  not  appear  that  while  he  was  there  anything 
was  said  by  any  one.  After  some  hours  he  re-entered  by  the  carriage  door, 
and  walked'  across  the  room,  intending  to  place  some  packages  in  his  wagon, 
which  remained  where  he  had  seen  it  placed.  Otlier  wagons  had  been  put  in 
the  room  in  the  meantime,  and  one  of  these  was  immediately  in  front  of  his. 
He  passed  to  the  left  of  the  front  wagon.  About  two  feet  to  the  left  of  his 
wagon  was  a  post,  and,  not  choosing  to  pass  between  the  wagon  and  the 
post,  he  swung  liimself  around  the  post,  and  then  leaned  towards  his  wagon 
to  put  his  packages  into  it.  The  post  was  in  fact  a  part  of  the  apparatus  of 
a  hoisting  macliine  used  to  carry  vehicles  between  the  ground  floor  and  the 
upper  floors  of  the  stal)le.  While  the  plaintiff  was  leaning  towards  his 
wagon,  the  hoist,  loaded  with  a  vehicle,  descended  upon  him. 

Barker,  J.  (after  stating  the  facts).  Whether  he  can  recover  for 
his  injury  depends  upon  whether  at  the  time  and  place  where  he  was 
when  hurt,  he  was  more  than  a  mere  licensee,  and  if  so,  whether  he 
was  in  the  exercise  of  due  care.  The  fact  that  a  person  enters  a 
place  of  business  as  a  customer  does  not  give  him  the  right  to  ex- 
pect that  every  part  of  the  premises  shall  be  so  arranged  and  kept 
that  he  may  be  in  safety.  He  knows  the  purpose  for  which  they 
are  used,  and  must  assume  that  they  will  be  prepared  and  adapted 
for  that  purpose,  and  must  take  notice  of  that  preparation  and  adap- 
tion, at  least  so  far  as  it  is  obvious.  It  is  only  those  parts  of  the 
premises  where  customers  are  expected  to  be  that  the  owner  or  oc- 
cupant must  keep  in  suitable  condition  for  them,  and  in  such  parts 
only  has  a  customer  a  right  to  assume  that  care  has  been  used  to 
protect  him    from  injury.     He  enters  knowing  tliat  the  i)lacc  is  not 


Ch.  1)  NEGLIGENCE  1039 

arranged  merely  for  his  own  convenience.  He  may  expect  that  he 
will  be  safe  in  conducting  himself  as  a  customer  is  expected  to  act, 
but  he  has  no  right  to  expect  that  he  will  be  safe  if  he  oversteps  that 
limit.  The  owner,  without  being  in  fault,  may  adapt  his  premises 
to  his  business,  and  may  use  them  in  the  way  for  which  they  were 
designed,  unless  in  so  doing  he  exposes  the  customer  to  some  danger 
which  the  latter  has  the  right  to  expect  he  will  not  be  exposed  to,  and 
the  customer  must  expect  to  find  such  appliances  and  such  uses  of 
the  premises  as  are  involved  in  the  prosecution  of  the  business.  If, 
without  some  special  invitation,  express  or  implied,  a  customer  sees 
fit  to  pass  from  that  part  of  the  establishment  where  it  is  designed 
and  expected  that  he  shall  be  into  other  parts  not  designed  or  adapted 
for  his  use,  but  for  the  work  of  the  place,  he  becomes  at  best  a  mere 
licensee,  as  to  whom  the  owner  or  occupant  has  no  duty  to  keep  his 
premises  safe.  Severy  v.  Nickerson,  120  Mass.  306,  21  Am.  Rep. 
514;  Gaffnev  v.  Brown,  150  Mass.  479,  23  N.  E.  233-;  Marwedel 
v.  Cook,  154'Mass.  235,  28  N.  E.  140.  See  Redigan  v.  Railroad  Co., 
155  ^lass.  44,  28  N.  E.  1133,  14  L.  R.  A.  276,  31  Am.  St.  Rep.  520; 
Plummer  v.  Dill,  156  Mass.  426,  428,  429,  31  N.  E.  128,  32  Am.  St. 
Rep.  463;  McCarvell  v.  Sawyer,  173  Mass.  540,  54  N.  E.  259,  73 
Am.  St.  Rep.  318;  Moffatt  v.  Kenny,  174  Mass.  311,  54  N.  E.  850; 
Harobine  v.  Abbott,  177  Mass.  59,  58  N.  E.  284. 

When  the  plaintiff,  having  placed  his  driving  gloves  in  the  wagon, 
accepted  the  check  for  his  team,  and  left  the  stable,  no  custom  of 
business  nor  special  invitation  having  been  shown,  he  neither  re- 
served nor  obtained  any  right  to  use  the  stable  for  the  purpose  of 
placing  other  property  in  his  w^agon,  nor  to  enter  the  room  in  which 
the  wagon  w^as,  except  for  the  purpose  of  reclaiming  his  property. 
In  fact,  although  the  plaintiff'  testified  that  he  did  not  know  it,  a 
place  for  customer's  parcels  was  provided  in  the  office.  However 
this  may  have  been,  there  is  nothing  in  the  evidence  to  justify  a  find- 
ing that  he  had  any  right  to  expect,  upon  entering  the  stable  the  sec- 
ond time,  that  he  would  find  it  in  such  a  condition  that  it  would  be 
safe  for  him  to  walk  through  it  to  his  wagon  and  place  in  it  other 
packages.  In  so  doing  he  was  visiting  merely  for  his  own  conven- 
ience a  part  of  the  stable  which  obviously  was  not  designed  or  in- 
tended for  his  use,  but  for  the  storage  of  vehicles.  There  was  noth- 
ing to  give  him  the  right  to  infer  or  assume  that  by  placing  other 
articles  of  his  own  in  his  wagon  he  could  charge  the  defendants  with 
their  custody,  or  that  he  had  the  right  to  use  the  room  for  the  pur- 
pose of  putting  other  articles  in  his  wagon.  His  second  visit  being 
solely  for  that  purpose,  in  making  it  he  was  at  best  but  a  mere  licensee, 
and  must  take  the  place  as  he  found  it. 

Besides  this,  he  was  not  in  the  exercise  of  due  care.  The  raised 
beam  upon  the  floor  over  which  he  walked  in  going  to  his  wagon, 
and  the  depression  beyond  it,  in  which  the  platform  of  the  hoist 
rested    when   down ;    the   grooved   posts   which   guided  the  platform 


1040  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

in  its  ascent  and  descent,  and  around  one  of  which  he  swung  him- 
self ;  the  box  in  which  the  counterweight  hung ;  the  check  rope,  and 
the  double  hoisting  hawser  of  heavy  rope  hanging  next  his  wagon, 
and  within  two  feet  of  the  post, — were  all  plainly  visible,  and  all  in- 
dicated obviously  that  the  place  where  he  chose  to  stand  was  used 
by  a  carriage  hoist.  He  himself  testified  that  if  he  had  seen  the  hoist- 
ing rope  hanging  down  and  going  around  he  would  have  thought 
there  was  an  elevator  there.  We  are  of  opinion  that  there  were  so 
many  obvious  indications  that  he  stood  in  the  way  of  a  hoisting  ma- 
chine that  he  could  not  be  found  to  be  in  the  exercise  of  due  care. 
Exceptions  overruled. 


HUPFER  v.  NATIONAL  DISTILLING  CO. 

(Supreme  Court  of  Wisconsin,  1902.     114  Wis.  279,  90  N.  W.  191.) 

This  action  was  brought  by  Hupf er,  as  administrator  of  Simon  Hup- 

fer,  against  the  National  Distilling  Company  to  recover  damages  for 

negligently  causing  the  death  of  plaintifif's  intestate.     The  complaint 

alleged,  in  effect: 

That  tlie  deceased  came  to  the  defendant's  distillery,  as  he  had  for  some 
time  been  accustomed  to  do,  for  the  puiiDose  of  purchasing  and  receiving 
slops  for  his  cows,  which  slops  were  contained  in  a  large  circular  tank  about 
16  feet  in  diameter,  and  raised  about  6  feet  above  the  ground,  and  drawn 
therefrom  by  a  faucet  at  the  bottom  of  the  tank ;  that  Simon  drove  his 
wagon  under  and  by  the  side  of  the  tank  for  the  purpose  of  so  filling  his 
wagon  with  such  slops ;  that  without  his  knowledge  or  any  warning  to 
him,  and  through  the  carelessness  and  negligence  of  the  defendant,  the  hoops 
which  held  the  tank  together  had  become  rusted  and  weakened,  so  that 
the  tank  broke,  and  the  contents  thereof  were  precipitated  upon  Simon,  scald- 
ing him  in  such  a  dangerous  and  shocking  manner  that  he  died  about  three 
hours  afterwards. 

The  trial,  under  a  denial  and  counter  allegations,  resulted  in  a  spe- 
cial verdict  for  $1,000  in  the  plaintift''s  favor,  and  judgment  thereon 
in  that  amount.     The  defendant  appealed. ^^ 

Cassoday,  C.  J.  It  is  contended  that  the  deceased  was,  at  the  time 
and  place  of  the  injury,  at  most  a  mere  licensee,  to  whom  the  de- 
fendant owed  no  duty.  It  is  true  that  the  defendant  had  in  its  em- 
.  ploy  at  the  time  one  John  Dardell,  whose  special  duty,  among  other 
things,  was  to  stir  up  the  slop  in  the  vat  and  deliver  the  same  to  the 
defendant's  customers.  By  the  eighth  and  ninth  findings  the  jury 
found  that  prior  to  the  accident  the  deceased  and  the  defendant's 
other  customers  knew  that  such  were  the  duties  of  John  Dardell.  But 
by  the  sixth,  seventh,  and  tenth  findings,  the  jury  also  found  that  at 
the  time  of  the  accident  it  had  long  been  an  established  custom  for 
the  defendant's  customers,  desiring  to  purchase  such  slops,  to  stir 
the  same  for  themselves,  if  they  desired  to  do  so;  and  that  such  cus- 
tom was  known   to  and  acquiesced  in  by  the  defendant;    and  that 

6  8  The  statement  of  facts  is  abridged. 


Ch.  1)  NEGLIGENCE  1041 

prior  to  the  accident  the  defendant  repeatedly  suffered  the  deceased 
to  step  upon  the  back  platform  and  stir  up  the  slop,  because  it  feared 
to  lose  his  custom  if  he  should  be  forbidden.  John  Dardell  testified 
to  the  effect  that  he  told  the  defendant's  secretary  that  if  some  of 
the  customers  were  not  allowed  to  stir  the  slops  themselves  such  cus- 
tomers would  not  take  them ;  that  the  secretary  told  him  not  to 
drive  customers  away,  but  that  he  would  rather  he  would  stir  the  slops 
himself ;  that  he  had  known  the  deceased  for  three  years ;  that  in 
the  winter  he  came  for  slops  almost  every  day,  but  seldom  in  the 
summer;  that  he  often  told  the  deceased  that  his  duties  required  him 
to  stir  the  slops,  but  that  the  deceased  always  stirred  the  slops  him- 
self ;  that  by  doing  so  he  would  get  the  thick  slop,  while  other  cus- 
tomers, who  did  not  stir  it  themselves,  would  get  thinner  slop;  that 
he  knew  that  the  deceased  would  not  take  the  slop  unless  he  stirred 
it  himself,  and  so  he  let  him  stir  the  slop  and  fill  his  wagon  rather 
than  lose  him  as  a  customer ;  and  that  he  regarded  that  as  business. 
Upon  such  findings  and  testimony,  can  we  hold  that  the  deceased  was 
a  mere  licensee  within  the  authorities?  *  *  *  jj-,  Bennett  v.  Rail- 
road Co.,  102  U.  S.  577,  584,  585,  26  L.  Ed.  235,  238,  it  is  said,  quot- 
ing from  an  author,  that  "the  principle  appears  to  be  that  invitation 
is  inferred  where  there  is  a  common  interest  or  mutual  advantage, 
while  a  license  is  inferred  where  the  object  is  the  mere  pleasure  or 
benefit  of  the  person  using  it."  Similar  views  are  expressed  in  'Mr. 
Thompson's  late  Commentaries  on  the  Law  of  Negligence  (volume 
1,  §  968),  citing  numerous  cases  in  support  of  the  rule. 

We  must  hold  that,  under  the  findings  of  the  jury,  the  deceased 
cannot  be  regarded  as  a  mere  licensee,  but  that  he  was  there  on  busi- 
ness for  the  mutual  benefit  of  himself  and  the  defendant:  or  in  other 
words,  by  invitation.       *     *     *  ^^ 

The  judgment  of  the  superior  court  for  Milwaukee  county  is  re- 
versed [for  error  in  the  admission  of  testimony],  and  the  cause  is  re- 
manded for  a  new  trial. 

69  A  part  of  Mr.  Chief  Justice  Cassoday's  opinion,  including  a  numerous  ci- 
tation of  authorities,  is  omitted.  Bardeeu  and  Marshall,  JJ.,  concurred  in  the 
result;    the  latter  in  an  elaborate  opinion. 

Hepb. Torts — 66 


1042  TOUTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

HOLMES  V.  DREW. 

(Supreme  Judicial  Court  of  Massachusetts,  1890.     151  Mass.  578,  25  N.  E.  22.) 

Tort  for  personal  injuries  sustained  by  the  plaintiff  by  falling  upon 
a  private  sidewalk  belonging  to  the  defendant,  and  negligently  sulfered 
by  her  to  remain  in  a  dangerous  condition.  At  the  trial  there  was 
evidence  tending  to  prove  the  following  facts : 

Tlie  defendant  was  tlie  owner  of  an  estate  abutting  on  West  Rutland 
Square,  a  i»ublic  street  in  the  city  of  Boston.  The  buildings  fronting  upon 
this  street,  including  that  of  the  defendant,  had  been  placed  by  their  owners 
sixteen  feet  back  from  the  street  line,  and  a  brick  sidewalk  had  ))een  laid 
by  them  upon  the  intervening  space.  In  front  of  the  defendant's  building, 
this  sidewalk  was  nowhere  less  than  eight  feet  wide,  of  which  but  eight 
inches  were  included  within  the  limits  of  the  street,  the  remainder  being 
entirely  upon  the  defendant's  land.  This  entire  sidewalk  was  so  constructed 
by  the  defendant  as  apparently  to  constitute  a  public  sidewalk,  with  nothing 
to  indicate  any  difference  or  line  of  separation  l)etween  what  was  public  and 
what  was  private.  The  bricks  of  the  sidewalk  at  the  intersection  of  the 
street  with  a  private  way,  which  crossed  it  and  formed  the  boundary  of  one 
side  of  the  defendant's  estate,  were  kept  in  position  by  a  board  wliich  extend- 
ed from  the  side  of  the  street  at  right  angles  into  the  defendant's  land,  and 
projected  above  the  l)ricks  for  a  height  varying  from  an  inch  and  a  quarter 
to  six:  inches  and  a  quarter.  In  front  of  the  defendant's  building  and  upon 
her  land,  over  an  irregular  space  covering  ai)out  fifteen  square  feet  extending 
from  this  board  into  the  sidewalk,  the  bricks  had  become  loose,  misplaced, 
and  thrown  into  various  irregular  positions,  and  had  there  remained  for 
several  months  before  November  4,  18S7.  On  the  evening  of  that  day,  the 
jilaintiff,  while  travelling  along  the  sidewalk  upon  the  defendant's  premises 
towards  the  private  way,  being  in  the  exercise  of  due  care  aud  supposing 
•that  the  sidewalk  was  a  part  of  the  street,  stumbled  over  the  loose  bricks 
and  the  projecting  board  above  described,  and,  falling  down,  was  severely 
injured.  The  plaintiff  did  not  give  to  the  defendant  the  notice  mentioned  in 
the  Pub.  Sts.  c.  52,  §  19.  After  the  accident,  the  loose  bricks  on  the  defendant's 
premises  were  replaced  in  proper  position,  and  the  sidewalk  put  in  safe  con- 
dition, but  it  did  not  appear  who  did  it. 

The  judge  upon  the  above  facts  directed  a  verdict  for  the  defend- 
ant ;    and  the  plaintiff  alleged  exceptions. 

W.  Allen,  J.  The  jury  might  have  inferred  from  the  facts  stated 
that  the  defendant  laid  out  and  paved  the  sidewalk  on  her  own  land 
in  order  that  it  should  be  used  by  the  public  as  the  sidewalk  of  the 
street,  and  allowed  it  to  remain  apparently  the  part  of  the  street  that 
was  intended  to  be  used  by  foot  passengers.  This  would  amount  to 
an  invitation  to  the  public  to  enter  upon  and  use  as  a  public  sidewalk 
the  land  so  prepared,  and  the  plaintiff  so  using  it  would  have  gone 
upon  the  defendant's  land  by  her  implied  invitation,  and  she  would 
owe  to  him  the  duty  not  to  expose  him  to  a  dangerous  condition  of 
the  walk  which  reasonable  care  on  her  part  would  have  prevented. 
Sweeny  v.  Old  Colony  &  Newport  Railroad,  10  Allen,  368,  S7  Am. 
Dec.  644;  Carleton  v.  Franconia  Iron  &  Steel  Co.,  99  Mass.  216; 
Oliver  v.  Worcester,  102  Mass.  489,  3  Am.  Rep.  485  ;  Davis  v.  Cen- 
tral Congregational  Society,  129  Mass.  367,  371,  37  Am.  Rc]).  368; 
Mur])hy  V.   Boston  &  Albany  Railroad,    133  Mass.    121. 

The  place  was  not  a  way,  and  Pub.  Sts.  c.  52..  §  19,  do  not  apply. 


Ch.  1)  NEGLIGENCE  1043 

The  ground  of  the  defendant's  habihty  is  not  her  obUgation  to  keep 
a  way  in  repair;  but  her  obHgation  to  use  due  care  that  her  land 
should  be  reasonably  safe  for  the  use  which  she  invited  the  plaintiff 
to  make  of  it.  Whether  she  invited  the  plaintiff'  to  cross  her  land 
on  a  paved  walk,  whether  the  pavement  was  in  such  a  condition  as 
to  render  walking  over  it  dangerous,  whether  it  was  in  that  condi- 
tion through  the  negligence  of  the  defendant,  and  whether  the  plain- 
tiff was  hurt  in  consequence  while  in  the  exercise  of  due  care,  were 
questions  proper  to  be  submitted  to  the  jury. 
Exceptions  sustained^* 


II.  In  Relation  to  Contractual  Obligations  :    Whether  a 
Duty  oe  Care  Towards  Third  Persons 

WINTERBOTTOAI  v.  WRIGHT. 

(Court  of  Exchequer,  1842.     10  Mees.  &  W.  109,  62  R.  R.  534.) 

Case.     The  declaration  stated : 

That  the  defendant  was  a  contractor  for  the  supply  of  mail-coaches,  and 
had  in  that  character  contracted  for  liire  and  reward  with  the  Postmaster- 
General,  to  provide  the  mnil-coach  for  the  purpose  of  conveying  the  mail- 
bags  from  Hartford,  in  the  county  of  Chester,  to  Holyhead:  That  the  de- 
fendant, under  and  by  virtue  of  said  contract,  had  aa;reed  with  the  said 
Postmaster-General  that  the  said  mail-coach  should,  during  the  said  contract, 
be  kept  in  a  fit,  proi^er,  safe,  and  secure  state  and  condition  for  the  said 
purpose,  and  took  upon  himself,  to  wit,  under  and  by  virtue  of  the  said  con- 
tract, the  sole  and  exclusive  duty,  charge,  care,  and  burden  of  the  repairs, 
state  and  condition  of  the  said  mail-coach ;  and  it  had  become  and  was  the 
sole  and  exclusive  duty  of  the  defendant,  to  \\-it,  under  and  by  virtue  of  his 
said  contract,  to  keep  and  maintain  the  said  mail-coach  in  a  fit,  proper,  safe 
and  secure  state  and  condition  for  the  purpose  aforesaid:  That  Nathanial  At- 
kinson and  other  persons,  having  notice  of  the  said  contract,  were  under  con- 
tract with  the  Postmaster-General  to  convey  the  said  mail-coach  from  Hart- 
ford to  Holyhead,  and  to  supply  horses  and  coachmen  for  that  purpose,  and 
also  not,  on  any  pretence  whatever,  to  use  or  employ  any  other  coach  or 
carriage  whatever  than  such  as  should  be  so  provided,  directed  and  appoint- 
ed by  the  Postmaster-General:  That  the  plaintiff,  being  a  mail-coachman, 
and  thereby  obtaining  his  livelihood,  and  whilst  the  said  several  contracts 
were  in  force,  having  notice  thereof,  and  trusting  to  and  confiding  in  the  con- 
tract made  between  the  defendant  and  the  Postmaster-General,  and  believing 
that  the  said  coach  was  in  a  ht,  safe,  secure  and  proper  state  and  condition 

70  "There  is  a  class  of  cases  to  which  Sweeny  v.  Old  Colony  Railn)ad  (lS(j.j) 
10  Allen,  .368,  87  Am.  Dec.  644,  and  Holmes  v.  Drew  (1800)  151  Mass.  578, 
25  N.  E.  22,  belong,  which  stand  on  a  ground  peculiar  to  themselves.  They 
are  where  the  defendant,  by  his  conduct,  has  induced  the  puldic  to  use  a 
way  in  the  belief  that  it  is  a  street  or  public  way  which  all  have  a  right  to 
use,  and  where  they  suppose  they  will  be  safe.  The  inducement  ttr  implied 
invitation  in  these  cases  is  not  to  come  to  a  place  of  business  tiffed  up  by 
the  defendant  for  trafbc  to  which  those  only  are  invited  who  will  come  to 
do  business  with  the  (x-cupant,  nor  is  it  to  come  l>y  permission  or  favor  or 
license;  but  it  is  to  come  as  one  of  the  public,  and  enjoy  a  iiui)lic  right,  in 
the  enjoyment  of  which  one  may  expect  to  be  protected.  The  liability  in 
such  a  case  should  l)e  co-exfeiisive  with  the  inducement  or  implied  invitation." 
Per  Knowlton,  J.,  in  Plumnicr  v.  Dill  (181)2)  156  Mass.  426,  430,  31  X.  E.  128, 
130,  32  Am.  St.  Rep.  463,  467. 


104:4  TORTS  THROUGH  ACTS   OF  CONDITIONAL   LIABILITY         (Part  3 

for  tlie  purpose  aforesaid,  and  not  knowing  and  having  no  means  of  knowing 
to  the  contrary  thereof,  hired  himself  to  the  said  Nathanial  Atkinson  and 
his  co-contractors  as  mail-coachman,  to  drive  and  take  the  conduct  of  the 
said  mail-coach,  which  but  for  the  said  contract  of  the  defendant  he  would 
not  have  done.  The  declaration  then  averred,  that  the  defendant  so  im- 
proiierly  and  negligently  conducted  himself,  and  so  utterly  disregarded  his 
aforesaid  contract,  and  so  wholly  neglected  and  failed  to  perform  his  duty  in. 
this  behalf,  that  heretofore,  to  wit,  on  the  8th  of  August,  1840,  whilst  the 
plaintiff,  as  such  mail-coachman  so  hired,  was  driving  the  said  mail-coach 
from  Hartford  to  Holyhead,  the  same  coach  being  a  mail-coach  found  and 
provided  by  the  defendant  under  his  said  contract,  and  the  defendant  then 
acting  under  his  said  contract,  and  having  the  means  of  knowing  and  then 
well  knowing  all  the  aforesaid  premises,  the  said  mail-coach  being  then  in 
a  frail,  weak,  infirm,  and  dangerous  state  and  condition,  to  wit,  by  and 
through  certain  latent  defects  in  the  .state  and  condition  thereof,  and  unsafe 
and  unfit  for  the  use  and  the  purpose  aforesaid,  and  from  no  other  cause, 
circumstance,  matter,  or  thing  whatsoever,  gave  way  and  broke  down,  where- 
by the  plaintiff  was  thrown  from  his  seat,  and,  in  consequence  of  injuries 
then  received,  had  become  lame  for  life. 

To  this  declaration  the  defendant  pleaded  several  pleas,  to  two 
of  which  there  were  demurrers;  but,  as  the  court  gave  no  opinion 
as  to  their  validity,  it  is  not  necessary  to  state  them. 

Byles,  for  the  defendant,  objected  that  the  declaration  was  bad  in 
substance :  This  is  an  action  brought,  not  against  Atkinson  and  his 
co-contractors,  who  were  the  einployers  of  the  plaintiff,  but  against 
the  person  employed  by  the  Postmaster-General,  and  totally  uncon- 
nected with  them  or  the  plaintiff.  Now  it  is  a  general  rule,  that 
wherever  a  wrong  arises  merely  out  of  the  breach  of  a  contract, 
which  is  the  case  on  the  face  of  this  declaration,  whether  the  form 
in  which  the  action  be  conceived  be  ex  contractu  or  ex  delicto,  the 
party  who  made  the  contract  alone  can  sue :  ToUit  v.  Sherstone,  5 
M.  &  W.  283.  If  the  rule  were  otherwise,  and  privity  of  contract 
were  not  requisite,  there  would  be  no  limit  to  such  actions. 
*  *  *  Levy  V.  Langridge,  4  M.  &  W.  ZZl,  will  probably  be  re- 
ferred to  on  the  other  side.  But  that  case  was  expressly  decided  on 
the  ground  that  the  defendant,  who  sold  the  gun  by  which  the  plain- 
tiff was  injured,  although  he  did  not  personally  contract  with  the 
plaintiff,  who  was  a  minor,  knew  that  it  was  bought  to  be  used  by 
him.  Here  there  is  no  allegation  that  the  defendant  knew  that  the 
coach  was  to  be  driven  by  the  plaintiff.  There,  moreover,  fraud  was 
alleged  in  the  declaration,  and  found  by  the  jury:  and  there,  too,  the 
cause  of  the  injury  was  a  weapon  of  a  dangerous  nature,  and  the 
defendant  was  alleged  to  have  had  notice  of  the  defect  in  its  con- 
struction.    Nothing  of  that  sort  appears  upon  this  declaration. 

Peacock,  contra.  This  case  is  within  the  principle  of  the  decision 
in  Levy  v.  Langridge.  Here  the  defendant  entered  into  a  contract 
with  a  public  officer  to  supply  an  article  which,  if  imperfectly  con- 
structed, was  necessarily  dangerous,  and  which,  from  its  nature  and 
the  use  for  which  it  was  destined,  was  necessarily  to  be  driven  by  a 
coachman.  That  is  sufficient  to  bring  the  case  within  the  rule  es- 
tablished by  Levy  v.  Langridge.     In  that  case  the  contract  made  by 


Ch.  1)  NEGLIGENCE  1045 

the  father  of  the  plaintifif  Avith  the  defendant  was  made  on  behalf  of 
himself  and  his  family  generally,  and  there  was  nothing  to  show  that 
the  defendant  was  aware  even  of  the  existence  of  the  particular  son 
who  was  injured.  Suppose  a  party  made  a  contract  with  govern- 
ment for  a  supply  of  muskets,  one  of  which,  from  its  misconstruc- 
tion, burst  and  injured  a  soldier:  there  it  is  clear  that  the  use  of  the 
weapon  by  a  soldier  would  have  been  contemplated,  although  not  by 
the  particular  individual  who  received  the  injury,  and  could  it  be 
said,  since  the  decision  in  Levy  v=  Langridge,  that  he  could  not  main- 
tain an  action  against  the  contractor?  So,  if  a  coachmaker,  employed 
to  put  on  the  wheels  of  a  carriage,  did  it  so  negligently  that  one  of 
them  flew  off,  and  a  child  of  the  owner  were  thereby  injured,  the 
damage  being  the  natural  and  immediate  consequence  of  his  negligence, 
he  would  surely  be  responsible.  So,  if  a  party  entered  into  a  contract 
to  repair  a  church,  a  workhouse,  or  other  public  building,  and  did 
it  so  insufficiently  that  a  person  attending  the  former,  or  a  pauper  in 
the  latter  were  injured  by  the  falling  of  a  stone,  he  could  not  main- 
tain an  action  against  any  other  person  than  the  contractor;  but 
against  him  he  must  surely  have  a  remedy.  It  is  like  the  case  of  a 
contractor  who  negligently  leaves  open  a  sewer,  whereby  a  person 
passing  along  the  street  is  injured.  It  is  clear  that  no  action  could 
be  maintained  against  the  Postmaster-General :  Hall  v.  Smith,  2 
Bing.  156;  Humphreys  v.  Mears,  1  Man.  &  R.  187;  Priestly  v.  Fow- 
ler. But  here  the  declaration  alleges  the  accident  to  have  happened 
through  the  defendant's  negligence  and  want  of  care.  The  plaintiff 
had  no  opportunity  of  seeing  that  the  carriage  was  sound  and  secure. 
(Aldersox,  B.  The  decision  in  Levy  v.  Langridge  proceeds  upon  the 
ground  of  the  knowledge  and  fraud  of  the  defendant.)  Here  also 
there  was  fraud :  the  defendant  represented  the  coach  to  be  in  a 
proper  state  for  use,  and  whether  he  represented  that  w^hich  was 
false  within  his  knowledge,  or  a  fact  as  true  which  he  did  not  know 
to  be  so,  it  was  equally  a  fraud  in  point  of  law,  for  which  he  is  re- 
sponsible. 

Lord  Abinger,  C.  B.  I  am  clearly  of  opinion  that  the  defendant 
is  entitled  to  our  judgment.  We  ought  not  to  permit  a  doubt  to 
rest  upon  this  subject,  for  our  doing  so  might  be  the  means  of  letting 
in  upon  us  an  infinity  of  actions.  This  is  an  action  of  the  first  im- 
pression, and  it  has  been  brought  in  spite  of  the  precautions  which 
were  taken,  in  the  judgment  of  this  Court  in  the  case  of  Levy  v. 
Langridge,  to  obviate  any  notion  that  such  an  action  could  be  main- 
tained. We  ought  not  to  attempt  to  extend  the  principle  of  that  de- 
cision, which,  although  it  has  been  cited  in  supjiort  of  this  action, 
wholly  fails  as  an  authority  in  its  favor ;  for  there  the  gun  was  bought 
for  the  use  of  the  son,  the  plaintiff  in  that  action,  who  could  not  make 
the  bargain  himself,  but  was  really  and  substantially  the  party  con- 
tracting. Here  the  action  is  brought  simply  because  the  defendant 
was  a  contractor  with  a  third  person;    and  it  is  contended  that  there 


1046  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

upon  he  became  liable  to  everybody  who  might  use  the  carriage.  If 
there  had  been  any  ground  for  such  an  action,  there  certainly  would 
have  been  some  precedent  of  it;  but  with  the  exception  of  actions 
against  inn-keepers,  and  some  few  other  persons,  no  case  of  a  sim- 
ilar nature  has  occurred  in  practice.  That  is  a  strong  circumstance, 
and  is  of  itself  a  great  authority  against  its  maintenance.  It  is  how- 
ever contended,  that  this  contract  being  made  on  the  behalf  of  the 
public  by  the  Postmaster-General,  no  action  could  be  maintained 
against  him,  and  therefore  the  plaintiff  must  have  a  remedy  against" 
the  defendant.  But  that  is  by  no  means  a  necessary  consequence, 
— he  may  be  remediless  altogether.  There  is  no  privity  of  contract 
between  these  parties;  and  if  the  plaintiff  can  sue,  every  passenger, 
or  even  any  person  passing  along  the  road,  who  was  injured  by  the 
upsetting  of  the  coach,  might  bring  a  similar  action.  Unless  we  con- 
fine the  operation  of  such  contracts  as  this  to  the  parties  who  entered 
into  them,  the  most  absurd  and  outrageous  consequences,  to  which 
I  can  see  no  limit,  would  ensue.  Where  a  party  becomes  responsible 
to  the  public,  by  undertaking  a  public  duty,  he  is  liable,  though  the 
injury  may  have  arisen  from  the  negligence  of  his  servant  or  agent. 
So,  in  cases  of  public  nuisances,  whether  the  act  was  done  by  the 
party  as  a  servant,  or  in  any  other  capacity,  you  are  liable  to  an 
action  at  the  suit  of  any  person  who  suffers.  Those,  however,  are 
cases  where  the  real  ground  of  the  liability  is  the  public  duty,  or  the 
commission  of  the  public  nuisance.  There  is  also  a  class  of  cases  in 
which  the  law  permits  a  contract  to  be  turned  into  a  tort;  but  unless 
there  has  been  some  public  duty  undertaken,  or  public  nuisance  com- 
mitted, they  are  all  cases  in  which  an  action  might  have  been  main- 
tained upon  the  contract.  Thus,  a  carrier  may  be  sued  either  in  as- 
sumpsit or  case ;  but  there  is  no  instance  in  which  a  party,  w^ho  was 
not  privy  to  the  contract  entered  into  with  him,  can  maintain  any 
■  such  action.  The  plaintiff'  in  this  case  could  not  have  brought  an 
action  on  the  contract;  if  he  could  have  done  so,  what  would  have 
been  his  situation,  supposing  the  Postmaster-General  had  released  the 
defendant?  That  would,  at  all  events,  have  defeated  his  claim 
altogether.  By  permitting  this  action,  we  should  be  working  this 
injustice,  that  after  the  defendant  had  done  everything  to  the  satis- 
faction of  his  employer,  and  after  all  matters  between  them  had  been 
adjusted,  and  all  accounts  settled  on  the  footing  of  their  contract, 
we  should  subject  them  to  be  ripped  open  by  this  action  of  tort  being 
brought  against  him. 

Aldkrson,  B.  I  am  of  the  same  opinion.  The  contract  in  this 
case  was  made  with  the  Postmaster-General  alone ;  and  the  case  is 
just  the  same  as  if  he  had  come  to  the  defendant  and  ordered  a  car- 
riage, and  handed  it  at  once  over  to  Atkinson.  If  we  were  to  hold 
that  the  plaintiff  could  sue  in  such  a  case,  there  is  no  point  at  which 
such  actions  would  stop.  The  only  safe  rule  is  to  confine  the  right 
to  recover  to  those  who  enter  into  the  contract:    if  we  go  one  step 


Ch.  1)  NEGLIGENCE  1047 

beyond  that,  there  is  no  reason  why  we  should  not  go  fifty.  The 
only  real  argument  in  favor  of  this  action  is,  that  this  is  a  case  of 
hardship;  but  that  might  have  been  obviated  if  the  plaintiff  had 
made  himself  a  party  to  the  contract.  Then  it  is  urged  that  it  falls 
within  the  principle  of  the  case  of  Levy  v.  Langridge.  But  the  prin- 
ciple of  that  case  is  simply  this,  that  the  father  having  bought  the 
gun  for  the  very  purpose  of  being  used  by  the  plaintifif,  the  defend- 
ant made  representations  by  which  he  was  induced  to  use  it.  There, 
a  distinct  fraud  was  committed  on  the  plaintifif;  the  falsehood  of  the 
representation  was  also  alleged  to  have  been  within  the  knowledge 
of  the  defendant  who  made  it,  and  he  was  properly  held  liable  for  the 
consequences.  How  are  the  facts  of  that  case  applicable  to  those  of 
the  present?  Where  is  the  allegation  of  fraud  or  misrepresentation 
in  this  declaration?  It  shows  nothing  of  the  kind.  Our  judgment 
must  therefore  be   for  the  defendant. 

RoLFE,  B.  The  breach  of  the  defendant's  duty,  stated  in  the  dec- 
laration, is  his  omission  to  keep  the  carriage  in  a  safe  condition;  and 
when  we  examine  the  mode  in  which  that  duty  is  alleged  to  have 
arisen,  we  find  a  statement  that  the  defendant  took  upon  himself, 
to  wit,  under  and  by  virtue  of  the  said  contract,  the  sole  and  ex- 
clusive duty,  charge,  care,  and  burden  of  the  repairs,  state,  and  con- 
dition of  the  said  mail  coach,  and,  during  all  the  time  aforesaid,  it 
had  become,  and  was  the  sole  and  exclusive  duty  of  the  defendant, 
to  wit,  under  and  by  virtue  of  his  said  contract,  to  keep  and  maintain 
the  said  mail  coach  in  a  fit,  proper,  safe,  and  secure  condition.  The 
duty,  therefore,  is  shown  to  have  arisen  solely  from  the  contract ; 
and  the  fallacy  consists  in  the  use  of  the  word  "duty."  If  a  duty 
to  the  Postmaster-General  be  meant,  that  is  true ;  but  if  a  duty  to  the 
plaintiff  be  intended  (and  in  that  sense  the  word  is  evidently  used), 
there  was  none.  This  is  one  of  those  unfortunate  cases  in  which 
there  certainly  has  been  damnum,  but  it  is  damnum  absque  injuria; 
it  is,  no  doubt,  a  hardship  upon  the  plaintiff  to  be  without  a  remedy,  but 
by  that  consideration  we  ought  not  to  be  influenced.  Hard  cases,  it 
has  been  frequently  observed,  are  apt  to  introduce  bad  law. 

Judgment  for  the  defendant. 


GALBRAITH  v.  ILLINOIS  STEEL  CO. 

(Circuit  Court  of  Appeals  of  the  United  States,  Seveiitli  Circuit,  1904. 
GO  C.  C.  A.  359,  133  Fed.  485,  2  L.  R.  A.  [X.  S.]  799.1 

This  was  an  action  on  the  case  against  the  Illinois  Steel  Company. 

At  the  conclusion  of  the  plaintiff's  evidence,  the  court,  on  defendant's 

motion,  directed  a  verdict  for  the  defendant,  and  entered  judgment 

thereon.     The  plaintiff  brings  error  to  reverse  this  judgment.     The 

facts  in  the  case  were  as  follows : 

The   phiintiff,  owner  of   a  six-story   I)nsiness  l)lock   in   Chicairo,  c-ontra<ted 
with    the    Manufacturers'    Automatic   Sprinliler    Company    to    install    in    her 


1048  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

building  a  complete  sprinkler  system.  Among  other  things,  the  sprinkler 
company  agreed  to  construct  on  top  of  the  building,  according  to  plans  of 
Ritter  &  Mott,  engineers,  a  steel  framework  on  which  to  stand  a  wooden  tank 
of  20,000  gallons  capacity.  The  sprinkler  company  contracted  with  the  defend- 
ant to  erect  the  steel  support.  Defendant  was  given  the  drawings  and  si>ecifi- 
cations  prepared  by  Ritter  <&  Mott,  and  in  making  therefrom  its  shop  plans, 
and  in  putting  up  the  steel  support,  omitted  a  tie  member — one  side  of  the 
triangular  top.  Ritter  <&  Mott's  plans  informed  defendant  that  a  tank  16 
feet  in  diameter  would  rest  upon  the  steel  support,  but  did  not  disclose  the 
height  and  capacity  of  the  tank.  Defendant  did  its  work  in  the  manner  above 
stated,  and  left  the  building.  Thereafter  a  tank  company  employed  by  the 
sprinkler  company  came  upon  the  building  and  made  and  placed  the  tank. 
Then  the  sprinkler  company  connected  the  tank  with  the  system  of  pipes 
and  sprinkler  heads  throughout  the  building.  The  tank  was  filled  and  the 
system  was  maintained  by  plaintiff  for  30  days  before  the  accident  occurred 
which  gave  rise  to  this  controversy.  The  steel  support  weighed  5  tons ;  the 
tank  and  water,  85.  The  wind,  blowing  at  40  miles  an  hour  against  the  tank 
surface,  caused  the  structure  to  collapse.  The  evidence  tends  to  prove  that 
the  collapse  would  not  have  happened,  except  for  the  absence  of  the  tie  mem- 
ber. Plaintiff  paid  out  large  sums  in  repairing  the  building  and  sprinkler 
system,  in  reimbursing  tenants  for  damage  to  goods,  and  in  settling  personal 
injurj'  claims.    To  recover  these,  she  brought  this  action. 

Baker,  Circuit  Judge  (after  stating  the  facts).  Plaintiff  contends 
that  defendant,  outside  and  independently  of  its  contract  with  the 
sprinkler  company,  owed  her  a  duty  to  use  reasonable  care  in  con- 
structing the  steel  support;  that  the  evidence  shows  that  defendant 
failed  to  exercise  such  care ;  that  such  failure  was  the  proximate  cause 
of  her  losses;  and  therefore  that  she  has  made  out  a  good  cause  of 
action  against  defendant.  And  in  support  of  her  contention  plaintiff 
cites  numerous  authorities. '^^ 

On  the  other  hand,  defendant  insists  that  this  case  falls  within  the 
rule  that  a  contractor,  manufacturer,  or  vender  is  not  liable  to  persons 
who  have  no  contractual  relations  with  him  for  negligence  in  the  con- 
struction, manufacture,  or  sale  of  the  article  he  handles,  and  illustrates 
its  argument  by  comparison  with  many  cases. '^ 

71  Sibley  on  the  Right  to  and  Cause  for  Action,  p.  44;  Enc.  of  Law  &  Proce- 
dure (section  on  "Actions") ;  Whitaker's  Smith  on  Negligence  (2d  Ed.)  p. 
Ill;  also  page  32;  Pollock  on  Torts  (Ed.  1887)  pp.  347,  350;  Bickford  v. 
Richards  (1891)  154  Mass.  163,  27  N.  E.  1014,  26  Am.  St.  Rep.  224;  Bishop 
on  Noncontract  Law,  §  79 ;  Thompson's  Commentaries  on  the  Law  of  Negli- 
gence, vol.  1,  p.  626;  Addisou  on  Torts  (i>udley  &  B.  Ed.)  p.  17;  Shear- 
man &  Redfield  on  Neglicence  (4th  Ed.)  vol.  1,  p.  23,  §  22;  Huset  v.  J.  I. 
Case  Threshing  Machine  Company  (1903)  120  Fed.  865,  57  C.  C.  A.  237,  61  L. 
R.  A,  303. 

7  2  Winterbottom  v.  Wright  (1842)  10  M.  &  W.  109;  Collis  v.  Selden  (1868) 
3  C.  P.  495;  Mayor  of  Albanv  v.  Cuuliff  (1849)  2  N.  Y.  165;  Loop  v.  Litch- 
field (1870)  42  N.  Y.  351,  1  Am.  Rep.  513 ;  Losee  v.  Clute  (1873)  51  N.  Y.  494,  10 
Am.  Rep.  638;  Necker  v.  Harvey  (1883)  49  Mich.  517,  14  N.  W.  503;  Daugherty 
V.  Herzog  (1890)  145  Ind.  255,  44  N.  E.  457,  32 /L.  R.  A.  837,  57  Am.  St.  Rep. 
204;  Curtin  v.  Somerset  (1891)  140  Pa.  70,  21  Atl.  244,  12  L.  R.  A.  322,  23 
Am.  St.  Rep.  220;  Fitzmaurice  v.  Fabian  (1892)  147  Pa.  199,  23  Atl.  444; 
Heizer  v.  Kiugsland  &  Douglass  Mfg.  Co.  (1892)  110  Mo.  605,  19  S.  W.  030,  15 
L.  R.  A.  821,  33  Am.  St.  Rep.  482 ;  Bailey  v.  Northwestern,  etc.,  Gas  Co. 
(1890)  4  Ohio  Cir.  Ct.  R.  471;  Buidick  v.  Cheadle  (1875)  26  Ohio  St.  393,  20 
Am.  Rep.  707;  Davidson  v.  Nichols  (1860)  93  Mass.  (11  Allen)  514;  Carter 
V.  Harden  (ISSG)  78  Me.  528,  7  Atl.  ."{92;  McCaffrey  v.  Mossberg  & 
Granville  Mfg.  Co.  (1901)  23  R.  I.  381,  50  Atl.  651,  55  L.  R.  A.  822,  91  Am. 


Ch.  1)  NEGLIGENCE  1049 

If  the  sprinkler  company  had  suffered  from  defendant's  omission 
of  the  tie  member,  that  company  could  have  maintained  against  de- 
fendant an  action  ex  contractu,  for  defendant  had  engaged  to  put 
in  the  tie  member,  or  an  action  ex  delicto,  for  defendant  failed  to 
discharge  a  duty  it  had  assumed  to  the  sprinkler  company.  In  both 
cases  the  measure  of  right  and  duty  would  be  the  same,  because  it 
would  be  intolerable  that  an  action  ex  delicto  should  be  maintained 
by  one  contracting  party  against  the  other  on  account  of  the  complete 
and  exact  performance  of  the  contract.  If  defendant  owed  to  the 
sprinkler  company  any  duty  to  exercise  care  that  the  completed  struc- 
ture should  withstand  the  wind,  then,  if  the  contract  had  called  for 
the  very  steel  support  that  defendant  erected,  full  performance  of 
the  contract  would  be  no  defense  to  an  action  ex  delicto  for  breach  of 
the  supposititious  duty.  It  follows  that  the  only  duty  owing  by  de- 
fendant to  the  sprinkler  company  was  to  perform  the  contract  as  it 
was  made,  and  that  the  only  party  who  could  sue  defendant  for  a 
breach  of  the  duty  that  was  created  and  measured  by  the  contract  was 
defendant's   contractee,   the   sprinkler   company. 

Plaintiff  cannot  recover  from  defendant  simply  by  showing  defend- 
ant's breach  of  its  contract  with  the  sprinkler  company,  nor  simply 
by  showing  defendant's  breach  of  its  duty  to  the  sprinkler  company. 
There  was  no  contract  relation  between  the  parties  to  this  case.  What 
duty  arose  from  the  fact  that  defendant  went  upon  plaintiff's  building 
to  execute  its  contract  with  the  sprinkler  company?  There  is  the 
general  maxim  of  the  law  of  negligence  that  one,  in  following  his  busi- 
ness or  pleasure,  shall  use  reasonable  care  to  avoid  injury  to  others. 
That  is  a  duty  owing  from  everybody  to  everybody.  And  in  this 
case,  if  defendant's  workmen,  during  the  erection  of  the  steel  support, 
had  negligently  dropped  a  girder  on  a  passer-by  in  the  street,  or  down 
through  the  roof  and  floors  of  plaintiff's  building,  Bickford  v.  Rich- 
ards, 154  Mass.  163,  27  N.  E.  1014,  26  Am.  St.  Rep.  224,  and  other 
decisions,  would  be  good  precedents  for  applying  the  maxim.  In  such 
a  case  there  would  be  a  breach  of  a  duty  that  was  not  created  and 
measured  by  the  contract,  and  the  inquiry  whether  defendant,  on  final- 
ly leaving  the  premises,  had  fully  completed  its  contract,  or  had  neg- 
ligently failed  in  its  duty  in  that  regard,  would  be  utterly  irrelevant. 

But  plaintiff's  case  requires  her  to  assert  that  defendant  owed  her 
the  duty  to  use  reasonable  care  to  see  to  it,  before  leaving  the  job  of 

St.  Rep.  637;  Burke  v.  De  Castro  (1877)  11  Hun  (N.  Y.)  354;  Swan  v.  Jackson 
(1889)  55  Hun,  194,  7  N.  Y.  Sui>p.  S21 ;  Savings  Bank  v.  Ward  (1S79)  100  U. 
S.  195,  25  L.  Ed.  621;  Goodlander  Mill  Co.  v.  Standard  Oil  Co.  (1894)  63  Fed. 
400,  11  C.  C.  A.  253,  27  L.  R.  A.  583 ;  Brandon  v.  Perkins-Campbell  Co.  (1898) 
87  Fed.  109,  30  C.  C.  A.  567,  66  L.  R.  A.  924 ;  Huset  v.  J.  1.  Case  Threshing 
Machine  Co.  (1903)  120  Fed.  865,  57  C.  C.  A.  237,  61  L.  R.  A.  303;  Salliotte 
V.  King  Bridge  Co.  (1903)  122  Fed.  378,  58  C.  C.  A.  406,  65  L.  R.  A.  620 ;  Blake- 
more  V.  B.  &  E.  Ry.  Co.  (1858)  8  El.  &  Bl.  1035 ;  Barrett  v.  Singer  Mfg.  Co. 
(1809)  31  N.  Y.  Super.  Ct.  545;  Mar^-in  S:ife  Co.  v.  Ward  (18JS4)  46  N.  J. 
Law,  19;  Marquardt  v.  Ball  Engine  Co.  (1903)  122  Fed.  374,  58  C.  C.  A.  402; 
Wharton  on  Negligence  (2d  Ed.)  438. 


1050  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

erecting  the  steel  support,  that  the  final  structure  would  not  be  apt 
to  be  blown  over  on  account  of  the  lack  of  the  proper  number  of 
steel  girders  to  make  it  safe.  If  such  a  duty  existed,  it  would  be  one 
owing  equally  to  the  passer-by  in  the  street,  it  would  have  being  sep- 
arate and  apart  from  the  duty  that  was  created  and  measured  by  the 
contract  between  defendant  and  the  sprinkler  company,  and  it  might 
or  might  not  be  coextensive  with  defendant's  duty  to  the  sprinkler 
company.  If  it  were  coextensive,  it  would  be  for  the  reason  that 
defendant's  contract  with  the  sprinkler  company  called  for  such  a 
steel  support  that  the  final  structure  would  be  reasonably  safe.  And 
since  a  duty  cannot  be  shifted,  defendant  could  not  rely  on  the  pro- 
posal of  its  customer,  but  would  have  to  determine  for  itself,  and  at 
its  own  peril,  whether  or  not  the  steel  support  shown  in  the  proposed 
contract  would  in  fact  be  sufficient  to  co-operate  properly -with  the 
other  parts  of  the  system  to  make  a  reasonably  safe  final  structure. 
If  defendant's  alleged  duty  to  plaintiff  were  of  dift'erent  dimensions 
from  those  of  its  duty  to  the  sprinkler  company,  it  would  be  for  the 
reason  that  defendant's  contract  with  the  sprinkler  company  did  not 
call  for  such  a  steel  support  that  the  final  structure  would  be  rea- 
sonably safe.  And  in  such  a  case  defendant  would  be  confronted  with 
the  situation  that  its  performance  of  its  duty  to  the  sprinkler  com- 
pany would  be  a  breach  of  its  duty  to  the  rest  of  the  world. 

Defendant's  supposed  duty  to  plaintiff  being  created  by  law,  if  at 
all,  and  therefore  being  absolute,  and  defendant's  duty  to  the  sprinkler 
company  being  of  a  size  determinable  by  the  contracting  parties,  the 
question  of  the  two  duties'  coextensiveness  is  irrelevant,  for,  if  de- 
fendant owed  plaintiff  the  supposed  duty,  that  duty  could  not  be 
diminished  or  altered  by  defendant's  contract  with  another.  Hence, 
in  inquiring  into  the  origin,  nature,  and  extent  of  defendant's  duty 
to  plaintiff,  the  irrelevancy  of  the  terms  of  defendant's  contract  with 
the  sprinkler  company.  And  since  the  terms  of  the  contract  are  im- 
material, it  is  obvious  that  the  question  of  performance  is  impertinent 
on  the  part  of  any  one  but  the  sprinkler  company. 

If  defendant,  constructor  of  one  part,  was  bound  to  use  reasonable 
care  that  the  entirety,  when  turned  over  to  the  possession  and  use  of 
a  stranger,  should  withstand  the  winds,  so  were  the  builders  of  other 
parts.  Take  the  tank  company  for  example.  It  came  upon  the  prem- 
ises after  defendant  had  gone.  The  fact  was  obvious  that  one  side 
of  a  triangle  was  missing.  The  final  eft'ect  of  putting  upon  that  sup- 
port 85  tons'  weight  in  the  form  of  a  sail  was  the  blowing  over  of 
the  structure.  If  defendant  were  required  to  look  beyond  its  con- 
tract, and  to  ascertain  the  weight  of  the  tank  that  was  to  be  furnished 
by  another,  its  capacity,  the  weight  of  the  water,  the  sail  area,  and  the 
speed  of  the  winds,  in  order  to  determine  whether  the  final  and  com- 
pleted structure  would  be  safe,  it  would  be  equally  just  to  require  the 
tank  company  to  figure  (and  with  reasonable  accuracy,  at  its  peril)  on 
the  tensile  and  torsional  strength  of  steel,  and  the  adequacy  of  the 


Ch.  1)  NEGLIGENCE  1051 

designs  for  the  support  on  which  it  engaged  to  set  its  tank.  If  the 
law  should  hold  all  the  builders  and  makers  and  doers  in  the  land  to 
a  particular  duty  to  their  contractees,  and  at  the  same  time  to  another 
absolute  duty  to  use  care  that  the  thing  shall  be  innocuous  as  it  passes 
through  the  hands. of  all  mankind — a  duty  separate  and  distinct  from 
the  first,  which  might  or  might  not  be  coextensive  with  the  first,  but, 
w-hether  so  or  not,  unavailing  to  avoid  the  second — we  fancy  few  per- 
sons would  be  willing  to  do  business,  in  the  face  of  the  insufferable 
litigation  that  would  ensue.  True,  the  common  law — that  inexhaustible 
fount,  of  which  the  taps  are  in  the  hands  of  the  courts — might  have 
been  turned  to  watering  plaintiff's  contention ;  but  we  think  it  evidence 
of  the  perception  of  a  sound  public  policy  that  the  courts,  with  virtual 
unanimity,  have  refrained  from  opening  the  gates. 

To  the  rule  there  are  exceptions.  One  must  not,  knowingly  or  un- 
knowingly, fail  to  exercise  care  in  the  preparation  or  sale  of  an 
article  intended  to  affect  human  life.  One  must  not  knowingly  send 
out  an  instrumentality  w'hich  is  imminently  and  immediately  danger- 
ous, without  notice  of  its  nature  and  qualities.  From  the  steel  sup- 
port, as  defendant  left  it,  no  danger  threatened.  None  came  from 
it  immediately,  but  only  through  additions  and  acts  of  the  tank  com- 
pany, the  sprinkler  company,  and  plaintiff'.  This  case  is  not  within  the 
exceptions.  And  furthermore'  the  subsequent  and  independent  inter- 
vening acts  of  the  tank  company,  the  sprinkler  company,  and  plaintiff 
saved  defendant's  omission  of  the  tie  member  from  being  the  prox- 
imate cause  of  the  accident.'^ 


"3  Judge  Grosscup  dissented:  "Now  one  thing  seems  quite  sure:  The  plain- 
tiff would  have  had,  in  some  form,  a  right  of  action  against  the  Sprinkler 
Company  for  the  damage  resulting ;  for  the  inclusion  of  the  tie  member 
was  in  the  contract  between  them,  and  the  Sprinkler  Company  was  bound 
to  see  that  the  contract  was  perfonned.  Another  thing  seems  certain:  The 
Sprinkler  Company  would  have  had,  in  some  form,  a  right  of  action  against 
the  defendant  for  the  loss  to  which  it  would  thus  be  subjected;  for  the  in- 
clusion of  the  tie  memiier  was  in  the  contract  between  the  Sprinkler  Com- 
pany and  the  defendant,  and  the  defendant  was  bound  to  pex'form  that  con- 
tract. Thus,  by  circumlocution  at  lea.st,  plaintiff's  losses  eventually  would 
have  reached  the  defendant,  through  a  train  of  legal  proceedings  that,  prac- 
tically, would  have  made  the  defendant  directly  responsible  to  the  plain- 
tiff for  the  losses  suffered.  I  am  vevx  nuich  inclined  to  think  that  in  such 
a  case,  where  defendant  is  thus  obligated  to  the  Sprinkler  Company,  and  the 
Sprinkler  Company  to  the  plaintiff,  there  exists  such  privity  of  contract  as 
would  give  the  plaintiff  a  direct  right  of  action,  ex  contractu,  against  the  de- 
fendant. But  I  do  not  rest  my  conclusion  upon  the  existence  of  privity  of 
contract.  In  matters  involving,  as  these  contracts  did,  the  personal  and  prop- 
erty safety  of  others  than  the  immediate  parties  to  the  contracts,  there  is, 
it  seems  to  me,  a  duty  raised  to  take  reasonable  care  that  the  contract  obli- 
gations are  carried  out.  Public  ixjlicy  injects  into  such  a  relationship  an 
obligation  additional  to  the  bare  contractual  obligati(m — an  obligation  mn- 
ning  to  all  who  are  directly  affected  by  the  i>erformauce  or  non-performance 
of  the  ccjiitract.  There  is  thus  raised  between  defendant  agreeing  to  put 
in  an  essential  part  of  the  building,  according  to  plans,  and  specifications,  and 
the  plaintiff"  affected  in  personal  and  property  safety  by  defendant's  perform- 
ance of  that  obligation,  a  privity  of  duty  that  may  be  made  the  basis  of  an 
action  ex  delicto." 


1052  TOUTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

THO^IAS  et  ux.  v.  WINCHESTER. 
(Court  of  Appeals  of  New  York,  1852.    6  N.  Y.  [2  Seld.]  397,  57  Ara.  Dec.  455.) 

This  action  was  brought  by  Samuel  Thomas  and  Mary  Ann,  his 
wife,  against  the  defendants,  Winchester  and  Gilbert,  to  recover  dam- 
ages for  neghgently  putting  up,  labelHng,  and  selHng,  as  and  for  ex- 
tract of  dandelion,  a  simple  and  harmless  medicine,  a  jar  of  extract 
of  belladonna,  a  deadly  poison ;  by  means  whereof,  the  plaintiff.  Alary 
Ann  Thomas,  to  whom  a  dose  of  dandelion  had  been  prescribed  by 
a  physician,  and  to  whom  a  portion  of  the  jar  of  belladonna  had  been 
administered,  as  for  extract  of  dandelion,  had  been  greatly  injured. 

The  complaint  alleged,  that  the  defendants,  from  the  year  1843,  to 
the  first  of  January  1849,  were  engaged  in  putting  up  and  vending 
certain  vegetable  extracts,  at  a  store  in  the  city  of  New  York,  desig- 
nated as  "108  John  street,"  and  that  the  defendant,  Gilbert,  had,  for 
a  long  time  previously  thereto,  been  so  engaged,  at  the  same  place. 
That  among  the  extracts  so  prepared  and  sold  by  them,  were  those 
respectively  known  as  the  "extract  of  dandelion,"  and  the  "extract  of 
belladonna" ;  the  former  a  mild  and  harmless  medicine  and  the  lat- 
ter a  vegetable  poison,  which,  if  taken  as  a  medicine  in  such  quantity 
as  might  be  safely  administered  of  the  former,  would  destroy  the 
life,  or  seriously  impair  the  health,  of  the  person  to  whom  the  same 
might  be  administered.  That,  at  some  time  between  the  periods  above 
mentioned,  the  defendants  put  up  and  sold  to  James  S.  Aspinwall,  a 
druggist  in  the  city  of  New  York,  a  jar  of  the  extract  of  belladonna, 
which  had  been  labelled  by  them  as  the  extract  of  dandelion,  and  was 
purchased  from  them  as  such,  by  Aspinwall.  That  Aspinwall  after- 
wards, on  the  10th  May  1845,  relying  upon  the  label  so  affixed  by  the 
defendants,  sold  the  said  jar  of  belladonna  to  Alvin  Foord,  a  druggist 
of  Cazcnovia,  in  the  county  of  Madison,  as  the  extract  of  dandelion. 
That  afterwards,  on  the  27th  March  1849,  the  plaintiff,  Airs.  Thomas, 
being  sick,  a  portion  of  the  extract  of  dandelion  w^as  prescribed  for 
her,  by  her  physician,  and  the  said  Alvin  Foord,  relying  upon  the 
label  affixed  by  the  defendants  to  said  jar  of  belladonna,  and  believing 
the  same  to  be  the  extract  of  dandelion,  did,  on  the  application  of  the 
plaintiff,  Samuel  Thomas,  sell  and  deliver  to  him,  from  the  said  jar 
of  belladonna,  a  portion  of  its  contents,  which  was  administered  to 
the  plaintiff,  Mrs.  Thomas,  under  the  belief  that  it  was  the  extract 
of  dandelion;  by  which  she  was  greatly  injured,  so  that  her  life  was 
despaired  of,  &c.  The  plaintiffs  also  averred  that  the  whole  injury 
was  occasioned  by  the  negligence  and  unskilfulness  of  the  defendants 
in  putting  up  and  falsely  labelling  the  jar  of  belladonna  as  the  extract 
of  dandelion,  whereby  the  plaintiffs,  as  well  as  the  druggists,  and  all 
other  persons  through  whose  hands  it  passed,  before  being  admin- 
istered as  aforesaid,  were  induced  to  believe  and  did  believe  that  it 
contained  the  extract  of  dandelion. 


Ch.  1)  NEGLIGENCE  1053 

The  defendants,  in  their  answers,  severally  denied  the  allegations 
of  the  complaint,  and  insisted  that  they  were  not  liable  for  the  med- 
icines sold  by  Aspinwall  and  Foord. 

It  was  proved,  on  the  trial  before  Mason,  J.,  that  Mrs.  Thomas  being 
in  ill  health,  her  physician  prescribed  for  her  a  dose  of  dandelion.  Her 
husband  purchased  what  was  believed  to  be  the  medicine  prescribed, 
at  the  store  of  Dr.  Foord,  a  physician  and  druggist  in  Cazenovia, 
IMadison  county,  where  the  plaintitTs  resided.  A  small  quantity  of  the 
medicine  thus  purchased  was  administered  to  ]\Irs.  Thomas,  on  whom 
it  produced  very  alarming  effects ;  such  as  coldness  of  the  surface 
and  extremities,  feebleness  of  circulation,  spasms  of  the  muscles, 
giddiness  of  the  head,  dilation  of  the  pupils  of  the  eyes,  and  derange- 
ment of  the  mind.  She  recovered,  however,  after  some  time,  from 
its  effects,  although  for  a  short  time  her  life  was  thought  to  be  in 
great  danger. 

The  medicine  administered  was  belladonna  and  not  dandelion.  The 
jar  from  which  it  was  taken  was  labelled  "^/slb.  dandelion,  prepared 
by  A.  Gilbert,  No.  108  John  street,  N.  Y.  Jar  8  oz."  It  was  sold 
for,  and  believed  by  Dr.  Foord  to  be,  the  extract  of  dandelion,  as 
labelled.  Dr.  Foord  purchased  the  article  as  the  extract  of  dandelion, 
from  James  S.  Aspinwall,  a  druggist  at  New  York.  Aspinwall 
bought  it  of  the  defendant,  as  extract  of  dandelion,  believing  it  to  be 
such. 

The  defendant,  Winchester,  was  engaged  at  108  John  street,  New 
York,  in  the  manufacture  and  sale  of  certain  vegetable  extracts  for 
medicinal  purposes,  and  in  the  purchase  and  sale  of  others.  The  ex- 
tracts manufactured  by  him  were  put  up  in  jars  for  sale,  and  those 
which  he  purchased  were  put  up  by  him  in  like  manner.  The  jars  con- 
taining extracts  manufactured  by  himself  and  those  containing  ex- 
tracts purchased  by  him  from  others,  were  labelled  alike.  Both  were 
labelled  like  the  jar  in  question,  as  "prepared  by  A.  Gilbert."  Gil- 
bert was  a  person  employed  by  the  defendant  at  a  salary,  as  an  assist- 
ant in  his  business.  The  jars  were  labelled  in  Gilbert's  name  because 
he  had  been  previously  engaged  m  the  same  business,  on  his  own  ac- 
count, at  No.  108  John  street,  and,  probably,  because  Gilbert's  labels 
rendered  the  articles  more  salable. 

The  extract  contained  in  the  jar  sold  to  Aspinwall,  and  by  him  to 
Foord,  was  not  manufactured  by  the  defendant,  but  was  purchased  by 
him  from  another  manufacturer  or  dealer.  The  extract  of  dandelion 
and  the  extract  of  belladonna  resemble  each  other  in  color,  consistence, 
smell  and  taste;  but  may,  on  careful  examination,  be  distinguished  the 
one  from  the  other  by  those  who  are  well  acquainted  with  these  ar- 
ticles. Gilbert's  labels  were  paid  for  by  Winchester,  and  used  in  his 
business  with  his  knowledge  and  assent. 

At  the  close  of  the  testimony,  the  defendant's  counsel  moved  for  a 
nonsuit,  on  the  following  grounds: 


1054  TOUTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

1.  That  tlie  action  could  not  be  sustained,  as  the  defendant  was 
the  remote  vendor  of  the  article  in  question ;  and  there  was  no  connec- 
tion, transaction  or  privity  between  him  and  the  plaintiffs,  or  either  of 
them.     *     *     * 

The  defendant  Gilbert  was  acquitted  by  the  jury,  and  a  verdict  was 
rendered  against  Winchester  for  $800  damages ;  and  a  motion  for  a 
new  trial,  made  at  general  term,  upon  a  bill  of  exceptions,  having  been 
denied,  and  judgment  perfected  on  the  verdict,  the  defendant,  Win- 
chester, took  this  appeal. 

RuGGLiSS,  C.  J.  (after  stating  the  facts).  *  *  *  The  action  was 
properly  brought  in  the  name  of  the  husband  and  wife,  for  the  per- 
sonal injury  and  suft'ering  of  the  wife;  and  the  case  was  left  to  the 
jury,  with  the  proper  direction  on  that  point.     1  Chit.  Plead.  62. 

The  case  depends  on  the  first  point  taken  by  the  defendant,  on  his 
motion  for  a  nonsuit ;  and  the  question,  is,  whether  the  defendant,  be- 
ing a  remote  vendor  of  the  medicine,  and  there  being  no  privity  or 
connection  between  him  and  the  plaintiffs,  the  action  can  be  main- 
tained. If,  in  labelling  a  poisonous  drug  with  the  name  of  a  harmless 
medicine,  for  public  market,  no  duty  was  violated  by  the  defendant, 
excepting  that  which  he  owed  to  Aspinwall,  his  immediate  vendee,  in 
virtue  of  his  contract  of  sale,  this  action  cannot  be  maintained. 

If  A.  build  a  wagon  and  sell  it  to  B.,  who  sells  it  to  C,  and  C.  hires 
it  to  D.  who  in  consequence  of  the  gross  negligence  of  A.,  in  building 
the  wagon,  is  overturned  and  injured,  D.  cannot  recover  damages 
against  A.,  the  builder.  A.'s  obligation  to  build  the  wagon  faithfully, 
arises  solely  out  of  his  contract  with  B. ;  the  public  have  nothing  to 
do  with  it.  Misfortune  to  third  persons  not  parties  to  the  contract, 
would  not  be  a  natural  and  necessary  consequence  of  the  builder's  neg- 
ligence ;  and  such  negligence  is  not  an  act  imminently  dangerous  to 
human  life.  So,  for  the  same  reason,  if  a  horse  be  defectively  shod  by 
a  smith,  and  a  person  hiring  the  horse  from  the  owner,  is  thrown  and 
injured,  in  consequence  of  the  smith's  negligence  in  shoeing,  the  smith 
is  not  liable  for  the  injury.  The  smith's  duty  in  such  case  grows 
exclusively  out  of  his  contract  with  the  owner  of  the  horse ;  it  was 
a  duty  which  the  smith  owed  to  him  alone ;  and  to  no  one  else.  And 
although  the  injury  to  the  rider  may  have  happened  in  consequence  of 
the  negligence  of  the  smith,  the  latter  was  not  bound,  either  by  his 
contract,  or  by  any  considerations  of  public  policy  or  safety,  to  respond 
for  his  breach  of  duty  to  any  one  except  the  person  he  contracted  with. 

This  was  the  ground  on  which  the  case  of  Winterbottom  v.  Wright, 
10  Mees.  &  Welsh.  109,  was  decided.  A.  contracted  with  the  post- 
master-general to  provide  a  coach  to  convey  the  mail-bags  along  a  cer- 
tain line  of  road,  and  B.  and  others  also  contracted  to  horse  the  coach 
along  the  same  line.  B.  and  his  co-contractors  hired  C,  who  was  the 
plaintiff,  to  drive  the  coach.  The  coach,  in  consequence  of  some  latent 
defect,  broke  down  ;  the  plaintiff  was  thrown  from  his  seat  and  lam- 
ed.    It  was  held,  that  C.  could  not  maintain  an  action  against  A.,  for 


Ch.  1)  NEGLIGENCE  1055 

the  injur}'  thus  sustained.  The  reason  of  the  decision  is  best  stated 
by  Baron  Rolfe :  A.'s  duty  to  keep  the  coach  in  good  condition,  was  a 
duty  to  the  postmaster-general,  with  whom  he  made  his  contract,  and 
not  a  duty  to  the  driver  employed  by  the  owners  of  the  horses. 

But  the  case  in  hand  stands  on  a  ditlerent  ground.  The  defendant 
was  a  dealer  in  poisonous  drugs;  Gilbert  was  his  agent  in  preparing 
them  for  market.  The  death  or  great  bodily  harm  of  some  person, 
was  the  natural,  and  almost  inevitable,  consequence  of  the  sale  of 
belladonna  by  means  of  the  false  label.  Gilbert,  the  defendant's  agent, 
would  have  been  punishable  for  manslaughter,  if  Mrs.  Thomas  had 
died,  in  consequence  of  taking  the  falsely-labelled  medicine.  Every 
man  who  by  his  culpable  negligence,  causes  the  death  of  another,  al- 
though without  intent  to  kill,  is  guilty  of  manslaughter.  2  R.  S.  672. 
A  chemist  who  negligently  sells  laudanum  in  a  phial  labelled  as  pare- 
goric, and  thereby  causes  the  death  of  the  person  to  whom  it  is  adminis- 
tered, is  guilty  of  manslaughter.  Tessymond's  Case,  1  Lewin's  Crown 
Cases,  169.  "So  highly  does  the  law  value  human  life,  that  it  admits 
of  no  justification,  wherever  life  has  been  lost  and  the  carelessness  or 
negligence  of  one  person  has  contributed  to  the  death  of  another. 
Regina  v.  Swindall,  2  Car.  &  Kir.  232,  233.  And  this  rule  applies  not 
only  where  the  death  of  one  is  occasioned  by  the  negligent  act  of  an- 
other, but  where  it  is  caused  by  the  negligent  omission  of  a  duty  of 
that  other.  2  Car.  &  Kir.  367,  371.  Although  the  defendant,  Win- 
chester, may  not  be  answerable  criminally  for  the  negligence  of  his 
agent,  there  can  be  no  doubt  of  his  liability,  in  a  civil  action,  in  which 
the  act  of  the  agent  is  to  be   regarded  as  the  act  of  the  principal. 

:)c         ^         5)1   74 

Judgment  affirmed. 


HEAVEN  v.  PENDER. 

(In  the  Court  of  Appeal,  1883.    11  Q.  B.  Div.  503.) 

Action  to  recover  damages  for  injuries  sustained  by  the  plaintiff 
through  the  alleged  negligence  of  the  defendant.  The  action  was  re- 
mitted for  trial  before  the  Bow  County  Court,  where  judgment  was 
given  for  the  plaintiff  for  £20.  The  Queen's  Bench  Division,  on  mo- 
tion by  way  of  appeal,  ordered  judgment  to  be  entered  for  the  defend- 
ant.    The  plaintiff  appealed. 

Bre;tt,  AI.  R.  In  this  case  the  plaintiff  was  a  workman  in  the  em- 
ploy of  Gray,  a  ship  painter.  Gray  entered  into  a  contract  with  a  ship- 
owner whose  ship  was  in  the  defendant's  dock  to  paint  the  outside  of 
his  ship.  The  defendant,  the  dock  owner,  sui)plied,  under  a  contract 
with  the  shipowner,  an  ordinary  stage  to  be  slung  in  the  ordinary  way 
outside  the  ship  for  the  purpose  of  painting  her.     It  must  have  been 

74  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  oniittod. 


1056  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

known  to  the  defendant's  servants,  if  they  had  considered  the  matter 
at  all,  that  the  stage  would  be  put  to  immediate  use,  that  it  would  not 
be  used  by  the  shipowner,  but  that  it  would  be  used  by  such  a  person 
as  the  plaintifif,  a  working  ship  painter.  The  ropes  by  which  the  stage 
was  slung,  and  which  were  supplied  as  a  part  of  the  instrument  by  the 
defendant,  had  been  scorched  and  were  unfit  for  use  and  were  sup- 
plied without  a  reasonably  careful  attention  to  their  condition.  When 
the  plaintiff  began  to  use  the  stage  the  ropes  broke,  the  stage  fell,  and 
the  plaintiff  was  injured.  The  Divisional  Court  held  that  the  plaintiff 
could  not  recover  against  the  defendant.  The  plaintiff  appealed.  The 
action  is  in  form  and  substance  an  action  for  negligence.  That  the 
stage  was,  through  want  of  attention  of  the  defendant's  servants,  sup- 
plied in  a  state  unsafe  for  use  is  not  denied.  But  want  of  attention 
amounting  to  a  want  of  ordinary  care  is  not  a  good  cause  of  action, 
although  injur)^  ensue  from  such  want,  unless  the  person  charged  with 
such  want  of  ordinary  care  had  a  duty  to  the  person  complaining  to 
use  ordinary  care  in  respect  of  the  matter  called  in  question.  Action- 
able negligence  consists  in  the  neglect  of  the  use  of  ordinary  care  or 
skill  towards  a  person  to  whom  the  defendant  owes  the  duty  of  observ- 
ing ordinary  care  and  skill,  by  which  neglect  the  plaintiff,  without  con- 
tributory- negligence  on  his  part,  has  suft'ered  injury  to  his  person  or 
property.  The  question  in  this  case  is  whether  the  defendant  owed 
such  a  duty  to  the  plaintiff. 

If  a  person  contracts  with  another  to  use  ordinary  care  or  skill  to- 
wards him  or  his  property  the  obligation  need  not  be  considered  in  the 
light  of  a  duty ;  it  is  an  obligation  of  contract.  It  is  undoubted,  how- 
ever, that  there  may  be  the  obligation  of  such  a  duty  from  one  person 
to  another  although  there  is  no  contract  between  them  with  regard  to 
such  duty.  Two  drivers  meeting  have  no  contract  with  each  other,  but 
under  certain  circumstances  they  have  a  reciprocal  duty  towards  each 
other.  So  two  ships  navigating  the  sea.  So  a  railway  company  which 
has  contracted  with  one  person  to  carry  another  has  no  contract  with 
the  person  carried  but  has  a  duty  towards  that  person.  So  the  owner 
or  occupier  of  house  or  land  who  permits  a  person  or  persons  to  come 
to  his  house  or  land  has  no  contract  with  such  person  or  persons,  but 
has  a  duty  towards  him  or  them.  It  should  be  observed  that  the  exist- 
ence of  a  contract  between  two  persons  does  not  prevent  the  existence 
of  the  suggested  duty  between  them  also  being  raised  by  law  independ- 
ently of  the  contract,  by  the  facts  with  regard  to  which  the  contract 
is  made  and  to  which  it  applies  an  exactly  similar  but  a  contract  duty. 
We  have  not  in  this  case  to  consider  the  circumstances  in  which  an 
implied  contract  may  arise  to  use  ordinary  care  and  skill  to  avoid  dan- 
ger to  the  safety  of  person  or  property.  We  have  not  in  this  case  to 
consider  the  question  of  a  fraudulent  misrepresentation  express  or  im- 
plied, which  is  a  well  recognized  head  of  law.  The  questions  which 
we  have  to  solve  in  this  case  are — what  is  the  proper  definition  of  the 
relation  between  two  persons  other  than  the  relation  established  by 


Ch.  1)  NEGLIGENCE  1057 

contract,  or  fraud,  which  imposes  on  the  one  of  them  a  duty  towards 
the  other  to  observe,  with  regard  to  the  person  or  property  of  such 
other,  such  ordinary  care  or  skill  as  may  be  necessary  to  prevent  in- 
jury to  his  person  or  property;  and  whether  the  present  case  falls 
within  such  definition.  When  two  drivers  or  two  ships  are  approach- 
ing each  other,  such  a  relation  arises  between  them  when  they  are  ap- 
proaching each  other  in  such  a  manner  that,  unless  they  use  ordinary 
care  and  skill  to  avoid  it,  there  will  be  danger  of  an  injurious  collision 
between  them.  This  relation  is  established  in  such  circumstances  be- 
tween them,  not  only  if  it  be  proved  that  they  actually  know  and  think 
of  this  danger,  but  whether  such  proof  be  made  or  not.  It  is  estab- 
lished, as  it  seems  to  me,  because  any  one  of  ordinary  sense  who  did 
think  would  at  once  recognize  that  if  he  did  not  use  ordinary  care  and 
skill  under  such  circumstances  there  would  be  such  danger.  And  ev- 
ery one  ought  by  the  universally  recognized  rules  of  right  and  wrong, 
to  think  so  much  with  regard  to  the  safety  of  others  who  may  be  jeop- 
ardized by  his  conduct;  and  if,  being  in  such  circumstances,  he  does 
not  think,  and  in  consequence  neglects,  or  if  he  neglects  to  use  ordi- 
nary care  or  skill,  and  injury  ensue,  the  law,  which  takes  cognizance 
of  and  enforces  the  rules  of  right  and  wrong,  will  force  him  to  give  an 
indemnity  for  the  injury.  In  the  case  of  a  railway  company  carrying 
a  passenger  with  whom  it  has  not  entered  into  the  contract  of  carriage 
the  law  implies  the  duty,  because  it  must  be  obvious  that  unless  ordi- 
nary care  and  skill  be  used  the  personal  safety  of  the  passenger  must 
be  endangered.  With  regard  to  the  condition  in  which  an  owner  or 
occupier  leaves  his  house  or  property  other  phraseology  has  been  used, 
which  it  is  necessary  to  consider.  If  a  man  opens  his  shop  or  ware- 
house to  customers  it  is  said  that  he  invites  them  to  enter,  and  that  this 
invitation  raises  the  relation  between  them  which  imposes  on  the  in- 
viter  the  duty  of  using  reasonable  care  so  to  keep  his  house  or  ware- 
house that  it  may  not  endanger  the  person  or  property  of  the  person 
invited.  This  is  in  a  sense  an  accurate  phrase,  and  as  applied  to  the 
circumstances  a  sufficiently  accurate  phrase.  Yet  it  is  not  accurate 
if  the  word  "invitation"  be  used  in  its  ordinary  sense.  By  opening  a 
shop  you  do  not  really  invite,  you  do  not  ask  A.  B.  to  come  in  to  buy; 
you  intimate  to  him  that  if  it  pleases  him  to  come  in  he  will  find  things 
which  you  are  willing  to  sell.  So,  in  the  case  of  shop,  warehouse,  road, 
or  premises,  the  phrase  has  been  used  that  if  you  permit  a  person  to 
enter  them  you  impose  on  yourself  a  duty  not  to  lay  a  trap  for  him. 
This,  again,  is  in  a  sense  a  true  statement  of  the  duty  arising  from  the 
relation  constituted  by  the  permission  to  enter.  It  is  not  a  statement 
of  what  causes  the  relation  which  raises  the  duty.  What  causes  the 
relation  is  the  permission  to  enter  and  the  entry.  But  it  is  not  a  strict- 
ly accurate  statement  of  the  duty.  To  lay  a  trap  means  in  ordinary 
language  to  do  something  with  an  intention.  Yet  it  is  clear  that  the 
duty  extends  to  a  danger  the  result  of  negligence  without  intention. 
Hepb  .  ToBTS — 67 


1058  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

And  with  regard  to  both  these  phrases,  though  each  covers  the  circum- 
stances to  which  it  is  particularly  applied,  yet  it  does  not  cover  the 
other  set  of  circumstances  from  which  an  exactly  similar  legal  liability 
is  inferred.  It  follows,  as  it  seems  to  me,  that  there  must  be  some 
larger  proposition  which  involves  and  covers  both  sets  of  circumstanc- 
es. The  logic  of  inductive  reasoning  requires  that  where  two  major 
propositions  lead  to  exactly  similar  minor  premises  there  must  be  a 
more  remote  and  larger  premise  which  embraces  both  of  the  major 
propositions.  That,  in  the  present  consideration,  is,  as  it  seems  to  me, 
the  same  proposition  which  will  cover  the  similar  legal  liability  inferred 
in  the  cases  of  collision  and  carriage.  The  proposition  which  these  rec- 
ognized cases  suggest,  and  which  is,  therefore,  to  be  deduced  from 
them,  is  that  whenever  one  person  is  by  circumstances  placed  in  such 
a  position  with  regard  to  another  that  every  one  of  ordinary  sense  who 
did  think  would  at  once  recognize  that  if  he  did  not  use  ordinary  care 
and  skill  in  his  owm  conduct  with  regard  to  those  circumstances  he 
would  cause  danger  of  injury  to  the  person  or  property  of  the  other, 
a  duty  arises  to  use  ordinary  care  and  skill  to  avoid  such  danger.  With- 
out displacing  the  other  propositions  to  which  allusion  has  been  made 
as  applicable  to  the  particular  circumstances  in  respect  of  which  they 
have  been  enunciated,  this  proposition  includes,  I  think,  all  the  rec- 
ognised cases  of  liability.  It  is  the  only  proposition  which  covers  them 
all.  It  may,  therefore,  safely  be  affirmed  to  be  a  true  proposition,  un- 
less some  obvious  case  can  be  stated  in  which  the  liability  must  be  ad- 
mitted to  exist,  and  which  yet  is  not  within  this  proposition.  There 
is  no  such  case.  Let  us  apply  this  proposition  to  the  case  of  one  per- 
son supplying  goods  or  machinery,  or  instruments  or  utensils,  or  the 
like,  for  the  purpose  of  their  being  used  by  another  person,  but  with 
whom  there  is  no  contract  as  to  the  supply.  The  proposition  will  stand 
thus :  whenever  one  person  supplies  goods,  or  machinery,  or  the  like, 
for  the  purpose  of  their  being  used  by  another  person  under  such  cir- 
cumstances that  every  one  of  ordinary  sense  would,  if  he  thought,  rec- 
ognise at  once  that  unless  he  used  ordinary  care  and  skill  with  regard 
to  the  condition  of  the  thing  supplied  or  the  mode  of  supplying  it,  there 
will  be  danger  of  injury  to  the  person  or  property  of  him  for  whose 
use  the  thing  is  supplied,  and  who  is  to  use  it,  a  duty  arises  to  use 
ordinary  care  and  skill  as  to  the  condition  or  manner  of  supplying  such 
thing.  And  for  a  neglect  of  such  ordinary  care  or  skill  whereby  injury 
happens  a  legal  liability  arises  to  be  enforced  by  an  action  for  negli- 
gence. This  includes  the  case  of  goods,  &c.,  supplied  to  be  used  im- 
mediately by  a  particular  person  or  persons  or  one  of  a  class  of  per- 
sons, where  it  would  be  obvious  to  the  person  supplying,  if  he  thought, 
that  the  goods  would  in  all  probability  be  used  at  once  by  such  per- 
sons before  a  reasonable  opportunity  for  discovering  any  defect  which 
might  exist,  and  where  the  thing  supplied  would  be  of  such  a  nature 
that  a  neglect  of  ordinary  care  or  skill  as  to  its  condition  or  the  man- 
ner of  supplying  it  would  probably  cause  danger  to  the  person  or  propn- 


Ch.  1)  NEGLIGENCE  1059 

erty  of  the  person  for  whose  use  it  was  supplied,  and  who  was  about 
to  use  it.  It  would  exclude  a  case  in  which  the  goods  are  supplied  un- 
der circumstances  in  which  it  would  be  a  chance  by  whom  they  would 
be  used  or  whether  they  would  be  used  or  not,  or  whether  they  would 
be  used  before  there  would  probably  be  means  of  observing  any  de- 
fect, or  where  the  goods  would  be  of  such  a  nature  that  a  want  of  care 
or  skill  as  to  their  condition  or  the  manner  of  supplying  them  would 
not  probably  produce  danger  of  injury  to  person  or  property.  The 
cases  of  vendor  and  purchaser  and  lender  and  hirer  under  contract 
need  not  be  considered,  as  the  liability  arises  under  the  contract,  and 
not  merely  as  a  duty  imposed  by  law,  though  it  may  not  be  useless  to 
observe  that  it  seems  difficult  to  import  the  implied  obligation  into  the 
contract  except  in  cases  in  which  if  there  were  no  contract  between  the 
parties  the  law  would  according  to  the  rule  above  stated  imply  the  duty. 
Examining  the  rule  which  has  been  above  enunciated  with  the  cases 
which  have  been  decided  with  regard  to  goods  supplied  for  the  pur- 
pose of  being  used  by  persons  with  whom  there  is  no  contract,  the  first 
case  to  be  considered  is  inevitably  Langridge  v.  Levy,  2  M.  &  W.  519. 
It  is  not  an  easy  case  to  act  upon.  It  is  not,  it  cannot  be,  accurately  re- 
ported ;  the  declaration  is  set  out ;  the  evidence  is  assumed  to  be  re- 
ported ;  the  questions  left  to  the  jury  are  stated.  And  then  it  is  said 
that  a  motion  was  made  to  enter  a  nonsuit  in  pursuance  of  leave  re- 
served on  particular  grotmds.  Those  grounds  do  not  raise  the  question 
of  fraud  at  all,  but  only  the  question  of  remoteness.  And  although 
the  question  of  fraud  seems  in  a  sense  to  have  been  left  to  the  jury, 
yet  no  question  was,  according  to  the  report,  left  to  them  as  to  whether 
the  plaintiff  acted  on  the  faith  of  the  fraudulent  misrepresentation 
which  is,  nevertheless,  a  necessary  question  in  a  case  of  fraudulent 
misrepresentation.  The  report  of  the  argument  makes  the  object  of 
the  argument  depend  entirely  upon  an  assumed  motion  to  arrest  the 
judgment,  which  raises  always  a  discussion  depending  entirely  on  the 
form  of  the  declaration,  and  the  eft'ect  on  it  of  a  verdict,  in  respect  of 
which  it  is  assumed  that  all  questions  were  left  to  the  jury.  If  this 
was  the  point  taken  the  report  of  the  evidence  and  of  the  questions  left 
to  the  jury  is  idle!  The  case  was  decided  on  the  ground  of  the  fraud- 
ulent misrepresentation  as  stated  in  the  declaration.  It  is  inferred  that 
the  defendant  intended  the  representation  to  be  communicated  to  the 
son.  Why  he  should  have  such  an  intention  in  fact,  it  seems  difficult 
to  understand.  His  immediate  object  must  have  been  to  induce  the 
father  to  buy  and  pay  for  the  gun.  It  must  have  been  wholly  indiffer- 
ent to  him  whether  after  the  sale  and  payment  the  gun  would  be  used 
or  not  by  the  son.  I  cannot  hesitate  to  say  that,  in  my  opinion,  the 
case  is  a  wholly  unsatisfactory  case  to  act  on  as  an  authority.  But  tak- 
ing the  case  to  be  decided  on  the  ground  of  a  fraudulent  misrepresen- 
tation made  hypothetically  to  the  son,  and  acted  upon  by  him,  such  a 
decision  upon  such  a  ground,  in  no  way  negatives  the  proposition  that 
the  action  might  have  been  supported  on  the  ground  of  negligence  with- 


1060  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

out  fraud.  It  seems  to  be  a  case  which  is  within  the  proposition  enun- 
ciated in  this  judgment,  and  in  which  the  action  might  have  been  sup- 
ported without  proof  of  actual  fraud.  And  this  seems  to  be  the  mean- 
ing of  Cleasby,  B.,  in  the  observations  he  made  on  Langridge  v.  Levy, 
supra,  in  the  case  of  George  v.  Skivington,  Law  Rep.  5  Ex.  1,  5.  In 
that  case  the  proposition  laid  down  in  this  judgment  is  clearly  adopted. 
The  ground  of  the  decision  is  that  the  article  was,  to  the  knowledge  of 
the  defendant,  supplied  for  the  use  of  the  wife  and  for  her  immediate 
use.  And  certainly,  if  he  or  any  one  in  his  position  had  thought  at  all, 
it  must  have  been  obvious  that  a  want  of  ordinary  care  or  skill  in  pre- 
paring the  prescription  sold,  would  endanger  the  personal  safety  of  the 
wife. 

In  Corby  v.  Hill,  4  C.  B.  (N.  S.)  556,  it  is  stated  by  the  Lord  Chief 
Justice  that  an  allurement  was  held  out  to  the  plaintiff.  And  Willes,  J., 
stated  that  the  defendant  had  no  right  to  set  a  trap  for  the  plaintiff. 
But  in  the  form  of  declaration  suggested  by  Willes,  J.,  on  page  567, 
there  is  no  mention  of  allurement,  or  invitation,  or  trap.  The  facts 
suggested  in  that  form  are,  "that  the  plaintiff  had  license  to  go  on  the 
road,  that  he  was  in  consequence  accustomed  and  likely  to  pass  along 
it,  that  the  defendant  knew  of  that  custom  and  probability,  that  the 
defendant  negligently  placed  slates  in  such  a  manner  as  to  be  likely  to 
prove  dangerous  to  persons  driving  along  the  road,  that  the  plaintiff 
drove  along  the  road,  being  by  reason  of  the  license  lawfully  on  the 
road,  and  that  he  was  injured  by  the  obstruction,"  It  is  impossible  to 
state  a  case  more  exactly  within  the  proposition  laid  down  in  this  judg- 
ment. In  Smith  v.  London  and  St.  Katharine  Docks  Co.,  Law  Rep. 
3  C.  P.  326,  the  phrase  is  again  used  of  invitation  to  the  plaintiff'  by  the 
defendants.  Again,  let  it  be  observed  that  there  is  no  objection  to  the 
phrase  as  applied  to  the  case.  But  the  real  value  of  the  phrase  may 
not  improperly  be  said  to  be,  that  invitation  imports  knowledge  by  the 
defendant  of  the  probable  use  by  the  plaintiff  of  the  article  supplied, 
and  therefore  carries  with  it  the  relation  between  the  parties  which  es- 
tablishes the  duty.  In  Indermaur  v.  Dames,  Law  Rep.  1  C.  P.  274, 
reliance  is  again  placed  upon  a  supposed  invitation  of  the  plaintiff'  by 
the  defendant.  But  again,  it  is  hardly  possible  to  state  facts  which 
bring  a  case  more  completely  within  the  definition  of  the  present  judg- 
ment. In  Winterbottom  v.  Wright,  10  M.  &  W.  109,  it  was  held  that 
there  was  no  duty  cast  upon  the  defendant  with  regard  to  the  plaintiff. 
The  case  was  decided  on  what  was  equivalent  to  a  general  demurrer 
to  the  declaration.  And  the  declaration  does  not  seem  to  shew  that  the 
defendant,  if  he  had  thought  about  it,  must  have  known,  or  ought  to 
have  known,  that  the  coach  would  be  necessarily  or  probably  driven 
by  the  plaintiff,  or  by  any  class  of  which  he  could  be  said  to  be  one,  or 
that  it  would  be  so  driven  within  any  time  which  would  make  it  prob- 
able that  the  defect  would  not  be  observed.  The  declaration  relied  too 
much  on  contracts  entered  into  with  other  persons  than  the  plaintiff. 
The  facts  alleged  did  not  bring  the  case  within  the  proposition  herein 


Ch.  1)  NEGLIGENCE  1061 

enunciated.  It  was  an  attempt  to  establish  a  duty  towards  all  the 
world.  The  case  was  decided  on  the  ground  of  remoteness.  And  it 
is  as  to  too  great  a  remoteness  that  the  observation  of  Lord  Abinger 
is  pointed,  when  he  says  that  the  doctrine  of  Langridge  v.  Levy,  supra, 
is  not  to  be  extended.  In  Francis  v.  Cockrell,  Law  Rep.  5  O.  B.  184, 
at  page  501,  the  decision  is  put  by  some  of  the  judges  on  an  implied 
contract  between  the  plaintiff  and  the  defendant.  But  Cleasby,  B.  (page 
515),  puts  it  upon  the  duty  raised  by  the  knowledge  of  the  defendant 
that  the  stand  was  to  be  used  immediately  by  persons  of  whom  the 
plaintiff  was  one.  In  other  words  he  acts  upon  the  rule  above  laid 
down.  In  Collis  v.  Selden,  Law  Rep.  3  C.  P.  495,  it  was  held  that  the 
declaration  disclosed  no  duty.  And  obviously,  the  declaration  was  too 
uncertain.  There  is  nothing  to  shew  that  the  defendant  knew  more  of 
the  probability  of  the  plaintiff  rather  than  any  other  of  the  public  be- 
ing near  the  chandelier.  There  is  nothing  to  shew  that  the  plaintiff 
was  more  likely  to  be  in  the  public-house  than  any  other  member  of 
the  public.  There  is  nothing  to  shew  how  soon  after  the  hanging  of 
the  chandelier  any  one  might  be  expected  or  permitted  to  enter  the  room 
in  which  it  was.  The  facts  stated  do  not  bring  it  within  the  rule. 
There  is  an  American  case :  Thomas  and  Wife,  6  N.  Y.  397,  57  Am. 
Dec.  455,  cited  in  Mr.  Horace  Smith's  Treatise  on  the  Law,  of  Negli- 
gence, p.  88,  note  (t),  which  goes  a  very  long  way.  I  doubt  whether 
it  does  not  go  too  far.  In  Longmeid  v.  Holliday,  6  Ex.  761,  a  lamp 
was  sold  to  the  plaintiff  to  be  used  by  the  wife.  The  jury  were  not 
satisfied  that  the  defendant  knew  of  the  defect  in  the  lamp.  If  he  did, 
there  was  fraud ;  if  he  did  not,  there  seems  to  have  been  no  evidence 
of  negligence.  If  there  was  fraud,  the  case  was  more  than  within  rhe 
rule.  If  there  was  no  fraud,  the  case  was  not  brought  by  other  cir- 
cumstances within  the  rule.  In  Gautret  v.  Egerton,  Law  Rep.  2  C.  P. 
371,  at  p.  374,  the  declaration  was  held  by  Willes,  J.,  to  be  bad  on  de- 
murrer, because  it  did  not  shew  that  the  defendant  had  any  reason  to 
suppose  that  persons  going  to  the  docks  would  not  have  ample  means 
of  seeing  the  holes  and  cuttings  relied  on.  He  does  not  say  there  must 
be  fraud  in  order  to  support  the  action.  He  says  there  must  be  some- 
thing like  fraud.  He  says :  "Every  man  is  bound  not  wilfully  to  de- 
ceive others."  And  then  in  the  alternative,  he  says :  "or  to  do  any 
act  which  may  place  them  in  danger."  There  seems  to  be  no  case  in 
conflict  with  the  rule  above  deduced  from  well  admitted  cases.  I  am, 
therefore,  of  opinion  that  it  is  a  good,  safe,  and  just  rule. 

I  cannot  conceive  that  if  the  facts  were  proved  which  would  make 
out  the  proposition  I  have  enunciated,  the  law  can  be  that  there  would 
be  no  liability.  Unless  that  be  true,  the  proposition  must  be  true.  If 
it  be  the  rule  the  present  case  is  clearly  within  it.  This  case  is  also, 
I  agree,  within  that  which  seems  to  me  to  be  a  minor  proposition — 
namely,  the  proposition  which  has  been  often  acted  upon,  that  there 
was  in  a  sense,  an  invitation  of  the  plaintiff  by  the  defendant,  to  use 


1062  TORTS  THROUGH   ACTS   OF   CONDITIONAL  LIABILITY         (Part  3 

the  stage.  The  appeal  must,  in  my  opinion,  be  allowed,  and  judgment 
must  be  entered  for  the  plaintiff. 

Cotton,  L,  J.  Bowen,  L.  ]•,  concurs  in  the  judgment  I  am  about 
to  read. 

In  this  case  the  defendant  was  the  owner  of  a  dock  for  the  repair 
of  ships,  and  provided  for  use  in  the  dock  the  stages  necessary  to  en- 
able the  outside  of  the  ship  to  be  painted  while  in  the  dock,  and  the 
stages  which  were  to  be  used  only  in  the  dock  were  appliances  pro- 
vided by  the  dock  owner  as  appurtenant  to  the  dock  and  its  use.  After 
the  stage  was  handed  over  to  the  shipowner  it  no  longer  remained  un- 
der the  control  of  the  dock  owner.  But  when  ships  were  received  into 
the  dock  for  repair  and  provided  with  stages  for  the  work  on  the  ships 
which  was  to  be  executed  there,  all  those  who  came  to  the  vessels  for 
the  purpose  of  painting  and  otherwise  repairing  them  were  there  for 
business  in  which  the  dock  owner  was  interested,  and  they,  in  my  opin- 
ion, must  be  considered  as  invited  by  the  dock  owner  to  use  the  dock 
and  all  appliances  provided  by  the  dock  owner  as  incident  to  the  use 
of  the  dock.  To  these  persons,  in  my  opinion,  the  dock  owner  was  un- 
der an  obligation  to  take  reasonable  care  that  at  the  time  the  appliances 
provided  for  immediate  use  in  the  dock  were  provided  by  him  they 
were  in  a  fit  state  to  be  used — that  is.  in  such  a  state  as  not  to  expose 
those  who  might  use  them  for  the  repair  of  the  ship  to  any  danger  or 
risk  not  necessarily  incident  to  the  service  in  which  they  are  employed. 
That  this  obligation  exists  as  regards  articles  of  which  the  control  re- 
mains with  the  dock  owner  was  decided  in  Indermaur  v.  Dames,  su- 
pra, and  in  Smith  v.  London  and  St.  Katharine  Docks  Co.,  supra,  the 
same  principle  was  acted  on.  I  think  that  the  same  duty  must  exist  as 
to  things  supplied  by  the  dock  owner  for  immediate  use  in  the  dock, 
of  which  the  control  is  not  retained  by  the  dock  owner,  to  the  extent 
of  using  reasonable  care  as  to  the  sta4;e  of  the  articles  when  delivered 
by  him  to  the  ship  under  repair  for  immediate  use  in  relation  to  the 
repairs.  For  any  neglect  of  those  having  control  of  the  ship  and  the 
appliances  he  would  not  be  liable,  and  to  establish  his  liability  it  must 
be  proved  that  the  defect  which  caused  the  accident  existed  at  the  time 
when  the  article  was  supplied  by  the  dock  owner.     *     *     * 

This  decides  this  appeal  in  favour  of  the  plaintiflf,  and  I  am  unwill- 
ing to  concur  with  the  Master  of  the  Rolls  in  laying  down  unnecessa- 
rily the  larger  principle  which  he  entertains,  inasmuch  as  there  are 
many  cases  in  which  the  principle  was  impliedly  negatived. 

Take  for  instance  the  case  of  Langridge  v.  Levy,  supra,  to  which 
the  principle  if  it  existed  would  have  applied.  But  the  judges  who  de- 
cided that  case  based  their  judgment  on  the  fraudulent  representation 
made  to  the  father  of  the  plaintiff  by  the  defendant.  In  other  cases 
where  the  decision  has  been  referred  to  judges  have  treated  fraud  as 
the  ground  of  the  decision,  as  was  done  by  Coleridge,  J.,  in  Blackmore 
V,  Bristol  and  Exeter  Ry.  Co.,  supra;   and  in  CoUis  v.  Selden,  supra, 


Ch.  1)  NEGLIGENCE 


1063 


W'illes,  J.,  says  that  the  judgment  in  Langridge  v.  Levy,  supra,  was 
based  on  the  fraud  of  the  defendant.  This  impliedly  negatives  the  ex- 
istence of  the  larger  general  principle  which  is  relied  on,  and  the  deci- 
sions in  Collis  V.  Selden,  supra,  and  in  Longmeid  v.  Holliday,  supra 
(in  each  of  which  the  plaintiff  failed),  are  in  my  opinion  at  variance 
with  the  principle  contended  for.  The  case  of  George  v.  Skivington, 
supra,  and  especially  what  is  said  by  Cleasby,  B.,  in  giving  judgment 
in  that  case  seem  to  support  the  existence  of  the  general  principle.  But 
it  is  not  in  terms  laid  down  that  any  such  principle  exists,  and  that  case 
was  decided  by  Cleasby,  B.,  on  the  ground  that  the  negligence  of  the 
defendant  which  was  his  own  personal  negligence  was  equivalent,  for 
the  purposes  of.  that  action,  to  fraud  on  which  (as  he  said)  the  decision 
in  Langridge  v.  Levy,  supra,  was  based. 

In  declining  to  concur  in  laying  down  the  principle  enunciated  by 
the  Master  of  the  Rolls,  I  in  no  way  intimate  any  doubt  as  to  the  prin- 
ciple that  any  one  who  leaves  a  dangerous  instrument,  as  a  gun,  in  such 
a  way  as  to  cause  danger,  or  who  without  due  warning  supplies  to 
others  for  use  an  instnunent  or  thing  which  to  his  knowledge,  from  its 
construction  or  otherwise,  is  in  such  a  condition  as  to  cause  danger, 
not  necessarily  incident  to  the  use  of  such  an  instrument  or  thing,  is 
liable  for  injury  caused  to  others  by  reason  of  his  negligent  act. 

For  the  reasons  stated  I  agree  that  the  plaintiff  is  entitled  to  judg- 
ment, though  I  do  not  entirely  concur  with  the  reasoning  of  the  Master 
of  the  Rolls. 

Judgment  reversed/^ 


HUSET  V.  J.  I.  CASE  THRESHING  MACH.  CO.    ^ 

(Circuit  Court  of  Appeals  of  the  United  States,  Eighth  Circuit,  1903.    57  C.  C.      5y/^^,^ 

A.  237,  120  Fed.  S65,  61  L.  R.  A.  303.)  ^  ^ 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  District      JsJ  ^  , 

of  Minnesota.    This  writ  of  error  was  sued  out  to  reverse  a  judgment 

sustaining  a  demurrer  to  the  complaint  in  an  action  against  the  J.  I. 

Case  Threshing  Machine  Company.     These  are  the  facts  which  the 

complaint  discloses : 

The  defendant  was  a  corporation  engaged  in  the  manufacture  and  sale  of 
threshing  rigs,  which  consisted  of  an  engine,  a  separator,  a  band-cutter,  and 
self-feeder.  The  band-cutter  and  self-feeder  consisted  of  a  series  of  fast 
revolving  knives  covered  with  a  sheet-iron  covering  and  a  frame  designed  to 
fit  into  the  front  of  the  separator  in  which  the  cylinder  was  located.  The 
cylinder  was  made  of  iron  and  steel  about  48  inches  in  length  and  20  inches 
in  diameter,  set  with  rows  of  steel  teeth  and  spikes  projecting  aliout  two 
inches,  and  so  placed  as  to  pass  between  similar  teeth  in  a  concave  frame  in 
front  of  and  under  the  cylinder.  When  the  machine  was  in  operation,  this  cyl- 
inder revolved  at  a  ver>-  high  rate  of  speed  with  great  force,  and  threshed  the 
grain.    The  self-feeder  and  band-cutter  was  designed  to  be  fastened  to  the  sepa- 


'  -•>  The  statement  of  facts  is  abridged  and  part  of  the  opinion  of  Cotton,  L. 
J.,  is  omitted. 


1064  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

rator,  and  its  sheet-iron  covering  fitted  onto  the  front  of  the  separator  just  above 
and  over  tlie  front  part  of  the  cylinder  so  as  to  cover  the  cylinder  completely. 
The  object  and  design  of  the  defendant  in  placing  this  covering  over  the 
cylinder  was  that  it  should  be  used  by  any  person  who  might  operate  the  ma- 
chine to  walk  upon  in  passing  from  the  top  of  the  main  part  of  the  thresher 
to  the  self-feeder.  This  sheet-iron  covering  was  made  without  any  support, 
and  was  so  pliable  and  easily  bent  that  it  was  incapable  of  sustaining  the 
least  weight,  and  would  necessarily  bend  and  collapse  when  subjected  to  the 
weight  of  any  man  who  might  walk  or  step  upon  it.  It  was  necessary  for 
the  oiHjrator  to  walk  over  the  covering  of  the  cylinder  in  operating  the  ma- 
chine. This  machine,  covered  in  this  way,  was  imminently  and  necessaiily 
dangei'ous  to  the  life  and  limbs  of  those  who  operated  it,  and  it  was  well 
known  to  be  thus  dangerous  by  the  defendant  when  it  shipped  the  same  and 
supplied  it  to  the  purchasei",  J.  H.  Pifer ;  but  this  dangerous  condition  was 
of  such  a  nature  as  not  to  be  readily  discovered  by  persons  engaged  in  operat- 
ing the  machine  or  working  thereon,  but  was  concealed,  and  thereby  rendered 
more  dangerous  still.  On  August  25,  1901,  the  defendant  sold  this  thresh- 
ing outfit  to  J.  n.  Pifer,  who  started  to  oi>erate  it  on  the  next  day,  and  em- 
ployed the  plaintiff,  O.  S.  Huset,  as  a  laborer  to  assist  him  in  running  it. 
It  became  the  duty  of  the  plaintiff  to  walk  upon  the  top  of  the  machine 
over  the  cylinder  while  it  was  in  operation  in  order  to  superintend  the  pitch- 
ing of  bundles  into  the  self-feeder,  to  prevent  its  clogging,  and  to  oil  the  bear- 
ings of  the  parts  of  the  cylinder  and  band-cutter.  When  he  walked  upon 
the  covering  of  the  cylinder,  this  covering  sank  so  as  to  come  in  contact  with 
tbe  cylinder,  and  the  plaintiff's  right  foot  was  caught  thereby,  and  his  foot 
and  leg  were  drawn  into  it  and  cinished  to  a  point  above  the  knee  joint, 
so  that  it  was  necessary  to  amputate  the  leg  above  the  knee. 

The  demurrer  to  this  complaint  was  upon  the  ground  that  the  de- 
fendant owed  no  duty  to  the  plaintiff,  who  was  a  stranger  to  the  trans- 
action between  the  defendant,  the  manufacturer  and  vendor  of  the 
threshing  machine,  and  the  vendee  Pifer,  The  court  sustained  the 
demurrer  and  dismissed  the  action. 

Sanborn,  Circuit  Judge  (after  stating  the  case).  Is  a  manufacturer 
or  vendor  of  an  article  or  machine  which  he  knows,  when  he  sells  it,  to 
be  iifiminently  dangerous,  by  reason  of  a  concealed  defect  therein,  to 
the  life  and  limbs  of  any  one  who  shall  use  it  for  the  purpose  for 
which  it  was  made  and  intended,  liable  to  a  stranger  to  the  contract 
of  sale  for  an  injury  which  he  sustains  from  the  concealed  defect  while 
he  is  lawfully  applying  the  article  or  machine  to  its  intended  use? 

The  argument  of  this  question  has  traversed  the  whole  field  in 
which  the  liability  of  contractors,  manufacturers,  and  vendors  to  stran- 
gers to  their  contracts  for  negligence  in  the  construction  or  sale  of 
their  articles  has  been  contested.  The  decisions  which  have  been  cited 
are  not  entirely  harmonious,  and  it  is  impossible  to  reconcile  all  of 
them  with  any  established  rule  of  law.  And  yet  the  underlying  prin- 
ciple of  the  law  of  negligence,  that  it  is  the  duty  of  every  one  to  so 
act  himself  and  to  so  use  his  property  as  to  do  no  unnecessary  damage 
to  his  neighbors,  leads  us.  fairly  through  the  maze.  With  this  funda- 
mental principle  in  mind,  if  we  contemplate  the  familiar  rules  that 
every  one  is  liable  for  the  natural  and  probable  eft'ects  of  his  acts ; 
that  negligence  is  a  breach  of  a  duty;  that  an  injury  that  is  the  natural 
and  probable  consequence  of  an  act  of  negligence  is  actionable,  while 
one  that  could  not  have  been  foreseen  or  reasonably  anticipated  as  the 


Ch.  1)  NEGLIGENCE  1065 

probable  effect  of  such  an  act  is  not  actionable,  because  the  act  of  neg- 
ligence in  such  a  case  is  the  remote,  and  not  the  proximate,  cause  of  the 
injury;  and  that,  for  the  same  reason,  an  injury  is  not  actionable  which 
would  not  have  resulted  from  an  act  of  negligence  except  from  the 
interposition  of  an  independent  cause  (Chicago,  St.  Paul,  Minneapolis 
&  Omaha  R.  Co.  v.  Elliott,  55  Fed.  949,  5  C.  C.  A.  347,  20  L.  R.  A. 
582) — nearly  all  the  decisions  upon  this  subject  range  themselves  along 
symmetrical  lines,. and  establish  rational  rules  of  the  law  of  negligence 
consistent  with  the  basic  principles  upon  which  it  rests. 

Actions  for  negligence  are  for  breaches  of  duty.  Actions  on  con- 
tracts are  for  breaches  of  agreements.  Hence  the  limits  of  Hability 
for  negligence  are  not  the  limits  of  liability  for  breaches  of  contracts, 
and  actions  for  negligence  often  accrue  where  actions  upon  contracts 
do  not  arise,  and  vice  versa.  It  is  a  rational  and  fair  deduction  from 
the  rules  to  which  brief  reference  has  been  made  that  one  who  makes 
or  sells  a  machine,  a  building,  a  tool,  or  an  article  of  merchandise  de- 
signed and  fitted  for  a  specific  use  is  liable  to  the  person  who,  in  the 
natural  course  of  events,  uses  it  for  the  purpose  for  which  it  was  made 
or  sold,  for  an  injury  which  is  the  natural  and  probable  consequence  of 
the  negligence  of  the  manufacturer  or  vendor  in  its  construction  or 
sale.  But  when  a  contractor  builds  a  house  or  a  bridge,  or  a  manufac- 
turer constructs  a  car  or  a  carriage,  for  the  owner  thereof,  under  a  spe- 
cial contract  with  him,  an  injury  to  any  other  person  than  the  owner 
for  whom  the  article  is  built  and  to  whom  it  is  delivered  cannot  ordi- 
narily be  foreseen  or  reasonably  anticipated  as  the  probable  result  of 
the  negligence  in  its  construction.  So,  when  a  manufacturer  sells  arti- 
cles to  the  wholesale  or  retail  dealers,  or  to  those  who  are  to  use  them, 
injury  to  third  persons  is  not  generally  the  natural  or  probable  effect 
of  negligence  in  their  manufacture,  because  (1)  such  a  result  cannot 
ordinarily  be  reasonably  anticipated,  and  because  (2)  an  independent 
cause — the  responsible  human  agency  of  the  purchaser — without  which 
the  injury  to  the  third  person  would  not  occur,  intervenes,  and,  as 
Wharton  says,  "insulates"  the  negligence  of  the  manufacturer  from 
the  injury  to  the  third  person.  Wharton  on  Law  of  Negligence  (2d 
Ed.)  §  134.  For  the  reason  that  in  the  cases  of  the  character  which 
have  been  mentioned  the  natural  and  probable  effect  of  the  negli- 
gence of  the  contractor  or  manufacturer  will  generally  be  limited 
to  the  party  for  whom  the  article  is  constructed,  or  to  whom  it  is  sold, 
and,  perhaps  more  than  all  this,  for  the  reason  that  a  wise  and  con- 
servative public  policy  has  impressed  the  courts  with  the  view  that  there 
must  be  a  fixed  and  definite  limitation  to  the  liability  of  manufactur- 
ers and  vendors  for  negligence  in  the  construction  and  sale  of  compli- 
cated machines  and  structures  which  are  to  be  operated  or  used  by  the 
intelligent  and  the  ignorant,  the  skillful  and  the  incompetent,  the  watch- 
ful and  the  careless,  parties  that  cannot  be  known  to  the  manufacturers 
or  vendors,  and  who  use  the  articles  all  over  the  country  hundreds  of 
miles  distant  from  the  place  of  their  manufacture  or  original  sale, 


1006  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

a  general  rule  has  been  adopted  and  has  become  established  by  re- 
peated decisions  of  the  courts  of  England  and  of  this  country  that  in 
these  cases  the  liability  of  the  contractor  or  manufacturer  for  negli- 
gence in  the  construction  or  sale  of  the  articles  which  he  makes  or 
vends  is  limited  to  the  persons  to  whom  he  is  liable  under  his  contracts 
of  construction  or  sale.  The  limits  of  the  liability  for  negligence  and 
for  breaches  of  contract  in  cases  oi  this  character  are  held  to  be  iden- 
tical. The  general  rule  is  that  a  contractor,  manufacturer,  or  vendor 
is  not  liable  to  third  parties  who  have  no  contractual  relations  with 
him  for  negligence  in  the  construction,  manufacture,  or  sale  of  the 
articles  he  handles.  Winterbottom  v.  Wright,  10  M.  &  W.  109;  Long- 
mcid  V.  Holliday,  6  Exch.  76+,  765 ;  Blakemore  v.  Ry.  Co.,  8  El.  &  Bl. 
1035;  Collis  V.  Selden,  L.  R.  3  C.  P.  495,  497;  Bank  v.  Ward,  100  U. 
S.  195,  204,  25  L.  Ed.  621 ;  Bragdon  v.  Perkins-Campbell  Co.,  87  Fed. 
109,  30  C.  C.  A.  567,  66  L.  R.  A.  924;  Goodlander  v.  Standard  Oil  Co., 
63  Fed.  400,  406,  11  C.  C.  A.  253,  259,  27  L.  R.  A.  583 ;  Loop  v.  Litch- 
field, 42  N.  Y.  351,  359,  1  Am.  Rep.  513 ;  Losee  v.  Clute,  51  N.  Y.  494, 

10  Am.  Rep.  638;  Curtin  v.  Somerset,  140  Pa.  70,  21  Atl.  244,  12  L.  R. 
A.  322,  23  Am.  St.  Rep.  220;  Heizer  v.  Kingsland  &  Douglass  ^Ifg.  Co., 
110  Mo.  605,  615,  617,  19  S.  W.  630,  15  L.  R.  A.  821,  33  Am.  St.  Rep. 
482 ;  Daugherty  v.  Herzog,  145  Ind.  255,  44  N.  E.  457,  32  L.  R.  A.  837, 
57  Am.  St.  Rep.  204;  Burke  v.  De  Castro,  11  Hun  (N.  Y.)  354;  Swan 
V.  Jackson,  55  Hun,  194,  7  N.  Y.  Supp.  821;  Barrett  v.  Mfg.  Co.,  31 
N.  Y.  Super.  Ct.  545 ;  Carter  v.  Harden,  78  Me.  528,  7  Atl.  392 ;  ^Ic- 
Cafifrey  v.  Mfg.  Co.,  23  R.  L  381,  50  Atl.  651,  55  L.  R.  A.  822,  91  Am. 
St.  Rep.  637 ;  IMarvin  Safe  Co.  v.  Ward,  46  N.  J.  Law,  19 ;  Burdick 
V.  Cheadle,  26  Ohio  St.  393,  20  Am.  Rep.  767 ;  Davidson  v.  Nichols, 

11  Allen  (Mass.)  514;  J.  L  Case  Plow  Works  v.  Niles  &  Scott  Co.,  90 
Wis.  590,  63  N.  W.  1013. 

In  these  cases  third  parties,  without  any  fault  on  their  part,  were 
injured  by  the  negligence  of  the  manufacturer,  vendor,  or  furnisher 
of  the  following  articles,  while  the  parties  thus  injured  were  innocently 
using  them  for  the  purposes  for  which  they  were  made  or  furnished, 
and  the  courts  held  that  there  could  be  no  recovery,  because  the  mak- 
ers, vendors,  or  furnishers  owed  no  duty  to  strangers  to  their  contracts 
of  construction,  sale,  or  furnishing:  A  stagecoach,  Winterbottom  v. 
Wright,  10  M.  &  W.  109;  a  leaky  lamp,  Longmeid  v.  Plolliday,  6 
Exch.  764,  765 ;  a  defective  chain  furnished  one  to  lead  stone,  Blake- 
more V.  Ry.  Co.,  8  El.  &  Bl.  1035 ;  an  improperly  hung  chandelier, 
Collis  v.  Selden,  L.  R.  3  C.  P.  495,  497;  an  attorney's  certificate  of 
title.  Bank  v.  Ward,  100  U.  S.  195,  204,  25  L.  Ed.  621 ;  a  defective 
valve  in  an  oil  car,  Goodlander  v.  Standard  Oil  Co.,  63  Fed.  401,  406, 
11  C.  C.  A.  253,  259,  27  L.  R.  A.  583 ;  a  porch  on  a  hotel,  Curtin  v. 
Somerset,  140  Pa.  70,  21  Atl.  244,  12  L.  R.  A.  322,  23  Am.  St.  Rep. 
220;  a  defective  side  saddle,  Bragdon  v.  Perkins-Campbell  Co.,  87 
Fed.  109,  30  C.  C.  A.  567,  66  L.  R.  A.  924;  a  defective  rim  in  a  bal- 
ance wheel,  Loop  v.  Litchfield,  42  N.  Y.  351,  359,  1  Am.  Rep.  513;  a 


Ch.  1)  NEGLIGENCE  1007 

defective  boiler,  Losee  v.  Clute,  51  N.  Y.  494,  10  Am.  Rep.  638;  a  de- 
fective cylinder  in  a  threshing  machine,  Heizer  v.  Kingsland  &  Doug- 
lass Mfg.  Co.,  110  Mo.  605,  615,  617,  19  S.  W.  630,  15  L.  R.  A.  821, 
33  Am.  St.  Rep.  4^1 ;  a  defective  wall  which  fell  on  a  pedestrian, 
Daugherty  v.  Herzog,  145  Ind.  255,  44  N.  E.  457,  32  L.  R.  A.  837,  57 
Am.  St.  Rep.  204;  a  defective  rope  on  a  derrick,  Burke  v.  Refining 
Co.,  11  Hun  (X.  Y.)  354;  a  defective  shelf  for  a  workman  to  stand 
upon  in  placing  ice  in  a  box,  Swan  v.  Jackson,  55  Hun,  194,  7  N.  Y. 
Supp.  821 ;  a  defective  hoisting  rope  of  an  elevator,  Barrett  v.  Mfg. 
Co.,  31  N.  Y.  Super.  Ct.  545;  a  runaway  horse,  Carter  v.  Harden,  78 
Me.  528,  7  Atl.  392 ;  a  defective  hook  holding  a  heavy  weight  in  a  drop 
press,  McCaffrey  v.  Mfg.  Co.,  23  R.  I.  381,  50  Atl.  651,  55  L.  R.  A. 
822;  a  defective  bridge,  Marvin  Safe  Co.  v.  Ward,  46  N.  J.  Law,  19; 
shelves  in  a  dry  goods  store,  whose  fall  injured  a  customer,  Burdick 
V.  Cheadle,  26  Ohio  St.  393,  20  Am.  Rep.  767;  a  staging  erected  by  a 
contractor  for  the  use  of  his  employes,  Maguire  v.  Magee  (Pa.)  13 
Atl.  551;  defective  wheels,  T-  I.  Case  Plow  Works  v.  Niles  &  Scott 
Co.,  90  Wis.  590,  63  N.  W.  1013. 

In  the  leading  case  of  Winterbottom  v.  Wright  this  rule  is  placed 
upon  the  ground  of  public  policy,  upon  the  ground  that  there  would 
be  no  end  of  litigation  if  contractors  and  manufacturers  were  to  be 
held  liable  to  third  persons  for  every  act  of  negligence  in  the  construc- 
tion of  the  articles  or  machines  they  make  after  the  parties  to  whom 
they  have  sold  them  have  received  and  accepted  them.  In  that  case 
the  defendant  had  made  a  contract  with  the  Postmaster  General  to 
provide  and  keep  in  repair  the  stagecoach  used  to  convey  the  mail  from 
Hartford  to  Holyhead.  The  coach  broke  down,  overturned,  and  in- 
jured the  driver,  who  sued  the  contractor  for  the  injury  resulting  from 
his  negligence.  Lord  Abinger,  C.  B.,  said:  "There  is  no  privity  of 
contract  between  these  parties ;  and,  if  the  plaintiff  can  sue,  every 
passenger,  or  even  any  person  passing  along  the  road,  who  was  injured 
by  the  upsetting  of  the  coach,  might  .bring  a  similar  action.  Unless 
we  confine  the  operation  of  such  contracts  as  this  to  the  parties  who 
entered  into  them,  the  most  absurd  and  outrageous  consequences,  to 
which  I  can  see  no  limit,  would  ensue."  Baron  Alderson  said :  "I  am 
of  the  same  opinion.  The  contract  in  this  case  was  made  with  the 
Postmaster  General  alone;  and  the  case  is  just  the  same  as  if  he  had 
come  to  the  defendant  and  ordered  a  carriage,  and  handed  it  at  once 
over  to  Atkinson.  If  we  were  to  hold  that  the  plaintiff  could  sue  in 
such  a  case,  there  is  no  point  at  which  such  actions  would  stop.  The 
only  safe  rule  is  to  confine  the  right  to  recover  to  those  who  enter  into 
the  contract.  If  we  go  one  step  beyond  that,  there  is  no  reason  why 
we  should  not  go  fifty." 

The  views  expressed  by  the  judges  in  this  case  have  prevailed  in 
England  and  in  the  United  States,  with  the  exception  of  two  decisions 
which  are  in  conflict  with  the  leading  case  and  with  all  the  decisions  to 
which  reference  has  been  made.     Those  cases  are  Devlin  v.  Smith, 


1068  TOUTS  THROUGH   ACTS   OF  CONDITIONAL   LIABILITY         (Part  3 

89  N.  Y.  470,  42  Am.  Rep.  311,  in  which  Smith,  a  painter,  employed 
Stevenson,  a  contractor,  to  build  a  scafifold  90  feet  in  height,  for  the  ex- 
press purpose  of  enabling  the  painter's  workmen  to  stand  upon  it  to 
paint  the  interior  of  the  dome  of  a  building,  and  the  Court  of  Appeals 
of  New  York  held  that  Stevenson  was  liable  to  a  workman  of  Smith, 
the  painter,  who  was  injured  by  a  fall,  caused  by  the  negligence  of 
Stevenson  in  the  construction  of  the  scaffold  upon  which  he  was  work- 
ing; and  Schubert  v.  J.  R.  Clark  Co.,  49  Minn.  331,  51  N.  W.  1103, 
15  L.  R.  A.  818,  32  Am.  St.  Rep.  559,  in  which  a  painter  purchased  of 
a  manufacturer  a  stepladder,  and  one  of  the  painter's  employes,  who 
was  injured  by  the  breaking  of  a  step  caused  by  the  negligence  of  the 
manufacturer,  was  permitted  to  recover  of  the  latter  for  the  injuries 
he  had  sustained.  The  decision  in  Devlin  v.  Smith  may,  perhaps,  be 
sustained  on  the  ground  that  the  workmen  of  Smith  were  the  real 
parties  in  interest  in  the  contract,  since  Stevenson  was  employed  and 
expressly  agreed  to  construct  the  scaffold  for  their  use.  But  the  case 
of  Schubert  v.  J.  R.  Clark  Co.  is  in  direct  conflict  with  the  side  saddle 
case,  Bragdon  v.  Perkins-Campbell  Co.,  87  Fed.  109,  30  C.  C.  A.  567, 
66  L.  R.  A.  924;  the  porch  case,  Curtin  v.  Somerset,  140  Pa.  70,  21 
Atl.  244,  12  L.  R.  A.  322,  23  Am.  S't.  Rep.  220;  the  defective  cylinder 
case,  Heizer  v.  Kingsland  &  Douglass  Mfg.  Co.,  110  Mo.  617,  19  S'.  W. 
630,  15  L.  R.  A.  821,  33  Am.  St.  Rep.  481;  the  defective  hook  case, 
McCaffrey  v.  Mfg.  Co.,  23  R.  I.  381,  50  Atl.  651,  55  L.  R.  A.  822; 
and  with  the  general  rule  upon  which  all  these  cases  stand. 

It  is,  perhaps,  more  remarkable  that  the'  current  of  decisions 
throughout  all  the  courts  of  England  and  the  United  States  should  be 
so  uniform  and  conclusive  in  support  of  this  rule,  and  that  there 
should,  in  the  multitude  of  opinions,  be  but  one  or  two  in  conflict  with 
it,  than  it  is  that  such  sporadic  cases  should  be  found.  They  are  in- 
sufficient in  themselves,  or  in  the  reasoning  they  contain,  to  overthrow 
or  shake  the  established  rule  which  prevails  throughout  the  English 
speaking  nations. 

But  while  this  general  rule  is  both  established  and  settled,  there 
are,  as  is  usually  the  case,  exceptions  to  it  as  well  defined  and  settled 
as  the  rule  itself.    There  are  three  exceptions  to  this  rule. 

The  first  is  that  an  act  of  negligence  of  a  manufacturer  or  vendor 
which  is  imminently  dangerous  to  the  life  or  health  of  mankind,  and 
which  is  committed  in  the  preparation  or  sale  of  an  article  intended  to 
preserve,  destroy,  or  affect  human  life,  is  actionable  by  third  parties 
who  suffer  from  the  negligence.  Dixon  v.  Bell,  5  Maule  &  Sel.  198; 
Thomas  v.  Winchester,  6  N.  Y.  397,  57  Am.  Dec.  455;  Norton  v. 
Sewall,  106  Mass.  143,  8  Am.  Rep.  298 ;  Elkins  v.  McKean,  79  Pa. 
493,  502;  Bishop  v.  Weber,  139  Mass.  411,  1  N.  E.  154,  52  Am.  Rep. 
715;  Peters  v.  Johnson,  50  W.  Va.  644,  41  S.  E.  190,  191,  57  L.  R.  A. 
428,  88  Am.  St.  Rep.  909.  The  leading  case  upon  this  subject  is 
Thomas  v.  Winchester,  6  N.  Y.  397,  57  Am.  Dec.  455.  A  dealer  in 
drugs  sold  to  a  druggist  a  jar  of  belladonna,  a  deadly  poison,  and 


Ch.  1)  NEGLIGENCE  1069 

labeled  it  "Extract  of  Dandelion."  The  druggist  filled  a  prescription 
of  extract  of  dandelion,  prepared  by  a  physician  for  his  patient.  The 
patient  took  the  prescription  thus  filled,  and  recovered  of  the  whole- 
sale dealer  for  the  injuries  she  sustained.  In  Norton  v.  Sewall,  106 
Mass.  143,  8  Am.  Rep.  298,  a  recover^'  was  had  by  a  third  party  for 
the  sale  of  laudanum  as  rhubarb ;  in  Bishop  v.  Weber,  for  the  furnish- 
ing of  poisonous  food  for  wholesome  food ;  in  Peters  v.  Johnson,  for 
the  sale  of  saltpetre  for  epsom  salts ;  and  in  Dixon  v.  Bell,  for  placing  a 
loaded  gun  in  the  hands  of  a  child.  In  all  these  cases  of  sale  the 
natural  and  probable  result  of  the  act  of  negligence — nay,  the  in- 
evitable result  of  it — was  not  an  injury  to  the  party  to  whom  the  sales 
were  made,  but  to  those  who,  after  the  purchasers  had  disposed  of  the 
articles,  should  consume  them.  Hence  these  cases  stand  upon  two 
well-established  principles  of  law :  (1)  That  every  one  is  bound  to  avoid 
acts  or  omissions  imminently  dangerous  to  the  lives  of  others,  and  (2) 
that  an  injury  which  is  the  natural  and  probable  result  of  an  act  of 
negligence  is  actionable.  It  was  the  natural  and  probable  result  of  the 
negligence  in  these  cases  that  the  vendees  would  not  suffer,  but  that 
those  who  subsequently  purchased  the  deleterious  articles  would  sus- 
tain the  injuries  resulting  from  the  negligence  of  the  manufacturers 
or  dealers  who  furnished  them. 

The  second  exception  is  that  an  owner's  act  of  negligence  which 
causes  injury  to  one  who  is  invited  by  him  to  use  his  defective  appli- 
ance upon  the  owner's  premises  may  form  the  basis  of  an  action 
against  the  owner.  Coughtry  v.  Globe  Woolen  Co.,  56  N.  Y.  124, 
15  Am.  Rep.  387;  Bright  v.  Barnett  &  Record  Co.,  88  Wis.  299,  60 
N.  W.  418,  420,  26  L.  R.  A.  524;  Heaven  v.  Pender,  L.  R.  11  Q.  B. 
Div.  503;  Roddy  v.  Railway  Co.,  104  Mo.  234,  241,  15  S'.  W.  1112,  12 
L.  R.  A.  746,  24  Am.  St.  Rep.  333.  In  Coughtry  v.  Globe  Woolen  Co., 
56  N.  Y.  124,  15  Am.  Rep.  387,  the  owner  of  a  building  employed 
Osborn  &  Martin  to  construct  a  cornice,  and  agreed  with  them  to 
furnish  a  scaffold  upon  which  their  men  could  perform  the  work.  He 
furnished  the  scaffold,  and  one  of  the  employes  of  the  contractors 
was  injured  by  the  negligence  of  the  owner  in  constructing  the  scaf- 
fold. The  court  held  that  the  act  of  the  owner  was  an  implied  invita- 
tion to  the  employes  of  Osborn  &  Martin  to  use  the  scaffold,  and  im- 
posed upon  him  a  liability  for  negligence  in  its  erection.  The  other 
cases  cited  to  this  exception  are  of  a  similar  character. 

The  third  exception  to  the  rule  is  that  one  who  sells  or  delivers  an 
article  which  he  knows  to  be  imminently  dangerous  to  life  or  limb  to 
another  without  notice  of  its  qualities  is  liable  to  any  person  who  suf- 
fers an  injury  therefrom  which  might  have  been  reasonably  anticipated, 
whether  there  were  any  contractual  relations  between  the  parties  or 
not.  Langridge  v.  Levy,  2  M.  &  W.  519,  4  M.  &  W.  Z2>7 ;  Wellington 
V.  Oil  Co.,  104  Mass.  64,  67;  Lewis  v.  Terry,  111  Cal.  39,  43  Pac.  398, 
31  L.  R.  A.  220,  52  Am.  St.  Rep.  146.  In  Langridge  v.  Levy,  2  M.  & 
W.  519,  a  dealer  sold  a  gtin  to  the  father  for  the  use  of  the  son,  and 


1070  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

represented  that  it  was  a  safe  gun,  and  made  by  one  Nock.  It  was  not 
made  by  Nock,  was  a  defective  gun,  and  when  the  son  discharged  it, 
it  exploded  and  injured  him.  The  son  was  permitted  to  recoA^er,  be- 
cause the  defendant  had  knowingly  sold  the  gun  to  the  father  for  the 
purpose  of  being  used  by  the  plaintiff  by  loading  and  discharging  it, 
and  had  knowingly  made  a  false  warranty  that  this  might  be  safely 
done,  and  the  plaintiff,  on  the  faith  of  that  warranty,  and  believing  it 
to  be  true,  had  used  the  gun,  and  sustained  the  damages.  The  court 
said  in  conclusion  :  "W'e  therefore  think  that,  as  there  is  fraud,  and 
damage,  the  result  of  that  fraud,  not  from  an  act  remote  and  conse- 
quential, but  one  contemplated  by  the  defendant  at  the  time  as  one  of 
its  results,  the  party  guilty  of  the  fraud  is  responsible  to  the  party  in- 
jured." This  case  was  affirmed  in  4  M.  &  W.  337,  on  the  ground  that 
the  sale  of  the  gun  to  the  father  for  the  use  of  the  son  with  the  knowl- 
edge that  it  was  not  as  represented  was  a  fraud,  which  entitled  the  son 
to  recover  the  damages  he  had  sustained. 

In  Wellington  v.  Oil  Co.,  the  defendants  knowingly  sold  to  one 
Chase,  a  retail-  dealer,  to  be  sold  by  him  to  his  customers  as  oil,  naph- 
tha, a  dangerous  and  explosive  liquid.  Chase  sold  the  naphtha  as  oil, 
the  plaintiif  used  it  in  a  lamp  for  illuminating  purposes,  it  ignited  and 
exploded,  and  he  recovered  of  the  wholesale  dealer.  Judge  Gray,  later 
Mr.  Justice  Gray  of  the  Supreme  Court,  said :  "It  is  well  settled  that 
a  man  who  delivers  an  article,  which  he  knows  to  be  dangerous  or  nox- 
ious, to  another  person,  without  notice  of  its  nature  and  qualities,  is 
liable  for  an  injury  which  may  reasonably  be  contemplated  as  likely 
to  result,  and  which  does  in  fact  result,  therefrom,  to  that  person  or 
any  other,  who  is  not  himself  in  fault.  Thus  a  person  who  delivers  a 
carboy,  which  he  knows  to  contain  nitric  acid,  to  a  carrier,  without  in- 
forming him  of  the  nature  of  its  contents,  is  liable  for  an  injury  oc- 
casioned by  the  leaking  out  of  the  acid  upon  another  carrier,  to  whom 
it  is  delivered  by  the  first  in  the  ordinary  course  of  business,  to  be  car- 
ried to  its  destination.  Farrant  v.  Barnes,  11  C.  B.  (N.  S.)  553.  So  a 
chemist  who  sells  a  bottle  of  liquid,  made  up  of  ingredients  known 
only  to  himself,  representing  it  to  be  fit  to  be  used  for  washing  the  hair, 
and  knowing  that  it  is  to  be  used  by  the  purchaser's  wife,  is  liable  for 
an  injury  occasioned  to  her  by  using  it  for  washing  her  hair,  George 
V.  Skivington,  Law  Rep.  5  Ex.  1." 

In  Lewis  v.  Terry,  111  Cal.  39,  43  Pac.  398,  31  L.  R.  A.  220,  52  Am. 
St.  Rep.  146,  a  dealer,  knowing  a  folding  bed  to  be  defective  and  un- 
safe, sold  it  to  a  Mr.  Apperson  without  informing  him  of  the  fact. 
His  wife  suffered  a  broken  arm  and  other  severe  injuries  from  the  neg- 
ligence of  the  dealer  in  the  sale  of  the  bed,  and  recovered  of  him  the 
damages  she  sustained. 

The  Supreme  Court  of  Missouri,  in  Ilcizer  v.  Kingsland  &  Doug- 
lass Mfg.  Co.,  in  which  they  held  that  llic  manufacturer  was  not  liable 
to  a  third  person  for  negligence  in  the  construction  of  the  cylinder 
of  a  threshing  machine,  which  burst  and  injured  him,  said:   "Had  the 


Ch.  1)  NEGLIGENCE  1071 

defendant  sold  this  machine  to  ElHs,  knowing  that  the  cyclinder  was 
defective,  and  for  that  reason  dangerous,  without  informing  him  of  the 
defect,  then  the  defendant  would  be  liable  even  to  third  persons  not 
themselves  in  fault.  Shearman  &  Redfield  on  Negligence  (4th  Ed.) 
§  117."_ 

Turning  now  to  the  case  in  hand,  it  is  no  longer  difficult  to  dis- 
pose of  it.  The  allegations  of  the  complaint  are  that  the  defendant  pre- 
pared a  covering  for  the  cylinder  of  the  threshing  machine,  which 
was  customarily  and  necessarily  used  by  those  who  operated  it  to  walk 
upon,  and  which  was  so  incapable  of  sustaining  the  least  weight  that 
it  would  bend  and  collapse  whenever  any  one  stepped  upon  it;  that  it 
concealed  this  defective  and  dangerous  condition  of  the  threshing  rig 
so  that  it  could  not  be  readily  discovered  by  persons  engaged  in  oper- 
ating or  working  upon  it ;  that  it  knew  that  the  machine  was  in  this 
imminently  dangerous  condition  when  it  shipped  and  supplied  it  to  the 
employer  of  the  plaintiff;  and  that  the  plaintiff  has  sustained  serious 
injury  through  this  defect  in  its  construction.  The  case  falls  fairly 
within  the  third  exception.  It  portrays  a  negligence  imminently  dan- 
gerous to  the  lives,  and  limbs  of  those  who  should  use  the  machine,  a 
machine  imminently  dangerous  to  the  lives  and  limbs  of  all  who  should 
undertake  to  operate  it,  a  concealment  of  this  dangerous  condition,  a 
knowledge  of  the  defendant  when  it  vis  shipped  and  supplied  to  the 
employer  of  the  plaintiff  that  the  rig  was  imminently  dangerous  to  all 
who  should  use  it  for  the  purpose  for  which  it  was  made  and  sold,  and 
consequent  damage  to  the  plaintiff.  It  falls  directly  within  the  rule 
stated  by  Mr.  Justice  Gray  that  when  one  delivers  an  article,  which  he 
knows  to  be  dangerous  to  another  person,  without  notice  of  its  nature 
and  qualities,  he  is  liable  for  an  injury  which  may  be  reasonably  con- 
templated as  likely  to  result,  and  which  does  in  fact  result  therefrom, 
to  that  person  or  to  any  other  who  is  not  himself  in  fault.  The  natur- 
al, probable,  and  inevitable  result  of  the  negligence  portrayed  by  this 
complaint  in  delivering  this  machine  when  it  was  known  to  be  in  a 
condition  so  imminently  dangerous  to  the  lives  and  limbs  of  those  who 
should  undertake  to  use  it  for  the  purpose  for  which  it  was  construct- 
ed was  the  death,  or  loss  of  one  or  more  of  the  limbs,  of  some  of  the 
operators.  It  is  perhaps  improbable  that  the  defendant  was  possessed 
of  the  knowledge  of  the  imminently  dangerous  character  of  this  thresh- 
ing machine  when  it  delivered  it,  and  that  upon  the  trial  of  the  case  it 
will  be  found  to  fall  under  the  general  rule  which  has  been  announced 
in  an  earlier  part  of  this  opinion.  But  upon  the  facts  alleged  in  this 
complaint,  the  act  of  delivering  it  to  the  purchaser  with  a  knowledge 
and  a  concealment  of  its  dangerous  condition  was  so  flagrant  a  disre- 
gard of  the  rule  tliat  one  is  bound  to  avoid  any  act  imminently  danger- 
ous to  the  lives  and  health  of  his  fellows  that  it  forms  the  basis  of  a 
good  cause  of  action  in  favor  of  any  one  who  sustained  injury  there- 
from. 


1072  TOUTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

The  judgment  of  the  Circuit  Court  must  be  reversed,  and  the  cause 
must  be  remanded  to  the  court  below  for  further  proceedings  not  in- 
consistent with  tlie  views  expressed  in  this  opinion. 


EARL  V.  LUBBOCK. 
(In  the  Court  of  Appeal.     [1905]  IK.  B.  253.) 

Appeal  from  the  judgment  of  a  Divisional  Court  affirming  an  order 
of  the  judge  of  the  Lambeth  County  Court. 

The  action  was  brought  in  the  county  court  to  recover  damages  for 
personal  injuries  sustained  by  the  plaintiff,  and  alleged  to  be  due  to 
the  negligence  of  the  defendant.  The  plaintiff  was  a  driver  in  the 
employment  of  a  firm  who  owned  a  number  of  vans.  The  defendant 
was  a  master  wheelwright,  and  he  entered  into  a  contract  with  the  firm 
to  keep  their  vans  in  good  and  substantial  repair.  In  pursuance 
of  his  contract  the  defendant  sent  his  men  frequently  to  the  premises 
of  the  firm  to  examine  into  the  condition  of  the  vans  and  to  do  the 
necessary  repairs.  On  one  occasion,  upon  the  complaint  of  the  plain- 
tiff that  the  van  he  drove  ran  heavily,  one  of  the  defendant's  men 
took  off  the  wheel  and  oiled  and  replaced  it,  but,  being  unable  to  re- 
place the  cap  of  the  axle,  he  nailed  a  piece  of  zinc  over  the  box  of  the 
wheel  to  keep  the  cap  from  falling  oft'.  A  fortnight  later  the  wheel 
was  again  attended  to  by  one  of  the  defendant's  men.  After  this 
had  been  done  and  on  the  same  day  the  plaintiff'  while  driving  the  van 
was  thrown  to  the  ground  by  reason  of  the  wheel  coming  off,  and  he 
sustained  the  injuries  in  respect  of  which  he  sued.  The  allegation  in 
the  particulars  of  claim  was  that  the  defendant's  man  negligently 
failed  to  properly  inspect  the  wheel  and  repair  its  defective  condition, 
and  that  the  repairs  to  the  wheel  were  done  in  a  negligent  and  un- 
skillful manner,  whereby  the  accident  to  the  plaintiff  happened.  The 
action  was  tried  before  the  judge  and  a  jury,  and  at  the  close  of  the 
plaintiff's  case  it  was  submitted  that  there  was  no  evidence  of  neg- 
ligence on  the  part  of  the  defendant,  and  that  even  if  there  was  evidence 
of  negligence  the  defendant  was  not  liable  in  the  action  as  he  owed 
no  duty  to  the  plaintiff,  his  only  duty  being  to  the  firm  with  whom 
he  had  contracted.  Upon  this  latter  ground  the  county  court  judge 
entered  judgment  for  the  defendant. 

The  plaintiff  appealed,  and  a  Divisional  Court,  consisting  of  Lord 
Alverstone,  C.  J.,  Wills,  J.,  and  Kennedy,  J.,  afiirmed  the  decision  of 
the  county  court  judge. 

The  plaintiff  appealed. 

Arthur  Powell,  K.  C,  and  W.  M.  Thompson,  for  the  plaintiff.  The 
case  for  the  plaintiff  does  not  rest  upon  contract  or  upon  negligence 
of  omission,  but  on  the  negligence  of  the  defendant  in  an  act  done  by 


Ch.  1)  NEGLIGENCE  1073 

his  servant  in  the  course  of  his  employment.  *  *  *  This  case 
comes  within  the  conditions  as  to  liability  stated  by  Cotton,  L.  J.,  and 
agreed  to  by  Bowen,  L.  J.,  in  Heaven  v.  Pender  (1883)  11  Q.  B.  D. 
503,  and  it  is  not  necessary  to  rely  on  the  broader  view  taken  by  Lord 
Esher,  M.  R.,  in  that  case,  though  that  would  certainly  cover  the 
present  case.     *     *     * 

Collins,  M.  r_  *  *  *  jj-,  j^-,y  opinion  this  case  is  concluded 
by  the  authority  of  Winterbottom  v.  Wright,  10  M.  &  W.  109,  the 
circumstances  of  which  are  indistinguishable  from  those  of  the  present 
case,  and  that  decision,  since  the  year  1842,  in  which  it  was  given,  has 
stood  the  test  of  repeated  discussion.  Under  these  circumstances  it 
would,  in  my  opinion,  be  a  waste  of  time  to  go  through  the  numerous 
cases  that  have  been  cited,  for  the  principles  laid  down  by  Lord 
Abinger,  C.  B.,  in  the  case  that  I  have  mentioned  appear  to  me  to  be 
based  upon  sound  reasoning,  and  to  be  conclusive  in  this  case.''" 
*  *  *  In  my  judgment  no  question  arises  here  as  to  the  delivery 
of  a  dangerous  thing,  which  is  one  of  the  circumstances  that  can  give 
rise  to  a  cause  of  action  in  a  person  who  is  not  a  party  to  the  contract. 
Such  a  case  is  dealt  with  by  Parke,  B.,  in  delivering  the  judgment  of 
the  Court  of  Exchequer  in  Longmeid  v.  Holliday,  6  Ex.  761,  at  page 
767,  thus :  "And  i^  may  be  the  same" — that  is,  responsibility  may  arise 
— "when  anyone  delivers  to  another  without  notice  an  instrument  in  its 
nature  dangerous,  or  under  particular  circumstances,  as  a  loaded  gun 
which  he  himself  loaded,  and  that  other  person  to  whom  it  is  de- 
livered is  injured  thereby,  or  if  he  places  it  in  a  situation  easily  acces- 
sible to  a  third  person,  who  sustains  damage  from  it.  A  very  strong 
case  to  that  effect  is  Dixon  v.  Bell  (1816)  5  M.  &  S.  198.  But  it  would 
be  going  too  far  to  say  that  so  much  care  is  required  in  the  ordinary 
intercourse  of  life  between  one  individual  and  another,  that  if  a 
machine  not  in  its  nature  dangerous — a  carriage,  for  instance — but 
which  might  become  so  by  a  latent  defect  entirely  unknown,  although 
discoverable  by  the  exercise  of  ordinary  care,  should  be  lent  or  given 
by  one  person,  even  by  the  person  who  manufactured  it,  to  another 
the  former  should  be  answerable  to  the  latter  for  a  subsequent  dam- 
age accruing  by  the  use  of  it."  Here  there  is  the  case  of  a  carriage 
which,  so  far  as  the  evidence  goes,  was  not  visibly  out  of  repair.  Ap- 
parently the  wheel  required  oiling,  and  for  that  purpose  the  cap  was 
removed,  and,  as  it  was  defective,  a  piece  of  zinc  was  nailed  onto  the 
wheel.  That  had  nothing  to  do  with  the  accident,  but  was  done  to 
supply  a  better  means  of  oiling  the  wheel ;  and,  in  my  opinion,  the 
van  cannot  fall  within  the  category  of  dangerous  articles  to  which 
Parke,  B.,  alludes. 

7  6  The  learned  Master  of  the  Rolls  here  quoted  the  remarks  of  Lord 
Abinger,  C.  B.,  in  Winterbottom  v.  Wright  (see  ante,  p.  1048),  as  showing  the 
view  talien  by  the  Court  and  laying  down  a  principle  which  was  conclusive 
in  the  case  at  bar. 

Hepb.Tobts — 68 


1074  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

One  other  ground  was  suggested  upon  which  the  defendant  might 
be  held  to  be  Hable.  That  is  the  principle  affirmed  in  Heaven  v.  Pen- 
der, 11  Q.  B.  D.  503,  that  where  a  person  having  a  common  interest 
with  another  invites  that  person  to  use  certain  premises  or  chattels, 
the  person  so  inviting  incurs  a  responsibility  with  regard  to  the  condi- 
tion of  the  premises  or  of  the  chattels,  as  the  case  may  be.  Nothing  of 
that  kind  can  be  set  up  in  this  case.  It  was  hardly  contended  that 
such  considerations  were  applicable  to  this  case ;  but  it  was  said  that 
it  came  within  the  dictum  enunciated  by  Lord  Esher  in  his  judgment, 
as  to  the  duty  to  use  ordinary  care  and  skill  to  avoid  a  danger  to 
another  that  a  person  of  ordinary  sense  would  recognize  as  likely  to 
arise  if  he  did  not  use  that  ordinary  care  and  skill  in  his  own  conduct. 
That,  however,  was  not  a  decision  of  the  Court,  and  it  was  subsequent- 
ly qualified  and  explained  by  Lord  Esher  himself.  See  Le  Lievre  v. 
Gould,  [1893]  1  O.  B.  49L  at  page  497.  I  have  pointed  out  what  was 
the  judgment  of  the  Court,  and  the  plaintiff  has  entirely  failed  to 
bring  his  case  within  the  principle  of  that  judgment,  and  this  appeal 
must  fail. 

Stirling,  L.  J.  I  am  of  the  same  opinion.  In  order  to  succeed 
in  this  action  the  plaintiff  must  bring  his  case  within  the  proposition 
enunciated  by  Cotton,  L.  J.,  and  agreed  to  by  Bowen,  L.  J.,  in  Heaven 
V.  Pender,  11  O.  B.  D.  503,  at  page  517,  to  the  effect  that  "any  one 
who  leaves  a  dangerous  instrument,  as  a  gun,  in  such  a  way  as  to 
cause  danger,  or  who  without  due  warning  supplies  to  others  for  use 
an  instrument  or  thing  which  to  his  knowledge,  from  its  construction 
or  otherwise,  is  in  such  a  condition  as  to  cause  danger,  not  necessarily 
incident  to  the  use  of  such  an  instrument  or  thing,  is  liable  for  injury 
caused  to  others  by  reason  of  his  negligent  act."  That  passage 
was  cited  to  the  county  court  judge,  and  was  relied  on  in  this  Court 
by  counsel  for  the  plaintiff.  As  to  the  first  part  of  that  proposition, 
with  regard  to  a  dangerous  instrument,  I  take  it  that  the  reference 
is  to  a  thing  dangerous  in  itself,  and  that  is  shewn  by  the  illustration 
that  is  given,  and  also  by  what  is  stated  in  the  second  part  of  the  prop- 
osition which  treats  of  an  instrument  or  thing  in  such  a  condition  as 
to  cause  danger,  not  necessarily  incident  to  its  use.  I  think,  therefore, 
that  the  van  which  the  plaintiff  was  driving  does  not  fall  within  the 
first  branch  of  the  sentence  that  I  have  quoted,  and  that  to  succeed 
the  plaintiff  must  bring  the  case  within  the  second  part.  In  that  case 
he  must  adduce  evidence  to  shew  that  to  the  knowledge  of  the  de- 
fendant the  van  was  in  such  a  condition  as  to  cause  danger,  not  neces- 
sarily incident  to  its  use.  It  appears  to  me  that  the  plaintiff  was  not  in 
a  position  to  do  this,  and  consequently  he  failed  in  establishing  the 
liability  of  the  defendant,  and  this  appeal  must  be  dismissed. 

Mathew,  L.  J.  I  am  of  the  same  opinion.  The  argument  of 
counsel  for  the  plaintiff  was  that  the  defendant's  servants  had  been 
negligent  in  the  performance  of  the  contract  with  the  owners  of  the 
van,  and  that  it  followed  as  a  matter  of  law  that  anyone  in  their  em- 


Ch.  1)  NEGLIGENCE  1075 

ployment,  or,  indeed,  anyone  else  who  sustained  an  injury  traceable 
to  that  negligence,  had  a  cause  of  action  against  the  defendant.  It 
is  impossible  to  accept  such  a  wide  proposition,  and,  indeed,  it  is 
difficult  to  see  how,  if  it  were  the  law,  trade  could  be  carried  on.  No 
prudent  man  would  contract  to  make  or  repair  what  the  employer 
intended  to  permit  others  to  use  in  the  way  of  his  trade.  There  was 
in  this  case  no  evidence  before  the  learned  county  court  judge  that 
this  van  was  in  a  state  that  made  the  defendant  liable  under  any  of 
the  conditions  of  liability  that  have  been  laid  down  in  the  cases  to 
which  reference  has  been  made.  Further,  there  was  no  evidence  that 
the  plaintiff  was  invited  by  the  defendant  to  use  the  van.  I  concur  in 
thinking  that  the  appeal  must  be  dismissed. 
Appeal  dismissed. 


BATES  V.  BATEY  &  CO.,  Limited. 
(King's  Bench  Division.     [191.3]  3  K.  B.  351.) 

The  defendants  manufactured  ginger  beer,  which  they  put  into 
bottles  bought  from  another  firm.  They  sold  this  bottled  ginger  beer 
to  a  shopkeeper  from  whom  the  plaintiff,  a  twelve  year  old  boy,  bought 
one  bottle.  Because  of  a  defect  in  the  bottle  it  burst  when  the  plain- 
tiff' was  opening  it,  and  injured  him  so  seriously  that  he  lost  the 
sight  of  one  eye. 

The  plaintiff  claims  that  his  injury  was  caused  by  negligence  on 
the  part  of  the  defendants  in  that  it  was  their  duty  to  take  care  that 
the  bottle  of  ginger  beer  sent  out  by  them  for  sale  should  be  fit  and 
proper  and  safe  to  be  handled  by  a  person  opening  it,  and  that  they ' 
had  sent  the  bottle  out  in  such  a  defective  condition  that  it  was  not 
strong  enough  for  its  purpose. 

The  jur>'  found  (1)  that  there  was  a  defect  in  the  bottle,  which 
defect  caused  the  accident;  (2)  that  the  defect  was  not  a  latent  defect 
which  could  not  have  been  discovered  by  the  exercise  of  reasonable 
care  and  skill ;  and  (3)  that  the  defect  was  owing  to  the  negligence  of 
the  defendants.  The  damages  for  the  injury  to  the  boy  were  assessed 
at  £275. 

It  was  agreed  that,  upon  further  consideration,  the  learned  judge 
should  draw  any  further  inferences  of  fact.  He  held  that  a  bottle  of  gin- 
ger beer  was  not  in  itself  a  dangerous  thing,  and  that,  even  if  it  was,  the 
shopkeeper  must  have  known  that  it  was  a  dangerous  thing;  that  the 
bottle  of  ginger  beer,  inasmuch  as  the  bottle  was  defective,  was  a 
dangerous  thing ;  but  that  the  defendants  did  not  know  of  the  defect 
although  by  the  exercise  of  reasonable  care  they  could  have  discov- 
ered it. 

HoRRiDGE,  J.  *  *  *  The  law  on  this  question  is  to  be  found 
in  the  judgment  of  Parke,  B.,  in  Longmeid  v.  Holliday  (1851)  6  Ex. 
761,  768.  where  he  says :   "But  it  would  be  going  much  too  far  to  say 


1076  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

that  SO  much  care  is  required  in  the  ordinary  intercourse  of  life  be- 
tween one  individual  and  another  that  if  a  machine,  not  in  its  nature 
dangerous,  a  carriage  for  instance,  but  which  might  become  so  by  a 
latent  defect  entirely  unknown,  although  discoverable  by  the  exercise 
of  ordinary  care,  should  be  lent  or  given  by  one  person,  even  by  the 
person  who  manufactured  it,  to  another,  the  former  should  be  an- 
swerable to  the  latter  for  a  subsequent  damage  accruing  by  the  use 
of  it."  This  passage  is  quoted  with  approval  by  Collins,  M.  R.,  in 
the  case  of  Earl  v.  Lubbock,  [1905]  1  K.  B.  253,  257.  In  the  same 
case  Stirling,  L.  J.,  Ibid,  at  p.  258,  after  quoting  a  passage  from  the 
judgment  of  Cotton  and  Bowen,  L.  JJ.,  in  Heaven  v.  Pender  (1883) 
11  O.  B.  D.  503,  517,  to  the  effect  "that  any  one  who  leaves  a  danger- 
ous instrument,  as  a  gun,  in  such  a  way  as  to  cause  danger,  or  who 
without  due  warning  supplies  to  others  for  use  an  instrument  or  thing 
which  to  his  knowledge,  from  its  construction  or  otherwise,  is  in  such 
a  condition  as  to  cause  danger,  not  necessarily  incident  to  the  use  of 
such  an  instrument  or  thing,  is  liable  for  injury  caused  to  others  by 
reason  of  his  negligent  act,"  goes  on  to  say  with  regard  to  these  words : 
"As  to  the  first  part  of  that  proposition,  with  regard  to  a  dangerous 
instrument,  I  take  it  that  the  reference  is  to  a  thing  dangerous  in  it- 
self, and  that  is  shewn  by  the  illustration  that  is  given,  and  also  by 
what  is  stated  in  the  second  part  of  the  proposition  which  treats  of  an 
instrument  or  thing  in  such  a  condition  as  to  cause  danger,  not  neces- 
sarily incident  to  its  use.  I  think,  therefore,  that  the  van  which  the 
plaintiff  was  driving  does  not  fall  within  the  first  branch  of  the  sen- 
tence that  I  have  quoted,  and  that  to  succeed  the  plaintiff  must  bring 
the  case  within  the  second  part.  In  that  case  he  must  adduce  evidence 
to  shew  that  to  the  knowledge  of  the  defendant  the  van  was  in  such  a 
condition  as  to  cause  danger,  not  necessarily  incident  to  its  use.  It 
appears  to  me  that  the  plaintiff  was  not  in  a  position  to  do  this,  and 
consequently  he  failed  in  establishing  the  liability  of  the  defendant." 

The  negligence  there  alleged  was  a  failure  to  properly  inspect  the 
wheel  and  to  report  its  defective  condition.  If,  however,  the  failure 
to  obtain  knowledge  which  could  by  reasonable  care  have  been  ob- 
tained is  equivalent  to  knowledge,  it  seems  to  me  the  Court  of  Appeal 
would  have  sent  that  case  down  to  the  county  court  judge  to  be  heard 
by  him  on  the  question  of  whether  or  not  the  defendant  must  be  taken 
to  have  knowledge  because  he  failed  to  make  proper  use  of  the  means 
of  discovery  at  his  disposal ;  and  I  think  this  case  is  a  direct  decision 
of  the  Court  of  Appeal,  following  Longmeid  v.  Holliday,  6  Ex.  761. 
that  even  where  the  defect  is  discoverable  by  the  exercise  of  ordinary 
care  the  defendant  is  not  liable,  apart  from  contract,  unless  he  in  fact 
had  actual  knowledge. 

My  greatest  difficulty  has  been  that,  in  White  v.  Steadman,  [1913] 
3  K.  B.  340,  Lush,  J.,  held,  in  the  case  of  a  vicious  horse,  that  a  per- 
son who  has  the  means  of  knowledge  and  only  does  not  know  that  the 
animal  or  chattel  which  he  supplies  is  dangerous  because  he  does  not 


Ch.  1)  NEGLIGENCE  1077 

take  ordinary  care  to  avail  himself  of  his  opportunity  of  knowledge 
is  in  precisely  the  same  position  as  the  person  who  knows.  I  do  not 
think  that  Lush,  J.,  in  that  case  can  have  intended  to  decide  that, 
where  a  thing  not  dangerous  in  itself  becomes  dangerous  through  a 
defect  occasioned  by  breach  of  contract  in  its  manufacture  or  delivery, 
the  person  handing  it  over  must  be  held  liable  to  a  third  party  because, 
although  he  did  not  know,  he  might  by  the  exercise  of  reasonable 
care  have  known  its  condition.  I  think  this  must  be  so  because  he  was 
a  party  to  the  decision  of  Blacker  v.  Lake,  106  L.  T.  533,  537, — and 
I  find  that  in  that  case  Hamilton,  J.,  lays  down  this  proposition :  "In 
the  present  case  all  that  can  be  said  is  that  the  defendants  did  not  know 
that  their  lamp  was  not  perfectly  safe  and  had  no  reason  to  believe 
that  it  was  not  so,  in  the  sense  that  no  one  had  drawn  their  atten- 
tion to  the  fact,  but  that  had  they  been  wiser  men  or  more  experienced 
engineers  they  would  then  have  known  what  the  plaintiff's  experts  say 
that  they  ought  to  have  known." 

In  any  case  the  decision  in  White  v.  Steadman,  [1913]  3  K.  B.  340, 
was  not  a  decision  with  regard  to  a  defect  arising  from  breach  of  con- 
tract, but  had  reference  to  a  vicious  horse.  I  express  no  opinion  with 
regard  to  that  decision,  but  I  think  that  the  judgment  of  Parke,  B.,  in 
Longmeid  v.  Holliday,  6  Ex.  761,  of  Cotton  and  Bowen,  L.  JJ.,  in 
Heaven  v.  Pender,  11  Q.  B.  D.  503,  of  Stirling,  L.  J.,  in  Earl  v. 
Lubbock,  [1905]  1  K.  B.  253,  and  of  Hamilton,  J.,  in  Blacker  v. 
Lake,  106  L.  T.  533,  537  make  it  clear  that  in  this  case  the  plaintiff' 
is  not  entitled  to  recover.  I  have  not  felt  myself  bound  by  George  v. 
Skivington  (1869)  L.  R.  5  Ex.  1,  as  that  case  was  not  followed  by 
Hamilton  and  Lush,  JJ.,  in  Blacker  v.  Lake,  106  L.  T.  533,  537. 

I  give  judgment  for  the  defendants. 

Judgment  for  defendants.'^ '^ 


MAZETTI  et  al.  v.  AR^IOUR  &  CO.  et  al. 

(Supreme  Court  of  Wasliington,  1913.     75  Wash.   G22,  135   Pac.   633,  4S  L. 

R.  A.  [N.  S.]  213.) 

Chadwick,  J.  The  complaint  alleges  that  the  plaintiff's  were  op- 
erating a  profitable  restaurant  in  the  city  of  Seattle,  and  dealing  with 
the  general  public  as  their  patrons ;  that  defendant  Armour  &  Co. 
is  engaged  in  the  business  of  manufacturing  and  selling  to  the  public 
generally  meats  and  products  to  be  used  as  food ;  that  it  maintains 
a  place  of  business  in  Seattle,  Wash.,  from  which  it  sells  and  dis- 
tributes its  goods,  representing  and  holding  out  to  the  general  pub- 
lic that  its  goods  are  pure,  wholesome,  and  fit  food  for  human  be- 
ings ;  that  on  June  16,  1912,  plaintiff's,  in  the  usual  course  and  con- 
duct of  their  business,  purchased  from  the  Seattle  Grocery  Company 

■'7  The  statement  of  facts  is  abi-idged  and  part  of  the  opinion  is  omitted. 


1078  TORTS  THROUGH  ACTS  OF   CONDITIONAL   LIABILITY         (Part  3 

a  carton  of  cooked  tongue,  prepared  and  ready  to  be  used  as  food 
without  further  cooking  or  labor ;  that  such  package  had  been  man- 
ufactured and  prepared  by  defendant  Armour  &  Co.,  that  the  carton 
or  container  bore  its  name,  and  that  it  was  purchased  to  be  sold  to 
plaintiffs'  customers;  that  in  making  such  purchase  plaintiffs  relied 
upon  the  representations  of  Armour  &  Co.  that  said  food  was  pure 
and  wholesome  and  fit  for  food ;  that  Armour  &  Co.  was  guilty  of 
negligence  in  manufacturing  and  preparing  the  foods  purchased,  in 
that  in  the  center  of  the  carton  was  a  foul,  filthy,  nauseating  and 
poisonous  substance ;  that  in  the  due  course  of  trade  plaintiffs  served 
to  one  of  their  patrons  a  portion  of  the  tongue ;  that  the  patron  ate 
of  it;  that  he  then  and  there  became  sick  and  nauseated,  and  did 
then  and  there  in  the  presence  of  other  persons  publicly  expose  and 
denounce  the  service  to  him  of  such  foul  and  poisonous  food ;  that 
the  incident  became  known  to  the  public  generally ;  that  plaintiffs 
had  no  knowledge  or  means  of  knowing  the  character  of  the  food 
served ;  that  its  condition  could  not  be  discovered  until  it  was  served 
for  use — all  to  the  damage  of  the  plaintift's,  etc.,  for  loss  of  reputa- 
tion, business,  and  lost  profits  during  the  life  of  their  lease.  Defend- 
ants demurred  tO'  the  complaint.  The  demurrer  of  Armour  &  Co. 
was  sustained,  and  plaintiffs  have  appealed. 

It  has  been  accepted  as  a  general  rule  that  a  manufacturer  is  not 
liable  to  any  person  other  than  his  immediate  vendee ;  that  the  ac- 
tion is  necessarily  one  upon  an  implied  or  express  warranty,  and  that 
without  privity  of  contract  no  suit  can  be  maintained ;  that  each  pur- 
chaser must  resort  to  his  immediate  vendor.  To  this  rule  certain  ex- 
ceptions have  been  organized:  (1)  Where  the  thing  causing  the  in- 
jury is  of  a  noxious  or  dangerous  kind.  (2)  Where  the  defendant 
has  been  guilty  of  fraud  or  deceit  in  passing  ofT  the  article.  (3)  Where 
the  defendant  has  been  negligent  in  some  respect  with  reference  to 
the  sale  or  construction  of  a  thing  not  imminently  dangerous. 

Within  one  of  these  exceptions  is  to  be  found  the  reason  for  hold- 
ing the  manufacturer  of  patent  or  proprietary  medicines  to  answer  at 
the  suit  of  the  ultimate  consumer.  Direct  actions  are  allowed  in 
such  cases  because  the  manufacture  of  medicines  is  generally  shrouded 
in  mystery,  and  sometimes,  if  not  generally,  they  contain  poisons 
which  may  produce  injurious  results.  They  are  prepared  by  the  man- 
ufacturer for  sale  and  distribution  to  the  general  public,  and  one 
purchasing  them  has  a  right  to  rely  upon  the  implied  obligation  of 
the  manufacturer  that  he  will  not  use  ingredients  which  if  taken  in 
prescribed  doses  will  bring  harmful  results.  Reference  may  be  had 
to  the  following  cases  which  sustain,  and  in  which  many  other  cases 
are  cited  which  sustain,  this  exception :  Thomas  v,  Winchester,  6 
N.  Y.  397,  57  Am.  Dec.  455 ;  Blood  Balm  Co.  v.  Cooper,  83  Ga.  457, 
10  S.  E.  118,  5  L.  R.  A.  612,  20  Am.  St.  Rep.  324;  Weiser  v.  Holz- 
man,  33  Wash.  87,  73  Pac.  797,  99  Am.  St.  Rep.  932. 

Another  exception — the  doctrine  is  comparatively  recent — is  refera- 


Ch.  1)  NEGLIGENCE  1071) 

ble  to  the  modern  method  of  preparing  food  for  use  by  the  con- 
sumer, and  the  more  general  and  ever-increasing  use  of  prepared 
food  products.  The  following  are  among  the  more  recent  cases  hold- 
ing that  the  ultimate  consumer  may  bring  his  action  direct  against 
the  manufacturer:  Meshbesher  v.  Channellene  Oil  &  Mfg.  Co.,  107 
Minn.  104,  119  N.  W.  428,  131  Am.  St.  Rep.  441;  Tomlinson  v. 
Armour,  73  N.  J.  Law,  748,  70  Atl.  314,  19  L.  R.  A.  (X.  S.)  923; 
Salmon  v.  Libby,  219  111.  421,  76  N.  E.  573;  Haley  v.  Swift,  152 
Wis.  570,  140  N.  W.  292;  Watson  v.  Augusta,  124  Ga.  121,  52  S. 
E.  152,  1  L.  R.  A.  (N.  S.)  1178,  110  Am.  St.  Rep.  157;  Ketterer  v. 
Armour  (D.  C.)  200  Fed.  322.  The  contrary  is  held  in  the  case  of 
Nelson  v.  Armour,  76  Ark.  352,  90  S.  W.  288,  6  Ann.  Cas.  237.  This 
case,  though  well  reasoned  along  the  lines  of  those  cases  which  hold 
that  the  rule  of  caveat  emptor  applies,  is  not  in  touch  with  the  modern 
drift  of  authority.  Some  of  the  cases  hold  that  the  action  is  for 
breach  of  warranty ;  others  that  it  is  to  be  sustained  upon  the  ground 
of  negligence.  A  few  courts  have  attributed  the  growth  of  this  ex- 
ception to  the  general  public  policy  as  declared  in  the  pure  food  laws 
(^Meshbesher  v.  Channellene,  etc.,  supra),  while  others  say  that  the 
liability  for  furnishing  provisions  which  endanger  human  life  rests 
upon  the  same  grounds  as  the  manufacturing  of  patent  or  proprietary 
medicine.  Bishop  v.  W^eber,  139  Mass.  411,  1  N.  E.  154,  52  Am. 
Rep.  715;  Haley  v.  Swift,  supra;  Tomlinson  v.  Armour,  supra; 
Meshbesher  v.  Channellene,  supra ;  Salmon  v.  Libby,  supra ;  Watson 
V.  Augusta,  supra ;  Ketterer  v.  Armour,  supra.  In  the  case  of  Weiser 
V.  Holzman,  this  court  said :  "The  rule  does  not  rest  upon  any  prin- 
ciple of  contract,  or  contractual  relation  existing  between  the  person 
delivering  the  article  and  the  person  injured,  for  there  is  no  contract 
or  contractual  relation  between  them.  It  rests  on  the  principle  that 
the  original  act  of  delivering  the  article  is  wrongful,  and  that  every 
one  is  responsible  for  the  natural  consequences  of  his  wrongful  acts." 
Although  the  cases  differ  in  their  reasoning,  all  agree  that  there  is 
a  liability  in  such  cases  irrespective  of  any  privity  of  contract  in 
the  sense  of  immediate  contract  between  the  parties. 

Indeed,  we  understand  that  respondent  does  not  claim  that  the 
ultimate  consumer,  the  person  who  ate  the  unfit  food,  would  be  de- 
nied a  right  of  recovery  under  modern  authority ;  but  it  is  strenu- 
ously contended  that  such  actions  are  sustained  because  the  consumer 
has  been  injured  in  health  and  comfort,  that  the  exception  should 
not  be  carried  to  the  extent  of  allowing  a  retailer  of  the  goods  to  sue 
direct  and  recover  for  injury  to  his  business  and  loss  of  reputation, 
that  in  such  cases  there  must  still  be  privity  of  contract.  It  seems 
that  tiie  test  should  not  rest  in  finding  the  plaintifif's  damage  in  health 
or  business,  but  in  answering  the  question  whether  there  has  been 
a  damage  which  may  be  justly  attributed  to  the  negligence  or  a  breach 
of  duty  on  the  part  of  the  one  who  had  power  and  whose  duty  it  was 
to  prevent  the  wrong. 


lOSO  TORTS  THROUGH  ACTS  OP  CONDITIONAL  LIABILITY         (Part  3 

Counsel  on  either  side  have  been  zealous  in  searching  the  books, 
but  only  one  case  is  submitted  that  goes  directly  to  the  right  of  the 
retailer  or  middleman  to  sue  in  the  first  instance — Neiman  v.  Chan- 
nellene  Oil  &  Alfg.  Co.,  112  Minn.  13,  127  N.  W.  394,  140  Am.  St. 
Rep.  458.  The  right  to  recover  for  loss  of  trade  consequent  upon  the 
selling  of  impure  food  was  sustained;  the  court  saying,  "A  company 
which  advertises  itself  as  a  manufacturer  and  seller  of  pure  articles 
of  food  must  be  deemed  to  have  knowledge  of  the  contents  of  the 
articles  offered  for  sale."  The  court  held  to  the  doctrine  of  implied 
warrantv.  The  suit  was  brought  by  the  retailer  against  his  immedi- 
ate vendor,  so  that  we  still  have  to  meet  the  question  of  whether  the 
retailer  who  has  lost  his  trade  can  sue  over  the  head  of  his  immedi- 
ate vendor,  or  join  him  with  the  manufacturer  as  in  this  case.  In 
the  light  of  modern  conditions  we  see  no  reason  why  he  should  not. 
He  has  been  damaged.  He  and  all  others  who  in  the  course  of  trade 
handled  the  unwholesome  goods  purchased  them  relying  upon  the 
name  and  reputation  of  the  manufacturer.  The  goods  were  designed 
for  ultimate  consumption  by  an  individual  patron,  and  packed  to 
facilitate  and  make  convenient  such  resales  as  might  be  made  pend- 
ing ultimate  consumption.  Every  tradesman,  whether  wholesaler  or 
retailer,  is  in  a  sense  a  consumer,  for  he  buys  to  resell.  In  a  way 
he  risks  his  reputation.  He  stakes  it  upon  either  an  express  war- 
ranty, as  printed  on  the  package,  or  an  implied  warranty  that  the 
goods  are  wholesome  and  fit  for  food.  He  is  injured  by  the  fault  or 
a  breach  of  duty  of  the  manufacturer,  for  his  immediate  vendor,  like 
himself,  has  no  way  to  test  every  sealed  package.  "Remedies  of  in- 
jured consumers  ought  not  to  be  made  to  depend  upon  the  intricacies 
of  the  law  of  sales.  The  obligation  of  the  manufacturer  should  not 
be  based  alone  on  privity  of  contract.  It  should  rest,  as  was  once 
said,  upon  'the  demands  of  social  justice.'"  Ketterer  v.  Armour,  su- 
pra. "We  may  judicially  recognize  that  the  contents  are  sealed  up, 
not  open  to  the  inspection  or  test,  either  of  the  retailer  or  of  the  con- 
sumer, until  they  are  opened  for  use,  and  not  then  susceptible  to  prac- 
tical test,  except  the  test  of  eating.  When  the  manufacturer  puts 
the  goods  upon  the  market  in  this  form  for  sale  and  consumption, 
he,  in  effect,  represents  to  each  purchaser  that  the  contents  of  the 
can  are  suited  to  the  purpose  for  which  it  is  sold,  the  same  as  if  an 
express  representation  to  that  effect  were  imprinted  upon  a  label. 
Under  these  circumstances,  the  fundamental  condition  upon  which 
the  common-law  doctrine  of  caveat  emptor  is  based — that  the  buyer 
should  'look  out  for  himself — is  conspicuously  absent."  Tomlinson 
v.  Armour,  supra,  75  N.  J.  Law,  748,  70  Atl.  314,  19  L.  R.  A.  (N. 
S.)  923. 

In  Pantaze  v.  West,  7  Ala.  App.  599,  61  South.  42,  the  suit  was 
brought  against  the  retailer.  In  discussing  the  obligations  of  the  re- 
tailer, the  court  treats  him  as  a  consumer  within  the  law,  saying: 
"The  fact  was   established  without  controversy  that  the  defendant 


Ch.  1)  NEGLIGENCE  lOSl 

was  the  keeper  of  a  public  eating  place,  engaged  in  the  business  of 
serving  food  to  his  customers,  the  public,  and,  being  thus  engaged, 
and  holding  himself  out  as  a  public  purveyor,  he  was  bound  to  use 
due  care  to  see  that  the  foodstuffs  served  at  his  place  of  business  to 
his  customers  were  fit  for  human  consumption,  and  could  be  partaken 
of  without  causing  sickness  or  endangering  human  life  or  health  be- 
cause of  their  unwholesome  and  deleterious  condition,  and,  for  any 
negligence  in  this  particular  in  failing  to  observe  this  duty  which 
proximately  resulted  in  injury  to  one  of  the  patrons  of  the  place,  the 
defendant  would  be  responsible." 

Now,  under  all  authority  the  immediate  vendor  would  be  liable  upon 
one  theory  or  another  to  the  consumer.  This  being  so,  it  should 
not  be  held  that  the  vendor  could  not  sue  the  manufacturer  except 
to  recoup  against  a  judgment.  He  might  thus  be  left  without  rem- 
edy. In  denying  the  right  to  sue  an  immediate  vendor,  Spear,  J.,  in 
Bigelow  v.  Maine  Central  Ry.  Co.,  110  Ue.  105,  85  Atl.  396,  43  L. 
R.  A.  (N.  S.)  627,  observed  the  wonderful  discoveries  of  the  past 
century  and  the  amazing  progress  in  perfecting  known  devices.  He 
recalls  the  boast  of  the  common  law  that  it  was  able  to  adjust  itself 
to  the  inevitable  vicissitudes  and  changes  that  occur  in  the  develop- 
ment of  human  affairs.  "The  principles  of  the  common  law  have 
adapted  themselves  so  aptly  as  to  render  almost  imperceptible  the 
radical  transitions  that  have  taken  place.  Of  little  less  importance 
than  the  appearance  of  the  great  achievements  referred  to  is  the  es- 
tablishment and  development  of  the  canning  industry  in  this  coun- 
try and  in  other  parts  of  the  world.  It  may  be  said  that  the  art  of 
canning,  if  not  invented  within  the  last  century,  has,  at  least,  as- 
sumed the  vast  proportions  whfch  it  has  now  attained  within  a  com- 
paratively few  years.  It  involves  a  unique  and  peculiar  method  of 
distributing  for  domestic  and  foreign  use  almost  every  product  known 
to  the  art  of  husbandry.  The  wholesaler,  the  retailer,  and  the  user 
of  these  goods,  whether  in  the  capacity  of  caterer,  seller,  or  host, 
sustain  an  entirely  different  duty,  respecting  a  knowledge  of  their 
contents  and  quality,  than  prevails  with  regard  to  knowing  the  qual- 
ity of  those  food  products  which  are  open  to  the  inspection  of  the 
seller  or  victualer.  With  reference  to  these  it  may  well  be  consid- 
ered, as  has  been  held,  that,  having  an  opportunity  to  investigate  and 
thereby  to  know  the  quality  of  their  merchandise,  they  are  charged 
with  a  responsibility  amounting  to  a  practical  guaranty.  The  early 
rules  of  law  were  formulated  upon  the  theory  that  the  provision 
dealer  and  the  victualer,  having  an  opportunity  to  observe  and  inspect 
the  appearance  and  quality  of  the  food  products  they  offered  to  the 
public,  were  accordingly  charged  with  knowledge  of  their  imperfec- 
tions. Winsor  v.  Lombard,  18  Pick.  (Mass.)  57;  Bishop  v.  Weber, 
139  Mass.  411,  1  N.  E.  154,  52  Am.  Rep.  715.  But,  upon  the  state 
of  facts  in  the  case  at  bar,  a  situation  arises  that  cannot  in  the  prac- 


1082  TOUTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

tical  conduct  of  the  canning  business  fall  within  these  rules.  No 
knowledge  of  the  original  or  present  contents  of  a  perfect  appear- 
ing can  is  possible  in  the  practical  use  of  canned  products.  They 
cannot  be  chemically  analyzed  every  time  they  are  used.  Accordingly, 
the  reason  for  the  rule  having  ceased,  a  new  rule  should  be  applied 
to  the  sale  and  use  of  canned  goods  that  will  more  nearly  harmonize 
with  what  is  rational  and  just. 

To  the  old  rule  that  a  manufacturer  is  not  liable  to  third  persons 
who  have  no  contractual  relations  with  him  for  negligence  in  the 
manufacture  of  an  article  should  be  added  another  exception,  not 
one  arbitrarily  worked  by  the  courts,  but  arising,  as  did  the  three 
to  which  we  have  heretofore  alluded,  from  the  changing  conditions 
of  society.  An  exception  to  a  rule  will  be  declared  by  courts  when 
the  case  is  not  an  isolated  instance,  but  general  in  its  character,  and 
the  existing  rule  does  not  square  with  justice.  Under  such  circum- 
stances a  court  will,  if  free  from  the  restraint  of  some  statute,  declare 
a  rule  that  will  meet  the  full  intendment  of  the  law.  No  case  has 
been  cited  that  is  squarely  in  point  with  the  instant  case ;  but  there 
is  enough  in  the  adjudged  cases  to  warrant  us  in  our  conclusion. 

The  facts  stated  in  the  complaint  are  admitted  by  demurrer.  Plain- 
tiffs have  been  injured.  No  other  person  or  firm  had  an  opportunity 
to  check  the  offensive  package  after  it  was  sealed  and  sent  on  its 
way.  Right  and  reason  demand  that  any  party  injured  should  have 
a  right  of  recovery  against  the  first  oft'ender  without  resorting  ta 
that  circumlocution  of  action  against  intervening  agents  (a  doubtful 
right  at  best,  Bigelow  v.  Maine  Central  Ry.  Co.,  supra),  which  is 
demanded  where  the  product  as  well  as  the  market  is  open,  and  the 
rule  of  caveat  emptor  should  in  justice  apply. 

Plaintiff's'  argument  is  also  based  on  the  pure  food  law.  It  is  con- 
tended that  the  negligence  of  defendant  is  presumed  if  a  violation  of 
the  pure  food  law  be  shown.  This  is  admitted  as  a  general  proposi- 
tion by  defendant;  but  it  says  that  the  rule  applies  only  where  the 
statute  was  intended  for  the  benefit  of  the  party  who  brings  the  suit ; 
that  the  pure  food  laws  are  intended  for  the  benefit  of  the  consumer 
alone. 

This  opinion  is  already  too  long  drawn  out,  and  we  are  not  dis- 
posed to  go  into  this  phase  of  the  case,  except  to  say  that  it  seems 
to  us  that  the  plaintiffs  would  not  be  barred  by  the  argument  made 
by  defendant.  The  consumer  purchases  prepared  food  products  to 
sustain  life  and  health.  The  retailer  purchases  the  same  products, 
depending  upon  established  brands  to  sustain  his  reputation  as  a  dealer 
in  clean  and  wholesome  food.  We  would  be  disposed  to  hold  on 
this  question  that,  where  sealed  packages  are  put  out,  and  it  is  made 
to  appear  that  the  fault,  if  any,  is  that  of  the  manufacturer,  the 
product  was  intended  for  the  use  of  all  those  who  handle  it  in  trade 
as  well  as  those  who  consume  it.     Our  holding  is  that,  in  the  absence 


Ch.  1)  NEGLIGENCE  108 


of  an  express  warranty  of  quality,  a  manufacturer  of  food  products 
under  modern  conditions  impliedly  warrants  his  goods  when  dis- 
pensed in  original  packages,  and  that  such  warranty  is  available  to 
all  who  may  be  damaged  by  reason  of  their  use  in  the  legitimate 
channels  of  trade. 

We  regard  this  case,  in  so  far  as  the  dealer  is  permitted  to  sue 
the  manufacturer,  as  one  of  first  impression.  We  think  the  complaint 
states  a  cause  of  action.  If  there  is  no  authority  for  the  remedy, 
"it  is  high  time  for  such  an  authority."     Ketterer  v.  Armour,  supra. 

The  judgment  is  reversed,  and  the  cause  remanded,  with  instruc- 
tions to  overrule  the  demurrer.'^  ^ 


TOM  V.  NICHOLS-FIFIELD  SHOE  MACH.  CO. 

(Circuit  Court  of  Appeals  of  the  United  States,  1914.     132  C.  C.  A.  221, 

215  Fed.  881.) 

In  Error  to  the  District  Court  of  the  United  States  for  the  District 
of  Massachusetts.  ^ 

This  was  an  action  by  Jacob  Tom  against  the  Shoe  Machinery  Com- 
pany, for  personal  injuries  sustained  by  the  plaintiff  while  in  the  em- 
ploy of  Habid  Tom,  and  engaged  in  operating  a  die-cutting  machine 
which  had  been  sold  and  delivered  to  Habid  Tom  by  the  defendants 
and  set  up  by  them  in  his  factory  in  contemplation  of  its  being  op- 
erated by  the  plaintiff.  The  judgment  below  was  for  the  defendants, 
and  plaintiff  brings  error.'^'' 

Bingham,  Circuit  Judge.  *  *  *  We  are  also  of  the  opinion 
that  the  circumstances  disclosed  by  the  case  show  that  the  defendant 
owed  the  plaintiff  a  duty  to  exercise  care  in  setting  up  the  machine, 
and  that  this  duty  did  not  arise  out  of  the  contract  of  sale  between 
the  defendant  and  Tom,  but  out  of  the  relation  existing  between  the 
plaintiff  and  the  defendant,  and  irrespective  of  the  contract  of  sale. 
"The  law  governing  actions  for  negligence  has  for  its  foundation  the 
rule  of  reasonable  conduct."  That  rule  "necessarily  includes  two  per- 
sons, or  one  person  and  some  right  or  property  of  another.  It  has 
to  do  with  one's  acts  in  reference  to  the  person,  property,  or  rights 
of  another.  It  is  a  rule  of  relation.  If  there  be  no  relation  there  is 
nothing  upon  which  the  rule  can  operate."  Garland  v.  Railroad,  76 
N.  H.  556,  86  Atl.  141,  46  L.  R.  A.  (N.  S.)  338,  Ann.  Cas.  1913E, 
924.     When,  however,  one  knows  or  has  reason  to  believe  that  his 

7  8  For  the  argument  which  may  be  based  on  this  allegation,  admitted  as 
it  is  by  the  demurrer,  see  Blocxl  Balm  Company  v.  Cooper  (1889)  83  Ga.  457, 
10  S.  E.  118,  5  L.  R.  A.  612,  20  Am.  St.  Rep.  ;}24. 

7  9  The  statement  of  facts  is  rewritten,  and  only  so  much  of  the  opinion  is 
given  as  relates  to  the  one  point. 


1084  TORTS  THROUGH  ACTS   OF   CONDITIONAL  LIABILITY         (Part  3 

conduct  may  affect  injuriously  the  person  or  property  or  rights  of 
another,  then  a  duty  arises  requiring  him  to  exercise  reasonable  care 
to  see  that  his  acts  do  not  result  injuriously  to  the  person  or  prop- 
erty or  rights  of  that  other.  So  in  this  case,  when  the  defendant 
set  up  the  macliinc  in  the  factory,  knowing  or  having  reason  to  antici- 
pate that  the  plaintiff  and  his  fellow  employes  were  to  operate  it, 
the  law  imposed  a  duty  upon  the  defendant,  with  relation  to  the  plain- 
tiff and  these  men,  to  exercise  reasonable  care  in  setting  up  the  ma- 
chine, and  rendered  it  liable  in  damages  for  a  breach  of  the  duty  in 
case  one  of  them  was  injured  while  operating  the  machine  and  as  a 
result  of  its  having  been  negligently  set  up.  Gill  v.  Middleton,  105 
Mass.  477,  479,  7  Am.  Rep.  548;  Baird  v.  Daly,  57  N.  Y.  236,  15 
Am.  Rep.  488;  Devlin  v.  Smith,  89  N.  Y.  470,  478,  42  Am.  Rep. 
311;  Pittsfield  Co.  v.  Shoe  Co.,  71  N.  H.  522,  53  Atl.  807,  60  L.  R. 
A.  116;  Id.,  72  N.  H.  546,  58  Atl.  242;  Hubbard  v.  Gould,  74  N.  H. 
25,  28,  64  Atl.  668 ;  Dustin  v.  Curtis,  '74  N.  H.  266,  268,  269,  67  Atl. 
220,  11  L.  R.  A.  (N.  S.)  504,  13  Ann.  Cas.  169;  Burnham  v.  Stillings, 
76  N.  H.  122,  123,  79  Atl.  987. 

Whether  the  defendant's  act  in  negligently  setting  up  the  machine 
was  the  proximate  cause  of  the  plaintiff's  injury  was  a  question  of 
fact  for  the  jury,  there  being  evidence  from  which  such  a  conclusion 
might  reasonably  be  drawn.  It  appeared  that  the  defendant's  men 
went  to  the  factory  of  the  purchaser,  saw  the  place  where  the  machine 
was  to  be  operated,  saw  that  a  number  of  men,  including  the  plain- 
tiff, were  employed  there,  and  knew  that  they  were  likely  to  be  called 
upon  to  run  the  machine.  Under  these  circumstances,  it  could  not 
be  said  as  a  matter  of  law  that  the  defendant  had  no  reason  to  antici- 
pate that  the  plaintiff  would  be  set  to  work  on  the  machine,  or  that 
the  injury  which  he  received  was  not  the  proximate  result  of  its  neg- 
ligence in  improperly  setting  it  up.  Ela  v.  Cable  Co.,  71  N.  H.  1,  3,. 
51  Atl.  281. 

The  judgment  is  reversed,  the  verdict  is  set  aside,  the  case  is  re- 
manded to  the  District  Court  for  further  proceedings  not  inconsistent 
with  this  opinion,  and  the  plaintiff  in  error  recovers  his  costs  of  ap- 
peal. 


III.  In  the  Absence  oe  Contractual  and  Property  Obligation 

It  has  repeatedly  been  proposed  to  amend  the  common  law  by  leg- 
^'  islation,  so  that  certain  duties  hitherto  regarded  as  merely  moral  ob- 
ligations shall  hereafter  be  legal  duties,  whose  nonperformance  shall 
be  punished  by  criminal  law.  The  contention  is,  that  the  law  should, 
to  a  certain  extent,  compel  active  beneficence  by  one  man  towards 
another  in  cases  where  "the  only  relation  between  the  parties  is  that 
both  are  human  beings."     While  it  is  not  usually  claimed  that  the 


Ch.  1)  NEGLIGENCE  1085 

law  should  recognize  and  enforce  "a.  general  duty  to  act  as  a  good 
Samaritan,"  it  is  asserted  that  the  law  should  recognize  some  humani- 
tarian duties  as  legal  duties. 

Jeremiah  Smith,  Cases  on  Torts  (2d  Ed.)  165.^** 


MISSOURI,  K.  &  1.  RY.  CO.  OF  TEXAS  v.  WOOD  et  ux. 

(Supreme  Couit  of  Texas,  1902.     9.j  Tex.  223,  66  S.  W.  449,  56  L.  R.  A.  592, 
93  Am.  St.  Kep.  834.    Court  of  Civil  Appeals  of  Texas,  1902.    68  S.  W.  802.) 

Action  by  Wood  and  his  wife  against  the  railway  company.  The 
trial  resulted  in  a  judgment  against  the  railway  company,  who  appeal. 

It  appeared  in  the  case  that  an  employe  of  the  company,  Dickson 
by  name,  had  developed  smallpox ;  that  the  company  took  charge  of 
him  and  placed  him  in  their  smallpox  camp ;  that  the  company^s 
physician,  having  taken  charge  of  Dickson  on  behalf  of  the  company, 
"negligently  employed  an  incompetent  Mexican  to  guard  and  nurse 
Dickson" ;  that  at  the  time  the  Mexican  was  put  in  charge  "Dick- 
son was  delirious  with  fever,  and  it  was  known  that  persons  thus 
suffering  Avould  likely,  escape ;  that  while  Dickson  was  in  this  delirious 
condition  the  Mexican  went  to  sleep,  and  negligently  permitted  him 
to  escape  from  the  camp,  and  to  wander  upon  the  premises  of  the 
plaintiffs,  and  communicate  smallpox  to  them  and  their  little  child. 

Brown,  j_  *  *  *  Counsel  urge  the  proposition  that  the  rail- 
road company  owed  no  duty  to  the  appellee;  therefore  there  was  no 
liability  for  Dickson's  escape.  House  v.  Waterworks  Co.,  88  Tex. 
233,  31  S.  W.  179,  28  L.  R.  A.  532,  is  relied  upon  to  sustain  that 
position,  but  the  cases  are  so  dissimilar  that  the  principles  announced 
in  that  case  are  not  applicable  in  this.  In  House  v.  Waterworks  Co. 
the  two  classes  of  cases  are  distinguished  upon  authorities  cited  and 
discussed.  Nonliability  for  a  failure  to  perform  a  duty  due  to  the 
public  as  such  is  there  commented  upon  and  contrasted  with  the 
class  of  duties  which  are  intended  to  benefit  the  individuals  composing 
the  public.  This  case  belongs  to  the  latter  class,  because  whatever 
affects  the  health  of  the  community  necessarily  affects  the  individual 
members  thereof ;  and,  when  the  duty  to  prevent  the  spread  of  a 
contagious  disease  rests  upon  a  private  corporation  or  person,  an 
obligation  arises  in  favor  of  each  member  of  the  community,  and  a 
right  of  action  exists  in  favor  of  him  who  suft'ers  from  its  breach. 

But  counsel  for  the  railroad  company  earnestly  insist  that  it  is  not 

80  Judge  Smith  here  refers  to  Professor  Bohlen's  article  on  -'The  Moral 
Duty  to  Aid  Others  as  a  Basis  of  Tort  Liability,"  56  Univ.  of  Pa.  Law  Rev. 
217,^316,  and  to  Professor  Ames'  article  on  "Law  and  Morals,"  22  Ilarv.  Law 
Rev.  97,  111-113,  and  sets  forth  (1)  article  450  of  the  Dutch  I'enal  Code: 
(2)  Rentham's  proposals  for  legislation;  (3^  article  484  in  Livingston's  Draft 
Code  for  Louisiana;  and  (4)  Mucnulay's  elaborate  statement  of  roasoiis  for 
refusing  to  incorporate  in  the  Indian  Penal  Code  such  views  as  Beutham's 
and  Livingston's. 


/ 


1086  TORTS   THROUGH  ACTS   OF  CONDITIONAL   LIABILITY         (Part  3 

liable  for  the  act  of  Dickson  in  going  away  from  the  camp,  al- 
though he  was  at  the  time  delirious  to  the  extent  of  being  incapable  of 
self-control.  In  Board  of  Bisshopp,  2  C.  P.  Div.  192,  Denman,  J., 
stated  and  answered  the  question  thus :  "Can  a  man  be  said  to  'ex- 
pose' or  to  'be  in  charge  of  one  who  is  of  full  age  and  a  free  agent? 
A  man  weakened  by  disease  may  fairly  be  said  to  be  'exposed'  by  the 
person  who  is  attending  upon  him.  The  statute  cannot  be  limited 
to  legal  control,  or  it  will  become  a  dead  letter."  That  case  proceeded 
before  the  court  on  the  ground  that  the  defendant  had  exposed  one 
infected  with  a  contagious  disease  by  going  with  him  through  the 
streets  and  in  public  places,  but  the  defendant  was  acquitted  because 
he  had  used  proper  care  in  doing  so.  The  case  answers  the  objection 
made  that  the  escape  of  Dickson  and  his  going  upon  the  premises  of 
the  appellee  could  not  be  charged  to  the  railroad  compajiy.  When- 
ever the  duty  of  restraining  another  arises,  and  the  power  of  control 
over  him  exists,  liability  will  follow  upon  a  failure  to  perform  the 
duty.  In  District  v.  Hill,  6  App.  Cas.  204,  Lord  Blackburn  said : 
"When  the  disease  is  infectious  there  is  a  legal  obligation  on  the  sick 
person  and  on  those  who  have  the  custody  of  him  not  to  do  anything 
that  can  be  avoided  which  shall  tend  to  spread  the  infection ;  and,  if 
either  do  so, — as  by  bringing  the  infected  person  into  a  public 
thoroughfare, — it  is  an  indictable  offense,  though  it  will  be  a  defense 
to  an  indictinent  if  it  can  be  shown  that  there  was  sufficient  cause  to 
excuse  what  is  prima  facie  wrong." 

The  same  principle  obtains  in  reference  to  animals  of  known  vicious 
character  which  the  owner  is  required  to  restrain  to  prevent  them 
from  inflicting  injury  on  others;  and  the  owners  of  animals  known 
to  be  infected  with  contagious  diseases  must  control  them  in  such 
manner  as  to  prevent  them  from  communicating  the  disease  to  the 
animals  of  other  persons.  Agency  Co.  v.  McClelland,  89  Tex.  490, 
34  S.  W.  98,  35  S.  W.  474,  31  L.  R.  A.  669,  59  Am.  St.  Rep.  70. 
If  the  railroad  company  had  undertaken  to  keep  a  horse  known  to  be 
affected  with 'a  contagious  disease  at  the  same  place  and  by  the  same 
means,  and  the  horse  had  been  permitted,  through  the  negligence  of 
the  attendant,  to  escape,  and  had  communicated  the  disease  to  a  horse, 
the  property  of  the  appellee,  there  would  be  no  doubt  of  the  liability 
of  the  railroad  company  for  the  damages. 

If  there  be  a  sound  reason  for  denying  to  Wood  as  great  a  security 
for  his  wife  and  children  against  the  diseased  man  as  would  have  been 
accorded  to  him  in  favor  of  his  beasts  against  a  diseased  horse,  it 
has  not  been  suggested  by  counsel  for  the  appellant,  and  we  are  un- 
able to  discover  any  tenable  basis  for  the  distinction. 

The  quantum  of  diligence  which  was  required  of  the  appellant 
depended  upon  the  character  of  the  disease  and  the  danger  of  com- 
municating it  to  others.  "If  the  business  be  hazardous  to  the  lives 
of  others,  the  care  to  be  used  must  be  of  a  nature  more  exacting  than 
required  when  no  such  hazard  exists.     The  greater  the  hazard  the 


Ch.  1)  NEGLIGENCE  1087 

more  complete  must  be  the  exercise  of  care."  Railroad  Co.  v.  Hewitt, 
67  Tex.  478,  3  S.  W.  705,  60  Am.  Rep.  32.  Smallpox  is  commonly 
known  to  be  a  highly  contagious  disease,  and  very  dangerous  to 
human  life,  and  isolation  of  the  infected  person  is  generally  recog- 
nized as  necessary  to  afford  protection  to  the  community  in  which  he 
may  be  found.  The  Court  of  Civil  Appeals  found  as  a  fact  that  it 
is  a  characteristic  of  smallpox,  known  to  the  appellant's  agent,  that 
the  patient  is  liable  to  become  delirious  to  the  degree  of  irresponsibility, 
and  to  wander  from  the  place  of  confinement,  being  thereby  liable 
to  come  into  contact  with  persons  in  the  neighborhood.  The  object 
of  placing  Dickson  in  the  tent  and  supplying  a  nurse  and  guard  for 
him  was  not  alone  to  care  for  and  provide  for  him,  but  also  to  pro- 
tect the  public  against  infection  by  contact;  and  when  the  railroad 
company  undertook  to  treat  Dickson  for  the  disease,  and  to  care  for 
him  at  the  place  designated  by  the  Mayor  of  Greenville,  it  assumed 
the  duty  of  using  ordinar}-  care  to  prevent  Dickson  from  exposing 
himself  in  delirium,  or  from  being  exposed  otherwise,  so  as  to  com- 
municate the  disease  to  other  persons ;  and,  having  failed,  through 
the  negligence  of  its  employes,  to  use  such  care,  and  by  reason  of 
its  negligence  Dickson  having  escaped  and  communicated  the  disease 
to  the  appellee's  family,  the  railroad  company  was  liable  for  the  dam- 
age caused  thereby.  Rex.  v.  Vantandillo,  4  IMaule  &  S.  75  ;  Rex.  v. 
Burnett,  Id.  273;  Haag  v.  Board,  60  Ind.  511,  28  Am.  Rep.  654; 
Smith  V.  Baker  (C.  C.)  20  Fed.  709 ;  District  v.  Hill,  6  App.  Cas.  204. 
To  both  questions  we  answer  that  under  the  facts  stated  the  rail- 
road company  was  liable  to  the  appellee  Wood  for  the  damages  caused 
to  him  by  reason  of  the  smallpox  being  communicated  to  him  and  his 
family  by  Dickson  through  the  negligence  of  the  agent  of  the  railroad 
company.^^ 


DEPUE  V.  FLATAU  et  al.  ^        ^' 

(Supreme  Court  of  Minnesota,  1907.     100  Minn.  209,  111  N.  W.  1,  8  L.  R.  A. 

[N.  S.]  485.) 

Brown,  J.  The  facts  in  this  somewhat  unusual  case  are  as  fol- 
lows :  Plaintiff  was  a  cattle  buyer,  and  accustomed  to  drive  through 
the  country  in  the  pursuit  of  his  business,  buying  cattle,  hides,  and 
furs  from  the  farmers.  On  the  evening  of  January  23,  1905,  about 
5  or  5  :30  o'clock,  after  having  been  out  a  day  or  two  in  the  country, 
he  called  at  the  house  of  the   defendants,  about  seven  miles  from 

81  Tlie  statement  of  facts  is  abridged  from  the  statement  of  Rainey,  C. 
J.  of  the  Court  of  Civil  Appeals.  The  opinion  is  from  the  Supreme  Court,  to 
which  the  questions  involved  in  this  case  were  certified  by  the  Court  of  Civil 
Appeals.     Only  so  much  of  the  opinion  is  given  as  relates  to  the  one  point. 

On  the  hearings  of  the  case,  see  16  Harv.  Law  Rev.  133-134. 


1088  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

Madelia,  where  he  resided.  His  object  was  to  inspect  some  cattle 
which  Flalau,  Sr,,  had  for  sale,  and,  if  arrangements  could  be  made, 
to  purchase  the  same.  It  was  dark  at  the  time  of  his  arrival,  but 
he  inspected  the  cattle  in  the  barn,  and  suggested  to  defendant  that, 
being  unable  to  determine  their  value  by  reason  of  the  darkness,  he 
was  not  prepared  to  make  an  offer  for  the  cattle,  and  requested  the 
privilege  of  remaining  overnight,  to  the  end  that  a  bargain  might 
be  made  understandingly  in  the  morning.  His  request  was  not  grant- 
ed. Plaintiff  then  bought  some  furs  from  other  members  of  the 
defendant's  family,  and  Flatau,  Sr.,  invited  him  to  remain  for  sup- 
per. Under  this  invitation  plaintiff  entered  the  house,  paid  for  the 
furs  and  was  given  supper  with  the  family.  After  the  evening  meal, 
plaintiff  and  both  defendants  repaired  to  the  sitting-room  of  the  house, 
and  plaintiff  made  preparation  to  depart  for  his  home.  His  team 
had  not  been  unhitched  from  the  cutter,  but  was  tied  to  a  hitching 
post  near  the  house. 

The  testimony  from  this  point  leaves  the  facts  in  some  doubt. 
Plaintiff  testified  that  soon  after  reaching  the  sitting  room  he  was 
taken  with  a  fainting  spell  and  fell  to  the  floor.  He  remembers  very 
little  of  what  occurred  after  that,  though  he  does  recall  that,  after 
fainting,  he  again  requested  permission  to  remain  at  defendants'  over- 
night, and  that  his  request  was  refused.  Defendants  both  deny  that 
this  request  was  made,  and  testified,  when  called  for  cross-examination 
on  the  trial,  that  plaintiff  put  on  his  overshoes  and  buff'alo  coat  un- 
aided, and  that,  while  adjusting  a  shawl  about  his  neck,  he  stumbled 
against  a  partition  between  the  dining  room  and  the  sitting  room, 
but  that  he  did  not  fall  to  the  floor.  Defendant  Flatau,  Jr.,  assisted 
him  in  arranging  his  shawl,  and  the  evidence  tends  to  show  that  he 
conducted  him  from  the  house  out  of  doors  and  assisted  him  into 
his  cutter,  adjusting  the  robes  about  him  and  attending  to  other  de- 
tails preparatory  to  starting  the  team  on  its  journey.  Though  the 
evidence  is  somewhat  in  doubt  as  to  the  cause  of  plaintiff's  condition 
while  in  defendants'  home,  it  is  clear  that  he  was  seriously  ill  and  too 
weak  to  take  care  of  himself.  He  was  in  this  condition  when  Flatau, 
Jr.,  assisted  him  into  the  cutter.  He  was  unable  to  hold  the  reins  to 
guide  his  team,  and  young  Flatau  threw  them  over  his  shoulders 
and  started  the  team  towards  home,  going  a  short  distance,  as  he 
testified,  for  the  purpose  of  seeing  that  the  horses  took  the  right  road 
to  Madelia.  Plaintiff  was  found  early  next  morning  by  the  roadside, 
about  three-quarters  of  a  mile  from  defendants'  home,  nearly  frozen 
to  death.  He  had  been  taken  with  another  fainting  spell  soon  after 
leaving  defendants'  premises,  and  had  fallen  from  his  cutter,  where 
he  remained  the  entire  night.  He  was  discovered  by  a  passing  farmer, 
taken  to  his  home,  and  revived.  The  result  of  his  experience  necessi- 
tated the  amputation  of  several  of  his  fingers,  and  he  was  otherwise 
physically  injured  and  his  health  impaired. 


Ch.  1)  NEGLIGENCE  1089 

Plaintifif  thereafter  brought  this  action  against  defendants,  father 
and  son,  on  the  theory  that  his  injuries  were  occasioned  solely  by 
their  negligent  and  wrongful  conduct  in  refusing  him  accommodations 
for  the  night,  and  knowing  his  weak  physical  condition,  or  at  least 
having  reasonable  grounds  for  knowing  it,  by  reason  of  which  he 
was  unable  to  care  for  himself,  in  sending  him  out  unattended  to  make 
his  way  to  IMadelia  the  best  he  could.  At  the  conclusion  of  plaintiff's 
case,  the  trial  court  dismissed  the  action,  on  the  ground  that  the  evi- 
dence was  insufficient  to  justify  a  recovery.  Plaintiff  appealed  from 
an  order  denying  a  new  trial. 

Two  questions  are  presented  for  consideration :  (1)  Whether,  un- 
der the  facts  stated,  defendants  owed  any  duty  to  plaintiff  which  they 
negligently  violated ;  and  (2)  whether  the  evidence  is  sufficient  to  take 
the  case  to  the  jury  upon  the  question  whether  defendants  knew,  or 
under  the  circumstances  disclosed  ought  to  have  known,  of  his  weak 
physical  condition,  and  that  it  would  endanger  his  life  to  send  him 
home  unattended. 

The  case  is  an  unusual  one  on  its  facts,  and  "all-four"  precedents 
are  difficult  to  find  in  the  books.  In  fact,  after  considerable  research, 
we  have  found  no  case  whose  facts  are  identical  with  those  at  bar. 
It  is  insisted  by  defendants  that  they  owed  plaintiff  no  duty  to  en- 
tertain him  during  the  night  in  question,  and  were  not  guilty  of  any 
negligent  misconduct  in  refusing  him  accommodations,  or  in  sending 
him  home  under  the  circumstances  disclosed.  Reliance  is  had  for 
support  of  this  contention  upon  the  general  rule  as  stated  in  Union 
Pacific  Ry.  Co.  v.  Cappier,  66  Kan.  649,  72  Pac.  281,  69  L.  R.  A. 
513,  where  the  court  said:  "Those  duties  which  are  dictated  merely 
by  good  morals  or  by  humane  considerations  are  not  within  the  do- 
main of  the  law.  Feelings  of  kindness  and  sympathy  may  move  the 
Good  Samaritan  to  minister  to  the  sick  and  wounded  at  the  roadside, 
but  the  law  imposes  no  such  obligation;  and  suffering  humanity  has 
no  legal  complaint  against  those  who  pass  by  on  the  other  side. 
*  *  *  Unless  a  relation  exists  between  the  sick,  helpless,  or  in- 
jured and  those  who  witness  their  distress,  of  a  nature  to  require  and 
impose  upon  them  the  duty  of  providing  the  necessary  relief,  there 
is  neither  legal  obligation  to  minister  on  the  one  hand,  nor  cause  for 
legal  complaint  on  the  other."  This  is  no  doubt  a  correct  statement 
of  the  general  rule  applicable  to  the  Good  Samaritan,  but  it  by  no 
means  controls  a  case  like  that  at  bar. 

The  facts  of  this  case  bring  it  within  the  more  comprehensive  prin- 
ciple that  whenever  a  person  is  placed  in  such  a  position  with  regard 
to  another  that  it  is  obvious  that,  if  he  does  not  use  due  care  in  his 
own  conduct,  he  will  cause  injury  to  that  person,  the  duty  at  once 
arises  to  exercise  care  commensurate  with  the  situation  in  which  he 
thus  finds  himself,  and  with  which  he  is  confronted,  to  avoid  such 
danger ;  and  a  negligent  failure  to  perform  the  duty  renders  him  lia- 
Hkpb  .  To  RTS —  69 


1090  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

ble  for  the  consequences  of  his  neglect.  This  principle  applies  to 
varied  situations  arising  from  noncontract  relations.  It  protects  the 
trespasser  from  wanton  or  willful  injury.  It  extends  to  the  licensee, 
and  requires  the  exercise  of  reasonable  care  to  avoid  an  unnecessary 
injury  to  him.  It  imposes  upon  the  owner  of  premises,  which 'he 
expressly  or  impliedly  invites  persons  to  visit,  whether  for  the  trans- 
action of  business  or  otherwise,  the  obligation  to  keep  the  same  in 
reasonably  safe  condition  for  use,  though  it  does  not  embrace  those 
sentimental  or  social  duties  often  prompting  human  action.  21  Am. 
&  Eng.  Ency.  Law,  471 ;  Barrows  on  Negligence,  4.  Those  entering 
the  premises  of  another  by  invitation  are  entitled  to  a  higher  degree 
of  care  than  those  who  are  present  by  mere  sufferance.  Barrows  on 
Xegligence,  304.  The  rule  stated  is  supported  by  a  long  list  of  au- 
thorities, both  in  England  and  this  country,  and  is  expressed  in  the 
familiar  maxim,  "Sic  utere  tuo,"  etc.  They  will  be  found  collected 
in  the  works  above  cited,  and  also  in  2  Thompson  on  Negligence, 
1702.  It  is  thus  stated  in  Heaven  v.  Pender,  11  L.  R.  Q.  B.  Div.  496: 
"The  proposition  which  these  recognized  cases  suggest,  and  which 
is,  therefore,  to  be  deduced  from  them,  is  that,  whenever  one  person 
is  by  circumstances  placed  in  such  a  position  with  regard  to  another 
that  every  one  of  ordinary  sense  who  did  think  would  at  once  recog- 
nize that  if  he  did  not  use  ordinary  care  and  skill  in  his  own  conduct 
with  regard  to  those  circumstances  he  would  cause  danger  of  injury 
to  the  person  or  property  of  the  other,  a  duty  arises  to  use  ordinary 
care  and  skill  to  avoid  such  danger."  It  applies  with  greater  strictness 
to  conduct  towards  persons  under  disability,  and  imposes  the  obligation 
as  a  matter  of  law,  not  mere  sentiment,  at  least  to  refrain  from  any 
affirmative  action  that  might  result  in  injury  to  them.  A  valuable 
note  to  Railway  Co.  v.  Cappier,  69  L.  R.  A.  513,  discusses  at  length  the 
character  of  the  duty  and  obligation  of  those  coming  into  relation  with 
sick  and  disabled  persons,  and  numerous  analogous  cases  are  collected 
and  analyzed. 

In  the  case  at  bar  defendants  were  under  no  contract  obligation  to 
minister  to  plaintiff  in  his  distress ;  but  humanity  demanded  that  they 
do  so,  if  they  understood  and  appreciated  his  condition.  And,  though 
those  acts  which  humanity  demands  are  not  always  legal  obligations, 
the  rule  to  which  we  have  adverted  applied  to  the  relation  existing 
between  these  parties  on  this  occasion  and  protected  plaintiff  from  acts 
at  their  hands  that  would  expose  him  to  personal  harm.  He  was 
not  a  trespasser  upon  their  premises,  but,  on  the  contrary,  was  there 
by  the  express  invitation  of  Flatau,  Sr.  He  was  taken  suddenly  ill 
while  their  guest,  and  the  law,  as  well  as  humanity,  required  that  he 
be  not  exposed  in  his  helpless  condition  to  the  merciless  elements. 
The  case,  in  its  substantial  facts,  is  not  unlike  that  of  Railway  Co.  v. 
Marrs,  119  Ky.  954,  85  S.  W.  188.  27  Ky.  Law  Rep.  388,  70  L.  R. 
A.  291,  115  Am.  St.  Rep.  289.    In  that  case  it  appears  that  one  Marrs 


Ch.  1)  NEGLIGENCE  1091 

was  found  asleep  in  the  yards  of  the  railway  company  in  an  intoxi- 
cated condition.  The  yard  employes  discovered  him,  aroused  him 
from  his  stupor,  and  ordered  him  off  the  tracks.  They  knew  that  he 
was  intoxicated,  and  that  he  had  left  a  train  recently  arrived  at  the 
station,  and  he  appeared  to  them  dazed  and  lost.  About  40  minutes 
later,  while  the  yard  employes  were  engaged  in  switching,  they  ran 
over  him  and  killed  him.  He  had  again  fallen  asleep  on  one  of  the 
tracks.  The  court  held  the  railway  company  liable;  that,  under  the 
circumstances  disclosed,  it  was  the  duty  of  the  yard  employes  to  see 
that  Marrs  was  safely  out  of  the  yards,  or,  in  default  of  that,  to  exer- 
cise ordinary  care  to  avoid  injuring  him;  and  that  it  was  reasonable 
to  require  them  to  anticipate  his  probable  continued  presence  in  the 
yards.  The  case  at  bar  is  much  stronger,  for  here  plaintiff  was  not 
intoxicated,  nor  a  trespasser,  but,  on  the  contrary,  was  in  defendants' 
house  as  their  guest,  and  was  there  taken  suddenly  ill  in  their  pres- 
ence, and,  if  his  physical  condition  was  known  and  appreciated,  they 
must  have  known  that  to  compel  him  to  leave  their  home  unattended 
would  expose  him  to  serious  danger. 

We  understand  from  the  record  that  the  learned  trial  court  held  in 
harmony  with  the  view  of  the  law  here  expressed,  but  dismissed  the 
action  for  the  reason,  as  stated  in  the  memorandum  denying  a  new 
trial,  that  there  was  no  evidence  that  either  of  the  defendants  knew, 
or  in  the  exercise  of  ordinary  care  should  have  known,  plaintiff's 
physical  condition,  or  that  allowing  him  to  proceed  on  his  journey 
would  expose  him  to  danger.  Of  course,  to  make  the  act  of  defend- 
ants a  violation  of  their  duty  in  the  premises,  it  should  appear  that 
they  knew  and  appreciated  his  serious  condition.  The  evidence  on  this 
feature  of  the  case  is  not  so  clear  as  might  be  desired,  but  a  majority 
of  the  court  are  of  opinion  that  it  is  sufficient  to  charge  both  defend- 
ants with  knowledge  of  plaintiff's  condition — at  least,  that  the  ques- 
tion should  have  been  submitted  to  the  jury.  Defendant  Flatau,  St., 
testified  that  he  was  in  the  room  at  all  times  while  plaintiff'  was  in  the 
house  and  observed  his  demeanor,  and,  though  he  denied  that  plain- 
tiff fell  to  the  floor  in  a  faint  or  otherwise,  yet  the  fact  that  plaintiff 
was  seriously  ill  cannot  be  questioned.  Flatau,  Jr.,  conducted  him 
to  his  cutter,  assisted  him  in,  observed  that  he  was  incapable  of  hold- 
ing the  reins  to  guide  his  team,  and  for  that  reason  threw  them  over 
his  shoulders.  If  defendants  knew  and  appreciated  his  condition, 
their  act  in  sending  him  out  to  make  his  way  to  Madelia  the  best  he 
could  was  wrongful  and  rendered  them  liable  in  damages.  We  do  not 
wish  to  be  understood  as  holding  that  defendants  were  under  abso- 
lute duty  to  entertain  plaintiff  during  the  night.  Whether  they  could 
conveniently  do  so  does  not  appear.  What  they  should  or  could  have 
done  in  the  premises  can  only  be  determined  from  a  full  view  of  the 
evidence  disclosing  their  situation,  and  their  facilities  for  communi- 
cating his  condition  to  his  friends,  or  near  neighbors,  if  any  there 


1U92  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

were.     All  these   facts  will   enable  the  jury  to  determine  whether, 
within  the  rules  of  negligence  applicable  to  the  case,  defendants  neg- 
lected any  duty  they  owed  plaintiff. 
Order  reversed.^ ^ 


SECTION  4.— EXCUSABLE  NEGLIGENCE 
I.  Accide:nt  as  AN  Excuse 


CHRISTIE  V.  GRIGGS. 
(At  Nisi  Prius,  Adjourned  Sittings  in  London,  1S09.     2  Camp.  79.) 

This  was  an  action  of  assumpsit  against  the  defendant  as  owner  of 
the  Blackwall  stage,  on  which  the  plaintiff,  a  pilot,  was  travelling  to 
London,  when  it  broke  down,  and  he  was  greatly  bruised.  The  first 
count  imputed  the  accident  to  the  negligence  of  the  driver ;  the  second, 
to  the  insufficiency  of  the  carriage. 

The  plaintiff  having  proved  that  the  axle-tree  snapped  asunder  at  a 
place  where  there  is  a  slight  descent,  from  the  kennel  crossing  the  road ; 
that  he  was,  in  consequence,  precipitated  from  the  top  of  the  coach; 
and  that  the  bruises  he  received  confined  him  several  weeks  to  his  bed, 
there  rested  his  case. 

Best,  Serjeant,  contended  strenuously  that  the  plaintiff  was  bound  to 
proceed  farther,  and  give  evidence,  either  of  the  driver  being  unskill- 
ful, or  of  the  coach  being  insufficient. 

Sir  James  Mansfield,  C.  J.  I  think  the  plaintiff  has  made  a  prima 
facie  case  by  proving  his  going  on  the  coach,  the  accident,  and  the  dam- 
age he  has  suffered.  It  now  lies  on  the  other  side  to  show,  that  the 
coach  was  as  good  a  coach  as  could  be  made,  and  that  the  driver  was 
as  skillful  a  driver  as  could  anywhere  be  found.  What  other  evidence 
can  the  plaintiff  give?  The  passengers  were  probably  all  sailors  like 
himself ;  and  how  do  they  know  whether  the  coach  was  well  built,  or 
whether  the  coachman  drove  skillfully?  In  many  other  cases  of  this 
sort,  it  must  be  equally  impossible  for  the  plaintiff  to  give  the  evidence 
required.     But  when  the  breaking  down  or  overturning  of  a  coach  is 

8  2  Compare:  Hunicke  v,  Meraraec  Quarry  Co.  (Mo.  1914)  172  S.  W.  43: 
(Action  to  recover  for  the  death  of  plaintiff's  intestate,  H.,  caused  by  ttie 
alleged  negligence  of  D.  in  failing  to  procure  a  pliysiciau  or  surgeon  to  at- 
tend and  treat  H.,  wlio  liad  received  severe  iiersonal  injuries  through  the 
act  of  S.  while  H.  was  acting  in  the  employ  of  D.  Reviewing  the  authorities, 
Woodson,  P  J.,  remarks:  '"In  my  opinion  there  is  no  possibiUty  of  doubt 
but  what  the  law  is  tliat  whenever  one  person  employs  another  to  perform 
dangerous  work,  and  that,  while  performing  that  work,  he  is  so  badly  in- 
jured as  to  incapacitate  him  from  caring  for  himself,  then  the  duty  of  pro* 
viding  medical  treatment  for  him  is  devolved  upon  the  employer.") 


Ch.  1)  NEGLIGENCE  1093 

proved,  negligence  on  the  part  of  the  owner  is  implied.  He  has  always 
the  means  to  rebut  this  presumption,  if  it  be  unfounded ;  and  it  is  now 
incumbent  on  the  defendant  to  make  out,  that  the  damage  in  this  case 
arose  from  what  the  law  considers  a  mere  accident. 

The  defendant  then  called  several  witnesses,  who  swore  that  the 
axle-tree  had  been  examined  a  few  days  before  it  broke,  without  any 
flaw  being  discovered  in  it ;  and  that  when  the  accident  happened,  the 
coachman,  a  very  skillful  driver,  was  driving  in  the  usual  track  and  at 
a  moderate  pace. 

Sir  James  Mansfield  said,  as  the  driver  had  been  cleared  of  ev- 
erything like  negligence,  the  question  for  the  jury  would  be  as  to  the 
sufficiency  of  the  coach.  If  the  axle-tree  was  sound,  as  far  as  human 
eye  could  discover,  the  defendant  was  not  liable.  There  was  a  differ- 
ence between  a  contract  to  carry  goods,  and  a  contract  to  carry  passen- 
gers. For  the  goods  the  carrier  was  answerable  at  all  events.  But  he 
did  not  warrant  the  safety  of  the  passengers.  His  undertaking,  as  to 
them,  went  no  farther  than  this,  that  as  far  as  human  care  and  fore- 
sight could  go,  he  would  provide  for  their  safe  conveyance.  There- 
fore, if  the  breaking  down  of  the  coach  was  purely  accidental,  the  plain- 
tiff had  no  remedy  for  the  misfortune  he  had  encountered. 

The  jury  found  a  verdict  for  the  defendant. 


HYMAN  et  ux.  v.  NYE  &  SONS. 
(Queen's  Bench  Division,  1881.     L.  R.  6  Q.  B.  Div.  685.) 

Statement  of  Claim — that  the  defendant  was  a  jobmaster,  carrying 
on  business  at  Brighton,  and  that  the  plaintiff  was  lawfully  traveling 
in  and  using  a  carriage  of  the  defendant  in  the  custody  and  care  of  the 
defendant's  servant,  when,  through  the  negligence  and  default,  or 
through  the  want  of  care  and  skill  of  the  defendant,  the  carriage  was 
upset  and  the  plaintiff  thrown  from  it  and  injured.  Defence  denying 
the  negligence.    Joinder  of  issue. 

At  the  trial  before  Hawkins,  J.,  at  the  Middlesex  sittings  in  July, 
1880,  there  was  a  verdict  for  the  defendant.  A  rule  was  obtained  call- 
ing upon  the  defendant  to  ^hew  cause  why  there  should  not  be  a  new 
trial  on  the  ground  of  misdirection,  and  that  the  verdict  was  against 
the  weight  of  the  evidence. 

LiNDLEY,  J.  The  defendant  in  this  case  was  a  job-master  at 
Brighton,  letting  out  carriages  and  horses  for  hire.  The  plaintiff'  hired 
of  him  a  landau,  and  a  pair  of  horses,  and  a  driver,  for  a  drive  from 
Brighton  to  Shoreham  and  back.  After  having  driven  some  way,  and 
whilst  the  carriage  was  going  down  hill  and  slowly  over  a  newly 
mended  part  of  the  road,  a  bolt  in  the  underpart  of  the  carriage  broke. 
The  splinter-bar  became  displaced;  the  horses  started  off;  the  car- 
riage was  upset ;  the  plaintiff  was  thrown  out  and  injured,  and  he 
brought  this  action  for  compensation. 

It  was  proved  at  the  trial  that  no  fault  could  be  imputed  to  the  horses 


109i  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

or  to  the  driver;  and  although  the  plaintiff  was  charged  with  having 
caused  the  accident  by  pulling  the  reins,  the  jury  found  in  the  plaintift"'s 
favor  on  this  point,  and  nothing  now  turns  upon  it. 

It  further  appeared  that  the  carriage  had  been  built  by  a  good  build- 
er some  eight  or  nine  years  before  the  accident ;  had  been  repaired  by 
a  competent  person  about  fifteen  months  before  it ;  that  the  defendant 
had  no  reason  to  suppose  that  there  was  any  defect  in  the  carriage  or 
in  any  of  its  bolts ;  and  that  the  defect,  if  any,  in  the  bolt  which  broke 
could  not  have  been  discovered  by  any  ordinary  inspection.  The  bolt 
itself  was  not  produced  at  the  trial,  and  the  nature  of  the  defect,  if  any, 
in  it  when  the  carriage  started  was  not  proved. 

The  learned  judge  at  the  trial  told  the  jury  in  substance  that  the 
plaintiff  was  bound  to  prove  that  the  injury  which  he  had  sustained 
was  caused  by  the  negligence  of  the  defendant ;  and  if  in  their  opinion 
the  defendant  took  all  reasonable  care  to  provide  a  fit  and  proper  car- 
riage their  verdict  ought  to  be  for  him.  Being  thus  directed  the  jury 
found  a  verdict  for  the  defendant ;  and  in  particular  they  found  that 
the  carriage  was  reasonably  fit  for  the  purpose  for  which  it  was  hired, 
and  that  the  defect  in  the  bolt  could  not  have  been  discovered  by  the 
defendant  by  ordinary  care  and  attention.  The  plaintiff  complains  of 
this  direction,  and  the  verdict  founded  upon  it,  and  we  have  to  consider 
whether  the  direction  was  correct.  *  *  *  ^  person  who  lets  out 
carriages  is  not,  in  my  opinion,  responsible  for  all  defects  discoverable 
or  not ;  he  is  not  an  insurer  against  all  defects ;  nor  is  he  bound  to 
take  more  care  than  coach  proprietors  or  railway  companies  who  pro- 
vide carriages  for  the  public  to  travel  in ;  but  in  my  opinion,  he  is 
bound  to  take  as  much  care  as  they;  and  although  not  an  insurer 
against  all  defects,  he  is  an  insurer  against  all  defects  which  care  and 
skill  can  guard  against.  His  duty  appears  to  me  to  be  to  supply  a  car- 
riage as  fit  for  the  purpose  for  which  it  is  hired  as  care  and  skill  can 
render  it ;  and  if  whilst  the  carriage  is  being  properly  used  for  such 
purpose  it  breaks  down,  it  becomes  incumbent  on  the  person  who  has  let 
it  out  to  shew  that  the  breakdown  was  in  the  proper  sense  of  the  word 
an  accident  not  preventable  by  any  care  or  skill.  If  he  can  prove  this, 
as  the  defendant  did  in  Christie  v.  Griggs,  2  Camp.  80,  and  as  the  rail- 
way company  did  in  Redhead  v.  Midland  Ry.  Co.,  Law  Rep.  2  Q.  B. 
412,  he  will  not  be  liable  ;  but  no  proof  short  of  this  will  exonerate  him. 
Nor  does  it  appear  to  me  to  be  at  all  unreasonable  to  exact  such  vigil- 
ance from  a  person  who  makes  it  his  business  to  let  out  carriages  for 
hire.  As  between  him  and  the  hirer  the  risk  of  defects  in  the  carriage, 
so  far  as  care  and  skill  can  avoid  them,  ought  to  be  thrown  on  the  own- 
er of  the  carriage.  The  hirer  trusts  him  to  supply  a  fit  and  proper 
carriage ;  the  lender  has  it  in  his  power  not  only  to  see  that  it  is  in  a 
proper  state,  and  to  keep  it  so,  and  thus  protect  himself  from  risk,  but 
also  to  charge  his  customers  enough  to  cover  his  expenses. 

Such  being,  in  my  opinion,  the  law  applicable  to  the  case,  it  follows 
that  the  directions  given  to  the  jury  did  not  go  far  enough,  and  that  it 


Ch.  1)  NEGLIGENCE  1095 

was  not  sufficient,  in  order  to  exonerate  the  defendant  from  liability 
for  him  to  prove  that  he  did  not  know  of  any  defect  in  the  bolt ;  had 
no  reason  to  suppose  it  was  weak,  and  could  not  see  that  it  was  by  ordi- 
nary inspection  of  the  carriage.  It  further  follows  that,  in  my  opinion, 
the  evidence  was  not  such  as  to  warrant  the  finding  that  the  carriage 
was  in  a  fit  and  proper  state  when  it  left  the  defendant's  yard. 

In  many  of  the  cases  bearing  on  this  subject,  the  expression  "rea- 
sonably fit  and  proper"'  is  used.  This  is  a  little  ambiguous  and  requires 
explanation.  In  a  case  like  the  present,  a  carriage  to  be  reasonably  fit 
and  proper  must  be  as  fit  and  proper  as  care  and  skill  can  make  it  for 
use  in  a  reasonable  and  proper  manner,  i.  e.,  as  fit  and  proper  as  care 
and  skill  can  make  it  to  carry  a  reasonable  number  of  people,  conduct- 
ing themselves  in  a  reasonable  manner,  and  going  at  a  reasonable  pace 
on  the  journey  for  which  the  carriage  was  hired;  or  (if  no  journey 
was  specified)  along  roads,  or  over  ground  reasonably  fit  for  carriages. 
A  carriage  not  fit  and  proper  in  this  sense  would  not  be  reasonably  fit 
and  proper,  and  vice  versa.  The  expression  "reasonably  fit"  denotes 
something  short  of  absolutely  fit ;  but  in  a  case  of  this  description  the 
difference  between  the  two  expressions  is  not  great. 

It  w^as  objected  on  the  part  of  the  defendant  that  the  plaintifif  had 
in  his  statement  of  claim  based  his  case  on  negligence  on  the  part  of 
the  defendant,  and  not  on  any  breach  of  warranty  express  or  implied, 
and  consequently  that  the  plaintifif  could  not  recover  in  this  action,  at 
least  without  amending.  But  the  absence  of  such  care  as  a  person  is 
by  law  bound  to  take  is  negligence ;  and  whether  the  plaintifif  sues  the 
defendant  in  tort  for  negligence  in  not  having  supplied  such  a  fit  and 
proper  carriage  as  he  ought  to  have  supplied,  or  whether  the  plaintifif 
sues  him  in  contract  for  the  breach  of  an  implied  warranty  that  the 
carriage  was  as  fit  and  proper  as  it  ought  to  have  been,  appears  to  me 
wholly  immaterial.  Upon  this  point  I  adopt  the  opinion  of  Baron  Mar- 
tin in  Francis  v.  Cockrell,  Law  Rep.  5  Q.  B.  509,  which  is  based  upon 
and  w^arranted  by  Brown  v.  Boorman,  11  CI.  &  Fin.  1. 

The  plaintiff's  pleadings  would  have  been  free  from  all  objection  if 
he  had  stated  in  his  statement  of  claim  that  he  hired  the  carriage  of 
the  defendant,  and  not  merely  that  the  plaintifif  was  lawfully  in  the  car- 
riage. But  the  defendant  knew  under  what  circumstances  the  plain- 
tifif was  lawfully  in  it ;  and  there  was  no  surprise  or  miscarriage  of 
justice  occasioned  by  the  omission  of  the  statement  of  the  fact  of  hir- 
ing. It  appears  to  me,  therefore,  that  the  plaintiff  ought  not  to  be  pre- 
cluded from  recovering  in  this  action  as  the  pleadings  stand,  if  the 
facts  come  out  in  his  favor. 

For  the  above  reasons  I  am  of  opinion  that  there  should  be  a  new 
trial,  and  that  the  costs  of  the  first  trial,  and  of  this  rule,  should  abide 
the  event. 

Rule  absolute.^' 

83  Part  of  the  opinion  of  Lindley,  J.,  and  all  of  the  opinion  of  ilathew,  J., 
are  omitted. 


1096  torts  through  acts  of  conditional  liability       (part  3 

11.  Contributory   Ne;gligence:   as   an   Excusf,  ^* 
BUTTERFIELD  v.  FORRESTER. 

(Court  of  King's  Bench,  1S09.     11  East,  60,  10  R.  R.  433,  103  Reprint,  926.) 

This  was  an  action  on  the  case  for  obstructing  a  highway,  by  means 
of  which  obstruction  the  plaintiff,  who  was  riding  along  the  road, 
was  thrown  down  with  his  horse,  and  injured,  &c.  At  the  trial  be- 
fore Bayley,  J.,  at  Derby,  it  appeared  that  the  defendant,  for  the  pur- 
pose of  making  some  repairs  to  his  house,  which  was  close  by  the 
road  side  at  one  end  of  the  town,  had  put  up  a  pole  across  this  part  of 
the  road,  a  free  passage  being  left  by  another  branch  or  street  in  the 
same  direction.  That  the  plaintiff  left  a  public  house  not  far  distant 
from  the  place  in  question  at  8  o'clock  in  the  evening  in  August,  when 
they  were  just  beginning  to  light  candles,  but  while  there  was  light 
enough  left  to  discern  the  obstruction  at  100  yards  distance :  and  the 
witness  who  proved  this,  said  that  if  the  plaintiff  had  not  been  riding 
very  hard  he  might  have  observed  and  avoided  it :  the  plaintiff  how- 
ever, who  was  riding  violently,  did  not  observe  it,  but  rode  against  it, 
and  fell  with  his  horse,  and  was  much  hurt  in  consequence  of  the  acci- 
dent; and  there  was  no  evidence  of  his  being  intoxicated  at  the  time. 
On  this  evidence  Bayley,  J.,  directed  the  jury,  that  if  a  person  riding 
with  reasonable  and  ordinary  care  could  have  seen  and  avoided  the 
obstruction ;  and  if  they  were  satisfied  that  the  plaintiff  was  riding 
along  the  street  extremely  hard,  and  without  ordinary  care,  they  should 
find  a  verdict  for  the  defendant:   which  they  accordingly  did. 

Vaughan,  Serjt.,  now  objected  to  this  direction,  on  moving  for  a 
new  trial;  and  referred  to  Buller's  Ni.  Pri.  26,  where  the  rule  is 
laid  down,  that  "if  a  man  lay  logs  of  wood  across  a  highway ;  though 
a  person  may  with  care  ride  safely  by,  yet  if  by  means  thereof  my 
horse  stumble  and  fling  me,  I  may  bring  an  action." 

Bayle;y,  J.  The  plaintiff  was  proved  to  be  riding  as  fast  as  his 
horse  could  go,  and  this  was  through  the  streets  of  Derby.  If  he  had 
used  ordinary  care  he  must  have  seen  the  obstruction;  so  that  the 
accident  appeared  to  happen  entirely  from  his  own  fault. 

Lord  Ellenborough,  C.  J.  A  party  is  not  to  cast  himself  upon 
an  obstruction  which  has  been  made  by  the  fault  of  another,  and  avail 
himself  of  it,  if  he  do  not  himself  use  common  and  ordinary  caution  to 
be  in  the  right.  In  cases  of  persons  riding  upon  what  is  considered 
to  be  the  wrong  side  of  the  road,  that  would  not  authorize  another 
purposely  to  ride  up  against  them.  One  person  being  in  fault  will 
not  dispense  with  another's   using  ordinary  care  for  himself.     Two 

8*  On  the  question  whether  a  showing  of  freedom  from  contributory  fault 
Is  a  part  of  the  plaintiff's  prima  facie  case  in  negligence,  see  ante,  p.  909. 


Ch.  1)  NEGLIGENCE  1097 

things  must  concur  to  support  this  action,  an  obstruction  in  the  road 
by  the  fault  of  the  defendant,  and  no  want  of  ordinary  care  to  avoid 
it  on  the  part  of  the  plaintiff.^^ 
Per  Curiam.    Rule  refused. 


GEE  V.  METROPOLITAN  RY.  CO. 

(Court  of  Queen's  Bench,  1872.     In  the  Exchequer  Chamber,  1873.     L.  R.  8 

Q.  B.  IGl.) 

Declaration  that  the  plaintiff  was  a  passenger  on  the  defendants' 
railway  to  be  safely  carried ;  that  the  defendants  so  negligently  con- 
ducted themselves  in  carrying  the  plaintiff  and  managing  the  carriage 
in  which  the  plaintiff  traveled,  that  the  plaintiff  fell  out  and  was  in- 
jured.    Plea,  Not  guilty;   issue  joined.     *     *     * 

At  the  conclusion  of  the  plaintift''s  case  it  was  submitted  on  behalf 
of  the  defendants,  that  the  plaintiff  was  not  entitled  to  recover,  and  the 
Chief  Justice  reserved  to  the  defendants  leave  to  enter  a  verdict  for 
them  or  a  nonsuit.  The  defendants  did  not  offer  any  evidence,  and 
the  plaintiff  then  had  a  verdict  for  £250. 

A  rule  was  afterwards  obtained  to  enter  the  verdict  for  the  de- 
fendants or  a  nonsuit  pursuant  to  the  leave  reserved,  on  the  ground 
that  there  was  no  evidence  of  liability  of  the  defendants ;  or  for  a  new 
trial,  on  the  ground  that  the  verdict  was  against  the  weight  of  evi- 
dence.®^ 

CocKBURN,  J.  I  am  of  opinion  that  this  rule  should  be  discharged. 
The  facts  are  simple.  The  plaintiff  and  his  brother  were  travelling 
as  passengers  on  the  defendants'  railway.  In  carriages  of  that  rail- 
way there  is  a  bar  across  the  window  to  prevent  persons  from  putting 
their  heads  to  more  than  a  small  extent  out  of  the  window.  The 
plaintiff  and  his  brother  had  been  conversing  as  to  signals  used  on 
the  line,  and  the  plaintiff  was  explaining  the  mode  in  which  they  were 
worked;  and  told  his  brother  that  he  would  show  him  how  it  was 
done ;  and  as  soon  as  the  lights  of  the  station  were  visible  the  plaintiff 
stood  up  and  put  his  hand  on  the  rod  of  the  window,  and  it  so  hap- 
pened that  the  door,  having  been  left  insecurely  fastened,  flew  open, 
and  the  plaintiff  was  thrown  out  and  injured.  Under  these  circum- 
stances are  the  defendants  liable?  We  must  take  it  that  there  was 
negligence  in  not  securely  fastening  the  door;  but  it  is  said  that  that 
negligence  alone  did  not  cause  the  accident ;  the  proximate  cause  of 

8  5  "Butterfield  v.  Forrester  is  the  first  of  the  modem  line  of  cases  on  con- 
tributory negligence."     Sir  Fretlerick  I'ollock,  10  R.  R.  v. 

For  "cases  of  persons  riding  upon  what  is  considered  to  be  the  wrong  side 
of  the  road,"  see  Cruden  v.  Fentham  (1799)  2  Esp.  685,  and  Clay  v.  Wood 
(1803)  5  Esp.  44. 

8  6  The  arguments  of  counsel  are  omitted. 


101)8  TOUTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (I'art  3 

the  accident  was  the  plaintiff  pressing  against  the  door.  It  is  said 
that  the  duty  of  the  company  is  to  carry  a  passenger  safely  as  long  as 
he  sits  quietly  in  the  carriage;  and  if  an  accident  happens  from  any 
act  of  his  inconsistent  with  the  ordinary  behavior  of  passengers,  he 
has  only  himself  to  thank,  and  the  company  are  not  liable. 

I  quite  agree  that  the  passenger  must  not  do  anything  inconsistent 
with  what  passengers  ordinarily  do  on  a  journey.  Adams  v.  Lan- 
cashire and  Yorkshire  Ry.  Co.,  Law  Rep.  4  C.  P.  739,  was  cited  for 
the  defendants.  *  *  *  There  the  decision  turned  on  the  passenger 
committing  an  act  of  imprudence  which  was  uncalled  for ;  that  case 
therefore  has  no  application  to  the  present.  Here,  assuming  that  the 
company  had  done  their  duty,  the  passenger  did  nothing  more  than 
that  which  came  within  the  scope  of  his  enjoyment  while  travelling, 
without  committing  any  imprudence ;  in  passing  through  a  beautiful 
country  he  certainly  is  at  liberty  to  stand  up  and  look  at  the  view,  not 
in  a  negligent  but  in  the  ordinary  manner  of  people  travelling  for 
pleasure.  Here  the  defendant  was  simply  looking  at  the  signal  lights, 
and  there  was  nothing  in  his  conduct  which  can  be  imputed  to  him  as 
negligence  or  imprudence.^' 

From  this  decision  of  the  Queens  Bench,  discharging  the  rule,  there 
was  an  appeal  to  the  Exchequer  Chamber.*^ *^ 

KiOLLY,  C.  B.  I  am  of  opinon  that  this  judgment  must  be  affirmed. 
The  question  for  our  consideration  is,  whether  there  is  any  evidence 
of  the  liability  of  defendants,  the  rule  being  to  enter  a  verdict  for  the 
defendants  on  the  sole  ground  that  there  was  no  evidence  of  the  lia- 
bility of  the  defendants.  Now  what  is  the  evidence?  It  appears  that 
the  plaintiff'  was  a  passenger  by  the  defendants'  train,  and  that,  as  he 
was  passing  from  one  station  to  another,  with  a  view  of  looking  out 
of  the  window  he  rose  from  his  seat  and  took  hold  of  the  bar  of  the 
window  and  pressed  against  it.  The  pressure,  such  as  it  was,  of  some 
part  of  his  body,  upon  his  taking  hold  of  the  bar,  caused  the  door  to 
open,  and  the  motion  of  the  train  to  throw  him  out  of  the  carriage, 
whereby  he  sustained  the  injury  complained  of.  These  are  all  the 
facts,  and  the  first  question  is,  whether  there  was  any  evidence  of 
negligence  on  the  part  of  the  defendants;  and  the  second  question 
which  must  necessarily  arise  from  the  terms  of  the  reservation, — viz., 
that  there  was  no  evidence  of  liability,  not  merely  of  negligence,  on 
the  part  of  the  defendants, — is  whether  there  was  any  evidence  to  go 
to  the  jury  that  the  mischief  which  befell  the  plaintiff  was  caused  by 
the  negligence  of  the  defendants. 

First,  was  there  any  evidence  of  negligence  at  all  on  the  part  of  tlic 
defendants?    I  am  of  opinion  that  there  was  evidence  for  the  jury  to 

87  The  statement  of  facts  is  abritlROfl,  part  of  the  opinion   of  Cockburu, 
J.,  and  the  opinions  of  Blackburn,  jNIeilor,  and  Quaiu,  JJ.,  are  omitted. 
86  The  alignments  of  counsel  are  omitted. 


Ch.  1)  NEGLIGENCE  1099 

consider,  whether  the  defendants'  servants  had  not,  when  this  train 
left  the  station  from  which  it  started  on  its  journey,  failed  to  see 
that  the  door  was  properly  fastened  in  the  ordinary  manner  in  which 
such  railway  carriage  doors  are  fastened.  There  was  evidence  to  go 
to  the  jury  that  they  had  failed  in  the  performance  of  that  duty.  But 
the  preliminary  question  arises,  is  it  their  duty?  I  am  of  opinion  that 
it  is — that  it  is  the  duty  of  the  railway  company,  by  its  servants,  be- 
fore the  train  starts  upon  its  journey,  to  see  that  the  door  of  every 
carriage  is  properly  fastened.  Here  was  evidence  that  this  door  was 
not  properly  fastened :  for  if  it  had  been,  it  would  not  have  flown 
open  upon  the  degree  of  pressure  that  was  applied  to  it  by  the  plain- 
tiff; and  therefore  there  was  evidence  to  go  to  the  jury,  upon  which 
they  were  justified  in  finding  that  there  was  negligence  on  the  part  of 
the  defendants. 

But  then,  I  agree,  we  must  go  further,  and  inquire  whether  there 
was  evidence  of  "liability" :  in  other  words,  whether  there  was  evi- 
dence also  that  the  negligence  of  the  company  was  the  cause  of  the 
mischief  which  occurred  to  the  plaintiff.  I  am  of  opinion  that  there 
was  evidence.  Certainly  the  mischief  would  not  have  befallen  him 
if  that  door  had  been  properly  fastened.  The  question  is,  therefore, 
whether  he  did  anything  which  it  was  not  lawful  for  him  to  do,  and 
which  we  should  be  satisfied,  taking  the  whole  evidence  together,  was 
the  cause  of  the  mischief  which  befell  him.  If  he  did,  I  agree  that 
the  case  fails  on  the  part  of  the  plaintiff.  But  why?  Because,  though 
he  has  proved  that  the  defendants  were  guilty  of  negligence,  he  has 
not  proved  that  that  negligence  was  the  cause  of  the  mischief  which 
befell  him.  The  question  of  what  has  been  termed  contributory  neg- 
ligence does  not,  in  m.y  opinion,  arise :  first,  because  I  am  clearly  of 
opinion  upon  the  facts  that  there  was  no  evidence  of  contributory 
negligence ;  but  even  if  there  were  evidence  of  contributory  neg- 
ligence, the  rule  is  not  for  a  new  trial  on  the  ground  that  the  learned 
judge  did  not  leave  that  question  to  the  jury  or  that  it  was  a  verdict 
against  the  weight  of  evidence:  and  there  was  no  right  to  entertain 
any  such  question.  And,  therefore,  upon  this  case,  and  on  the  facts 
that  are  before  us,  no  question  whatever  of  contributory  negligence 
arises.  The  question  is,  whether  there  was  evidence  of  negligence 
on  the  part  of  the  company  which  caused  the  accident.  I  have  al- 
ready shewn  that  there  was  evidence  of  negligence  and  that  there 
was  evidence  to  go  to  the  jury  that  their  leaving  the  door  not  properly 
fastened  was  the  cause  of  the  injury  which  the  plaintiff  sustained 
without  any  improper  act  on  the  part  of  the  plaintiff.  Because  I  am 
of  opinion  that  any  passenger  in  a  railway  carriage,  who  rises  for 
the  purpose  either  of  looking  out  of  the  window,  or  of  dealing  with, 
and  touching,  and  bringing  his  body  in  contact  with  the  door  for  any 
lawful  purpose  whatsoever,  has  a  right  to  assume,  and  is  justified  in 
assuming,  that  the  door  is  properly  fastened;   and  if  by  reason  of  its 


1100  TORTS  THROUGH   ACTS   OP  CONDITIONAL  LIABILITY         (Part  3 

not  being  properly  fastened  his  lawful  act  causes  the  door  to  fly  open, 
the  accident  is  caused  by  the  defendants'  negligence. 

I  think,  therefore,  the  Court  of  Queen's  Bench  were  right  in  dis- 
charging the  rule,  and  the  judgment  must  be  affirmed. ^^ 


y     SMITHWICK  V.  HALL  &  UPSON  CO. 

(Supreme  Court  of  Errors  of  Connecticut,  1S90.     59  Conn.  261,  21  Atl.  924, 
12  L.  R.  A.  279,  21  Am.  St.  Rep.  104.) 

This  action,  against  the  Hall  &  Upson  Company,  for  an  injury  caus- 
ed by  the  alleged  negligence  of  the  defendant,  was  brought  in  the 
District  Court  of  Waterbury  and  appealed  to  the  Supreme  Court  of 
New  Haven  County.  The  defendant  suffered  a  default  in  that  court 
and  the  case  was  heard  in  damages  before  Fenn,  J-  Facts  found  and 
damages  assessed  at  $1,000  if  on  the  facts  the  plaintiff  was  to  be  re- 
garded as  not  guilty  of  contributory  negligence,  and  at  nominal  dam- 
ages if  he  was  to  be  regarded  as  guilty  of  such  negligence;  and  the 
case  was  reserved  upon  the  facts  for  the  advice  of  this  court. 

Torrance,  J.  The  general  question  reserved  for  our  advice  in 
this  case,  is,  whether  the  plaintiff  upon  the  facts  found  is  entitled  to 
the  substantial  damages  or  only  to  the  nominal  damages  found  by  the 
court  below. 

Inasmuch  as  that  court  has  expressly  found  that  the  negligence  of 
the  defendant  caused  or  contributed  to  the  injury  for  which  the 
plaintiff  seeks  to  recover,  the  decision  of  the  above  general  question 
depends  upon  this  single  point,  namely,  whether  the  acts  and  conduct 
of  the  plaintiff'  as  set  forth  upon  the  record  constitute  or  amount  to  such 
contributory  negligence  on  his  part  as  will  bar  his  right  to  substantial 
damages.  The  facts  found,  so  far  as  they  bear  upon  the  question 
for  decision,  are  in  substance  the  following: 

The  plaintiff  was  a  workman  in  the  service  of  the  defendant,  and 
at  the  time  of  the  injury  complained  of  was  engaged  in  helping  to  store 
ice  for  the  defendant  in  a  certain  brick  building.  In  doing  this  work 
the  plaintiff  stood  upon  a  platform  about  five  feet  wide  and  seventeen 
feet  long,  raised  fifteen  feet  above  the  ground,  and  extending  from  the 
west  side  of  the  building  easterly  to  a  point  about  two  feet  east  of  the 
door  or  aperture  through  which  the  ice  was  taken  into  the  building. 
A  stout  plank  of  suitable  height  and  strength  extended  along  the  outer 
side  of  the  platform  as  far  as  the  west  side  of  the  door  and  served 
as  a  protective  railing  or  guard  to  that  portion  of  the  platform.  In 
front  of  the  door  and  east  of  it  the  platform  was  without  guard  or 
railing  of  any  kind.     A  short  time  prior  to  the  injury  the  foreman 

8  8  The  opinion  of  Martin,  B.,  Keatin?,  J.,  Brett,  J.,  Cieasb.v,  B.,  and  Grove, 
J.,  are  omitted.    Each  was  for  affirming  the  judgment  of  the  Queen's  Bench. 


Ch.  1)  NEGLIGENCE  1101 

Stationed  the  plaintiff  on  the  platform  just  west  of  the  door  and  inside 
the  railing,  and  showed  him  what  his  duties  were  there,  and  told  him 
"not  to  go  upon  the  east  end  of  the  platform  east  of  the  slide  and  door, 
as  it  was  not  safe  to  stand  there."  He  did  not  tell  the  plaintiff  why 
it  was  not  safe,  but  the  danger  which  he  had  in  mind  was  the  narrow- 
ness and  unrailed  condition  of  the  platform  and  the  liability  by  inad- 
vertence to  misstep  or  fall  or  slip  off,  the  latter  being  aggravated  by 
the  liability  of  the  platform  to  become  slippery  from  broken  ice.  These 
dangers  were  all  manifest.  The  peril  resulting  from  the  accident 
which  happened  to  the  building  was  not  in  contemplation. 

After  the  foreman  went  away  the  plaintiff',  in  spite  of  the  orders 
so  given  to  him,  and  for  reasons  of  his  own  apparently,  went  over 
to  the  east  end  of  the  platform  and  worked  there.  It  is  found  that 
there  was  no  sufficient  reason  or  excuse  for  the  change  of  position. 
One  of  his  fellow  workmen,  seeing  the  plaintiff  in  that  place,  told  him 
that  "it  was  not  safe,  and  to  stand  on  the  other  side,"  but  the  plain- 
tiff, notwithstanding  such  warning,  remained  at  work  there. 

While  so  at  work  the  brick  wall  of  the  building  above  the  platform, 
in  consequence  of  the  negligence  of  the  defendant,  gave  way,  the, 
brick  falling  upon  the  platform  and  thence  to  the  ground.  The  plain- 
tiff was  struck  by  portions  of  the  descending  mass  and  fell  to  the  earth. 
He  was  either  knocked  off,  or  his  fall,  in  the  condition  in  which  he 
stood,  was  inevitable ;  indeed,  had  he  not  fallen  when  he  did,  his 
injuries,  which  were  very  serious,  would  have  been  worse.  Most  of 
the  injuries  which  he  actually  sustained  were  occasioned  by  the  fall. 

The  plaintiff  had  no  knowledge  that  the  wall  would  be  likely  to  fall 
or  was  in  any  way  unsafe,  and  it  is  found  that  "no  fault  or  negli- 
gence can  be  imputed  to  him  in  this  regard." 

In  contemplation  of  the  peril  from  the  falling  wall,  it  is  found  that 
"the  spot  where  the  plaintiff  stood  could  not  have  been  considered 
more  dangerous  than  the  place  where  he  was  directed  to  stand,  though 
in  fact  most  of  the  brick  fell  upon  the  side  where  he  stood,  and  the 
result  demonstrated  therefore  that  the  other  side  would  have  been 
safer  in  the  event  which  occurred." 

Upon  these  facts  the  defendant  contends  that  the  plaintiff,  in  going  to 
and  remaining  on  the  east  end  of  the  platform,  contrary  to  the  orders 
and  in  spite  of  the  warning  given  him,  and  in  view  of  the  obvious  and 
manifest  danger  in  so  doing,  was  guilty  of  such  contributory  neg- 
ligence as  bars  him  of  his  right  to  recover  more  than  nominal  damages. 

If  the  plaintiff's  injuries  had  resulted  from  any  of  the  perils  and 
dangers  attendant  upon  the  mere  fact  of  his  standing  and  working 
on  the  east  end  of  the  platform,  which  were  obvious  and  manifest 
to  any  one  in  his  place,  which  were  in  the  mind  of  the  foreman  when 
he  told  the  plaintiff  not  to  go  there,  and  in  view  of  which  his  fel- 
low workman  warned  him,  then  this  claim  of  the  defendant  would 
be  a  valid  one.     But  upon  the  facts  found  it  is  without  foundation. 

The  injury  to  the  plaintiff  was  not  the  resvilt  of  any  such  dangers, 


1102  TORTS  THROUGH  ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

but  was  caused  through  the  negligence  of  the  defendant  by  the  falhng 
walls.  This  was  a  source  of  danger  of  which  he  had  no  knowledge 
whatever.  He  was  justified  in  supposing  that  the  wall  was  safe 
and  would  not  be  likely  to  fall  upon  him,  no  matter  where  he  stood 
on  tlie  platform.  He  had  no  reason  to  anticipate  even  the  slightest 
danger  from  that  source  before  or  after  he  changed  his  position. 
This  being  so,  he  could  be  guilty  of  no  negligence  with  respect  to 
this  source  of  danger  by  changing  his  position  contrary  to  orders; 
for  negligence  presupposes  a  duty  of  taking  care,  and  this  in  turn 
presupposes  knowledge  or  its  legal  equivalent. 

With  respect  to  that  danger  the  plaintiff  upon  the  facts  found 
must  be  held  to  have  acted  as  any  reasonably  careful  man  would  have 
acted  under  the  same  circumstances.  In  changing  his  position  con- 
trary to  orders  he  voluntarily  took  the  risk  of  all  perils  and  dangers 
Vv'hich  a  man  of  ordinary  care  in  his  place  ought  to  have  known  or 
could  reasonably  have  anticipated ;  but  as  to  dangers  arising  through 
the  defendant's  negligence  from  other  sources — dangers  which  he 
was  not  bound  to  anticipate  and  of  whose  existence  he  had  no  knowl- 
edge, he  took  no  risk  and  assumed  no  duty  of  taking  care.  It  was 
the  duty  of  the  defendant  on  the  facts  found  to  warn  the  plaintiff 
against  the  danger  from  the  falling  wall. 

Now  the  act  or  omission  of  a  party  injured  which  amounts  to 
what  is  called  contributory  negligence,  must  be  a  negligent  act  or 
omission,  and  in  the  production  of  the  injury  it  must  operate  as  a 
proximiate  cause  or  one  of  the  proximate  causes  and  not  merely  as 
a  condition. 

In  the  case  at  bar  the  conduct  of  the  plaintiff,  as  we  have  seen,  was, 
with  respect  to  the  danger  from  the  falling  wall,  not  negligent  for 
the  want  of  knowledge  or  its  equivalent  on  the  part  of  the  plaintiff. 

Nor  was  his  conduct,  legally  considered,  a  cause  of  the  injury.  It 
was  a  condition  rather. 

If  he  had  not  changed  his  position  he  might  not  have  been  hurt. 
And  so  too  if  he  had  never  been  born,  or  had  remained  at  home  on 
the  day  of  the  injury,  it  would  not  have  happened;  yet  no  one  would 
claim  that  his  birth  or  his  not  remaining  at  home  that  day,  can  in 
any  just  or  legal  sense  be  deemed  a  cause  of  the  injury. 

The  court  below  has  found  that  the  plaintiff's  fall  in  the  position 
in  which  he  stood  was  due  to  the  giving  way  of  the  wall,  and  that 
most  of  his  injuries  were  occasioned  by  the  fall.  His  position  there, 
upon  the  facts  found,  can  no  more  be  considered  as  a  cause  of  the 
injury,  than  it  could  be  in  a  case  where  the  defendant,  in  doing 
some  act  near  the  platform  without  the  plaintift''s  knowledge,  had 
negligently  knocked  him  to  the  ground,  or  had  negligently  hit  him 
with  a  stone.  Had  the  injury  been  occasioned  by  a  misstep  or  slip 
from  the  platform  by  the  carelessness  of  the  plaintiff',  or  for  the  want 
of  a  railing,  the  causal  connection  between  the  change  of  position 
and  the  injury  would,  legally  speaking,  be  quite  obvious;    but  from 


Ch.  1)  NEGLIGENCE  1103 

a  legal  point  of  view  no  such  connection  exists  between  the  change 
of  position  and  the  giving  way  of  the  wall. 

The  plaintiff  had  full  knowledge  and  was  abundantly  cautioned 
against  certain  particular  sources  of  peril  and  danger,  and  he  volun- 
tarily neglected  the  warnings  and  took  the  risk  of  those  perils  and 
dangers.  He  was  injured  through  the  negligence  of  the  defendant 
from  an  entirely  different  source  of  danger,  of  which  he  knew  and 
could  know  nothing,  and  of  whose  existence  it  was  the  duty  of  the 
defendant  to  warn  him.     *     *     * 

The  defendant  seems  to  claim  however  that,  although  some  of  the 
plaintiff's  injuries  were  caused  by  falling  bricks,  yet  most  of  them 
were  caused  by  his  fall ;  and  that  as  he  probably  would  not  have 
fallen  had  he  remained  behind  the  railing,  he  contributed  to  the  in- 
jury by  placing  himself  where  in  case  of  such  accident  there  was 
nothing  to  prevent  his  fall. 

Whether  this  claim  that  he  probably  would  not  have  fallen  had 
he  remained  where  he  was  stationed  be  true  or  not,  must  forever 
remain  matter  of  conjecture.  But  if  its  truth  could  be  demonstrated 
it  would  not,  as  we  have  seen,  change  the  relation  of  the  plaintiff's 
act  to  the  legal  cause  of  his  injury,  or  make  that  act,  from  a  legal 
standpoint,  a  contributing  cause  when  it  was  but  a  condition. 

And  if  the  claim  means  that  the  plaintiff  by  his  act  increased  the 
injury  merely,  then  if  this  were  true  it  would  not  be  such  contribu- 
tory negligence  as  would  defeat  the  action.  To  have  that  effect  ii 
must  be  an  act  or  omission  which  contributes  to  the  happening  of 
the  act  or  event  which  caused  the  injury.  An  act  or  omission  that 
merely  increases  or  adds  to  the  extent  of  the  loss  or  injury  will  not 
have  that  eft'ect,  though  of  course  it  may  affect  the  amount  of  damages 
recovered  in  a  given  case.  Gould  v.  AIcKenna,  86  Pa.  297,  27  Am. 
Rep.  705 ;  Stebbins  v.  Central  R.  R.  Co.,  54  Vt.  464,  41  Am.  Rep. 
855.  This  claim  however,  on  the  facts  found,  is  wholly  without  foun- 
dation. 

The  plaintiff  is  entitled  to  judgment  in  his  favor  for  one  thousand 
dollars,  and  the  Superior  Court  is  so  advised. 

In  this  opinion  the  other  judges  concurred.^* 


BLACK  v.  NEW  YORK,  N.  H.  &  H.  R.  CO.       ^ 

(Supreme  Judicial  Court  of  Massachusetts,  1907.     193  .Mass.  44S,  79  N.   E. 
797,  7  L.  R.  A.  [N.  S.]  14S,  9  Ann.  Cas.  4S.j.) 

In  this  action,  against  the  railway  company,  there  was  a  directed 
verdict  for  the  defendant.    The  plaintiff  excepts. 

Knowlton,  C.  J.  This  action  was  brought  to  recover  for  an  in- 
jury alleged  to  have  been  caused  by  the  negligence  of  the  defend- 

89  Part  of  the  opiniou  is  omitted. 


1104  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

ant's  servants.  The  plaintiff  was  a  passenger  on  the  defendant's 
train  which  ran  from  Boston  through  Ashmont  on  the  evening  of 
February  7,  1903.  He  testified  to  having  become  so  intoxicated  that 
he  had  no  recollection  of  anything  that  occurred  after  leaving  a  cigar 
store  in  Boston,  until  he  awoke  in  the  Boston  City  Hospital,  about 
4  o'clock  the  next  day.  One  Thompson  testified  "that  he  took  the 
9:23  train  on  the  evening  of  February  7,  1903,  at  the  South  Station 
in  Boston,  for  Ashmont,  and  occupied  a  seat  near  the  rear  of  the 
last  car  of  the  train ;  that  there  were  about  20  passengers  in  the 
car,  and  he  noticed  Black  sitting  in  the  seat  opposite,  very  erect,  with 
his  eyes  closed.  When  the  conductor  came  through  Mr.  Black  went 
through  his  pockets  as  if  he  were  looking  for  a  ticket,  and  not 
being  able  to  find  it,  tendered  a  50-cent  piece  in  payment  for  his  fare. 
The  conductor  began  to  name  off  the  stations,  from  Field's  Corner 
first,  and  then  Ashmont,  and  when  he  said  Ashmont  Mr.  Black  nodded 
his  head.  The  conductor  gave  him  his  change  and  his  rebate  check. 
At  Ashmont,  where  the  train  stops,  there  is  a  gravel  walk  running  the 
whole  length  as  a  platform,  then  there  is  a  flight  of  steps — 10  or  12 — 
that  leads  up  to  the  asphalt  walk  around  the  station ;  so  when  you 
go  up  from  the  steps  you  have  to  walk  along  this  walk.  The  con- 
ductor and  brakeman  took  Black  out  of  the  car,  one  on  each  side. 
The  distance  from  the  steps  of  the  car  to  the  steps  that  lead  up  to 
the  station  was  25  feet.  As  they  went  along  the  platform  the  conduc- 
tor and  trainman  were  on  each  side  of  him.  They  tried  to  stand  him 
up,  but  his  legs  would  sink  away  from  him.  They  sort  of  helped 
him  up,  and  carried  him  to  the  bottom  of  the  steps.  When  they  went 
to  the  bottom  of  the  steps  they  continued  one  on  each  side  of  him. 
Then  one  of  the  men  got  on  one  side,  with  his  arm  around  him,  and 
the  other  back  of  him,  sort  of  pushing  him,  and  they  took  him  up 
about  the  fifth  or  sixth  step,  and  after  they  got  him  up  there  they 
turned  around  and  left  him  and  went  down  the  steps.  Mr.  Black  sort 
of  balanced  himself  there,  just  a  minute,  and  then  fell  completely 
backward.  He  turned  a  complete  somersault,  and  struck  on  the  back 
of  his  head.  The  railroad  men  just  had  time  to  get  down  to  the  foot 
of  the  steps.  There  was  a  railing  that  led  up  those  steps  and  the 
steps  were  about  10  feet  wide.  Mr.  Black  was  upon  the  right-hand 
side,  going  up,  and  he  was  left  right  near  the  railing.  When  he  fell 
he  did  not  seize  hold  of  anything.     His  arms  were  at  his  side." 

On  tiiis  testimony  the  jury  might  find  that  the  plaintiff  was  so  in- 
toxicated as  to  be  incapable  of  standing,  or  walking,  or  caring  for 
himself  in  any  way,  and  that  the  defendant's  servants  knowing  his 
condition,  left  him  near  the  top  of  the  steps,  where  they  knew,  or  ought 
to  have  known,  that  he  was  in  great  danger  of  falling  and  being 
seriously  injured.  They  were  under  no  obligation  to  remove  him 
from  the  car,  or  to  provide  for  his  safety  after  he  left  the  car. 
But  they  voluntarily  undertook  to  help  him  from  the  car,  and  they 
were  bound  to  use  ordinary  care  in  what  they  did  that  might  affect 


Ch.  1)  NEGLIGENCE  1105 

his  safety.  Not  only  in  the  act  of  removal,  but  in  the  place  where 
they  left  him,  it  was  their  duty  to  have  reasonable  regard  for  his 
safety  in  view  of  his  manifest  condition.  The  jury  might  have  found 
that  they  were  negligent  in  leaving  him  on  the  steps  where  a  fall 
w^ould  be  likely  to  do  him  much  harm.  ^  Moody  v.  Boston  &  Maine 
R.  R.,  189  Mass.  277,  75  N.  E.  631. 

The  defense  rests  principally  upon  the  fact  that  the  plaintiff  was 
intoxicated,  and  was  incapable  of  caring  for  himself  after  he  was 
taken  from  the  train,  and  therefore  was  not  in  the  exercise  of  due 
care.  If  his  voluntary  intoxication  was  a  direct  and  proximate  cause 
of  the  injury,  he  cannot  recover.  The  plaintiff  contends  that  it  was 
not  a  cause,  but  a  mere  condition,  well  known  to  the  defendant's  serv- 
ants, and  that  their  act  was  the  direct  and  proximate  cause  of  the 
injury,  with  which  no  other  act  or  omission  had  any  causal  connec- 
tion. The  distinction  here  referred  to  is  well  recognized  in  law.  Neg- 
ligence of  a  plaintiff  at  the  time  of  an  injury  caused  by  the  negligence 
of  another  is  no  bar  to  his  recovery  from  the  other,  unless  it  was  a 
direct,  contributing  cause  to  the  injury,  as  distinguished  from  a  mere 
condition,  in  the  absence  of  which  the  injury  would  not  have  occurred. 
This  is  pointed  out  in  Steele  v.  Burkhardt,  104  Mass.  59,  6  Am.  Rep. 
191,  and  Murphy  v.  Deane,  101  Mass.  455,  3  xA.m.  Rep.  390.  It  is 
also  considered  at  some  length  in  Newcomb  v.  Boston  Protective  De- 
partment, 146  Mass.  596,  16  N.  E.  555,  4  Am.  St.  Rep.  354.  See,  also. 
Marble  v.  Ross,  124  Mass.  44;  Spoftord  v.  Harlow,  3  Allen,  176; 
Hall  V.  Ripley,  119  Mass.  135;  Stone  v.  Boston  &  Albany  R.  R.  Co., 
171  Mass.  536-544,  51  N.  E.  1,  41  L.  R.  A.  794. 

The  application  of  this  rule  sometimes  gives  rise  to  difficult  ques- 
tions. But  in  this  connection  the  doctrine  has  been  established  that, 
when  the  plaintiff's  negligence  or  wrongdoing  has  placed  his  person 
or  property  in  a  dangerous  situation  which  is  beyond  his  immediate 
control,  and  the  defendant,  having  full  knowledge  of  the  dangerous 
situation,  and  full  opportunity,  by  the  exercise  of  reasonable  care, 
to  avoid  any  injury,  nevertheless  causes  an  injury,  he  is  liable  for 
the  injury.  This  is  because  the  plaintiff's  former  negligence  is  only 
remotely  connected  with  the  accident,  while  the  defendant's  conduct 
is  the  sole,  direct  and  proximate  cause  of  it.  The  principle  was  recog- 
nized by  Mr.  Justice  Wells  in  Murphy  v.  Deane,  101  Mass.  455,  3 
Am.  Rep.  390,  in  these  words :  "The  last  part  of  the  instructions 
prayed  for  suggests  another  question  which,  in  certain  conditions 
of  facts,  may  require  care  and  consideration,  to  wit :  how  far  the 
obligations  and  liabilities  of  one  party  are  modified  towards  the  other, 
after  knowledge  of  a  negligent  exposure  by  the  latter,  to  danger  from 
the  acts  or  neglect  of  the  former.  In  such  case,  what  would  other- 
wise have  been  mere  negligence  may  become  willful  or  wanton  wrong, 
or  may  take  the  place  of  the  sole,  direct  or  proximate  cause,  the  neg- 
ligence of  the  other  party  being  then  regarded  as  a  remote,  and  not 
Hepb.Tobts — 70 


1106  TOUTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

a  contributory,  cause."  In  Hibbard  v.  Thompson,  109  Mass.  286,  we 
find  this  language :  "A  physician  may  be  called  to  prescribe  for  cases 
which  originated  in  the  carelessness  of  the  patient,  and  though  such 
carelessness  would  remotely  contribute  to  the  injury  sued  for,  it  would 
not  relieve  the  physician  from  liability  for  his  distinct  negligence  and 
the  separate  injury  occasioned  thereby.  *  *  *  jj^  such  cases  the 
plaintiff's  fault  does  not  directly  contribute  to  produce  the  injury  sued 
for."  So  in  Pierce  v.  Cunard  Steamship  Company,  153  Mass.  87,  26 
N,  E.  416,  this  court  said :  "But  here  the  ground  is  not  the  fire,  but 
an  act  done  by  the  defendant  after  Pierce  had  got  into  the  dangerous 
position.  *  *  *  The  plaintiff's  previous  negligence  is  not  a  suffi- 
cient excuse  for  knowingly  inflicting  an  injury  upon  him,  or  short 
of  that,  for  omitting  the  use  of  such  care  as  is  reasonable  under  the 
circumstances,  to  avoid  injuring  him,  even  whether  the  harm  is  not 
expected  in  terms." 

The  rule  applies,  in  like  manner,  where  the  plaintiff's  act  is  il- 
legal as  distinguished  from  negligent,  so  that  the  defendant's  liability 
is  only  for  wanton  and  reckless  conduct  to  the  plaintiff's  injury. 
McKeon  v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  183  Mass.  271,  67  N.  E. 
329,  97  Am.  St.  Rep.  437;  Palmer  v.  Gordon,  173  Mass.  410,  53 
N.  E.  909,  73  Am.  St.  Rep.  302;    Lovett  v.  Salem,  etc.,  R.  R.  Co., 

9  Allen,  557-563.  In  this  latter  class  of  cases,  where  the  negligence 
is  wanton  and  reckless  to  such  a  degree  as  to  be  in  its  nature  a  willful 
wrong,  it  is  held  that,  although  the  plaintiff  makes  an  averment  of  due 
care  on  his  part,  this  means  only  due  care  in  reference  to  the  direct 
and  proximate  cause  of  the  injury,  and,  such  a  gross  wrong  of  the 
defendant  being  shown  to  be  the  cause,  it  prima  facie  so  far  excludes 
participation  in  it  by  the  plaintiff,  as  to  relieve  him  from  the  necessity 
of  offering  affirmative  evidence  of  his  care.  Aiken  v.  Holyoke  St. 
Ry.  Co.,  184  Mass.  269,  68  N.  E.  238;  Bjornquist  v.  Boston  &  Al- 
bany R.  R.  Co.,  185  ^lass.  130,  70  N.  E.  53,  102  Am.  St.  Rep.  332 ; 
Banks  V.  Braman,  188  IMass.  367,  74  N.  E.  594.  The  fundamental 
principle  is  the  same  in  both  classes  of  cases.  It  is  that  the  plaintiff's 
condition,  resulting  from  his  prior  negligence  or  wrong,  is  not  a  di- 
rect and  proximate  cause  of  the  latter  injury,  inflicted  by  one  who 
acts  independently,  with  knowledge  of  this  condition  and  in  reference 
to  it.  The  principle  has  been  generally  recognized,  both  in  England 
and  America.^"     *     *     * 

9  0  Knowlton,  C.  J.,  liere  referred  to  the  following  cases:    Davies  v.  Mann, 

10  M.  &  W.  545 ;  Radley  v.  London  &  N.  W.  Railway  Co.,  L.  R.  1  App.  Cas. 
754;  Inland  &  Seaboard  Coasting  Co.  v.  Tolson  (llSOl)  1:^.9  U.  S.  551,  11  Sup. 
Ct.  65;!,  o5  L.  I-:d.  270;  Memphis  &  C.  R.  R.  Co.  v.  Martin  (1901)  131  Ala. 
2(39,  30  South.  827 ;  Green  v.  Tx)s  Ansjeles  Terminal  R.  R.  Co.  (1904)  14.3  Cal. 
31-41.  76  Pac.  719,  101  Am.  St.  Rep.  68;  Isbell  v.  N,  Y.,  N.  H.  &  H.  R.  R.  Co. 
(1S5S)  27  Conn.  393,  71  Am.  Dec.  78;  Indianapolis  &  Cincinnati  Ry.  Co.  v. 
Wri^'ht  (1S(;4)  22  Ind.  370;  Keefe  v.  Chicai,'o  &  Nortli\vest(M-n  Ry.  Co.  (1891) 
92  Iowa,  1S2,  GO  X.  W.  503,  54  Am.  St.  Rop.  .542;  Atwood  v.  BanRor,  O.  & 
O.  T.  R.  R.  Co.  (1898)  91  Me.  399,  40  Atl.  07 ;  Baltimore  &  Ohio  R.  R.  Co.  v. 
State  (1871)  33  Md.  542;    Buxton  v.  Ainsworth  (1904)   138  Mich.  532,  101  N. 


Ch.  1)  NEGLIGENCE  1107 

We  are  of  opinion  that  the  jury  in  the  present  case  might  have 
found  that  the  plaintiff  was  free  from  any  neghgence  that  was  a 
direct  and  proximate  cause  of  the  injury. 

Exceptions  sustained. 


VANDALIA  R.  CO.  v.  CLEM. 
(Appellate  Court  of  Indiana,  1911.    49  Ind.  App.  94,  96  N.  E.  789.) 

Action  against  the  railway  company  for  damages  caused  by  the 
defendant's  train  running  into  and  killing  the  plaintiff's  team,  and 
destroying  his  wagon,  while  standing  in  defendant's  freight  yards. 
A  demurrer  to  the  complaint  for  lack  of  facts  was  overruled.  The 
defendant  then  answered  in  denial.  Verdict  and  judgment  for  the 
plaintiff. 

The  complaint,  after  setting  out  the  circumstances  attending  the 
entry  of  the  plaintiff's  team  upon  the  defendant's  property,  and  the 
resulting  accident  contained  these  averments  : 

"Tliat  within  a  few  raiuutes  after  tlie  plaintiff's  said  team  had  so  entered 
upon  defendant's  said  railroad  track  at  said  place,  and  at  about  5:30  o'clock 
in  the  evening:,  and  while  it  was  too  dark  to  see  said  team  and  wagon,  without 
light,  at  a  sufficient  distance  ahead  of  said  engine  as  it  approached  them  from 
the  west  to  stop  said  train,  at  the  rate  of  speed  at  which  it  was  then  run- 
ning— oO  miles  per  hour — and  prevent  its  running  over  said  team  and  wagon, 
said  defendant,  without  a  light,  and  without  a  lookout  on  said  engine,  and 
without  said  yards  being  in  any  way  lighted,  recklessly,  wantonly,  and  will- 
fully, and  without  seeing  or  endeavoring  to  see  said  wagon  and  team  so  con- 
fined upon  its  tracks  and  switchyard,  and  without  any  care  or  regard  for  the 
lives  or  safety  of  persons  or  teams  upon  said  yards  or  tracks,  recklessly 
and  willfully  ran  said  train  on,  against,  and  over  said  team,  wagon,  and 
harness  while  it  was  so  confined  upon  said  defendant's  main  track  in  or  ad- 
joining to  its  switchyards,  and  thereby  willfully  and  wantonly  crushed  and 
killed  both  of  plaintiffs  said  horses,  and  destroyed  said  wagon  and  harness, 
to  his  damage  in  the  sum  of  $350,  all  of  which  occurred  through  the  will- 
fulness and  recklessness  of  said  defendant  in  so  operating  its  said  train,  with- 
out any  fault  or  negligence  whatever  on  the  part  of  tliis  plaintiff." 

Adams,  J.  *  *  *  In  the  complaint  before  us,  it  is  averred  that 
the  defendant  "recklessly  and  willfully  ran  said  train  against  and 
over  said  team."  If  the  train  was  willfully  run  over  the  team,  it 
implies  that  the  injury  was  committed  not  only  with  purpose  and  in- 

W.  817,  5  Ann.  Cas.  146 ;  Rawitzer  v.  St.  Paul  City  Ry.  Co.  (1904)  93  Minn. 
84,  100  N.  W.  6G4;  State  v.  :\lanchester  &  Lawrence  R.  R.  (1873)  52  N.  H. 
528;  Railroad  Co.  v.  Kassen  (1892)  49  Ohio  St.  230,  31  N.  E.  282 ;  Willey  v. 
Boston  &  Maine  R.  H.  (1900)  72  Vt.  120,  47  Atl.  398;  Richmond  Traction  Co. 
V.  Martin's  Adm'x  (1903)  102  Va.  209,  45  S.  E.  886 ;  Bostwick  v.  Minnesota  & 
Pacific  R.  R.  Co.  (1892)  2  N.  D.  440,  51  N.  W.  781. 

The  rule  has  often  been  applied  in  favor  of  plaintiffs  whose  intoxication 
prevented  them  from  using  care  to  protect  themselves  from  the  conse<iuences 
of  a  subsetiuent  act  of  negligence  of  another  person,  done  \\ith  kno^^ ledge  of 
their  intoxication.  Wheeler  v.  Grand  Trunk  Ity.  Co.  (1900)  70  N.  H.  007.  50 
Atl.  103,  54  L.  R.  A.  955;  Kean  v.  Baltimore  &  Ohio  R.  R.  Co.  (1884)  01  Md. 
154:  Fox  V.  Michigan  Central  R.  R.  Co.  (1904)  13S  Mich.  433.  101  N.  W.  024. 
68  L.  R.  A.  336,  5  Ann.  Cas.  68;  Cincinnati,  I.,  St.  L.  &  C.  R.  R.  Co.  v.  Cooper 
(1889)  120  Ind.  469,  22  N.  E.  340,  6  L.  R.  A.  241,  16  Am.  St.  Rep.  334. 


1108  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

tent,  but  with  knowledge  as  well.  Such  is  the  meaning  of  "willful." 
8  W'ords  and  Phrases,  7468.  This  charge,  standing  alone,  we  think 
would  make  the  complaint  good  as  an  action  for  willful  injury,  but  it 
does  not  stand  alone.  In  the  same  sentence  it  is  averred  that  the 
train  was  run  "without  seeing  or  endeavoring  to  see  said  wagon  and 
team."  This  would  be  negligence.  But,  there  are  no  degrees  of 
negligence,  and  negligence,  no  matter  how  reprehensible,  can  never 
approximate  willfulness.  The  two  conditions  have  nothing  in  com- 
mon and  everything  in  conflict.  The  specific  averment  that  defendant 
did  not  see  nor  try  to  see  the  team  charges  negligence,  and  must  con- 
trol the  general  averment  that  the  injury  was  willfully  committed. 

We  therefore  conclude  that  the  complaint  does  not  state  facts  suf- 
ficient to  constitute  a  cause  of  action  for  willful  injury,  and,  as  con- 
tributory negligence  affirmatively  appears  by  the  complaint,  it  does 
not  state  a  cause  of  action  for  negligence.     *     *     * 

The  judgment  is  reversed,  with  instructions  to  grant  a  new  trial 
and  to  sustain  the  demurrer  to  the  complaint^^ 


DOHR  v.  WISCONSIN  CENT.  RY.  CO. 
(Supreme  Court  of  Wisconsin,  1910.     144  Wis.  545,  129  N.  W.  252.) 

This  was  an  action  to  recover  damages  for  the  death  of  the  plaintiff's 
intestate  through  the  alleged  negligence  of  the  defendant  railway  com- 
pany. There  was  a  judgment  below  for  the  plaintiflE;  the  defendant 
appeals. 

Timlin,  J.  In  this  case  the  jury  found  the  decedent  and  the  de- 
fendant each  guilty  of  negligence  contributing  to  cause  death,  and  that 
the  negligence  for  which  the  defendant  was  responsible  was  greater 
than  that  of  the  decedent,  and  contributed  in  a  greater  degree  to  the 
injury  and  death  of  decedent.  The  case  is  presented  by  counsel  for  the 
appellant  describing  the  negligence  of  decedent  as  gross  negligence,  or 
a  very  high  degree  of  ordinary  negligence,  while  the  counsel  for  re- 
spondent minimizes  this  and  contends  that  the  facts  show  gross  negli- 
gence on  the  part  of  the  other  erring  servant  of  the  appellant. 

As  we  look  at  the  facts,  neither  of  these  contentions  can  be  upheld. 
On  a  very  dark,  foggy  morning  on  September  12,  1908,  the  decedent, 
section  foreman  for  defendant,  started  out  at  7  o'clock  with  another 
section  man  on  his  hand  car,  bound  west  from  Sherwood  Station  to  a 
point  called  High  Cliff  Junction  about  II/2  miles  distant.  Between 
Sherwood  and  High  Cliff,  and  a  mile  west  of  Sherwood,  there  is  a 
whistling  post  for  that  station  ;  a  quarter  of  a  mile  further  west  a  high- 
way crossing.  The  first  regular  train  from  the  west  was  due  at  Sher- 
wood at  7 :42  o'clock  that  morning,  and  this  would  give  the  hand  car 

91  Parts  of  the  opinion  are  omitted. 


Ch.  1)  NEGLIGENCE  1109 

time  to  reach  High  Cliff.  Decedent  went  on  the  hand  car  at  the  usual 
hour  of  going  to  work  in  the  discharge  of  his  duty,  and  he  had  on  the 
hand  car  some  tools  and  implements  and  lunch  pails,  and  proceeded  at 
a  moderate  rate  of  speed  without  stopping  until  the  moment  of  colli- 
sion, but  looking  and  listening  for  an  approaching  train.  Irregular 
trains  were  liable  to  be  sent  over  this  road  at  any  time.  The  section 
men  were  requested  to  look  out  for  all  passing  trains  and  were  fur- 
nished with  time-tables  of  regular  trains.  The  collision  was  with  an 
irregular  train.  The  verdict  of  the  jury  that  the  deceased  was  guilty 
of  lack  of  ordinar}^  care,  which  contributed  to  cause  his  death,  is  well 
supported  on  this  evidence,  but  there  was  nothing  of  extraordinary 
recklessness  in  going  out  to  work  on  a  very  foggy  morning  in  this  way. 
At  6:50  o'clock  there  left  Menasha,  or  Menasha  Junction,  east-bound, 
a  locomotive  engine  and  caboose,  which  collided  with  this  hand  car  at 
a  point  about  4,000  feet  west  of  Sherwood.  There  was  evidence  tend- 
ing to  show  that  the  locomotive  engineer  failed  to  sound  his  whistle 
at  the  first  highway  crossing  west  of  Sherwood,  or  at  the  milepost  one 
mile  west  of  Sherwood,  and  was  proceeding  eastwardly  at  the  rate  of 
22  miles  per  hour  in  this  dense  fog.  There  was  also  evidence  tending 
to  show  that  the  headlight  of  this  locomotive  engine  had  been  acciden- 
tally extinguished  prior  to  the  collision,  and  also  that  it  was  not  feasible 
to  tell,  from  the  engineer's  position  in  the  cab  on  a  foggy  day,  whether 
or  not  the  headlight  was  burning.  There  was  here  no  more  than  ordi- 
nary' negligence.  The  rate  of  speed  was  not  unusual,  although  rather 
high  for  an  irregular  train  in  such  a  fog ;  the  failure  to  sound  the  whis- 
tle was  to  some  degree  explained,  but  not  excused,  by  the  difficulty 
of  determining  the  exact  location  of  the  engine  in  the  fog.  The  lack 
of  headlight  was  not  known  to  the  engineer.  He  was  running  ahead 
of  the  passenger  train.  So  that  instead  of  measuring  gross  negligence, 
or  a  very'  high  degree  of  ordinary  negligence,  against  the  like  we  are 
measuring  ordinary  negligence  against  ordinary  negligence  and  the 
question  is,  Was  there,  as  required  by  our  statute,  evidence  from  which 
the  jury  might  say  that  the  negligence  of  the  decedent  was  slighter 
than  that  of  the  engineer,  and  the  negligence  of  the  engineer  contrib- 
uted in  a  greater  degree  than  did  that  of  decedent  to  cause  the  death 
of  the  latter? 

Each  of  these  employes  of  the  defendant  was,  we  presume,  discharg- 
ing his  duty  as  such  in  good  faith.  The  decedent  took  the  chances  of 
going  against  an  irregular  train  in  this  fog,  relying  upon  his  ability  to 
escape  and  remove  his  hand  car  after  hearing  the  whistle  or  seeing  the 
headlight.  He  had  full  information  that  he  was  expected  to  protect 
himself  against  any  irregular  train  that  might  happen  along.  This  lack 
of  care  had  the  proper  causal  connection  with  his  death,  recognized  in 
the  law  as  proximate  cause.  The  engineer  should  have  known  that 
there  might  be  travelers  making  the  crossing,  or  section  men  working  on 
the  track,  and  he  should  have  sounded  his  whistle  at  the  crossing  and  at 
the  milepost,  and  in  case  he  could  not  see  the  crossing  post  or  milepost, 


1110  TOUTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

he  should  have  sounded  his  whistle  quite  continuously,  as  a  warning  to 
section  men,  and  perhaps  should  also  have  decreased  his  speed  to  about 
that  of  an  ordinary  vehicle. 

When  there  is  a  collision  between  two  vehicles  traveling  in  opposite 
directions  on  the  same  track  and  the  ordinary  negligence  of  the  person 
in  charge  of  each  vehicle  has  caused  the  collision,  and  one  of  such  per- 
sons is  injured  or  killed,  the  court  must,  notwithstanding  subdivision  5 
of  section  1816,  St.,  as  amended  by  chapter  254,  Laws  1907,  when  the 
point  is  properly  raised,  search  the  evidence  and  ascertain  whether  any- 
thing appears  from  which  the  jury  would  be  authorized  to  find  that  the 
negligeirce  of  the  injurer  was  greater  and  contributed  in  a  greater  de- 
gree to  cause  the  injury,  than  that  of  the  injured  servant.  Kiley  v.  R. 
R.  Co.,  138  Wis.  215,  119  N.  W.  309,  120  N.  W.  756.     *     *     * 

For  the  instant  case,  it  is  enough  to  say  that  here  each  servant  of 
the  railroad  company,  the  injured  and  the  injurer,  was  of  equal  rank 
and  authority  in  the  management  of  the  vehicle  used  and  controlled  by 
him.  The  responsibility  resting  on  each  for  his  safety  and  the  safety 
of  the  group  co-operating  with  him,  and  for  the  safety  of  the  other 
negligent  servant  and  his  co-operating  group,  and  for  the  safety  of  pas- 
senger trains,  was  at  least  equal.  The  opportunities  for  anticipating 
and  avoiding  danger  were  at  least  equal.  The  necessity  for  the  in- 
jurer to  continue  his  course  without  stopping  was  more  imperative  and 
necessary.  The  rules  of  employment  required  the  injured  servant  to 
exercise  diligence  to  keep  out  of  the  way  of  the  injurer.  The  action- 
able fact,  death,  resulted  from  the  collision  of  the  two  vehicles  the  si- 
multaneous and  indivisible  result  of  two  vehicles  negligently  moved 
in  opposite  directions,  to  a  meeting  point  on  the  same  track.  Ordi- 
nary care  on  the  part  of  the  injured  servant  in  the  very  particular  in 
which  the  jurv  must  have  found  him  negligent  would  have  avoided 
the  injury,  notwithstanding  the  negligence  of  the  injurer.  The  culpa- 
bility of  the  injurer  in  forgetting  or  failing  to  blow  his  locomotive 
whistle  more  frequently  as  a  warning  to  the  trackmen  was  equal  to  the 
culpability  of  the  injured  in  talking  out  his  subordinate  on  a  hand  car 
and  proceeding  along  the  track  in  the  unusual  fog,  when  a  train  might 
be  expected  to  move  down  upon  them.  We  may  presume  tiie  injured 
relied  on  his  ability  to  get  out  of  the  way  after  hearing  the  whistle  and 
the  injurer  on  the  rule  of  the  employment,  tbat  the  injured  must  keep 
out  of  the  way  of  trains.  Under  such  circumstances,  there  is  no  evi- 
dence from  which  a  court  or  a  jury  can  say  that  the  negligence  of  the 
injured  was  slighter  than  that  of  the  injurer.  The  judgment  must 
therefore  be  reversed. 

This  makes  it  unnecessary  to  decide  whether,  in  the  instant  case, 
there  was  any  evidence  from  which  the  jury  might  infer  that  the  neg- 
ligence of  the  injurer  contributed  in  a  greater  degree  than  the  negli- 
gence of  the  injured  to  cause  the  injury.  Whether  the  jury  could  con- 
sider the  greater  weight  and  impact  of  the  locomotive  as  a  more  potent 
cause  of  the  injury  and  thus  contributing  in  a  greater  degree,  or  the 


Ch.  1)  NEGLIGENCE  1111 

failure  to  sound  the  whistle  as  expected,  and  the  tendency  of  such  fail- 
ure to  induce  the  injured  servant  to  continue  in  his  careless  course  on 
the  track,  or  the  more  imperative  duty  to  continue  resting  upon  the 
injurer,  or  the  rule  of  the  railroad  by  which  the  injured  was  informed 
that  he  must  rely  on  himself  to  keep  out  of  the  way  of  trains,  as  bear- 
ing on  this  second  requirement  of  the  statute,  need  not  be  decided. 

Judgment  reversed  and  the  cause  remanded  with  directions  to  enter 
judgment  for  defendant. 

WixsLow,  C.  J.    As  I  see  this  case,  duty  compels  me  to  dissent. 

When  two  persons  are  negligent  and  injury  to  one  proximately  re- 
sults from  the  combined  negligence  of  both,  it  must  often  be  a  very 
delicate  and  difficult  question  to  decide  whether  the  negligence  of  one 
was  greater  than  that  of  the  other,  and  contributed  in  a  greater  degree 
to  produce  the  injury.  There  is  no  yardstick  with  which  to  measure 
the  two  acts  of  negligence,  nor  scales  v/ith  which  to  weigh  them.  How- 
ever, the  lyCgislature  has  determined  that  in  certain  classes  of  cases 
this  delicate  question  shall  be  decided,  and  that  upon  its  def^ision  shall 
depend  -iability,  and  this  courc  has  sustained  and  applied  that  law.  ]t 
is  not  inherently  more  difficult  to  decide,  than  many  another  (juestion 
which  courts  an.^.  juries  are  daily  compelled  to  decide.     *     •^     * 

In  the  present  case  it  seems  to  me  there  are  unquestionably  facts 
from  which  reasonable  minds  might  draw  different  conclusions,  both 
as  to  the  quantum  of  negligence  on  each  side  and  as  to  the  degree  in 
which  such  negligence  proximately  contributed  to  cause  the  injury. 

The  deceased  and  his  comrades  were  going  to  their  work  as  their 
duty  required,  and  they  were  going  in  the  way  they  were  expected  to 
go.  The  evidence  tends  to  show  that  they  were  proceeding  slowly  and 
carefully ;  their  car  was  light  and  could  be  quickly  stopped  and  lifted 
from  the  track  out  of  danger ;  they  knew  that  no  regular  train  was 
due;  they  also  knew  there  were  two  or  three  highway  crossings  direct- 
ly ahead  of  them,  as  well  as  the  station  whistling  post,  and  that  any 
approaching  locomotive  was  required  to  whistle  at  all  of  these  places. 
On  the  other  hand,  the  engineer  of  the  approaching  engine  knew  that 
he  was  running  wild ;  he  knew,  or  should  have  known,  that  section 
men  would  probably  be  on  their  way  to  work ;  he  was  driving  his  en- 
gine through  the  fog  at  a  speed  of  over  20  miles  an  hour  without  whist- 
ling at  the  road  crossings ;  he  was  in  charge,  not  of  a  light  vehicle 
which  could  be  stopped  in  few  feet  distance  and  taken  from  the  track, 
but  of  a  ponderous  mass  of  steel  and  iron,  which  was  hurtling  over  the 
rails  at  a  speed  which  rendered  it  impossible  of  ready  control,  and 
which  would  probably  deal  death  and  destruction  to  any  one  rightfully 
on  the  crossings  or  on  the  track,  and  did  not  know  of  its  approach  till 
it  emerged  from  the  fog.  Knowing  all  these  things,  he  sounded  no 
whistle  and  came  upon  the  deceased  and  his  fellow  workmen  with  his 
engine  of  death,  like  a  ball  shot  from  a  cannon. 

Grant  that  it  must  be  said  that  the  deceased  and  his  colleagues  were 
guilty  of  negligence,  is  there  no  room  upon  these  facts  for  a  reasonable 


1112  TORTS   THROUGH   ACTS   OP   CONDITIONAL   LIABILITY  (Part  3 

mind  to  conclude  that  the  negligence  of  the  engineer  was  not  only 
greater,  but  contributed  in  a  greater  degree,  to  the  injury?  I  think 
there  is  ample  room  for  such  a  conclusion,  and  so  thinking,  I  cannot 
agree  with  the  result  reached  by  the  court  in  this  case.**^ 

I  am  authorized  to  state  that  Mr.  Justice  SiEbecke;r  agrees  with 
the  views  expressed  in  this  opinion. 

92  A  portion  of  the  opinion  of  Timlin,  J.,  citing  and  commenting  on  a  num- 
ber of  eases,  is  omitted,  as  is  also  part  of  tlie  dissenting  opinion  of  the  Chief 
Justice. 

"The  doctrine  of  comparative  negligence  has  been  stated  as  follows:  'The 
degrees  of  negligence  must  be  measured  and  considered,  and  whenever  it 
shall  api^ear  that  the  plaintiff's  negligence  is  comparatively  slight  and  that  of 
the  defendant  gross,  he  should  not  ba  deprived  of  his  action.'  Galena  Ry. 
V.  Jacobs  [1S58]  20  111.  478.  This  doctrine  was  made  part  of  the  law  of  Wis- 
consin by  statute  in  1907,  and  a  similar  doctrine  has  been  enunciated  in  the 
statutes  of  Florida  and  Georgia.  Fla.  So.  Ry.  Co.  v.  Hirst  [1892]  30  Fla.  1, 
11  South.  506,  16  L.  R.  A.  631,  32  Am.  St.  Rep.  17 ;  Ala.,  etc.,  Ry.  Co.  v.  Cog- 
gins  [1898]  88  Fed.  455,  32  C.  C.  A.  1 ;  Atl.  Coast  Line  Ry.  Co.  v.  Taylor 
[1906]  125  Ga.  454,  54  S.  E.  622.  It  was  adopted  in  Kansas  in  Union  Pac. 
Ry.  V.  Rollins  [1869]  5  Kan.  167,  but  repudiated  in  Atchison,  etc.,  Ry.  v. 
Henry  [1896]  57  Kan.  154,  45  Pac.  576,  and  has  been  rejected  in  Illinois,  the 
state  of  its  origin,  where,  too,  it  had  its  greatest  development.  INlacon  v. 
Holcomb  [1903]  205  111.  643,  69  N.  B.  79.  Except  where  recognized  by  statute 
it  probably  does  not  obtain  now  in  any  jurisdiction."  9  Mich.  Law  Rev. 
444  (1911). 

See  also  the  remark  of  Robertson,  C,  in  St.  Louis  &  S.  F.  R.  Co.  v.  Elsing 
(1913)  37  Okl.  333,  132  Pac.  483,  486:  "Evidently  it  was  not  the  intention  of 
the  court  to  instruct  on  either  of  these  doctrines  of  negligence  but  on  the 
doctrine  of  comparative  negligence,  which  provides  that  ijlaintiff  may  recover, 
although  he  is  himself  guilty  of  contributory  negligence,  if  that  negligence 
is  slight  and  if  the  negligence  of  the  defendant  is  gross  in  comparison.  We 
are  forced  to  this  conclusion  by  the  language  of  the  instruction  itself,  espe- 
cially the  last  sentence  thereof,  which  jjrovides  that  the  negligence  of  the 
plaintiff,  may  be  considered  by  the  jui-y  in  mitigation  of  damages,  which 
in  effect  means  that  the  jury  may  weigh  and  apportion  the  concurring  acts 
of  negligence  of  both  plaintiff  and  defendant.  The  jury  under  this  instruction, 
to  say  the  least,  were  inferentially,  or  impliedly,  given  authority  to  deter- 
mine the  degree  of  negligence  of  both  parties  and  to  apportion  the  same 
between  them  in  order  to  correctly  estimate  the  amount  of  plaintiff's  recov- 
ery, and  they  were  thereby  in  effect  told  that  the  defendant  was  not  entitled 
to  its  defense  of  contributory  negligence  which  is  granted  to  it,  and  to  all 
other  litigants,  under  our  Constitution  and  laws.  This  instruction  is  there- 
fore erroneous  and  does  not  state  the  law  in  this  state,  for  here  there  can  be 
no  recovery  by  a  plaintilf  who  is  guilty  of  contributory  negligence.  The 
doctrine  of  comparative  negligence  has  no  place  in  the  consideration  of  this 
case  and  should  not  have  been  given  by  the  court  in  its  charge  to  the  jury 
as  was  done  in  this  instruction.  The  doctrine  of  comparative  negligence  has 
been  adopted  by  statutory  provision  in  several  of  the  states,  to  wit,  Florida 
(Act  June  7,  1887,  c.  3744),  Georgia  (Civ.  Code  1895,  2322),  Mississippi  (Laws 
1910,  c.  135)  Texas  (Acts  31st  Leg.  [1st  Ex.  Sess.]  c.  10),  and  Wisconsin  (Laws 
1907,  c.  254).  This  doctrine  was  recognized  by  the  courts  of  Illinois  until 
recently.  It  is  now  repudiated  there.  Krieger  v.  Railroad  Co.  [1909]  242 
111.  544,  90  N.  E.  266;  Vittum  v.  Drury  [1911]  161  111.  App.  003.  It  has  been 
said  to  have  obtained  in  Kansas.  This,  however,  is  erroneous.  See  Hall- 
way Co.  V.  Walters  [1908]  78  Kan.  39,  96  Pac.  340." 


Ch.  1)  NEGLIGENCE  1113 


SMITH  et  al.  v.  CITY  OF  SHAKOPEE.        -^ 

(Circuit  Court  of  Appeals  of  the  United  States,  Eighth  Circuit,  1900. 

44  C.  C.  A.  1.  103  Fed.  240.) 

This  was  an  admiralty  case  which  originated  in  the  state  of  Minne- 
sota and  grew  out  of  damage  to  the  steamer  Daisy,  caused  by  running 
into  the  draw  of  a  bridge  across  the  Minnesota  river.  This  bridge  had 
been  constructed  by  the  defendant,  the  city  of  Shakopee.  The  Hbel- 
ants  allege  in  substance : 

That  they  were  the  owners  of  the  steamer  Daisy,  and  that  on  June  15, 
1896,  at  the  hour  of  2  o'clocli  a.  m.,  as  the  said  steamer  was  proceeding  down 
the  Minnesota  river  witli  an  excursion  party  from  St.  Paul,  which  liad  been 
spending  the  day  at  Chaska,  she  ran  into  the  draw  of  the  aforesaid  bridge, 
and  carried  away  her  smokestack  and  injured  her  pilot  house  and  some  of 
her  upiier  works.  It  was  alleged  that  the  collision  in  question,  and  the  con- 
sequent injuries  to  the  steamer,  were  occasioned  because  the  lights  on  said 
bridge  were  at  the  time  insufficient  to  disclose  the  position  of  the  draw,  and 
because  the  draw  was  carelessly  and  negligently  opened  by  the  bridge  tender 
who  was  in  the  employ  of  the  City  of  Shakopee,  and  because  the  lights  on  the 
draw  were  so  negligently  displayed  as  to  deceive  the  pilot  and  master  as 
to  the  position  of  the  draw.  9  3 

The  District  Court  directed  that  the  libel  be  dismissed.  The  libel- 
ants appealed. 

Thayer,  Circuit  Judge.  *  *  *  j^  our  former  decision  ^*  we 
said  in  substance  that  the  proximate  or  efficient  cause  of  the  collision 
with  the  bridge  seems  to  have  been  that  the  pilot  attempted  to  pass 
through  the  draw  before  he  was  assured  that  it  was  fully  opened.  This 
conclusion  was  induced,  how^evc-r,  by  the  finding  that  the  bridge  was 
provided  with  adequate  lights,  considering  its  location  and  the  amount 
of  navigation  on  the  Minnesot?,  river,  to  meet  the  requirements  of  the 
common  law.  The  same  conclusion  cannot  be  formed  on  the  present 
occasion,  since  it  was  the  dutj  of  the  city  to  provide  such  lights  as  are 
required  by  the  regulations  of  the  lighthouse  board,  and,  if  such  lights 
had  been  provided,  the  position  of  the  three  green  lights  would  have 
shown  at  a  glance  when  the  draw  was  fully  swung.  The  city  was  at 
fault,  therefore,  in  not  furnishing  the  requisite  lights. 

On  the  other  hand,  we  think  that  the  pilot  and  the  captain,  one  or 
both  of  them,  did  not  exercise  that  degree  of  care  and  circumspection 
which  they  should  have  exercised,  in  attempting  to  pass  through  the 
draw  before  they  were  assured  that  it  was  fully  swung.  Even  if  the 
city  was  at  fault  in  failing  to  provide  the  requisite  lights,  those  in 
charge  of  the  steamer  had  no  right  to  attempt  to  pass  through  the 
bridge  until  they  had  taken  the  precaution  to  ascertain  that  the  passage 
could  be  made  in  safety.  The  conditions  were  such  that  the  steamer 
could  have  been  held  at  a  safe  distance  from  the  bridge  until  the  men 

83  The  statement  of  facts  Is  slightly  abridged. 

04  Part  of  the  opinion  is  omitted.  The  "former  decision"  will  be  found 
in  97  Fed.  974,  US  C.  C.  A.  617  (1899). 


1114  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

who  were  in  charge  of  the  draw  had  advised  the  pilot  that  the  draw 
was  fully  swung  and  ready  for  the  passage  of  the  steamer;  and  such 
action,  we  think,  should  have  been  taken.  The  case  is  one,  in  our  judg- 
ment, where  the  accident  was  occasioned  by  the  concurring  negligence 
of  both  parties,  and  in  such  cases  the  admiralty  rule  is  to  divide  the 
damages.  The  Max  Morris,  137  U.  S.  1,  9,  11  Sup.  Ct.  29,  34  L.  Ed. 
586;  The  Britannia,  153  U.  S.  130,  144,  14  Sup.  Ct.  795,  38  L.  Ed.  660; 
The  Lisbonense,  53  Fed.  293,  3  C.  C.  A.  539. 

There  is  some  uncertainty  in  the  proof  as  to  the  true  amount  of  the 
damages  that  were  occasioned  by  the  collision,  but  we  are  satisfied  by 
an  investigation  of  the  evidence  on  that  point  that  they  did  not  exceed 
$1,000.  The  decree  of  the  district  court  directing  that  the  libel  be  dis- 
missed is  reversed,  and  the  case  is  remanded  to  that  court  with  direc- 
tions to  vacate  said  decree,  and  in  lieu  thereof  to  enter  a  decree  in  fa- 
vor of  the  libelants  for  the  sum  of  $500  and  costs. ^^ 


III.  Assumption  of  Risk  as  an  Excuse 

The  doctrine  of  volenti  non  fit  injuria  stands  outside  the  defence 
of  contributory  negligence  and  is  in  no  way  limited  by  it.  In  indi- 
vidual instances  the  two  ideas  sometimes  seem  to  cover  the  same 
ground,  but  carelessness  is  not  the  same  thing  as  intelligent  choice, 
and  the  Latin  maxim  often  applies  when  there  has  been  no  careless- 
ness at  all.  A  confusion  of  ideas  has  frequently  been  created  in  ac- 
cident cases  by  an  assumption  that  negligence  to  the  many  who  are 
ignorant  may  be  properly  treated  as  negligence  as  regards  the  one 
individual  who  knows  and  runs  the  risk,  and  by  dealing  with  the 
case  as  if  it  turned  only  on  a  subsequent  investigation  into  contribu- 
tory negligence.  In  many  instances  it  is  immaterial  to  distinguish 
between  the  two  defences,  but  the  importance  of  the  distinction  was 
pointed  out  both  by  Erie,  C.  J.,  in  his  summing  up  to  the  jury  in 
Indermaur  v.  Dames,  Law  Rep.  1  C.  P.  at  277,  and  by  Cockburn, 
C.  J.,  in  Woodley  v.  Metropolitan  District  Ry.  Co.,  2  Ex.  D.  384."'' 

Bowen,  L.  J.,  in  Thomas  v.  Quartermaine  (1887)  18  O.  B.  D.  685, 
697. 

95  Compare  Rt.  Louis  &  Tenn.  Packet  Co.  v.  Murray  &  Wathan  (1911)  144 
Ky.  815,  139  S.  W.  1U7S,  where  the  admiralty  rule  is  followed  in  a  state 
court.    See  also  Burdick  on  Torts  (2d  Eld.)  487,  488. 

96  Compare  the  remark  of  Erie  J.,  Id.  p.  277:  "To  my  mind,  there  would 
not  be  the  least  symptom  of  want  of  due  care  as  between  the  (lefendiint  and  a 
person  (permanently)  employed  on  his  premises,  because  the  sngar-bakiui? 
business  requires  a  lift  on  the  premises,  which  must  be  as  well  known  to  tlie 
persons  employed  there  as  the  top  of  a  staircase  in  every  dwelling  house.  But 
that  which  may  be  no  negligence  towards  men  ordinarily  employed  upon  the 
premises,  may  be  negligence  towards  strangers  lawfully  coming  upon  the  prem- 
ises in  the  course  of  their  business." 

Compare  the  remark  of  Cockburn,  C.  J.,  Id.  p.  390:  "That  which  would 
be  negligence  in  a  company,  with  reference  to  the  state  of  their  premises 


Ch.  1)  NEGLIGENCE  1115 


COOK  V.  JOHNSTON. 

(Supreme  Court  of  Michigan,  1885.     58  Mich.  437,  25  N.  W.  388, 

55  Am.  Rep.  703.) 

Case.    Defendant  brings  error. 

CampbelIv,  J.  Plaintiff  recovered  damages  in  the  sum  of  $3,000 
for  personal  injuries  claimed  to  have  been  caused  by  defendant's  neg- 
ligence whereby  it  is  alleged  a  fire  was  set  in  a  shed  occupied  by  the 
plaintifif.  The  facts  as  relied  upon  were  that  plaintift's  husband  was 
a  tenant  of  defendant,  occupying  a  wing  of  her  house  at  the  corner 
of  Sixteenth  and  Canfield  streets  in  Detroit.  Behind  the  house  was 
a  low  shed  divided  into  three  parts  by  internal  partitions  from  five 
to  six  feet  high,  of  which  defendant  occupied  the  middle  one,  and 
plaintiff's  husband  the  adjoining  one  at  the  north  end.  In  the  middle 
partition  was  a  water-closet  used  by  defendant  and  her  tenants  joint- 
ly. In  this  middle  part,  on  the  side  furthest  from  Mr.  Cook's,  was 
an  ash  barrel,  which  Mr.  Cook  described  as  a  stout,  iron-bound  cask, 
such  as  is  used  for  liquids.  Plaintiff'  claims  that  the  fire  was  caused 
by  ashes  in  this  barrel.  She  and  her  husband,  as  they  testify,  were 
awakened  by  the  light  of  the  fire  burning  through  the  top  of  this 
middle  part,  and  as  soon  as  they  could  they  went  into  their  own  part 
and  undertook  to  get  out  their  horse,  that  was  lying  down  so  that  she 
could  not  easily  loose  the  halter.  W'hile  trying  to  do  this  the  fire 
swept  over  the  partition  and  burned  her  very  severely,  so  as  to  nearly 
or  quite  disable  her  from  doing  her  accustomed  work. 

The  principal  question  in  the  case  was  upon  the  liability  of  the 
defendant  if  the  fire  took  from^  negligence  for  which  she  may  have 
been  chargeable  for  the  damages  on  which  recovery  was  had  in  this 
case. 

The  plaintiff  showed  by  her  testimony  that  she  and  her  husband 
saw  the  ash-barrel  daily  and  knew  all  about  its  position.  It  also  ap- 
pears by  the  showing  of  both  that  the  shed,  which  was  entirely  open 
within  from  end  to  end,  above  the  partitions,  was  burning  so  brightly 
as  to  wake  them  up,  and  continued  burning  when  they  entered  to 
loose  the  horse  and  get  out  the  buggy.  The  danger  was  before  their 
eyes,  and  what  happened  by  the  sweeping  down  of  the  flames  was 

or  the  manner  of  conducting  their  business,  so  as  to  give  a  right  to  com- 
pensation for  an  injury  resulting  therefrom  to  a  stranger  lawfully  resorting 
to  their  premises  in  ignorance  of  the  existence  of  the  danger,  will  give  no 
such  right  to  one,  who  being  aware  of  the  danger,  volunt'irily  encounters  it, 
and  fails  to  take  the  extra  care  necessarj-  for  avoiding  it.  The  same  ob- 
servation arises  as  before:  with  full  knowledge  of  the  manner  in  which  the 
trattic  was  carried  on,  and  of  the  danger  attendant  on  it,  the  plaintiff  thought 
proper  to  remain  in  the  emplojinent.  No  doubt  he  thought  that  by  the  ex- 
ercise of  extra  vigilance  and  care  on  his  part  the  danger  might  be  avoid- 
ed. By  a  want  of  p;irticular  care  in  depositing  one  of  his  tools  he  exposed 
himself  to  the  danger,  and  unfortunately  suffered  from  it.  He  cannot,  I  think, 
make  the  company  liable  for  injury  arising  from  danger  to  which  he  vol- 
untarily  exposed  himself." 


1116  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

as  likely  to  happen  as  not.  It  is  not  very  important  by  what  name 
the  action  of  plaintiff  should  be  called.  It  was  such  a  risk  as  she 
chose  to  take,  to  save  her  husband's  property.  But  it  was  a  plain 
and  palpable  risk  nevertheless,  and  the  injury  would  not  have  occurred 
unless  for  her  voluntary  act  in  assuming  the  exposure. 

There, is  some  conflict  in  the  cases  concerning  what  damages  have 
been  held  not  too  remote  for  recovery.  But  it  would  be  going  beyond 
all  reason  to  hold  a  person  liable  for  bodily  injuries  suft'ered  by 
another  in  voluntarily  and  deliberately  entering  a  burning  wooden 
shed  not  divided  into  detached  parts,  and  reached  by  the  flames  while 
at  work  within  it.  The  loss  of  presence  of  mind  under  such  cir- 
cumstances is  one  of  the  commonest  and  most  likely  incidents  of  in- 
curring such  an  exposure.  The  act  in  which  she  was  engaged  may 
have  been  such  as  she  may  have  thought  proper  and  laudable,  and 
worth  some  risk,  but  defendant's  responsibility  cannot  be  created  or 
increased  by  such  independent  and  voluntary  conduct  of  plaintiff  in 
putting  herself  in  harm's  way. 

We  think  that  no  recovery  should  have  been  had  on  the  facts  as 
shown  by  plaintiff  herself,  and  that  the  case  should  not  have  gone 
to  the  jury. 

The  judgment  must  be  reversed  with  costs  and  a  new  trial  granted. 


OSBORNE  V.  LONDON  &  N.  W.  RY.  CO. 

(Queen's  Bench  Division,  1SS8.    21  Q.  B.  Div.  220.) 

Appeal  by  the  defendants  from  the  judgment  of  the  Judge  of  the 
County  Court  at  Birmingham  in  an  action  to  recover  damages  for 
personal  injury  alleged  to  have  been  caused  by  the  negligence  of  the 
defendants  in  allowing  a  flight  of  steps  to  be  in  a  dangerous  condition. 

The  JDlaintiff  in  his  evidence  at  the  trial  stated  that  he  was  a  season- 
ticket  holder  on  the  defendants'  line,  that  on  the  morning  of  March 
21,  1887,  he  went  down  the  steps  to  the  platform  of  the  station  at 
Perry  Barr  to  take  the  train  to  Birmingham,  that  he  went  down  a 
flight  of  stone  steps  leading  to  the  platform,  which  were  covered  with 
a  light  layer  of  snow  which  had  been  trodden  down  and  frozen 
over,  that  the  steps  were  worn  and  hollowed,  and  were  slippery,  that 
he  went  down  carefully  and  not  in  a  hurry,  but  slipped  on  the  steps, 
and  fell,  and  dislocated  his  wrist. 

In  cross-examination  he  said  that  there  were  wooden  steps  leading 
to  the  platform  on  the  other  side  of  the  line,  that  his  train  started 
from  the  platform  to  which  the  wooden  steps  led,  that  sometimes 
he  went  one  way  and  sometimes  the  other,  that  the  stone  steps  were 
on  the  side  nearest  to  his  house,  that  by  going  down  the  stone  steps 
and  crossing  the  line  he  saved  going  round  by  the  bridge  by  which 
the  road  was  carried  over  the  railway,  that  the  steps  were  dangerous 


Ch.  1)  NEGLIGENCE  1117 

without  snow,  that  he  thought  it  was  dangerous  to  go  down,  and 
went  down  carefully,  and  took  hold  of  the  rail  to  prevent  slipping, 
that  he  thought  holding  the  rail  was  sufficient. 

The  County  Court  Judge  was  of  opinion  that  the  accident  was  pri- 
marily caused  by  the  worn  and  defective  state  of  the  steps,  which 
was  aggravated  by  the  frosty  weather,  which  made  them  slippery  in 
addition,  that  the  steps  had  not  been  properly  and  efficiently  swept 
and  cleaned  from  the  caked  snow,  which,  added  to  the  worn  condi- 
tion of  the  steps,  caused  the  plaintiff  to  fall,  and  that  there  was  no 
contributory  negligence  on  the  part  of  the  plaintiff,  and  gave  judg- 
ment for  the  plaintiff  for  i25,  the  amount  being  agreed. 

Alfred  Young,  for  the  defendants.  Notwithstanding  the  findings 
of  fact  as  to  negligence  the  defendants  are  entitled  to  judgment.  The 
plaintift"s  own  admission  that  he  knew  there  was  some  danger  shows 
that  he  voluntarily  elected  to  go  down  the  stone  steps  with  full  knowl- 
edge of  the  risk  he  was  incurring.  The  maxim  "Volenti  non  fit  in- 
juria'' therefore  applies,  and  prevents  the  plaintiff  from  being  enti- 
tled to  recover:  Thomas  v.  Ouartermaine,  17  O.  B.  D.  414,  affirmed 
18  Q.  B.  D.  685.  It  is  true  that  the  burden  of  proof  lies  upon  the 
defendants,  but  they  have  satisfied  the  burden  of  proof  by  the  plain- 
tiff"'s  own  evidence,  and  for  the  purpose  of  establishing  this  defence 
it  is  unnecessary  to  rely  on  the  evidence  of  the  witnesses  called  for  the 
defendants. 

Wills,  j.  *  *  *  p^j.  ^j^g  purposes  of  the  present  case  it  is 
enough  to  take  the  view  expressed  by  Lord  Esher,  M.  R.,  in  Yar- 
mouth V.  France,  19  O.  B.  D.  at  p.  657,  where  he  says :  "I  see  noth- 
ing in  the  decision  in  Thomas  v.  Ouartermaine,  18  Q.  B.  D.  685,  to 
prevent  the  plaintiff  from  recovering  in  this  case,  unless  the  circum- 
stances were  such  as  to  warrant  a  jury  in  coming  to  the  conclusion 
that  the  plaintiff  freely  and  voluntarily,  with  full  knowledge  of  the 
nature  and  extent  of  the  risk  he  ran,  impliedly  agreed  to  incur  it." 

It  seems  to  me  to  follow  that  in  such  a  case  as  the  present,  where 
the  existence  of  negligence  on  the  part  of  the  defendants,  and  the 
absence  of  contributory  negligence  on  the  part  of  the  plaintiff,  are 
specifically  found  as  matters  of  fact,  if  the  defendants  desire  to  suc- 
ceed on  the  ground  that  the  maxim  "Volenti  non  fit  injuria"  is  ap- 
plicable, they  must  obtain  a  finding  of  fact  "that  the  plaintiff  freely 
and  voluntarily,  with  full  knowledge  of  the  nature  and  extent  of 
the  risk  he  ran,  impliedly  agreed  to  incur  it."  I  agree  with  J\Ir.  Wills 
that  this  is  a  question  of  fact,  and,  this  being  so,  it  follows  that  the 
defendants  could  not  succeed  unless  either  they  had  a  finding  of 
fact  in  their  favour,  or  we  had  all  the  facts  before  us,  so  that  we  were 
in  a  position  to  decide  the  question.  I  entertain  some  doubt  as  to 
how  far  this  question  has  been  dealt  with  by  the  County  Court  Judge. 
Mr.  Young  says  it  was  argued  before  him,  but  it  does  not  appear 
that  he  gave  any  specific  decision  on  it.  It  may  be  that  he  said 
nothing  about  the  question  because  it  seemed  to  him  to  be  quite  clear, 


1118  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

and  if  that  were  so  he  would  not  have  found  the  fact  in  favour  of  the 
defendants;  or  he  may  have  inadvertently  omitted  to  refer  to  the 
point,  in  which  case  it  would  be  open  to  us  to  deal  with  it.  If  I 
had  had  to  decide  this  point  as  a  question  of  fact  I  should  have 
thought  it  necessary  that  the  plaintiff  should  be  asked  more  questions 
than  he  was  asked  in  cross-examination.  It  is  clear  from  his  evi- 
dence that  he  knew  there  was  some  danger,  but  the  contention  on  be- 
half of  the  defendants,  that  this  circumstance  is  sufficient  to  entitle 
them  to  succeed,  entirely  gives  the  go-by  to  the  observations  of  Lord 
Esher,  M.  R.,  in  Yarmouth  v.  France,  19  O.  B.  D.  at  p.  657,  which 
I  have  already  quoted,  and  those  of  Bowen,  L.  J.,  in  Thomas  v. 
Ouartermaine,  18  O.  B.  D.  at  p.  696,  which  were  referred  to  in  the 
course  of  the  argument.  Those  observations  go  far  to  make  it  hard 
for  a  defendant  to  succeed  on  such  a  defence  as  that  relied  on  here, 
for  it  is  probable  that  juries  would  often  find  for  plaintiffs  on  the 
ground  that  they  had  not  full  knowledge  of  the  nature  and  extent 
of  the  risk,  but  that  cannot  be  helped.  These  judgments  introduce 
an  important  qualification  of  the  maxim  "Volenti  non  fit  injuria." 

In  the  present  case  the  plaintiff  may  well  have  misapprehended 
the  extent  of  the  difficulty  and  danger  which  he  would  encounter  in 
descending  the  steps ;  for  instance,  he  might  easily  be  deceived  as 
to  the  condition  of  the  snow;  I  know  quite  enough  about  ice  and 
snow  to  know  how  easy  it  is  to  make  such  a  mistake,  and  it  is  one 
that  has  cost  many  a  man  his  life.  In  order  to  succeed  the  defend- 
ants should  have  gone  further  in  cross-examination,  for,  unless  the 
question  of  fact  had  been  found  in  their  favour,  the  application  of  the 
maxim  on  which  they  relied  could  not  be  established.  The  County 
Court  Judge  has  not  found  the  fact  the  defendants  need;  and  upon 
the  present  materials  I  certainly  am  not  prepared  to  supply  the  de- 
ficiency. 

For  these  reasons,  the  onus  of  proof  being  on  the  defendants,  I 
think  that  on  the  evidence  as  it  stands  their  defence  is  not  made  out, 
and  therefore  their  appeal  must  be  dismissed.*^ 

87  Part  of  the  opinion  of  Wills,  J.,  and  all  of  the  opinion  of  Grantham,  J., 
are  omitted. 

Compare  the  remark  of  Bowen,  L.  J.,  in  Thomas  v.  Quartermaine  (1887)  18 
Q.  B.  D.  nSo,  C96:  "It  is  no  doubt  true  that  the  knowledge  on  the  part  of 
the  injured  i)erson  which  will  prevent  him  from  alleging  negligence  against 
the  occupier  must  be  a  knowledge  under  such  circumstances  as  leads  neces- 
sarily to  the  conclusion  that  the  whole  risk  was  voluntarily  incurred.  The 
maxim,  be  it  observed,  is  not  'scienti  non  fit  injin-ia,*  but  'volenti.'  It  is  plain 
that  mere  knowledge  may  not  be  a  conclusive  defence." 

And  see  1  Boven's  Negligence  (3d  Ed.)  G32:  "It  [the  maxim  'Volenti  non  fit 
injuria']  is  found  also  in  the  Cancm  Law ;  whore  it  appears  in  the  form 
'Scienti  et  consentienti  non  fit  injuria  neque  dolus.'  This  is  a  notable  tes- 
timony to  Bowen,  L,  J.'s  legal  insight,  according  exactly  with  his  obser- 
vation that  the  'maxim  is  not  "scienti  non  fit  injuria,"  but  "volenti" ' ;  that 
'mere  knowledge  may  not  be  a  conclusive  defence.'  " 

Accord:  Ward  v.  Dampskibselskabet  Kjoebenbaven  (D.  C,  190r>)  186  Fed. 
502:  (The  plaintiff's  intestate,  Dr.  Ward,  wont  on  board  the  defendant's 
steamship,  lying  at  quarantine,  in  the  performance  of  his  duty  as  quaran- 


Ch.  1)  NEGLIGENCI  1119 

WRIGHT  V.  CITY  OF  ST.  CLOUD. 

(Supreme  Court  of  Minnesota,  1893.     54  Minn.  94,  55  N.  W.  819.) 

Action  against  the  city  of  St.  Cloud  to  recover  for  a  personal  in- 
jury received  by  the  plaintiff  through  the  alleged  negligence  of  the 
defendant.     The  plaintiff  had  judgment;    the  defendant  appeals. 

Mitchell,  J.  This  was  an  action  to  recover  damages  for  personal 
injuries  caused  by  the  alleged  negligence  of  the  defendant,  in  permit- 
ting snow  and  ice  to  accumulate  and  remain  upon  a  public  sidewalk 
so  as  to  render  it  unsafe  for  travel.  The  only  question  is  whether 
the  evidence  justified  the  verdict.  The  accident  occurred  in  the  lat- 
ter part  of  February,  in  the  residence  part  of  the  city,  about  seven 
squares  from  its  business  center.  Abutting  this  part  of  the  sidewalk 
there  was  unoccupied  property  about  80  feet  in  width.  On  either 
side  the  occupants  had  kept  the  sidewalk  in  good  order,  but  opposite 
this  property  the  snow  had  not  been  removed  during  the  entire  win- 
ter, and  the  result  was  that  it  had  gradually  accumulated  to  the  depth 
of  from  one  to  two  feet,  tTirough  which  pedestrians  had  trodden  a 
narrow,  irregular  path.  As  the  result  of  successive  falls  and  drifting 
of  snow,  and  alternate  thawing  and  freezing,  in  connection  with  the 
continual  travel,  this  path  had  become  quite  rough,  uneven,  and  icy, 
having  gradually  grown  worse  as  the  winter  advanced.  As  different 
witnesses  described  it,  "it  had  hollowed  out,  and  left  ridges ;"  "the 
humps,  holes,  and  hollows  were  quite  noticeable;"    "it  had  hollowed 

tine  phj-sician.  It  was  at  night,  dark  and  misty.  The  hatches  of  the  ship 
were  open,  for  she  was  coaling,  which  was  unusual  at  night.  After  performing 
his  duties,  Dr.  Ward,  with  the  master  of  the  vessel  and  a  Capt.  Bellevou, 
who  was  superintending  the  coaling  of  the  vessel,  started  to  return  from  the 
cabin  aft  by  the  open  hatch,  and  after  walking  about  12  feet  were  stopped  to 
IJermit  the  workmen  to  pass  a  bucket  of  coal  to  the  hatch.  The  open  hatch 
was  about  40  feet  from  the  master's  cabin,  3  feet  wide  by  5  feet  long,  and 
the  passageway  between  it  and  the  rail  on  the  starboard  side  was  2  feet  5% 
inches  wide  at  its  narrowest  and  2  feet  11%  inches  at  the  widest  point. 
At  a  point  2  feet  4  inches  aft  the  aft  end  of  the  open  hatch,  a  smokestack  guy, 
fastened  to  the  deck  near  the  rail,  led  off  toward  the  port  side  at  an  angle 
requiring  a  man  either  to  stoop  or  move  in  the  direction  of  the  open  hatch 
to  pass  under  it.  After  stopping  to  permit  the  bucket  of  coal  to  pass,  Capt. 
Bellevou  and  the  doctor  continued  their  return  journey,  the  master  remaining 
behind.  The  captain  was  slightly  in  the  rear  of  the  doctor,  and  nearer  the 
rail,  and  had  his  hand  upon  the  doctor's  shoulder.  As  they  neared  the 
hatch,  Capt.  Bellevou  said  to  him,  "Doctor,  be  careful ;"  he  answered,  "That 
is  all  right."  The  captain  again  said,  "Doctor,  mind  the  hatch ;"  and  he  re- 
sponded, "That's  all  right,  captain."  They  had  proceeded  to  the  aft  end  of 
the  hatch,  when  Dr.  Ward  stepped  into  the  open  hatchway,  and  fell  35  feet 
to  the  bottom  of  the  vessel.  The  hatch  coverings  had  been  placed  in  the 
passageway  over  which  they  traveled,  filling  the  passage  nearly  to  the  top 
coaming  of  the  hatch.  Dr.  Ward  had  been  on  the  vessel  before  in  his  official 
capacity,  but  was  not  thoroughly  acquainted  with  its  arrangement.  He  had 
been  told  the  hatch  was  open,  and  no  doubt  saw  it,  but  under  circumstances 
with  no  liglit  shining  out  of  the  hatch  to  show  him  exactly  the  dimeu>sions 
and  extent  of  the  opening,  and  only  a  diffused  light  above,  the  rays  of  which 
were  not  especially  directed  to  the  opening,  and  so  located  as  to  rather  blind 
the  inexperienced.) 


1120  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

out  places  sort  of  sidling  and  saucer  shaped ;"  "was  full  of  holes  and 
hummocks  from  two  to  four  inches  deep ;"  "the  bottom  was  un- 
even and  sidling."  These  and  similar  descriptions  clearly  photograph 
in  the  mind  of  any  one  familiar  with  such  things  a  distinct  picture 
of  the  irregular  and  uneven  path  trodden  by  pedestrians  through 
snow  as  frequently  seen  on  neglected  sidewalks,  in  the  winter  time, 
in  the  residence  portions  of  most  towns,  the  condition  of  which  grows 
gradually  worse  as  the  winter  advances.  About  noon  on  a  some- 
what cold,  but  bright  and  pleasant,  day,  the  plaintiff  was  traveling 
this  walk,  on  her  way  home  from  church.  She  had  not  traveled  this 
side  of  the  street  that  winter,  and  had  no  previous  knowledge  of  its 
condition.  On  reaching  this  part  of  the  walk  she  admits  that  she 
looked  at  it,  and  saw  its  condition  before  she  started  across.  She 
says  she  "had  no  idea  it  was  as  bad  as  it  was,"  but  it  is  impossible, 
under  the  circumstances,  that  she  did  not  see  and  understand  its  gen- 
eral character,  and  the  consequent  difficulty  in  traveling  it,  and  the 
danger  of  slipping  and  falling  in  doing  so.  In  fact  she  admits  that 
she  saw  these  ridges  and  hollows,  and  that  it  occurred  to  her,  the 
minute  she  reached  it,  that  it  was  a  dangerous  place  to  walk.  She 
knew  that  the  sidewalk  on  the  opposite  side  of  the  street  (on  which 
her  residence  was)  was  in  good  condition,  and  that  she  could  entirely 
avoid  the  danger  by  retracing  her  steps  100  feet  to  a  street  crossing, 
and  going  over  to  the  other  side  of  the  street;  but  instead  of  doing 
so  she  proceeded,  and,  in  going  across,  slipped  and  fell,  and  sustained 
the  injuries  complained  of.  The  defendant's  contentions  are  (1) 
that  there  was  no  evidence  of  its  negligence;  and  (2)  that  the  evidence 
conclusively  showed  that  the  plaintiff  was  guilty  of  contributory  neg- 
ligence.    *     *     * 

But  conceding,  what  we  think  the  evidence  tends  to  show,  that  the 
city  was  negligent,  we  think  it  also  appears  clearly  that  the  plaintiff 
herself  was  lacking  in  ordinary  care.  We  have  held,  in  common  with 
every  other  court,  that  the  mere  fact  that  a  person  attempts  to  travel 
a  highway  after  notice  that  it  is  out  of  repair  is  not  necessarily  neg- 
ligence ;  that  this  depends  on  circumstances.  Erd  v.  City  of  St.  Paul, 
22  Minn.  443 ;  Estelle  v.  Village  of  Lake  Crystal,  27  Minn.  243,  6 
N.  W.  775 ;  Kelly  v.  Railway  Co.,  28  Minn.  98,  9  N.  W.  588 ;  Mc- 
Kenzie  v.  City  of  Northfield,  30  Minn.  456,  16  N.  W.  264;  Nichols 
v.  Minneapolis,  33  Minn.  430,  23  N.  W.  868,  53  Am.  Rep.  56.  But 
none  of  these  cases  were  altogether  analogous  in  their  facts  to  the 
present  one.  In  all  of  them  it  will  be  found  either  that  the  traveler 
had  no  other  practicable  road,  and  had  either  to  pass  over  the  de- 
fective way,  or  abandon  his  journey,  or  that,  although  aware  that 
the  road  or  walk  was  out  of  repair,  he  had  no  knowledge  of  the  ex- 
istence of  the  particular  defect  which  caused  the  injury,  or  that  the 
accident  occurred  in  the  dark,  and  that  the  traveler,  although  having 
previous  knowledge  of  the  situation,  had  not  presently  in  mind  the 
existence  of  the  defect,  or  the  consequent  risk.     But  in  the  present 


Ch.  1)  NEGLIGENCE  1121 

case,  while  plaintiff  might  not  have  known  of  the  existence  or  location 
of  any  particular  hollow  or  hole  in  this  path,  it  is  very  clear  from 
her  own  testimony  that  she  had  full  and  present  knowledge  of  the 
precise  condition  of  this  part  of  the  sidewalk,  and  of  the  risk  in- 
cident to  traveling  over  it.  The  only  risk  was  that  of  slipping  and 
falling,  and  that  was  perfectly  patent  to  any  one  of  ordinary  intel- 
ligence. She  simply  overestimated  her  own  ability  to  travel  across 
it  without  falling.  There  was  no  necessity  of  her  going  over  the 
defect,  but  she  could  have  easily,  and  without  appreciable  incon- 
venience, have  avoided  it,  by  going  across  to  the  other  side  of  the 
street,  where  the  walk  was  perfectly  safe.  Under  such  circumstances 
she  was  not  in  the  exercise  of  reasonable  care,  but  must  be  presumed 
to  have  taken  her  chances,  and  having  done  so,  and  an  injury  having 
resulted,  she  cannot  recover  from  the  city.  No  different  rule  as  to 
contributory  negligence,  or  assumption  of  risks,  whichever  it  is  called, 
is  to  be  applied  from  that  which  would  be  applied  to  any  other  case; 
and,  if  the  plaintiff  had  exercised  half  as  much  care  for  her  own  safety 
as  she  exacts  from  the  city  for  the  safety  of  travelers,  the  accident 
would  never  have  occurred.  Wilson  v.  City  of  Charlestown,  8  Allen 
(Mass.)  137,  85  Am.  Dec.  693 ;  Schaefler  v.  Sandusky,  33  Ohio  St. 
246,  31  Am.  Rep.  533 ;  Horton  v.  Inhabitants  of  Ipswich,  12  Cush. 
(Mass.)  488;  City  of  Quincy  v.  Barker,  81  111.  300,  25  Am.  Rep.  278. 
Judgment  reversed.^® 


MALOY  V.  CITY  OF  ST.  PAUL.     :«^^ 

(Supreme  Court  of  Minnesota,  1893.     54  Minn.  398,  56  N.  W.  94.) 

Action  against  the  city  of  St.  Paul  to  recover  for  a  personal  in- 
jury received  by  the  plaintiff  because  of  a  defective  sidewalk.  Plain- 
tiff had  a  verdict,  and  appeals  from  an  order  granting  a  new  trial. 

Collins,  j.  *  *  *  fhe  defect  was  in  the  walk  in  front  of  the 
lot  on  which  plaintiff  resided  with  her  husband,  and  close  by  their 
dwelling.  The  planks  in  the  walk  at  this  particular  point  had  been 
laid  lengthwise,  and  one  had  been  broken  down,  so  that  there  was  a 
hole  about  18  inches  long  and  about  6  inches  in  width,  at  the  widest 
place.  The  walk  had  been  laid  6  inches  above  the  surface  of  the 
ground.  It  had  been  in  this  defective  condition  for  more  than  three 
months,  and  plaintiff  had  known  of  this  all  of  the  time.  She  had 
passed  by  this  break  or  hole  daily  for  more  than  two  months  prior 
to  the  evening  of  this  accident,  carefully  avoiding  the  dangerous  place. 
When  the  accident  occurred,  there  was  a  light  snow  upon  the  walk, 
partly  filling  the  hole,  and  the  snow  was  still  falling.  About  dark, 
plaintiff,  who  was  50  years  of  age,  having  occasion  to  go  to  a  neigh- 
bor's went  out  on  the  walk,  and,  stepping  into  the  hole,  was  thrown 

»8  Part  of  the  opinion  is  omitted. 
Hepb.Toets — 71 


1122  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

down,  thus  receiving  the  injuries  complained  of.  She  testified  that 
the  falling  snow  was  blown  into  her  eyes  so  that  her  vision  was  ob- 
structed, and  also  that  she  did  not  think  of  the  defect  as  she  walked 
along.  It  did  not  appear  from  the  testimony  that  there  was  anything 
to  distract  her  attention,  and,  because  there  was  nothing  justifying 
or  excusing  inattention  to  the  well-known  condition  of  the  walk,  the 
court  below  ordered  a  new  trial. 

In  accordance  with  the  prevailing  rule  everywhere,  it  has  again  and 
again  been  held  by  this  court  that  previous  knowledge  of  tbe  condi- 
tion of  a  street  or  sidewalk  is  not  conclusive  evidence  of  contributory 
negligence,  so  as  to  bar  a  recovery  by  a  person  injured  in  conse- 
quence of  its  being  out  of  repair ;  and  the  cases  were  collated  very 
recently  in  Wright  v.  City  of  St.  Cloud,  54  Alinn.  94,  55  N.  W.  820, 
in  which  a  recovery  was  denied  because  it  was  apparent  from  plain- 
tiff's own  testimony  that  she  had  full  and  present  knowledge  of  the 
exact  condition  of  the  walk,  and  the  risk  incident  to  traveling  upon 
it,  and  could  easily  have  avoided  it,  and  simply  overestimated  her 
own  ability  to  go  across,  in  broad  daylight,  without  falling.  On  the 
facts  the  case  at  bar  is  not  analogous.  The  defect  here  was  not  such 
as  would  or  should  have  turned  the  prudent  traveler  off  from  the 
walk  to  seek  a  better  route.  The  accident  happened  in  the  evening, 
when  the  snow  was  falling,  blowing,  and  to  some  extent  obscuring 
the  vision  of  the  plaintiff,  and  filling  the  hole  in  the  walk.  Although 
advised  of  the  defect,  she  did  not  have  it  presently  in  mind.  Nor 
is  it  necessary  that  the  thoughts  of  a  traveler  should  be  at  all  times 
fixed  upon  aefects  in  the  street  or  sidewalk,  of  which  he  may  have 
notice.  George  v.  Haverhill,  1 10  Mass.  506 ;  Barton  v.  City  of  Spring- 
field, 110  Mass.  131.  It  is  certain  that  previous  knowledge  of  the 
existence  of  a  defect  has  an  important,  and  oftentimes  a  decisive, 
bearing  upon  the  question  of  contributory  negligence ;  but  mere  in- 
attention to  a  known  danger,  on  the  part  of  this  plaintiff,  cannot  be 
held  to  conclude  her.     *     *     * 

Order  reversed.^® 


/  JUDSON  v.  GIANT  POWDER  CO. 

(Supreme  Court  of  Califoraia,  1S95.     107  Cal.  549,  40  Pac.  1020, 
29  L.  R.  A.  718,  48  Am.  St.  Rep.  146.) 

In  an  action  against  the  Powder  Company  for  damages  caused  by 
explosion  resulting  from  its  alleged  negligence,  the  plaintiff'  below  re- 
covered judgment  for  $41,165.75.  From  this  judgment,  and  an  or- 
der denying  a  motion  for  a  new  trial,  the  Powder  Company  appeals. 

Garoutte,  j.  *  *  *  The  damages  to  respondents'  property 
were  occasioned  by  an  explosion  of  nitro-glycerine,  in  process  of  man- 

99  Parts  of  the  opinion  are  omitted. 


Ch.  1)  NEGLIGENCE  1123 

ufacture  into  dynamite,  in  appellant's  powder  factory,  situated  upon 
the  shore  of  the  bay  of  San  Francisco.  Appellant's  factory  build- 
ings were  arranged  around  the  slope  of  a  hill  facing  the  bay.  Near- 
est to  respondents'  property  was  the  nitro-glycerine  house ;  next  was 
the  washing-house;  next  were  the  mixing  houses;  then  came  the 
packing-houses,  and  finally  the  two  magazines  used  for  storing  dyna- 
mite. These  various  buildings  were  situated  from  50  to  150  feet 
apart,  and  a  tramway  ran  in  front  of  them.  The  explosion  occurred 
in  the  morning  during  working  hours,  and  originated  in  the  nitro- 
glycerine house.  There  followed,  within  a  few  moments  of  time, 
in  regular  order,  the  explosion  of  the  other  buildings,  the  two  maga- 
zines coming  last ;  but,  though  last,  they  were  not  least,  for  their  ex- 
plosion caused  the  entire  downfall  and  destruction  of  respondents' 
factory,  residences,  and  stock  on  hand.  There  is  no  question  but 
that  the  cause  of  this  series  of  explosions  following  the  first  is  directly 
traceable,  by  reason  of  fire  or  concussion,  to  the  nitro-glycerine  ex- 
plosion. Of  the  many  employes  of  appellant  engaged  in  and  about 
the  nitro-glycerine  factory  at  the  time  of  the  disaster  none  were  left 
to  tell  the  tale.  Hence,  any  positive  testimony  as  to  the  direct  cause 
of  the  explosion  is  not  to  be  had.  The  witnesses  who  saw  and  knew, 
like  all  things  else  around,  save  the  earth  itself,  were  scattered  to  the 
four  winds. 

1.  Respondents  sold  the  premises  to  appellant  for  the  manufacture 
of  dynamite,  and  it  is  claimed  that  the  maxim,  Volenti  non  fit  injuria, 
applies,  and  therefore  no  recovery  can  be  had.  We  attach  but  little 
importance  to  this  contention.  The  grant  of  these  premises  for  the 
purpose  of  a  dynamite  factory  in  no  way  carried  to  appellant  the 
right  tO'  conduct  its  factory,  as  against  the  grantors,  in  any  and  every 
way  it  might  see  fit.  There  is  no  principle  of  law  sustaining  such  a 
proposition.  Let  it  be  conceded  that  respondents,  by  reason  of  their 
grant,  could  not  invoke  the  aid  of  a  court  of  equity  to  prevent  the 
appellant  from  conducting  its  business ;  still  that  concession  proves 
nothing.  This  action  is  not  based  upon  the  theory  that  appellant's 
business  is  a  nuisance  per  se,  but  negligence  in  the  manner  in  which 
the  business  was  conducted  was  alleged  in  the  complaint,  and  is  now 
insisted  upon  as  having  been  proved  at  the  trial.  In  making  the  grant 
respondents  had  a  right  to  assume  that  due  care  would  be  exercised 
in  the  conduct  of  the  business,  and  certainly  they  have  a  right  to 
demand  that  such  care  be  exercised. 

It  is  argued  that  the  explosion  of  all  powder-works  is  a  mere  mat- 
ter of  time;  that  such  explosions  are  necessarily  contemplated  by 
every  one  who  builds  beside  such  works,  or  who  brings  dynamite  into 
his  dooryard.  It  is  further  contended  that  appellant  gave  to  respond- 
ents actual  notice  of  the  dangerous  character  of  its  business  by  a 
previous  explosion,  which  damaged  respondents'  property,  and  that 
respondents,  by  still  continuing  in  business  after  such  notice,  in  a 
degree  assumed  and  ratified  the  risk,  and  cannot  now  be  heard  to  com- 


1124:  TOKTS  THROUGH  ACTS  OP  CONDITIONAL  LIABILITY         (Part  3 

plain.  The  only  element  of  strength  in  this  line  of  argument  is  its 
originality.  The  contention  that  in  the  ordinary  course  of  events  all 
powder-factories  explode,  conceding  such  to  be  the  fact,  presents  an 
element  foreign  to  the  case.  The  doctrine  of  fatalism  is  not  here 
involved.  In  the  ordinary  course  of  events  the  time  for  this  exjilo- 
sion  had  not  arrived,  and  appellant  had  no  legal  right  to  hasten  that 
event  by  its  negligent  acts.  Neither  do  we  think  respondents  lost 
any  legal  rights  by  continuing  to  do  business  in  this  locality  after 
being  served  with  notice  of  the  danger  that  surrounded  them.  While 
the  notice  was  in  the  form  of  an  object  lesson,  which  came  to  them 
in  no  uncertain  tones,  yet  appellant  was  not  justified  in  serving  it, 
nor  were  respondents  negligent  in  disregarding  it.  Respondents  were 
not  bound  to  abandon  their  property,  though  negligence  of  appellant 
in  the  conduct  of  his  factory  was  ever  a  menace  and  danger  to  their 
lives  and  property.  Conceding  that  respondents,  by  their  grant,  there- 
by assumed  certain  risks  and  dangers  which  may  be  said  to  always 
surround  the  manufacture  of  dynamite,  still  they  assumed  no  risks 
and  waived  no  action  for  damages  which  might  arise  through  appel- 
lant's negligence.  Both  reason  and  authority  support  this  conclu- 
sion.    *     *     *  1 

Judgment  and  order  affirmed. 


MAGAR  V.  HAMMOND. 

(Court  of  Appeals  of  New  York,  1902.    171  N.  Y.  377,  64  N.  E.  150, 

59  L.  K.  A.  315.) 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court,  affirming  a  judgment  in  favor  of  plaintiff  entered  upon  a  ver- 
dict and  an  order  denying  a  motion  for  a  new  trial. 

O'Brien,  J.  There  is  very  little  dispute  with  respect  to  the  lead- 
ing and  important  facts  of  this  case,  but  the  rule  of  law  to  be  ap- 
plied to  the  facts  is  not  so  clear.  The  defendant  Hammond  and  his 
servant  have  been  sued  jointly  in  an  action  based  upon  a  personal 
injury  that  the  plaintiff  sustained  resulting  from  the  servant's  negli- 
gence, as  is  claimed.  The  jury  rendered  a  verdict  for  the  plaintiff'  of 
$15,000  and  the  judgment  has  been  unanimously  affirmed  below. 

In  the  year  1893  Hammond  purchased  over  three  hundred  acres 
of  wild  forest  land  in  Sullivan  county.  By  damming  up  small  streams 
or  springs  and  other  operations  he  created  an  artificial  lake  upon  the 
property  of  considerable  dimensions.  There  was  some  low  land  free 
from  timber  which  it  seems  furnished  a  natural  bed   for  the  lake, 

1  In  the  omitted  portion  of  tlie  opinion,  tlie  court  reaches  the  conclusion, 
after  an  elaborate  consideration  of  authority,  tliat  although  all  the  witnesses 
of  the  accident  liad  "been  scattered  to  the  four  winds,"  there  was  still  a 
prima  facie  case  of  negligence,  in  the  principle  of  res  ipsa  loquitur. 


Ch.  1)  NEGLIGENCE 


1125 


and  it  was  surrounded  by  a  dense  growth  of  timber  and  bushes.  Hav- 
ing created  the  lake  he  proceeded  to  stock  it  with  trout.  It  seems 
that  it  was  impossible  for  the  fish  to  get  into  the  lake  through  the 
dams  on  the  surrounding  springs  or  streams,  but  the  fish  were  propo- 
gated  by  artificial  means,  and  it  became  an  industry  that  produced 
some  revenue  to  the  owner  by  selling  the  trout  and  permitting  peo- 
ple to  fish  there  for  a  compensation.  He  also  built  a  house,  boat- 
house  and  hatchery  for  trout  spawn,  in  which  it  is  said  two  million 
of  the  same  were  produced  annually.  He  had  to  employ  men  to 
attend  to  the  hatchery  and  otherwise  in  and  about  the  property,  and 
to  prevent  vermin  from  destroying  the  eggs.  He  prepared  and  posted 
notices  around  the  tract  to  warn  off  trespassers,  as  prescribed  by  the 
statutes  of  the  state. 

The  owner's  co-defendant  in  this  action  was  the  night  watchman, 
whose  business  it  was  to  be  on  the  lake  at  night  to  protect  the  fish 
from  poachers  and  wild  animals  that  frequently  came  to  the  place 
to  take  the  fish.  The  owner  had  two  guns,  one  a  shotgun  and  the 
other  a  rifle.  The  watchman  had  been  in  the  habit  of  carrying  one 
or  the  other  of  the  guns  with  him  when  on  the  lake  in  a  boat  for 
the  purpose  of  killing  muskrats,  mink  and  other  animals  about  the 
lake.  He  sometimes  fired  into  the  air  in  order  to  frighten  off  poach- 
ers. On  the  9th  day  of  June,  1899,  the  plaintiff  and  two  other  young 
men  went  to  the  lake  to  take  fish,  and  were  there  after  10  o'clock 
in  the  evening,  the  night  being  very  dark.  They  did  some  fishing 
and  retired  into  the  thick  woods  on  the  shore.  It  does  not  appear 
that  the  watchman  had  seen  them  or  knew  that  they  had  been  fish- 
ing, but  the  crackling  of  the  brush  in  the  woods  indicated  to  him  that 
some  one  was  there,  or  at  least  the  jury  could  have  so  found.  There 
is  no  claim  that  the  watchman  knew  that  the  plaintiff'  was  in  the 
woods,  but  there  was  some  evidence  tending  to  show  that  he  knew 
or  should  have  known  that  some  human  being  was  there,  and  the 
verdict  affirms  this  proposition.  The  watchman  had  the  rifle,  and 
on  hearing  the  noise  in  the  woods  fired  at  least  three  shots  in  the 
direction,  and  one  of  the  bullets  struck  the  plaintiff  in  the  hip,  in- 
flicting a  very  serious  if  not  permanent  injury.  The  master  was  not 
present  and  knew  nothing  of  the  transaction,  but  he  did  know  that 
the  guns  were  on  the  premises  and  that  the  watchman  was  accus- 
tomed to  use  them  in  the  manner  and  for  the  purposes  described, 
and  if  he  is  responsible  at  all  for  the  act  of  the  servant  it  must  be 
implied  from  these  facts. 

There  were  several  propositions  decided  by  the  learned  trial  judge 
at  the  close  of  the  case,  which  for  all  the  purposes  of  this  appeal 
must  be  treated  as  the  law  of  the  case.  He  ruled  that  there  was  no 
question  for  the  jury  and  it  could  not  be  found  that  the  shooting  was 
willful  or  malicious,  and  the  only  question  was  whether  the  watchman 
was  negligent  and  the  owner  responsible  for  such  negligence.  He 
instructed  the  jury  that  the  plaintiff  was  guilty  of  a  crime  in  going 


1126  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

upon  the  defendant's  premises  to  fish  in  the  manner  described,  and 
that  the  defendant  owed  him  no  duty  except  to  refrain  from  inten- 
tionally doing  him  an  unnecessary  injury  or  an  injury  through  wanton 
or  reckless  negligence;  that  the  owner  gave  no  express  authority  to 
the  watchman  to  shoot  at  any  human  being,  but  on  the  contrary  or- 
dered him  not  to  shoot  at  any  human  being,  and  that  there  was  no 
evidence  that  it  was  within  the  scope  of  his  employment  to  so  shoot; 
that  there  was  no  evidence  in  the  case  that  either  of  the  defendants 
intended  or  desired  to  injure  any  human  being  or  expected  that  the 
shooting  would  result  in  such  injury.  The  theory  upon  which  the 
case  was  submitted  to  the  jury  will  clearly  appear  by  the  following 
passage  from  the  charge : 

"Now  the  question  which  I  will  leave  to  you  in  this  case,  gentle- 
men, is  this,  and  I  hope  you  will  understand  it:  Did  this  man  Tomp- 
kins, when  he  fired  in  the  night  and  into  the  woods  as  he  did,  have 
reason  to  believe  that  there  were  human  beings  there,  or  did  he  in 
fact  know  they  were  there?  Did  he  know,  when  he  fired  into  the 
woods  as  he  did,  that  human  beings  were  where  he  fired,  or  by  the 
exercise  of  ordinary  care  could  he  have  ascertained  from  what  has 
been  described  here  as  having  happened,  that  human  beings  were 
there,  and  knowing  they  were  there,  or  having  the  ability  to  find  out 
by  the  exercise  of  ordinary  care,  did  he,  notwithstanding  that,  wan- 
tonly, recklessly,  fire  in  the  direction  where  these  human  beings  were? 
That  is  the  vital  question  in  this  case.  Because,  as  I  have  stated,  this 
defendant  had  a  right  to  have  a  watchman.  The  watchman  had  a 
right  to  have  a  gun.  He  had  a  right  to  have  a  rifle  loaded  with  a 
bullet.  He  had  a  right  to  fire  his  gun  in  the  night  anywhere  and  as 
often  as  he  pleased  on  his  own  land.  But  did  Tompkins,  when  he 
fired  on  that  occasion,  know  he  was  firing  where  there  were  human 
beings,  or  in  the  immediate  proximity  of  where  there  were  human 
beings,  and  knowing  that,  or  being  able  to  find  it  out  by  the  exercise 
of  ordinary  care,  did  he  still,  recklessly  and  wantonly,  discharge  his 
bullet  in  the  direction  where  these  human  beings  were?" 

It  will  be  seen  that  the  learned  judge  excluded  from  the  jury  very 
important  elements  tending  to  support  the  plaintiff's  case.  Willful- 
ness, malice,  intention  to  injure  or  desire  or  motive  to  do  so,  express 
authority  from  the  owner  and  perhaps  other  elements  were  eliminated 
from  the  case.  It  is  not  very  plain  how  the  jury  could,  with  all  these 
elements  excluded,  have  found  that  the  shooting  was  wanton  or  reck- 
less, assuming  always  that  the  watchman  had  the  right  to  do  all  the 
things  that  the  court  held  that  he  had,  but  it  is  quite  likely  that  the 
form  in  which  the  case  comes  here  precludes  any  discussion  in  this 
court  upon  the  question.  There  is,  however,  an  exception  in  the  case 
that  we  think  is  fatal  to  the  judgment. 

The  defendants'  counsel  asked  the  court  to  instruct  the  jury  that 
if  the  plaintiff  knew  that  the  watchman  on  the  lake  was  in  the  habit 
of  discharging  a  gun  and  went  there  after  receiving  such  informa- 


Ch.  1)  NEGLIGE^•CE  1127 

tion  he  cannot  recover,  even  if  the  defendants  or  either  of  them  were 
neghgent,  and  that  if  the  plaintiff  knew  or  liad  heard  that  the  lake  was 
generally  protected  by  a  watchman  who  had  and  discharged  a  gun, 
there  could  be  no  recovery.  The  court  refused  to  so  charge,  and 
the  defendants'  counsel  excepted.  This  request  embodied  the  gen- 
eral rule  that  where  the  negligence  or  misconduct  of  the  injured 
party  is  a  contributing  cause  of  the  injury  he  cannot  recover,  even 
though  negligence  could  be  imputed  to  the  defendants.  With  all  the 
elements  to  which  reference  has  been  made  excluded  from  the  case, 
the  defendants  were  entitled  to  have  the  jury  instructed  that  if  the 
plaintiff  voluntarily  exposed  himself  to  a  known  danger  he  could 
not  recover  for  the  act  of  the  watchman,  though  this  act,  in  defense 
of  the  master's  property,  was  without  due  care,  and  that  is  the  fair 
construction  of  the  request.  There  was  proof  in  the  case,  aside  from 
the  statutory  notices  warning  intruders,  which  every  one  could  see, 
that  the  plaintiff  knew  what  other  precautions  the  defendants  had 
adopted  for  the  protection  of  their  property,  including  the  use  of 
firearms,  and  since  the  proposition  amounted  to  a  request  to  apply 
the  general  rule  of  law  to  these  facts  it  was  not  a  mere  abstract  one, 
but  was  applicable  to  the  proofs  in  the  case,  and  should  have  been 
given  to  the  jury.  It  follows  that  the  judgment  must  be  reversed 
and  a  new  trial  granted,  costs  to  abide  the  event. 
Judgment  reversed.^ 


DIXON  V.  NEW  YORK,  N.  H.  &  H.  R.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1910.    207  Mass.  126,  92  N.  E.  1030.) 

Tort  against  the  railway  company  for  personal  injuries  to  the  plain- 
tiff in  the  defendant's  freight  yard.  Coombs,  a  teamster,  had  law- 
fully driven  into  the  yard.  His  horse,  frightened  at  an  approaching 
engine,  w'as  rearing  and  plunging,  when  the  plaintiif  went  to  the  as- 
sistance of   Coombs,  and  received  the  injuries  complained  of.     The 

2  Parker.  C.  J.,  and  Gray,  Haight,  and  Vann,  JJ.  (Bartlett,  J.,  in  result) 
concur.    Martin,  J.,  not  voting. 

This  case  came  before  the  Court  of  Appeals  again,  in  1906.  Magar  v. 
Hammond  (1906)  18.3  N.  Y.  3S7.  76  N.  E.  474,  3  L.  R.  A.  (N.  S.)  1038.  Here 
Cullen,  C.  J.,  delivering  the  opinion,  remarked,  "On  the  previous  appeal  we 
reversed  the  judgment  recovered  because  of  the  refusal  of  the  trial  court 
to  submit  to  the  jury  the  question  of  the  plaintiff's  contributory  negligence. 
It  will  be  seen,  however,  on  an  examination  of  the  record  then  before  us,  that 
the  case  went  to  the  jury  on  the  theory  of  negligence,  and  that  the  question 
of  whether  such  a  theory  could  be  upheld  was  not  before  us.  If  the  defend- 
ants were  to  be  held  liable  for  negligence  we  held  that  to  that  liability  the 
plaintiff's  contributory  negligence  was  a  bar.  Under  the  views  that  we 
have  now  expressed,  however,  that  no  liability  of  the  defendants  can  be 
predicated  on  negligence,  the  contributory  negligence  or  positive  wrong  of  the 
plaintiff  in  trespassing  on  the  premises  becomes  immaterial,  for  it  was  not 
the  proximate  cause  of  the  injury  for  which  he  seeks  to  recover,  and  contrib- 
utory negligence  is  not  a  defense  to  a  willful  or  wanton  wrong." 


1128  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

first  count  charged  the  defendant  with  a  faiUire  to  use  reasonable 
care ;  the  second  count  charged  it  with  reckless  and  wanton  neg- 
ligence.    There  was   a  verdict  for  plaintifif;  the  defendant  excepts. 

Sheldon,  J,  The  jury  could  find  on  the  evidence  that  Coombs  was 
in  a  position  of  imminent  peril,  struggling  to  restrain  a  plunging  horse 
upon  or  close  to  a  track  of  the  defendant  upon  which  a  train  was 
approaching,  and  that  the  plaintiff  came  to  his  assistance  for  the  pur- 
pose of  rescuing  him  from  the  peril.  The  contention  of  the  defend- 
ant that  Coombs  was  endeavoring  merely  to  save  his  master's  prop- 
erty and  that  the  plaintiff  went  upon  the  track  for  the  sole  purpose 
of  assisting  Coombs  in  this  effort  was  for  the  jury  to  determine.  It 
was  not  necessarily  and  as  matter  of  law  a  trespass  or  a  negligent  act 
for  the  plaintiff  to  attempt  to  rescue  Coombs  from  the  impending 
danger,  even  at  the  risk  of  his  own  life.  It  was  for  the  jury  to 
say  whether  under  the  existing  circumstances  the  plaintiff's  act  was 
so  rash  and  reckless  as  to  preclude  a  finding  that  he  was  in  the  exer- 
cise of  due  care  and  was  justified  in  going  upon  the  track.  This  is 
the  doctrine  of  Linnehan  v.  Sampson,  126  Mass.  506,  30  Am.  Rep. 
692.  And  there  is  a  great  body  of  authority  in  other  courts  for  the 
proposition  that  it  may  not  be  negligence  for  one  not  acting  rashly  or 
recklessly  to  expose  himself  voluntarily  to  great  danger,  even  to  the 
risk  of  life  and  limb,  in  order  to  rescue  another  from  a  like  peril,  and 
that  such  a  voluntary  exposure  is  not  to  be  regarded  as  rash  or  reck- 
less if  there  appears  to  be  a  fair  chance  of  success,  whether  the  per- 
son in  danger  is  or  is  not  a  child  or  an  aged  or  decrepit  person,  and 
even  though  the  person  attempting  the  rescue  knows  that  it  involves 
great  hazard  to  himself  without  a  certainty  of  accomplishing  the  in- 
tended rescue.  The  leading  case  is  Eckert  v.  Long  Island  Railroad,  43 
N.  Y.  502,  3  Am.  Rep.  721,  and  57  Barb.  (N.  Y.)  555,  the  doctrine  of 
which  has  been  generally  followed.     *     *     *  3 

It  is  true,  as  was  held  in  Linnehan  v.  Sampson,  126  Mass.  506,  30 
Am.  Rep.  692,  and  in  many  of  the  other  cases  above  cited,  that  it  is 
for  the  jury  to  say,  upon  all  the  circumstances,  including  the  existing 
emergency  and  the  need  of  immediate  action  under  which  they  may 
find  that  the  plaintiff  acted,  whether  in  fact  his  conduct  was  that  of  a 
reasonably  prudent  man ;  and  it  may  be  that  the  judge  in  his  charge 
did  not  go  far  enough  in  requiring  the  jury,  upon  this  issue,  only  to 
find  whether  the  plaintiff  "saw  and  as  a  reasonable  man  believed  that 
Coombs  was  in  imminent  danger  of  his  life,"  and  "believed  that  he 
could  rescue  Coombs  and  at  the  same  time  avoid  danger  to  himself." 
But  it  is  not  clear  that  this  question  was  intended  to  be  saved ;  it  has 
not  been  argued  by  the  defendant;    and  we  need  not  consider  it. 

But  it  is  necessary  in  this  case,  as  in  all  similar  actions,  that  neg- 
ligence on  the  part  of  the  defendant  or  its  servants  should  be  shown, 
even  though  the  plaintiff  was  himself   free  from  all  blame.     Hirsch- 

8  Mr.  Justice  Sheldon  here  referred  to  a  large  number  of  authorities. 


Ch.  1)  NEGLIGENCE  1129 

man  v.  Dry  Dock  Railroad,  46  App.  Div.  621,  61  N.  Y.  Supp.  304; 
De  Mahy  v.  Morgan's  Louisiana  Co.,  45  La.  Ann.  1329,  14  South. 
61;  Spooner  v.  Delaware,  Lackawanna  &  Western  Railroad,  115  N. 
Y.  22,  21  N.  E.  696;  Evansville  &  Crawfordsville  Railroad  v.  Hiatt, 
17  Ind.  102;  Thomason  v.  Southern  Railway,  113  Fed.  80,  51  C.  C. 
A.  67.  In  such  a  case  as  this,  however,  it  is  enough  to  hold  the  de- 
fendant if  there  was  negligence  on  its  part  towards  either  Coombs  or 
the  plaintiff.  Maryland  Steel  Co.  v.  Marney,  88  Md.  482,  42  Atl.  60, 
42  L.  R.  A.  842,  71  Am.  St.  Rep.  441 ;  Saylor  v.  Parsons,  122  Iowa, 
679,  98  N.  W.  500,  64  L.  R.  A.  542,  101  Am.  St.  Rep.  283 ;  Donahoe 
V.  Wabash,  St.  Louis  &  Pacific  Railway,  83  Mo.  560,  53  Am.  Rep.  594. 
Its  negligence  towards  Coombs  will  be  treated  as  directly  inducing 
the  attempt  to  rescue  him  and  thereby  causing  the  injury  to  the  plain- 
tiff. Such  negligence  could  be  found  if  the  defendant  was  running 
its  train  in  a  manner  likely  to  cause  injury  to  any  one  properly  in 
that  vicinity.  That  was  the  only  negligence  that  was  shown  in  many 
of  the  cases  already  referred  to.  In  our  opinion  there  was  such  evi- 
dence here.  *  *  *  * 
Exceptions  overruled. 


PRIESTLEY  v.  FOWLER. 

(Court  of  Exchequer,  1837.    3  Mees.  &  W.  1,  49  R.  R.  495.) 

Case.  The  declaration  stated  that  the  plaintiff  was  a  servant  of  the 
defendant  in  his  trade  of  a  butcher;  that  the  defendant  had  desired 
and  directed  the  plaintiff,  so  being  his  servant,  to  go  with  and  take 
certain  goods  of  the  defendant's,  in  a  certain  van  of  the  defendant 
then  used  by  him,  and  conducted  by  another  of  his  servants,  in  carry- 
ing goods  for  hire  upon  a  certain  journey;  that  the  plaintiff,  in  pur- 
suance of  such  desire  and  direction,  accordingly  commenced  and  was 
proceeding  and  being  carried  and  conveyed  by  the  said  van,  with  the 
said  goods ;  and  it  became  the  duty  of  the  defendant,  on  that  occa- 
sion, to  use  due  and  proper  care  that  the  said  van  should  be  in  a 
proper  state  of  repair,  that  it  should  not  be  overloaded,  and  that  the 
plaintiff  should  be  safely  and  securely  carried  thereby;  nevertheless, 
the  defendant  did  not  use  proper  care  that  the  van  should  be  in  a 
sufficient  state  of  repair,  or  that  it  should  not  be  overloaded,  or  that 
the  plaintiff  should  be  safely  and  securely  carried  thereby,  in  con- 
sequence of  the  neglect  of  all  and  each  of  which  duties  the  van  gave 
way  and  broke  down,  and  the  plaintiff  was  thrown  with  violence  to  the 
ground,  and  his  thigh  was  thereby  fractured,  &c.     Plea,  Not  guilty. 

*  The  evidence  of  negligence  was  here  considered  bj'  the  Court.  It  appear- 
ed that  in  legal  effect  Coombs  and  the  plaintiff  were  invitees  in  the  defend- 
ant's freight  yard. 

Only  so  much  of  the  case  is  given  as  relates  to  the  first  count. 


1130  TORTS  THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

At  the  trial  before  Park,  J,,  at  the  Lincolnshire  Summer  Assizes, 
1836,  the  plaintifif,  having  given  evidence  to  show  that  the  injury- 
arose  from  the  overloading  of  the  van,  and  that  it  was  so  loaded  with 
the  defendant's  knowledge,  had  a  verdict  for  £100.  In  the  following 
Michaelmas  Term,  Adams,  Serjt,  obtained  a  rule  to  show  cause  why 
the  judgment  should  not  be  arrested,  on  the  ground  that  the  defendant 
was  not  liable  in  law,  under  the  circumstances  stated  in  the  declara- 
tion. 

Lord  Abinge;r,  C.  B.  This  was  a  motion  in  arrest  of  judgment, 
after  verdict  for  the  plaintiff,  upon  the  insufficiency  of  the  declaration. 
(His  Lordship  stated  the  declaration.)  It  has  been  objected  to  this 
declaration,  that  it  contains  no  premises  from  which  the  duty  of  the 
defendant,  as  therein  alleged,  can  be  inferred  in  law ;  or,  in  other 
words,  that  from  the  mere  relation  of  master  and  servant  no  contract, 
and  therefore  no  duty,  can  be  implied  on  the  part  of  the  master  to 
cause  the  servant  to  be  safely  and  securely  carried,  or  to  make  the 
master  liable  for  damage  to  the  servant,  arising  from  any  vice  or  im- 
perfection, unknown  to  the  master,  in  the  carriage,  or  in  the  mode 
of  loading  and  conducting  it.  For,  as  the  declaration  contains  no 
charge  that  the  defendant  knew  any  of  the  defects  mentioned,  the 
Court  is  not  called  upon  to  decide  how  far  such  knowledge  on  his  part 
of  a  defect  unknown  to  the  servant,  would  make  him  liable. 

It  is  admitted  that  there  is  no  precedent  for  the  present  action  by  a 
servant  against  a  master.  We  are  therefore  to  decide  the  question 
upon  general  principles,  and  in  doing  so  we  are  at  liberty  to  look  at 
the  consequences  of  a  decision  the  one  way  or  the  other. 

If  the  master  be  liable  to  the  servant  in  this  action,  the  principle  of 
that  liability  will  be  found  to  carry  us  to  an  alarming  extent.  He  who 
is  responsible  by  his  general  duty,  or  by  the  terms  of  his  contract,  for 
all  the  consequences  of  negligence  in  a  matter  in  which  he  is  the  prin- 
cipal, is  responsible  for  the  negligence  of  all  his  inferior  agents.  If 
the  owner  of  the  carriage  is  therefore  responsible  for  the  sufficiency 
of  his  carriage  to  his  servant,  he  is  responsible  for  the  negligence  of 
his  coach-maker,  or  his  harness-maker,  or  his  coachman.  The  foot- 
man, therefore,  who  rides  behind  the  carriage,  may  have  an  action 
against  his  master  for  a  defect  in  the  carriage  owing  to  the  neg- 
ligence of  the  coach-maker,  or  for  a  defect  in  the  harness  arising 
from  the  negligence  of  the  harness-maker,  or  for  drunkenness,  neg- 
lect, or  want  of  skill  in  the  coachman ;  nor  is  there  any  reason  why 
the  principle  should  not,  if  applicable  in  this  class  of  cases,  extend  to 
many  others.  The  master,  for  example,  would  be  liable  to  the  serv- 
ant for  the  negligence 'of  the  chambermaid,  for  putting  him  into  a 
damp  bed;  for  that  of  the  upholsterer,  for  sending  in  a  crazy  bed- 
stead, whereby  he  was  made  to  fall  down  while  asleep  and  injure  him- 
self; for  the  negligence  of  the  cook,  in  not  properly  cleaning  the 
coi)per  vessels  used  in  the  kitchen ;  of  the  butcher,  in  supplying  the 
family  with  meat  of  a  quality  injurious  to  the  health;   of  the  builder, 


Ch.  1)  NEGLIGENCE  1131 

for  a  defect  in  the  foundation  of  the  house,  whereby  it  fell,  and  injured 
both  the  master  and  the  servant  by  the  ruins. 

The  inconvenience,  not  to  say  the  absurdity  of  these  consequences, 
afford  a  sufficient  argument  against  the  application  of  this  principle  to 
the  present  case.  But,  in  truth,  the  mere  relation  of  the  master  and 
the  servant  never  can  imply  an  obligation  on  the  part  of  the  master  to 
take  more  care  of  the  servant  than  he  may  reasonably  be  expected  to 
do  of  himself.  He  is,  no  doubt,  bound  to  provide  for  the  safety  of 
his  servant  in  the  course  of  his  employment,  to  the  best  of  his  judg- 
ment, information  and  belief.  The  servant  is  not  bound  to  risk  his 
safety  in  the  service  of  his  master,  and  may,  if  he  thinks  fit,  decline 
any  service  in  which  he  reasonably  apprehends  injury  to  himself ;  and 
in  most  of  the  cases  in  which  danger  may  be  incurred,  if  not  in  all, 
he  is  just  as  likely  to  be  acquainted  with  the  probability  and  extent  of 
it  as  the  master.  In  that  sort  of  employment,  especially,  which  is  de- 
scribed in  the  declaration  in  this  case,  the  plaintiff  must  have  known 
as  well  as  his  master,  and  probably  better,  whether  the  van  was  suffi- 
cient, whether  it  was  overloaded,  and  whether  it  was  Hkely  to  carry 
him  safely.  In  fact,  to  allow  this  sort  of  action  to  prevail  would  be 
an  encouragement  to  the  servant  to  omit  that  diligence  and  caution 
which  he  is  in  duty  bound  to  exercise  on  the  behalf  of  his  master, 
to  protect  him  against  the  misconduct  or  negligence  of  others  who 
serve  him,  and  which  diligence  and  caution,  while  they  protect  the 
master,  are  a  much  better  security  against  any  injury  the  servant  may 
sustain  by  the  negligence  of  others  engaged  under  the  same  master, 
than  any  recourse  against  his  master  for  damages  could  possibly 
afford. 

We  are  therefore  of  opinion  that  the  judgment  ought  to  be  ar- 
rested. 

Rule  absolute.^ 

5  Accord:  Murray  v.  South  Carolina  R.  Co.  (1841)  1  McMul.  (S.  C.)  385, 
36  Am.  Dec.  268:  (P.,  a  fireman  on  the  defendant's  railway,  was  injured,  while 
engaged  in  the  discharge  of  his  duties,  by  the  derailment  of  his  engine  through 
the  carelessness  of  the  engineer.  The  form  of  the  action  was  trespass  on  the 
case.) 

Farwell  v.  Boston,  etc.,  R.  Corp.  (1842)  4  Mete.  (Mass.)  49,  38  Am.  Dec.  339: 
(P.,  an  engineer  on  the  defendant's  railway,  was  injured,  while  engaged  in 
the  discharge  of  his  duties,  by  tlie  negligence  of  the  defendant's  switchman 
in  "leaving  a  switch  in  wrong  condition."  The  form  of  action  was  trespass 
on  the  case.) 

The  opinion  in  Farwell  v.  Boston,  etc.,  R.  Corp.  was  by  Chief  Justice  Shaw. 
He  said,  in  part: 

"This  is  an  action  of  new  impression  in  our  courts,  and  involves  a  prin- 
ciple of  great  importance.  It  presents  a  case,  where  two  persons  are  in  the 
service  and  employment  of  one  company,  whose  business  it  is  to  construct  and 
maintain  a  railroad,  and  to  employ  their  trains  of  cars  to  carry  persons  and 
merchandize  for  hire.  They  are  appointed  and  employed  by  the  same  com- 
pany to  perform  separate  duties  and  services,  all  tending  to  the  accomplish- 
ment of  one  and  the  same  purpose — that  of  the  safe  and  rapid  transmission 
of  the  trains ;  and  they  are  paid  for  their  resi)ective  services  according  to 
the  nature  of  their  respective  duties,  and  the  labor  and  skill  required  for 
their  proper  performance.     The  question  is,  whether,  for  damages  sustained 


1132  TORTS  THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

by  one  of  the  persons  so  employed,  by  means  of  tlie  carelessness  and  negli- 
gence of  another,  the  party  injured  has  a  remedy  against  the  common  employ- 
er. It  is  an  argument  against  such  an  action,  though  certainly  not  a  decisive 
one,  that  no  such  action  has  before  been  maintained.     *     *     * 

"The  general  rule,  resulting  from  considerations  as  well  of  justice  as  of 
policy,  is,  that  he  who  engages  in  the  employment  of  another  for  the  per- 
formance of  specified  duties  and  servic-es,  for  compensation,  takes  iipon  him- 
self the  natural  and  ordinary  risks  and  perils  incident  to  the  performance  of 
such  services,  and  in  legal  presuuiption,  the  compensation  is  adjusted  accord- 
ingly. And  we  are  not  aware  of  any  principle  which  should  except  the 
perils  arising  from  the  carelessness  and  negligence  of  those  who  are  in  the 
same  employment  These  are  perils  which  the  servant  is  as  likely  to  know, 
and  against  which  he  can  as  effectually  guard,  as  the  master.  They  are 
perils  incident  to  the  service,  and  which  can  be  as  distinctly  foreseen  and  pro- 
vided for  in  the  rate  of  compensation  as  any  others.     *     *     * 

"If  we  look  from  considerations  of  justice  to  those  of  policy,  they  will 
strongly  lead  to  the  same  conclusion.  In  considering  the  rights  and  obliga- 
tions arising  out  of  particular  relations,  it  is  comi^etent  for  courts  of  justice 
to  regard  considerations  of  policy  and  general  convenience,  and  to  draw 
from  them  such  rules  as  will,  in  their  practical  ap]>lication,  best  promote 
the  safety  and  security  of  all  parties  concerned.  This  is,  in  truth,  the  basis 
on  which  implied  promises  are  raised,  being  duties  legally  inferred  from  a 
consideration  of  what  is  best  adapted  to  promote  the  benefit  of  all  persons 
concerned,  under  given  circumstances.  To  take  the  well  known  and  familiar 
cases  already  cited;  a  common  carrier,  without  regard  to  actual  fault  or  neg- 
lect in  himself  or  his  servants,  is  made  liable  for  all  losses  of  goods  confided 
to  him  for  carriage,  except  those  caused  by  the  act  of  God  or  of  a  public 
enemy,  because  he  can  best  guard  them  against  all  minor  dangers,  and  be- 
cause, in  case  of  actual  loss,  it  would  be  extremely  difficult  for  the  owner 
to  adduce  proof  of  embezzlement,  or  other  actual  fault  or  neglect  on  the  part 
of  the  carrier,  although  it  may  have  been  the  real  cause  of  the  loss.  The 
risk  is  therefore  thrown  upon  the  carrier,  and  he  receives,  in  the  form 
of  payment  for  the  carriage,  a  premium  for  the  risk  which  he  thus  assumes. 
So  of  an  innkeeper;  he  can  best  secure  the  attendance  of  honest  and  faithful 
servants,  and  guard  his  house  against  thieves.  Whei'eas,  if  he  were  re- 
sponsible only  upon  proof  of  actual  negligence,  he  might  connive  at  the 
presence  of  dishonest  inmates  and  retainers,  and  even  participate  in  the  em- 
bezzlement of  the  property  of  the  guests,  duiing  the  hours  of  their  necessary 
sleep,  and  yet  it  would  be  difficailt,  and  often  impossible,  to  prove  these  facts. 

"The  liability  of  passenger  carriers  is  founded  on  similar  considerations. 
They  are  held  to  the  strictest  responsiliility  for  care,  vigilance  and  skill,  on 
the  part  of  themselves  and  all  persons  employed  by  them,  and  they  ai"e  paid 
accordingly.  The  rule  is  founded  on  the  expediency  of  throwing  the  risk 
upon  those  who  can  best  guard  against  it.     Stoi'y  on  Bailments,  590  et  seq. 

"We  are  of  opinion  that  these  considerations  apply  strongly  to  the  case 
in  question.  Where  several  persons  are  employed  in  the  conduct  of  one 
common  enterprise  or  undertaking,  and  the  safety  of  each  depends  much  on 
the  care  and  skill  with  which  each  other  shall  perform  his  appropriate  duty, 
each  is  an  observer  of  the  conduct  of  the  others,  can  give  notice  of  any  mis- 
conduct, incapacity  or  neglect  of  duty,  and  leave  the  service,  if  the  common 
employer  will  not  take  sxich  precautions,  and  employ  such  agents  as  the  safety 
of  the  whole  party  may  retiuire.  By  these  means,  the  safety  of  each  will  be 
much  more  effectually  secured,  than  could  be  done  by  a  resort  to  the  com- 
mon employer  for  indemnity  in  case  of  loss  by  the  negligence  of  each  otht'r. 
Regarding  it  in  this  light,  it  is  the  ordinary  case  of  one  sustaiiaiug  an  injury 
in  the  course  of  his  own  employment,  in  which  he  nnist  bear  the  loss  him- 
self, or  seek  bis  remedy,  if  he  have  any,  against  the  actual  wrong-doer.     *     *     * 

"It  was  strongly  pressed  in  the  argument,  that  although  tliis  might  be  so, 
where  two  or  more  servants  are  emphjyed  in  the  same  department  of  duty, 
where  each  can  exert  some  influence  over  the  conduct  of  the  other,  and  thus  to 
some  extent  provide  for  his  own  secririty ;  yet  that  it  could  not  apply  where 
two  or  more  are  employed  in  different  departments  of  duty,  at  a  distance 
from  each  other,  and  where  one  can  in  no  degree  control  or  influence  the 
conduct  of  another.    But  we  think  this  is  founded  upon  a  supposed  distinc- 


Ch.  1)  NEGLIGENCE  1133 

tion,  on  which  it  would  be  extremely  difficult  to  establish  a  practical  rule. 
When  the  object  to  be  accomplished  is  one  and  the  same,  when  the  employers 
are  the  same,  and  the  several  persons  employed  derive  their  authority  and 
their  compensation  from  the  same  source,  it  would  be  extremely  difficult  to 
distinguish,  what  constitutes  one  department  and  what  a  distinct  department 
of  duty.  It  would  vary  with  the  circumstances  of  every  case.  Tf  it  were 
made  to  depend  upon  the  nearness  or  distance  of  the  persons  from  each 
other,  the  question  would  immediately  arise,  how  near  or  how  distant  must 
they  be,  to  be  in  the  same  or  different  departments.  In  a  blacksmith's  shop, 
persons  working  in  the  same  building,  at  different  fires,  may  be  quite  in- 
dependent of  each  other,  though  only  a  few  feet  distant.  In  a  ropewalk, 
several  may  be  at  work  on  the  same  piece  of  cordage,  at  the  same  time,  at 
many  hundred  feet  distant  from  each  other,  and  beyond  the  reach  of  sight  and 
voice,  and  yet  acting  together. 

"Besides,  it  appears  to  us,  that  the  argument  rests  upon  an  assumed  prin- 
ciple of  responsibility  which  does  not  exist.  The  master,  in  the  case  sup- 
posed, is  not  exempt  from  liability,  because  the  servant  has  better  means  of 
providing  for  his  safety,  when  he  is  employed  in  immediate  connection  ^\•ith 
those  from  whose  negligence  he  might  suffer ;  but  because  the  implied  contract 
of  the  master  does  not  extend  to  indemnify  the  servant  against  the  negligence 
of  any  one  but  himself;  and  he  is  not  liable  in  tort,  as  for  the  negligence  of 
his  servant,  because  the  person  suffering  does  not  stand  towards  him  in  the 
relation  of  a  stranger,  but  is  one  whose  rights  are  regulated  by  contract  ex- 
press or  implied.  The  exemption  of  the  master,  therefore,  from  liability  for 
the  negligence  of  a  fellow  servant,  does  not  depend  exclusively  upon  the 
consideration,  that  the  servant  has  better  means  to  provide  for  his  own  safety, 
but  upon  other  grounds.  Hence  the  separation  of  the  employment  into  differ- 
ent departments  cannot  create  that  liability,  when  it  does  not  arise  from  ex- 
press or  implied  contract,  or  from  a  responsibility  created  by  law  to  third 
persons,  and  strangers,  for  the  negligence  of  a  servant." 

It  was  held,  therefore,  that  the  action  could  not  be  maintained. 

See,  also,  Pollock  on  Torts  (8th  Ed.)  98:  "The  old  rule  as  it  stood  before  the 
Act  of  1880.  is  that  a  master  is  not  liable  to  his  ser\'ant  for  injury  received 
fi'om  any  ordinai-y  risk  of  or  incident  to  the  service,  including  acts  or  de- 
faults of  any  other  person  employed  in  the  same  service.  Our  law  can  show 
no  more  curious  instance  of  a  I'apid  modern  development.  The  first  evidence 
of  any  such  rule  is  in  Priestly  v.  Fowler,  3  M.  &  W.  1,  49  R.  R.  495,  decided 
in  1837,  which  proceeds  on  the  theorj'  (if  on  any  definite  theory)  that  the 
master  'cannot  be  bound  to  take  more  care  of  the  servant  than  he  may  reason- 
ably be  expected  to  do  of  himself;  that  a  servant  has  better  opportunities 
than  his  master  of  watching  and  controlling  the  conduct  of  his  fellow-serv- 
ants ;  and  that  a  contrary  doctrine  would  lead  to  intolerable  inconvenience, 
and  encourage  servants  to  be  negligent.  According  to  this  there  would  be 
a  sort  of  presumption  that  the  servant  suffered  to  some  extent  by  want  of 
diligence  on  his  own  part.  But  it  is  needless  to  pursue  this  reasoning;  for 
the  like  result  was  a  few  years  afterwards  arrived  at  by  Chief  Justice  Shaw 
of  Massachusetts  by  another  way,  and  in  a  judgment  which  is  the  fountain- 
head  of  all  the  latter  decisions,  Farwell  v.  Boston  &  Worcester  R.  R.  Corp. 
(1842)  4  Mete.  (INIass.)  49,  38  Am.  Dec.  339,  and  has  now  been  judicially  rec- 
ognized in  England  as  'the  most  complete  exposition  of  what  constitutes 
common  employment.'  Sir  Francis  Jeune  in  The  Petrel,  [1893]  p.  320,  323. 
The  accepted  doctrine  is  to  this  effect.  Strangers  can  hold  the  master  liable 
for  the  negligence  of  a  servant  about  his  business.  But  in  the  case  where  the 
person  injured  is  himself  a  servant  in  the  same  business  he  is  not  in  the 
same  position  as  a  stranger.  He  has  of  his  free  will  entered  into  the  business 
and  made  it  his  owu.  He  cannot  say  to  the  master.  You  shall  so  conduct  your 
business  as  not  to  injure  me  by  want  of  due  care  and  caution  therein.  For  he 
has  agreed  with  the  master  to  serve  in  that  business,  and  his  claims  on  the 
master  depend  on  the  contract  of  service.  Why  should  it  be  an  implied  terra 
of  that  contract,  not  being  an  express  one,  that  the  master  .shall  indemnify 
him  against  the  negligence  of  a  fellow-servant,  or  any  other  current  risk. 
It  is  rather  to  be  implied  that  he  contracted  with  the  risk  before  his  eyes,  and 
that  the  dangers  of  the  service,  taken  all  around,  were  considered  in  fixing 
the  rate  of  payment.     This  is,  I  believe,  a  fair  summary  of  the  reasoning 


1134  TORTS  THROUGH  ACTS   OF   CONDITIONAL  LIABILITY         (Part  3 

THRUSSELL  v.  HANDYSIDE  &  CO. 

(Queen's  Bench  Division,  1888.     20  Q.  B.  Div.  359.) 

Hawkins,  J.  (after  stating  the  case,  and  holding  that  the  facts  es- 
tabHshed  neghgence  in  the  defendant).  But  this  does  not  determine 
the  case,  for  the  plaintiff  may  fail  on  one  of  two  grounds,  either  that 
he  contributed  to  the  accident  by  his  own  negligence,  or  that  the  case 
comes  within  the  maxim  "Volenti  non  fit  injuria." 

As  to  the  first  of  these  grounds  I  cannot  find  any  evidence  which 
proves  negligence  on  the  part  of  the  plaintiff. 

The  only  remaining  question  is  whether  the  plaintiff  took  the  risk 
upon  himself,  so  that  the  maxim  "Volenti  non  fit  injuria"  applies. 
That  question,  as  is  shewn  by  the  judgments  in  Yarmouth  v.  France, 
19  O.  B.  D.  647,  was  for  the  jury.  The  plaintiff  was  altogether  un- 
connected with  the  defendants  or  their  workmen,  but  was  an  inde- 
pendent workman  employed  by  Messrs.  Lucas,  and  it  is  difficult  to 
say,  where  a  man  is  lawfully  working,  subject  to  the  orders  of  his 
employers,  and  to  the  risk  of  dismissal  if  he  disobeys,  that  if  after 
asking  for  and  failing  to  obtain  protection  from  the  danger  caused  by 
other  people's  work,  he  suffers  injury,  the  maxim  "Volenti  non  fit 
injuria"  applies.  It  is  true  that  he  knows  of  the  danger,  but  he  does 
not  wilfully  incur  it.  "Scienti,"  as  was  pointed  out  in  Thomas  v. 
Quatermaine,  18  Q.  B.  D.  at  p.  692,  and  in  Yarmouth  v.  France,  19 
Q.  B.  D.  at  p.  659,  is  not  equivalent  to  "volenti."  It  cannot  be 
said,  where  a  man  is  lawfully  engaged  in  work,  and  is  in  danger  of 
dismissal  if  he  leaves  his  work,  that  he  wilfully  incurs  any  risk  which 
he  may  encounter  in  the  course  of  such  work,  and  here  the  plaintiff 
had  asked  the  defendants'  men  to  take  care.  It  is  different  where 
there  is  no  duty  to  be  performed,  and  a  man  takes  his  chance  of  the 
danger,  for  there  he  voluntarily  encounters  the  risk.  If  the  plaintiff 
could  have  gone  away  from  the  dangerous  place  without  incurring 
the  risk  of  losing  his  means  of  livelihood,  the  case  might  have  been 
different;  but  he  was  obliged  to  be  there;  his  poverty,  not  his  will, 
consented  to  incur  the  danger.     *     *     * 

The  case  of  Woodley  v.  Metropolitan  District  Ry.  Co.,  2  Ex.  D.  384, 
was  relied  on  by  Mr.  Lush  as  an  authority  in  favour  of  the  defend- 
ants, and  at  first  sight  it  looks  somewhat  like  the  present  case,  but 

which  has  prevailed  in  the  aiitliorities.  With  its  soundness  we  are  not  here 
concerned.  It  was  not  only  adopted  by  the  House  of  Lords  for  England,  but 
forced  by  them  upon  the  reluctant  Courts  of  Scotland  to  make  the  juris- 
prudence of  the  two  countries  uniform.  No  such  doctrine  appears  to  exist 
in  the  law  of  any  other  country  in  Europe.  The  following  is  a  clear  judicial 
statement  of  it  in  its  settled  form:  'A  servant,  wlien  he  engages  to  serve  a 
master,  undertakes,  as  between  himself  and  his  master,  to  run  all  the  or- 
dinary risks  of  the  service,  including  the  risk  of  negligence  upon  the 
part  of  a  fellow  .servant  when  he  is  acting  in  the  discharge  of  his  duty  as 
servant  of  him  who  is  the  common  master  of  both.'  Erie,  C.  J.,  iu  Tuimey 
V.  Midland  R.  Co.  (1806)  L.  R.  1  C.  P.  290." 


Ch.  1)  NEGLIGENCE  1135 

when  the  facts  of  the  two  cases  are  compared  there  is  a  clear  dis- 
tinction. The  plaintiff  in  that  case  was  in  the  employment  of  a 
contractor  and  was  injured  by  a  passing  train  while  he  was  working  in 
a  tunnel  on  the  Aletropolitan  District  Railway,  and  he  brought  an 
action  against  the  railway  company.  It  was  proved  that  there  was 
a  very  small  space  between  the  wall  of  the  tunnel  and  the  passing 
train,  but  still  the  space  was  enough,  if  a  w^orkman  was  careful,  to 
enable  him  to  stand  in  safety  while  a  train  passed.  It  is  true  that 
the  jury  found  that  there  was  negligence  on  the  part  of  the  com- 
pany in  not  having  taken  precautions  for  the  protection  of  the  w'ork- 
man,  but  the  plaintiff  having  it  in  his  power  to  protect  himself,  and 
knowing  that  the  danger  existed,  the  majority  of  the  Court  of  Appeal 
held  that  he  was  not  entitled  to  recover.  He  was  injured  not  owing 
to  an  inevitable  cause,  but  owing  to  a  danger  which  by  the  use  of 
proper  care  he  might  have  avoided.  In  the  present  case  the  plain- 
tiff' could  not  have  avoided  the  danger,  unless  he  had  disobeyed  the 
orders  of  his  employers,  and  incurred  the  risk  of  dismissal.  *  *  * 
Appeal  dismissed.^ 


DOWD  V.  NEW  YORK,  O.  &  W.  RY.  CO. 
.      (Court  of  Apijeals  of  New  York,  1902.    170  N.  Y.  459,  63  N.  E.  541.) 

The  action  was  against  the  railv/ay  company  for  alleged  negligence 
in  causing  the  death  of  plaintiff's  intestate,  a  car  repairer  in  the  defend- 
ant's employ.  The  answer  denied  all  the  allegations  of  negligence  on 
the  part  of  the  defendant,  and  alleged  that  the  death  of  the  decedent 
was  caused  by  his  own  negligence. 

It  appeared  that  on  the  31st  of  August,  1892,  the  plaintiff's  intestate 
had  been  in  the  employ  of  the  defendant  as  a  car  repairer  for  about 
six  weeks,  but  not  continuously.  On  that  day,  shortly  after  noon,  he 
was  at  work  under  a  car  situated  near  the  middle  of  a  train  consist- 
ing of  twenty-five  empty  coal  cars  standing  without  an  engine  on  sid- 
ing No.  3.  A  blue  as  well  as  a  red  flag  (signifymg  danger  and  the  pres- 
ence of  a  car  repairer)  was  flying  at  the  rear  or  southerly  end  of  the 
train.  A  milk  train  consisting  of  an  engine,  express  car,  passenger  car 
and  three  or  four  milk  cars  came  in  at  this  time  and  stopped  at  the  sta- 
tion to  transact  its  usual  business.  It  was  a  little  late  and  after  dis- 
charging the  passengers  and  freight,  the  engineer  ran  south  past  the 
switch  and  then,  as  was  his  custom,  backed  rapidly,  severed  his  engine 
and  kicked  the  train  upon  siding  No.  3.  Of  the  three  trainmen  belong- 
ing to  this  train  but  one  remained  thereon  to  manage  the  brakes  and 
he  was  unable  to  control  its  movement.  After  some  delay,  he  suc- 
ceeded in  setting  the  hand  brake  and  then  struggled  with  an  air  brake, 
but  without  success.    The  result  was  that  the  milk  train  ran  down  the 

6  The  statement  of  fact.s,  parts  of  the  opinion  of  Hawkins,  J.,  and  all  of  the 
opinion  of  Grantham,  J.,  are  omitted. 


1136  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

grade  without  control,  until,  colliding  with  the  empty  cars,  it  shoved 
them  forward  about  two  car  lengths  and  caused  one  of  them  to  run 
over  the  plaintiff's  intestate  as  he  was  working  under  it,  and  injured 
him  so  severely  that  he  died  within  a  few  days. 

The  jury  found  for  the  plaintiff,  and  after  affirmance  by  the  Appel- 
late Division,  one  of  the  justices  dissenting,  the  defendant  came  to  this 
court/ 

Vann,  j.  *  *  *  f i^g  defendant,  by  an  appropriate  exception, 
raised  the  question  of  law  that  the  evidence  did  not  authorize  the  jury 
to  find  that  the  decedent  was  not  chargeable  with  knowledge  of  the 
practice  that  caused  his  death.  If  he  knew  of  the  practice  and  contin- 
ued to  work  without  any  promise  by  the  defendant  to  correct  its  meth- 
ods, he  assumed  the  danger  and  waived  any  claim  for  damages  on  ac- 
count thereof.    Crown  v.  Orr,  140  N.  Y.  450,  35  N.  E.  648. 

The  decedent  was  chargeable  not  only  with  what  he  actually  knew, 
but  also  with  what  he  ought  to  have  known  by  the  exercise  of  ordinary 
diligence.  He  had  worked  for  the  defendant  about  six  weeks,  in  all, 
at  dift'erent  times,  between  the  first  of  April  and  the  last  of  August 
when  he  was  hurt.  "He  was  repairing  cars  all  the  time  he  was  there," 
which  kept  him  in  a  position  where  he  could  not  well  see  the  ordinary 
movement  of  trains  in  the  yard.  A  witness  who  worked  "in  the  same 
gang  with  him  the  most  of  the  time,"  testified  that  he  had  never  seen 
cars  kicked  "on  the  sidings  where  cars  were  being  repaired"'  while  he 
w^as  working  with  him.  It  appeared  that  cars  were  kicked  upon  sid- 
ings every  day  and  sometimes,  but  not  so  often  when  the  signals  were 
up.  There  was  little  other  evidence  upon  the  subject  and  none  show- 
ing that  the  decedent  was  ever  in  such  a  position  as  necessarily  to  have 
seen  cars  kicked  on  a  track  where  repairers  were  at  work.  If  the  bur- 
den of  proof  was  upon  the  plaintiff  to  show  affirmatively  the  absence 
of  knowledge  on  the  part  of  her  intestate,  it  may  be  that  the  evidence 
was  insufficient  for  the  purpose.  If,  however,  the  burden  of  proof  in 
this  regard  was  upon  the  defendant,  the  finding  of  the  jury  should  be 
sustained  because  the  evidence  did  not  conclusively  establish  the  fact 
in  accordance  with  its  theory. 

When  the  plaintiff's  intestate  entered  the  service  of  the  defendant 
he  impliedly  assumed  the  obvious  risks  of  the  business  and  waived  any 
right  of  action  on  account  thereof.  The  common  law  makes  this  a  part 
of  the  contract  of  employment,  the  same  as  if  an  express  stipulation 
to  that  effect,  committed  to  writing,  had  been  signed  by  both  parties. 
Furthermore,  by  continuing  at  work,  with  no  prospect  of  a  change  of 
method,  he  waived  such  dangers  as  he  subsequently  discovered.  The 
doctrine  of  assumed  risks  rests  upon  the  implication  of  a  promise  by 
the  employe  to  waive  the  consequences  of  dangers  of  which  he  is  fully 
aware.     It  is  distinct  in  principle  from  the  doctrine  of  contributory 

7  The  statement  is  abridged.  Only  so  much  of  tlie  opinion  is  given  as  re- 
lates to  the  one  point. 


Ch.  1)  NEGLIGENCE  1137 

negligence  although  they  have  frequently  been  confounded  by  the 
courts.  In  many  cases  this  was  owing  to  the  fact  that  it  appeared  from 
the  plaintiff's  own  showing  that  he  knew  of  the  dangers  in  advance  and 
hence  his  complaint  was  properly  dismissed.  Whether  the  fact  of  a 
known  or  obvious  risk  is  proved  by  the  one  party  or  the  other  is  im- 
material, provided  it  is  proved  at  all,  but  the  question  now  before  us 
is  upon  whom  rests  the  burden  of  proof  in  this  respect.  If  the  plain- 
tiff knows  the  danger,  under  ordinary  circumstances  he  waives  it,  but 
is  the  waiver  a  defense  to  be  alleged  and  proved  by  the  defendant,  or 
only  a  form  of  contributory  negligence,  the  absence  of  which  is  a  part 
of  the  plaintiff's  case? 

Contributory  negligence  prevents  a  recovery  because  the  plaintiff,  of 
his  own  volition,  intervenes  between  the  negligence  of  the  defendant 
and  the  injury  received,  so  that  the  former  is  not  the  sole  cause  of  the 
latter.  *  *  *  One  who  is  injured  by  his  own  negligence  is  re- 
garded by  the  law  as  not  having  been  injured  at  all,  so  far  as  other  par- 
ties are  concerned.  By  assuming  the  risk,  the  plaintiff  does  not  inter- 
vene but  waives.  Intervention  in  order  to  break  the  causal  connection 
between  the  negligent  act  and  the  injury  must  come  in  between  them. 
The  assumption  of  the  risk  does  not  come  in  between,  but  is  in  advance 
of  both.  The  independent  will  of  the  plaintiff  is  not  exercised  by  in- 
tervening, but  by  voluntarily  waiving  and  releasing,  when  he  enters  the 
service,  any  right  of  action  which  might  accrue  to  him  from  the  cause 
stated.     *     *     * 

We  think  that  the  burden  of  showing  that  the  servant  assumed  the 
risk  of  obvious  dangers  rests  upon  the  master  and  hence  we  cannot  say, 
as  matter  of  law,  that  the  jury,  in  the  case  before  us,  was  compelled 
to  find  that  the  plaintiff's  intestate  knew  or  should  have  known  of  the 
practice  of  kicking  cars  on  a  track  where  car  repairers  were  at  work. 
If  he  did  not  know  of  the  practice,  he  did  not  waive  the  danger. 

Judgment  affirmed. 


ENGLISH  v.  AMIDON  et  al. 
(Supreme  Court  of  New  Hampshire,  1902.    72  N.  H.  301,  56  Atl.  548.) 

Action  on  the  case  against  Amidon  and  others  for  personal  injuries 
sustained  by  the  plaintiff  in  falling  down  a  dangerous  stairway  in  the 
defendants'  mill.  A  motion  for  a  non-suit  was  granted,  and  the  plain- 
tiff excepted. 

Bingham,  J.  It  was  the  duty  of  the  defendants,  in  the  exercise 
of  reasonable  care  and  diligence,  to  provide  and  maintain  a  safe  and 
suitable  stairway  by  which  the  plaintiff,  as  their  servant,  could  go  to 
and  from  his  place  of  work  in  the  mill.  Fifield  v.  Railroad,  42  N.  H. 
225;  Jaques  v.  Company,  66  N.  H.  482,  22  Atl.  552,  13  L.  R.  A.  824; 
Fitzgerald  v.  Company,  155  Alass.  155,  29  N.  E.  464,  31  Am.  St.  Rep. 
Hepb.  Torts — 72 


1138  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

5Z7 ;  Mahoney  v.  Dore,  155  Mass.  513,  30  N.  E.  366.  Inasmuch  as  the 
defendants  operated  their  mill  at  night,  it  is  claimed  that  the  stairway 
should  then  have  been  lighted  to  render  it  reasonably  safe.  If  the 
stairway  was  unsuitable  for  the  use  of  the  defendants'  servants  at 
night,  because  the  plan  of  construction,  taken  in  conjunction  with  the 
darkness,  made  it  dangerous,  it  might  be  found  to  have  been  the  de- 
fendants' duty,  in  the  exercise  of  ordinary  care,  to  make  it  reasonably 
safe,  either  by  suitably  lighting  it  or  by  remedying  the  construction ; 
and  this  was  a  personal  duty,  from  which  they  could  not  relieve  them- 
selves by  delegating  its  performance  to  another. 

The  evidence  was  that  the  plaintiff  and  seven  other  spinners,  after 
finishing  their  work  at  9  o'clock  in  the  evening,  regularly  came  down 
the  stairway  from  the  third  floor  of  the  mill;  that  no  other  way  was 
provided  for  them ;  that  the  stairway  was  winding,  steep,  narrow,  and 
worn ;  that  the  treads  of  the  stairs  varied  in  width,  being  narrowest 
on  the  inside  of  the  curve ;  and  that  the  defendants  had  placed  lamps, 
which  were  usually  lighted  at  night,  over  the  stairs.  On  the  night  in 
question,  when  the  plaintiff  and  the  other  workmen  had  finished  their 
labors,  they  put  out  the  lights  over  their  machines,  as  was  their  cus- 
tom, and  started  to  go  out  of  the  mill.  On  reaching  the  stairway  they 
found  it  was  dark,  but  proceeded  to  go  down  and  out,  the  plaintiff 
going  on  the  outside  of  the  cun^e,  where  the  treads  of  the  stairs  were 
widest,  steadying  himself  with  his  hand  against  the  wall,  there  being 
no  railing  on  that  side  of  the  stairway.  When  part  way  down  he 
slipped,  fell,  and  was  injured.  Reasonable  men  could  conclude  from 
this  evidence  that  the  defendants  required  their  servants  to  use  this 
stairway  at  night;  that  its  construction,  in  conjunction  with  the  dark- 
ness, rendered  its  use  dangerous ;  that  the  defendants  themselves  so 
regarded  it;  that  their  neglect  to  make  the  stairway  safe  for  such  use 
was  the  proximate  cause  of  the  plaintiff's  injury;  and  that  under  the 
circumstances  he  was  exercising  due  care  in  undertaking  to  use  the 
stairway  (the  only  means  provided  for  leaving  the  mill)  and  in  his 
conduct  while  using  it. 

Did  the  plaintiff  voluntarily  assume  the  risk  of  the  defendants' 
negligence?  "One  does  not  voluntarily  assume  a  risk,  within  the 
meaning  of  the  rule  that  debars  a  recovery,  when  he  merely  knows 
there  is  some  danger,  without  appreciating  the  danger."  Mundle  v. 
Company,  86  Me.  400,  405,  30  Atl.  16;  Demars  v.  Company,  67  N. 
H.  404,  40  Atl.  902.  One  cannot  be  said,  as  a  matter  of  law,  to  as- 
sume a  risk  voluntarily,  though  he  Icnows  the  danger  and  appreciates 
the  risk,  if  at  the  time  he  was  acting  "under  such  an  exigency,  or  such 
an  urgent  call  of  duty,  or  such  constraint  of  any  kind  as  in  reference 
to  the  danger  deprives  his  act  of  its  voluntary  character"  (Mahoney 
V.  Dore,  supra) ;  or  if,  after  discovering  the  master's  neglect,  he  "has 
no  opportunity  to  leave  the  service  before  the  injury  is  received" 
(Olney  v.  Railroad,  71  N.  H.  427,  431,  52  Atl.  1097). 

When  the  plaintiff  went  into  the  mill  it  was  daylight.    He  knew  that 


Ch.  1)  NEGLIGENCE  1139 

his  work  would  not  be  finished  before  9  o'clock  that  night,  and  that 
it  was  the  custom  of  the  defendants  to  then  have  the  stairway  hghted. 
He  had  the  right  to  believe  they  would  perform  their  duty  on  the 
night  in  question,  and  to  rely  thereon.  He  entered  the  mill,  worked 
until  9  o'clock,  and  then  went  to  the  stairway  to  go  out.  On  reaching 
it  he  found  himself  surrounded  in  darkness.  Although  he  then  knew 
the  defendants  had  failed  to  perform  their  duty,  yet  in  view  of  the 
fact  that  he  then  had  no  choice  open  to  him,  the  only  exit  provided 
being  over  the  dark  stairway,  and  no  opportunity  to  leave  the  defend- 
ants' service  before  his  injury  w^as  received,  it  cannot  be  said,  as  a 
matter  of  law,  that  he  voluntarily  assumed  the  risk.  It  was  for  the 
jury  to  say  wdiether  the  plaintiff,  knowing  the  defendant's  neglect  of 
duty,  fully  appreciated  the  danger  therefrom  and  voluntarily  encoun- 
tered it.  Demars  v.  Company,  supra ;  Whitcher  v.  Railroad,  70  N.  H. 
242,  46  Atl.  740;  Dempsey  v.  Sawyer,  95  ^le.  295,  49  Atl.  1035; 
Mahoney  v.  Dore,  supra;  Fitzgerald  v.  Company,  supra;  47  L.  R.  A. 
161,  201,  note. 
Exception   sustained.^ 


SCHLEMMER  v.  BUFFALO,  R.  &  P.  RY.  CO. 

(Supreme  Court  of  the  United  States,  1911.    220  U.  S.  590,  31  Sup.  Ct.  561, 

55  L.  Ed.  596.) 

In  Error  to  the  Supreme  Court  of  the  State  of  Pennsylvania. 

Mr.  Justice  Day.  This  action  was  brought  in  a  Pennsylvania 
court  to  recover  for  wrongfully  causing  the  death  of  Adam  M.  Schlem- 
mer,  plaintift"'s  intestate,  as  a  result  of  injuries  received  while  in  the 
employ  of  the  railroad  company.     The  case  has  been  once  before  in 

8  On  motion  for  a  rehearing.  Walker,  J.,  said:  "  *  «  *  The  ease  is  clear- 
ly distin^shable  from  McLaine  v.  Company  [1902]  71  N.  H.  294,  52  Atl.  545, 
58  L.  R.  A.  462  [93  Am.  St.  Rep.  522],  for  in  that  case  the  danger  arose  from 
the  act  of  a  fellow  servant  in  the  i)erformance  of  the  work,  for  which  it  was 
held  to  be  unreasonable  to  hold  the  master  responsible,  and  not  from  any  de- 
fects in  the  insti-umentalities  provided  by  the  master,  for  which  he  is  liable 
if  he  does  not  exercise  ordinary  care  in  the  premises.  Manning  v.  Manchester 
MUls  [1900]  70  N.  H.  582,  49  Atl.  91,  is  distinguishable  for  a 'similar  reason. 
In  other  cases  cited  by  the  defendants  (Mellen  v.  Wilson  [1893]  159  Mass. 
88,  34  N.  E.  96;  Dene  v.  Print  Works  [1902]  181  Mass.  560,  64  N.  E.  203; 
Kaare  v.  Company  [1893]  139  N.  Y.  369,  34  N.  B.  901:  New  York,  etc.,  R.  R.  v. 
Perriguey  [1893]  138  Ind.  414,  34  N.  E.  233,  37  N.  E.  976;  Collins  v.  Railroad 
[1882]  30  Minn.  31,  40  N.  W.  60),  the  sole  ground  upon  which  negligence  was 
claimed  was  the  absence  of  light  caused  by  the  negligence  of  a  fellow  servant. 
The  existence  of  light  in  those  cases  was  not  required  to  remedy  or  to  oI> 
viate  the  danger  arising  from  structural  defects.  I.amps  for  the  production 
of  light  were  regarded  as  a  part  of  the  properly  constructed  appliances  or 
machines  which  it  was  the  duty  of  the  servant  to  operate.  The  question  of 
their  necessity  and  use  to  guard  against  the  consequences  of  the  master's 
negligence  in  unreasonably  maintaining  dangerously  defective  appliances 
was  not  considered.  Motion  denied."  Id.  (1902)  72  N.  H.  301,  303.  56  Atl. 
548,  550. 


1140  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

this  court,  and  is  reported  in  205  U.  S.  1,  51  L.  Ed.  681,  27  Sup.  Ct. 
407.  The  injury  was  received  while  Schlemmer,  an  employee  of  the 
defendant  railroad  company  was  endeavoring  to  couple  a  shovel  car  to 
the  caboose  of  one  of  the  railroad  trains  of  the  defendant  company. 

Before  the  case  first  came  here,  the  Supreme  Court  of  Pennsylvania 
had  held  that  the  plaintiff  could  not  recover  damages  because  of  the 
contributory  negligence  of  the  deceased.  207  Pa.  198,  56  Atl.  417. 
This  court  reversed  the  Supreme  Court  of  Pennsylvania,  and  re- 
manded the  case  for  further  proceedings  in  conformity  with  the  opin- 
ion of  this  court. 

For  a  proper  understanding  of  the  case  a  brief  statement  of  the 
facts  will  be  necessary.  The  shovel  car  was  not  equipped  with  an 
automatic  coupler,  as  required  by  the  act  of  March  2,  1893,  chap. 
196,  §  2,  27  Stat,  at  L.  531,  U.  S.  Comp.  Stat.  1901,  p.  3174,  and  that 
fact  was  the  basis  of  the  action  for  damages.  The  shovel  car  had  an 
iron  drawbar,  weighing  somewhere  about  SO  pounds,  protruding  be- 
yond the  end  of  the  shovel  car.  The  end  of  this  drawbar  had  a  small 
opening,  or  eye,  into  which  an  iron  pin  was  to  be  fitted  when  the 
coupling-  was  made ;  this  was  to  be  effected  by  placing  the  end  of  the 
drawbar  into  the  slot  of  the  automatic  coupler  with  which  the  caboose 
was  equipped.  Owing  to  the  difference  in  the  height,  the  end  of  the 
shovel  car  would  pass  over  the  automatic  coupler  on  the  caboose  in 
case  of  an  unsuccessful  attempt  to  make  the  coupling,  and  the  end  of 
the  shovel  car  would  come  in  contact  with  the  end  of  the  caboose. 

Plaintiff's  intestate  was  an  experienced  brakeman,  having  been  in 
the  service  fifteen  or  sixteen  years.  At  the  time  when  he  undertook 
to  couple  the  train  with  the  shovel  car  to  the  end  of  the  caboose,  he 
went  under  the  end  of  the  shovel  car,  and  attempted  to  raise  the  iron 
drawbar  so  as  to  cause  it  to  fit  into  the  slot  of  the  automatic  coupler 
on  the  caboose.  While  so  doing,  his  head  was  caught  between  the 
ends  of  the  shovel  car  and  the  caboose,  and  he  was  almost  instantly 
killed.  This  happened  between  8  and  9  o'clock  on  an  evening  in  the 
month  of  August,  and  while  dusk  had  gathered,  it  was  not  very  dark, 
and  the  testimony  tends  to  show  that  the  situation  was  plainly  ob- 
servable.    *     *     * 

The  trial  court  submitted  the  case  to  the  jury  upon  the  issues  joined 
under  the  Federal  statute,  including  the  question  whether  the  plain- 
tiff's intestate,  at  the  time  of  the  injury,  had  been  guilty  of  contrib- 
utory negligence.  Under  these  instructions  the  jury  found  a  verdict 
for  the  plaintiff. 

The  court  then  granted  a  rule  to  show  cause  why  judgment  should 
not  be  rendered  non  obstante  veredicto,  which  motion  was  granted, 
and  an  opinion  delivered,  in  which  the  judge  held  that  the  testimony 
did  not  warrant  the  conclusion  that,  in  making  the  coupling,  the  risk 
was  so  obvious  that  an  ordinarily  careful  and  prudent  brakeman 
would  not  have  undertaken  it;  and  therefore,  under  the  statute,  as- 
sumption of  risk  was  no  defense,  but  reached  the  conclusion  that 


Ch.  1)  NEGLIGENCE  1141 

the  deceased  was  guilty  of  contributory  negligence  in  failing  to  exer- 
cise care  according  to  the  circumstances  in  making  the  coupling  in  the 
way  he  attempted  to  make  it,  and  in  not  adopting  a  safer  way,  which 
was  pointed  out  to  him  at  the  time. 

Upon  the  second  appeal,  the  Supreme  Court  of  Pennsylvania  af- 
firmed the  judgment  of  the  trial  court,  saying: 

"Per  Curiam :  It  is  the  settled  law  of  Pennsylvania  that  any  neg- 
ligence of  a  party  injured,  which  contributed  to  his  injury,  bars  his 
recovery  of  damages  without  regard  to  the  negligence,  either  greater 
or  less  than  his  own,  of  the  other  party.  The  present  is  a  clear  case 
of  contributory  negligence  within  this  rule.  The  evidence  is  in- 
disputable that  the  unfortunate  decedent  not  only  attempted  to  make 
the  coupling  in  a  dangerous  way  when  his  attention  was  directly 
called  to  a  safer  way,  but  also  did  it  with  reckless  disregard  of  his 
personal  safety  by  raising  his  head,  though  twice  expressly  cautioned 
at  the  time  as  to  the  danger  of  so  doing."    222  Pa.  470,  71  Atl.  1053. 

The  case  is  now  here  upon  a  petition  in  error  to  reverse  this  judg- 
ment of  affirmance.  The  statute  at  the  time  of  the  injury  complained 
of  took  away  assumption  of  risk  on  the  part  of  the  employee  as  a 
defense  to  an  action  for  injuries  received  in  the  course  of  the  em- 
ployment. The  defense  of  contributory  negligence  was  not  dealt 
with  by  the  statute. 

When  the  case  was  here  before,  we  did  not  find  it  necessary'  to  pass 
upon  the  question  whether  contributory  negligence  on  the  part  of  an 
injured  employee  would  be  a  defense  to  an  action  under  the  law  as 
it  then  stood,  for,  upon  the  record  as  then  presented,  the  court  was 
of  opinion  that  to  sustain  the  defense  of  contributory  negligence  would 
amount  to  a  denial  to  the  plaintiff  of  all  benefit  of  the  statute  which 
made  the  assumption  of  risk  no  longer  a  defense. 

While,  as  was  said  in  the  case  when  here  before,  assumption  of 
risk  sometimes  shades  into  negligence  as  commonly  understood,  there 
is,  nevertheless,  a  practical  and  clear  distinction  between  the  two. 
In  the  absence  of  statute  taking  away  the  defense,  or  such  obvious 
dangers  that  no  ordinarily  prudent  person  would  incur  them,  an 
employee  is  held  to  assume  the  risk  of  the  ordinary  dangers  of  the 
occupation  into  which  he  is  about  to  enter,  and  also  those  risks  and 
dangers  which  are  known,  or  are  so  plainly  observable  that  the  em- 
ployee may  be  presumed  to  know  of  them,  and  if  he  continues  in 
the  master's  employ  without  objection,  he  takes  upon  himself  the  risk 
of  injury  from  such  defects.  Choctaw,  O.  &  G.  R.  Co.  v.  AIcDade, 
191  U.  S.  64,  67,  68,  48  L-  Ed.  96,  100,  101,  24  Sup.  Ct.  24,  and 
former  cases  in  this  court  therein  cited. 

Contributory  negligence,  on  the  other  hand,  is  the  omission  of 
the  employee  to  use  those  precautions  for  his  own  safety  which  ordi- 
narv  prudence  requires.  See,  in  this  connection,  Xarramore  v.  Cleve- 
land, C,  C.  &  St.  L.  R.  Co.,  48  L.  R.  A.  68,  17  C.  C.  A.  499,  509,  96 
Fed.  298. 


1142  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

In  the  present  case,  the  statute  of  Congress  expressly  provides  that 
the  employee  shall  not  be  deemed  to  have  assumed  the  risk  of  injury 
if  such  is  occasioned  by  his  continuing  in  the  employ  of  the  carrier 
after  the  unlawful  use  of  the  car  or  train  in  the  failure  to  provide 
automatic  couplers  has  been  brought  to  his  knowledge.  Therefore, 
when  Schlemmer  saw  that  the  shovel  car  was  not  equipped  with  an 
automatic  coupler,  he  would  not,  from  that  knowledge  alone,  take 
upon  himself  the  risk  of  injury  without  liability  from  his  employer. 

But  there  is  nothing  in  the  statute  absolving  the  employee  from  the 
duty  of  using  ordinary  care  to  protect  himself  from  injury  in  the 
use  of  the  car  with  the  appliances  actually  furnished.  In  other  words, 
notwithstanding  the  company  failed  to  comply  with  the  statute,  the 
employee  was  not,  for  that  reason,  absolved  from  the  duty  of  using 
ordinary  care  for  his  own  protection  under  the  circumstances  as  they 
existed.  This  has  been  the  holding  of  the  courts  in  construing  stat- 
utes enacted  to  promote  the  safety  of  employees.  Krause  v.  Morgan, 
53  Ohio  St.  26,  40  N.  E.  886;  Holum  v.  Chicago,  M.  &  St.  P.  R. 
Co.,  80  Wis.  299,  50  N.  W.  99;  Grand  v.  Michigan  C.  R.  Co.,  83 
Mich.  564,  11  L.  R.  A.  402,  47  N.  W.  837;  Taylor  v.  Carew  Mfg. 
Co.,  143  Mass.  470,  10  N.  E.  308.  And  such  was  the  holding  of  the 
court  of  appeals  of  the  eighth  circuit,  where  the  statute  now  under 
consideration  was  before  the  court.  Denver  &  R.  G.  R.  Co.  v.  Arrighi, 
63  C.  C.  A.  649,  129  Fed.  347. 

In  the  absence  of  legislation  at  the  time  of  the  injury  complained 
of,  taking  away  the  defense  of  contributory  negligence,  it  continued 
to  exist,  and  the  Federal  question  presented  upon  this  record  is : 
Was  the  ruling  of  the  state  court  in  denying  the  right  of  recovery 
upon  the  ground  of  contributory  negligence,  in  view  of  the  circum- 
stances shown,  such  as  to  deprive  the  plaintiff  in  error  of  the  benefit 
of  the  statute  which  made  assumption  of  risk  a  defense  no  longer 
available  to  the  employer?  To  answer  this  question  we  shall  have  to 
look  to  the  testimony  adduced  at  the  trial,  all  of  which  is  contained 
in  the  record  before  us.  As  we  have  already  said,  the  testimony 
shows  that  the  plaintiff's  intestate  was  an  experienced  brakeman,  A 
witness,  who  is  uncontradicted  in  the  record,  testified  that  just  be- 
fore Schlemmer  got  out  of  the  caboose,  when  he  saw  the  train  backing 
up,  he  was  told:  "We  had  better  shove  that  up  by  hand,  the  same 
as  we  did  in  Bradford.  That  is  a  dangerous  coupling  to  make."  (At 
Bradford  the  method  of  making  the  coupling  was  by  means  of  pushing 
the  caboose  up  against  the  train,  instead  of  backing  the  train  against 
the  caboose.)  To  this  Schlemmer  replied,  with  emphasis,  "Back  up." 
He  then  proceeded  to  make  the  coupling,  with  the  result  stated. 

Another  witness,  the  yard  conductor,  testified  without  contradic- 
tion, that  just  before  the  cars  got  together  he  walked  up  to  Schlem- 
mer, and  told  him  they  had  better  shove  the  caboose  on  by  hand,  to 
which  he  answered :  "Never  mind,  I  will  make  this  coupling."  To 
which  the  witness  answered:     "Well,  you  will  have  to  get  down." 


Ch.  1)  NEGLIGENCE  1143 

Witness  testified  that  he  called  to  him  twice  to  get  down,  the  last  time 
not  more  than  a  second,  possibly  a  couple  of  seconds,  before  he  was 
injured.  This  witness  furthermore  testified  that  he  had  a  sufiicient 
crew  to  push  the  caboose  up  by  hand,  that  there  was  plenty  of -'force 
to  shove  the  caboose  up  in  that  way ;  that  that  was  a  great  deal  safer 
way  to  make  the  coupling  than  backing  onto  the  caboose.  The  tes- 
timony further  shows  that  there  was  plenty  of  room  under  the  pro- 
jection of  the  shovel  car  to  operate  the  drawbar  and  raise  it  up.  In 
fact,  in  this  manner,  the  coupling  was  made  a  few  minutes  after  the 
unfortunate  occurrence  which  resulted  in  the  death  of  the  deceased. 

As  the  record  is  now  presented,  there  is  no  proof  in  the  case  that 
the  deceased  was  ordered  to  make  the  coupling  in  the  manner  he  did, 
and  there  is  testimony  to  the  efifect  that,  just  before  the  injury,  the 
conductor  in  charge  of  the  train  said  to  the  deceased :  "Mr.  Schlem- 
mer,  you  be  very  careful  now,  and  keep  your  head  down  low,  so 
as  not  to  get  mashed  in  between  those  cars."    He  said  he  would. 

In  view  of  this  record  we  cannot  say  that  the  court,  in  denying  a 
recovery  to  the  plaintiff,  upon  the  ground  of  contributory  negligence 
of  the  deceased,  denied  to  her  any  rights  secured  by  the  Federal  stat- 
ute. Entirely  apart  from  the  question  of  assumption  of  risk,  which, 
under  the  law,  could  not  be  a  defense  to  the  plaintiff's  action,  as  the 
law  then  stood,  there  remained  the  defense  of  contributory  negligence. 

After  an  examination  of  the  record  as  now  presented,  containing 
testimony  not  adduced  at  the  former  trial,  we  are  constrained  to  the 
conclusion  that  there  was  ample  ground  for  saying,  as  both  the  trial 
court  and  the  Supreme  Court  of  the  state  of  Pennsylvania  did,  that 
the  decedent  met  his  death  because  of  his  unfortunate  attempt  to  make 
the  coupling  in  a  dangerous  way,  when  a  safer  way  was  at  the  time 
called  to  his  attention.  Furthermore,  he  was  injured  in  spite  of 
repeated  cautions,  made  at  the  time,  as  to  the  great  danger  of  being 
injured  if  he  raised  his  head  in  attempting  to  make  the  coupling  in 
the  manner  which  he  did. 

As  we  have  said,  the  Federal  question  in  the  record,  and  the  only 
one  which  gives  us  jurisdiction,  is:  Did  the  trial  and  judgmept  de- 
prive the  plaintiff  in  error  of  rights  secured  by  the  Federal  statute? 
The  views  which  we  have  expressed  require  that  the  question  be 
answered  in  the  negative. 

The  judgment  of  the  Supreme  Court  of  Pennsylvania  is  affirmed.'' 

9  Part  of  the  opinion  is  omitted. 


1144  TOUTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 


IV.  Imputed  Negligence:  as  an  Excuse  ^** 


^ 


.  THE  BERNINA. 

(Court  of  Appeal,  18S7.    L.  R.  12  Prob.  Div.  58.) 


Appeal  from  a  judgment  by  Butt,  J.,  on  a  special  case  stated  for 
the  opinion  of  the  court  in  three  actions  in  personam  against  the 
owners  of  the  steamship  "Bernina."  Butt,  J.,  held,  on  the  authority 
of  Thorogood  v.  Bryan,  8  C.  B.  115,  that  the  plaintiffs  were  unable 
to   recover.     The  plaintiffs   appealed. ^^ 

LiNDLEY,  L.  J.  This  was  a  special  case.  Three  actions  are  brought 
in  the  A.dmiralty  Division  of  the  High  Court  by  the  respective  legal 
personrl  representatives  of  three  persons  on  board  the  Bushire  against 
the  owners  of  the  Bernina.  Those  persons  were  killed  by  a  collision 
between  the  two  vessels,  both  of  which  were  jnegligently  navigated. 
One  of  the  three  persons  (Toeg)  was  a  passenger  on  the  Bushire; 
one  (Armstrong)  was  an  engineer  of  the  ship,  though  not  to  blame 
for  the  collision.  The  third  (Owen)  was  her  second  officer,  and  was 
in  charge  of  her,  and  was  himself  to  blame  for  the  collision.  The 
questions  for  decision  are,  whether  any,  and  if  any,  which  of  these 
actions  can  be  maintained?  and  if  any  of  them  can,  then  whether 
the  claims  recoverable  are  to  be  awarded  according  to  the  principles 
which  prevail  at  common  law,  or  according  to  those  which  are  adopted 
in  the  Court  of  Admiralty  in  cases  of  collision. ^^     *     *     * 

The  first  matter  to  be  considered  is  whether  there  has  been  any 
such  wrongful  act,  neglect,  or  default  of  the  defendants  as  would, 
if  death  had  not  ensued,  have  entitled  the  three  deceased  persons  re- 
spectively to  have  sued  the  defendants.  Now,  as  regards  one  of  them, 
namely,  Owen,  the  second  officer,  who  was  himself  to  blame  for  the 
collision,  it  is  clear  that,  if  death  had  not  ensued,  he  could  not  have 
maintained  an  action  against  the  defendants.  There  was  negligence 
on  his  part  contributing  to  the  collision,  and  no  evidence  to  show  that, 
notwithstanding  his  negligence,  the  defendants  could,  by  taking  rea- 
sonable care,  have  avoided  the  collision.  There  was  what  is  called 
such  contributory  negligence  on  his  part  as  to  render  an  action  by  him 
unsustainable.  It  follows,  therefore,  that  his  representatives  can  re- 
cover nothing  under  Lord  Campbell's  Act  for  his  widow  and  children, 
and  their  action  cannot  be  maintained.  The  other  two  actions  are  not 
so  easily  disposed  of.  They  raise  two  questions :  (1)  Whether  the 
passenger  Toeg,  if  alive,  could  have  successfully  sued  the  defendants ; 

10  On  the  general  bearing  of  the  doctrine,  see  29  Cyc.  542,  notes  99,  1-6. 

11  The  statement  of  the  case  is  abridged. 

12  Only  so  much  of  the  opinion  is  given  as  relates  to  this  first  question.  As 
to  the  second  question,  it  was  held  that  actions  under  Lord  Cami)beirs  Act 
are  not  admiralty  actions  and,  although  brought  in  the  Admiralty  Division  of 
the  High  Court,  are  not  subject  to  the  admiralty  i-ule  as  to  half  damages. 


Ch.  1)  NEGLIGENCE  1145 

and  if  he  could,  then  (2)  whether  there  is  any  difference  between  the 
case  of  the  passenger  and  that  of  the  engineer  Armstrong.  The  learn- 
ed judge  whose  decision  is  under  review  felt  himself  bound  by  au- 
thority to  decide  both  actions  against  the  plaintiffs.  The  authorities 
which  the  learned  judge  followed  are  Thorogood  v.  Bryan,  8  C.  B, 
115,  and  Armstrong  v.  Lancashire  &  Yorkshire  Ry.  Co.,  Law  Rep. 
10  Ex.  47;  and  the  real  question  to  be  determined  is  whether  they 
can  be  properly  overruled  or  not.  Thorogood  v.  Bryan,  supra,  was 
decided  in  1849,  and  has  been  generally  followed  at  Nisi  Prius  ever 
since  when  cases  like  it  have  arisen.  But  it  is  curious  to  see  how 
reluctant  the  Courts  have  been  to  affirm  its  principle  after  argument, 
and  how  they  have  avoided  doing  so,  preferring,  where  possible,  to 
decide  cases  before  them  on  other  grounds.  See,  for  example,  Rigby 
V.  Hewitt,  5  Ex.  240;  Greenland  v.  Chaphn,  5  Ex.  243;  Vv'aite  v. 
North  Eastern  Ry.  Co.,  E.  B.  &  E.  719.  I  am  not  aware  that  the 
principle  on  which  Thorogood  v.  Bryan  was  decided  has  ever  been 
approved  by  any  Court  which  has  had  to  consider  it.  On  the  other 
hand,  that  case  has  been  criticised  and  said  to  be  contrary  to  principle 
by  persons  of  the  highest  eminence,  not  only  in  this  country,  but 
also  in  Scotland  and  in  America.  And  while  it  is  true  that  Thoro- 
good V.  Bryan  has  never  been  overruled,  it  is  also  true  that  it  has 
never  been  affirmed  by  any  Court  which  could  properly  overrule  it, 
and  it  cannot  be  yet  said  to  have  become  indisputably  settled  law. 
I  do  not  think,  therefore,  that  it  is  too  late  for  a  Court  of  Appeal  to 
reconsider  it,  or  to  overrule  it  if  clearly  contrary  to  well  settled  legal 
principles. 

Thorogood  v.  Bryan  was  an  action  founded  on  Lord  Campbell's 
Act.  The  facts  were  shortly  as  follows.  The  deceased  was  a  pas- 
senger in  an  omnibus,  and  he  had  just  got  off  out  of  it.  He  was 
knocked  down  and  killed  by  another  omnibus  belonging  to  the  defend- 
ants. There  was  negligence  on  the  part  of  the  drivers  of  both  omni- 
buses, and  it  appears  that  there  was  also  negligence  on  the  part  of  the 
deceased  himself.  The  jury  found  a  verdict  for  the  defendants,  and 
there  does  not  seem  to  have  been  any  reason  why  the  Court  should 
have  disallowed  the  verdict  if  not  driven  to  do  so  on  technical  grounds. 
In  those  days,  however,  a  misdirection  by  the  judge  to  the  jury  com- 
pelled the  Court  to  grant  a  new  trial,  whether  any  injustice  had  been 
done  or  not;  and  accordingly  the  plaintiff  moved  for  a  new  trial 
on  the  ground  of  misdirection,  and  it  is  with  reference  to  this  point 
that  the  decision  of  the  Court  is  of  importance.  The  learned  judge 
who  tried  the  case  told  the  jury  in  effect  to  find  for  the  defendant 
if  they  thought  that  the  deceased  was  killed  either  by  reason  of  his 
own  want  of  care  or  by  reason  of  want  of  care  on  the  part  of  the 
driver  of  the  omnibus  out  of  which  he  was  getting.  The  last  di- 
rection was  complained  of,  but  was  upheld  by  the  Court.  The  ratio 
decidendi  was  that  if  the  death  of  the  deceased  was  not  occasioned 
by  his  own  negligence  it  was  occasioned  by  the  joint  negligence  of 


114G  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

both  drivers,  and  that,  if  so,  the  negligence  of  the  driver  of  the 
omnibus  off  w^hich  the  deceased  was  getting  was  the  neghgence  of 
the  deceased ;  and  the  reason  for  so  holding  was  that  the  deceased 
had  voluntarily  placed  himself  under  the  care  of  the  driver.  Maule, 
J.,  puts  it  thus :  "The  deceased  must  be  considered  as  identified 
with  the  driver  of  the  omnibus  in  which  he  voluntarily  became  a 
passenger,  and  the  negligence  of  the  driver  was  the  negligence  of  the 
deceased."  This  theory  of  identification  was  quite  new.  No  trace  of 
it  is  to  be  found  in  any  earlier  decision,  nor  in  any  legal  treatise,  Eng- 
lish or  foreign,  so  far  as  I  have  been  able  to  ascertain,  nor  has  it  ever 
been  satisfactorily  explained.  It  must  be  assumed,  for  the  purpose  of 
considering  the  grounds  of  the  decision  in  question,  that  the  passenger 
was  not  himself  in  fault.  Assuming  this  to  be  so,  then,  if  both  drivers 
were  negligent,  and  both  caused  the  injury  to  the  passenger,  it  is  diffi- 
cult to  understand  why  both  drivers  or  their  masters  should  not  be 
liable  to  him.  The  doctrine  of  identification  laid  down  in  Thorogood 
V.  Bryan  is,  to  me,  quite  unintelligible.  It  is,  in  truth,  a  fictitious 
extension  of  the  principles  of  agency,  but  to  say  that  the  driver  of 
a  public  conveyance  is  the  agent  of  the  passengers  is  to  say  that 
which  is  not  true  in  fact.  Such  a  doctrine,  if  made  the  basis  of  fur- 
ther reasoning,  leads  to  results  which  are  wholly  untenable,  e.  g.,  to 
the  result  that  the  passengers  would  be  liable  for  the  negligence  of 
the  person  driving  them,  which  is  obviously  absurd,  but  which,  of 
course,  the  Court  never  meant.  All  the  Court  meant  to  say  was  that 
for  purposes  of  suing  for  negligence  the  passenger  was  in  no  better  po- 
sition than  the  man  driving  him.  But  why  not?  The  driver  of  a 
public  vehicle  is  not  selected  by  the  passenger  otherwise  than  by 
being  hailed  by  him  as  one  of  the  public  to  take  him  up;  and  such 
selection,  if  selection  it  can  be  called,  does  not  create  the  relation 
of  principal  and  agent  or  master  and  servant  between  the  passenger 
and  the  driver;  the  passenger  knows  nothing  of  the  driver  and  has 
no  control  over  him ;  nor  is  the  driver  in  any  proper  sense  employed 
by  the  passenger.  The  driver,  if  not  his  own  master,  is  hired,  paid, 
or  employed  by  the  owner  of  the  vehicle  he  drives  or  by  some  other 
person  who  lets  the  vehicle  to  him.  The  orders  he  obeys  are  his 
employer's  orders.  These  orders,  in  the  case  of  an  omnibus,  are 
to  drive  from  such  a  place  to  such  a  place  and  take  up  and  put 
down  passengers ;  and  in  the  case  of  a  cab  the  orders  are  to  drive 
where  the  passenger  for  the  time  being  may  desire  to  go,  within 
the  limits  expressly  or  impliedly  set  by  the  employer.  If  the  pas- 
senger actively  interferes  with  the  driver  by  giving  him  orders  as 
to  what  he  is  to  do,  I  can  understand  the  meaning  of  the  expression 
that  the  passenger  identifies  himself  with  the  driver,  but  no  such 
interference  was  suggested  in  Thorogood  v.  Bryan.  The  principles 
of  the  law  of  negligence,  and  in  particular  of  what  is  called  contrib- 
utory negligence,  have  been  discussed  on  many  occasions  since  that 
case  was  decided,  and  are  much  better  understood  now  than  they  were 


Ch,  1)  NEGLIGENCE  1147 

thirty,  years  ago.  Tuff  v.  Warman,  5  C.  B.  (N.  S.)  573,  in  the  Ex- 
chequer Chamber,  and  Radley  v.  London  &  North  Western  Ry.  Co., 
1  App.  Cas.  754,  in  the  House  of  Lords,  show  the  true  grounds  on 
which  a  person  himself  guilty  of  negligence  is  unable  to  maintain 
an  action  against  another  for  an  injury  occasioned  by  the  combined 
negligence  of  both.  If  the  proximate  cause  of  the  injury  is  the 
negligence  of  the  plaintiff  as  well  as  that  of  the  defendant,  the  plain- 
tiff cannot  recover  anything.  The  reason  for  this  is  not  easily  dis- 
coverable. But  I  take  it  to  be  settled  that  an  action  at  common 
law  by  A.  against  B.  for  injury  directly  caused  to  A.  by  the  want 
of  care  of  A.  and  B.  will  not  lie.  As  Pollock,  C.  B.,  pointed  out  in 
Greenland  v.  Chaplin,  supra,  the  jury  cannot  take  the  consequences 
and  divide  them  in  proportion  according  to  the  negligence  of  the 
one  or  the  other  party.  But  if  the  plaintiff  can  show  that  although 
he  has  himself  been  negligent,  the  real  and  proximate  cause  of  the 
injury  sustained  by  him  was  the  negligence  of  the  defendant,  the 
plaintiff  can  maintain  an  action,  as  is  shown  not  only  by  Tuff  v. 
Warman,  supra,  and  Radley  v.  London  &  North  Western  Ry.  Co., 
supra,  but  also  by  the  well-known  case  of  Davies  v.  Mann,  10  M.  & 
W.  546,  and  other  cases  of  that  class.  The  cases  which  give  rise  to 
actions  for  negligence  are  primarily  reducible  to  three  classes,  as 
follows : 

1.  A.  without  fault  of  his  own  is  injured  by  the  negligence  of  B., 
then  B.  is  liable  to  A.  2.  A.  by  his  own  fault  is  injured  by  B.  without 
fault  on  his  part,  then  B.  is  not  liable  to  A.  3.  A.  is  injured  by  B. 
by  the  fault  more  or  less  of  both  combined ;  then  the  following  further 
distinctions  have  to  be  made:  (a)  if,  notwithstanding  B.'s  negligence, 
A.  with  reasonable  care  could  have  avoided  the  injury,  he  cannot  sue 
B. :  Butterfield  v.  Forrester,  11  East,  60;  Bridge  v.  Grand  Junction 
Ry.  Co.,  3  M.  &  W.  244;  Dowell  v.  General  Steam  Navigation  Co., 
5  E.  &  B.  195 ;  (b)  if,  notwithstanding  A.'s  negligence,  B.  with  reason- 
able care  could  have  avoided  injuring  A.,  A.  can  sue  B. :  Tuff  v. 
Warman,  supra ;  Radley  v.  London  &  North  Western  Ry.  Co.,  supra ; 
Davies  v.  Mann,  supra;  (c)  if  there  has  been  as  much  want  of  rea- 
sonable care  on  A.'s  part  as  on  B.'s  or,  in  other  words,  if  the  proxi- 
mate cause  of  the  injury  is  the  want  of  reasonable  care  on  both 
sides,  A.  cannot  sue  B.  In  such  a  case  A.  cannot  with  truth  say 
that  he  has  been  injured  by  B.'s  negligence,  he  can  only  with  truth 
say  that  he  has  been  injured  by  his  own  carelessness  and  B.'s  neg- 
ligence, and  the  two  combined  give  no  cause  of  action  at  common 
law.  This  follows  from  the  two  sets  of  decisions  already  referred 
to.  But  why  in  such  a  case  the  damages  should  not  be  apportioned, 
I  do  not  profess  to  understand.  However,  as  already  stated,  the  law 
on  this  point  is  settled,  and  not  open  to  judicial  discussion.  If  now 
another  person  is  introduced  the  same  principles  will  be  found  ap- 
plicable. Substitute  in  the  foregoing  cases  B.  and  C.  for  B.,  and 
unless  C.  is  A.'s  agent  or  servant  there  will  be  no  difference  in  the 


1148  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

result,  except  that  A.  will  have  two  persons  instead  of  one  liable 
to  him.  A.  may  sue  B.  and  C.  in  one  action,  and  recover  damages 
against  them  both ;  or  he  may  sue  them  separately  and  recover  the 
whole  damage  sustained  against  the  one  he  sues :  Clark  v.  Chambers, 
3  O.  B.  D.  327,  where  all  tlie  previous  authorities  were  carefully 
examined  by  the  late  L.  C.  J.  Cockburn.  This  is  no  doubt  hard  on 
the  defendant,  Avho  is  alone  sued,  and  this  hardship  seems  to  have 
influenced  the  Court  in  deciding  Thorogood  v.  Bryan,  supra.  In 
that  case  the  Court  appears  to  have  thought  it  hard  on  the  defendant 
to  make  him  pay  all  the  damages  due  to  the  plaintiff,  and  that  it 
was  no  hardship  to  the  plaintiff  to  exonerate  the  defendant  from  lia- 
bility, as  the  plaintiff  had  a  clear  remedy  against  the  master  of  the 
omnibus  in  which  he  was  a  passenger.  But  it  is  difficult  to  see  the 
justice  of  exonerating  the  defendant  from  all  liability  in  respect  of 
his  own  wrong  and  of  throwing  the  whole  liability  on  some  one  who 
was  no  more  to  blame  than  he.  The  injustice  to  the  defendant,  which 
the  Court  sought  to  avoid,  is  common  to  all  cases  in  which  a  wrong 
is  done  by  two  people  and  one  of  them  alone  is  made  to  pay  for  it. 
The  rule  which  does  not  allow  of  contribution  among  wrong-doers 
is  what  produces  hardship  in  these  cases,  but  the  hardship  produced 
by  that  rule  (if  really  applicable  to  such  cases  as  these  under  discus- 
sion) does  not  justify  the  Court  in  exonerating  one  of  the  wrong- 
doers from  all  responsibility  for  his  own  misconduct  or  the  miscon- 
duct of  his  servants.  I  can  hardly  believe  that  if  the  plaintiff  in 
Thorogood  v.  Bryan,  had  sued  the  proprietors  of  both  omnibuses  it 
would  have  been  held  that  he  had  no  right  of  action  against  one  of 
them.  Having  given  my  reasons  for  my  inability  to  concur  in  the 
doctrine  laid  down  in  Thorogood  v.  Bryan,  supra,  I  proceed  to  con- 
sider how  far  that  doctrine  is  supported  by  other  authorities.  *  *  * 
Thorogood  v.  Bryan  and  Armstrong  v.  Lancashire  &  Yorkshire  Ry. 
Co.  affirm  that,  although  if  A.  is  injured  by  the  combined  negligence 
of  B.  and  C,  A.  can  sue  B.  and  C,  or  either  of  them,  he  cannot 
sue  C.  if  he,  A.,  is  under  the  care  of  B.  or  in  his  employ.  From 
this  general  doctrine  I  am  compelled  most  respectfully  to  dissent, 
but  if  B.  is  A.'s  agent  or  servant  the  doctrine  is  good.  In  Scotland 
the  decision  in  Thorogood  v.  Bryan  was  discussed  and  held  to  be 
unsatisfactory  in  the  case  of  Adams  v.  Glasgow  &  South  Western 
Ry.  Co.,  3  Court  Sess.  Cas.  215.  In  America  the  subject  was  recently 
examined  with  great  care  by  the  Supreme  Court  of  the  United  States 
in  Little  v.  Hackett  [116  U.  S.  366]  14  Am.  Law  Record,  577,  54 
Am.  Rep.  15,  in  which  the  English  and  American  cases  were  reviewed, 
and  the  doctrine  laid  down  in  Thorogood  v.  Bryan,  supra,  was  dis- 
tinctly repudiated  as  contrary  to  sound  principles.  In  this  case  the 
plaintiff  was  driving  in  a  hackney  carriage  and  was  injured  by  a  col- 
lision between  it  and  a  railway  train  on  a  level  crossing.  There  was 
negligence  on  the  part  of  the  driver  of  the  carriage  and  on  the  part 
of  the  railway  company's  servants,  but  it  was  held  that  the  plain- 


Ch.  1)  NEGLIGENCE  1149 

tiff  was  not  precluded  from  maintaining  an  action  against  the  rail- 
way company.  In  this  country  Thorogood  v.  Bryan  was  distinctly 
disapproved  by  Dr.  Lushington  in  The  Milan,  Lush.  388 ;  and  even 
Lord  Bramwell,  w.ho  has  gone  further  than  any  other  judge  in  up- 
holding the  decision,  has  expressed  disapproval  of  the  grounds  on 
which  it  was  based.  No  text-writer  has  approved  of  it,  and  the 
comments  in  Smith's  Leading  Cases  are  adverse  to  it  (volume  1,  p. 
266,  6th  Ed.).  For  the  reasons  above  stated,  I  am  of  opinion  that 
the  doctrines  laid  down  in  Thorogood  v.  Bryan  and  Armstrong  v. 
Lancashire  &  Yorkshire  Ry.  Co.  are  contrary  to  sound  legal  principles, 
and  ought  not  to  be  regarded  as  law.  Consequently,  I  am  of  opinion 
that  the  decision  in  Toeg's  and  Armstrong's  case  ought  to  be  re- 
versed.^^ 

Appeal  allowed.^* 

13  The  concurring  opinions  of  Lord  Esher,  M.  R.,  and  Lopes,  L.  J.,  are 
omitted.  Lord  Esher's  opinion  (12  P.  D.  pages  60-84)  contains  an  elaborate 
review  of  the  authorities,  English  and  American. 

14  From  this  decision  an  appeal  was  taken  to  the  House  of  Lords,  where, 
under  the  name,  Mills  v.  Armstrong,  L.  R.  13,  App.  Cases  (1888),  the  judgment 
of  the  Court  of  Api>eal  was  affirmed. 

Commenting  on  the  doctrine  of  identification  in  Thorogood  v.  Bryan,  Lord 
Herschell,  in  Mills  v.  Armstrong  remarks  as  follo\\^s:  '^With  the  utmost  re- 
spect for  these  eminent  judges,  I  must  say  that  I  am  unable  to  comprehend 
this  doctrine  of  identification  upon  which  they  lay  so  much  stress.  In  what 
sense  is  the  passenger  by  a  public  stage-coach,  because  he  avails  himself  of 
the  accommodation  afforded  by  it,  identified  with  the  driver?  The  learned 
judges  manifestly  do  not  mean  to  suggest  (though  some  of  the  language  used 
would  seem  to  bear  that  construction)  that  the  passenger  is  so  far  identified 
with  the  driver  that  the  negligence  of  the  latter  would  render  the  former 
liable  to  third  persons  injured  by  it.  I  presume  that  they  did  not  even  mean 
that  the  identification  is  so  complete  as  to  prevent  the  passenger  from  re- 
covering against  the  driver's  master ;  though  if  'negligence  of  the  owner's 
servants  is  to  be  considered  negligence  of  the  passenger.'  or  if  he  'must  be  con- 
sidered a  party'  to  their  negligence,  it  is  not  easy  to  see  why  it  should  not 
be  a  bar  to  such  an  action.  In  short,  as  far  as  I  can  see,  the  identification 
appears  to  be  effective  only  to  the  extent  of  enabling  another  person  whose 
servants  have  been  guilty  of  negligence  to  defend  himself  by  the  allegation 
of  contributory  negligence  on  the  part  of  the  person  injured.  But  the  vei'j' 
question  that  had  to  be  determined  was,  whether  the  contributory  negligence 
of  the  driver  of  the  vehicle  was  a  defence  as  against  the  passenger  when 
suing  another  wrongdoer.  To  say  that  it  is  a  defence  because  the  passenger 
is  identified  with  the  driver,  appears  to  me  to  beg  the  question,  when  it  is 
not  suggested  that  this  identification  results  from  any  recognized  principles 
of  law,  or  has  any  other  effect  than  to  furnish  that  defence  the  validity  of 
which  was  tlie  very  point  in  issue.  Two  persons  may  no  doubt  be  so  bound 
together  by  the  legal  relation  in  which  tliey  stand  to  each  other  that  the  acts 
of  one  may  be  regarded  by  the  law  as  the  acts  of  the  other.  But  tlie  rela- 
tion between  the  passenger  in  a  public  vehicle  and  the  driver  of  it  certainly 
is  not  such  as  to  fall  within  any  of  the  recognized  categories  in  which  the  act 
of  one  man  is  treated  in  law  as  the  act  of  another." 


1150  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 


WAITE  V.  NORTHEASTERN  RY.  CO. 

(Court  of  Queen's  Bench,  185S.     Court  of  Exchequer  Chamber,  1859.     E31,  Bl. 

&  El.  719,  728,  113   R.  R.  855.)  * 

Action  by  Alexander  Waite,  an  infant,  to  recover  for  the  alleged 
negligence  of  the  defendant  railway  company.  The  defendant  filed 
a  plea  of  not  guilty  and  two  special  pleas.    Issues  on  all  the  pleas. 

Lord  Campbell,  C.  J.  In  this  case  we  think  that  the  rule  ought 
to  be  made  absolute  for  entering  a  verdict  for  the  defendants,  or  for 
a  nonsuit.  The  jury  must  be  taken  to  have  found  that  Mrs.  Park,  the 
grandmother  of  the  infant  plaintiff,  in  whose  care  he  was  when  the 
accident  happened,  was  guilty  of  negligence  without  which  the  acci- 
dent would  not  have  happened;  and  that,  notwithstanding  the  neg- 
ligence of  the  defendants,  if  she  had  acted  upon  this  occasion  with 
ordinary  caution  and  prudence,  neither  she  herself  nor  the  infant 
would  have  suffered.  Under  such  circumstances,  had  she  survived  she 
could  not  have  maintained  any  action  against  the  Company ;  and  we 
think  that  the  infant  is  so  identified  with  her  that  the  action  in  his 
name  cannot  be  maintained.  The  relation  of  master  and  servant  cer- 
tainly did  not  subsist  between  the  grandchild  and  the  grandmother ;  and 
she  cannot  in  any  sense  be  considered  his  agent :  but  we  think  that  the 
defendants,  in  furnishing  the  ticket  to  one  and  the  half-ticket  for  the 
other,  did  not  incur  a  greater  liability  towards  the  grandchild  than 
towards  the  grandmother,  and  that  she,  the  contracting  party,  must 
be  implied  to  have  promised  that  ordinary  care  should  be  taken  of 
the  grandchild. 

We  do  not  consider  it  necessary  to  offer  any  opinion  as  to  the  recent 
cases  in  which  passengers  by  coaches  or  by  ships  have  brought  actions 
for  damage  suffered  from  the  negligent  management  of  other  coaches 
and  ships,  there  having  been  negligence  in  the  management  of  the 
coaches  and  ships  by  which  they  were  travelling,  as,  at  all  events,  a 
complete  identification  seems  to  us  to  be  constituted  between  the 
plaintiff  and  the  party  whose  negligence  contributed  to  the  damage 
which  is  the  alleged  cause  of  action,  in  the  same  manner  as  if  the 
plaintiff  had  been  a  baby  only  a  few  days  old,  to  be  carried  in  a 
nurse's  arms. 

Rule  absolute. 

The  plaintiff  having  appealed  against  the  above  decision,  the  case 
was  argued  in  the  Exchequer  Chamber. 

CocKBURN,  C.  J.  I  am  of  opinion  that  the  judgment  of  the  Court  of 
Queen's  Bench  ought  to  be  affirmed.  I  put  the  case  on  this  ground : 
that,  when  a  child  of  such  tender  and  imbecile  age  is  brought  to  a 
railway  station  or  to  any  conveyance,  for  the  purpose  of  being  con- 
veyed, and  is  wholly  unable  to  take  care  of  itself,  the  contract  of  con- 
veyance is  on  the  implied  condition  that  the  child  is  to  be  conveyed 
subject  to  due  and  proper  care  on  the  part  of  the  person  having  it  in 


Ch.  1)  NEGLIGENCE  1151 

charge.  Such  care  not  being  used,  where  the  child  has  no  natural 
capacity  to  judge  of  the  surrounding  circumstances,  a  child  might 
get  into  serious  danger  from  a  state  of  things  which  would  produce 
no  disastrous  consequences  to  an  adult  capable  of  taking  care  of  him- 
self. Here  the  child  was  under  the  charge  of  his  grandmother;  and 
the  company  must  be  taken  to  have  received  the  child  as  under  her 
control  and  subject  to  her  management.  The  plea  and  finding  show 
that  the  negligence  of  the  defendants  contributed  partially  to  the 
damage;  but  that  the  negligence  of  the  person  in  whose  charge  the 
child  was,  and  Vv-ith  reference  to  whom  the  contract  of  conveyance  was 
made,  also  contributed  partially.  There  is  not  therefore  that  negli- 
gence on  the  part  of  the  defendants  which  is  necessary  to  support 
the  action. 

Pollock,  C.  B.  I  entirely  agree.  The  shortest  way  of  putting 
Mr.  Mellish's  argument  is  that  this  is  not  a  mere  case  of  simple  wrong, 
but  one  arising  from  the  contract  of  the  grandmother  on  the  part  of 
the  plaintiff,  who  must  avail  himself  of  that  contract,  without  which  he 
cannot  recover.  There  really  is  no  difference  between  the  case  of  a 
person  of  tender  years  under  the  care  of  another  and  a  valuable  chattel 
committed  to  the  care  of  an  individual,  or  even  not  committed  to  such 
care.  The  action  cannot  be  maintained  unless  it  can  be  maintained  by 
the  person  having  the  apparent  possession,  even  though  the  child  or  the 
chattel  was  not  regularly  put  into  the  possession  of  the  person,  as,  for 
instance,  though  the  party  taking  charge  of  the  child  had  done  so 
without  the  father's  consent ;  that  circumstance  would  make  no  dift'er- 
ence  as  to  the  question  of  the  child's  right.  That  is  my  reason  for 
pressing  this  argument  of  Air.  jMellish,  as  it  meets  every  possible  view 
of  the  case/^ 


SECTION  5.— THE  LAST  CLEAR  CHANCE 


CLAY  V.  WOOD. 

(At  Nisi  Prius,  iu  the  King's  Bench,  1803.    5  Esp.  44.) 

This  was  an  action  on  the  case,  for  negligently  driving  a  chaise 
against  a  certain  horse  of  the  defendant's  on  which  the  plaintift"s 
servant  then  rode,  by  which  he  had  his  thigh  broke;  in  consequence 
of  which  he  died. 

15  The  concurring  opinions  of  Williams  and  Crowder,  J  J.,  and  of  Bramwell, 
B.,  are  omitted. 

In  the  argument  Pollock,  C.  B.,  put  this  question  to  counsel:  "Suppose  a 
man  to  drive  his  own  gig,  in  which  his  child  is,  and  to  come  into  collision 
with  another  carriage  through  the  negligence  of  both  drivers.  Can  the  child 
recover  against  the  owners  of  the  other  carriage?  That  would  be  manifest- 
ly absurd.    ♦     •    • " 


1152  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

The  facts  were,  that  the  plaintiff's  servant  was  riding  on  the  wrong 
side  of  the  road ;  but  near  the  middle  of  it.  The  defendant  was  the 
owner  of  a  chaise,  then  driven  by  his  servant,  coming  out  of  another 
road,  and  crossing  the  road  over  to  that  side  of  the  road  on  which 
the  servant  was  riding,  which  was  the  proper  side  of  the  road  for  the 
defendant.  In  so  crossing  over,  the  shaft  of  the  chaise  struck  the 
horse  in  the  thigh,  and  broke  it.  The  defendant's  counsel  replied, 
That  it  was  the  duty  of  the  servant  to  have  kept  on  his  proper  side; 
and  that  the  accident  being  occasioned  by  his  being  so  out  of  place, 
the  defendant  was  not  liable. 

Lord  Ellenborough  said,  That  the  circumstance  of  the  person 
being  on  the  wrong  side  of  the  road  was  not  sufHcient  to  discharge 
the  defendant ;  for  though  a  person  might  be  on  his  wrong  side  of  the 
road,  if  the  road  was  of  sufficient  breadth,  so  that  there  was  full  and 
ample  room  for  the  party  to  pass,  he  was  of  opinion  he  was  bound  to 
take  that  course  which  should  carry  him  clear  of  the  person  who  was 
on  his  wrong  side;  and  that  if  an  injury  happened,  by  running  against 
such  person,  he  would  be  answerable.  A  person  being  on  his  wrong 
side  of  the  road  could  not  justify  another  in  wantonly  doing  an  in- 
jury, which  might  be  avoided.  The  question  therefore  to  be  left  to 
the  jury  was.  Whether  there  was  such  room,  that  though  the  plain- 
tiff's servant  was  on  his  wrong  side  of  the  road,  there  was  sufficient 
room  for  the  defendant's  carriage  to  pass  between  the  plaintiff's  horse 
and  the  other  side  of  the  road?  If  they  were  of  opinion  that  there 
was,  the  plaintiff  was  entitled  to  recover. 

Verdict  for  the  plaintiff". 


DA  VIES  V.  MANN. 

(Court  of  Exchequer,  1842.    10  Mees.  &  W.  546,  62  R.  R.  608.) 

Case  for  negligence.  The  declaration  stated,  that  the  plaintiff  there- 
tofore, and  at  the  time  of  the  committing  of  the  grievance  thereinafter 
mentioned,  to  wit,  on,  &c.,  was  lawfully  possessed  of  a  certain  donkey, 
which  said  donkey  of  the  plaintiff  was  then  lawfully  in  a  certain  high- 
way, and  the  defendant  was  then  possessed  of  a  certain  waggon  and 
certain  horses  drawing  the  same,  which  said  waggon  and  horses  of 
the  defendant  were  then  under  the  care,  government,  and  direction 
of  a  certain  then  servant  of  the  defendant,  in  and  along  the  said  high- 
way; nevertheless  the  defendant,  by  his  said  servant,  so  carelessly, 
negligently,  unskillfully,  and  improperly  governed  and  directed  his 
said  waggon  and  horses,  that  by  and  through  the  carelessness,  neg- 
hgence,  unskillfulness,  and  improper  conduct  of  the  defendant,  by  his 
said  servant,  the  said  waggon  and  horses  of  the  defendant  then  ran 
and  struck  with  great  violence  against  the  said  donkey  of  the  plaintiff, 
and  thereby  then  wounded,  crushed  and  killed  the  same,  &c.  The  de- 
fendant pleaded  not  guilty. 


Ch.  1)  NEGLIGENCE  1153 

At  the  trial  before  Erskine,  J.,  at  the  last  Summer  Assizes  for  the 
county  of  Worcester,  it  appeared  that  the  plaintiff,  having  fettered 
the  forefeet  of  an  ass  belonging  to  him,  turned  it  into  the  public  high- 
way, and  at  the  time  in  question  the  ass  was  grazing  on  the  off  side  of 
a  road  about  eight  yards  wide,  when  the  defendant's  waggon,  with  a 
team  of  three  horses,  coming  down  a  slight  descent,  at  what  the  witness 
termed  a  smartish  pace,  ran  into  the  ass,  knocked  it  down,  and  the 
wheels  passing  over  it,  it  died  soon  after.  The  ass  was  fettered  at 
the  time  and  it  was  proved  that  the  driver  of  the  waggon  was  some 
little  distance  behind  the  horses.  The  learned  Judge  told  the  jury 
that  though  the  act  of  the  plaintiff,  in  leaving  the  donkey  on  the  high- 
way, so  fettered  as  to  prevent  his  getting  out  of  the  way  of  carriages 
travelling  along  it,  might  be  illegal,  still,  if  the  proximate  cause  of 
the  injury  was  attributable  to  the  want  of  proper  conduct  on  the  part  of 
the  driver  of  the  waggon,  the  action  was  maintainable  against  the 
defendant ;  and  his  Lordship  directed  them,  if  they  thought  that  the 
accident  might  have  been  avoided  by  the  exercise  of  ordinary  care  on 
the  part  of  the  driver,  to  find  for  the  plaintiff.  The  jury  found  their 
verdict  for  the  plaintiff,  damages  40s. 

Godson  now  moved  for  a  new  trial,  on  the  ground  of  misdirection. 
The  act  of  the  plaintiff  in  turning  the  donkey  into  the  public  highway 
was  an  illegal  one,  and,  as  the  injury  arose  principally  from  that  act, 
the  plaintiff  was  not  entitled  to  compensation  for  that  injury  which,  but 
for  his  own  unlawful  act,  would  never  have  occurred.  [Parke,  B. 
The  declaration  states  that  the  ass  was  lawfully  on  the  highway,  and 
the  defendant  has  not  traversed  that  allegation;  therefore  it  must  be 
taken  to  be  admitted.]  The  principle  of  law,  as  deducible  from  the 
cases  is,  that  where  an  accident  is  the  result  of  faults  on  both  sides, 
neither  party  can  maintain  an  action.  Thus,  in  Butterfield  v.  Forres- 
ter, 11  East,  60,  it  was  held  that  one  who  is  injured  by  an  obstruction 
on  a  highway,  against  which  he  fell,  cannot  maintain  an  action,  if  it 
appear  that  he  was  riding  with  great  violence  and  want  of  ordinary 
care,  without  which  he  might  have  seen  and  avoided  the  obstruction. 
So,  in  Vennall  v.  Garner,  1  C.  &  M.  21,  in  case  for  running  down  a 
ship,  it  was  held,  that  neither  party  can  recover  when  both  are  in  the 
wrong;  and  Bayley,  B.,  there  says,  "I  quite  agree  that  if  the  mis- 
chief be  the  result  of  the  combined  negligence  of  the  two,  they  must 
both  remain  in  statu  quo,  and  neither  party  can  recover  against  the 
other."  Here  the  plaintiff,  by  fettering  the  donkey,  had  prevented 
him  from  removing  himself  out  of  the  way  of  accident;  had  his  fore- 
feet been  free  no  accident  would  probably  have  happened.  Pluckwell 
V.  Wilson.  5  Car.  &  P.  375 ;  Luxford  v.  Large,  Ibid.  421,  and  Lynch 
V.  Nurdin,  1  Ad.  &  E.  (N.  S.)  29;  4  P.  &  D.  672,  are  to  the  same 
effect. 

Lord  Abinger,  C.  B.     I  am  of  opinion  that  there  ought  to  be  no 
rule  in  this  case.    The  defendant  has  not  denied  that  the  ass  was  law- 
Hepb.Tobts — 73 


1154  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

fully  in  the  highway,  and  therefore  we  must  assume  it  to  have  been 
lawfully  there ;  but  even  were  it  otherwise,  it  would  have  made  no  dif- 
ference, for  as  the  defendant  might,  by  proper  care,  have  avoided  in- 
juring the  animal,  and  did  not,  he  is  liable  for  the  consequences  of  his 
negligence,  though  the  animal  may  have  been  improperly  there. 
.  ParkE,  B.  This  subject  was  fully  considered  by  this  Court  in  the 
case  of  Bridge  v.  The  Grand  Junction  Railway  Company,  3  M.  &  W. 
246,  where,  as  appears  to  me,  the  correct  rule  is  laid  down  concerning 
negligence,  namely,  that  the  negligence  which  is  to  preclude  a  plain- 
tiff from  recovering  in  an  action  of  this  nature,  must  be  such  as  that 
he  could,  by  ordinary  care,  have  avoided  the  consequences  of  the  de- 
fendant's negligence.  I  am  reported  to  have  said  in  that  case,  and  I 
believe  quite  correctly,  that  "the  rule  of  law  is  laid  down  with  perfect 
correctness  in  the  case  of  Butterfield  v.  Forrester,  that,  although  there 
may  have  been  negligence  on  the  part  of  the  plaintiff,  yet  unless  he 
might,  by  the  exercise  of  ordinary  care,  have  avoided  the  consequences 
of  the  defendant's  negligence,  he  is  entitled  to  recover;  if  by  ordinary 
care  he  might  have  avoided  them,  he  is  the  author  of  his  own  wrong." 
In  that  case  of  Bridge  v.  Grand  Junction  Railway  Company,  there 
was  a  plea  imputing  negligence  on  both  sides ;  here  it  is  otherwise ; 
and  the  judge  simply  told  the  jury,  that  the  mere  fact  of  negligence 
on  the  part  of  the  plaintiff  in  leaving  his  donkey  on  the  public  high- 
way, was  no  answer  to  the  action,  unless  the  donkey's  being  there  was 
the.  immediate  cause  of  the  injury;  and  that,  if  they  were  of  opinion 
that  it  was  caused  by  the  fault  of  the  defendant's  servant  in  driving 
too  fast  or,  which  is  the  same  thing,  at  a  smartish  pace,  the  mere  fact 
of  putting  the  ass  upon  the  road  would  not  bar  the  plaintiff"  of  his 
action.  All  that  is  perfectly  correct;  for,  although  the  ass  may  have 
been  wrongfully  there,  still  the  defendant  was  bound  to  go  along  the 
road  at  such  a  pace  as  would  be  likely  to  prevent  mischief.  Were  this 
not  so,  a  man  might  justify  the  driving  over  goods  left  on  a  public 
highway,  or  even  over  a  man  lying  asleep  there,  or  the  purposely  run- 
ning against  a  carriage  going  on  the  wrong  side  of  the  road. 
GuRNEY,  B.,  and  Rolfe,  B.,  concurred. 
Rule  refused.^* 

18  Compare  the  earlier  ca.se  of  Payne  v.  Smith  (1S3G)  4  Dana  (Ky.)  497: 
Whilst  driving  his  horse  in  a  gig,  in  a  brisk  trot,  in  one  of  the  streets  of 
Lexington,  the  defendant,  in  passing  through  a  narrow  space  of  about  ten 
feet  in  width,  between  a  wagon  and  one  of  the  side  pavements,  came  in  con- 
tact witli  the  plaintiff's  horse,  which  was  walking  alone  across  the  street, 
rather  obliyuely  towards  the  gig."  A  recovery  for  the  plaintiff,  suing  in  tres- 
pass, was  permitted.  "The  testimony,"  said  Robertson,  C.  J.,  "will  not  allow 
the  inference  that  the  violent  collision  was  the  consequence,  altogether  or 
chiefly,  of  the  heedlessness,  or  voluntary  perverseness  of  the  plaintiff's  horse; 
or  that  the  injurious  contact  was  unavoidable  by  the  defendant ;  or  that  it 
would  have  occurred  had  he  been  reasonably  vigilant  and  careful,  or  had  he 
been  driving  with  prudent  speed." 


Ch.  1)  NEGLIGENCE  1155 


TUFF  V.  WAR^IAN. 

(In  the  Exchequer  Chamber,  1S5S.    5  C.  B.  [N.  S.]  573,  141  Reprint,  231, 

116  R.  R.  774.) 

This  was  an  appeal  from  a  decision  of  the  Court  of  Common 
Pleas  discharging  a  rule  for  a  new  trial  (moved  on  the  ground  of 
misdirection  and  that  the  verdict  was  against  evidence)  in  an  action 
against  the  defendant,  a  Trinity  House  pilot,  for  negligently  navigat- 
ing a  steam  vessel  called  the  "Celt"  in  the  river  Thames,  and  run- 
ning against  and  damaging  the  plaintiff's  barge,  the   "Nancy." 

The  cause  was  tried  before  Willes,  J.,  at  the  sittings  in  London 
after  Hilary  Term,  1857,  when  a  verdict  was  found  for  the  plaintiff.^^ 
The  facts  brought  out  in  the  evidence  were  substantially  as  follows : 

At  the  time  the  collision  took  place,  the  "Nancy"  was  sailing  down  the  river 
with  a  fair  wind ;  and  the  "Celt"  was  steaming  up  the  river.  There  were 
only  two  persons  on  board  the  "Nancy."  One  was  occupied  in  washing  the 
deck ;  the  other  was  steering.  The  latter  was  in  such  a  position  that  he  could 
not  see  ahead  (the  sail  being  in  the  way)  without  stooping.  He  stated  that 
he  had  seen  the  "Celt"  when  more  than  half  a  mile  off,  on  the  south  side 
of  the  river,  and  when  he  so  saw  her  there  was  no  likelihood  of  her  coming 
into  collision  with  the  barge:  that  he  had  not  seen  her  again  until  just  before 
the  collision,  when,  he  said,  he  ported  his  helm,  but  that  it  was  then  too  late 
to  alter  the  course  of  the  barge;  that,  if  he  had  seen  the  steamer  a  few  min- 
utes before,  he  should  have  ported  his  helm,  but  he  should  not  have  avoid- 
ed the  collision  by  porting  his  helm  five  minutes  before;  and  that  there  was 
plenty  of  room  on  each  side  for  the  steamer  to  pass. 

Two  seamen  who  were  in  another  vessel  were  called  by  the  plaintiif,  and 
stated  that  the  "Celt"  was  about  the  middle  of  the  river,  but  nearer  to  the 
north  than  to  the  south  shore ;  that  the  "Celt"  and  the  "Nancy"  were  for  a 
quarter  of  a  mile  or  more  before  the  collision  in  a  direct  line ;  that  the  "Celt" 
did  not  port  her  helm;  and  that  there  was  no  difhculty  in  the  steamer  pass- 
ing the  "Nancy"  on  either  side. 

On  the  part  of  the  defendant,  witnesses  were  called  to  prove  that  the 
defendant  was  only  one-fourth  of  the  width  of  the  river  from  the  north  bank 
of  the  river ;  that  he  was  keeping  a  lookout  and  that  he  could  not  see 
whether  any  one  was  looking  out  on  the  barge;  that,  several  minutes  be- 
fore the  collision  he  directed  the  helm  of  the  "Celt"  to  be  ported,  and  that 
this  direction  was  obeyed ;  that  this  was  done  in  time  to  void  the  collision, 
had  the  "Nancy"  at  the  same  time  ported  her  helm  also,  or  if  she  had  even 
kept  on  her  course ;  but  that  her  steersman  had  starboarded  his  helm  instead 
of  porting  it. 

In  his  summing  up  the  learned  Judge  told  the  jury  that  the  plain- 
tiff was  not  entitled  to  recover  if  it  was  an  accident,  or  if  the  plaintiff' 
by  his  negligence  had  directly  contributed  to  the  accident ;  and  that, 
if  the  injury  was  occasioned  by  the  negligence  of  both  parties,  the 
plaintiff  had  no  remedy:  and  he  asked  the  jury  whether  they  thought 
the  absence  of  look-out  was  an  act  of  negligence  on  the  part  of  the 
plaintiff;  and,  if  so,  they  would  have  to  take  it  into  consideration  in 
deciding  whether,  notwithstanding  that,  the  defendant  was  liable : 
and  he  further  told  them,  that,  if  the  parties  on  one  vessel  had  a 
look-out  and  still  persisted  in  a  course  which  would  inflict  an  injury, 

17  See  Tuft'  v.  Warman  (1857)  2  C.  B.  N.  S.  740,  140  Reprint,  U07. 


1156  TORTS  THROUGH   ACTS  OP  CONDITIONAL  LIABILITY         (Part  3 

then  they  were  liable,  though  there  was  no  look-out  on  the  other  ves- 
sel, for  that  would  not  be  the  direct  cause  of  the  injury:  and  he 
referred  to  the  case  of  Davies  v.  Mann,  10  M,  &  W.  546,  by  way 
of  illustration.  The  learned  Judge  further  told  the  jury,  that,  if  they 
thought  the  accident  liad  been  partly  caused  by  the  plaintiffs  own 
negligence,  they  should  find  for  the  defendant;  but  that,  if  they 
thought  the  barge  was  injured  by  the  negligence  of  the  defendant, 
and  that  the  negligence  of  the  plaintiff  did  not  directly  contribute 
thereto,  the  plaintiff  was  entitled  to  recover. 

In  the  following  Easter  Term,  a  rule  was  obtained  on  the  part  of 
the  defendant  calling  upon  the  plaintiff  to  show  cause  why  there 
should  not  be  a  new  trial,  on  the  ground  that  the  learned  Judge  had 
misdirected  the  jur)%  in  this,  that  he  ought  to  have  told  them,  that, 
if  the  plaintiff  by  his  negligence  contributed  to  the  occasioning  of 
the  accident,  he  could  not  recover,  whether  he  contributed  directly 
or  indirectly ;  and  that,  even  assuming  negligence  on  the  defendant's 
part,  the  plaintiff  could  not  recover,  if  he  might  by  the  exercise  of 
ordinary  care  have  avoided  the  consequences  of  the  defendant's  negli- 
gence; and  that  he  should  further  have  told  the  jury,  that,  if  the 
plaintiff  failed  to  comply  with  the  statutory  rule  relative  to  portmg 
his  helm,  whether  his  failure  to  do  so  arose  from  his  not  looking 
out  or  from  other  causes,  and  such  failure  either  directly  or  indi- 
rectly contributed  to  the  collision,  he  could  not  recover. 

Cause  was  shown  against  this  rule  in  Trinity  Term,  1857,  and  the 
rule  was  discharged ;  but  leave  was  given  to  the  defendant  to  ap- 
peal, pursuant  to  the  35th  section  of  the  Common  Law  Procedure 
Act,  1854,  17  &  18  Vict.  c.  125.     (Vide  2  C.  B.  N.  S.  740.) 

If  the  Court  should  be  of  opinion  that  the  objections  made  to  the 
ruling  of  the  learned  Judge  are  unsustainable,  the  judgment  below 
is  to  stand :  if  not,  the  judgment  below  is  to  be  reversed,  and  a  new 
trial  ordered. 

The  case  was  argued  on  the  10th  of  May,  1858,  before  Wightman, 
J.,  Erle,  J.,  Crompton,  J.,  Watson,  B.,  Bramwell,  B.,  and  Chan- 
NELL,  B.^^ 

Cur.  adv.  vult. 

Wightman,  J.,  now  delivered  the  judgment  of  the  Court:  It  ap- 
pears to  us  tliat  the  proper  question  for  the  jury  in  this  case,  and 
indeed  in  all  others  of  the  like  kind,  is,  whether  the  damage  was 
occasioned  entirely  by  the  negligence  or  improper  conduct  of  the  de- 
fendant, or  whether  the  plaintiff"  himself  so  far  contributed  to  the 
misfortune  by  his  own  negligence  or  want  of  ordinary  and  common 
care  and  caution,  that,  but  for  such  negligence  or  want  of  ordinary 
care  and  caution  on  his  part,  the  misfortune  would  not  have  hap- 
pened.    In  the  first  case,  the  plaintiff  would  be  entitled  to  recover, 

18  The  statement  of  the  case  is  abridged,  and  the  arguments  of  counsel  are 
omitted. 


Ch.  1)  NEGLIGENCE  1157 

in  the  latter  not ;  as,  but  for  his  own  fault,  the  misfortune  would  not 
have  happened.  Mere  negligence  or  want  of  ordinary  care  or  caution 
would  not  however,  disentitle  him  to  recover  unless  it  were  such,  that, 
but  for  that  negligence  or  want  of  ordinary  care  and  caution,  the  mis- 
fortune could  not  have  happened;  nor,  if  the  defendant  might  by 
the  exercise  of  care  on  his  part  have  avoided  the  consequences  of 
the  neglect  or  carelessness  of  the  plaintiff. 

This  appears  to  be  the  result  Reducible  from  the  opinion  of  the 
Judges  in  Butterfield  v.  Forrester,  11  East,  60,  Bridge  v.  Grand 
Junction  Railway  Company,  3  M.  &  W.  246,  Davies  v.  I\Iann,  10  M.  & 
W.  548,  and  Dowell  v.  General  Steam  Navigation  Company,  5  El. 
&  Bl.  206. 

In  the  present  case  the  main  objection  taken  to  the  summing-up 
was,  that  the  judge  left  to  the  jury  whether  the  plaintiff  by  his  neg- 
ligence "directly"  contributed  to  the  misfortune;  and  it  was  con- 
tended, for  the  defendant,  that,  whether  he  directly  or  indirectly  con- 
tributed, was  immaterial,  if  he  contributed  to  it  by  his  negligence  at 
all.  But  the  direction  to  the  jury  must  have  reference  to  the  evi- 
dence in  the  case;  and,  taking  the  whole  summing-up  together,  in 
connection  with  the  evidence,  we  do  not  think  that  the  jury  could 
have  been  misled  by  the  use  of  the  word  "directly."  The  learned 
Judge  told  the  jury,  that,  if  the  absence  of  a  look-out  was  negligence 
on  the  part  of  the  plaintiff,  still,  if  the  defendant  also  had  a  look- 
out, and  nevertheless  persisted  in  a  course  that  would  inflict  an  injury, 
he  would  be  liable,  though  the  plaintiff  had  no  look-out ;  for  that  neg- 
lect of  the  plaintiff"  would  not  be  the  direct  cause  of  the  injury,  that 
is  to  say,  would  not  be  a  cause  without  which  the  injury  would  not 
have  happened. 

In  this,  which  seems  to  be  the  obvious  sense  in  which  the  word 
"direct"  was  used,  we  do  not  think  there  was  any  misdirection ;  and, 
in  other  respects,  the  summing-up  does  not  appear  to  be  objection- 
able, according  to  the  rules  to  be  adduced  from  the  authorities'  re- 
ferred to. 

Upon  the  whole,  then,  we  are  of  opinion  that  the  judgment  should 
be  affirmed. ^^ 

Judgment  affirmed.^ ° 

19  "The  judgment  of  the  Exchequer  Chamber  in  Tuff  v.  Warman  has  been 
accepted,  now  for  half  a  century,  in  England  and  I  think  we  may  say  in  most 
Common  I^aw  jurisdictions,  as  the  leading  authority  in  actions  for  negligence 
where  there  is  evidence  that  both  parties  have  contriliuted  to  the  result  by 
successive  or  alternate  failures  to  act  with  due  care  and  caution.  In  such  a 
case  the  question  is  which  of  them  might  last  have  avoided  the  harmful  result 
by  the  exercise  of  reasonable  care.  It  has  been  jiistly  said  that  the  rule  in 
Tuff  V.  Warman  is  not  in  terms  applicable  to  cases  where  the  negligence 
of  the  plaintiff  and  the  defendant  is  not  successive  but  simultaneous.    There 

2  0  Compare  the  distinction  taken  in  Ketch  Frances  v.  Steamship  Highland 
Loch,  [101:;]  A.  C.  ol2,  whore  the  defendants  "were  placed  in  a  position  in 
which  they  had  to  take  one  of  two  risks." 


1158  TORTS   THROUGH   ACTS  OF  CONDITIONAL   LIABILITY         (Part  3 

• 

RADLEY  et  al.  v.  LONDON  &  N.  W.  RY.  CO. 

(House  of  Lords,  1876.     1  App.  Cas.  754.) 

This  was  an  appeal  against  a  decision  of  the  Court  of  Exchequer 
Chamber.-^  The  appellants  were  the  plaintiffs  in  an  action  brought 
in  the  Court  of  Exchequer,  in  which  they  claimed  damages  for  the 
destruction  of  a  bridge  occasioned,  as  they  alleged,  by  the  negligence 
of  the  defendants'  servants.  The  cause  was  tried  at  the  Liverpool 
Summer  Assizes,  1873,  before  Brett,  J.,  when  the  following  facts  were 
proved : 

The  plaintiffs  were  colliery  proprietors  owning  and  working  a  colliery  close 
to  a  branch  of  the  defendant's  railway  called  the  Parr  Branch.  In  con- 
nection with  the  Parr  Branch  there  were  certain  sidings  on  the  land  of  the 
plaintiffs,  and  belonging  to  them,  made  by  them  for  convenience  of  trans- 
ferring and  carrying  coal  raised  from  their  colliery  to  and  by  the  defendant's 
line  of  railway.  Upon  these  sidings  of  the  plaintiffs  no  engine  of  the  defendants 
was  accustomed  to  run  throughout,  and  they  were  used  solely,  as  far  as 
the  defendants  were  concerned,  for  placing  therein  returned  empty  waggons 
by  the  defendants  and  removing  waggons  therefrom  when  filled  with  coal. 
Waggons  once  left  on  these  sidings  by  the  defendants  were  entirely  within 
the  control  of  the  plaintiffs.  The  defendants  were  accustomed  to  bring  empty 
returned  waggons  along  the  Parr  Branch  at  any  hour  by  day  or  night,  and 
without  notice  to  the  plaintiffs  to  shunt  such  waggons  onto  the  plaintiffs  sid- 
il^gs,  where  they  were  left  under  the  plaintiffs'  control.  Part  of  the  siilings 
was  crossed  by  a  bridge  used  as  a  tramway,  about  eight  feet  in  height  from 
the  level  of  the  rails,  on  which  rested  part  of  the  head  gearing  and  supports 
necessary  for  the  working  of  the  plaintiffs'  colliery.  An  empty  waggon,  or 
one  loaded  in  an  ordinary  way  with  coal,  could  pass  safely  and  clearly  under 
this  bridge,  and  waggons  were  occasionally  shunted  under  it  by  the  defend- 
ants, but  when  they  did  so  it  was  complained  of  by  the  plaintiffs,  on  the 
ground  that  waggons  so  left  blocked  up  a  public  highway  called  Fleet  Lane 
which  crossed  the  siding  between  the  railway  and  the  bridge. 

At  the  plaintiffs'  colliery  it  was  the  ordinai-y  custom  to  leave  off  work  at 
12:o0  p.  m.  on  Saturdays  and  to  resume  at  6  a.  m.  on  Mondays.  About  2:.30 
p.  m.  on  Saturday,  the  25th  of  January,  1873,  the  defendants  brought  three 
or  four  empty  waggons  of  the  plaintiffs',  together  with  a  disabled  waggon  of 
the  plaintiff's'  loaded  upon  another  waggon,  and  marked  "home  for  repairs," 
along  the  Parr  Branch,  and  shunted  them  onto  plaintiffs'  siding,  and  left 
them  there.  The  height  of  the  waggon,  with  the  disabled  waggon  loaded  on  it, 
was  about  eleven  feet  in  all,  too  high  to  pass  under  the  bridge  before  men- 

a  simpler  rule  will  suffice,  namely,  that  if  the  plaintiff  could  have  avoided 
the  accident  by  the  use  of  ordinary  care  he  cannot  recover.  See  the  learned 
and  judicious  remarks  of  an  anonymous  reviewer  in  the  Law  Quarterly  Re- 
view, V.  87.  This  distinction  was  taken  as  long  ago  as  18G0.  Murphy  v. 
Deane  (1869)  101  Mass.  455,  3  Am.  Kep.  390.  That  judgment  is  not  wholly 
satisfying  to  English  readers,  for  it  insists  on  the  doctrine  (not  accepted  by 
the  majority  of  American  jurisdictions)  that  the  plaintiff  has  to  prove,  as 
part  of  his  own  case,  that  he  was  in  the  exercise  of  due  care.  But  on  the 
facts  it  would  seem  that  the  plaintiff  recklessly  exposed  herself  to  an  obvious 
risk,  tliat  the  instruction  given  to  the  jury  was  substantially  right,  and  that 
an  instru<-tion  in  the  terms  of  Tuff  v.  Warman,  as  asked  for  on  the  plaintiff's 
behalf,  would  probably  have  made  no  difference."  Sir  Frederick  Pollock, 
116  11.  R.  iv,  V. 

21  For  the  reiKjrt  of  the  case  in  the  Excbcipier  Chamber,  see  Radley  v. 
London  &  North  Western  Ry.  Co.  (1875)  L.  R.  10  Ex.  100.  The  report  of  the 
case  in  the  Exchequer  will  be  found  in  Radley  v.  Loudon  &  North  Western 
Ry.  Co.  (1874)  L.  R.  9  Ex.  71. 


Ch.  1)  NEGLIGENCE  1159 

tioned.  The  disabled  waggon  loaded  iipon  the  other,  nnd  the  two  or  three 
others,  were  known  to  a  person  left  in  charge  of  the  plaintiffs'  works  dur- 
ing the  absence  of  the  workmen  at  2:30  on  Saturday,  the  2.jth  of  January, 
to  be  on  the  siding,  and  were  left  standing  there  during  Saturdaj-  afternoon 
and  up  till  and  during  Sunday  night,  the  2»ith,  and  it  was  known  to  him  that 
a  number  of  waggons  would  arrive  during  that  night. 

On  the  night  of  Sunday,  about  12:30,  the  defendants  brought  up  on  their 
line  a  train  of  forty-eight  empty  waggons  of  the  plaintiffs',  and  proceeded  to 
shunt  them  onto  plaintiffs'  siding;  but  the  night  being  very  dark,  the  de- 
fendants' servants  engaged  in  shunting  did  not  notice  that  the  loaded-up 
waggon  was  different  from  any  other  waggon  in  height.  The  train  of  waggons 
was  slowly  backed  along  the  siding,  and  coming  against  the  waggons  which 
had  been  left  by  the  defendants  on  the  previous  Saturday,  pushed  them  over 
Fleet  Lane  towards  the  bridge,  so  as  to  cause  the  loaded-up  waggon  to  strike 
against  the  bridge,  which  checked  the  further  progress  of  the  train.  On 
touching  the  bridge  the  engine-driver  felt  an  obstruction,  and  not  having  got 
all  the  waggons  off'  the  main  line,  which  it  was  his  duty  to  do,  and  believing 
the  obstruction  to  be  caused  by  a  break,  he,  to  use  his  own  words,  drew  back 
the  engine  and  gave  another  jam-up ;  by  this  he  gave  such  a  momentum  to  the 
engine  that  the  loaded-up  waggon  knocked  down  and  carried  away  the  bridge 
and  head  gearing,  which  was  the  accident  complained  of  by  plaintiffs. 

A  guard  in  charge  of  the  empty  waggons  was,  whilst  they  were  being  shunt- 
ed as  above  described,  seated  on  one  of  the  waggons  about  the  middle  of  the 
train.  The  plaintiffs  had  also  a  siding  on  the  east  side  of  the  defendants' 
line,  on  which  empty  waggons  were  from  time  to  time  shunted  by  the  defend- 
ants, and  on  which  the  waggons  brought  on  the  Sunday  night  might  have 
been  put. 

At  the  trial,  the  defendants  contended  that  there  was  no  negligence 
on  their  part,  and  even  if  there  was,  that  there  was  contributory  neg- 
ligence on  the  plaintiffs'  part,  inasmuch  as,  knowing  that  waggons 
might  arrive  at  any  hour  of  the  day  or  night,  and  that  in  fact  they 
were  expected  to  arrive  on  the  night  of  the  26th,  it  was  their  duty 
to  have  removed  the  loaded-up  waggon  and  to  have  the  sidings  clear ; 
the  plaintiffs,  on  the  other  hand,  contended  that  there  was  no  such 
duty  on  their  part,  and  that  there  was  no  evidence  of  contributory 
negligence. ^^ 

At  the  trial,  Mr.  Justice  Brett  told  the  jurors  that: 

"You  must  be  satisfied  that  the  plaintiffs'  servants  did  not  do  any- 
thing which  persons  of  ordinary  care,  under  the  circumstances,  would 
not  do,  or  that  they  omitted  to  do  something  which  persons  of  ordi- 
nary care  would  do.  *  *  *  It  is  for  you  to  say  entirely  as  to 
both  points,  but  the  law  is  this,  the  plaintiffs  must  have  satisfied  you 
that  this  happened  by  the  negligence  of  the  defendants'  servants, 
and  without  any  contributory  negligence  of  their  own ;  in  other  words, 
that  it  was  solely  by  the  negligence  of  the  defendants'  servants.  If 
you  think  it  was,  then  your  verdict  will  be  for  the  plaintiffs.  If 
you  think  it  was  not  solely  by  the  negligence  of  the  defendants'  serv- 
ants your  verdict  must  be  for  the  defendants." 

The  jurors  having,  on  this  direction,  stated  that  they  thought  there 
was  contributory  negligence  on  the  part  of  the  plaintiffs,  the  learned 

22  The  statement  of  the  ease  to  this  point  is  from  the  report  in  the  Ex- 
che<iuer  Chamber,  L.  R.  10  Ex.  100-102.  The  facts  are  stated  also,  but  less 
explicitly,  iu  L.  II.  9  Ex.  71,  and  in  1  App.  Cas.  75-i  (1S76). 


IIGO  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

Judge  directed  that  the  verdict  should  be  entered  for  the  defendants, 
but  reserved  leave  for  the  plaintiffs  to  move.  A  rule  having  been 
obtained  for  a  new  trial,  it  was,  after  argument  made  absolute.  On 
appeal  to  the  Exchequer  Chamber,  the  decision  of  the  Exchequer 
was  reversed.    This  appeal  to  the  House  of  Lords  was  then  brought.-^ 

Lord  Penzance:.  The  remaining  question  is  whether  the  learned 
Judge  properly  directed  the  jury  in  point  of  law.  The  law  in  these 
cases  of  negligence  is,  as  was  said  in  the  Court  of  Exchequer  Cham- 
ber, perfectly  well  settled  and  beyond  dispute. 

The  first  proposition  is  a  general  one,  to  this  effect,  that  the  plain- 
tiff in  an  action  for  negligence  cannot  succeed  if  it  is  found  by  the 
jury  that  he  has  himself  been  guilty  of  any  negligence  or  want  of 
ordinary  care  which  contributed  to  cause  the  accident. 

But  there  is  another  proposition  equally  well  established,  and  it  is 
a  qualification  upon  the  first,  namely,  that  though  the  plaintiff  may 
have  been  guilty  of  negligence,  and  although  that  negligence  may, 
in  fact,  have  contributed  to  the  accident,  yet  if  the  defendant  could 
in  the  result,  by  the  exercise  of  ordinary  care  and  diligence,  have 
avoided  the  mischief  which  happened,  the  plaintiff's  negligence  will 
not  excuse  him.  This  proposition,  as  one  of  law,  cannot  be  questioned. 
It  was  decided  in  the  case  of  Davies  v.  Mann,  10  M.  &  W.  546,  sup- 
ported in  that  of  Tuff  v.  Warman,  5  C.  B.  (N.  S.)  573,  27  L.  J.  C. 
P.  322,  and  other  cases,  and  has  been  universally  applied  in  cases  of 
this  character  without  question. 

The  only  point  for  consideration,  therefore,  is  whether  the  learned 
Judge  properly  presented  it  to  the  mind  of  the  jury. 

It  seems  impossible  to  say  that  he  did  so.  At  the  beginning  of 
his  summing-up  he  laid  down  the  following  as  the  propositions  of 
law  which  governed  the  case:  It  is  for  the  plaintiffs  to  satisfy  you 
that  this  accident  happened  through  the  negligence  of  the  defend- 
ants' servants,  and  as  between  them  and  the  defendants,  that  it  was 
solely  through  the  negligence  of  the  defendants'  servants.  They  must 
satisfy  you  that  it  was  solely  by  the  negligence  of  the  defendants' 
servants,  or,  in  other  words,  that  there  was  no  negligence  on  the  part 
of  their  servants  contributing  to  the  accident;  so  that,  if  you  think 
that  both  sides  were  negligent,  so  as  to  contribute  to  the  accident, 
then  the  plaintiff's  cannot  recover. 

This  language  is  perfectly  plain  and  perfectly  unqualified,  and  in 
case  the  jurors  thought  there  was  any  contributory  negligence  on  the 
part  of  the  plaintiff's'  servant,  they  could  not,  without  disregarding 
the  direction  of  the  learned  Judge,  have  found  in  the  plaintiffs'  favor, 
however  negligent  the  defendants  had  been  or  however  easily  they 
might  with  ordinary  care  have  avoided  any  accident  at  all. 

The  learned  Judge  then  went  on  to  describe  to  the  jury  what  it 
was  that  might  properly  be  considered  to  constitute  negligence,  first 

23  The  arguments  are  omitted. 


Ch.  1)  NEGLIGENCE  1161 

in  the  conduct  of  the  defendants,  and  then  in  the  conduct  of  the  plain- 
tiffs ;  and  having  done  this,  he  again  reverted  to  the  governing  prop- 
ositions of  law,  as  follows :  "There  seem  to  be  two  views.  It  is  for 
you  to  say  entirely  as  to  both  points.  But  the  law  is  this,  the  plain- 
tiffs must  have  satisfied  you  that  this  happened  by  the  negligence  of 
the  defendants'  servants,  and  without  any  contributory  negligence 
of  their  own ;  in  other  words,  that  it  was  solely  by  the  negligence  of 
the  defendants'  servants.  If  you  think  it  was,  then  your  verdict  will 
be  for  the  plaintiff's.  If  you  think  it  was  not  solely  by  the  negligence 
of  the  defendants'  servants,  your  verdict  must  be  for  the  defendants." 

This,  again,  is  entirely  without  quahfication,  and  the  undoubted 
meaning  of  it  is,  that  if  there  was  any  contributory  negligence  on 
the  part  of  the  plaintiffs,  they  could  in  no  case  recover.  Such  a  state- 
ment of  the  law  is  contrary  to  the  doctrine  established  in  the  case 
of  Davies  v.  Mann,  10  M.  &  W.  546,  and  the  other  cases  above  alluded 
to,  and  in  no  part  of  the  summing-up  is  that  doctrine  anywhere  to 
be  found.  The  learned  counsel  were  unable  to  point  out  any  passage 
addressed  to  it. 

It  is  true  that  in  part  of  his  summing-up  the  learned  Judge  pointed 
attention  to  the  conduct  of  the  engine  driver,  in  determining  to  force 
his  way  by  violence  through  the  obstruction,  as  fit  to  be  considered 
by  the  jury  on  the  question  of  negligence;  but  he  failed  to  add  that 
if  they  thought  the  engine  driver  might  at  this  stage  of  the  matter 
by  ordinary  care  have  avoided  all  accident,  any  previous  negligence 
of  the  plaintiff's  would  not  preclude  them  from  recovering. 

In  point  of  fact  the  evidence  was  strong  to  shew  that  this  was  the 
immediate  cause  of  the  accident,  and  the  jury  might  well  think  that 
ordinary  care  and  diligence  on  the  part  of  the  engine  driver  would, 
notwithstanding  any  previous  negligence  of  the  plaintiffs  in  leaving 
the  loaded-up  truck  on  the  line,  have  made  the  accident  impossible. 
This  substantial  defect  of  the  learned  Judge's  charge  is  that  that 
question  was  never  put  to  the  jury. 

On  this  point,  therefore,  I  propose  to  move  that  your  Lordships 
should  reverse  the  decision  of  the  Exchequer  Chamber,  and  direct 
a  new  trial.-* 

Judgment  of  the  Court  of  Exchequer  Chamber  reversed. 

Judgment  of  the  Court  of  Exchequer  restored,  and  a  new  trial  or- 
dered, with  costs. 

24  The  Lord  Chancellor  (Lord  Cairns),  "concurring  with  every  word"  of  the 
opinion  expressed  by  Lox-d  Penzance,  did  not  think  it  necessary  that  he  should 
do  more  than  say  that  he  hoped  their  Lordships  would  agree  to  the  motion 
which  Lord  Penzance  had  proposed.  Lord  Gordon  concurred  in  the  motion. 
Lord  Blackburn  agreed  in  the  result. 


1102  TORTS  THROUGH  ACTS  OF   CONDITIONAL  LIABILITY         (Part  3 

BENNICHSEN  v.  MARKET  ST.  RY.  CO. 
(Supreme  Court  of  California,  1906.    149  Cal.  18,  84  Pac.  420.) 

Ruberta  Bennichsen,  by  her  g-uardian  ad  litem,  sued  to  recover  dam- 
ages for  personal  injuries  alleged  to  have  been  caused  by  being  struck 
by  a  street  car  of  the  defendant.  Verdict  and  judgment  for  the  plain- 
tiff. Defendant  appeals  from  an  order  denying  its  motion  for  a  new 
trial. 

McFarland,  J.    The  important  features  of  the  case  are  these :    At 
the  time   of  the  alleged   injuries   defendant  was   operating  a   double 
track  electric  street  railroad  on  Sansome  street  in  San  Francisco,  the 
street  running  north  and  south.     Defendant  also  was  operating- a  sim- 
ilar street  railroad  on   Broadway  street,  which   runs  east  and   west, 
crossing  Sansome  street.     Plaintiff  lived  with  her  parents  in  a  house 
on  the  southeast  corner  of   Sansome  and  Broadway,  where  the  two 
railroads  cross  each  other.     She  had  been  going  to  school  for  about 
four  years  before  the  accident  by  which  she  was  injured,  and  in  going 
to  and  from  school,  doing  errands,  etc.,  she  had  been  in   the  habit 
almost  daily  of  crossing  said  railroads.     She  was  at  the  time  of  the 
accident  almost  nine  years  old — eight  years  eight  months  and   some 
days.    Her  mother  had  frequently  cautioned  her  to  be  careful  in  cross- 
ing the  railroads.     The  plaintiff  herself  testified  that  before  the  acci- 
dent when  crossing  the  railroad  she  would  look  to  see  if  there  was  any 
car  coming  so  that  she  would  not  get  hurt,  and  that  if  she  saw  a  car 
coming  she  would  wait  on  the  sidewalk  until  it  had  passed.     On  the 
day  of  the  accident  she  undertook  to  cross  Sansome  street  between 
Broadway  and  Pacific  street,  which  is  the  next  street  south  of  and 
parallel  with  Broadway,  when  the  car  was  close  at  hand  going  north 
toward  Broadway,  and  was  struck  by  it,  and  injured.     She  did  not 
look  to  see  if  the  car  was  coming.     The  evidence  of  defendant  was  to 
the  point  that  she  ran  against  the  side  of  the  car,  and  was  thrown 
under  it,  although  the  jury  may  have  been  justified   in  finding  that 
she  was  struck  by  the  front  end  of  the  car.     Witnesses  for  plaintiff 
testified  that  when  they  saw  her  just  before  the  accident  she  was  from 
8  to  10  feet  from  the  car.     But  under  any  view  of  the  evidence  on 
this  point  it  is  clear  beyond  doubt  that  if  she  had  been  a  person  of 
mature  age  she   would  have  been  guilty  of  contributory  negligence, 
negligence  which  contributed  proximately  and  directly  to  her  injuries. 
And  we  need  not  inquire  whether  the  jury  would  have  been  justified, 
under  all  the  evidence  on  the  point,  in  finding  that  on  account  of  her 
acre,  no  negliiience  could  be  attributed  to  her,  because  the  case  was 
tried  on  the  theory,  and  the  jury  were  instructed,  that  even  though 
she,  or  her  parents,  were  guilty  of  contributory  negligence,  still  she 
was  entitled  to  recover  if  "by  reason  of  negligence  on  his  part  the 
motorman  failed  to  avoid  the  accident,"  and  "if  the  defendant's  em- 
ployes could  have  avoided  the  injury  by  the  exercise  of  ordinary  care." 


Ch.  1)  NEGLIGENCE  1163 

The  case,  therefore,  was  tried  upon  the  theory  that  there  was 
evidence  to  bring  it  within  the  cases  which  hold  that  although  the  per- 
son injured  put  himself  by  his  own  negligence  in  a  place  of  danger, 
if  the  employes  in  charge  of  the  train  discovered  his  danger  in  time 
to  prevent  injury  by  the  exercise  of  ordinary  care  and  did  not  do  so, 
then,  notwithstanding  the  contributory  negligence  of  the  injured  per- 
son, he  may  recover.  But  there  was  no  such  evidence  in  the  case  at 
bar.  There  is  no  pretense  that  the  motorman  saw  the  plaintiff  at  all 
at  the  time  of  the  accident  until  after  it  had  occurred ;  on  the  other 
hand,  it  is  shown  clearly  that  he  did  not.  The  motorman  testified  that 
he  did  not  see  her,  and  his  testimony  is  not  only  uncontradicted,  but 
is  confirmed  by  testimony  of  the  plaintiff.  He  said  that  he  was  look- 
ing ahead  on  Sansome  street,  although  somewhat  to  the  left  or  west 
in  order  to  watch  for  a  car  that  might  be  coming  down  Broadway,  but 
that  he  had  Sansome  street  in  full  view,  and  did  not  see  plaintiff'  until 
she  had  run  into  the  side  of  the  car.  And  to  confirm  the  fact  that 
he  did  not  see  her  one  of  plaintiff"s  main  witnesses  testified  that  at 
the  time  of  the  accident  the  motorman  "was  looking  behind"  and  that 
"his  face  was  back,  he  was  looking  back,  he  was  not  looking  ahead." 
And,  indeed,  plaintiff's  whole  case  is  argued  upon  the  theory  that  the 
negligence  of  the  motorman  consisted  in  his  not  looking  ahead,  and 
that  this  is  the  negligence  which  entitles  plaintiff  to  recover,  even 
though  she  was  guilty  of  contributory  negligence.  But  no  case  has 
gone  that  far ;  and  to  go  that  far  would  be  practically  to  destroy  the 
whole  doctrine  of  contributory  negligence.  There  was  in  this  case, 
therefore,  no  evidence  to  justify  the  jury  in  finding  that  there  was  such 
negligence  on  the  part  of  defendant's  employes  as  entitled  plaintiff  to 
recover  notwithstanding  her  contributory  negligence.  Of  course,  con- 
tributory negligence  implies  some  negligence  on  the  part  of  the  de- 
fendant; and  the  general  rule  is  that  a  plaintiff  complaining  of  per- 
sonal injuries  caused  by  a  train  or  car,  who  was  himself  guilty  of  neg- 
ligence, which  contributed  proximately  and  directly  to  the  injuries, 
cannot  recover,  although  the  defendant  was  also  guilty  of  negligence. 
There  are  exceptions  to  the  rule,  however,  but  they  embrace  only 
those  cases  where  a  person  is  by  his  own  negligence  in  a  dangerous 
situation  and  is  discovered  in  that  position  by  those  in  the  manage- 
ment of  the  approaching  train  in  time  to  prevent  injury  by  the  exer- 
cise of  ordinary  care.  In  the  earlier  cases  the  conduct  of  those  in 
charge  of  a  train  who,  seeing  one  in  a  dangerous  position,  made  no 
effort  to  avoid  injuring  him  when  it  could  have  been  easily  avoided, 
is  characterized  as  "willful  and  wanton."  The  cases,  however,  all 
hold  that  the  discovery  of  such  a  person  in  a  dangerous  position  in 
time  to  prevent  injury  by  the  exercise  of  ordinary  care  is  necessary 
to  constitute  an  exception  to  the  rule  that  one  guilty  of  contrib- 
utory negligence  cannot  recover.  It  is  not  necessary  to  review  the 
authoriti(^s  cited  by  respondent  other  than  the  case  of  Lee  v.  Market 
Street  Railway  Co.,  135  Cal.  293,  67  Pac.  765,  for  that  is  the  case 


1164  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

most  favorable  to  respondent's  contention.  But  in  the  Lee  Case 
this  court,  after  referring  to  certain  evidence,  said  (italics  ours) : 
"Here,  then,  was  enough  to  warrant  the  submission  to  the  jury  of 
the  question  whether  or  not  the  defendant  exercised  ordinary  care 
after  the  discovery  of  plaintiff's  situation  of  peril.  If  it  did  not,  then 
notwithstanding  the  negligence  of  plaintiff,  it  was  liable.  The  verdict 
of  the  jury  is  a  finding  to  the  effect  that  they  did  not  believe  that  de- 
fendant's employes  exercised  proper  care  after  discovery  of  plaintiff's 
situation."  And  so  that  case  was  decided  upon  the  theory  that  defend- 
ant failed  to  exercise  ordinary  care  to  prevent  the  accident  after  dis- 
covery of  plaintiff's  perilous  situation.  It  has  been  expressly  held  that 
a  case  like  the  one  at  bar  can  be  taken  out  of  the  doctrine  of  contribu- 
tory negligence  only  where  the  defendant  had  actual  knowledge  of 
plaintift"'s  perilous  situation.  In  Harrington  v.  Los  Angeles  Ry.  Co., 
140  Cal.  514,  74  Pac.  15,  63  L.  R.  A.  238,  98  Am.  St.  Rep.  85,  this 
court,  speaking  through  Angellotti,  J.,  after  quoting  from  Beach  on 
Contributory  Negligence,  said  "It  is,  of  course,  true,  as  urged  by  de- 
fendant, that  it  is  essential  to  such  liability  that  the  defendant  did 
actually  know  of  the  danger,  and  that  there  is  no  such  liability  where 
he  does  not  know  of  the  peril  of  the  injured  party,  but  would  have 
discovered  the  same  but  for  remissness  on  his  part."  In  Herbert  v. 
Southern  Pacific  Co.,  121  Cal.  232,  53  Pac.  652,  Temple,  J.,  speaking 
for  the  court,  said :  "The  case  is  not  within  the  rule  laid  down  in  Esrey 
v.  Southern  Pacific  Co.,  103  Cal.  541,  37  Pac.  500.  Doubtless,  notwith- 
standing the  negligence  of  a  plaintiff  has  put  him  in  peril,  yet  if  his 
danger  is  perceived  by  the  defendant  in  time,  so  that  by  the  exercise 
of  ordinary  diligence  on  his  part  injury  can  be  avoided,  the  defendant 
will  be  held  for  the  injury.  But  that  is  based  upon  the  fact  that  a 
defendant  did  actually  know  of  the  danger — not  upon  the  proposition 
that  he  would  have  discovered  the  peril  of  the  plaintiff  but  for  remiss- 
ness on  his  part.  Under  this  rule,  a  defendant  is  not  liable  because  he 
ought  to  have  known."     *     *     * 

The  order  appealed  from  is  reversed,  and  the  cause  remanded  for 
a  new  trial.- ^ 


NICOL  V.  OREGON-WASHINGTON  R.  &  NAVIGATION  CO. 

(Supreme  Court  of  Washington,  1912.    71  Wash.  409,  128  Pac.  628,  43  L. 

R.  A.  [N.  S.]  174.) 

Action  by  Nicol  against  the  Oregon-Washington  Railroad  &  Naviga- 
tion Company.  There  was  a  judgment  for  the  plaintiff,  and  the  de- 
fendant appeals. 

GosE,  J.  This  is  an  action  for  damages  against  the  defendant,  a 
common   carrier,    for  an  alleged   negligent   destruction   of   plaintiff's 

26  Part  of  the  opinion  is  omitted. 


Ch.  1)  NEGLIGENCE  11G5 

automobile  at  a  country  crossing.  The  case  was  tried  to  the  court. 
Findings  were  made  in  favor  of  plaintiff,  and  a  judgment  was  entered 
thereon,  from  which  the  defendant  has  appealed. 

The  negligence  charged  is  that,  while  the  respondent  was  in  the  act 
of  driving  his  automobile  over  the  railroad  crossing  in  a  public  high- 
way, the  machine  became  stalled  crosswise  of  the  track,  the  engine  of 
the  machine  stopped  running,  the  respondent  was  unable  to  start  it  or 
to  move  the  machine  off  the  track,  and  "the  engineer  and  fireman  in 
charge  of  defendant's  said  train  saw  the  plaintiff  before  the  train  got 
to  him,  and  saw  his  automobile  standing  upon  the  crossing  in  sufficient 
time  to  have  stopped  said  train  and  to  have  avoided  colliding  with  and 
destroying  plaintift"s  automobile."  The  appellant  joined  issue  on  the 
charge  of  negligence,  and  pleaded  that  the  collision  resulted  from  the 
negligence  of  the  respondent.  The  collision  occurred  about  1  o'clock 
in  the  morning. 

The  court  did  not  find,  and  the  evidence  does  not  show,  that  the 
engineer  actually  saw  the  machine.  The  court's  findings  in  this  respect 
are :  That,  when  the  respondent  found  that  he  could  not  extricate  his 
machine,  he  ran  north  along  the  track  and  right  of  way  toward  the 
approaching  train,  a  distance  of  650  or  700  feet,  lighting  matches, 
waving  his  arms,  and  shouting  to  signal  the  engineer  in  charge  of  the 
train,  and  that,  had  the  engineer  been  keeping  a  proper  lookout  ahead, 
he  would  have  seen  the  respondent,  who  while  running  down  the 
straight  track  was  in  plain  view  of  the  engineer  in  the  rays  of  the 
headlight  of  the  engine  for  at  least  1,000  feet  before  the  engine  passed 
him,  and  would  have  seen  his  signals  in  time  to  have  stopped  the  train 
before  striking  the  machine. 

The  first  point  urged  is  that  there  is  a  variance  between  the  plead- 
ings and  the  evidence,  and  that  the  findings  are  not  within  the  issues. 
The  variance  is  immaterial.  Rem.  &  Bal.  Code,  §  1752;  Irby  v. 
Phillips,  40  Wash.  618,  82  Pac.  931;  Richardson  v.  ^loore,  30  Wash. 
406,  71  Pac.  18. 

The  further  consideration  of  the  case  necessitates  a  statement  of 
the  essential  facts.  The  train  which  struck  the  automobile  was  a  pas- 
senger train  composed  of  nine  cars,  and  was  traveling  from  Tacoma  in 
a  southerly  direction  at  a  speed  of  35  to  38  miles  an  hour.  The  en- 
gine was  equipped  with  a  standard  electric  headlight,  burning  brightly 
and  lighting  the  track  so  that  an  object  thereon  could  be  seen  on  a 
bright  night  a  distance  varyingly  estimated  by  the  locomotive  engineers 
at  from  1,000  to  1,800  feet.  The  track  has  a  one-degree  curve  for 
a  distance  of  200  feet  immediately  north  of  the  crossing  where  the 
accident  happened.  From  there  northward  it  runs  straight  for  a  dis- 
tance of  4,800  feet.  The  respondent  says  that  he  ran  north  towards 
the  approaching  train,  following  the  center  of  the  track,  for  about  500 
or  600  feet,  striking  matches  and  waving  his  arms,  and  that  he  then 
stepped  to  the  outside  of  the  track  and  continued  running  along  it  a 
distance  of  100  to  200  feet,  giving  the  same  signals,  at  which  point  he 


11G6  TORTS   THROUGH   ACTS   OF   COXDITIOXAL   LIABILITY  (Part  3 

was  passed  by  the  train.  The  engineer  says  that  he  passed  him  about 
500  feet  north  of  the  crossing-;  that  he  did  not  see  him  until  the  head- 
Hght  was  opposite  him ;  that  he  then  appHed  his  air,  but  did  not  apply 
the  emergency  brakes;  and  that  he  stopped  the  train  in  1,000  feet. 
The  engineer  admitted  that  he  knew  that  the  track  was  crossed  at 
grade  by  a  public  highway,  at  the  point  where  the  collision  happened. 
The  respondent  was  returning  to  Tacoma  from  the  country  club,  at 
American  Lake,  in  his  machine,  the  morning  of  the  accident.  He  was 
traveling  north  on  the  west  side  of  the  railroad  track.  He  got  on  the 
wrong  road,  crossed  the  railroad  track  and,  discovering  his  mistake, 
turned  and  started  to  recross  the  track,  got  ofif  the  planking,  which 
was  16  feet  wide  over  the  track,  and  got  his  machine  stalled  crosswise 
of  the  track  near  the  cattle  guards,  as  before  stated.  He  says  that  the 
night  was  bright,  and  that  the  stars  were  shining,  and  that  all  the 
lights  upon  his  machine  were  lighted  and  in  good  condition.  These 
facts  clearly  establish  his  negligence.  Moore  v.  Great  Northern  Ry. 
Co.,  58  Wash.  1,  107  Pac.  852,  28  L.  R.  A.  (N.  S.)  410.  The  principal 
fact  in  dispute  was  as  to  whether  the  night  was  clear  or  foggy.  The 
respondent's  witnesses  asserted  the  former  to  be  the  fact,  whilst  the 
appellant's  witnesses  insisted  that  the  latter  was  the  fact.  The  court 
found  that  "the  night  was  clear,  there  being  no  fog  to  any  extent  or 
other  atmospheric  difficulty  to  interfere  with  the  engineer's  view." 
We  accept  the  fact  as  found  by  the  court. 

The  respondent  contends  that,  concerning  his  negligence,  the  neg- 
ligence had  ceased;  that  appellant  owed  the  duty  of  keeping  a  look- 
out; that,  had  the  engineer  exercised  reasonable  care,  he  would  have 
seen  the  respondent  and  his  signals  in  time  to  have  avoided  the  colli- 
sion ;  and  that  the  appellant  is  liable  under  the  doctrine  of  "last  clear 
chance."  On  the  other  hand,  the  appellant  earnestly  insists  that  it 
owed  no  duty  to  the  respondent,  except  to  not  willfully  injure  him  or 
his  property  after  actually  discovering  his  peril.  We  think  the  re- 
spondent has  the  correct  view.  His  machine  was  within  the  public 
highway ;  he  was  in  no  sense  a  trespasser,  although  without  the  trav- 
eled portion  of  the  road.  The  appellant  knew  of  the  presence  of  the 
highway,  knew  that  it  crossed  the  track  at  grade,  and  knew  that  it 
was  traveled  by  the  public.  Moreover,  it  was  the  duty  of  the  en- 
gineer to  exercise  reasonable  care,  and  had  he  done  so  under  his  own 
testimony,  assuming  that  the  night  was  clear,  he  would  have  seen  the 
respondent  and  his  signals  a  distance  of  1,000  feet  or  more.  This 
would  have  given  him  at  least  1,500  feet  in  which  to  stop  the  train, 
according  to  his  own  statement.  He  testified  that  he  was  keeping  a 
lookout  ahead,  but  that  the  presence  of  the  fog  obscured  his  vision. 
One  of  the  appellant's  witnesses,  a  locomotive  engineer,  testified  that 
the  engineer  could  see  a  man  ahead  a  distance  of  1,200  feet  on  a  clear 
night.  In  failing  to  see  the  respondent  and  heed  his  signals,  the  en- 
gineer was  clearly  guilty  of  negligence.  The  act  of  a  man  running 
along  a  right  of  way  at  1  o'clock  in  the  morning,  striking  matches  and 


Ch.  1)  NEGLIGENCE  11G7 

waving  his  arms,  is  a  circumstance  that  ought  to  attract  the  attention 
of  a  prudent  engineer,  and  it  was  notice  that  there  was  danger  ahead. 

The  doctrine  of  last  clear  chance  is  applied  perhaps  most  frequently 
to  cases  where  the  plaintiff's  negligence  has  terminated,  and  where 
the  defendant  thereafter,  in  the  exercise  of  reasonable  care  and  owing 
a  duty  to  exercise  it,  should  have  discovered  the  peril  in  time  to  have 
prevented  an  injury.  It  has  also  often  been  applied  where  it  would  be 
apparent  to  one  in  control  of  a  dangerous  agency,  if  exercising  rea- 
sonable vigilance,  that  a  traveler  is  unconscious  of  his  danger  or  so 
situated  as  to  be  incapable  of  self-protection,  and  in  such  cases,  if 
the  one  controlling  the  agency  could  have  averted  the  danger  by 
exercising  reasonable  care  and  failed  to  do  so,  liability  follows.  It  is 
based  upon  the  principle  that  the  negligence  of  the  one  is  remote,  and 
that  the  negligence  of  the  other  is  the  proximate  and  efficient  cause 
of  the  catastrophe ;  he  having  the  last  clear  opportunity  of  prevent- 
ing it.     *     *     *  -^ 

The  engineer  testified  that  he  stopped  the  train,  after  seeing  the 
respondent,  in  a  distance  of  1,000  feet,  and  that  he  could  have  made 
an  emergency  stop  in  700  or  900  feet.  The  locomotive  engineers  who 
testified  for  the  respondent  said  that  the  particular  train  could  have 
been  stopped  in  an  emergency  in  a  distance  of  600  feet.  The  en- 
gineer had  a  right  to  exercise  his  best  judgment  as  to  whether  the 
conditions  which  confronted  him  demanded  an  emergency  stop  (his 
first  and  highest  duty  being  owed  to  the  passengers),  and  the  appel- 
lant could  not  be  held  liable  for  an  error  of  judgment  made  under 
such  circumstances.  \Yq  place  the  liability  upon  the  ground  that  (as 
the  court  found)  the  respondent  while  running  down  the  "straight 
track"  was  in  plain  view  of  the  engineer,  in  the  rays  of  the  headlight, 
for,  at  least  1,000  feet  before  the  engine  passed  him.  This  being 
true,  if  the  engineer  had  been  keeping  a  proper  lookout — and  all  the 
appellant's  expert  witnesses  testified  that  all  prudent  engineers  keep 
a  constant  lookout  ahead — he  would  have  seen  the  respondent  and 
would  have  seen  his  signals,  and  in  view  of  the  lateness  of  the  hour 
and  the  proximity  of  the  highway  crossing,  it  was  his  duty  to  heed 
the  signals.  We  have  found  no  case  involving  facts  similar  to  these 
present  in  this  case,  but  we  think  the  case  readily  accommodates  it- 


20  In.  the  omitted  nortion  of  the  opinion  Mr.  Justice  Gose  referred  to  or 
quoted  from  the  following  authorities:  Bullock  v.  Wilmington  &  W.  R.  Co. 
(1890)  105  N.  C.  ISO,  10  S.  E.  9S8 ;    Baltimore  &  O.  R.  Co.  v.  Anderson  (189S) 

85  Fed.  41.3,  29  C.  C.  A.  2.35 ;    Southern  Rv.  Co.  v.  Fisk  (1908)  159  Fed.  373, 

86  C.  C.  A.  373;  3  Elliott  on  Railroads  (2d  Ed.)  1115;  Grand  Tnink  Ry.  Co. 
V.  Ives  (1S92)  144  U.  S.  408,  12  Sup.  Ct.  079,  30  L.  Ed.  485 ;  Turnbull  v.  New 
Orleans  &  C.  R.  Co.  (1903)  120  Fed.  783,  57  C.  C.  A.  151 ;  Inland  &  Seaboard 
C.  Co.  V.  Tolsou  (1891)  1.39  U.  S.  551,  11  Sup.  Ct.  G53,  35  L.  Ed.  270 ;  Southern 
Ry.  Co.  V.  Bailey  (1910)  110  Va.  8:33,  67  S.  E.  3G5.  27  L.  R.  A.  (N.  S.)  379: 
Klockeniirink  v.  St.  Louis,  etc.,  R.  Co.  (1899)  81  Mo.  App.  351  ;  Bergman  v. 
St.  Louis,  etc.,  Ry.  Co.  (ISSG)  88  Mo.  G78,  1  S.  W.  384  :  Lloyd  v.  St.  Louis,  etc., 
lly.  Co.  (1895)  128  Mo.  595,  29  S.W.  153,  31  S.  W.  110. 


11G8  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

self  to  the  principles  announced  in  the  authorities  which  we  have 
reviewed.     *     *     * 

We  think  the  judgment  is  right,  and  it  is  affirmed. 

Mount,  C.  J.,  and  Crow,  Parker,  and  Chadwick,  JJ.,  concur. 


BLODGETT  V.  CENTRAL  VERMONT  RY.  CO. 

(Supreme  Court  of  Vermont,  1909.    82  Vt.  269,  73  Atl.  590.) 

Action  by  Blodgett,  as  administrator,  to  recover  for  the  death  of 
his  intestate  through  the  alleged  negligence  of  the  defendant.  Judg- 
ment for  the  plaintiff  and  the  defendant  excepts. 

WaTson,  J.  At  the  close  of  the  plaintiff's  evidence,  the  defend- 
ant moved  for  a  verdict  on  the  grounds  (1)  that  there  was  no  evi- 
dence tending  to  show  negligence  on  the  part  of  the  defendant ;  and 
(2)  that  the  undisputed  and  unconflicting  evidence  showed  contribu- 
tory negligence  on  the  part  of  the  intestate.  The  case  is  here  on 
exception  to  the  overruling  of  this  motion.  The  facts  herein  stated 
appear  from  or  are  supported  by  the  evidence. 

The  intestate,  a  man  about  72  years  of  age,  while  driving  across 
defendant's  railroad  track  at  a  highway  crossing  at  West  Berlin  in 
the  afternoon  of  May  18,  1905,  was  struck  by  defendant's  engine 
drawing  the  mail  train,  so  called,  north-bound,  and  instantly  killed. 
The  train  was  running  at  about  schedule  rate  of  speed,  45  miles  an 
hour.  The  depot  at  that  place  is  a  building  about  25  feet  in  length 
and  a  little  less  than  that  in  width.  It  stands  62  feet  south  of  the 
crossing  where  the  intestate  was  killed,  wholly  on  the  east  side  of  the 
main  track  and  about  9  feet  from  the  east  rail.  There  is  a  platform 
toward  the  track  extending  north  and  south  beyond  the  building,  the 
whole  length  of  which  is  134  feet.  The  northerly  end  of  this  plat- 
form comes  to  the  highway.  West  Berlin  is  not  a  regular  stopping 
place  for  any  passenger  trains.  It  is  a  flag  station  for  some  trains, 
but  the  one  in  question  never  stops  there  except  to  leave  passengers 
coming  from  beyond  Springfield,  which  happens  only  two  or  three 
times  a  year.     *     *     * 

The  intestate  was  a  peddler  driving  a  single  horse  hitched  to  an  open 
wagon  with  a  small  box  containing  his  goods  fitted  into  the  rear  end 
of  the  wagon  body.  East  of  the  crossing  in  question  the  highway 
over  which  he  was  traveling  is  a  gradual  ascent  to  the  railroad.  At 
a  distance  of  328  feet  east  of  the  east  rail  a  person  traveling  over 
the  highway  toward  the  crossing  has  a  plain  view  of  the  railroad 
track  from  the  depot  southerly  some  1500  or  1600  feet.  The  track 
there  is  elevated  considerably  above  the  level  of  the  land,  and  is  in 
plain  view  for  the  whole  distance  to  the  crossing,  except  as  the  vi- 
sion is  obstructed  by  the  depot.  Going  westerly  from  a  point  in 
the  middle  of  the  road  41  feet  east  of  the  east  rail  to  the  crossing. 


Ch.  1)  NEGLIGENCE  1169 

the  view  of  the  track  southerly  is  thus  obstructed  until  within  24 
feet  of  the  east  rail.  There  the  track  can  be  seen  past  the  westerly 
end  of  the  building  for  a  distance  of  115  feet.  At  20  feet  from  the 
east  rail  the  track  is  visible  for  a  distance  of  1601^  feet ;  and,  when 
within  16  feet,  the  track  is  in  full  view  practically  as  far  southerly, 
as  it  is  from  any  place  hereinbefore  named.  It  was  conceded  by 
the  plaintiff  in  argument  that  all  signals  required  by  law  and  more 
were  given  on  the  train.  When  the  engine  was  about  half  way  be- 
tween the  whistling  post  for  the  crossing  an  J  the  station,  the  en- 
gineer, looking  beyond  the  depot  on  its  easterly  side,  saw  the  intes- 
tate on  the  highway  driving  toward  the  railroad.  Thereupon  he 
sounded  a  second  whistle  for  the  crossing.  The  team  about  the  same 
time  went  behind  the  depot,  and  was  seen  no  more  by  the  engmeer 
until  it  was  on  the  crossing  in  front  of  the  engine.  It  was  argued 
that  the  engineer  should  have  seen  the  team  after  it  came  in  view 
on  the  westerly  side  of  the  depot  before  it  went  on  the  crossing  and  in 
season  to  have  prevented  the  accident,  and  that  a  failure  so  to  do  is  a 
circumstance  from  which  a  jury  may  infer  negligence.  We  will  as- 
sume without  deciding  this  to  be  so,  and  pass  to  the  question  of  con- 
tributor}^ negligence. 

The  undisputed  evidence  shows  that  the  intestate's  senses  of  sight 
and  hearing  were  good ;  that  he  was  in  good  health  and  very  active ; 
that  the  day  of  the  accident  was  warm  and  pleasant,  and  there  was 
nothing  over  his  ears  to  prevent  him  from  hearing;  that  the  horse 
he  was  driving  was  12  or  13  years  old,  very  quiet,  easy  to  manage, 
and  not  easily  frightened  by  a  train  of  cars  or  anything;  and  that 
during  the  last  six  or  seven  years  of  his  life  he  averaged  to  drive 
over  the  crossing  in  question  once  in  four  or  five  weeks,  by  reason 
of  which  he  was  acquainted  with  the  railroad  in  that  vicinity,  also 
with  the  crossing  and  its  surroundings.  The  horse  was  walking  at 
a  fair  gait  in  the  middle  of  the  road  as  it  went  past  the  depot  and 
approached  the  crossing.  The  intestate  was  looking  at  the  horse, 
and  did  not  look  up  the  track  southerly  until  the  horse  was  partly 
on  the  crossing.  When  the  horse  was  some  five  or  ten  feet  from 
the  track,  two  witnesses  who  were  on  the  opposite  side  of  the  track 
and  a  short  distance  away  saw  the  intestate  driving  toward  the  cross- 
ing, and  hallooed  to  him,  saying,  "The  cars  are  coming,"  at  the  same 
time  throwing  up  their  hands  to  attract  his  attention,  but  the  noise 
from  the  train  was  such  that  the  witnesses  were  not  sure  that  he 
heard  their  voices,  nor  did  they  know  that  he  saw  their  demonstrations. 
The  point  where  the  intestate's  view  was  first  obstructed  by  the  depot 
is  about  41  feet  east  of  the  east  rail,  and  from  there  in  the  middle 
of  the  traveled  road  the  track  is  visible  600  feet  southerly,  and  a 
moving  train  of  cars  can  be  seen  1,000  feet  further.  When  the  in- 
testate was  16  feet  from  the  east  rail,  the  approaching  train  must 
have  been  plainly  in  view,  and  the  horse  yet  a  distance  of  4  feet  from 
Hepb.Toets — 74 


1170  TOUTS  THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

the  nearest  rail.  A  stop  might  have  been  made  at  this  place  of  safety 
until  the  train  had  passed.  But,  instead  of  thus  avoiding  the  danger, 
the  intestate  without  making  vigilant  use  of  his  senses  of  sight  and 
hearing  recklessly  drove  on  the  crossing  in  front  of  the  train.  The 
rule  making  it  the  duty  of  a  traveler  nearing  a  railroad  crossing  to 
look  and  listen  for  approaching  trains,  and  to  make  such  vigilant  use 
of  his  sight  and  hearing  in  so  doing  as  a  careful  and  prudent  man 
would  make  in  the  same  circumstances,  was  fully  laid  down  in  Manley 
V.  Delaware  &  Hudson  Canal  Co.,  69  Vt.  101,  1^7  Atl.  279,  also  in 
Carter  v.  Central  Vermont  R.  R.  Co.,  12  Vt.  190,  47  Atl.  797,  and 
need  not  be  here  repeated.  In  the  latter  case  it  is  said  that  if  by  the 
vigilant  use  of  his  eyes  and  ears  the  plaintiff  might  have  discovered 
and  avoided  the  danger  and  omitted  such  vigilance,  he  was  guilty 
of  contributory  negligence,  and  that  he  was  chargeable  with  such 
knowledge  of  the  approach  of  the  train  as  he  might  have  obtained  by 
the  exercise  of  that  degree  of  care,  which  in  the  circumstances  of 
danger  he  was  bound  to  use.  There  seems  to  be  no  escape  from  the 
conclusion  that  the  intestate  was  guilty  of  negligence  which  con- 
tributed to  the  accident  and  precludes  a  recovery  by  the  plaintiff, 
unless  the  evidence  tends  to  show  the  defendant  guilty  of  such  sub- 
sequent negligence  as  in  the  circumstances  renders  it  liable. 

It  is  urged  by  the  plaintiff  that,  when  the  intestate's  horse  first  came 
in  view  on  the  westerly  side  of  the  depot,  it  was  visible  to  the  engi- 
neer, and  would  have  been  seen  by  him  had  he  been  in  the  exercise 
of  requisite  care,  before  the  intestate,  sitting  12  feet  back  from  the 
horse's  head,  could  look  past  the  depot  and  see  the  approaching  train ; 
that  consequently  the  defendant  had  the  last  clear  chance  to  avoid  the 
collision ;  and  that,  since  the  engineer  was  negligent  in  failing  thus 
to  see  the  team,  this  negligence  was  the  proximate  cause  of  the  ac- 
cident, and  the  negligence  on  the  part  of  the  intestate  in  driving  on 
the  crossing  was  remote,  and  will  not  defeat  a  recovery.  Again 
assuming  that  the  defendant  was  negligent  in  not  thus  seeing  the 
intestate  before  he  drove  on  the  crossing,  yet  it  does  not  follow  that 
the  last  clear  chance  was  with  the  defendant.  On  the  contrary,  the 
undisputed  testimony  of  the  witnesses  who  saw  the  accident  shows 
that  the  intestate  had  an  equal  opportunity  to  avoid  a  collision.  We 
have  already  noted  the  intestate's  negligence  in  driving  on  the  track 
without  first  making  proper  use  of  his  senses  to  ascertain  whether 
there  was  approaching  danger.  So  far  as  the  evidence  shows,  he  did 
not  look  to  see  whether  a  train  was  coming  or  not  until  his  horse 
was  just  stepping  on  the  crossing,  or  its  forward  feet  were  on  the 
plank  of  the  crossing.  The  horse  was  still  walking,  was  undisturbed 
l)y  the  noise  of  the  train,  and  was  under  the  complete  control  of 
the  intestate.  On  seeing  the  train,  the  intestate  at  first  partly  stopped 
the  horse,  or  pulled  it  back,  as  though  to  back  up,  and  then  urged 
it  forward.  At  that  time  the  accident  could  have  been  prevented  by 
backing  the  horse  three  or  four  feet  oft'  the  crossing  to  a  place  of 


Ch.  1)  NEGLIGENCE  1171 

safety.  This  the  intestate  had  time  to  do,  for,  in  fact,  the  team 
subsequently  moved  forward  at  a  walk  far  enough  to  place  the  horse 
entirely  over  the  crossing  before  the  collision,  by  reason  whereof 
it  escaped  injury.  Thus  it  clearly  appears  that  the  intestate's  neg- 
ligence was  continuous  to  the  time  when  the  engineer  discovered  the 
team  on  the  track,  after  which  everything  possible  was  done  by  the 
defendant's  servants  in  the  management  of  the  train  to  prevent  a 
collision.  So,  even  though  as  assumed  the  engineer  was  negligent 
in  not  seeing  the  team  after  it  was  visible  on  the  westerly  side  of 
the  depot  before  the  time  when  it  was  no  longer  possible  for 
him  to  avoid  the  accident,  the  intestate's  negligence  was  of  the  same 
degree  and  concurrent  during  all  of  the  same  time,  to  say  nothing  of  his 
negligence  later,  and  no  recovery  can  be  had.  In  Trow  v.  Vt.  Central 
R.  Co.,  24  Vt.  487,  58  Am.  Dec.  191,  upon  examination  of  authorities, 
it  was  held  that  when  there  has  been  mutual  negligence,  and  the 
negligence  of  each  party  was  the  proximate  cause  of  the  injury,  no 
action  can  be  sustained,  and  this  is  the  established  doctrine. 

It  follows  that  the  motion  for  a  verdict  should  have  been  granted. 
Judgment  reversed,  and  judgment  for  the  defendant  to  recover  its 
costs.^^ 

2T  Fart  of  the  opinion  is  omitted. 

Compare:  Quiim  v.  Chicago,  etc.,  R.  Co.  (190.3)  162  Ind.  442,  70  X.  E.  526: 
(Action  to  recover  for  the  death  of  the  plaintiff's  intestate  through  the  alleged 
negligence  of  the  defendant  railway  company.  About  10  o'clock  in  the  fore- 
noon of  a  clear  day  the  plaintiff's  intestate,  walking  north  on  Third  street, 
approached  the  public  grade  crossing  of  the  defendant's  tracks.  He  was  ac- 
quainted with  this  crossing.  He  possessed  ordinaiy  intelligence.  His  eye- 
sight and  hearing  were  good.  When  he  reached  the  crossing,  a  through 
freight  traui  on  the  main  track  was  moving  toward  Third  street.  When  he 
was  from  sixty  to  eighty  feet  south  of  the  side  track,  defendant's  freight 
engine,  with  two  loaded  cars,  went  east  on  the  side  track,  and  when  he 
reached  the  crossing  of  Third  street,  this  engine  and  these  cars  were  stand- 
ing still  about  260  feet  east  of  Third  street.  The  east  end  of  that  portion 
of  the  ti'ain  on  the  side  track  which  had  been  cut  off  from  the  two  cars  was 
about  600  feet  westward  from  the  crossing.  The  decedent  stopped  near  the 
south  rail  of  the  side  track,  and  remained  on  or  near  the  track  about  two 
minutes,  watching  the  through  freight  train  on  the  main  track,  which  passed 
in  front  of  him,  and  only  a  few  feet  away,  at  a  speed  of  from  eight  to  ten 
miles  per  hour.  No  obstruction  prevented  him  from  seeing  the  engine  and 
two  cars  on  tlie  side  track,  and  if  he  had  looked  eastward  he  could  have 
seen  them  when  they  were  standing  still,  or  after  they  started  westward, 
when  they  were  approaching  him.  While  decedent's  attention  was  directed 
to  the  train  on  the  main  track,  the  local  freight  engine  and  two  cars  were 
run  back,  westward,  at  a  speed  of  about  four  miles  per  hour,  and  struck  the 
decedent  while  he  was  standing  on  or  very  near  the  side  track.  No  signal 
of  the  starting  or  approach  of  the  engine  and  cars  on  the  side  track  was 
given  and  no  watch  was  kept  by  the  train  men  as  they  approachetl  the  cross- 
ing of  Third  street.  The  question  as  framed  for  the  court  was  this:  "A\'heth- 
er  there  can  be  a  recovery  when  a  foot  traveler  on  a  public  street,  approach- 
ing a  railroad  crossing  where  there  are  two  tracks,  sees  a  train  standing 
motionless  on  the  track  nearest  him,  and  goes  upon  or  near  tliat  track,  and 
stands  there,  awaiting  the  passing  of  a  train  uix»n  the  further  track,  to  which 
his  attention  is  directed,  and  while  so  standing,  with  his  attention  directed 
to  the  passing  train,  is  struck  by  the  train  upon  the  first  track  backing 
noiselessly  down  upon  him,  without  signal  or  warning  of  any  kind  being  given 
him  of  its  approach."    This  court's  answer  was  as  follows:    "In  the  present 


<> 


1172  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

^^    EVANSVILLE  &  S.  I.  TRACTION  CO.  v.  SPIEGEL. 

(Appellate  Court  of  Indiana,  1911.    49  Ind.  App.  412,  94  N.  E.  718.) 

This  is  an  action  brought  against  the  Traction  Company  to  recover 
damages  for  the  death  of  the  plaintiff's  minor  son,  Carl  Spiegel.  His 
death  is  alleged  to  have  been  caused  by  the  negligence  of  the  defendant 
in  operating  a  car  on  Main  street,  in  Evansville.  There  was  a  general 
denial,  with  a  verdict  for  the  plaintiff.  From  a  judgment  on  this  ver- 
dict for  $1,363  the  defendant  appeals. 

Lairy,  j,  *  *  *  Under  the  issues  formed  by  the  pleadings  in 
this  case,  evidence  might  have  been  introduced  that  would  bring  the 
case  within  the  operation  of  the  doctrine  known  as  the  "last  clear 
chance."  This  doctrine  is  clearly  stated  by  a  writer  in  2  Law  Quar- 
terly Review,  p.  507,  as  follows :  "The  party  who  last  has  a  clear  op- 
portunity of  avoiding  the  accident,  notwithstanding  the  negligence  of 
his  opponent,  is  considered  solely  responsible  for  it."  This  doctrine 
has  been  frequently  recognized  and  applied  by  our  courts.  Grass  v. 
Fort  Wayne,  etc..  Traction  Co.  (1908)  42  Ind.  App.  395,  81  N.  E.  514; 
Indianapolis  St.  R.  Co.  v.  Schmidt  (1905)  35  Ind.  App.  202,  71  N.  E. 
663,  72  N.  E.  478;  Citizens'  St.  R.  Co.  v.  Hamer  (1902)  29  Ind.  App. 
426,  62  N.  E.  658,  63  N.  E.  778;  Krenzer  v.  Pittsburgh,  etc.,  R.  Co. 
(1898)  151  Ind.  587,  43  N.  E.  649,  52  N.  E.  220,  68  Am.  St.  Rep.  252; 
Indianapolis,  etc.,  R.  Co.  v.  Pitzer  (1887)  109  Ind.  179,  6  N.  E.  310,  10 
N.  E.  70,  58  Am.  St.  Rep.  387 ;  Indianapolis  St.  R.  Co.  v.  Bolin  (1906)  39 
Ind.  App.  169,  78  N.  E.  210. 

case  the  tracks  of  the  appellee  were  straight,  and  the  view  from  the  point 
where  the  decedent  stood  was  unobstructed  for  more  than  three  hundred 
feet  eastward.  While  standing  still,  the  western  end  of  the  train  which 
afterwards  struck  the  decedent  was  about  two  hundred  fifty  feet  eastward 
from  him,  and  in  plain  view  all  the  time.  When  it  started  toward  him,  at  a 
speed  of  four  or  five  miles  per  hour,  if  the  decedent  had  looked  in  its  direc- 
tion, he  must  have  seen  it  before  it  reached  Third  street,  and  ample  time 
would  have  been  afforded  him  to  get  off  the  track.  The  circumstance  that 
his  attention  was  directed  to  a  train  passing  on  the  north  track  constituted 
no  excuse  for  his  failure  to  observe  the  train  approaching  him  on  the  south 
track,  nor  for  his  negligence  in  standing  upon  the  south  track  or  very 
near  to  it.  If  the  movement  of  the  train  on  the  north  track  filled  the 
air  with  dust  thereby  obscuring  the  view  up  and  down  the  south  track, 
this  was  but  an  additional  reason  for  the  exercise  of  greater  vigilance 
on  the  part  of  the  decedent.  Oleson  v.  Lake  Shore,  etc.,  R.  Co.  (ISDO)  143 
Ind.  40.J,  42  N.  B.  736,  32  L.  R.  A.  149;  Cincinnati,  etc.,  R.  Co.  v.  Duncan 
(189.'5)  143  Ind.  524,  42  N.  E.  37.  If  this  condition  existed,  common  prudence 
reiiuired  that  the  decedent  should  get  off  and  away  from  the  track.  The 
decedent  had  a  basket  of  clothing  on  his  riglit  shoulder,  and  this  probably 
prevented  him  from  seeing  the  train  as  it  canio  toward  him.  Had  he  turntnl 
his  face  eastward,  or  if  he  had  put  the  basket  down  when  he  went  upon  the 
track,  he  must  have  discovered  the  coming  train,  and  could  instantly  have 
steiiped  aside  into  a  place  of  safety.  He  failed  to  take  this  natural  and 
reasDuable  precaution,  and  his  want  of  care  for  his  own  safety  certainly 
contributed,  in  some  degree,  and,  as  we  think,  in  a  very  considerable  degree, 
to  occasion  the  accident  and  injury.  The  answers  of  the  jury  establislK'd 
the  fact  of  contributory  negligence  on  the  part  of  the  decedent.  This  being 
.so,  there  could  be  no  recovery  by  the  plaintiff."    Per  Dowling,  J.) 


Ch.  1)  NEGLIGENCE  1173 

Even  though  it  be  conceded  that  the  answers  to  the  interrogatories 
show  that  the  plaintiff's  decedent  neghgently  approached  and  entered 
upon  appellant's  track  in  front  of  an  approaching  car,  and  thus  negli- 
gently exposed  himself  to  the  danger  of  a  collision,  this  would  not  nec- 
essarily preclude  a  recovery  for  injury  resulting  from  appellant's  negli- 
gence. Answers  to  interrogatories  showing  such  facts  would  not  over- 
throw a  general  verdict  in  favor  of  the  plaintiff',  for  the  reason  that 
evidence  may  have  been  introduced  proving,  or  tending  to  prove,  that 
after  said  decedent  was  in  the  position  of  danger  in  which  he  had  so 
negligently  placed  himself,  the  defendant  knew  of  his  perilous  position, 
or  might  have  known  it  by  the  exercise  of  ordinary  care,  in  time  to  pre- 
vent the  injury,  and  that  it  negligently  failed  to  take  adavntage  of  the 
last  clear  chance  to  prevent  the  injury.  It  is  the  duty  of  this  court  to 
reconcile  the  interrogatories  with  the  general  verdict,  if  they  can  be  so 
reconciled  by  any  evidence  which  might  have  been  introduced  within 
the  issues ;  and,  to  this  end,  the  court,  in  ruling  upon  this  motion,  will 
treat  the  case  as  though  this  evidence  had  been  introduced  and  acted 
upon  by  the  jury.  In  view  of  what  we  have  said,  we  are  of  opinion 
that  the  answers  to  the  interrogatories  are  not  in  irreconcilable  conflict 
with  the  general  verdict  and  the  motion  of  appellant  for  judgment  in 
its  favor  on  such  interrogatories,  notwithstanding  the  general  verdict, 
was  properly  overruled. 

Several  reasons  were  assigned  by  appellant  in  its  motion  for  a  new 
trial.  The  first  one  presented  and  relied  on  by  appellant  is  that  the  ver- 
dict is  not  sustained  by  sufficient  evidence.  In  passing  on  this  motion, 
it  is  the  duty  of  the  court  to  consider  the  answers  to  the  interrogatories 
in  connection  with  the  evidence  for  the  purpose  of  deciding  whether 
the  verdict  is  sustained  by  the  evidence.  Terre  Haute,  etc.,  R.  Co.  v. 
Clark  (1880)  73  Ind.  168. 

The  jury  found  both  by  its  general  verdict  and  by  the  answers  to  in- 
terrogatories that  defendant  was  negligent.  The  answers  to  the  inter- 
rogatories show  that  its  car  was  being  run  at  the  rate  of  fifteen  miles 
an  hour  at  the  time  of  the  accident,  a  rate  which  was  three  miles  in  ex- 
cess of  the  rate  permitted  by  the  ordinance.  There  is  much  conflict  in 
the  evidence  as  to  the  speed  of  the  car,  some  of  the  witnesses  stating 
that  it  was  running  at  a  much  greater  speed  and  some  that  it  was  run- 
ning much  slower.  Where  the  evidence  is  conflicting,  the  verdict  of 
the  jury  is  conclusive  on  this  court. 

We  will  next  consider  whether  the  undisputed  evidence  in  the  case, 
considered  in  connection  with  the  interrogatories,  shows  that  decedent 
was  negligent  in  going  upon  appellant's  track,  where  he  was  killed. 

The  evidence  in  reference  to  the  conduct  of  decedent  from  the  time 
he  came  out  of  Williams  street  until  he  was  struck  by  the  car  is  not  in 
serious  conflict.  The  jury  have  found  the  facts  showing  this  conduct 
in  answers  to  certain  interrogatories,  and  the  facts  so  found  are  fully 
sustained  by  the  evidence.  The  jury  find  upon  this  question  that  dece- 
dent came  out  of  Williams  street,  riding  a  bicycle,  and  started  diag- 


1174  TOUTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

onally  across  Main  street  toward  Sycamore  street ;  that  he  was  carry- 
ing a  basket  in  his  left  hand,  had  his  right  hand  on  the  handle-bar  of 
the  bicycle,  and  was  traveling  at  a  moderate  rate  of  speed ;  that  he  had 
frequently  crossed  Main  street  at  and  near  that  place,  and  was  familiar 
with  the  location  and  surroundings,  and  knew  that  cars  frequently 
passed  on  Main  street ;  that  there  was  nothing  to  obstruct  his  view  of 
the  approaching  car  at  any  time  after  he  rode  out  of  Williams  street 
into  Main  street,  and  no  other  car  was  passing  at  the  time;  that  if  he 
had  looked  north  on  ^Main  street  at  any  time  after  he  came  out  of  Wil- 
liams street  he  could  have  seen  a  car  for  two  blocks,  and  that  he  could 
have  heard  the  car  for  half  a  block  if  he  had  listened,  but  that  there 
were  noises  of  pedestrians  and  vehicles  in  the  vicinity  which  would 
have  prevented  him  from  hearing  the  car;  that  when  he  reached  the 
space  between  the  two  tracks,  he  was  met  by  another  bicycle  rider  com- 
ing from  the  opposite  direction  in  the  space  between  the  tracks,  and 
that  he  was  attempting  to  pass  this  bicycle  rider  when  he  went  upon 
the  west  track ;  and  that  he  went  upon  the  west  track  at  a  point  in  a 
straight  line  between  the  middle  of  Williams  street  and  the  middle  of 
Sycamore  street  and  about  three  feet  in  front  of  the  car.  These  facts 
having  been  found  by  the  jury  will  be  taken  as  true,  so  far  as  there  is 
evidence  to  sustain  them,  and  the  fact  that  there  may  have  been  con- 
flicting evidence  as  to  some  or  all  of  such  facts  will  not  affect  their  ver- 
ity. In  deciding  whether  the  general  verdict  is  sustained  by  the  evi- 
dence, the  facts  found  by  way  of  answers  to  interrogatories  will  be 
treated  the  same  as  though  they  were  established  by  the  undisputed 
evidence,  unless  some  of  the  facts  so  found  are  unsupported  by  any 
evidence. 

There  is  some  conflict  in  the  evidence  as  to  whether  decedent  rode 
his  bicycle  in  a  straight  line  from  the  point  where  he  entered  upon 
Main  street  toward  the  middle  of  Sycamore  street  until  he  went  upon 
the  track,  or  whether  he  rode  south  in  the  space  between  the  two  tracks 
for  a  short  distance  before  he  went  upon  the  west  track,  but  this  is  not 
material.  In  either  view  of  the  case,  it  appears  from  the  evidence, 
when  considered  in  connection  with  the  answers  to  the  interrogatories, 
that  he  rode  half  way  across  Main  street  in  plain  view  of  the  approach- 
ing car,  and  went  upon  the  street-car  track  within  three  feet  of  the 
front  end  of  such  car,  while  it  was  moving  at  the  rate  of  twelve  or  fif- 
teen miles  an  hour.  At  that  point  Main  street  is  shown  by  the  map 
introduced  in  evidence  to  be  about  sixty  feet  in  width,  and  the  answers 
to  interrogatories  show  that  it  was  practically  level,  and  that  there  was 
nothing  to  obstruct  decedent's  view  of  the  approaching  car.  The  evi- 
dence shows  no  conditions  or  circumstances  surrounding  the  decedent 
just  before  the  accident  which  could  properly  be  considered  by  the 
jury  as  an  excuse  for  decedent's  apparent  failure  to  observe  or  heed 
the  approach  of  the  car.  Nothing  is  shown  that  could  have  obstructed 
his  view  or  distracted  his  attention.  While  some  of  the  witnesses  tes- 
tified that  this  was  a  busy  street  about  the  noon  hour,  and  that  many 


Ch.  1)  NEGLIGENCE  1175 

people,  on  foot  and  in  wagons  and  other  vehicles,  passed  the  point 
where  the  accident  happened,  about  that  hour,  nothing  is  shown  as  to 
conditions  and  surroundings  at  the  time  the  accident  occurred.  In 
the  Hglit  of  these  facts  we  cannot  think  that  the  conduct  of  the  decedent 
in  approaching  and  entering  upon  the  street-car  track  in  the  manner 
shown  was  consistent  wath  due  care  on  his  part.  We  recognize  that 
the  rule  of  law  which  requires  a  person  about  to  cross  the  track  of  a 
steam  railroad  to  look  and  listen  for  approaching  trains  in  order  to 
absolve  himself  from  the  charge  of  contributory  negligence  does  not 
apply  in  all  its  strictness  to  persons  traveling  along,  or  crossing  street 
railways.  Street  railways  are  constructed  along  and  operated  in 
streets,  and  must  be  so  operated  with  due  regard  to  the  rights  of  others 
using  said  streets  for  other  modes  of  travel,  and  for  just  reasons  the 
same  degree  of  care  is  not  required  of  one  in  crossing  a  street-car  track 
as  is  required  of  one  in  crossing  the  track  of  a  steam  railroad.  Indian- 
apolis St.  R.  Co.  V.  ^larschke  (1906)  166  Ind.  490,  77  N.  E.  945  :  \Miite 
V.  Worcester,  etc.,  St.  R.  Co.  (1896)  167  Mass.  43,  44  N.  E.  1052. 

This  rule  does  not,  however,  absolve  persons  going  upon  or  across 
the  tracks  of  street  railways  from  all  care.  A  person  about  to  cross  a 
street-car  track  must  use  ordinary  care  in  view  of  all  the  circumstances 
and  surroundings.  He  must  make  reasonable  use  of  his  eyes  to  ob- 
serve the  approach  of  cars,  and  where  there  is  nothing  to  obstruct  his 
view,  or  to  distract  his  attention,  and  he  goes  upon  the  track  immedi- 
ately in  front  of  a  moving  car,  he  is  guiltv  of  negligence.  Indianapolis 
St.  R.  Co.  V.  Zaring  (1904)  33  Ind.  App.  297,  71  X.  E.  270,  501 :  Citi- 
zens' St.  R.  Co.  V.  Helvie  (1899)  22  Ind.  App.  515,  ':>Z  X.  E.  191. 

In  this  case  we  cannot  escape  the  conclusion  that  appellee's  decedent 
was  negligent  in  approaching  and  entering  upon  appellant's  street-car 
track,  where  he  received  the  injur}-  that  caused  his  death. 

The  question  of  last  clear  chance  yet  remains  to  be  considered.  This 
doctrine  finds  its  most  frequent  application  in  cases  where  the  negli- 
gence of  the  defendant  is  shown,  and  where  it  also  appears  that  the 
plaintiff,  or  decedent,  by  a  want  of  due  care  on  his  part  placed  himself 
in  a  position  of  imminent  peril  exposing  him  to  danger  as  a  result  of 
the  negligence  of  the  defendant.  In  such  a  case  it  may  be  shown  that 
after  the  plaintiff,  or  decedent,  had  thus  negligently  exposed  himself 
to  the  danger,  circumstances  or  conditions  existed,  or  then  arose,  which 
imposed  upon  the  defendant  or  its  agents  a  special  duty  to  protect  him 
from  injury  and  afforded  an  opportunity  to  do  so,  and  that  such 
duty  was  not  observed  and  the  opportunity  neglected.  When  this  is 
shown,  the  negligent  conduct  of  the  plaintiff"  is  held  to  be,  not  the  cause, 
but  a  condition  of  the  situation  with  reference  to  which  the  defendant 
must  act.  In  the  case  of  Louisville,  etc.,  R.  Co.  v.  East  Tenn.,  etc.,  R. 
Co.  (1894)  60  Fed.  993,  9  C.  C.  A.  314,  the  doctrine  is  thus  stated :  "If, 
with  a  knowledge  of  what  plaintiff  has  done,  or  is  about  to  do,  the 
defendant  can  by  ordinary  care,  avoid  the  injury  likely  to  result  there- 
from, and  does  not,  defendant's  failure  to  avoid  the  injury  is  tlie  last 


117G  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

link  in  the  chain  of  causes,  and  is,  in  law,  the  sole  proximate  cause. 
The  conduct  of  the  plaintiff  is  not,  then,  a  cause,  but  a  condition  of  the 
situation  with  respect  to  which  the  defendant  has  to  act." 

Contributory  negligence,  when  shown,  is  a  complete  defense  to  a 
case  founded  upon  negligence  of  the  defendant.  To  make  out  a  case 
of  contributory  negligence,  two  elements  must  be  established  by  the 
evidence:  (1)  That  the  plaintiff  was  negligent,  and  (2)  that  this  negli- 
gence proximately  and  directly  contributed  to  the  injury.  If  the  jury 
found  from  the  evidence  in  this  case  that  after  the  motorman  discov- 
ered the  peril  of  the  plaintiff's  decedent  to  which  his  negligence  had 
exposed  him,  or  was  about  to  expose  him,  such  motorman  had  time 
and  opportunity  to  prevent  the  injury  by  the  exercise  of  precautions 
to  that  end,  and  he  failed  to  do  so,  then  contributory  negligence  on  the 
part  of  the  decedent  is  not  established.  In  such  a  case  the  negligence 
of  decedent  is  established,  but  it  is  not  shown  to  have  directly  and  prox- 
imately contributed  to  his  injury,  and  therefore  the  second  element  is 
wanting. 

The  doctrine  of  last  clear  chance  is  not  an  exception  to  the  rule  re- 
lating to  contributory  negligence.  Facts  which  render  the  doctrine  of 
last  clear  chance  applicable  in  any  case,  do  not  tend  to  prove  that  the 
plaintiff  was  not  negligent,  but  do  tend  to  prove  that  the  negligence  of 
the  plaintiff,  which  placed  him  in  a  situation  of  danger,  was  not  the 
proximate  cause  of  his  injury,  but  was  only  the  remote  cause.  Grass 
V.  Fort  Wayne,  etc..  Traction  Co.,  supra. 

In  the  case  of  Indianapolis  St.  R.  Co.  v.  Schmidt,  supra,  it  is  said 
"that  the  negligence  of  the  plaintiff  ceases  to  be  the  proximate  cause 
of  the  injury  when  the  defendant  has  opportunity  to  prevent  it,  and, 
with  knowledge  of  the  exposed  condition  of  the  plaintiff,  negligently 
refuses  to  do  so,  is  well  settled  in  this  state." 

In  considering  contributory  negligence  with  reference  to  the  doc- 
trine of  last  clear  chance,  it  is  important  to  distinguish  the  facts  tending 
to  show  want  of  due  care  on  the  part  of  plaintiff'  from  those  tending  to 
show  that  such  want  of  care  on  his  part  directly  and  proximately  con- 
tributed to  the  injury.  In  a  case  like  this,  proof  of  facts  tending  to 
show  that  decedent  approached  and  entered  upon  defendant's  street- 
car track  without  taking  any  precaution  for  his  own  safety,  makes  out 
a  prima  facie  showing  upon  the  question  of  his  negligence ;  and  proof 
of  facts  tending  to  show  that  by  reason  of  such  negligence  he  was 
placed  in  a  position  where  he  was  exposed  to  the  danger  of  being  in- 
jured, and  where  he  was  actually  injured  by  reason  of  defendant's  neg- 
ligence, would  make  out  a  prima  facie  showing  that  the  negligence  of 
decedent  directly  and  proximately  contributed  to  his  injury.  Such  a 
showing  upon  both  of  these  questions  would  constitute  a  prima  facie 
case  of  contributory  negligence.  This  case  may  be  met  by  evidence 
tending  to  rebut  the  showing  made  upon  either  or  both  of  the  constit- 
uent elements  of  contributory  negligence.  The  showing  upon  the  first 
element,  before  referred  to,  may  be  rebutted  by  evidence  tending  to 


Ch.  1)  NEGLIGENCE 


1177 


show  that  decedent  used  due  care,  and  the  showing  upon  the  second 
element  may  be  rebutted  by  evidence  tending  to  prove  that  after  dece- 
dent had  by  his  own  neghgence  become  exposed  to  imminent  and  im- 
pending danger,  defendant  had  it  within  its  power  to  prevent  the  in- 
jurv  by  the  exercise  of  some  precaution  on  its  part  which  it  failed  to 
exercise.  Evidence  tending  to  establish  "last  clear  chance,"  does  not 
have  the  effect  of  confessing  and  avoiding  contributory  negligence,  but 
its  purpose  and  effect  is  to  show  that  plaintiff's  negligence  was  not  the 
proximate  cause  of  his  injury,  and  thus  to  rebut  the  evidence  tending 
to  establish  that  fact. 

The  defendant  in  this  case,  as  shown  by  the  interrogatories  consid- 
ered in  connection  with  the  undisputed  evidence,  made  out  a  prima  fa- 
cie case  of  contributory  negligence  upon  both  its  essential  elements.  It 
was  incumbent  upon  plaintiff  to  introduce  the  evidence,  if  such  had  not 
already  been  introduced,  tending  to  prove,  either  that  his  decedent  used 
due  care,  or  that  under  the  circumstances,  facts  existed  which  called 
for  the  application  of  the  doctrine  of  "last  clear  chance."  See  Ency. 
Ev.  854;  Gibson  v.  Harrison  (1901)  69  Ark.  385,  63  S.  W.  999,  54  L. 
R.  A.  268;  Koegel  v.  IVIissouri  Pac.  R.  Co.  (1904)  181  Mo.  379,  80  S. 
W.  905 ;  Luna  v.  Missouri,  etc.,  R.  Co.  (Tex.  Civ.  App.  1903)  7Z  S.  W. 
1061.  If  there  is  a  total  failure  of  evidence  upon  both  of  these  propo- 
sitions, the  prima  facie  case  of  contributory  negligence  made  by  appel- 
lant must  prevail ;  but  if  there  is  evidence  tending  to  show,  either  that 
plaintiff  used  due  care,  or  if  he  was  negligent  that  such  negligence  was 
not  the  direct  and  proximate  cause  of  his  injury,  but  only  the  remote 
cause,  then  the  question  of  contributory  negligence  was  for  the  jury, 
and  the  burden  of  this  issue  remained  with  the  defendant  as  to  both 
of  the  constituent  elements  of  contributory  negligence.  Grass  v.  Fort 
Wayne,  etc.,  Traction  Co.,  supra;    1  Elliott,  Evidence,  139. 

We  have  already  stated  that  there  is  no  evidence  tending  to  show 
due  care  on  the  part  of  decedent,  and  we  will  now  consider  the  evi- 
dence bearing  upon  the  other  questions.  In  order  to  make  such  a 
showing  as  calls  for  the  application  of  the  doctrine  of  last  clear 
chance,  the  evidence  must  show,  or  tend  to  show  (1)  that,  at  some 
appreciable  time  before  the  accident  happened,  decedent  was  in  a 
place  of  imminent  and  apparent  danger,  or  that  his  appearance  and 
conduct  was  such  as  to  indicate  to  a  man  of  ordinary  prudence  oc- 
cupying the  position  of  the  motorman  that  he  was  about  to  place  him- 
self in  such  a  position ;  and  (2)  that  during  the  time  which  inter- 
vened after  this  situation  arose  and  before  the  injury  the  motorman 
could  have  prevented  or  mitigated  such  injury  by  the  exercise  of  due 
care,  and  decedent  could  not. 

The  only  evidence  bearing  upon  this  question  that  we  have  been 
able  to  find  is  the  evidence  of  the  motorman.  He  said :  "I  saw  him 
come  out  of  Williams  street,  right  onto  Main.  I  was  right  down 
here  pretty  close  to  him.  He  had  a  basket  in  his  left  hand,  and  had 
his  right  hand  on  the  handle-bar  of  the  bicycle.     He  was  headed  in 


1178  TOUTS   THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

the  direction  of  Sycamore  street.  I  saw  another  boy  on  a  bicycle 
coming  up  Main  street.  When  he  got  up  right  close  to  the  boy,  it 
seemed  like  he  was  going  to  run  into  that  boy,  and  they  were  going 
to  have  a  collision,  and  he  whipped  his  wheel  right  square  around 
on  my  track.  I  don't  think  I  was  more  than  three  feet  away,  might 
say  right  against  him  when  he  got  on  my  track.  I  did  not  reverse 
.,  the  power  'til  he  got  on  the  track.  I  did  not  use  the  brake  at  all  be- 
fore the  accident  happened."  The  jury  in  the  answers  to  interroga- 
tories found  that  decedent  was  going  diagonally  across  Main  street 
toward  Sycamore  street  at  a  moderate  rate  of  speed,  as  described  by 
the  motorman,  that  he  met  another  bicycle  rider  in  the  space  between 
the  two  tracks,  and  that  he  turned  onto  the  west  track  at  a  point  only 
three  feet  in  front  of  the  car.  The  map  introduced  in  evidence  shows 
that  it  is  about  thirty  or  thirty-five  feet  from  the  south  line  of  Main 
street  to  the  place  where  the  accident  happened,  although  the  jury 
found  that  there  was  no  evidence  as  to  the  exact  distance.  The  jury 
found  that  there  was  no  evidence  showing  how  far  the  car  was  from 
the  place  of  collision  when  decedent  entered  Main  street,  and  we 
have  been  unable  to  find  any  evidence  on  this  question.  The  jury 
found  that  there  was  no  more  effective  means  of  stopping  the  car  than 
by  reversing  the  power.  There  is  no  evidence  tending  to  show  how 
far  the  car  was  from  the  decedent  at  the  time  the  motorman  saw 
that  the  bicycles  were  likely  to  collide.  There  is  no  evidence  show- 
ing that  decedent,  as  he  approached  the  track,  was  looking  in  the 
opposite  direction  from  the  car,  or  that  he  seemed  to  be  abstracted 
or  oblivious  to  his  surroundings.  There  is  nothing  in  the  evidence 
showing  that  there  was  anything  to  indicate  that  decedent  was  likely 
to  go  upon  the  track  in  front  of  the  car,  except  the  general  direction 
in  which  he  was  traveling. 

This  evidence  does  not  prove,  or  tend  to  prove,  a  state  of  facts  to 
which  the  doctrine  of  last  clear  chance  is  applicable.  The  first  es- 
sential thing  that  the  evidence  must  prove  or  tend  to  prove  is  that 
the  decedent  was  in  a  situation  of  apparent  and  imminent  danger  at 
some  appreciable  time  before  the  injury.  If  this  evidence  tends  to 
show  that  Carl  Spiegel  was  in  such  a  place  of  apparent  danger,  when 
was  it  in  reference  to  the  time  of  the  injury?  Was  it  when  he  rode 
his  bicycle  upon  the  track  within  three  feet  of  the  front  end  of  the 
moving  car?  If  so,  there  was  clearly  no  time  within  which  the  motor- 
man  could  have  prevented  the  injury.  W^as  it  when  the  motorman 
saw  that  there  was  a  bicycle  approaching  from  the  south,  and  that 
there  was  likely  to  be  a  collision  between  the  two  bicycles?  If  so, 
there  is  no  evidence  tending  to  prove  how  far  the  car  was  from  the 
decedent  at  that  time,  or  that  the  motorman  by  any  means  could 
have  prevented  the  injury.  Was  it  when  decedent  was  approaching 
the  street-car  track  from  Williams  street?  There  is  nothing  in  evi- 
dence tending  to  show  that  at  that  time  there  was  any  apparent  dan- 
ger that  decedent  would  go  upon  the  track  in  front  of  the  car;  nei- 


Ch.  1)  NEGLIGENCE  1179 

ther  is  there  any  evidence  to  show  how  far  the  car  was  from  the 
place  of  accident  at  the  time  decedent  entered  upon  Alain  street.  If 
there  had  been  evidence  tending  to  show  that  Carl  Spiegel,  as  he 
approached  the  track  was  apparently  abstracted  and  oblivious  of  his 
surroundings,  and  that  he  was  moving  in  the  direction  of  the  track  at 
such  a  speed  as  would  likely  carry  him  in  front  of  the  car  and  into 
dangerous  proximity  to  it,  and  that  the  motorman,  regardless  of  this 
apparent  danger,  took  no  steps  to  stop  the  car  or  slacken  its  speed, 
then  we  would  have  a  different  case  presented.  In  such  a  case,  it 
would  be  for  the  jury  to  say  whether  the  negligence  of  the  defendant 
directly  and  proximately  contributed  to  decedent's  injury,  or  whether 
it  was  only  the  remote  cause ;  but,  in  this  case,  there  is  no  evidence 
upon  which  the  application  of  this  doctrine  can  be  predicated.  We 
therefore  conclude  that  appellant's  motion  for  a  new  trial  should  have 
been  sustained. 

The  judgment  of  the  trial  court  is  reversed  with  directions  to  grant 
a  new  trial.- ^ 

2  8  The  statement  of  facts  is  abridged.  A  portion  of  the  opinion,  and  the 
dissenting  opinion  by  Hottel,  J.,  on  the  effect  of  the  general  verdict,  are  omit- 
ted. 

Compare:  Labelle  v.  Central  Vermont  R.  Co.  (1913)  87  Vt.  87,  88  Atl.  .517: 
(P.,  driving  a  dump  cart,  was  walking  beside  the  tongue  between  the  front  . 

wheels  and  the  body  of  the  cart,  when  he  approached  a  public  grade  cross-  ^y^ 
ing  of  a  railway.  As  he  was  just  getting  on  the  track  he  saw  a  train  com- 
ing. He  attempted  to  get  across,  but  the  train  struck  the  cart  and  the  cart 
stinick  him.  P.  claimed  the  right  to  go  to  the  jury  on  the  last  clear  chance. 
Said  Watson,  J.:  "Should  the  case  have  been  submitted  to  the  jury  upon 
the  doctrine  of  the  'last  clear  chance'?  The  negligence  of  the  plaintiff  proxi- 
mately contributing  to  the  accident  continued  as  long  as  it  was  possible  for 
him  to  avoid  i)ersonal  injury.  He  was  walking  between  the  front  wheels  and  the 
body  of  the  dump  cart,  his  horses  perfectly  manageable.  The  space  between  the 
forward  wheels  and  the  body  was  sufficient  for  cramping  purposes,  and  there 
was  no  evidence  tending  to  show  that  it  was  not  large  enough  for  the  plain- 
tiff to  go  through  and  outside  the  wheels,  thereby  to  leave  ithe  team  at  any 
time  before  he  went  upon  the  track,  if  need  be,  for  his  safety.  He  could 
nave  done  this  until  the  train  was  so  near,  according  to  the  undisputed  evi- 
dence, that  it  was  no  longer  possible  for  those  in  charge  to  prevent  a  col- 
lision. Thus  it  appears  that  the  plaintiff's  negligence,  proximate  in  character, 
was  concurrent  with  that  of  the  defendant  [assuming  that  the  defendant  was 
negligent]  as  long  as  it  was  possible  for  the  latter  to  avoid  the  accident.  In 
this  respect  the  case  is  not  distinguishable  from  that  of  Flint's  Adm'r  v. 
Central  Vermont  Ry.  Co.  [1909]  82  Vt.  2«J9,  73  Atl.  590,  cited  above,  and  the 
doctrine  of  the  'last  clear  chance'  does  not  apply."  French  v.  Grand  Trunk 
Rv.  Co.  [18S2]  76  ^'t.  441,  58  Atl.  722 ;  Butler  v.  Rockland,  etc.,  St.  R.  Co.  [1904] 
99  Me.  149,  58  Atl.  775,  105  Am.  St.  Rep.  267;  Green  v.  Los  Angeles  Terminal 
R.  Co.  [1904,]  143  Cal.  41,  76  Pac.  719,  101  Am.  St.  Rep.  68.  A  judgment 
for  the  defendant  upon  a  directed  verdict  was  therefore  affirmed.) 


IISO  TORTS  THROUGH   ACTS   OP  CONDITIONAL  LIABILITY         (Part  S 

TAYLOR  V.  ^lETROPOLlTAN  ST.  RY.  CO. 

(Supreme  Court  of  Missouri,  1914.    256  Mo.  191,  1G5  S.  W.  327.) 

Action  to  recover  damages  for  personal  injuries  received  by  one 
Albert  P.  Taylor  in  a  collision  with  one  of  defendant's  cars  while 
Taylor  was  crossing  Nineteenth  street  on  Cherry  street  in  Kansas 
City,  Mo.,  about  8  p.  m.,  September  20,  1907.  Plaintiff  recovered 
judgment  in  the  trial  court  in  the  sum  of  $6,250,  and  the  defendant 
perfected  an  appeal  to  the  Kansas  City  Court  of  Appeals.  After  the 
appeal  was  taken,  plaintiff  died.  The  case  was  revived  in  the  name 
of  Jennie  Taylor,  as  administratrix  of  his  estate.  In  an  opinion  writ- 
ten by  the  Kansas  City  Court  of  Appeals,  the  judgment  was  affirmed; 
but,  one  of  the  judges  of  said  Court  of  Appeals  deeming  its  decision 
contrary  to  previous  decisions  of  the  Supreme  Court,  the  cause  was 
duly  certified  and  transferred  here.  That  portion  of  the  plaintiff's 
petition  charging  negligence  is  as  follows : 

"Defendant,  througli  the  negligence  and  uuskillfulness  of  its  officers,  agents, 
servants,  and  employes  in  running,  conducting,  and  managing  a  car  of  the 
defendant,  wliich  was  being  moved  by  the  defendant  at  an  unusual  and  rapid 
rate  of  speed  along  said  track,  while  in  charge  of  its  said  otficers,  agents, 
servants,  and  employes,  negligently  and  carelessly  ran  the  said  car  into,  upon, 
and  against  the  wagon  in  which  plaintiff  was  riding,  as  aforesaid,  with  great 
force  and  violence.  That  the  officers,  agents,  servants,  and  employes  of  the 
defendant  in  charge  of  said  car,  and  who  were  then  engaged  in  running, 
conducting,  and  managing  said  car  saw,  or,  by  the  exercise  of  ordinary  care 
on  their  part,  might  have  seen,  said  plaintiff,  and  become  aware  of  the  dan- 
ger to  which  he  was  exposed  while  crossing  said  Nineteenth  street,  and  while 
said  wagon  was  on  said  track,  crossing  the  same,  in  ample  time  to  have 
stopped  said  car  before  it  struck  said  wagon,  as  aforesaid,  and  thus  hare 
avoided  injuring  plaintiff,  but  that  said  officers,  agents,  servants,  and  employes 
of  said  defendant  so  in  charge  of  said  car  negligently  failed  to  stop  said  car, 
and  negligently  caused  and  permitted  the  same  to  strike  said  wagon  as 
aforesaid,  whereby  plaintiff  was  violently  knocked  down  and  against  said 
wagon  and  gig  and  out  of  said  wagon  to  the  street,"  etc. 

The  answer  was  a  general  denial. 

Williams,  C.  *  *  *  IV.  A  further  contention  is  made  that  the 
demurrer  to  the  evidence  should  have  been  sustained,  on  the  ground 
that  "it  appears  from  plaintift"'s  own  testimony  that  his  own  negli- 
gence was  the  proximate  cause  of  the  accident." 

Plaintiff'  testified  that,  when  the  wagon  started  north  across  Nine- 
teenth street,  he  did  not  know  which  way  the  cars  ran  on  that  street, 
and  first  looked  toward  the  east,  and  then  turned  and  looked  to  the 
west,  and  saw  the  car  coming  60  or  70  yards  distant.  At  this  time 
the  horses'  front  feet  were  between  the  rails,  and  he  thought  there 
was  plenty  of  time  for  the  wagon  to  cross  ahead  of  the  car,  and  did 
not  therefore  think  it  necessary  for  him  to  jump  from  the  wagon. 
He  is  corroborated  in  this  by  both  the  driver  of  the  wagon,  and  also 
by  Jaggard,  who  was  near  him  in  the  back  portion  of  the  wagon. 
At  this  time  he  thought  the  wagon  was  traveling  about  6  miles  an  hour 
and  had  about  17  feet  to  go  in  order  to  clear  the  track.    He  thought 


Ch.  1)  NEGLIGENCE  1181 

the  car  was  running  at  a  speed  of  from  25  to  30  miles  an  hour,  and 
that  it  had  180  to  210  feet  to  go.  He  then  turned  and  was  engaged 
in  conversation  with  Jaggard,  and  a  little  later,  his  attention  being 
aroused  by  what  was  said  by  Jaggard  directing  the  driver  to  "look 
out,"  he  looked  up  and  saw  the  car  almost  upon  them  and  before 
he  had  time  to  change  his  position  the  collision  occurred. 

In  the  discussion  in  the  preceding  paragraph,  it  was  found  that  there 
was  evidence  tending  to  show  that  the  motorman,  by  the  exercise  of 
the  proper  degree  of  care,  under  the  circumstances,  could  have  seen 
plaintiff  in  a  position  of  peril  in  time  to  have  saved  him  by  the  ex- 
ercise of  proper  care.  Under  such  conditions,  it  could  not  be  said 
that  his  negligence  was  the  proximate  cause  of  the  injury,  so  as  to 
defeat  a  recovery  under  the  humanity  rule.  White  v.  Railroad,  su- 
pra, 202  Mo.  loc.  cit.  564,  101  S.  W.  14. 

In  order  to  justify  the  designation  of  plaintiff's  negligence  as  the 
proximate  cause  of  the  injury,  and  therefore  prevent  the  operation 
of  the  humanity  rule,  the  situation  must  be  such  that  plaintiff's  neg- 
ligence caused  him  to  enter  the  danger  zone  too  late  for  defendant 
to  save  him  by  the  exercise  of  the  care  required  under  the  situation. 

The  correct  rule,  applicable  here,  was  announced  by  Lamm,  J.,  in 
the  case  of  Ellis  v.  Metropolitan  Street  Railway  Co.,  234  Mo.  657, 
138  S.  W.  23,  as  follows :  "When  a  person,  out  of  danger,  negli- 
gently moves  from  his  place  of  safety  to  one  of  danger  from  an 
on-coming  street  car,  so  close  to  it  and  under  such  circumstances  that 
his  danger  could  not  be  reasonably  apprehended  by  those  in  charge 
of  the  car  (who  see  or  might  see  his  peril)  in  time  to  have  saved  him 
by  the  exercise  of  ordinary  care,  then  the  negligence  of  the  traveler 
is  either  the  proximate  cause  of  his  own  injury,  or,  in  case  the  ele- 
ment of  defendant's  negligence  be  also  present,  then  the  negligence 
of  the  street  traveler  and  the  negligence  of  the  carrier  are  coincident 
and  concurrent;  they  (excluding  the  idea  of  comparative  negligence) 
may  be  said  to  balance  or  oft"set  each  other.  In  either  of  which  hy- 
potheses there  is  no  room  at  all  for  the  application  of  the  humanity 
rule.  If  a  given  case  in  that  regard  is  so  plain  that  average  fair- 
minded  men  cannot  reasonably  differ  about  it,  a  recovery  may  be 
denied  as  a  matter  of  lavv-.  That  result  has  been  reached  in  many 
cases  cited.  But,  if  there  is  a  ground  for  fair  dift'erence  of  opinion 
about  it,  then  the  question  is  for  the  jury."     *     *     * 

The  judgment  is  affirmed.    Roy,  C,  concurs. 

Per  Curiam.  The  foregoing  opinion  of  Williams,  C,  is  adopted 
as  the  opinion  of  the  Court.^® 

2  9  The  statement  of  facts  is  abridged  aud  parts  of  the  opinion  of  Wil- 
liams, C,  are  omitted. 


1182  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

CHAPTER  II 
TORTS  THROUGH  MALICE 


SECTION  1.— NATURE  OF  "MALICE' 


Closely  connected  with  the  law  and  theory  of  intentional  wrong- 
doing is  the  legal  use  of  the  word  "malice."  In  a  narrow  and  pop- 
ular sense  this  term  means  ill-will,  spite,  or  malevolence ;  but  its  legal 
signification  is  much  wider.  Malice  means  in  law  wrongful  intention. 
It  includes  any  intent  which  the  law  deems  wrongful,  and  which 
therefore  serves  as  a  ground  of  liability.  Any  act  done  with  such 
an  intent  is,  in  the  language  of  the  law,  malicious,  and  this  legal  usage 
has  etymology  in  its  favour.  The  Latin  "inalitia"  means  badness, 
physical  or  moral — wickedness  in  disposition  and  in  conduct — not  spe- 
cifically or  exclusively  ill-will  or  malevolence ;  hence  the  malice  of 
English  law,  including  all  forms  of  evil  purpose,  design,  intent,  or 
motive. 

We  have  seen,  how^ever,  that  intent  is  of  two  kinds,  being  either 
immediate  or  ulterior,  the  ulterior  intent  being  commonly  distinguished 
as  the  motive.  The  term  "malice"  is  applied  in  law  to  both  these  forms 
of  intent,  and  the  result  is  a  somewhat  puzzling  ambiguity  which 
requires  careful  notice.  When  we  say  that  an  act  is  done  maliciously 
we  mean  one  of  two  distinct  things.  We  mean  either  that  it  is  done 
intentionally,  or  that  it  is  done  with  some  wrongful  motive.  In  the 
phrases  "malicious  homicide"  and  "malicious  injury  to  property,"  ma- 
licious is  merely  equivalent  to  wilful  or  intentional.  I  burn  down 
a  house  maliciously  if  I  burn  it  on  purpose,  but  not  if  I  burn  it  neg- 
ligently. There  is  here  no  reference  to  any  ulterior  purpose  or  mo- 
tive. But  on  the  other  hand  malicious  prosecution  does  not  mean 
intentional  prosecution ;  it  means  a  prosecution  inspired  by  some  mo- 
tive of  which  the  law  disapproves.  A  prosecution  is  malicious,  for 
example,  if  its  ulterior  intent  is  the  extortion  of  money  from  the  ac- 
cused. So  also  with  the  malice  which  is  needed  to  make  a  man  lia- 
ble for  defamation  on  a  privileged  occasion ;  I  do  not  utter  defama- 
tory statements  maliciously,  simply  because  I  utter  them  intentionally. 

John  W.  Salmond,  Jurisprudence  (3d  Ed.)  346. 


Ch.  2)  TORTS  THROUGH   MALICE  1183 

Malice  in  common  acceptation  means  ill  will  against  a  person,  but 
in  its  legal  sense  it  means  a  wrongful  act,  done  intentionally  without 
just  cause  or  excuse.  If  I  give  a  perfect  stranger  a  blow  likely  to 
produce  death,  I  do  it  of  malice,  because  I  do  it  intentionally,  and 
without  just  cause  or  excuse.  If  I  maim  cattle,  without  knowing  whose 
they  are,  if  I  poison  a  fisher^',  without  knowing  the  owner,  I  do  it  of 
malice,  because  it  is  a  wrongful  act  and  done  intentionally.  If  I  am 
arraigned  of  felony,  and  wilfully  stand  mute,  I  am  said  to  do  it  of 
malice,  because  it  is  intentional,  and  without  just  cause  or  excuse. 

Eayley,  J.,  in  Bromage  v.  Prosser  (1825)  4  B.  &  C.  247,  255. 


SECTION  2.— INDIVIDUAL  TORTS  TURNING  ON  MALICE. 

I.  Malicious  Prosecution 


STATUTE  OF  MALICIOUS  APPEALS. 
(13  Edw.  I,  c.  12,  1285.     1  Pickering's  Stats,  at  Large,  100.) 

Forasmuch  as  many,  through  Malice  intending  to  grieve  other,  do 
procure  false  Appeals  to  be  made  of  Homicides  and  other  Felonies  by 
Appellors,  having  nothing  to  satisfy  the  King  for  their  false  Appeal, 
nor  to  the  Parties  appealed  for  their  Damages ;  it  is  ordained.  That 
when  any,  being  appealed  of  Felony  surmised  upon  him,  doth  acquit 
himself  in  the  King's  Court  in  due  ^Manner,  either  at  the  Suit  of  the 
Appellor,  or  of  our  Lord  the  King,  the  Justices,  before  whom  the  Ap- 
peal shall  be  heard  and  determined,  shall  punish  the  Appellor  by  a 
Year's  Imprisonment,  and  the  Appellors  shall  nevertheless  restore  to 
the  Parties  appealed  their  Damages,  according  to  the  Discretion  of  the 
Justices,  having  Respect  to  the  Imprisonment  or  Arrestment  that  the 
Party  appealed  hath  sustained  by  reason  of  such  Appeals,  and  to  the 
Infamy  that  they  have  incurred  by  the  Imprisonment  or  otherwise, 
and  shall  nevertheless  make  a  grevious  Fine  unto  the  King.  And  if 
peradventure  such  Appellor  be  not  able  to  recompense  the  Damages, 
it  shall  be  inquired  by  whose  Abetment  or  Malice  the  Appeal  was  com- 
menced if  the  Party  appealed  desire  it;  and  if  it  be  found  by  the  same 
Inquest,  that  any  Man  is  Abettor  through  ]\Ialice  at  the  Suit  of  the 
Party  appealed  he  shall  be  distrained  by  a  judicial  Writ  to  come  be- 
fore the  Justices ;  and  if  he  be  law^f  ully  convict  of  such  malicious  Abet- 
ment, he  shall  be  punished  by  Imprisonment  and  Restitution  of  Dam- 
ages, as  before  is  said  of  the  Appellor. 


1184  torts"  through  acts  of  conditional  liability       (Part  3 

The  new  forms  of  Tort  which  came  into  existence  as  varieties  of 
the  action  of  Case,  because  the  older  writs  deahng  with  similar  of- 
fences were  unavailable,  were  notably,  Malicious  Prosecution  and 
Nuisance.  Malicious  Prosecution  was  an  adaptation  of  the  old  Writ 
of  Conspiracy,  which  was  itself  based  on  a  statute  and  ordinance  of 
the  years  1300  and  1305,  respectively.  These  enactments,  however, 
only  applied  to  cases  where,  "two,  three,  or  more  persons  of  malice  and 
covin  do  conspire  and  devise  to  indict  any  person  falsely,  and  after- 
wards he  who  is  so  indicted  is  acquitted."  The  old  writ  was,  conse- 
quently, confined  to  such  cases;  and  subsequent  judicial  rulings  seem 
to  have  restricted  it  still  further,  to  cases  of  false  indictments  for  trea- 
son or  felony,  whereby  the  accused's  life  was  endangered.  Obviously, 
there  were  many  other  cases  in  which  oppression  could  be  used,  not 
merely  by  a  group  of  persons  acting  together,  but  even  by  a  single  un- 
scrupulous person,  through  the  medium  of  baseless  prosecutions.  And 
so,  after  the  Church  Courts  had  tried  to  acquire  jurisdiction  in  such 
cases  through  proceedings  for  defamation,  we  find  in  the  King's 
Courts,  by  the  end  of  the  fifteenth  century,  an  action  of  Case  in  the 
Nature  of  Conspiracy,  which  applied  against  single  individuals  and  on 
false  indictments  for  mere  misdemeanors.  This  new  form  of  action 
gradually  acquired  the  name  of  Malicious  Prosecution,  and  was  fur- 
ther extended  to  cover  the  malicious  procuring  of  search  warrants 
against  the  plaintiff.  It  should  be  observed,  however,  that,  unlike 
strict  Conspiracy,  the  gist  of  the  action  of  Malicious  Prosecution  is 
damage  to  the  plaintiff,  not  the  mere  conspiring  of  the  defendants ; 
though,  if  a  false  and  malicious  prosecution  is  brought,  damage  to  the 
party  prosecuted  will  be  presumed.  Apparently,  though  the  closely 
related  Writ  of  Champerty  (against  person  buying  shares  in  lawsuits 
with  a  view  of  aiding  in  carrying  them  on)  retained  the  form  given  to 
it  by  statute,  the  Action  of  Maintenance  (against  persons  taking  part 
in  lawsuits  in  which  they  had  no  interest)  was  also  a  typical  example 
of  Case;  being  an  enlargement  of  the  narrower  statutory  remedy 
against  royal  officials. 

Edward  Jenks,  Short  ITist.  Eng.  Law,  142. 


(A)  Blements  of  the  Prima  Facie  Ca<^e  in  Malicious  Prosecution 

FISHER  V.  BRISTOW  et  al. 

(Court  of  King's  Bench,  1779.     1  Doug.  215,  99  Reprint,  140.) 

Action  for  a  malicious  presentment,  (for  incest,)  in  the  Ecclesiastical 
Court  of  the  Archdeaconry  of  Huntingdon.  Demurrer  to  the  declara- 
tion, and  cause  assigned,  that  it  was  not  stated,  how  the  prosecution 
was  disposed  of,  or  that  it  was  not  still  depending.  The  Court  was 
clearly  of  opinion,  that  the  objection  was  fatal,  and  said  it  was  settled 


Ch.  2)  TORTS  THROUGH   MALICE  1185 

that   the   plaintiff   in    such    an   action,    must   shew    the  original    suit, 
wherever  instituted,  to  be  at  an  end;  otherwise  he  might  recover  in 
the  action,  and  yet  be  afterwards  convicted  on  the  original  prosecution. 
Judgment  for  the  defendant. 


BYNE  v.  MOORE. 
(Court  of  Common  Pleas,  1813.     5  Taunt.  1S7,  128  Reprint,  658.) 

This  was  an  action  for  a  malicious  prosecution.  The  declaration 
alleged  that  the  defendant,  maliciously  intending  to  injure  the  plaintiff, 
had  falsely  and  maliciously  and  without  reasonable  or  probable  cause, 
charged  the  plaintiff  with  violently  assaulting  him,  and  had  thereby 
procured  a  warrant  for  apprehending  the  plaintiff.  The  plaintiff  gave 
no  other  evidence  than  that  the  indictment  was  returned  "not  found." 
On  the  trial,  MacDonald,  C.  J.,  nonsuited  the  plaintiff. 

Best,  Serjt.,  obtained  a  rule  nisi  to  set  aside  this  non  suit,  and  have 
a  new  trial. ^ 

Mansfield,  C.  J.  I  feel  a  difficulty  to  understand  how  the  plain- 
tiff could  recover  in  the  present  action,  wherein  he  could  recover  no 
damages,  because  he  clearly  has  not  proved  that  he  has  sustained  any : 
I  can  understand  the  ground  upon  which  an  action  shall  be  maintained 
for  an  indictment  which  contains  scandal,  but  this  contains  none, 
nor  does  any  danger  of  imprisonment  result  from  it:  this  bill  was  a 
piece  of  mere  waste  paper.  All  the  cases  in  Buller's  Nisi  Prius,  13, 
are  directly  against  this  action,  for  the  author  speaks  of  putting  the 
plaintiff  to  expense,  and  affecting  his  good  fame,  neither  of  which 
could  be  done  here.  If  this  action  could  be  maintained,  every  bill 
which  the  grand  jury  threw  out  would  be  the  ground  of  an  action. 
The  judge  too  might  certify  in  this  cause  against  the  costs,  if  the  dam- 
ages had  been  under  40s. 

Heath,  J.,  concurred. 

Chambrk,  J.  It  would  be  a  very  mischievous  precedent  if  the  ac- 
tion could  be  supported  on  this  evidence. 

Rule  discharged. 


FARMER  V.  SIR  ROBERT  DARLING. 

(Court  of  King's  Bencli,  1766.    4  Burr.  1971,  98  Reprint,  27.) 

On  Thursday  last.  Sir  Fletcher  Norton,  on  behalf  of  the  defendant, 
moved  for  a  new  trial,  and  to  set  aside  the  verdict,  which  had  been 
given  for  the  plaintiff"  in  an  action  for  a  malicious  prosecution,  with 
£250  damages,  at  the  Middlesex  sittings  at  Nisi  Prius  before  Lord 

1  The  statement  of  the  case  is  abridged. 
Hepb  .  Torts — 75 


1186  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

Mansfield,  on  the  15th  instant.  His  objections  were — 1st.  That  the 
damages  were  excessive;  2dly.  That  the  verdict  was  against  evidence. 
He  had  a  rule  to  shew  cause. 

Lord  Mansfield  now  reported  the  evidence. 

It  was  an  action  for  a  malicious  prosecution  of  the  plaintiff,  by  two 
indictments  for  nuisances ;  one,  by  a  drain ;  the  other,  by  his  poulter- 
er's yard ;  both  of  them  near  the  prosecutor's  house ;  upon  which  in- 
dictments the  then  defendant  and  now  plaintiff  had  been  acquitted. 

It  appeared,  upon  the  report  "that  there  was  malice  implied ;"  and 
it  appeared,  that  the  plaintiff  had  actually  and  bona  fide  paid  £140 
in  defending  himself  against  the  two  indictments. 

His  Lordship  said,  he  told  the  jury,  that  the  foundation  of  this  ac- 
tion was  malice ;  which  must  be  either  express,  or  implied ;  and  he  ac- 
quainted them,  that  they  were  not  obliged  to  give  all  the  £140  expend- 
ed ;  or,  they  might  (on  the  other  hand)  give  more,  if  they  should  see  it 
proper  to  do  so.  He  said,  he  left  it  to  the  jury,  to  consider  of  the  im- 
plied malice,  from  the  groundlessness  of  the  prosecution. 

Sir  Fletcher  Norton,  Mr.  Morton  and  Mr.  Recorder  Eyre  now  ar- 
gued on  behalf  of  the  defendant,  for  a  new  trial.  They  said,  there  was 
another  requisite  to  the  maintenance  of  this  sort  of  action,  besides  mal- 
ice ;  it  was  also  necessary  to  prove,  "that  the  indictment  was  causeless 
and  without  any  foundation."  Both  these  are  essential,  and  necessary 
to  be  proved. 

As  in  a  writ  of  conspiracy,  falsity  is  necessary  to  be  charged ;  so,  in 
this  case,  malice  alone  is  not  sufficient :  it  must  also  be  a  prosecution 
without  any  foundation.  These  are  two  independent  essentials  to  the 
maintenance  of  this  action ;  there  must  be  both  malice  and  falsity.  We 
admit  there  was  some  evidence  of  malice;  but  it  was  proved,  by  suffi- 
cient evidence,  to  be  a  nuisance.  Therefore  there  was  a  probable  cause 
for  the  indictments ;  and  if  there  was,  then  the  prosecutor  is  not  liable 
to  this  action  for  a  malicious  prosecution;  whatever  motive  might  in- 
duce the  prosecutor  to  indict  the  person  guilty  of  the  offence.  It 
would  be  of  dangerous  consequence,  to  make  a  prosecutor  liable  to  this 
action,  where  there  is  a  probable  cause  for  indicting  an  offender. 

Secondly. — The  damages  are  excessive. 

Lord  Mansfield.  This  action  is  for  a  malicious  prosecution,  with- 
out a  probable  cause. 

I  can  not  say  that  the  jury  have  done  wrong  here,  in  finding  that  the 
indictments  were  preferred  without  probable  cause. 

This  drain  was  an  ancient  drain.  The  fault  arose  above  and  below 
Farmer's  part  of  it.  His  brick-drain  was  cleaned,  and  clear.  The  gist 
of  the  indictment  was  "that  he  did  not  lower  his  drain."  He  had  no 
need  to  do  it.    The  verdict  was  not,  in  my  opinion,  against  evidence. 

The  next  prosecution  was  for  the  feeding  the  fowls.  And  I  can  not 
say  that  the  jury  had  no  reason  to  find  this  likewise  to  be  an  indictment 
without  probable  cause.  Every  stench  is  not  a  nuisance :  nor  is  every 
noisome  trade  a  nuisance  in  every  place ;  though  many  of  them  are  nui- 


Ch.  2)  TORTS   THROUGH   MALICE  1187 

sances  by  reason  of  their  locality.  This  was  an  ancient  trade,  long  car- 
ried on  in  this  place ;  long  before  Sir  Robert  Darling  came  there.  He 
comes  and  builds  a  house  near  it,  in  a  place  that  was  formerly  a  poul- 
try-yard. Nobody  before  complained  of  it,  or  presented  it.  So  that  the 
conclusion  does  not  follow,  "that  it  was  a  nuisance."  And  the  jury 
had  a  view\  Therefore  I  can  not  say,  that  the  jury  had  no  reason  to 
take  the  prosecution  to  be  groundless. 

As  to  the  excessiveness  of  the  damages — it  does  not  appear  by  the 
verdict,  how  far  the  jury  gave  it  upon  the  bill;  and  how  far,  upon  the 
whole  circimistances  of  the  case  taken  together.  The  end  and  tendency 
of  these  two  indictments  was  to  drive  this  plaintiff  from  his  business  of 
a  poulterer,  after  having  long  carried  it  on.  This  was  sworn  to  have 
been  the  prosecutor's  view  in  preferring  them.  And  they  might  affect 
the  man's  credit.  There  are  many  circumstances  which  make  it  rea- 
sonable, not  to  indulge  the  present  defendant  in  sending  it  to  a  new 
litigation,  only  to  abate  the  quantum  of  the  damages,  when  he  has  been 
so  much  in  the  wrong. 

Therefore  he  was  against  granting  a  new  trial. 

The  other  three  Judges  entirely  agreed  with  his  Lordship  in  both 
points;  and  expressed  their  sentiments  at  large  to  the  same  effect. 
They  likewise  agreed  with  Sir  Fletcher  Norton,  as  to  the  grounds  of 
this  sort  of  action ;  viz.  "That  malice,  (either  express  or  implied,)  and 
the  want  of  probable  cause  must  both  concur."  But  they  were  clearly 
of  opinion,  that  it  appeared  upon  the  whole  state  of  the  evidence,  that 
in  this  case  they  did  both  concur.  Therefore  they  thought  the  rule 
ought  to  be  discharged;  both  objections  being  sufficiently  answered. 

Per  Cur.  unanimously.     Rule  discharged. 


CHAPMAN  et  al.  v.  NASH. 

(Court  of  Appeals  of  Maryland,  1913.     121  Md.  608,  89  Atl.  117.) 

Action  by  Charles  Carrol  Nash,  an  infant,  by  his  father  and  next 
friend,  for  malicious  prosecution.  There  was  a  judgment  for  plain- 
tiff, and  the  defendants  appeal.  The  facts  developed  in  the  evidence 
were  as  follows : 

The  plaintifE  was  the  son  of  Charles  M.  Xash,  who  lived  in  Baltimore  coun- 
ty, about  25  miles  from  the  city,  and  who  was  engaged  in  the  business  of 
bujing  hay  in  the  county  and  hauling  it  to  Baltimore  city  and  selling  it  to 
various  purchasers.  Among  his  purchasers  was  the  Chapman  Coal  Company, 
to  which  he  had  sold  hay  for  about  two  years  prior  to  August  10,  1911,  on 
which  date  the  occurrences  took  place  which  led  to  the  prosecution  of  the 
plaintiff  and  his  father  upon  the  criminal  charge  hereinafter  mentioned. 
The  plaintiff  was  then  about  nineteen  years  old  and  had  been  driving  the 
hay  wagon  for  about  two  years,  and  during  those  years  no  one  else,  to  his 
knowledge,  had  hauled  hay  to  the  coal  company  for  his  father.  The  father 
owned  two  wagons  which  he  used  in  hauling  hay  to  the  city.  One  of  these 
wagons  was  heavier  than  the  other.  The  hay  carriages  of  the  two  wagons 
were  different  in  color— that  of  the  heavy  wagon  was  blue  and  that  of  the 
lighter  one  was  red.    Both  wagons  had  been  weighed  at  the  Fremont  Street 


1188  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

hay  scales,  and  their  weight  had  been  registered  there.  When  the  plain- 
tiff brought  in  a  load  of  hay  to  be  delivered  to  the  defendants,  the  method 
of  ascertaining  the  amount  of  hay  to  be  paid  for  and  the  manner  of  collecting 
was  this:  The  wagon  and  hay  were  weighed  together,  and  the  itlaintiff 
would  tell  the  weighmaster  which  wagon  he  was  using.  He  would  say  the 
lighter  or  the  heavier  one  as  the  case  might  be.  The  weighmaster  would 
accept  his  statement  and  deduct  the  registered  weight  of  the  wagon  which 
the  plaintiff  informed  him  he  was  using  from  the  gross  weiglit.  and  the  dif- 
ference would  be  the  net  weight  to  be  paid  for  by  the  purchaser.  The  weigh- 
master would  give  the  plaintiff  a  ticket  which  showed  the  net  weight  made  up 
in  this  way.  The  ticket  and  hay  were  then  taken  to  the  South  Baltimore 
yard  of  the  coal  company,  where  the  hay  was  unloaded  and  the  ticket  O.  K.'d 
by  the  superintendent  of  the  coal  company,  and  taken  by  the  plaintiff"  for 
payment  to  the  office  of  the  company  at  Sharp  and  Lombard  streets.  The 
money  was  collected,  not  by  the  plaintiff,  but  by  Charles  M.  2sash,  his  father, 
whose  custom  was  to  go  to  the  office  after  the  ticket  had  been  left  there  and 
collect  the  money.  The  lighter  wagon,  as  shown  by  the  weight  at  tbe  hay 
scales,  weighed  3,000  pounds,  and  the  heavy  one  r.,NOO  pounds.  Within  one 
year  prior  to  August  10,  1911,  the  plaintiff  had  delivered  13  loads  of  hay 
to  the  coal  company,  and  had  presented  tickets  therefor  which  showed  the 
wagon  to  weigh  3,000  pounds.  These  tickets  were  accepted  as  correct  by  the 
coal  company,  and  the  amounts  shown  to  be  due  were  paid  without  question 
to  Charles  M.  Nash. 

On  August  5.  1911,  the  coal  company  wrote  to  Charles  M.  Nash,  saying  that 
he  might  send  in  a  load  of  prime  timothy  hay  the  following  week,  and  advised 
him  that  the  hay  must  be  weighed  and  the  certificate  presented  from  the  state 
scales  in  the  city.  The  prior  13  deliveries  had  been  certified  to  by  others 
than  the  state  inspectors.  The  plaintiff  left  home  with  a  load  of  hay  on 
the  9th  of  August,  and  drove  as  far  as  Pikesville,  wliere  he  silent  the  night,  and 
on  the  morning  of  the  10th  he  proceeded  to  the  Northwestern  hay  scales  where 
the  hay  was  weighed.  He  told  the  weighmaster  that  he  was  driving  the 
lighter  wagon,  and  was  given  a  ticket  which  showed  that  3,000  pounds  were 
deducted  from  the  gross  weight.  He  then  took  the  hay  to  the  yard  of  the  coal 
company,  delivered  the  ticket,  and  unloaded  the  wagon.  Mr.  J,  W.  Chapman, 
one  of  the  defendants,  was  present  while  the  plaintiff  was  in  the  act  of  un- 
loading. After  Mr.  Chapman  had  observed  the  wagon,  he  concluded  that  its 
weight  was  in  excess  of  that  stated  in  the  certificate,  and  he  asked  the 
plaintiff  to  reweigh  the  wagon,  which  the  plaintiff  promised  to  do.  The 
plaintiff  at  that  time  knew  that  he  had  made  a  misstatement  to  the  weigh- 
master as  to  the  wagon,  and  that  the  weight  shown  upon  the  ticket  was  not 
correct,  and  that  there  was  a  shortage  of  050  pounds.  He  testified  as  fol- 
lows as  to  his  conversation  with  Mr.  Chapman  had  at  that  time:  "Q.  You 
knew  right  then  and  thei'e  tliat  it  was  the  wrong  weights,  didn't  you? 
A.  Yes.  Q.  Did  you  tell  him  so?  A.  No,  sir.  Q.  Then  you  knew  when  you 
left  him  that  you  had  the  wagon  with  the  wrong  weight?  A.  Yes.  Q.  And 
you  never  told  him?  A.  No,  sir.  Q.  Although  he  asked  you  what  weight  it 
was?  A.  Tlie  ticket  showed  that.  Q.  The  ticket  showed  that,  and  he  had 
brought  it  to  your  particular  notice  by  asking  you  to  go  to  the  scales  and 
have  the  wagon  weighed?  A.  Yes.  Q.  You  went  right  on  up  home?  A. 
Yes ;  to  tell  my  father  and  let  him  come  down  and  attend  to  it."  William  J. 
Chapman  testified  that  he  asked  the  plaintiff  if  the  weight  sho\Ani  on  the 
ticket  was  con-ect,  and  that  he  said  it  was,  and  this  testimony  is  not  denied. 
Charles  M.  Nash  testified  that  he  knew  the  wagon  used  to  haul  this  particular 
hay  weighed  3,950  pounds,  and  that  he  told  his  son  on  August  9th  to  use  the 
heavy  wagon.  Mr.  Isaac,  one  of  the  members  of  coal  company,  went  to  the 
Northwestern  hay  scales  to  see  the  wagon  weighed,  but  the  ])laintiff  did  not  go 
to  the  scales,  but  continued  on  his  way  liome  without  reweighing  the  wagoji. 
He  was  overtaken  near  Arlington  by  two  members  of  the  coal  company,  and 
the  wagon  was  weighed  at  that  place,  and  it  was  found  to  weigh  3,800  pounds. 
It  was  then  taken  to  the  Northwestern  bay  scales,  where  it  was  found  to 
weigh  3,950  pounds,  and  where  the  ticket  was  corrected  by  the  state  in- 
spector. 

Although  the  plaintiff,  according  to  his  own  testimony,  well  knew  at  the 
time  he  delivered  the  hay  that  the  weight  of  the  wagon  had  been  misstated, 


Ch.  2)  TORTS  THROUGH    MALICE  1189 

he  made  no  mention  of  that  fact  then  or  when  he  was  overtaken  on  the  road. 
On  the  morning  of  August  11th  Cliarles  M.  Nash  called  at  the  office  of  the 
coal  companj-  and  inquired  what  the  trouble  about  the  load  of  hay  was,  al- 
though it  must  be  inferred  that  he  well  knew  and  was  informed  that  it  was 
short  in  weight,  and  asked  for  settlement  on  the  corrected  bill.  William  J. 
Chapman  declined  to  settle,  but  told  him  to  call  in  a  few  days,  which  he  did. 
He  testified  tliat  Mr.  Chapman  told  him  at  that  interview  that  he  would  not 
settle,  but  said.  "If  you  will  drop  this  load  of  hay,  we  will  drop  our  side.'' 
He  asked  Mr.  Is^ac.  the  treasurer  of  the  coal  company,  to  pay  for  the  amount 
of  hay  shown  by  the  corrected  bill,  and  said  his  son  did  not  know  the  weight 
of  the  wagon,  and  that  he  should  have  told  him.  Charles  M.  Nash  placed  his 
account  in  the  hands  of  an  attorney  for  collection,  and  after  some  communi- 
cation with  William  J.  Chapman  a  suit  was  brought  before  a  justice  of  the 
peace.  Prior  to  the  institution  of  the  suit  the  coal  company  made  a  demand 
upon  Charles  M.  Nash  for  alleged  shortages  amounting  to  $239.16  in  hay 
delivered  from  August,  1909,  to  August  10,  1911,  inclusive.  On  the  day  of  the 
trial  before  the  justice,  December  13,  1911,  G.  Walter  Chapman  appeared 
before  James  W.  Lewis,  a  police  justice  of  Baltimore  city,  and  swore  out  a 
warrant  against  the  plaintiff  and  his  father,  charging  them  with  a  conspiracy 
to  defraud  the  Chapman  Coal  Company  of  Baltimore  a  corporation,  for  $11.87, 
current  money,  by  means  of  false  certificate  of  weight  of  the  load  of  hay  de- 
livered to  it  on  August  10,  1911.  They  were  arrested  and  indicted  by  the 
grand  jury  in  the  criminal  court  of  Baltimore  upon  this  charge,  and  after 
a  trial  in  that  court  were  acquitted.  The  explanation  offered  by  the  plain- 
tiff' at  the  trial  of  his  statement  to  the  weighmaster  that  he  was  using  the 
lighter  wagon  was  that  he  made  a  mistake. 

Burke,  J.  (after  stating  the  facts  and  disposing  of  certain  prelim- 
inary questions).  There  was  testimony  offered  tending  to  show 
that  the  defendants  were  actuated  by  mahce  in  the  institution  of  the 
prosecution,  but  such  evidence  cannot  be  considered  in  determining 
the  question  of  probable  cause.  While  malice  may  be  inferred  from 
the  want  of  probable  cause,  a  want  of  probable  cause  cannot  be 
adduced  from  the  most  express  malice.  ''In  the  trial  of  actions  of 
this  nature,"  said  Judge  Washington,  in  Alimns  v.  Dupont  (3  \\'ash. 
c.  c.  31,  Fed.  Cas.  No.  9,926),  supra,  "it  is  of  infinite  consequence 
to  mark  with  precision  the  line  to  which  the  law  will  justify  the  de- 
fendant in  going  and  will  punish  him  if  he  goes  beyond  it.  On  the 
one  hand,  public  justice  and  public  security  require  that  offenders 
against  the  law  should  be  brought  to  trial  and  to  punishment  if  their 
guilt  be  established.  Courts  and  juries,  and  the  law  officers  whose 
duty  it  is  to  conduct  the  prosecution  of  public  offenders,  must,  in 
most  instances,  if  not  in  all,  proceed  upon  the  information  of  in- 
dividuals, and  if  these  actions  are  too  much  encouraged,  if  the  in- 
former acts  upon  his  own  responsibility  and  is  bound  to  make  good 
his  charge  at  all  events,  under  the  penalty  of  responding  in  damages 
to  the  accused,  few  will  be  found  able  and  willing  at  so  great  a  risk 
to  endeavor  to  promote  the  public  good.  The  informer  can  seldom 
have  a  full  view  of  the  whole  ground,  and  must  expect  to  be  frequently 
disappointed  by  evidence  which  the  accused  only  can  furnish.  Even 
if  he  be  possessed  of  the  whole  evidence,  he  may  err  in  judginent,  and 
in  many  instances  the  jury  may  acquit  where  to  his  mind  the  proofs 
of  guilt  were  complete." 


1190  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

The  question  we  are  to  determine  is  this :  Were  the  facts  we  have 
stated  such  as  justified  the  defendants,  as  reasonable,  cautious  men, 
in  believing  the  plaintiff  and  his  father  had  entered  into  a  conspiracy 
to  defraud  them?  That  such  a  fraud  by  the  methods  adopted  in 
weighing  the  wagon  might  have  been  perpetrated  with  the  greatest 
facility  is  evident.  The  wagon  which  weighed  3,950  pounds  was 
represented  as  weighing  3,000  pounds,  the  tickets  fcft-  the  13  prior 
loads  delivered  gave  the  weight  of  the  wagon  as  3,000  pounds.  The 
son  delivered  the  tickets  and  the  father  collected  the  money.  The 
plaintiff  testified  that  he  gave  the  weight  as  3,000  pounds  by  mistake. 
It  is  possible  that  this  statement  is  true,  but  it  is  almost  incon- 
ceivable that  he  did  not  know  it  was  the  heavier  wagon,  and  his  mis- 
statements to  Mr.  Chapman,  and  his  suppression  of  the  truth  at  the 
time  when  it  was  his  duty  to  have  spoken  truthfully,  were  most  un- 
fortunate for  him.  The  facts  and  circumstances  which  are  undis- 
puted, and  which  were  within  the  knowledge  of  the  defendants  at  the 
time  the  warrant  was  sworn  out,  were  well  calculated  to  create  in 
their  minds  the  strongest  suspicion,  and  in  our  opinion  would  have 
warranted  a  prudent  and  cautious  man  in  believing  that  a  skillfully 
devised  plan  had  been  adopted  by  the  defendants  to  defraud  and 
cheat.  We  do  not  mean  to  say  that  any  such  plan  or  scheme  did  in 
fact  exist.  The  plaintiff  has  been  acquitted  of  the  charge  preferred 
against  him.  It  is  to  be  hoped  that  he  was  entirely  free  from  any 
intent  to  do  wrong,  but  the  uncontradicted  facts  and  circumstances 
which  we  have  carefully  weighed  and  considered  have  led  us  to  the 
conclusion  that  under  the  legal  principles  governing  this  class  of  ac- 
tions the  plaintiff  failed  to  show,  by  any  evidence  legally  sufficient 
for  that  purpose  that  the  prosecution  was  instituted  without  probable 
cause.  It  follows  that  the  defendants'  prayer  which  asked  for  the 
withdrawal  of  the  case  from  the  jury  should  have  been  granted. 

This  conclusion  dispenses  with  the  consideration  of  the  other  ques- 
tions raised  by  the  record.  Judgment  reversed,  without  a  new  trial, 
with  costs  to  the  appellants. 


GIBSON  v.  CHATERS. 
(Court  of  Comraou  Pleas,  1800.    2  Bos.  &  P.  129,  126  Reprint,  119G.) 

This  was  an  action  on  the  case  for  maliciously  arresting  the  plain- 
tiff' and  holding  him  to  bail. 

At  the  trial  before  Lord  Eldon,  C.  J.,  it  appeared  that  the  plaintiff 
and  the  defendant  were  both  resident  at  North  Shields  in  Northum- 
berland, the  former  being  the  master,  and  the  latter  the  owner  of  a 
ship;  that  some  matters  in  difl'ercnce  between  them  having  been 
submitted  to  arbitration,  the  plaintiff"  was  awarded  to  pay  the  sum 
of  £19.  14s.  on  the  31st  of  November,  1797,  but  in  consequence  of 
his  being  absent  from  home  at  that  time,  and  not  returning  till  March, 


Ch.  2)  TORTS  THROUGH   MALICE  1191 

1799,  did  not  pay  the  sum  awarded;  that  in  December,  1798,  the 
defendant  being  in  London  made  an  affidavit  of  debt  to  hold  the 
plaintiff  to  bail,  and  that  a  writ  issued  thereupon ;  that  on  the  plain- 
tiff's returning  to  North  Shields  in  March,  1799,  he  hearing  of  the 
defendant's  intention  to  arrest  him,  paid  the  debt  to  the  defendant's 
agent  at  North  Shields,  and  took  a  receipt  for  the  amount;  that  on 
the  4th  of  May  following,  the  plaintiff  having  arrived  in  the  river 
Thames  from  North  Shields,  was  arrested  and  holden  to  bail  by  the 
defendant's  attorney,  on  an  alias  writ  taken  out  at  that  time,  but 
grounded  on  the  affidavit  made  by  the  defendant  in  December,  1798. 
His  Lordship  being  of  opinion  that  it  was  necessary  to  prove  express 
malice,  and  that  no  evidence  of  malice  had  been  given,  nonsuited  the 
plaintiff. 

Best,  Serjt.,  now  moved  for  a  rule  nisi  to  set  aside  this  nonsuit,  and 
have  a  new  trial ;  contending  that  the  case  was  distinguishable  from 
that  of  Scheibel  v.  Fairbain  [1799]  1  Bos.  &  P.  388,  the  writ  on 
which  the  plaintiff  in  that  case  was  arrested  having  been  sued  out 
previous  to  the  time  when  the  debt  was  paid,  whereas  the  writ  in 
the  present  instance  was  actually  taken  out  after  the  debt  had  been 
discharged  and  the  receipt  given ;  that  the  ground  of  complaint  in 
Scheibel  v.  Fairbain  was  a  mere  nonfeasance  in  the  defendant  who 
had  omitted  to  countermand  a  writ  previously  sued  out,  and  was 
so  treated  by  the  Court,  but  that  this  was  a  malfeasance  and  came 
expressly  within  the  rule  laid  down  in  Waterer  v.  Freeman,  Hob. 
267,  that  a  man  is  liable  to  an  action  if  he  sue  against  his  release, 
or  after  the  debt  duly  paid.  He  observed,  that  the  rule  with  re- 
spect to  proving  malice  in  actions  for  malicious  prosecutions,  did 
not  hold  in  the  case  of  actions  for  holding  to  bail  in  a  mere  civil 
suit,  since  the  rule  in  the  former  instance  proceeded  on  the  danger 
of  discouraging  prosecutions  for  public  offences. 

But  the  Court  were  of  opinion  that  the  facts  of  this  case  precluded 
any  inference  of  malice,  and  that  the  plaintiff  therefore  to  entitle 
himself  to  recover,  ought  to  have  given  evidence  of  actual  malice 

Best  took  nothing  by  his  motion. 


VANDERBILT  v.  MATHIS. 
(Superior  Court  of  City  of  New  York,  1856.     5  Duer,  304.) 

BoswoRTH,  J.  To  maintain  an  action  for  malicious  prosecution, 
three  facts,  if  controverted,  must  be  established:  (1)  That  the  pros- 
ecution is  at  an  end,  and  was  determined  in  favor  of  the  plaintiff. 
(2)  The  want  of  probable  cause.     (3)  Malice, 

In  such  an  action,  it  is  necessary  to  give  some  evidence  of  the  want 
of  probable  cause.     It  is  insufficient  to  prove  a  mere  acquittal ;    that, 


1192  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

alone,  is  not  prima  facie  evidence  of  the  want  of  probable  cause. 
Gorton  v.  De  Angelis,  6  Wend.  418. 

It  is  equally  essential,  that  the  former  prosecution  should  appear  to 
have  been  maliciously  instituted.  Malice  may  be  inferred  from  the 
want  of  probable  cause,  but  such  an  inference  is  one  which  a  jury  is 
not  required  to  make,  at  all  events,  merely  because  they  may  find  the 
absence  of  probable  cause. 

Unless  the  evidence,  in  relation  to  the  circumstances  under  which 
the  prosecution  was  ended,  and  that  given  to  establish  the  want  of 
probable  cause,  justify  the  inference  of  malice,  other  evidence,  in  sup- 
port of  it,  must  be  given. 

Evidence  as  to  the  conduct  of  the  defendant,  in  the  course  of  the 
transaction,  his  declarations  on  the  subject,  and  any  forwardness  and 
activity  in  exposing  the  plaintiff  by  a  publication,  are  properly  admitted 
to  prove  malice.  Such  evidence  must  be  given  as  will  justify  a  jury  in 
finding  the  existence  of  malice. 

The  rule  is  uniformly  stated,  that,  to  maintain  an  action,  for  a 
former  prosecution,  it  must  be  shown  to  have  been  without  proba- 
ble cause,  and  malicious.  Vanduzor  v.  Linderman,  10  Johns.  106; 
Murray  v.  Long,  1  Wend.  140;   Willans  v.  Taylor,  6  Bing.  183. 

The  judge,  at  the  trial,  charged,  that  the  fact,  that  the  plaintifif 
was  discharged  before  the  magistrate  showed,  prima  facie,  that  there 
was  no  probable  cause  for  the  arrest,  and  shifted  the  burden  of  proof 
from  the  plaintiff  to  the  defendant,  who  was  bound  to  show,  affirma- 
tively, that  there  was  probable  cause. 

He  was  requested  to  charge,  "that  the  discharge  of  Vanderbilt  was 
not  prima  facie  evidence  of  the  want  of  probable  cause."  This  he 
refused  to  do.  To  this  refusal  to  charge,  and  to  the  charge  as  made, 
the  defendant  excepted. 

He  also  charged,  "that,  if  probable  cause  is  made  out,  the  question 
of  malice  becomes  immaterial,  except  as  bearing  on  the  question  of 
damages." 

"This  question  of  malice,  in  fact,  supposing  that  probable  cause  did 
not  exist,  is  material  only  as  affecting  the  question  of  damages." 

He  was  requested  to  charge,  "that  the  jury  could  not  find  a  verdict 
for  the  plaintiff,  unless  he  has  proved  that  there  was  no  probable  cause 
for  the  complaint,  and  not  even  then,  unless  they  believe,  from  the 
evidence,  that,  in  making  the  complaint,  the  defendant  acted  from 
malicious  motives."  This  the  judge  declined  to  do,  and  to  his  refusal 
to  so  charge  the  defendant  excepted. 

Although  the  evidence  which  establishes  the  want  of  probable  cause 
may  be,  and  generally  is,  such  as  to  justify  the  inference  of  malice,  yet 
we  understand  the  rule  to  be,  that  when  it  is  a  just  and  proper  in- 
ference from  all  the  facts  and  circumstances  of  the  case,  upon  all 
the  evidence  given  in  the  cause,  "that  the  defendant  was  not  actuated 
by  any  improper  motives,  but  only  from  an  honest  desire  to  bring  a 
supposed  offender  to  justice,  the  action  will  not  lie,  because  such  facts 


Ch.  2)  TOUTS  THROUGH   MALICE  1193 

and  circumstances  disprove  that  which  is  of  the  essence  of  the  action, 
viz.,  the  mahce  of  the  defendant  in  pressing  the  charge." 

In  Bulkley  v.  Smith,  2  Duer,  271,  the  court  stated  the  rule  to  be, 
"that,  in  order  to  maintain  a  suit  for  a  malicious  prosecution,  the 
plaintiff  is  bound  to  prove  the  entire  want  of  a  probable  cause  for 
the  accusation,  and  the  actual  malice  of  the  defendant  in  making  it. 
Malice  is  a  question  of  fact,  which,  when  the  case  turns  upon  it, 
must  be  decided  by  the  jury." 

Story,  J.,  in  Wiggin  v.  Cofifin,  Fed.  Cas.  No.  17,624,  instructed  the 
jury  that  two  things  must  concur,  to  entitle  a  plaintiff  to  recover 
in  such  an  action:  ''The  first  is,  the  want  of  probable  cause  for  the 
prosecution ;  the  second  is,  malice  in  the  defendant  in  carrying  on 
the  prosecution.     If  either  ground  fail,  there  is  an  end  of  the  suit." 

In  Vanduzor  v.  Linderman,  10  Johns.  106,  the  court  said :  "No 
action  lies  merely  for  bringing  a  suit  against  a  person  without  suffi- 
cient ground.  Savil  v.  Roberts,  1  Salk.  13;  Purton  v.  Honnor,  1  Bos. 
&  Pul.  205.  To  sustain  a  suit  for  a  former  prosecution,  it  must 
appear  to  have  been  without  cause,  and  malicious." 

If  the  charge  must  be  understood  to  mean,  that  if  the  want  of  prob- 
able cause  was  established,  the  plaintiff  was  entitled  to  recover,  al- 
though the  jury  should  believe,  from  the  whole  evidence,  that,  in 
making  the  complaint,  the  defendant  did  not  act  from  malicious  mo- 
tives, then  we  deem  it  to  be  erroneous.  This  construction  is  the  only 
one,  of  which  the  language  of  the  instruction  appears  to  be  susceptible ; 
for  the  judge,  in  charging  the  jury,  stated  that  the  "question  of  malice 
in  fact,  supposing  that  probable  cause  did  not  exist,  is  material  only 
as  affecting  the  question  of   damages." 

Malice  in  fact,  is  that  kind  of  malice  which  is  to  be  proved.  When 
malice  may  be,  and  is  inferred,  from  the  w'ant  of  probable  cause,  it  is 
actual  malice  which  is  thus  proved. 

There  is  no  theoretical  malice  which  can  satisfy  this  rule,  and  which 
can  coexist  with  the  established  fact,  that  the  prosecution  was  insti- 
tuted in  an  honest  belief  of  the  plaintiff's  guilt,  and  with  no  other 
motives  than  to  bring  a  supposed  offender  to  justice. 

The  question  of  malice  may  be  a  turning-point  of  the  controversy,  in 
an  action  of  this  nature. 

The  want  of  probable  cause  may  be  shown,  and  yet,  upon  the  whole 
evidence,  in  any  given  case,  it  may  be  a  fair  question  for  the  deter- 
mination of  a  jury,  whether  the  defendant  w^as  actuated  by  malice. 
If  the  whole  evidence  is  such,  that  a  jur}^  cannot  properly  doubt  the 
honesty  and  purity  of  the  motive  which  induced  the  former  prose- 
cution, and  if  they  fully  believe  that  it  was  instituted  from  good 
motives,  and  in  the  sincere  conviction  that  the  plaintiff  was  guilty  of 
the  offence  charged,  and  without  malice,  the  defendant  would  be  en- 
titled to  a  verdict. 

The  charge  made,  and  which  was  excepted  to,  must  be  deemed  to 
have  been  made,  to  give  the  jury  a  rule  of  action,  in  disposing  of  the 


1194  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

case  upon  the  whole  evidence.     We  think  it  was  not  only  calculated 
to  mislead,  but  was  erroneous. 

A  new  trial  must  be  granted,  with  costs  to  abide  the  event.^ 


CINCINNATI  DAILY  TRIBUNE  CO.  v.  BRUCK. 

(Supreme  Court  of  Oliio,  1900.     61  Ohio  St,  489,  56  N.  E.  198,  76  Am.  St 

Kep.  438.) 

In  an  action  against  the  Cincinnati  Daily  Tribune  for  the  publication 
of  a  libel  on  the  plaintiff,  the  defendant  answered,  by  way  of  counter- 
claim, that  just  before  the  libel  the  plaintiff,  a  stockholder  of  the  com- 
pany, maliciously,  and  without  probable  cause,  commenced  a  suit 
against  it  for  dissolution  and  the  appointment  of  a  receiver,  on  the 
false  averment  that  it  was  insolvent.  The  application  was  at  once 
heard,  denied,  and  the  suit  dismissed.  It  is  then  averred  that  the  suit 
worked  great  injury  to  the  credit  of  the  company,  prevented  a  sale  of 
the  property  then  being  negotiated,  and  otherwise  greatly  embarrassed 
it  in  business.  Issue  having  been  made  up,  the  case  was  tried  to  a 
jury,  and  at  the  close  of  the  defendant's  evidence  the  court,  on  motion 
of  the  plaintiff,  withdrew  from  the  consideration  of  the  jury  all  the 
evidence  offered  by  the  defendant  on  its  counterclaim,  but  in  its  charge 
left  it  to  be  considered  in  mitigation  of  damages.  There  was  a  judg- 
ment for  the  plaintiff.    The  defendant  brings  error. 

PtR  Curiam.  The  ruling  of  the  court  presents  the  question  wheth- 
er the  facts  pleaded  in  the  answer  constitute  a  counterclaim  to  that 
of  the  plaintiff.  If,  however,  the  facts  stated  constitute  a  cause 
of  action  in  favor  of  the  defendant  for  the  recovery  of  damages 
against  the  plaintiff  for  the  malicious  prosecution  of  the  suit  for  the 

2  "I  have  always  understood,  since  the  case  of  .Johnstone  v.  Sutton  (17SG)  1 
T.  R.  510,  which  was  decided  long  before  I  was  in  the  profession,  that  no 
point  of  law  was  more  clearly  settled  than  that  in  every  action  for  a  malicious 
prosecution  or  arrest,  the  plaintiff  must  prove  what  is  averred  in  the  declara- 
tion, viz.,  that  the  prosecution  or  arrest  wah  malicious  and  without  reasonable 
or  probable  cause:  If  there  be  reasonable  or  i»robable  cause,  no  malice,  how- 
ever distinctly  proved,  will  make  the  defendant  liable;  but  when  there  is 
no  reasonable  or  probable  cause,  it  is  for  the  jury  to  infer  malice  from  the 
facts  proved.  That  is  a  question  in  all  cases  for  their  consideration,  and 
it  havius  in  this  instance  been  withdrawn  from  them,  it  is  imiwssible  to 
say  whether  tliey  might  or  might  not  have  come  to  the  conclusion  that  the 
arrest  was  malicious.  It  was  for  them  to  decide  it,  and  not  for  the  judgiv 
I  can  conceive  a  case,  where  there  are  mutual  acco\iuts  between  parties, 
and  wliere  an  arrest  for  the  whole  sum  (claimed  by  tlie  plaintiff  would  not 
be  malicious ;  for  example,  the  plaiutitf  might  know  that  the  set-off  was  open 
to  dispute,  and  that  there  was  reasonable  ground  for  disiniting  it.  In  that 
case,  though  it  might  afterwards  ai>i)car  that  the  set-off  did  exist,  the  ar- 
rest would  not  be  malicious.  The  term  Miuilice'  in  this  form  of  action  is  not 
to  be  considered  in  the  sense  of  spite  or  hatred  against  an  individual,  liut  of 
malus  animus,  and  as  denoting  that  the  party  is  actuated  by  improiJer  and 
indirect  motives."  Per  Parke,  J.,  in  Mitchell  v.  Jenkins  (l83o)  5  B.  &  Ad. 
588,  504. 


Ch.  2)  TORTS   THROUGH   MALICE  1195 

appointment  of  a  receiver,  it  is  very  clear  that  they  would  constitute 
a  counterclaim  in  this  action.  They  are  connected  with  the  subject  of 
the  action,  and  this  is  sutficient  to  warrant  their  being  pleaded  as  a 
counterclaim.     Section  5072,  Rev.  St. ;  Swan,  Pi.  &  Pr.  259,  note. 

The  real  question  is,  do  they  constitute  a  cause  of  action  in  favor 
of  the  defendant  against  the  plaintifif?  We  think  not.  It  is  a  well- 
settled  general  rule,  that  no  recovery  can  be  had  by  a  defendant  against 
a  plaintiff  for  the  malicious  prosecution  of  a  civil  action,  where  there 
has  been  no  arrest  of  the  person  or  seizure  of  property.  The  cases  re- 
lied on  by  the  plaintiff  in  error  do  not  support  its  claim.  That  of  Coal 
Co.  V.  Upson,  40  Ohio  St.  17,  arose  from  a  suit  where  a  temporary  in- 
junction had  been  obtained  on  false  and  malicious  averments.  A  tem- 
porary injunction  imposes  a  restraint  upon  the  owner  over  his  proper- 
ty as  hurtful  to  him  as  if  it  were  in  fact  seized,  and  it  was  held  that 
for  the  malicious  prosecution  of  such  suit  an  action  would  lie.  The 
case  of  Pope  v.  Pollock,  46  Ohio  St.  367,  21  N.  E.  356,  4  L.  R.  A.  255, 
15  Am.  St.  Rep.  608,  arose  from  the  malicious  prosecution  of  suits  in 
forcible  entry  and  detainer. 

Judgments  in  such  suits  are  not  conclusive.  The  proceeding  may 
be  commenced  and  recommenced  without  limit,  unless  enjoined,  and 
hence  affords  an  opportunity  for  the  gratification  of  malice  and  op- 
pression, and  when  this  is  the  case  an  action  may  be  maintained  by  the 
injured  party  for  the  recovery  of  damages.  In  the  above  case  a  suit 
had  been  brought,  and  a  verdict  of  not  guilty  rendered.  Another  was 
brought  with  the  same  result.  A  suit  for  malicious  prosecution  was 
then  brought  and  sustained.  The  case  stands  upon  a  clear  exception 
to  the  general  rule.  No  ground  for  an  exception  appears  in  this  case. 
Had  a  receiver  been  appointed  and  possession  taken  of  the  defendant's 
property,  a  different  case  would  have  been  presented.    Affirmed.* 

*"The  broad  canon  is  true  that  in  the  present  day  and  according  to  our 
present  law  the  bringing  of  an  ordinary  action,  however  maliciously  and  how- 
ever great  the  want  of  reasonable  and  probable  cause,  will  not  support  a  sub- 
setpieut  action  for  malicious  prosecution.  *  *  *  The  counsel  for  the  plain- 
tiff have  argued  this  case  with  great  ability,  but  they  cannot  point  to  a  sin- 
gle instance  since  Westminster  Hall  began  to  be  the  seat  of  justice  in  which 
an  ordinary  action  similar  to  the  actions  of  the  present  day  has  been  conclud- 
ed to  justify  a  subsequent  action  on  the  ground  that  it  was  brought  mali- 
ciously and  without  reasonable  and  probable  cause."  Bowen,  L.  J.,  in  Quartz 
Hill  Mining  Co.  v.  Eyre  (18S3)  11  Q.  B.  D.  674,  690. 

In  most  American  states,  however,  the  trend  of  authority  is  now  the  other 
way.  In  1882,  Prof.  Lawson,  reviewing  all  the  American  cases  upon  the  point, 
reached  the  conclusion  that  the  weight  of  authority  appears  to  be  against  the 
right  of  action  for  an  unfounded  malicious  prosecution  of  an  ordinary  civil 
suit.  21  American  Law  Reg.  yU8.  In  1906  Mr.  Lewis,  editing  Cooley  on 
Torts,  found  that  the  preponderance  of  authority  had  shifted  since  the  previ- 
ous edition  of  this  work  and  was  now  in  favor  of  permitting  the  action.  In 
1907  Judge  Jaggard  was  able  to  state  without  question  "that  the  prevailing 
rule  in  America  is  that  the  action  may  lie,  although  the,  original  proceeding 
was  begun  by  a  civil  summons  only  and  the  party  seeking  the  recovery  was 
not  arrested  and  his  property  \\~as  not  seized,  and  he  suffered  no  peculiar  in- 
jury, but  only  when  the  want  of  pn)lial)ie  cause  is  very  palpable."  See  20 
Cyc.  IG,  and  cases  there  cited  in  notes  91-93. 


1196  TORTS  THROUGH  ACTS   OF  CONDITIONAL   LIABILITY         (Part  3 


(BJ  Excusable  Prosecution 
WALTER  V.  SAMPLE. 

(Supreme  Court  of  Pennsylvania,  1855.    25  Pa.  275.) 

Error  to  the  District  Court  of  Allegheny  county. 

This  was  an  action  on  the  case  for  malicious  prosecution.  Upon 
the  trial  of  the  cause,  defendant's  counsel,  called  Jacob  Whitesell,  Esq., 
a  member  of  the  bar,  who  testified  as  follows : 

"Mr.  Sample  stated  to  me  the  facts  of  the  case,  and  I  advised  him  to  go 
before  the  Mayor  and  make  information,  and  have  the  parties  arrested  and 
examined.  He  acted  under  my  advice,  so  far  as  arresting  the  boys,  and 
having  an  investigation  of  the  matter,  and  the  trial  in  Court." 

The  Court  instructed  the  jury,  inter  alia,  as  folhnvs: 

"The  opinion  of  private  counsel  cannot  amount  to  proof  of  prob- 
able cause,  unless  the  facts  clearly  warrant  it,  and  were  correctly 
stated." 

Assignment  of  error :  The  Court  erred  in  instructing  the  jury 
that  "the  opinion  of  private  counsel  cannot  amount  to  proof  of  prob- 
able cause,  unless  the  facts  clearly  warrant  it,  and  were  correctly 
stated." 

Woodward,  J.  This  was  an  action  on  the  case  for  malicious  pros- 
ecution, and  the  only  question  presented  by  the  record  is,  whether  the 
Court  were  right  in  instructing  the  jury  that  "the  opinion  of  private 
counsel  cannot  amount  to  proof  of  probable  cause,  unless  the  facts 
clearly  warrant  it,  and  were  correctly  stated."  Ever  since  the  case  of 
Farmer  v.  Darling,  4  Burr.  1971,  it  has  been  held  that  malice,  either 
express  or  implied,  and  the  want  of  probable  cause,  must  both  concur 
to  support  actions  of  this  nature.  The  presumption  of  law  is  that 
every  public  prosecution  is  founded  in  probable  cause,  and  the  burden 
is,  therefore,  in  the  first  instance,  on  the  plaintiff;  but  when  he  has 
submitted  evidence  of  want  of  probable  cause,  or  of  circumstances 
from  which  a  violent  presumption  would  arise  that  it  was  wanting, 
the  burden  of  proof  is  shifted  on  to  the  defendant,  and  then  it  is 
competent  for  him  to  show  that  he  acted  under  professional  advice. 
To  make  this  defence  available,  he  must  show  that  he  submitted  all 
the  facts  which  he  knew  were  capable  of  proof  fairly  to  his  counsel, 
and  that  he  acted  bona  fide  on  the  advice  given.  This  proved,  he 
negatives,  if  not  the  malice,  the  want  of  probable  cause.     *     *     * 

The  opinion  of  Judge  Rogers,  at  Nisi  Prius,  in  the  case  of  Le  Mais- 
tre  V.  Hunter,  Brightly,  N.  P.  498,  which  seems  to  have  been  the 
authority  followed  by  the  Court  below,  is  not,  when  taken  altogether, 
in  conflict  with  the  current  of  authorities.     The  facts  are  not  given 


Ch.  2)  TORTS  THROUGH   MALICE  1197 

in  reference  to  which  he  charged  the  jury  in  this  language:  "In  con- 
formity to  a  point  put  by  counsel  for  the  plaintiif,  I  instruct  you  that 
the  opinion  of  private  counsel  of  a  prosecution  cannot  amount  to 
proof  of  probable  cause,  nor  prevent  a  recovery,  unless  the  facts  clear- 
ly warrant  it,  and  are  correctly  stated.  Even  the  application  to  coun- 
sel, and  their  opinion,  in  order  to  be  available  in  the  establishment  of 
probable  cause,  must  not  be  resorted  to  as  a  mere  cover  for  the  pros- 
ecution, but  must  be  the  result  of  an  honest  and  fair  purpose ;  and 
the  statement  made  at  the  time,  must  be  fair  and  full  and  consistent 
with  that  purpose." 

This  is  no  more  than  a  statement  of  the  general  rule  with  its  neces- 
sary qualifications.  Nevertheless,  the  w^ords,  "unless  the  facts  clearly 
warrant  it,"  found  both  in  Judge  Rogers'  opinion,  and  that  under 
review,  are  ill  chosen,  because  liable  to  misapplication.  "Unless  the 
facts  clearly  warrant"  what?  The  opinion  of  counsel,  or  the  pros- 
ecution? Whichever  be  the  antecedent  intended,  it  is  apparent  that 
these  words  would  make  the  defence  depend  for  its  value  wholly  on 
the  soundness  of  the  legal  opinion.  If  the  facts  must  clearly  w^arrant 
the  legal  opinion,  that,  to  be  a  defence,  must  be  the  very  judgment 
of  the  law  on  the  facts ;  if  they  must  clearly  warrant  the  prosecution 
then  the  defence  is  complete  without  the  professional  opinion;  and 
thus,  either  way,  it  goes  for  nothing.  No  matter  how  candidly  and 
faithfully  a  prosecutor  has  submitted  the  facts  to  his  legal  adviser  and 
followed  his  advice,  if  they  turn  out  insufficient  for  the  support  of 
the  prosecution,  he  is  liable  in  an  action  for  malicious  prosecution. 
On  this  principle  every  acquittal  of  a  defendant  would  be  followed 
by  such  an  action.  A  qualification  of  the  rule  in  terms  like  these,  de- 
stroys the  rule  itself. 

The  law  is  not  so.  Professors  of  the  law  are  the  proper  advisers  of 
men  in  doubtful  circumstances,  and  their  advice,  when  fairly  obtained, 
exempts  the  party  w^ho  acts  upon  it  from  the  imputation  of  proceed- 
ing maliciously  and  without  probable  cause.  It  may  be  erroneous, 
but  the  client  is  not  responsible  for  the  error.  He  is  not  the  insurer 
of  his  law^yer.  Whether  the  facts  amount  to  probable  cause,  is  the 
very  question  submitted  to  counsel  in  such  cases ;  and  when  the  client 
is  instructed  that  they  do,  he  has  taken  all  the  precaution  demanded 
of  a  good  citizen. 

To  manifest  the  good  faith  of  the  party,  it  is  important  that  he 
should  resort  to  a  professional  adviser  of  competency  and  integrity. 
He  is  not,  in  the  language  of  Judge  Rogers,  to  make  such  a  resort  "a 
mere  cover  for  the  prosecution" ;  but  when  he  has  done  his  whole 
duty  in  the  premises,  he  is  not  to  be  made  liable,  because  the  facts 
did  not  clearly  w^arrant  the  advice  and  prosecution.  The  testimony 
here  was,  that  Sample  stated  the  facts  of  the  case,  and  there  is  no 
suggestion  on  the  record  that  they  were  not  fairly  stated.  Suppres- 
sion, evasion,  or  falsehood,  would  make  him  liable;   but  if  fairly  sub- 


1198  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

mitted,  and  if  the  advice  obtained  was  followed  in  good  faith,  he  had 
a  defence  to  the  action,  and  the  Court  should  have  given  him  the  ben- 
efit of  it. 

The  judgment  is  reversed  and  a  venire  de  novo  awarded.' 


RAVENGA  v.  MACKINTOSH. 
(Court  of  King's  Bench,  1824.    2  Barn.  &  C.  693,  107  Reprint,  541,  26  R.  R.  521.) 

This  was  an  action  for  malicious  arrest.  Plea,  not  guilty.  The 
jury  found  a  verdict  for  the  plaintiff  with  £250  damages.  The  Attor- 
ney-General moved  for  a  new  trial.* 

BaylEy,  J.  I  have  no  doubt  that  in  this  case  there  was  a  want  of 
probable  cause.  I  accede  to  the  proposition,  that  if  a  party  lays  all 
the  facts  of  his  case  fairly  before  counsel,  and  acts  bona  fide  upon  the 
opinion  given  by  that  counsel  (however  erroneous  that  opinion  may 
be),  he  is  not  liable  to  an  action  of  this  description.  A  party,  how- 
ever, may  take  the  opinions  of  six  different  persons,  of  which  three 
are  one  way  and  three  another.  It  is  therefore  a  question  for  the 
jury,  whether  he  acted  bona  fide  on  the  opinion,  believing  that  he  had 
a  cause  of  action.  The  jury  in  this  case  have  found,  and  there  was 
abundant  evidence  to  justify  them  in  drawing  the  conclusion,  that  the 
defendant  did  not  act  bona  fide,  and  that  he  did  not  believe  that  he 
had  any  cause  of  action  whatever.  Assuming  that  the  defendant's 
belief  that  he  had  a  cause  of  action  would  amount  to  a  probable  cause, 
still,  after  the  jury  have  found  that  he  did  not  believe  that  he  had 
any  cause  of  action  whatever,  the  judge  would  have  been  bound  to 
say,  that  he  had  not  reasonable  or  probable  cause  of  action. 

Rule  refused. 


MACK  V.  SHARP. 

(Supreme  Court  of  Michigan,  1904.     138  Mich.  448,  101  N,  W.  631, 

5  Ann.  Cas.  109.) 

This  is  an  action  for  malicious  prosecution.  The  plaintiff,  at  the 
instance  of  the  defendant,  was  arrested  upon  a  charge  of  criminal 
libel.  He  was  acquitted,  brought  this  action,  and  recovered  judg- 
ment for  substantial  damages.     The  defendant  brings  error. 

Montgomery,  j.  *  *  *  Xhe  court  also  ruled  throughout  the 
case  that  in  this  action  the  defendant  was  not  at  liberty  to  prove  that 
the  plaintiff  was  in  fact  guilty  of  the  criminal  offense  imputed  to  him 
in  the  prosecution  instituted  by  the  defendant.     It  is  well  established 

3  i'art  of  the  opinion  is  omitted. 

*  The  statement  of  facts  is  abridged,  and  the  opinion  of  Holroyd,  J.,  is 
omitted. 


Ch.  2)  TORTS   THROUGH   MALICE  1199 

by  authority  that  in  an  action  for  malicious  prosecution  it  is  com- 
plete defense  to  show  that  the  plaintiff  was  in  fact  guilty  of  the  offense 
charged  against  him  by  defendant,  and  this  though  the  proof  of  guilt 
is  furnished  by  evidence  not  known  to  defendant  when  the  prosecu- 
tion against  the  plaintiff  was  instituted.  This  testimony  is  not  in  such 
case  offered  in  support  of  probable  cause,  but  to  show  that  the  plaintiff 
has  suffered  no  wrong  by  his  arrest.  The  law  considers  that  if  a  crim- 
inal is  fortunate  enough  to  escape  conviction,  he  should  rest  content 
with  his  good  luck,  and  not  belabor  one  who  suspected  his  guilt  and 
acted  accordingly.  As  it  was  said  in  Newton  v.  Weaver,  13  R.  I.  617: 
"The  action  for  malicious  prosecution  was  designed  for  the  benefit  of 
the  innocent,  and  not  of  the  guilty.  It  matters  not  whether  there  was 
proper  cause  for  the  prosecution,  or  how  malicious  may  have  been  the 
motives  of  the  prosecutor,  if  the  accused  is  guilty  he  has  no  legal 
cause  of  complaint."  See,  also,  Threefoot  v.  Nuckols,  68  Miss.  123,  8 
South.  335;  Whitehurst  v.  ^^'ard,  12  Ala.  264;  Parkhurst  v.  Mastel- 
lar,  57  Iowa,  478,  10  N.  W.  864;  Turner  v.  Dinnegar,  20  Hun  (N.  Y.) 
467 ;   Lancaster  v.  McKay,  103  Ky.  616,  45  S.  W.  887. 

Inasmuch  as  it  is  essential  to  the  plaintiff's  action  to  show  a  termina- 
tion of  the  criminal  action  as  a  basis  for  his  suit  for  malicious  pros- 
ecution, it  is  competent  to  establish  this  fact  by  the  verdict  of  acquittal. 
Black  on  Judgments,  §  529.  But  it  is  not  conclusive  evidence  of  the 
plaintift''s  innocence.     Id. 

Plaintiff's  counsel  cite  the  case  of  Josselyn  v.  McAllister,  25  Mich. 
45,  as  sustaining  the  ruling  of  the  circuit  judge.  It  does  not  appear 
that  the  precise  question  of  whether  the  actual  guilt  of  the  plaintiff 
could  be  given  in  evidence  as  a  defense  was  discussed  in  that  case. 
It  is  true  that  testimony  which  might  have  amounted  to  an  admission 
of  one  element  of  the  offense  was  held  properly  excluded  on  the 
ground  that  defendant  was  not  shown  to  have  knowledge  of  the  fact 
when  the  prosecution  was  instituted  by  him.  It  was  said  that,  "if 
Josselyn  acted  without  any  knowledge  or  suspicion  of  the  supposed 
fact,  it  could  in  no  way  affect  his  m.otives" — a  proposition  obvious 
enough  in  itself,  and  quite  conclusive  as  to  the  admissibility  of  the 
proposed  testimony  in  that  case,  for  the  opinion  shows  there  were 
joined  in  that  action  counts  for  malicious  prosecution  and  false  im- 
prisonment, and  by  reference  to  the  report  of  the  case  at  a  former 
hearing  (22  Mich.  304)  it  will  be  seen  that  the  counts  for  malicious 
prosecution  were  disposed  of  on  the  first  trial  at  the  circuit,  so  that 
in  the  first  opinion  it  was  very  pertinently  said,  "As  no  state  of  facts 
relied  upon  would  have  made  the  arrests  lawful,  the  defense  depends, 
so  far  as  this  class  of  testimony  is  concerned,  purely  on  the  con- 
sideration of  malice."  The  case  of  Patterson  v.  Garlock,  39  Mich. 
447,  also  cited,  does  not  sustain  the  ruling  below.  Indeed,  some  of  the 
language  employed  by  Mr.  Justice  Graves  makes  strongly  for  what 
we  hold  to  be  the  correct  rule.  In  that  case  testimony  offered  by  the 
plaintiff   to  establish   his   innocence   was   received.     The   court   held 


1200  TORTS  THROUGH   ACTS  OF  CONDITIONAL   LIABILITY         (Part  3 

that,  while  it  was  not  bound  to  make  affirmative  proof  of  his  actual  in- 
nocence, yet  such  testimony  was  admissible.  Mr.  Justice  Graves  said : 
"It  requires  no  reasoning  to  show  that,  where  the  question  is  whether 
one  man  has  fair  ground  to  charge  another  with  a  crime,  it  cannot  be 
laid  down  that  the  abstract  fact  of  his  guilt  or  innocence  must  be 
necessarily  impertinent  and  immaterial." 

There  was  error  in  the  court's  ruling.     *     *     *     'pj^g  judgment  is 
reversed  and  a  new  trial  ordered.^ 


II.  Malicious  Abuse  of*  Proce;ss 
WATERER  V.  FREEMAN. 

(Court  of  King's  Bench,  1617-1619.     Hobart,  266a,  80  Reprint,  412.) 

The  case  of  Waterer  v.  Freeman,  supra,  was  this  term  judged  for 
the  plaintiff,  and  the  rest  of  the  judges  desired  me  to  deliver  the  judg- 
ment and  reason.     *     *     * 

But  now  to  the  main  point,  we  hold,  that  if  a  man  bring  an  action 

upon  a  false  surmise  in  a  proper  Court,  he  cannot  bring  an  action 

against  him  and  charge  him  with  it  as  a  fault  directly,  and  ex  diametro, 

as  if  the  suit  itself  were  a  wrongful  act,  for  executio  juris  non  habet 

injuriam.    And  as  all  by  nature  is  good,  so  Saint  Paul  saith,  the  law 

is  good  if  a  man  use  it  lawfully;  so  the  abuse  of  law  is  the   fault. 
*     *     * 

Now  to  the  principal  case,  if  a  man  sue  me  in  a  proper  Court,  yet 
if  his  suit  be  utterly  without  ground  of  truth,  and  that  certainly  known 
to  himself,  I  may  have  an  action  of  the  case  against  him  for  the  undue 
vexation  and  damage  that  he  putteth  me  unto  by  his  ill  practice, 
though  the  suit  itself  be  legal,  and  I  cannot  complain  of  it,  as  it  is 
a  suit,  as  in  the  case  before;  and  therefore  the  16  of  E.  3,  Fitz.  De- 
ceipt,  35,  a  conusee  of  a  statute  sued  execution  against  his  deed  of 
defeasance,  whereupon  the  conusor  had  an  action  of  deceit  against 
him  and  his  assign,  in  the  nature  of  an  audita  querela.  So  note  tha 
distinction  upon  this  case,  and  43  E.  3,  before.  If  a  man  sue  me,  and 
hanging  that  suit  commence  another  against  me,  to  this  I  have  a  plea 
in  abatement,  which  proves  this  latter  suit  unjust  and  vexatious :  but 
if  he  discontinue  the  former  he  may  bring  a  new  action.  Likewise  I 
hold,  that  I  may  have  an  action  upon  the  case  against  him  that  sues 
me  against  his  release,  or  after  the  money  duly  paid  ;  yea,  though  it  be 
upon  a  single  obligation.  So  where  one  doth  bargain  and  sell  his 
land  at  the  common  law,  and  refuse  to  make  assurance  accordingly, 
and  after  conveyeth  the  land  to  another,  who  hath  knowledge  of  the 
first  bargain,  the  first  bargainee  may  have  an  action  upon  the  case,  or 

6  I'arts  of  the  opiuiou  are  omitted. 


Ch.  2)  TORTS  THROUGH   MALICE  1201 

deceit  as  well  as  subpoena,  whereupon  Fairfax,  21  E.  4,  23,  saith  well, 
that  if  men  will  be  good  pleaders,  there  should  not  be  cause  of  so  many 
suits  in  Chancery.     *     *     *  s 


GRAIXGER  V.  HILL  et  al. 

(Court  of  Common  Pleas,  1S3S.     4  Bing.  N.  C.  212,  132  Reprint,  769.) 

In  September,  1836,  the  plaintiff,  by  deed,  mortgaged  to  the  defend- 
ants for  £80  a  vessel  of  which  he  was  owner  as  well  as  captain :  the 
money  was  to  be  repaid  in  September,  1837;  and  the  plaintiff  was  to 
retain  the  register  of  the  vessel  in  order  to  pursue  his  voyages. 

In  November,  1836,  the  defendants,  under  some  apprehension  as  to 
the  sufficiency  of  their  security,  resolved  to  possess  themselves  of  the 
ship's  register,  and  for  this  purpose,  after  threatening  to  arrest  the 
plaintiff  unless  he  repaid  the  money  lent,  they  made  an  affidavit  of 
debt,  sued  out  a  capias  endorsed  for  bail  in  the  sum  of  £95.  17s.  6d.  in 
an  action  of  assumpsit,  and  sent  two  sheriff's  officers  with  the  writ  to 
the  plaintiff',  who  was  lying  ill  in  bed  from  the  effects  of  a  wound.  A 
surgeon  present,  perceiving  he  could  not  be  removed,  one  of  the  de- 
fendants said  to  the  sheriff's  officers,  "Don't  take  him  away ;  leave  the 
young  man  with  him."  The  officers  then  told  the  plaintiff  that  they 
had  not  come  to  take  him,  but  to  get  the  ship's  register ;  but  that  if  he 
failed  to  deliver  the  register,  or  to  find  bail,  they  must  either  take  him 
or  leave  one  of  the  officers  with  him. 

The  plaintiff  being  unable  to  procure  bail,  and  being  much  alarmed, 
gave  up  the  register. 

The  plaintiff  could  not  go  to  sea  without  the  register,  and  because 
of  its  unlawful  detention  by  the  defendant  lost  four  voyages  from 
London  to  Caen.  The  plaintiff'  afterwards  came  to  an  arrangement 
with  the  defendants;  was  discharged  from  the  arrest;  paid  the  costs; 
repaid  the  money  borrowed  on  mortgage;  and  received  from  the  de- 
fendants a  release  of  the  mortgage  deed.  No  further  steps  were  taken 
in  the  action  of  assumpsit. 

On  these  facts,  a  special  action  on  the  case  was  brought  to  recover 
the  damage  which  the  plaintiff  had  sustained  from  the  defendants' 
wrongful  acts.  On  the  general  issue  there  was  a  verdict  for  the 
plaintiff. 

Taddy,  S'erjt.,  pursuant  to  leave,  moved  to  enter  a  non  suit  on  the 
ground,  inter  alia,  that  there  was  no  proof  of  the  defendants'  action  in 
assumpsit  having  been  determined  previously  to  the  commencement  of 
the  present  action,  and  without  such  proof  the  action  will  not  lie. 

Park,  j,  *  *  *  f  ^g  argument  as  to  the  omission  to  prove  the 
termination  of  the  defendant's  suit,  and  to  allege  want  of  reasonable 

e  Farts  of  the  opinion  are  omitted. 
Hej>b.Tobts — 76 


1202  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY         (Part  3 

and  probable  cause  for  it,  has  proceeded  on  a  supposed  analogy  be- 
tween the  present  case  and  an  action  for  a  malicious  arrest.  But  this 
is  a  case  primse  impressionis,  in  which  the  defendants  are  charged 
with  having  abused  the  process  of  the  law,  in  order  to  obtain  property 
to  which  they  had  no  colour  of  title ;  and,  if  an  action  on  the  case  be 
the  remedy  applicable  to  a  new  species  of  injury,  the  declaration  and 
proof  must  be  according  to  the  particular  circumstances.  I  admit  the 
authority  of  the  cases  which  have  been  cited,  but  they  do  not  apply  to 
the  present.  *  *  *  'f 
Discharged. 


MALONE  V.  BELCHER. 

(Supreme  Judicial  Court  of  Massachusetts,  191.3.    216  Mass.  209,  103  N.  E.  637, 
49  L.  R.  A.  [N.  S.]  753,  Ann.  Cas.  1915A,  830.) 

Action  for  malicious  prosecution.  Verdict  for  plaintiff.  Both  par- 
ties bring  exceptions. 

Morton,  J.  This  is  an  action  of  tort  to  recover  of  the  defendant 
damages  for  a  malicious  abuse  of  process  in  causing  property  which 
the  plaintiff  had  bargained  to  sell  to  one  Petersen  to  be  maliciously 
attached  for  the  purpose  of  preventing  said  sale  and  compelling  the 
plaintiff  to  convey  the  same  to  the  defendant  or  to  such  person  or  per- 
sons as  he  might  designate.  There  was  a  verdict  for  the  plaintiff  with 
the  amount  of  which  he  is  dissatisfied.  The  case  is  here  on  excep- 
tions by  both  parties  to  the  refusal  of  the  presiding  judge  to  give  cer- 
tain rulings  asked  for — those  requested  by  the  plaintiff  going  to  the 
measure  of  damages,  and  those  requested  by  the  defendant  to  the 
maintenance  of  the  action.  There  is  also  an  exception  by  the  defend- 
ant to  the  charge. 

There  was  evidence  tending  to  show  that  while  the  suit  was  brought 
by  the  defendant  and  the  attachment  made  for  the  ostensible  purpose 
of  collecting  a  commission  which  he  claimed  to  be  due  him  from  the 
plaintiff,  the  real  object  was  by  means  of  the  suit  and  attachment  to 
prevent  the  conveyance  of  the  property  to  Petersen  and  to  secure  it 
for  himself.  The  plaintiff  testified  amongst  other  things  that  the  de- 
fendant said:  "'I  am  going  to  attach  it'  [meaning  the  property  which 
the  plaintiff  had  agreed  to  sell  to  Petersen] .  I  said,  'What  right  do 
you  claim,  Mr.  Belcher,  to  attach  it?'  He  said,  T  want  to  hold  up  the 
sale;  that  is  the  only  way  I  can  hold  it  up.'  "  The  plaintiff  also  testified 
that  in  answer  to  his  question,  "Who  is  your  customer,"  the  defendant 
replied,  "It  was  myself,  Mr.  Malone."  This  and  other  evidence  intro- 
duced by  the  plaintiff  warranted,  if  believed,  a  finding  that  the  real 
object  of  the  suit  and  attachment  was  not  that  for  which  the  suit  pur- 

7  Tlie  statement  of  facts  is  ahridsed,  and  the  concurriiiir  opinion  of  Tindal, 
C  .J.,  parts  of  the  opinion  of  I'arlv,  J.,  and  all  of  the  opinions  of  Vaughan 
and  liosanquet,  JJ.,  are  omitted. 


Ch.  2)  TORTS   THROUGH   MALICE  1203 

ported  to  have  been  brought  and  the  attachment  made,  but  was  for  the 
purpose  of  preventing  the  transfer  of  the  property  to  Petersen  and 
getting  it,  if  the  defendant  could,  for  himself.  This  would  constitute 
a  malicious  abuse  of  process  for  which  the  defendant  would  be  liable. 
The  gravamen  of  the  cause  of  action  was  the  malicious  attachment  by 
means  of  the  suit  for  the  purpose  of  preventing  the  transfer  to  Peter- 
sen. It  was  not  necessary  in  order  to  maintain  the  action  to  show  a 
termination  of  the  suit  in  which  the  attachment  was  made,  as  it  would 
have  been  in  case  of  malicious  prosecution.  The  attachment  for  the 
purpose  of  preventing  the  sale  to  Petersen  was  a  perversion  of  the 
object  which  the  writ  was  intended  by  law  to  effect,  and  it  was  there- 
fore immaterial  whether  the  suit  in  which  the  attachment  was  made 
had  been  terminated  or  not.  But  as  to  malice  and  want  of  probable 
cause  the  case  stood  differently.  The  defendant  had  the  right,  even 
though  actuated  by  malicious  motives,  to  attach  the  property  to  secure 
a  claim  which  he  had  probable  cause  for  believing  was  due  to  him  from 
the  defendant.  In  these  respects  the  case  was  analogous  to  a  case  for 
malicious  prosecution,  and  it  was  necessary,  as  the  court  instructed  the 
jury,  for  the  plaintiff  to  show  malice  and  want  of  probable  cause. 

*         ^         ;<:  8 


III.  Malicious  Falst^hood 

SHEPPARD  V.  WAKEMAN. 
(Court  of  King's  Bench,  1661.    1  Lev.  53,  83  Reprint,  293.) 

Case,  where  the  Plaintiff  was  to  be  married  to  such  a  one  who  in- 
tended to  take  her  to  his  Wife;  the  Defendant  falsely  and  maliciously 
to  hinder  the  Marriage,  writ  a  letter  to  the  said  Person,  That  the 
Plaintiff  was  contracted  to  him,  whereby  she  lost  her  Marriage.  After 
Verdict  for  the  Plaintiff,  'twas  moved.  That  the  Action  did  not  lie, 
the  Defendant  claiming  Title  to  her  himself,  like  as  Gerrard's  Case, 
4  Co.  for  Slander  of  Title.  But  after  divers  Motions,  the  Plaintiff 
had  Judgment,  for  it  is  found  to  be  malicious  and  false;  and  if  such 
an  Action  should  not  lie,  a  mean  and  base  Person  might  injure  any 
Person  of  Honour  and  Fortune  by  such  a  Pretence. 

8  Morton,  J.,  here  cited  the  following  authorities:  Savage  v.  Brewer  (1835) 
16  Pick.  453,  28  Am.  Dec.  2.55;  Wood  v.  Graves  (1887)  144  Mass.  365,  11 
N.  E.  567,  59  Am.  Rep.  95;  Zinn  v.  Rice  (1891)  154  ]Mass.  1,  27  N.  E.  772, 
12  L.  R.  A.  288;  White  v.  Apsley  Rubber  Co.  (1902)  ]S1  :Mass.  339,  63  N.  E. 
885;  Grainger  v.  Hill  (1838)  4  Bing.  N.  C.  212;  Ileam  v.  Shaw  (1881)  72 
Me.  187;  Mayer  v.  Walter  (1870)  64  Pa.  283;  Drake  on  Attachments  (2d 
Kd.)  §  726 ;  19  Am.  &  Eng.  Encyc.  of  Law  (2d  Ed.)  632 ;  Bigelow  on  Torts 
(8th  Ed.)  230 ;  3  Ann.  Cas.  722,  note. 


1204  TORTS   THROUGH  ACTS  OF   CONDITIONAL  LIABILITY         (Part  3 

SIR  G.  GERARD  v.  DICKENSON. 

(Court  of  King's  Bench,  1590.     4  Co.  Rep.  ISa,  76  Reprint,  903.) 

The  plaintiff  declared  that  he  was  seised  of  the  manor  and  castle  of 
H.  in  the  county  of  Staft'ord  in  fee  by  purchase  from  George  Lord 
Audley;  and  that  he  was  in  communication  to  demise  the  said  castle 
and  manor  to  Ralph  Egerton  for  twenty-two  years  for  two  hundred 
pounds  fine,  and  one  hundred  pounds  rent  per  annum,  and  that  the 
defendant  (prasmissorum  non  ignara)  sai3,  "I  have  a  lease  of  the  man- 
or and  castle  of  H.  for  ninety  years ;"  and  then  and  there  shewed  and 
published  a  demise  supposed  to  be  made  by  George  Audley,  grand- 
father to  the  said  George  Lord  Audley,  for  ninety  years,  to  Edward 
Dickenson,  her  husband,  and  published  the  said  demise  as  a  true  and 
good  lease;  and  so  affirmed  it,  and  offered  to  sell  it;  ubi  revera  the 
said  lease  was  counterfeited  by  her  husband,  and  that  the  defendant 
knew,  it  to  be  counterfeited ;  by  reason  of  which  words  and  publication 
the  said  Ralph  Egerton  did  not  proceed  to  accept  the  said  lease,  to 
damage,  &c.  The  defendant  pleaded  in  bar,  quod  talis  indentura 
(qualis  in  the  declaration  is  alleged)  came  to  the  defendant's  hands  by 
trover,  and  traversed  that  she  knew  of  the  forgery,  upon  which  the 
plaintiff  demurred  in  law.  And  in  this  case  three  points  were  resolved  : 
1st.  If  the  defendant  had  affirmed  and  published,  that  the  plaintiff' 
had  no  right  to  the  castle  and  manor  of  H.,  but  that  she  herself  had 
right  to  them,  in  that  case,  because  the  defendant  herself  pretends 
right  to  them,  although  in  truth  she  had  none,  yet  no  action  lies.  For 
if  an  action  should  lie  when  the  defendant  herself  claims  an  interest, 
how  can  any  make  claim  or  title  to  any  land,  or  begin  any  suit,  or 
seek  advice  and  counsel,  but  he  should  be  subject  to  an  action?  which 
would  be  inconvenient.  Which  resolution  agrees  with  the  opinion  in 
Banister's  case  before,  no  action  upon  the  case  lies  against  one  who 
publishes  another  to  be  his  villein  without  saying  that  he  lies  in  wait 
to  imprison  him,  et  tales  et  tantas  minas  in  ipsum  fecit,  quod  circa  nego- 
tia  sua  palam  intendere  non  audebat.  And  therefore  it  was  resolved, 
that  for  the  said  words,  "I  have  a  lease  of  the  manor  of  H.  for  ninety 
years,"  although  it  is  false,  yet  no  action  lies  for  slandering  of  his  title 
or  interest  in  the  said  castle  and  manor.  And  although  it  appears  by 
the  defendant's  bar,  that  she  has  no  title  or  interest  in  the  said 
lease,  but  is  a  stranger  to  it ;  yet  forasmuch  as  the  matter 
alleged  in  the  declaration  doth  not  maintain  the  action,  the  bar 
will  not  make  it  good.  2.  It  was  resolved  that  there  was  other  mat- 
ter in  the  declaration  sufficient  to  maintain  the  action,  and  that  was  be- 
cause it  was  alleged  in  the  declaration  that  the  defendant  knew  of  the 
communication  of  the  making  of  the  said  lease  to  Ralph  Egerton,  and 
also  that  she  knew  that  the  lease  was  forged  and  counterfeited,  and 
yet  (against  her  own  knowledge)  she  has  affirmed  and  published,  that  it 
was  a  good  and  true  lease,  by  which  the  plaintiff  was  defeated  of  his 


Ch.  2)  TORTS  THROUGH   MALICE  1205 

bargain.  If  a  man  forges  a  bond  in  my  name,  and  puts  it  in  suit  against 
me,  by  which  I  am  vexed  and  damnified,  I  shall  have  an  action  on  the 
case.  B.  offered  eight  oxen  to  sell  to  A.  as  his  proper  goods,  knowing 
them  to  be  the  proper  goods  of  P.  A.  trusting  in  the  fidelity  of  B. 
bought  them  for  eight  pounds,  and  afterwards  P.  retook  the  oxen;  in 
that  case  A.  shall  have  an  action  upon  the  case  against  B.     *     *     *  ^ 


HATCHARD  v.  MEGE  et  al. 

(Queen's  Bench  Division,  1SS7.     18  Q.  B.  Div.  771.) 

The  statement  of  claim,  so  far  as  material  to  the  point  decided,  was 
as  follows : 

Paragraph  1  alleged  that  the  plaintiff  was  a  wine  merchant  and  importer, 
and  the  registered  proprietor  of  a  trade-mark  thereinafter  described,  and 
a  dealer  in  a  brand  of  champagne  introduced  by  him  and  known  as  "the 
Delmonico"  champagne. 

Paragraph  4  alleged  that  the  defendants  wrote  and  published  "of  and 
concerning  the  plaintiff  and  his  said  trade  as  a  wine  mei-chant  and  imjwrter 
the  following  false  and  malicious  libel  that  is  to  say:  "Caution:  Delmonico 
Champagne.  Messrs.  Delbeck  &  Co.,  finding  that  wine  stated  to  be  Delmonico 
Champagne  is  being  advertised  for  sale  in  Great  Britain,  hereby  give  notice 
that  such  wine  cannot  be  the  wine  it  is  represented  to  lie,  as  no  champagne 
shipped  under  that  name  can  be  genuine  unless  it  has  their  names  on  their 
labels.  Messrs.  Delbeck  &  Co.  further  give  notice  that  if  such  wine  be  shipped 
from  France  they  will  take  proceedings  to  stop  such  shipments,  and  such 
other  proceedings  in  I-^nglaud  as  they  may  be  advised' — therebj-  meaning  that 
the  plaintiff  had  no  right  to  use  his  said  registered  trade-mark  or  brand  for 
champagne  imported  or  sold  by  him,  and  that  in  using  such  trade-mark  or 
brand  he  was  acting  frauduleutlj",  and  endeavoring  to  pass  oft'  inferior 
champagne  as  being  of  the  manufacture  of  Messrs.  Delbeck  &  Co.,  and  that 
the  champagne  imported  and  sold  by  the  plaintiff  was  not  genuine  wine,  and 
that  no  person  other  than  the  defendants  had  the  right  to  use  the  word  'Del- 
monico' as  a  trade-mark  or  brand,  or  part  of  a  trade-mark  or  brand,  of  cham- 
pagne in  the  United  Kingdom. 

■"5.  In  consefiuence  of  the  publication  of  the  libel  aforesaid,  the  plaintiff 
has  been  greatly  injured  in  his  credit  and  reputation,  and  in  his  said  trade 
and  business  of  a  wine  merchant  and  importer  and  dealer  in  champagne. 

'•The  plaintiff  claims: 

"(3)  £1000  damages  in  respect  of  the  publication  of  the  said  libel. 

"(4)  An  injunction  restraining  the  defendants,  their  servants  or  agents, 
from  continuing  tlie  publicatiun  of  the  said  libel  or  any  other  advertisement 
or  notice  to  a  similar  effect." 

At  the  trial  Lord  Coleridge,  C.  J.,  after  hearing  the  opening  state- 
ment of  counsel  for  the  plaintiff,  directed  a  nonsuit  to  be  entered,  on 

9  The  third  point  is  omitted. 

Accord:  Smith  v.  Si)ooner  (1810)  P,  Taunt.  24G :  D.  had  leased  certain  prem- 
ises for  31  years.  The  tenant.  P.,  was  about  to  sell  at  auction  a  24  year 
remainder  of  the  time.  D.,  tliinking  that  be  had  a  right  to  recover  possession 
of  the  term  for  some  misconduct  of  the  tenant,  went  to  the  auction  and  told 
the  auctioneei-  that  he,  D.,  was  the  owner  and  that  P.  could  not  make  title 
to  the  time.  And  see  the  remark  of  Lawrence,  J.  (Id.  I'.i.jt:  "'An  action  (upon 
the  case  for  slander  of  title)  can  only  be  maintained  when  the  words  are 
spoken  maliciously.  It  is  not  necessary  to  plead  specially ;  it  is  for  the 
plaintiff'  to  prove  malice,  which  is  the  gist  of  the  action  and  is  a  part  of 
the  declaration  important  to  he  proved  by  the  plaintiff"." 


1206  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

the  ground  that  the  action  came  to  an  end  on  the  death  of  the  orig- 
inal plaintiff. 

Day,  J.  This  is  an  application  to  set  aside  a  nonsuit,  which  was 
directed  by  the  Lord  Chief  Justice  on  the  opening  statement  of  coun- 
sel, and  the  question  is  whether  the  nonsuit  was  properly  entered. 

The  statement  of  claim  alleges  two  distinct  grievances.  The  first 
claim  was  for  infringement  of  the  plaintiff's  trade-mark,  but  that  was 
abandoned  at  the  trial.  The  second  claim  is  contained  in  paragraph  4, 
which  sets  out  a  distinct  cause  of  action.  The  publication  there  set 
out  is  complained  of  as  a  libel  on  the  plaintiff  in  relation  to  his 
trade.  It  is  substantially  a  warning  not  to  buy  Delmonico  champagne 
because  it  is  not  genuine.  The  statement  of  claim  alleges  that  the 
publication  is  false  and  malicious ;  that  would  be  a  question  for  the 
jury;  it  is  not  for  us  to  consider  the  facts  of  the  case;  we  can  only 
look  at  what  was  opened  by  the  plaintift''s  counsel  and  what  appears  on 
the  pleadings.  The  innuendo  charges  that  the  defendants  intended  to 
convey  the  meaning  that  the  plaintiff  had  no  right  to  use  his  trade- 
mark or  brand,  and  that  the  wine  he  sold  was  not  genuine.  It  may 
be  that  the  publication  bears  that  meaning,  and  that  the  words  used 
import  dishonesty.  The  plaintiff  has  died,  and  the  question  to  be 
decided  is  how  much,  if  any  part,  of  the  cause  of  action  survives. 
The  statute  4  Edw.  3,  c.  7,  and  the  course  of  the  practice,  make  it 
clear  that  a  civil  action  for  libel  dies  with  the  death  of  the  person 
libelled.  It  does  not  come  within  the  spirit,  and  certainly  not  within 
the  letter  of  the  statute.  There  is,  however,  a  further  question  wheth- 
er a  right  of  action  can  survive  because  injury  to  the  plaintift"'s  trade- 
mark is  alleged.  Injury  to  trade  is  constantly  alleged  in  actions  for 
libel,  and  therefore  that  does  not  affect  the  question  of  survivorship. 
In  the  present  case  the  second  part  of  the  statement  of  claim  may  be 
subdivided  into  two  separate  and  distinct  claims.  The  first  is  for 
ordinary  defamation,  either  independently  of  the  plaintiff's  trade, 
affecting  his  character  by  charging  him  with  being  a  dishonest  man, 
or  defamation  of  him  in  his  trade  by  charging  him  with  being  a  dis- 
honest wine-merchant.  That  claim  would  not  survive,  for  it  is 
nothing  more  than  a  claim  in  respect  of  a  libel  on  an  individual.  But 
this  publication  may  be  construed  to  mean  that  the  plaintiff  had  no 
right  to  use  his  trade-mark.  This  is  not  properly  a  libel,  but  is  rather 
in  the  nature  of  slander  of  title,  which  is  well  defined  in  Odgers  on 
Libel  and  Slander,  c.  V,  p.  137,  in  the  following  passage:  "But  wholly 
apart  from  these  cases  there  is  a  branch  of  the  law  (generally  known 
by  the  inappropriate  but  convenient  name — slander  of  title)  which 
permits  an  action  to  be  brought  against  any  one  who  maliciously  de- 
cries the  plaintiff's  goods  or  some  other  thing  belonging  to  him,  and 
thereby  produces  special  damage  to  the  plaintiff.  This  is  obviously  no 
])art  of  the  law  of  defamation,  for  the  plaintiff's  reputation  remains 
uninjured;  it  is  really  an  action  on  the  case  for  maliciously  acting  in 
such  a  way  as  to  intiict  loss  upon  the  plaintiff.     All  the  preceding 


Ch.  2)  TORTS  THROUGH  MALICE  1207 

rules  dispensing  with  proof  of  malice  and  special  damage  are  therefore 
wholly  inapplicable  to  cases  of  this  kind.  Here,  as  in  all  other  actions 
on  the  case,  there  must  be  et  damnum  et  injuria.  The  injuria  consists 
in  the  unlawful  words  maliciously  spoken,  and  the  damnum  is  the 
consequent  money  loss  to  the  plaintiff." 

It  appears,  therefore,  that  the  first  and  last  parts  of  the  innuendo 
in  the  present  case  suggests  slander  of  title.  As  appears  from  the 
passage  I  have  read,  an  action  for  slander  of  title  is  not  an  action  for 
libel,  but  is  rather  in  the  nature  of  an  action  on  the  case  for  malicious- 
ly injuring  a  person  in  respect  of  his  estate  by  asserting  that  he  has 
no  title  to  it.  The  action  dift'ers  from  an  action  for  libel  in  this,  that 
malice  is  not  implied  from  the  fact  of  publication,  but  must  be  proved, 
and  that  the  falsehood  of  the  statement  complained  of,  and  the  ex- 
istence of  special  damage,  must  also  be  proved  in  order  to  entitle 
the  plaintiff  to  recover.  The  question  whether  the  publication  is  false 
and  malicious  is  for  the  jury.  Here,  I  think,  special  damage  is  alleged 
by  the  statement  of  claim,  and  if  the  plaintiff  could  have  shewn  in- 
jury to  the  sale  of  the  wine  which  he  sold  under  his  trade-mark,  he 
would  have  been  entitled  to  recover,  and  that  is  a  cause  of  action 
which  survives. 

For  these  reasons  I  am  of  opinion  that  the  nonsuit  was  right  so 
far  as  it  related  to  the  claim  in  respect  of  a  personal  libel,  but  was 
wrong  as  to  the  claim  in  respect  of  so  much  of  the  publication  as  im- 
pugned the  plaintiff's  right  to  sell  under  his  trade-mark  or  brand. 

There  will,  therefore,  be  an  order  for  a  new  trial,  but  it  will  be  lim- 
ited to  this  latter  part  of  the  claim. ^° 


MELLIN  V.  WHITE. 
(Court  of  Appeal.     [1S94]  3  Ch.  276.) 

The  plaintiff  was  the  manufacturer  and  proprietor  of  the  food 
for  infants  known  as  "Mellin's  Infants'  Food."  This  food  was  sold 
wholesale  by  the  plaintiff  in  bottles,  which  v/ere  inclosed  in  paper 
wrappers,  bearing  thereon  the  words  "Mellin's  Infants'  Food"  and 
the  plaintiff's  trade-mark. 

The  defendant  was  a  chemist  at  Portsmouth,  and  the  plaintiff"  had 
for  some  years  been  in  the  habit  of  supplying  him  with  Mellin's 
Food.  In  1893  the  plaintiff'  discovered  that  the  defendant  had  adopted 
the  practice  of  affixing  to  the  wrappers  of  the  bottles  of  the  plain- 
tiff's food  which  he  sold,  a  label  in  the  following  terms : 

"Notice. 
"The  public  are  recommended  to  try  Dr.  Vance's  Prepared  Food  for  Infants 
and  Invalids,  it  being  far  more  nutritious  and  healthful  than  any  other  i)repa- 
ration  vet  offered,  sold  in  barrels,  containin;;  1  lb.  net  \veii,'ht,  at  TV-j  d.  each ; 
or  in  7' lb.  packets,  '.is.  9d.  each.  Local  agent,  Timothy  White,  chemist.  Torts- 
mouth." 


10  The  statement  of  facts  is  abridged  and  opinion  of  Wills,  J.,  is  omitted. 


1208  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

The  defendant  was,  in  fact,  the  proprietor  of  Dr.  Vance's  Prepared 
Food. 

The  plaintiff,  by  his  statement  of  claim,  alleged  that  Dr.  Vance's 
food  was  far  inferior  to  the  plaintiff's  in  nutritiveness  and  health- 
fulness  for  infants  and  invalids,  and  that  the  statement  on  the  label 
to  the  contrary  was  untrue,  and  was  made  for  the  purpose  and  with 
the  object  of  depreciating  the  plaintiff's  food,  and  of  inducing  per- 
sons in  the  habit  of  purchasing  and  using  it  to  believe  that  it  was 
an  inferior  article,  and  to  purchase  Dr.  Vance's  food  instead.  The 
plaintiff  further  alleged  that  the  statement  on  the  label  that  the  de- 
fendant was  "an  agent"  was  untrue;  and  the  plaintiff  claimed  an 
injunction  to  restrain  the  defendant  from  offering  the  plaintiff's  food 
for  sale  otherwise  than  under  the  original  labels  and  wrappers,  or 
offering  it  for  sale,  under  the  plaintift"'s  labels  and  wrappers,  with 
any  unauthorized  variations,  and  from  untruly  stating  or  representing 
to  persons  purchasing,  or  about  to  purchase,  the  plaintiff's  food,  or 
to  the  public  generally,  that  the  plaintiff's  food  was  not  nutritious  or 
healthful,  or  that  the  plaintiff's  food  was  less  nutritious  or  healthful 
than  Dr.  Vance's. 

JMoulton,  Q.  C,  and  A.  B.  Terrell,  for  the  appeal:  The  putting 
this  label  on  Mellin's  bottles  is  a  step  calculated  to  injure  the  sale  of 
Mellin's  Food.  It  is  a  trade  libel,  being  an  untrue  statement  made 
to  purchasers  of  Mellin's  Food  that  it  is  inferior  to  Dr.  Vance's. 

Neville,  Q.  C,  and  Macnaghten,  for  the  defendant :  There  is  no 
difference  of  substance  between  this  case  and  the  ordinary  case  of 
a  tradesman  publishing  a  puff  saying  that  his  goods  are  the  best  of 
their  kind  in  the  market.  Suppose  a  bootmaker  were  to  advertise 
that  his  were  the  best  boots  in  the  market,  could  a  bootmaker  next 
door  bring  an  action,  on  the  ground  that  the  advertiser  was  stigmatiz- 
ing the  neighbour's  goods  as  inferior  to  his?    This  is  that  case. 

Lindle;y,  L.  J.  I  think  in  this  case  the  learned  judge  has  gone 
too  far  in  giving  judgment  for  the  defendant  upon  the  materials  which 
were  laid  before  him.  He  appears  to  have  proceeded  on  the  ground 
that,  even  if  the  plaintift''s  evidence  stood  uncontradicted,  this  action 
could  not  in  point  of  law  be  sustained.  I  think  that  is  going  too  far. 
The  defendant  has  brought  upon  himself  a  new  form  of  attack  by 
adopting  a  new  mode  of  carrying  on  business.  Nobody  in  this 
court,  at  all  events,  has  ever  seen  or  heard  of  a  tradesman  selling  goods 
in  the  bottles  and  with  the  labels  used  by  the  manufacturer,  and 
putting  on  them  labels  which  disparage  the  article  contained  in  the 
bottles.  It  is  quite  a  new  idea.  I  do  not  say  it  is  illegal.  I  do  not 
say  it  is  overstepping  the  mark.  But  if,  upon  hearing  the  whole 
of  the  evidence  to  be  adduced,  the  result  should  be  that  the  statement 
contained  in  the  label  complained  of  is  a  false  statement  about  the 
plaintiff's  goods  to  the  disparagement  of  them,  and  if  that  statement 
has  caused  injury  to,  or  is  calculated  to  injure  the  plaintiff",  this  action 
will  lie.     *     *     * 


Ch.  2)  TOUTS   THROUGH   MALICE  1209 

Lopes,  L.  J.  All  I  desire  to  say  is,  that  in  my  opinion  it  is  action- 
able to  publish  maliciously,  without  lawful  occasion,  a  false  state- 
ment disparaging  the  goods  of  another  person,  and' causing  such  other 
person  damage,  or  likely  to  cause  such  other  person  damage.  I 
think,  provided  that  can  be  made  out,  an  action  for  an  injunction 
will  lie.  All  these  matters  as  far  as  we  know  at  the  present  moment 
are  undecided,  they  have  not  been  proved,  the  evidence  has  only 
been  heard  upon  one  side,  and  whether  or  not  the  statement  in  the 
defendant's  notice  is  false  we  are  not  in  a  position  to  say.  Evidence 
was  given  on  the  part  of  the  plaintiff,  but  no  evidence  was  given  oh 
the  part  of  the  defendant.  For  anything  I  know,  the  defendant  may 
be  able  to  shew  that  the  evidence  which  was  given  for  the  plaintiff 
was  incorrect,  and  that  no  false  statement  has  been  made  at 
all.     *     *     * 

The  Court  of  Appeal,  therefore,  discharged  the  judgment  of  Romer, 
J.,  and  ordered  a  new  trial.  The  defendant  appealed  to  the  House 
of  Lords.^^ 


WHITE  v.  MELLIN. 

(House  of  Lords.     [1S95]  A.  C.  154.) 

Lord  Herschell,  L.  C.  (after  stating  the  facts  and  quoting  from 
the  opinions  of  Lindley  and  Lopes,  L.  JJ.,  in  the  Court  of  Appeal). 
None  of  the  learned  judges  in  the  Court  of  Appeal  dealt  with  the 
evidence  which  had  been  adduced  on  behalf  of  the  plaintiff;  but  I 
think  it  must  be  taken  that  they  had  arrived  at  the  conclusion  that 
that  evidence  did  bring  the  case  within  those  statements  of  the  law. 
Of  course,  if  the  plaintiff,  on  his  evidence,  had  made  out  no  case, 
he  could  not  complain  that  the  learned  judge  decided  against  him  and 
did  not  hear  the  witnesses  for  the  defendant;  the  action  was  in  that 
case  properly  dismissed.  I  take  it,  therefore,  that  lalthough  the 
learned  judges  did  not  analyse  the  evidence  or  make  any  reference 
to  it,  they  must  have  concluded  that  it  established  a  case  coming  with- 
in the  law  as  they  laid  it  down.  My  Lords,  as  I  understand,  in  the 
view  of  these  learned  judges,  or  in  the  view  of  Lindley,  L.  J.,  to  take 
his  statement  of  the  law  in  the  first  place,  it  was  necessary  in  order 
to  the  maintenance  of  the  action  that  three  things  should  be  proved : 
That  the  defendant  had  disparaged  the  plaintiff's  goods,  that  such 
disparagement  was  false,  and  that  damage  had  resulted  or  was  likely 
to  result.  Now,  my  Lords,  the  only  statement  made  by  the  defendant 
by  means  of  the  advertisement  is  this :  that  \  ance's  food  was  the 
most  healthful  and  nutritious  for  infants  and  invalids  that  had  been 
offered  to  the  public.  The  statement  was  perfectly  general,  and 
would  apply  in  its  terms  not  only  to  the  respondent's  infants'  food 

11  The  statement  of  facts  is  abridged,  and  part  of  the  opinions  of  Lindley, 
Li.  J.,  aud  Lopes,  L.  J.,  and  the  concurring  opinion  of  Kay,  L.  J.,  are  omitted. 


1210  TORTS  THROUGH   ACTS   OF  CONDITIONAL   LIABILITY         (Part  3 

but  to  all  Others  that  were  offered  to  the  public.  I  will  take  it  as 
sufficiently  pointed  at  the  plaintiff's  food  by  reason  of  its  being  affixed 
to  a  bottle  of  the  plaintiff's  food  when  sold,  and  that  it  does  disparage 
the  plaintiff's  goods  by  asserting  that  they  are  not  as  healthful  and 
as  nutritious  as  those  recommended  by  the  defendant.  The  question 
then  arises,  Has  it  been  proved  on  the  plaintiff's  own  evidence  that 
that  was  a  false  disparagement  of  the  plaintiff's  goods?     *     *     * 

I  am  not  satisfied  that  it  has  been  shewn  that  by  means  of  this 
advertisement  the  defendant  falsely  disparaged  the  plaintift''s  goods. 
But,  my  Lords,  assuming  that  he  did  so,  the  Court  of  Appeal  re- 
garded it  as  requisite  for  the  maintenance  of  the  action  that  something 
further  should  be  proved,  and  that  is  that  the  disparaging  statement 
has  caused  injury  to  or  is  calculated  to  injure  the  plaintiff'.  Upon 
that  there  is  a  complete  absence  of  evidence.  The  plaintiff  was  called, 
but  he  did  not  state  that  he  had  sustained  any  injury,  nor  did  he 
even  say  that  it  was  calculated  to  injure  him,  and  I  own  it  seems  to 
me  impossible,  in  the  absence  of  any  such  statement  or  evidence,  to 
say  that  it  is  a  case  in  which  such  must  be  the  necessary  consequence ; 
on  the  contrary,  speaking  for  myself,  I  should  doubt  very  much  wheth- 
er it  was  likely  to  be  the  consequence.  After  all,  the  advertisement 
is  of  a  very  common  description,  puffing,  it  may  be,  extremely  and 
in  an  exaggerated  fashion,  these  particular  goods,  Vance's  food.  That 
advertisement  was  outside  the  wrapper ;  inside  was  found  an  ad- 
vertisement of  Mellin's  food,  in  which  Mellin's  food  was  stated  to 
be  recommended  by  the  faculty  as  best  for  infants  and  invalids.  Why 
is  it  to  be  supposed  that  any  one  buying  this  bottle  at  the  chemist's 
would  be  led  to  believe  that  Mellin's  food  which  he  had  bought  was 
not  a  good  article  or  not  as  good  an  article  as  another,  merely  because 
a  person  who  obviously  was  seeking  to  push  a  rival  article  said  that 
his  article  was  better?  My  Lords,  why  should  people  give  such  a 
special  weight  to  this  anonymous  puff  of  Vance's  food,  obviously 
the  work  of  some  one  who  wanted  to  sell  it,  as  that  it  should  lead 
him  to  determine  to  buy  it  instead  of  Mellin's  food,  which  was  said 
to  be  recommended  by  the  faculty  as  the  best  for  infants  and  in- 
valids? I  confess  I  do  not  wonder  that  the  plaintiff'  did  not  insist 
that  he  had  sustained  injury  by  what  the  defendant  had  done.  There 
is  an  entire  absence  of  any  evidence  that  the  statement  complained 
of  either  had  injured  or  was  calculated  to  injure  the  plaintiff.  If 
so,  then  the  case  is  not  brought  even  within  the  definition  of  the  law 
which  Lindley,  L.  J.,  gives. 

My  Lords,  the  .learned  counsel  relied  upon  recent  cases  in  which 
an  injunction  has  been  granted  to  restrain  the  publication  of  a  libel, 
and  he  suggested  that  there  had  been  a  growth  of  equity  jurisprud- 
ence which  had  brought  within  its  ambit  a  class  of  cases  which  were 
previously  not  regarded  as  within  it.  But  when  the  case  in  which 
the  Court  of  Appeal  laid  down  that  an  injunction  might  be  granted 
to  restrain  the  publication  of  a  libel    is  looked  at,   it   will  be  seen 


Cll.  2)  TORTS  THROUGH  MALICE  1211 

that  the  decision  was  not  founded  upon  any  principle  or  rule  of  equity 
jurisprudence,  but  upon  the  fact  that  a  Court  of  Common  Law  could 
have  granted  such  an  injunction  in  an  action  of  libel,  and  that  since 
the  Judicature  Act  the  power  which  a  Court  of  Common  Law  pos- 
sessed in  that  respect  is  now  possessed  also  by  the  Court  of  Chancery. 
That  was  distinctly  the  ground  upon  which  the  judgment  was  founded, 
that  "the  79th  and  82d  sections  of  the  Common  Law  Procedure  Act 
1854  undoubtedly  conferred  on  the  Courts  of  Common  Law  the  pow- 
er, if  a  fit  case  should  arise,  to  grant  injunctions  at  any  stage  of  a 
cause  in  all  personal  actions  of  contract  or  tort,  with  no  limitation 
as  to  defamation" ;  and  then,  inasmuch  as  those  powers  are  now  pos- 
sessed by  the  Chancery  Division,  it  was  held  that  they  likewise  could 
in  such  cases  grant  an  injunction.  That  was  the  decision  in  Bonnard 
V,  Ferryman,  [1891]  2  Ch.  269. 

My  Lords,  obviously  to  call  for  the  exercise  of  that  power  it  would 
be  necessary  to  shew  that  there  was  an  actionable  wrong  well  laid, 
and  if  the  statement  only  shewed  a  part  of  that  which  was  necessary 
to  make  up  a  cause  of  action — that  is  to  say,  if  special  damage  was 
necessary  to  the  maintenance  of  the  action,  and  that  special  damage 
was  not  shewn,- — a  tort  in  the  eye  of  the  law  would  not  be  disclosed, 
the  case  would  not  be  within  those  provisions,  and  no  injunction  would 
be  granted.  I  think,  therefore,  for  these  reasons,  that  the  plaintiff 
would  not  be  entitled  to  an  injunction,  any  more  than  he  would  be 
entitled  to  maintain  an  action  unless  he  established  all  that  was 
necessary  to  make  out  that  a  tort  had  been  committed;  and  for  the 
reasons  which  I  have  given,  taking  the  Western  Counties  Manure 
Company  v.  Lawes  Chemical  Manure  Company,  L.  R.  9  Ex.  218, 
to  be  good  law,  he  has  not  brought  himself  within  it. 

But,  my  Lords,  I  cannot  help  saying  that  I  entertain  very  grave 
doubts  whether  any  action  could  be  maintained  for  an  alleged  dis- 
paragement of  another's  goods,  merely  on  the  allegation  that  the 
goods  sold  by  the  party  who  is  alleged  to  have  disparaged  his  com- 
petitor's goods  are  better  either  generally  or  in  this  or  that  particular 
respect  than  his  competitors'  are.  Of  course,  I  put  aside  the  ques- 
tion (it  is  not  necessary  to  consider  it)  whether  where  a  person  in- 
tending to  injure  another,  and  not  in  the  exercise  of  his  own  trade 
and  vaunting  his  own  goods,  has  maliciously  and  falsely  disparaged 
the  goods  of  another,  an  action  will  lie;  I  am  dealing  with  the  class 
of  cases  which  is  now  before  us,  where  the  only  disparagement  con- 
sists in  vaunting  the  superiority  of  the  defendant's  own  goods.  In 
Evans  V.  Harlow,  5  Q.  B.  624,  Lord  Denman  expressed  himself 
thus :  "The  gist  of  the  complaint  is  the  defendant's  telling  the  world 
that  the  lubricators  sold  by  the  plaintiff  were  not  good  for  their  pur- 
pose, but  wasted  the  tallow.  A  tradesman  offering  goods  for  sale 
exposes  himself  to  observations  of  this  kind,  and  it  is  not  by  averring 
them  to  be  'false,  scandalous,  malicious  and  defamatory'  that  the 
plaintiff   can    found   a   charge   of   libel   upon   them.      To   decide    so 


1212  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

would  open  a  very  wide  door  to  litigation,  and  might  expose  every 
man  who  said  his  goods  were  better  than  another's  to  the  risk  of  an 
action."  My  Lords,  those  observ^ations  seem  to  me  to  be  replete  with 
good  sense.  It  is  to  be  observed  that  Evans  v.  Harlow,  5  6.  B.  624, 
does  not  appear  to  have  been  decided  on  the  ground  merely  that 
there  was  no  allegation  of  special  damage.  The  only  judge  who  al- 
ludes to  the  absence  of  such  an  allegation  is  Patteson,  J.  No  refer- 
ence to  it  is  to  be  found  either  in  the  judgment  of  Lord  Denman  or 
in  the  judgment  of  Wightman,  J.,  the  other  two  judges  who  took  part 
in  that  decision ;  and  I  think  it  is  impossible  not  to  see  that,  as  Lord 
Denman  says,  a  very  wide  door  indeed  would  be  opened  to  litigation, 
and  that  the  courts  might  be  constantly  employed  in  trying  the  rel- 
ative merits  of  rival  productions,  if  an  action  of  this  kind  were  allowed. 

]\Ir.  Moulton  sought  to  distinguish  the  present  case  by  saying  that 
all  that  Lord  Denman  referred  to  was  one  tradesman  saying  that  his 
goods  were  better  than  his  rival's.  That,  he  said,  is  a  matter  of  opin- 
ion, but  whether  they  are  more  healthful  and  more  nutritious  is  a 
question  of  fact.  My  Lords,  I  do  not  think  it  is  possible  to  draw 
such  a  distinction.  The  allegation  of  a  tradesman  that  his  goods  are 
better  than  his  neighbour's  very  often  involves  only  the  consideration 
whether  they  possess  one  or  two  qualities  superior  to  the  other.  Of 
course  "better"  means  better  as  regard/s  tlie  purpose  icur  which  they  are 
intended,  and  the  question  of  better  or  worse  in  many  cases  depends 
simply  upon  one  or  two  or  three  issues  of  fact.  If  an  action  will 
not  lie  because  a  man  says  that  his  goods  are  better  than  his  neigh- 
bour's, it  seems  to  me  impossible  to  say  that  it  will  lie  because  he 
says  that  they  are  better  in  this  or  that  or  the  other  respect.  Just 
consider  what  a  door  would  be  opened  if  this  were  permitted.  That 
this  sort  of  puffing  advertisement  is  in  use  is  notorious;  and  we  see 
rival  cures  advertised  for  particular  ailments.  The  Court  would  then 
be  bound  to  inquire,  in  an  action  brought,  whether  this  ointment  or 
this  pill  better  cured  the  disease  which  it  was  alleged  to  cure — 
whether  a  particular  article  of  food  was  in  this  respect  or  that  bet- 
ter than  another.  Indeed,  the  Courts  of  law  would  be  turned  into 
a  machinery  for  advertising  rival  productions  by  obtaining  a  judicial 
determination  which  of  the  two  was  the  better.  As  I  said,  adver- 
tisements and  announcements  of  that  description  have  been  common 
enough;  but  the  case  of  Evans  v.  Harlow,  5  Q,  B.  624,  was  decided 
in  the  year  1844,  somewhat  over  half  a  century  ago,  and  the  fact 
that  no  such  action — unless  it  be  Western  Counties  ]\Ianure  Co.  v. 
Lawes  Chemical  Manure  Co.,  L.  R.  9  Ex.  218,  has  ever  been  main- 
tained in  the  Courts  of  Justice  is  very  strong  indeed  to  shew  that  it 
is  not  maintainable.  It  is,  indeed,  unnecessary  to  decide  the  point 
in  order  to  dispose  of  the  present  appeal. 

For  the  reasons  which  I  have  given  I  have  come  to  the  conclusion 
that  the  judgment  of  the  Court  below  cannot  be  sustained,  even  as- 
suming the  law  to  be  as  stated  by  the  learned  judges;    but  inasmuch 


Ch.  2)  TORTS  THROUGH   MALICE  1213 

as  the  case  is  one  of  great  importance  and  some  additional  colour 
would  be  lent  to  the  idea  that  an  action  of  this  description  was  main- 
tainable by  the  observations  in  the  Court  below,  I  have  thought  it  only 
right  to  express  my  grave  doubts  whether  any  such  action  could  be 
maintained  even  if  the  facts  brought  the  case  within  the  law  there 
laid  down. 

Upon  the  whole,  therefore,  I  think  that  the  judgment  of  Romer, 
J.,  was  right  and  ought  to  be  restored  and  that  this  appeal  should  be 
allowed,  with  the  usual  result  as  to  costs;  and  I  so  move  your  Lord- 
ships.^* 


IV.  DEcr;iT 

CHANDELOR  v.  LOPUS. 
(In  the  Exchequer  Chamber,  1603.    Cro.  Jac.  4,  79  Reprint,  ?,.) 

Action  upon  the  case.  Whereas  the  defendant  being  a  goldsmith, 
and  having  skill  in  jewels  and  precious  stones,  had  a  stone  which  he 
affirmed  to  Lopus  to  be  a  bezar-stone,  and  sold  it  to  him  for  one 
hundred  pounds ;  ubi  revera  it  was  not  a  bezar-stone :  the  defendant 
pleaded  not  guilty,  and  verdict  was  given  and  judgment  entered  for 
the  plaintiff  in  the  King's  Bench. 

But  error  was  thereof  brought  in  the  Exchequer  Chamber ;  be- 
cause the  declaration  contains  not  matter  sufficient  to  charge  the  de- 
fendant, viz.  that  he  warranted  it  to  be  a  bezar-stone,  or  that  he 
knew  that  it  was  not  a  bezar-stone ;  for  it  may  be,  he  himself  was 
ignorant  whether  it  were  a  bezar-stone  or  not. 

And  all  the  Justices  and  Barons  (except  Andi;rson)  held,  that  for 
this  cause  it  was  error :  for  the  bare  affirmation  that  it  was  a  bezar- 
stone,  without  warranting  it  to  be  so,  is  no  cause  of  action :  and 
although  he  knew  it  to  be  no  bezar-stone  it  is  not  material ;  for  every 
one  in  selling  his  wares  will  affirm  that  his  wares  are  good,  or  the 
horse  which  he  sells  is  sound ;  yet  if  he  does  not  warrant  them  to  be 
so,  it  is  no  cause  of  action,  and  the  warranty  ought  to  be  made  at 
the  same  time  of  the  sale ;  as  F.  N.  B.  94,  c,  and  98,  b ;  5  Hen.  7, 
pi.  41;  9  Hen.  6,  pi.  53;  12  Hen.  4,  pi.  1,  42  Ass.  8;  7  Hen.  4, 
pi.  15.  Wherefore,  forasmuch  as  no  warrant  is  alleged,  they  held  the 
declaration  to  be  ill. 

Anderson  to  the  contrary;  for  the  deceit  in  selling  it  for  a  bezar, 
whereas  it  was  not  so,  is  cause  of  action. 

But,  notwithstanding,  it  was  adjudged  to  be  no  cause,  and  the  judg- 
ment reversed.  ^^ 

12  i'art  of  the  Tx)rd  Chancellor's  opinion,  and  the  concurring  opinions  of 
Lords  Watson,  Macuaghten,  Morris,  and  Shand,  are  omitted.  Lord  Ashbourne 
concurred  in  the  judgment  proposed. 

13  See  the  note  to  1  Dyer,  752  (73  Reprint,  160,  161):  "F.opus  brought  au 
action  upon  the  case  against  Chandler,  and  showed,   that  whereas  the  de- 


1214  TORTS  THROUGH  ACTS   OP  CONDITIONAL  LIABILITY         (Part  3 

BAILY  V.  ]\IERRELL. 

(Court  of  King's  Bench,  1615.     3  Buist.  94,  81  Reprint,  81.) 

In  a  special  action  upon  the  case  for  a  deceit,  the  case  appears  to  be 
this :  The  plaintiff  being  a  common  carrier,  using  to  carry  wares  out 
of  Essex  into  Northamptonshire;  the  defendant  having  a  cade  of 
woad  to  be  carried,  came  unto  the  plaintiff',  and  bargained  with  him 
for  the  carriage  of  this,  and  by  agreement,  he  was  to  give  him  2s.  for 
every  hundred  weight  of  this,  and  being  demanded  by  the  plaintiff', 
how  many  hundred  weight  this  did  contain,  he  said  it  was  about  800 
weight ;  upon  this,  he  giving  credit  unto  him,  did  cause  this  to  be  put 
into  his  cart,  and  he  afterwards  perceiving  by  the  hardness  of  the 
draught,  that  his  horses  did  overdraw  themselves,  and  by  reason  of 
this  carriage  he  did  kill  two  of  his  horses,  and  then  he  did  presently 
weigh  the  same,  and  found  the  same  to  be  2,000  pound  weight,  and  so 
for  this  his  deceit  used,  by  reason  of  which  he  was  so  much  damnified ; 
for  his  remedy  herein,  he  brought  this  action,  to  which  the  defendant 
pleaded  non  culp.  All  this  matter  appearing  so  to  the  jury  upon  the 
trial,  and  the  loss  of  his  horses,  they  gave  a  verdict  for  the  plaintiff, 
and  20  marks  damages. 

DoDDERiDGE),  J.    Here  is  a  plain  default  in  the  carrier,  that  he  did 
not  weigh  this ;  if  he  had  carried  this  home  for  him,  he  would  then 
have  had  for  it  according  to  the  weight  of  it,  after  the  rate  of  2s.  a 
hundred   weight,  as  they  agreed  for,  and  that  there   it  ought  to  be   ■• 
weighed ;  he  himself  at  his  peril  ought  to  have  looked  unto  this  before,     'r 

ToTA  Curia  (absent  Coke,  Chief  Justice)  that  the  action  by  the 
plaintiff  lieth  not,  because  the  default  was  in  himself,  that  he  had  not 
weighed  this. 

By  the  rule  of  the  Court,  this  matter  to  stay  till  the  plaintiff  move 
the  same  again,  and  no  judgment  pronounced  one  way  or  other;  but 
the  plaintiff  perceiving  the  opinion  of  the  Court  to  be  against  him, 
never  moved  the  Court  again  herein.* 

fendant  was  a  goldsmith,  and  skilled  in  the  nature  of  precious  stones,  and 
being  possessed  of  a  stone  which  the  defendant  asserted  and  assured  the 
said  plaintiff  to  be  a  true  and  perfect  stone  called  a  bezoar  stone,  &c.  upon 
which  the  plaintiff  bought  it,  &c.  There  the  opinion  of  Popham  was,  that  if 
I  have  any  commodities  which  are  damaged  (whether  victuals  or  otherwise), 
and  I,  knowing  them  to  be  so,  sell  them  for  good,  and  affirm  them  to  be  so, 
an  action  upon  the  case  lies  for  the  deceit;  but  although  they  be  damaged, 
if  T,  knowing  not  that,  affirm  them  to  be  good,  still  no  action  lies,  without 
I  warrant  them  to  l>e  good."  And  see  T.ord  Fitzgerald's  comment  upon  this 
in  Derry  v.  Peek  (1SS9)  14  A,  C.  337,  357:  "The  action  seems  originally  to 
have  been  on  a  warranty  which  failed  in  fact,  as  there  had  been  no  wai'- 
ranty,  and  it  was  then  sought  to  support  it  as  an  action  for  deceit;  but  it 
was  not  alleged  in  the  count  that  the  defendant  knew  the  representation  to 
be  untrue.  It  was  in  reference  to  that  that  the  observation  of  Popham,  C.  J., 
was  made.  He  had  the  reputation  of  being  a  consummate  lawyer." 
♦The  opinions  of  Croke  and  llaughtou,  JJ.,  are  omitted. 


Ch.  2)  TORTS  THROUGH   MALICE  1215 

MORGAN  V.   BLISS. 
(Supreme  Judicial  Court  of  Massachusetts,  1806.     2  Mass.  111.) 

In  an  action  of  the  case  for  deceit,  the  plaintiffs  declare  that  Pliny 
Bliss  and  Charles  Wiley,  contriving  and  intending  to  cheat  and  de- 
fraud the  plaintiffs,  in  pursuance  of  such  intention  made  a  pretended 
promissory  note  subscribed  by  said  Pliny  for  the  sum  of  twenty- 
three  dollars,  payable  to  the  said  Charles,  which  note  the  said  Charles 
transferred  and  assigned  to  the  plaintiffs.  And  afterwards  the  said 
Charles  fraudulently  gave  to  the  said  Pliny,  and  the  said  Pliny  fraudu- 
lently received,  a  discharge  of  said  note. 

The  writ  having  been  served  upon  Pliny  Bliss  alone,  he  appeared 
and  defended,  and  at  the  adjourned  session  in  December  last,  upon 
the  general  issue  of  not  guilty,  joined  between  these  parties,  viz.,  the 
plaintiffs  and  Pliny  Bliss,  the  plaintiffs  gave  in  evidence  a  note,  dated 
August  22,  1803,  by  which  P.  Bliss,  for  value  received,  promised  C. 
Wiley  to  pay  him  23  dollars  on  demand.  Amos  Daniels,  a  subscribing 
witness  to  the  note,  testified  that  P.  Bliss  said,  at  the  time  the  note  was 
given,  it  was  to  ansv^-er  a  debt  of  one  J.  Bliss  to  the  plaintiffs,  C.  Wiley 
being  indebted  to  the  said  J.   Bliss. 

The  Court.     This  was  an  action  for  fraud,  and  the  evidence  was 

clearly  insuflicient  to  support  the  charge.     Here  was  no  evidence  of 

\^any  conspiracy  between  Bliss  and  Wiley;    nor  any  proof  of  the  plain- 

Avi  tiffs'  ever  having  released  their  demand  on  J.  Bliss,  (and  no  reason 

C\i    shown  for  not  producing  such  proof,)  or  of  their  having  in  any  other 

fy       way  given  a  valuable  consideration  for  the  note ;    and  without  such 

'^  "^  evidence,  what  damage  do  they  show  themselves  to  have  sustained  ? 

""^^^    There  is  nothing  left  in  the  case  for  the  jury  to  deliberate  upon. 

The  Chief  Justice  suggested  that  there  might  perhaps  be  a  foun- 
dation for  a  criminal  prosecution  for  conspiracy;  but  an  act  done  in 
pursuance  of  an  unlawful  intent,  and  without  occasioning  actual 
damage,  is  no  ground  for  a  civil  action. 

Nonsuit  not  set  aside. 


PASLEY  et  al.  v.  FREEMAN. 

(Court  of  King's  Bencli,  17S9.     3  Term  R.  51,  1  R.  R.  634,  100  Reprint,  450.) 

This  was  an  action  in  the  nature  of  a  writ  of  deceit ;  to  which  the 
defendant  pleaded  the  general  issue.  And  after  a  verdict  for  the 
plaintiff's  on  the  third  count,  a  motion  was  made  in  arrest  of  judg- 
ment. 

The  third  count  was  as  follows: 

"And  whereas  also  the  said  Joseph  Freeman,  afterwards,  to  wit,  on  the 
21st  day  of  Februai-y  in  the  year  of  our  Lord  1787,  at  London  aforesaid,  in 
the  parish  und  ward  aforesaid,  further  intending  to  deceive  and  defraud 
the  said  John  Tasley  and  Edward,  did  wrongfully  and  deceitfully  encourage 


121G  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

and  persuade  tlie  said  John  Pasley  and  Edward,  to  sell  and  deliver  to  the 
said  John  Christopher  Falch  divers  other  goods,  wares,  and  merchandises,  to 
wit,  10  other  bags  of  cochineal  of  great  value  to  wit,  of  the  value  of  £2&!4. 
IGs.  Id.  upon  trust  and  credit;  and  did  for  that  purpose  then  and  there 
falsely,  deceitfully,  and  fraudulently  assert  and  affirm  to  the  said  John  Pas- 
ley  and  Edward,  that  the  said  John  Christopher  then  and  there  was  a  person 
safely  to  be  trusted  and  given  credit  to  in  that  respect ;  and  did  thereby  false- 
ly, fraudulently,  and  deceitfully,  cause  and  proc-ure  the  said  John  Pasley  and 
Edward  to  sell  and  deliver  the  said  last-mentioned  goods,  wares,  and  mer- 
chandizes, upon  trust  and  ci-edit,  to  the  said  John  Christopher ;  and  in 
fact  they  the  said  John  Pasley  and  Edward,  confiding  in  and  giving  credit  to 
the  said  last-mentioned  assertion  and  affirmation  of  the  said  Joseph,  and 
believing  the  same  to  be  true,  and  not  knowing  the  contrary  thereof,  did 
afterwards,  to  wit,  on  the  2Sth  day  of  February  in  the  year  of  our  Lord 
1787  at  lx)ndon  aforesaid,  in  the  parish  and  ward  aforesaid,  sell  and  deliver 
the  said  last-mentioned  goods,  wares,  and  merchandizes,  upon  trust  and  credit, 
to  the  said  John  Christopher ;  whereas  in  truth  and  in  fact,  at  the  time  of 
the  said  Joseph's  making  his  said  last-mentioned  assertion  and  affirmation, 
the  said  John  Christopher  was  not  then  and  there  a  person  safely  to  be  trust- 
ed and  given  credit  to  in  that  respect,  and  the  said  Joseph  well  knew  the 
same,  to  wit,  at  London  aforesaid,  in  the  parish  and  ward  aforesaid.  And  the 
said  John  Pasley  and  Edward  further  say,  that  the  said  John  Christopher 
hath  not,  nor  hath  any  other  person  on  his  behalf,  paid  to  the  said  John 
Pasley  and  Edward,  or  either  of  them,  the  said  sum  of  £2634.  16s.  Id.  last- 
mentioned,  or  any  part  thereof,  for  the  said  last-mentioned  goods,  wares,  and 
merchandizes ;  but  on  the  contrary  the  said  John  Christopher  then  was,  and 
still  is,  wholly  unable  to  pay  the  said  sum  of  money  last  mentioned,  or  any 
part  thereof,  to  the  said  John  Pasley  and  Edward,  to  wit,  at  London  afore- 
said, in  the  parish  and  ward  aforesaid ;  and  the  said  John  Pasley  and  Edward 
aver  that  the  said  Joseph  falsely  and  fraudulently  deceived  them  in  this, 
that  at  tlie  time  of  his  making  his  said  last-mentioned  assertion  and  affirma- 
tion, the  said  John  Christopher  was  not  a  person  safely  to  be  trusted  or 
given  credit  to  in  that  respect  as  aforesaid,  and  the  said  Joseph  tlien  well 
knew  the  same,  to  wit,  at  London  aforesaid,  in  the  parish  and  ward  afore- 
said ;  by  reason  of  which  said  last-mentioned  false,  fraudulent,  and  deceit- 
ful assertion  and  affirmation  of  the  said  Joseph  the  said  John  Pasley  and 
Edward  have  been  deceived  and  imposed  upon,  and  have  wholly  lost  the 
said  last-mentioned  goods,  wares,  and  merchandizes,  and  the  value  there- 
of, to  wit,  at  London  aforesaid  in  the  parish  and  ward  aforesaid;  to  the 
damage,"  &c. 

Application  was  first  made  for  a  new  trial,  which,  after  argument, 
was  refused :  and  then  this  motion  in  arrest  of  judgment.  Wood 
argued  for  the  plaintiffs,  and  Rtissell  for  the  defendant,  in  the  last 
term:  but  as  the  Court  went  so  fully  into  this  subject  in  giving  their 
opinions,  it  is  unnecessary  to  give  the  arguments  at  the  Bar. 

The  Court  took  time  to  consider  of  this  inatter  and  now  delivered 
their  opinions   seriatim. 

Duller,  J.  The  foundation  of  this  action  is  fraud  and  deceit  in 
the  defendant,  and  damage  to  the  plaintiffs.  And  the  question  is, 
whether  an  action  thus  founded  can  be  sustained  in  a  Court  of  Law? 
Fraud  without  damage,  or  damage  without  fraud,  gives  no  cause  of 
action ;  but  where  these  two  concur,  an  action  lies.  Per  Croke,  J., 
3  Bulst.  95.  But  it  is  contended,  that  this  was  a  bare  naked  lie ;  that, 
as  no  collusion  with  Falch  is  charged,  it  does  not  amount  to  a  fraud  : 
and,  if  there  were  any  fraud,  the  nature  of  it  is  not  stated.  And  it 
was  supposed  by  the  counsel  who  originally  made  the  motion,  that  no 
action  could  be  maintained,  unless  the  defendant,  who  made  this  false 


Ch.  2)  TORTS   THROUGH    MALICE  1217 

assertion,  had  an  interest  in  so  doing.  I  agree  that  an  action  cannot 
be  supported  for  telling  a  bare  naked  lie ;  but  that  I  define  to  be, 
saying  a  thing  which  is  false,  knowing  or  not  knowing  it  to  be  so, 
and  without  any  design  to  injure,  cheat,  or  deceive,  another  person. 
Every  deceit  comprehends  a  lie ;  but  a  deceit  is  more  than  a  lie  on 
account  of  the  view  with  which  it  is  practised,  its  being  coupled  with 
some  dealing,  and  the  injury  which  it  is  calculated  to  occasion,  and 
does  occasion,  to  another  person.  Deceit  is  a  very  extensive  head  in 
the  law ;  and  it  will  be  proper  to  take  a  short  view  of  some  of  the 
cases  which  have  existed  on  the  subject,  to  see  how  far  the  Courts 
have  gone,  and  what  are  the  principles  upon  which  they  have  de- 
cided.    *     *     * 

These  cases  then  are  so  far  from  being  authorities  against  the  pres- 
ent action,  that  they  shew  that,  if  there  be  fraud  or  deceit,  the  action 
will  lie;  and  that  knowledge  of  the  falsehood  of  thing  asserted  is 
fraud  and  deceit.  Collusion  then  is  not  necessary  to  constitute  fraud. 
In  the  case  of  a  conspiracy,  there  must  be  a  collusion  between  two  or 
more  to  support  an  indictment :  but  if  one  man  alone  be  guilty  of 
an  offence,  which,  if  practised  by  two,  would  be  the  subject  of  an  in- 
dictment for  a  conspiracy,  he  is  civilly  liable  in  an  action  for  repara- 
tion of  damages  at  the  suit  of  the  person  injured.  That  knowledge 
of  the  falsehood  of  the  thing  asserted  constitutes  fraud,  though 
there  be  no  collusion,  is  further  proved  by  the  case  of  Risney  v.  Selby, 
Salk.  211,  where,  upon  a  treaty  for  the  purchase  of  a  house,  the  de- 
fendant fraudulently  affirmed  that  the  rent  was  £30  per  annum,  when 
it  was  only  £20  per  annum,  and  the  plaintiff  had  his  judgment;  for 
the  value  of  the  rent  is  a  matter  which  lies  in  the  private  knowledge 
of  the  landlord  and  tenant,  and  if  they  affirm  the  rent  to  be  more 
than  it  is,  the  purchaser  is  cheated,  and  ought  to  have  a  remedy  for  it. 
No  collusion  was  there  stated,  nor  does  it  appear  that  the  tenant 
was  ever  asked  a  question  about  the  rent,  and  yet  the  purchaser  might 
have  applied  to  him  for  information  ;  but  the  judgment  proceeded 
wholly  upon  the  ground  that  the  defendant  knew  that  what  he  as- 
serted was  false.  And  by  the  words  of  the  book  it  seems  that,  if  the 
tenant  had  said  the  same  thing,  he  also  would  have  been  liable  to  an 
action.  If  so,  that  would  be  an  answer  to  the  objection,  that  the  de- 
fendant in  this  case  had  no  interest  in  the  assertion  which  he  made. 
But  I  shall  not  leave  this  point  on  the  dictum  or  inference  which  may 
be  collected  from  that  case.  If  A.  by  fraud  and  deceit  cheat  B.  out 
of  £1000,  it  makes  no  difference  to  B.  whether  A.,  or  any  other  per- 
son, pockets  that  £1000.  He  has  lost  his  money  and  if  he  can  fix 
fraud  upon  A.,  reason  seems  to  say  that  he  has  a  right  to  seek  satis- 
faction against  him.     *     *     * 

The  gist  of  the  action  is  fraud  and  deceit,  and  if  that  fraud  and 
deceit  can  be  fixed  by  evidence  on  one  who  had  no  interest  in  his  iniqui- 
ty, it  proves  his  malice  to  be  the  greater.  But  it  was  objected  to  this 
Hepb. Torts — 77 


1218  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

declaration,  that  if  there  were  any  fraud,  the  nature  of  it  is  not  stated : 
to  this  the  declaration  itself  is  so  direct  an  answer,  that  the  case  admits 
of  no  other.  The  fraud  is,  that  the  defendant  procured  the  plaintiffs 
to  sell  goods  on  credit  to  one  whom  they  would  not  otherwise  have 
trusted,  by  asserting  that  which  he  knew  to  be  false.  Here  then  is 
the  fraud,  and  the  means  by  which  it  was  committed ;  and  it  was  done 
with  a  view  to  enrich  Falch  by  empoverishing  the  plaintiffs,  or,  in 
other  words,  by  cheating  the  plaintiffs  out  of  their  goods.  The  cases 
which  I  have  stated,  and  Sid.  146,  and  1  Keb.  522,  prove  that  the 
declaration  states  more  than  is  necessary ;  for  fraudulenter  without 
sciens,  or  sciens  without  fraudulenter,  would  be  sufficient  to  support 
the  action.  But  as  Mr.  J.  Twisden  said  in  that  case,  the  fraud  must  be 
proved.  The  assertion  alone  will  not  maintain  the  action  ;  but  the 
plaintiff  must  go  on  to  prove  that  it  was  false,  and  that  the  defendant 
knew  it  to  be  so :  by  what  means  that  proof  is  to  be  made  out  in  evi- 
dence need  not  be  stated  in  the  declaration.  Some  general  arguments 
were  urged  at  the  Bar,  to  shew  that  mischiefs  and  inconveniences 
would  arise  if  this  action  were  sustained ;  for  if  a  man,  who  is  asked 
a  question  respecting  another's  responsibility,  hesitate,  or  is  silent,  he 
blasts  the  character  of  the  tradesman :  and  if  he  say  that  he  is  in- 
solvent, he  may  not  be  able  to  prove  it.  But  let  us  see  what  is  con- 
tended for :  it  is  nothing  less  than  that  a  man  may  assert  that  which 
he  knows  to  be  false,  and  thereby  do  an  everlasting  injury  to  his 
neighbour,  and  yet  not  be  answerable  for  it.  This  is  as  repugnant  to 
law  as  it  is  to  morality.  Then  it  is  said  that  the  plaintiffs  had  no 
right  to  ask  the  question  of  the  defendant.  But  I  do  not  agree  in 
that;  for  the  plaintiffs  had  an  interest  in  knowing  what  the  credit  of 
Falch  was.  It  was  not  the  inquiry  of  idle  curiosity,  but  it  was  to 
govern  a  very  extensive  concern.  The  defendant  undoubtedly  had 
his  option  to  give  an  answer  to  the  question,  or  not :  but  if  he  gave 
none,  or  said  he  did  not  know,  it  is  impossible  for  any  Court  of  Jus- 
tice to  adopt  the  possible  inferences  of  a  suspicious  mind  as  a  ground 
for  grave  judgment.  All  that  is  required  of  a  person  in  the  defend- 
ant's situation  is,  that  he  shall  give  no  answer,  or  that  if  he  do,  he 
shall  answer  according  to  the  truth  as  far  as  he  knows.  The  reason- 
ing in  the  case  of  Coggs  v.  Bernard  [2  Ld.  Raymond,  909]  which  was 
cited  by  the  plaintiff's  counsel,  is  I  think  very  applicable  to  this  part 
of  the  case.  If  the  answer  import  insolvency,  it  is  not  necessary  that 
the  defendant  should  be  able  to  prove  that  insolvency  to  a  jury;  for 
the  law  protects  a  man  in  giving  that  answer,  if  he  does  it  in  con- 
fidence and  without  malice.  No  action  can  be  maintained  against 
him  for  giving  such  an  answer  unless  express  malice  can  be  proved. 
From  the  circumstance  of  the  law  giving  that  protection,  it  seems  to 
follow,  as  a  necessary  consequence,  that  the  law  not  only  gives  sanc- 
tion to  the  question,  but  requires  that,  if  it  be  answered  at  all,  it  shall 
be  answered  honestly.  There  is  a  case  in  the  books,  which,  though 
not  much  to  be  relied  on,  yet  serves  to  shew  that  this  kind  of  con- 


Ch.  2)  TORTS  THROUGH   MALICE  1210 

duct  has  never  been  thong-ht  innocent  in  Westminster  Hall.  In  R.  v. 
Gunston,  1  Str.  583,  the  defendant  was  indicted  for  pretending  that 
a  person  of  no  reputation  was  Sir  J.  Thornycraft,  whereby  the  pros- 
ecutor was  induced  to  trust  him ;  and  the  Court  refused  to  grant  a 
certiorari,  unless  a  special  ground  were  laid  for  it.  If  the  assertion 
in  that  case  had  been  wholly  innocent,  the  Court  would  not  have 
hesitated  a  moment.  How  indeed  an  indictment  could  be  maintained 
for  that.  I  do  not  well  understand ;  nor  have  I  learnt  what  became 
of  it.  The  objection  to  the  indictment  is,  that  it  was  merely  a  pri- 
vate injury:  but  that  is  no  answer  to  an  action.  And  if  a  man  will 
wickedly  assert  that  which  he  knows  to  be  false,  and  thereby  draws 
his  neighbour  into  a  heavy  loss,  even  though  it  be  under  the  specious 
pretence  of  serving  his  friend,  I  say  ausis  talibus  istis  non  jura  sub- 
serviunt/* 


DERRY  et  al.  v.  SIR  HENRY  WILLIAM  PEEK. 

(House  of  Lords,  1889.     14  App.  Cas.  337.) 

Appeal  from  a  decision  of  the  Court  of  Appeal.  The  facts  are 
set  out  at  length  in  the  report  of  the  decisions  below,  37  Ch.  D.  54L 
For  the  present  report  the  following  summary  will  suffice: 

By  a  special  Act  (45  &  46  Vict.  c.  159)  the  Plymouth,  Devonport 
and  District  Tramways  Company  was  authorized  to  make  certain 
tramways. 

By  section  35  the  carriages  used  on  the  tramways  might  be  moved 
by  animal  power  and,  with  the  consent  of  the  Board  of  Trade,  by 
steam  or  any  mechanical  power  for  fixed  periods  and  subject  to  the 
regulations  of  the  Board. 

By  section  34  of  the  Tramways  Act  1870  (33  &  34  Vict.  c.  78), 
which  section  was  incorporated  in  the  said  special  Act,  "all  carriages 
used  on  any  tramway  shall  be  moved  by  the  power  prescribed  by  the 
special  Act,  and  where  no  such  power  is  prescribed,  by  animal  power 
only." 

In  February,  1883,  the  appellants  as  directors  of  the  company  issued 
a  prospectus  containing  the  following  paragraph : 

"One  great  feature  of  this  undertaking,  to  which  considerable  im- 
portance should  be  attached,  is,  that  by  the  special  Act  of  Parliament 
obtained,  the  company  has  the  right  to  use  steam  or  mechanical  mo- 
tive power,  instead  of  horses,  and  it  is  fully  expected  that  by  means 
of  this  a  considerable  saving  will  result  in  the  working  expenses  of 
the  line  as  compared  with  other  tramways  worked  by  horses." 

Soon  after  the  issue  of  the  prospectus  the  respondent,  relying,  as 
he  alleged,  upon  the  representations  in  this  paragraph  and  believing 

1*  i'arts  of  the  opinion  of  Buller,  J.,  and  all  of  the  opinions  of  Grose  and 
Asliliurst,  JJ.,  and  Lord  Kenyon,  C.  J.,  are  omitted. 


1220  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

that  the  company  had  an  absolute  right  to  use  steam  and  other  mechan- 
ical power,  applied  for  and  obtained  shares  in  the  company. 

The  company  proceeded  to  make  tramways,  but  the  Board  of  Trade 
refused  to  consent  to  the  use  of  steam  or  mechanical  power  except 
on  certain  portions  of  the  tramways. 

In  the  result  the  company  was  wound  up,  and  the  respondent  in 
1885  brought  an  action  of  deceit  against  the  appellants  claiming  dam- 
ages for  the  fraudulent  misrepresentations  of  the  defendants  whereby 
the  plaintiff  was  induced  to  take  shares  in  the  company. 

At  the  trial  before  Stirling,  J.,  the  plaintiff  and  defendants  were 
called  as  witnesses.  The  effect  given  to  their  evidence  in  this  House 
will  appear  from  the  judgments  of  noble  and  learned  Lords. 

Stirling,  J.,  dismissed  the  action ;  but  that  decision  was  reversed 
by  the  Court  of  Appeal  (Cotton,  L.  J.,  Sir  J.  Hannen,  and  Lopes, 
L.  J.)  who  held  that  the  defendants  were  liable  to  make  good  to  the 
plaintiff  the  loss  sustained  by  his  taking  the  shares,  and  ordered  an 
inquiry,  Z7  Ch.  D.  541,  591.  Against  this  decision  the  defendants 
appealed. 

Lord  Bramwe^ll.  My  Lords,  I  am  of  opinion  that  this  judgment 
should  be  reversed.  I  am  glad  to  come  to  this  conclusion ;  for,  as 
far  as  my  judgment  goes,  it  exonerates  five  men  of  good  character 
and  conduct  from  a  charge  of  fraud,  which,  with  all  submission,  I 
think  wholly  unfounded,  a  charge  supported  on  such  materials  as  to 
make  all  character  precarious.  I  hope  this  will  not  be  misunderstood ; 
that  promoters  of  companies  will  not  suppose  that  they  can  safely 
make  inaccurate  statements  with  no  responsibility.  I  should  much 
regret  any  such  notion ;  for  the  general  public  is  so  at  the  mercy  of 
company  promoters,  sometimes  dishonest,  sometimes  over  sanguine, 
that  it  requires  all  the  protection  that  the  law  can  give  it.  Particu- 
larly should  I  regret  if  it  was  supposed  that  I  did  not  entirely  disap- 
prove of  the  conduct  of  those  directors  who  accepted  their  qualifica- 
tion from  the  contractor  or  intended  contractor.  It  is  wonderful  to 
me  that  honest  men  of  ordinary  intelligence  cannot  see  the  impropriety 
of  this.  It  is  obvious  that  the  contractor  can  only  give  this  qualifica- 
tion because  he  means  to  get  it  back  in  the  price  given  for  the  work  he 
is  to  do.  That  price  is  to  be  fixed  by  the  directors  who  have  taken 
his  money.  They  are  paid  by  him  to  give  him  a  good  price,  as  high 
a  price  as  they  can,  while  their  duty  to  their  shareholders  is  to  give 
him  one  as  low  as  they  can. 

But  there  is  another  thing.  The  public,  seeing  these  names,  may 
well  say,  "These  are  respectable  and  intelligent  men  who  think  well 
enough  of  this  scheme  to  adventure  their  money  in  it ;  we  will  do 
the  same,"  little  knowing  that  those  thus  trusted  had  made  themselves 
safe  against  loss  if  the  thing  turned  out  ill,  while  they  might  gain  if  it 
was  successful.  I  am  glad  to  think  that  Mr.  Wilde,  a  member  of  my 
old  profession,  was  not  one  of  those  so  bribed.  The  only  shade  of 
doubt  I  have  in  the  case  is,  that  this  safety  from  loss  in  the  directors 


Ch.  2)  TORTS  THROUGH  MALICE  1221 

may  have  made  them  less  careful  in  judging  of  the  truth  of  any  state- 
ments they  have  made. 

There  is  another  matter  I  wish  to  dispose  of  before  going  into 
the  particular  facts  of  the  case.  I  think  we  need  not  trouble  ourselves 
about  "legal  fraud,"  nor  whether  it  is  a  good  or  bad  expression ;  be- 
cause I  hold  that  actual  fraud  must  be  proved  in  this  case  to  make 
the  defendants  liable,  and,  as  I  understand,  there  is  never  any  occa- 
sion to  use  the  phrase  "legal  fraud"  except  when  actual  fraud  cannot 
be  established.  "Legal  fraud"  is  only  used  when  some  vague  ground 
of  action  is  to  be  resorted  to,  or,  generally  speaking,  when  the  person 
using  it  will  not  take  the  trouble  to  find,  or  cannot  find,  what  duty  has 
been  violated  or  right  infringed,  but  thinks  a  claim  is  somehow  made 
out.  With  the  most  sincere  respect  for  Sir  J.  Hannen  I  cannot  think 
the  expression  "convenient."  I  do  not  think  it  is  "an  explanation 
wdiich  very  clearly  conveys  an  idea" ;  at  least,  I  am  certain  it  does  not 
to  my  mind.  I  think  it  a  mischievous  phrase,  and  one  which  has 
contributed  to  what  I  must  consider  the  erroneous  decision  in  this 
case.  But,  with  these  remarks,  I  have  done  with  it,  and  will  proceed 
to  consider  whether  the  law  is  not  that  actual  fraud  must  be  proved, 
and  whether  that  has  been  done. 

Now,  I  really  am  reluctant  to  cite  authorities  to  shew  that  actual 
fraud  must  be  established  in  such  a  case  as  this.  It  is  one  of  the  first 
things  one  learned,  and  one  has  never  heard  it  doubted  until  recently. 
I  am  very  glad  to  think  that  my  noble  and  learned  friend  (Lord  Her- 
schell)  has  taken  the  trouble  to  go  into  the  authorities  fully ;  but  to 
some  extent  I  deprecate  it,  because  it  seems  to  me  somewhat  to  come 
within  the  principle  Qui  s'excuse  s'accuse.  When  a  man  makes  a  con- 
tract with  another  he  is  bound  by  it ;  and,  in  making  it,  he  is  bound  not 
to  bring  it  about  by  fraud.  W'arrantizando  vendidit  gives  a  cause  of 
action  if  the  warranty  is  broken.  Knowingly  and  fraudulently  stating 
a  material  untruth  which  brings  about,  wholly  or  partly,  the  contract, 
also  gives  a  cause  of  action.  To  this  may  now  be  added  the  equitable 
rule  (which  is  not  in  question  here),  that  a  material  misrepresentation, 
though  not  fraudulent,  may  give  a  right  to  avoid  or  rescind  a  contract 
where  capable  of  such  rescission.  To  found  an  action  for  damages 
there  must  be  a  contract  and  breach,  or  fraud.  The  statement  of  claim 
in  this  case  states  fraud.  Of  course  that  need  not  be  proved  merely 
because  it  is  stated.  But  no  one  ever  heard  of  or  saw  a  statement  of 
claim  or  declaration  for  deceit  without  it.  There  is  not  an  authority 
at  common  law,  or  by  a  common  law  lawyer,  to  the  contrary ;  none  has 
been  cited,  though  there  may  be  some  incautious,  hesitating  expres- 
sions which  point  that  way.  Every  case  from  the  earliest  in  Comyns' 
Digest  to  the  present  day  alleges  it.  Further,  the  learned  judges  of 
the  Court  of  Appeal  hardly  deny  it.  There  is  indeed  an  opinion  to  the 
contrary  of  the  late  Master  of  the  Rolls,  but  it  must  be  remembered 
that  his  knowledge  of  actions  of  deceit  was  small,  if  any.     *     *     * 

Lord  Herschell.     My  Lords,  in  the  statement  of  claim,  in  this 


1222  TORTS  THROUGH  ACTS  OP  CONDITIONAL   LIABILITY         (Part  3 

action  the  respondent,  who  is  the  plaintiff,  alleges  that  the  appellants 
made  in  a  prospectus  issued  by  them  certain  statements  which  were 
untrue,  that  they  well  knew  that  the  facts  were  not  as  stated  in  the 
prospectus,  and  made  the  representations  fraudulently,  and  with  the 
view  to  induce  the  plaintiff  to  take  shares  in  the  company. 

"This  action  is  one  which  is  commonly  called  an  .action  of  deceit,  a 
mere  common  law  action."  This  is  the  description  of  it  given  by  Cot- 
ton, L.  J.,  in  delivering  judgment.  I  think  it  important  that  it  should 
be  borne  in  mind  that  such  an  action  differs  essentially  from  one 
brought  to  obtain  rescission  of  a  contract  on  the  ground  of  misrepre- 
sentation of  a  material  fact.  The  principles  which  govern  the  two  ac- 
tions dift'er  widely.  Where  rescission  is  claimed  it  is  only  necessary 
to  prove  that  there  was  misrepresentation ;  then,  however  honestly  it 
may  have  been  made,  however  free  from  blame  the  person  who  made 
it,  the  contract,  having  been  obtained  by  misrepresentation,  cannot 
stand.  In  an  action  of  deceit,  on  the  contrary,  it  is  not  enough  to  es- 
tablish misrepresentation  alone;  it  is  conceded  on  all  hands  that  some- 
thing more  must  be  proved  to  cast  liability  upon  the  defendant,  though 
it  has  been  a  matter  of  controversy  what  additional  elements  are  req- 
uisite. I  lay  stress  upon  this  because  observations  made  by  learned 
judges  in  actions  for  rescission  have  been  cited  and  much  relied  upon 
at  the  bar  by  counsel  for  the  respondent.  Care  must  obviously  be 
observed  in  applying  the  language  used  in  relation  to  such  actions  to 
an  action  of  deceit.  Even  if  the  scope  of  the  language  used  extend 
beyond  the  particular  action  which  was  being  dealt  with  it  must  be  re- 
membered that  the  learned  judges  were  not  engaged  in  determining 
what  is  necessary  to  support  an  action  of  deceit,  or  in  discriminating 
with  nicety  the  elements  which  enter  into  it. 

There  is  another  class  of  actions  which  I  must  refer  to  also  for 
the  purpose  of  putting  it  aside.  I  mean  those  cases  where  a  person 
within  whose  special  province  it  lay  to  know  a  particular  fact,  has 
given  an  erroneous  answer  to  an  inquiry  made  with  regard  to  it  by  a 
person  desirous  of  ascertaining  the  fact  for  the  purpose  of  determining 
his  course  accordingly,  and  has  been  held  bound  to  make  good  the  assur- 
ance he  has  given.  Burrowes  v.  Lock,  10  Ves.  470,  may  be  cited  as  an 
example,  where  a  trustee  had  been  asked  by  an  intended  lender,  upon 
the  security  of  a  trust  fund,  whether  notice  of  any  prior  incumbrance 
upon  the  fund  had  been  given  to  him.  In  cases  like  this  it  has  been 
said  that  the  circumstance  that  the  answer  was  honestly  made  in  the 
belief  that  it  was  true  aft'ords  no  defence  to  the  action.  Lord  S'el- 
borne  pointed  out  in  Brownlie  v.  Campbell,  5  App.  Cas.  at  p.  935,  that 
these  cases  were  in  an  altogether  different  category  from  actions  to  re- 
cover damages  for  false  representation,  such  as  we  are  now  dealing 
with. 

One  other  observation  I  have  to  make  before  proceeding  to  consider 
the  law  which  has  been  laid  down  by  the  learned  judges  in  the  Court  of 
Appeal  in  the  case  before  your  Lordships.     "An  action  of  deceit  is  a 


Ch.  2)  TORTS  THROUGH   MALICE  1223 

common  law  action,  and  must  be  decided  on  the  same  principles, 
whether  it  be  brought  in  the  Chancery  Division  or  any  of  the  Common 
Law  Divisions,  there  being,  in  my  opinion,  no  such  thing  as  an  equi- 
table action  for  deceit."  This  was  the  language  of  Cotton,  L.  J.,  in  Ark- 
wright  V.  Newbould,  17  Ch.  D.  320.  It  was  adopted  by  Lord  Black- 
burn in  Smith  v.  Chadwick,  9  App.  Cas.  193,  and  is  not,  I  think,  open 
to  dispute. 

In  the  Court  below  Cotton,  L.  J.,  said:  "What  in  my  opinion  is  a 
correct  statement  of  the  law  is  this,  that  where  a  man  makes  a  state- 
ment to  be  acted  upon  by  others  which  is  false,  and  which  is  known 
by  him  to  be  false,  or  is  made  by  him  recklessly,  or  without  care 
whether  it  is  true  or  false,  that  is,  without  any  reasonable  ground  for 
believing  it  to  be  true,  he  is  liable  in  an  action  of  deceit  at  the  suit  of 
anyone  to  whom  it  was  addressed  or  anyone  of  the  class  to  whom  it 
was  addressed  and  who  was  materially  induced  by  the  misstatement 
to  do  an  act  to  his  prejudice."  About  much  that  is  here  stated  there 
cannot,  I  think,  be  two  opinions.  But  when  the  learned  Lord  Justice 
speaks  of  a  statement  made  recklessly  or  without  care  whether  it  is 
true  or  false,  that  is  without  any  reasonable  ground  for  believing  it  to 
be  true,  I  find  myself,  with  all  respect,  unable  to  agree  that  these  are 
convertible  expressions.  To  make  a  statement  careless  whether  it  be 
true  or  false,  and  therefore  without  any  real  belief  in  its  truth,  appears 
to  me  to  be  an  essentially  different  thing  from  making,  through  want 
of  care,  a  false  statement,  which  is  nevertheless  honestly  believed  to 
be  true.  And  it  is  surely  conceivable  that  a  man  may  believe  that  what 
he  states  is  the  fact,  though  he  has  been  so  wanting  in  care  that  the 
Court  may  think  that  there  were  no  sufficient  grounds  to  warrant  his 
belief.  I  shall  have  to  consider  hereafter  whether  the  want  of  reason- 
able ground  for  believing  the  statement  made  is  sufiicient  to  support  an 
action  of  deceit.  I  am  only  concerned  for  the  moment  to  point  out 
that  it  does  not  follow  that  it  is  so,  because  there  is  authority  for  say- 
ing that  a  statement  made  recklessly,  without  caring  whether  it  be 
true  or  false,  affords  sufficient  foundation  for  such  an  action.     *     *     * 

It  will  thus  be  seen  that  all  the  learned  judges  concurred  in  think- 
ing that  it  was  sufficient  to  prove  that  the  representations  made  were 
not  in  accordance  with  fact,  and  that  the  person  making  them  had  no 
reasonable  ground  for  believing  them.  They  did  not  treat  the  absence 
of  such  reasonable  ground  as  evidence  merely  that  the  statements  were 
made  recklessly,  careless  whether  they  were  true  or  false,  and  without 
belief  that  they  were  true,  but  they  adopted  as  the  test  of  liability,  not 
the  existence  of  belief  in  the  truth  of  the  assertions  made,  but  whether 
the  belief  in  them  was  founded  upon  any  reasonable  grounds.  It  will 
be  seen,  further,  that  the  Court  did  not  purport  to  be  establishing  any 
new  doctrine.  They  deemed  that  they  were  only  following  the  cases 
already  decided,  and  that  the  proposition  which  they  concurred  in  lay- 
ing down  was  established  by  prior  authorities.  Indeed,  Lopes,  L.  J., 
expressly  states  the  law  in  this  respect  to  be  well  settled.     This  ren- 


1224  TORTS  THROUGH  ACTS   OF  CONDITIONAL   LIABILITY         (Part  3 

ders  a  close  and  critical  examination  of  the  earlier  authorities  neces- 
sary. 

I  need  go  no  further  back  than  the  leading  case  of  Pasley  v.  Free- 
man, 2  Smith's  L.  C.  74.  If  it  was  not  there  for  the  first  time  held 
that  action  of  deceit  would  lie  in  respect  of  fraudulent  representa- 
tions against  a  person  not  a  party  to  a  contract  induced  by  them,  the 
law  was  at  all  events  not  so  well  settled  but  that  a  distinguished  Judge, 
Grose,  J.,  differing  from  his  Brethren  on  the  Bench,  held  that  such  an 
action  was  not  maintainable.  Buller,  J.,  who  held  that  the  action  lay, 
adopted  in  relation  to  it  the  language  of  Croke,  J.,  in  3  Bulstrode,  95, 
who  said :  "Fraud  without  damage,  or  damage  without  fraud,  gives 
no  cause  of  action,  but  where  these  two  concur  an  action  lies."    *    *    * 

Having  now  drawn  attention,  I  believe,  to  all  the  cases  having  a 
material  bearing  upon  the  question  under  consideration,  I  proceed  to 
state  briefly  the  conclusions  to  which  I  have  been  led.  I  think  the 
authorities  establish  the  following  propositions :  First,  in  order  to  sus- 
tain an  action  of  deceit,  there  must  be  proof  of  fraud,  and  nothing 
short  of  that  will  suffice.  Secondly,  fraud  is  proved  when  it  is  shewn 
that  a  false  representation  has  been  made  (1)  knowingly,  or  (2)  without 
belief  in  its  truth,  or  (3)  recklessly,  careless  whether  it  be  true  or  false. 
Although  I  have  treated  the  second  and  third  as  distinct  cases,  I  think 
the  third  is  but  an  instance  of  the  second,  for  one  who  makes  a  state- 
ment under  such  circumstances  can  have  no  real  belief  in  the  truth 
of  what  he  states.  To  prevent  a  false  statement  being  fraudulent, 
there  must,  I  think,  always  be  an  honest  belief  in  its  truth.  And  this 
probably  covers  the  whole  ground,  for  one  who  knowingly  alleges  that 
which  is  false,  has  obviously  no  such  honest  belief.  Thirdly,  if  fraud 
be  proved,  the  motive  of  the  person  guilty  of  it  is  immaterial.  It  mat- 
ters not  that  there  was  no  intention  to  cheat  or  injure  the  person  to 
whom  the  statement  was  made. 

I  think  these  propositions  embrace  all  that  can  be  supported  by  de- 
cided cases  from  the  time  of  Pasley  v.  Freeman  down  to  Western 
Bank  of  Scotland  v.  Addie  in  1867,  Law  Rep.  1  H.  L.  Sc.  145,  when 
the  first  suggestion  is  to  be  found  that  belief  in  the  truth  of  what  he 
has  stated  will  not  suffice  to  absolve  the  defendant  if  his  belief  be  based 
on  no  reasonable  grounds.  I  have  shewn  that  this  view  was  at  once 
dissented  from  by  Lord  Cranworth,  so  that  there  was  at  the  outset  as 
much  authority  against  it  as  for  it.  And  I  have  met  with  no  further 
assertion  of  Lord  Chelmsford's  view  until  the  case  of  Weir  v.  Bell,  3 
Ex.  D.  238,  where  it  seems  to  be  involved  in  Lord  Justice  Cotton's 
enunciation  of  the  law  of  deceit.  But  no  reason  is  there  given  in  sup- 
port of  the  view,  it  is  treated  as  established  law.  The  dictum  of  the 
late  Master  of  the  Rolls,  that  a  false  statement  made  through  care- 
lessness, which  the  person  making  it  ought  to  have  known  to  be  untrue, 
would  sustain  an  action  of  deceit,  carried  the  matter  still  further. 
But  that  such  an  action  could  be  maintained  notwithstanding  an  honest 
belief  that  the  statement  made  was  true,  if  there  were  no  reasonable 


Ch.  2)  TORTS  THROUGH   MALICE  1225 

grounds  for  the  belief,  was,  I  think,  for  the  first  time  decided  in  the 
case  now  under  appeal. 

In  my  opinion  making  a  false  statement  through  want  of  care  falls 
far  short  of,  and  is  a  very  different  thing  from,  fraud,  and  the  same 
may  be  said  of  a  false  representation  honestly  believed  though  on 
insufhcient  grounds.  Indeed  Cotton,  L.  J.,  himself  indicated,  in  the 
words  I  have  already  quoted,  that  he  should  not  call  it  fraud.  But 
the  whole  current  of  authorities,  with  which  I  have  so  long  detained 
your  Lordships,  shews  to  my  mind  conclusively  that  fraud  is  essential 
to  found  an  action  of  deceit,  and  that  it  cannot  be  maintained  where 
the  acts  proved  cannot  properly  be  so  termed.  And  the  case  of  Taylor 
V.  Ashton,  11  M.  &  W.  401,  appears  to  me  to  be  in  direct  conflict  with 
the  dictum  of  Sir  George  Jessel,  and  inconsistent  with  the  view  taken 
by  the  learned  judges  in  the  Court  below.  I  observe  that  Sir  Freder- 
ick Pollock,  in  his  able  work  on  Torts  (p.  243,  note),  referring,  I  pre- 
sume, to  the  dicta  of  Cotton,  L.  J.,  and  Sir  George  Jessel,  M.  R.,  says 
that  the  actual  decision  in  Taylor  v.  Ashton,  11  M.  &  W.  401,  is  not 
consistent  with  the  modern  cases  on  the  duty  of  directors  of  com- 
panies. I  think  he  is  right.  But  for  the  reasons  I  have  given  I  am 
unable  to  hold  that  anything  less  than  fraud  will  render  directors  or 
any  other  persons  hable  to  an  action  of  deceit. 

At  the  same  time  I  desire  to  say  distinctly  that  when  a  false  state- 
ment has  been  made  the  questions  whether  there  were  reasonable 
grounds  for  believing  it,  and  what  were  the  means  of  knowledge  in 
the  possession  of  the  person  making  it,  are  most  weighty  matters  for 
consideration.  The  ground  upon  which  an  alleged  belief  was  found- 
ed is  a  most  important  test  of  its  reality.  I  can  conceive  many  cases 
where  the  fact  that  an  alleged  belief  was  destitute  of  all  reasonable 
foundation  would  suffice  of  itself  to  convince  the  Court  that  it  was  not 
really  entertained,  and  that  the  representation  was  a  fraudulent  one. 
So,  too,  although  means  of  knowledge  are,  as  was  pointed  out  by  Lord 
Blackburn  in  Brownlie  v.  Campbell,  5  App.  Cas.  at  p.  952,  a  very  dif- 
ferent thing  from  knowledge,  if  I  thought  that  a  person  making  a  false 
statement  had  shut  his  eyes  to  the  facts,  or  purposely  abstained  from 
inquiring  into  them,  I  should  hold  that  honest  belief  was  absent,  and 
that  he  was  just  as  fraudulent  as  if  he  had  knowingly  stated  that  which 
was  false. 

I  have  arrived  with  some  reluctance  at  the  conclusion  to  which  I 
have  felt  myself  compelled,  for  I  think  those  who  put  before  the  pub- 
lic a  prospectus  to  induce  them  to  embark  their  money  in  a  commer- 
cial enterprise  ought  to  be  vigilant  to  see  that  it  contain  such  represen- 
tations only  as  are  in  strict  accordance  with  fact,  and  I  should  be  very 
unwilling  to  give  any  countenance  to  the  contrary  idea.  I  think  there 
is  much  to  be  said  for  the  view  that  this  moral  duty  ought  to  some 
extent  to  be  converted  into  a  legal  obligation,  and  that  the  want  of 
reasonable  care  to  see  that  statements,  made  under  such  circumstances, 
are  true,  should  be  made  an  actionable  wrong.    But  this  is  not  a  mat- 


1226  TORTS  THROUGH  ACTS  OF  CONDITIONAL   LIABILITY         (Part  3 

ter  fit  for  discussion  on  the  present  occasion.  If  it  is  to  be  done  the 
legislature  must  intervene  and  expressly  give  a  right  of  action  in  re- 
spect of  such  a  departure  from  duty.  It  ought  not,  I  think,  to  be  done 
by  straining  the  law,  and  holding  that  to  be  fraudulent  which  the  tri- 
bunal feels  cannot  properly  be  so  described.  I  think  mischief  is  likely 
to  result  from  blurring  the  distinction  between  carelessness  and  fraud, 
and  equally  holding  a  man  fraudulent  whether  his  acts  can  or  cannot 
be  justly  so  designated. 

It  now  remains  for  me  to  apply  what  I  believe  to  be  the  law  to  the 
facts  of  the  present  case.     *     *     * 

I  agree  with  the  Court  below  that  the  statement  made  did  not  accu- 
rately convey  to  the  mind  of  a  person  reading  it  what  the  rights  of  the 
company  were,  but  to  judge  whether  it  may  nevertheless  have  been 
put  forward  without  subjecting  the  defendants  to  the  imputation  of 
fraud,  your  Lordships  must  consider  what  were  the  circumstances. 
By  the  General  Tramways  Act  of  1870  it  is  provided  that  all  carriages 
used  on  any  tramway  shall  be  moved  by  the  power  prescribed  by  the 
special  Act,  and  where  no  such  power  is  prescribed,  by  animal  power 
only,  33  &  34  Vict.  c.  78,  §  34.  In  order,  therefore,  to  enable  the  com- 
pany to  use  steampower,  an  Act  of  Parliament  had  to  be  obtained  em- 
powering its  use.  This  had  been  done,  but  the  power  was  clogged 
with  the  condition  that  it  was  only  to  be  used  with  the  consent  of  the 
Board  of  Trade.  It  was  therefore  incorrect  to  say  that  the  company 
had  the  right  to  use  steam;  they  would  only  have  that  right  if  they  ob- 
tained the  consent  of  the  Board  of  Trade.  But  it  is  impossible  not  to 
see  that  the  fact  which  would  impress  itself  upon  the  minds  of  those 
connected  with  the  company  was  that  they  had,  after  submitting  the 
plans  to  the  Board  of  Trade,  obtained  a  special  Act  empowering  the  use 
of  steam.  It  might  well  be  that  the  fact  that  the  consent  of  the  Board 
of  Trade  was  necessary  would  not  dwell  in  the  same  way  upon  their 
minds,  if  they  thought  that  the  consent  of  the  Board  would  be  obtained 
as  a  matter  of  course  if  its  requirements  were  complied  with,  and  that 
it  was  therefore  a  mere  question  of  expenditure  and  care.  The  provi- 
sion might  seem  to  them  analogous  to  that  contained  in  the  General 
Tramways  Act,  and  I  believe  in  the  Railways  Act  also,  prohibiting  the 
line  being  opened  until  it  had  been  inspected  by  the  Board  of  Trade 
and  certified  fit  for  traffic,  which  no  one  would  regard  as  a  condition 
practically  limiting  the  right  to  use  the  line  for  the  purpose  of  a  tram- 
way or  railway.  I  do  not  say  that  the  two  cases  are  strictly  analogous 
in  point  of  law,  but  they  may  well  have  been  thought  so  by  business 
men. 

I  turn  now  to  the  evidence  of  the  defendants.  [Lord  Herschell 
here  reviewed  the  evidence  of  each  of  the  five  defendants.] 

As  I  have  said,  Stirling,  J.,  gave  credit  to  these  witnesses,  and  I  see 
no  reason  to  differ  from  him.  What  conclusion  ought  to  be  drawn 
from  their  evidence?  I  think  they  v/ere  mistaken  in  supposing  that 
the  consent  of  the  Board  of  Trade  would  follow  as  a  matter  of  course 


Ch.  2)  TORTS  THROUGH  MALICE  1227 

because  they  had  obtained  their  Act.  It  was  absolutely  in  the  discre- 
tion of  the  Board  whether  such  consent  should  be  given.  The  prospec- 
tus was  therefore  inaccurate.  But  that  is  not  the  question.  If  they 
believed  that  the  consent  of  the  Board  of  Trade  was  practically  con- 
cluded by  the  passing  of  the  Act,  has  the  plaintiff  made  out,  which  it 
was  for  him  to  do,  that  they  have  been  guilty  of  a  fraudulent  misrep- 
resentation? I  think  not.  I  cannot  hold  it  proved  as  to  any  one  of 
them  that  he  knowingly  made  a  false  statement,  or  one  which  he  did 
not  believe  to  be  true,  or  was  careless  whether  what  he  stated  was 
true  or  false.  In  short,  I  think  they  honestly  believed  that  what  they 
asserted  was  true,  and  I  am  of  opinion  that  the  charge  of  fraud  made 
against  them  has  not  been  established.     *     *     * 

Adopting  the  language  of  Jessel,  M.  R.,  in  Smith  v.  Chadwick,  20 
Ch.  D.  at  p.  67,  I  conclude  by  saying  that  on  the  whole  I  have  come 
to  the  conclusion  that  the  statement,  "though  in  some  respects  inaccu- 
rate and  not  altogether  free  from  imputation  of  carelessness,  was  a 
fair,  honest  and  bona  fide  statement  on  the  part  of  the  defendants,  and 
by  no  means  exposes  them  to  an  action  for  deceit." 

I  think  the  judgment  of  the  Court  of  Appeal  should  be  reversed.^ ^ 


V.  MaIvIcious  Usu  of  Propt^rty  or  Ini^'luejnce;  e'or  the;  Harm  of 

Another 

KEEBLE  V.  HICKERINGILL. 

(Court  of  King's  Bench,  1809.     11  East,  574,  note,  11  R.  R.  273, 

103  Reprint,  1127.) 

Action  upon  the  case.     Plaintiff  declares 

that  he  was,  Sth  November  in  the  second  year  of  the  Queen,  lawfully  pos- 
sessed of  a  close  of  land  called  .Miuott's  Meadow,  et  de  quodani  vivario, 
vocato,  a  "decoy  pond,"  to  which  divers  wildfowl  used  to  resort  and  come: 
and  the  plaintiff  had  at  his  own  cost  and  chai-ges  prepared  and  procured 
divers  decoy  ducks,  nets,  machines,  and  other  engines  for  the  decoying  and 
taking  of  the  wildfowl,  and  enjoyed  the  benefit  in  taking  them:  the  defend- 
ant knowing  which,  and  intending  to  damnify  the  plaintiff  in  his  vivary,  and 
to  flight  and  drive  away  the  wildfowl  used  to  resort  thither,  and  deprive 
him  of  his  profit,  did,  on  the  Sth  of  November,  resort  to  the  head  of  the  said 
pond  aud  vivary  and  did  discharge  six  guns  laden  with  gunpowder,  and  with 
the  noise  and  stink  of  the  gunpowder  did  drive  away  the  wildfowl  then  being 
in  the  pond:  and  on  the  11th  and  12th  days  of  November  the  defendant, 
with  the  design  to  damnify  the  plaintiff,  aud  fright  away  the  wildfowl,  did 
place  himself  with  a  gun  near  the  vivary,  and  there  did  discharge  the  said 
gun  several  times  that  was  then  charged  with  the  gunpowder  against  the  said 
decoy  pond,  whereby  the  wildfowl  were  frightened  away,  and  did  forsake 
the  said  pond. 

15  Tlie  House  of  Lords  were  unanimous  in  reversing  the  order  of  the  Court 
of  Appeal  and  restoring  the  order  of  Stirling,  .7.  Parts  of  the  opinions  of 
L,ord  Bramwell  and  Lord  Herschell  and  all  of  the  concurring  opinii>ns  of 
Lord  Chancellor  Halsbury  aud  of  Lords  Watson  and  Fitzgerald  are  omitted. 


1228  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

Upon  not  guilty  pleaded,  a  verdict  was  found  for  the  plaintiff 
and  £20  damages. 

Holt,  C.  J.  I  am  of  opinion  that  this  action  doth  lie.  It  seems 
to  be  new  in  instance,  but  it  is  not  new  in  the  reason  or  the  principle 
of  it.  For,  1st,  this  using  or  making  a  decoy  is  lawful.  2dly.  This 
employment  of  his  ground  to  that  use  is  profitable  to  the  plaintiff, 
as  is  the  skill  and  management  of  that  employment.  As  to  the 
first.  Every  man  that  hath  a  property  may  employ  it  for  his  pleasure 
and  profit,  as  for  alluring  and  procuring  decoy  ducks  to  come  to 
his  pond.  To  learn  the  trade  of  seducing  other  ducks  to  come  there 
in  order  to  be  taken  is  not  prohibited  by  either  the  law  of  the  land 
or  the  moral  law ;  but  it  is  as  lawful  to  use  art  to  seduce  them,  to 
catch  them,  and  destroy  them  for  the  use  of  mankind,  as  to  kill  or 
destroy  wildfowl  or  tame  cattle.  Then  when  a  man  uses  his  art  or 
his  skill  to  take  them,  to  sell  and  dispose  of  for  his  profit;  this  is 
his  trade;  and  he  that  hinders  another  in  his  trade  or  livelihood  is 
liable  to  an  action  for  so  hindering  him.  Why  otherwise  are  scan- 
dalous words  spoken  of  a  man  in  his  profession  actionable,  when  with- 
out his  profession  they  are  not  so?  Though  they  do  not  affect  any 
damage,  yet  are  they  mischievous  in  themselves;  and  therefore  in 
their  own  nature  productive  of  damage;  and  therefore  an  action  lies 
against  him.  Such  are  all  words  that  are  spoken  of  a  man  to  dis- 
parage him  in  his  trade,  that  may  bring  damage  to  him ;  though  they 
do  not  charge  him  with  any  crime  that  may  make  him  obnoxious  to 
punishment;  as  to  say  a  merchant  is  broken,  or  that  he  is  failing, 
or  is  not  able  to  pay  his  debts,  1  Roll.  60,  I;  all  the  cases  there  put. 
How  much  more  when  the  defendant  does  an  actual  and  real  dam- 
age to  another  when  he  is  in  the  very  act  of  receiving  profit  by  his 
employment.  Now  there  are  two  sorts  of  acts  for  doing  damage  to 
a  man's  employment,  for  which  an  action  lies;  the  one  is  in  respect 
of  a  man's  privilege;  the  other  is  in  respect  of  his  property.  In 
that  a  man's  franchise  or  property  whereby  he  hath  a  fair,  market, 
or  ferry,  if  another  shall  use  the  like  liberty,  though  out  of  his  limits, 
he  shall  be  liable  to  an  action ;  though  by  grant  from  the  king.  But 
therein  is  the  difi'erence  to  be  taken  between  a  liberty  in  which  the 
public  hath  a  benefit,  and  that  wherein  the  public  is  not  concerned. 
22  li.  6.  14,  15. 

The  other  is  where  a  violent  and  malicious  act  is  done  to  a  man's 
occupation,  profession,  or  way  of  getting  a  livelihood;  there  an  ac- 
tion lies  in  all  cases.  But  if  a  man  doth  him  damage  by  using  the 
same  employment;  as  if  Mr.  Hickeringill  had  set  up  another  decoy 
on  the  same  ground  near  the  plaintiff's,  and  that  had  spoiled  the  cus- 
tom of  the  plaintiff,  no  action  would  lie,  because  he  had  as  much 
liberty  to  make  and  use  a  decoy  as  the  plaintiff.  This  is  like  the 
case  of  11  H.  4.  47.  One  schoolmaster  sets  up  a  new  school  to  the 
damage  of  an  antient  school,  and  thereby  the  scholars  are  allured  from 
the  old  school  to  come  to  his  new.     (The  action  there  was  held  not 


Ch.  2)  TORTS  THROUGH   MALICE  1229 

to  lie.)  But  suppose  Mr.  Hickeringill  should  lie  in  the  way  with 
his  guns,  and  fright  the  boys  from  going  to  the  school,  and  their 
parents  would  not  let  them  go  thither;  sure  that  schoolmaster  might 
have  an  action  for  the  loss  of  his  scholars.  29  E.  3.  18.  A  man  hath 
a  market,  to  which  he  hath  toll  for  horses  sold :  a  man  is  bringing 
his  horse  to  market  to  sell :  a  stranger  hinders  and  obstructs  him  from 
going  thither  to  the  market:  an  action  lies,  because  it  imports  dam- 
age. Action  upon  the  case  lies  against  one  that  shall  by  threat  fright 
away  his  tenants  at  will.  9  H.  7.  8;  21  H.  6.  31;  9  H.  7.  7;  14 
Ed.  4.  7.  Vide  Rastal.  662;  2  Cro.  423.  Trespass  was  brought  for 
beating  his  servant  whereby  he  was  hindered  from  taking  his  toll; 
the  obstruction  is  a  damage,  though  not  the  loss  of  his  service.^' 


LETTS  V.  KESSLER. 

(Supreme  Court  of  Ohio,  1896.     54  Ohio  St.  73,  42  N.  E.  765,  40  L.  E.  A.  177.) 

The  plaintiff  below  (defendant  in  error  here)  filed  her  petition  in  the 
court  of  common  pleas  against  defendant  below  (plaintitf  in  error 
here),  averring  that  she  was  the  owner  by  purchase  under  a  land  con- 
tract of  certain  permises  in  the  city  of  Cleveland;  that  defendant 
owned  and  occupied  the  lot  on  the  east  side  thereof;  that  she  used 
her  premises  as  an  hotel  and  boarding  house;  that  he  was  erecting  a 
high  board  fence  on  his  ground,  which  would  obstruct  her  windows, 
and  deprive  her  of  light  and  air ;  that  said  fence  was  not  being  erect- 
ed for  any  useful  or  ornamental  purpose,  but  from  motives  of  pure 
malice  alone,  and  for  the  express  malicious  purpose  of  annoying  plain- 
tiff, and  excluding  light  and  air  from  her  house,  so  as  to  render  her 
house  uninhabitable,  to  injure  the  value  thereof;  and  that  said  fence 
would  exclude  the  light  and  air,  and  thereby  greatly  injure  the  value 
of  her  house.  She  prayed  that  he  might  be  restrained  from  completing 
said  fence,  and  that,  upon  the  final  hearing,  a  mandatory  injunction 
might  compel  its  removal.  Defendant  below  demurred  to  this  peti- 
tion, and  the  demurrer  was  overruled,  and  exceptions  taken.  The  rul- 
ing upon  this  demurrer  is  reported  in  7  Ohio  Cir.  Ct.  R.  108.  He 
then  filed  an  answer,  in  substance  a  general  denial,  with  an  averment 
that  the  fence  was  erected  to  prevent  the  rush  of  water  and  eave  drip 
from  her  premises  onto  his.  This  she  denied  in  her  reply.  The  case 
went  to  the  circuit  court  on  appeal,  and  that  court  overruled  the  de- 
murrer, and  on  the  trial  made  a  finding  of  facts  containing  in  sub- 

16  Compare:  Tarleton  v.  McGawley  (1793)  1  Peake,  270,  3  R.  R.  689:  (D., 
the  master  of  a  vessel  tradiug  on  the  coast  of  Africa,  purposely  fired  a  canuon 
from  his  vessel  at  a  canoe  in  which  natives  were  going  to  a  rival  ship,  the 
"Tarleton,"  and  killed  one  of  them,  "wlu'reliy  the  natives  of  the  said  coast 
were  deterred  and  hindered  from  tradiug  with"  the  "Tarleton.") 


1230  TOKTS  THROUGH   ACTS   OF   CONDITIONAL  LIABILITY         (Part  3 

Stance  the  allegations  of  the  petition.    The  following  is  the  finding  of 
facts  and  the  judgment: 

"This  cause  came  on  to  be  heard  upon  the  petition  of  the  plaintiff,  the  an- 
swer of  defendant,  the  reply  of  the  plaintiff  thereto,  and  the  testimony,  and 
the  court  being  requested  by  the  defendant  to  make  a  finding  of  facts  in  the 
case,  and  to  state  conclusions  of  the  facts,  as  follows:  That  the  plaintiff 
owns  and  occupies  premises  situated  on  Lake  street,  in  the  city  of  Cleveland, 
known  as  'The  Osborn,'  and  said  plaintiff'  owned  and  occupied  said  premises 
at  the  time  of  the  erection  of  the  structure  hereinafter  described.  Said  prem- 
ises were  used  by  plaintiff  as  a  boarding  house.  Defendant  owns  and  occu- 
pies premises  adjoining  plaintiff  in  the  east.  Between  the  two  houses  is  a 
drive\^ay  and  open  space  about  20  feet  wide.  Plaintiff  and  defendant  had 
litigation  in  May,  1S91,  on  account  of  defendant  having  attached  a  shed  roof 
to  her  building  without  consent  of  said  plaintiff".  About  two  weeks  after  the 
trial  of  said  lawsuit,  the  defendant  took  down  said  shed  or  roof,  and  built 
up  against  the  house  of  said  plaintiff  a  tight-hoard  fence.  The  said  fence  was 
86  feet  long.  The  scantlings  were  placed  against  the  wall  of  said  plaintiff's 
house,  and  reached  up  under  the  eaves  of  the  same.  Boards  were  nailed  on 
to  said  scantlings,  beginning  about  two  feet  from  the  ground,  and  extending 
to  the  sills  of  the  second-story  windows.  Defendant  nailed  onto  the  rear 
portion  of  said  fence,  and  extending  about  40  feet  towards  the  front,  a  shed 
or  roof.  Under  this  shed  or  roof  defendant  had  lumber  piled.  Said  board 
fence  completely  covered  up  the  bathroom,  kitchen,  bedroom,  and  library  win- 
dows, rendering  said  portion  of  house  dark,  damp,  and  uninhabitable,  and 
causing  a  substantial  damage  to  the  same.  Said  structure  was  erected  upon 
the  land  of  the  defendant,  and  belonged  to  him.  The  structure  was  erected 
by  said  defendant  from  motives  of  unmixed  malice  towards  said  plaintiff',  and 
for  no  useful  or  ornamental  purposes  of  the  property  of  said  defendant,  ex- 
cept said  shed  or  roof,  and  its  back  wall  below  the  shed  roof,  which  may  sub- 
serve some  useful  purpose  of  defendant  in  the  use  of  his  property  by  protect- 
ing his  lumber  piled  thereunder.  The  court,  upon  the  foregoing  facts,  finds 
and  decrees  that  said  defendant  be,  and  is  hereby,  enjoined  from  proceeding 
further  with  the  erection  of  said  fence.  Adjudged  and  decreed  that  said  de- 
fendant, within  20  days  from  the  entering  of  this  decree,  take  down  all  of 
said  fence  and  scantling  projecting  above  the  roof  of  said  shed,  and  all  the 
remainder  of  said  fence  outside  of  and  beyond  said  shed  ;  and  it  is  consid- 
ered that  the  plaintiff'  recover  his  costs  expended  in  the  case,  taxed  at  $ , 

and  that  the  defendant  pay  his  own  costs,  for  which  it  is  ordered  that  execu- 
tion issue, — to  all  of  which  the  defendant  excepts." 

A  motion  for  a  new  trial  was  overruled,  with  exceptions  taken. 
Thereupon  a  petition  in  error  was  filed  to  reverse  the  judgment  of  the 
circuit  court. 

Burke;t,  J.  (after  stating  the  facts).  The  only  question  in  this  case 
arises  upon  the  following  findings  of  fact  by  the  circuit  court:  "Said 
structure  was  erected  upon  the  land  of  the  defendant,  and  belonged 
to  him.  The  structure  was  erected  by  said  defendant  from  motives 
of  unmixed  malice  towards  said  plaintifif,  and  for  no  useful  or  or- 
namental purposes  of  the  property  of  said  defendant."  It  is  not  claim- 
ed that  the  person  of  the  plaintiff  was  interfered  with  in  this  case, 
so  that  we  have  for  consideration  only  the  rights  of  property.  The 
fence  complained  of  is  upon  the  land  of  the  defendant,  and  belongs 
to  him.  Plaintiff  fails  to  aver,  and  the  court  fails  to  find,  that  she  has 
any  right  to  or  upon  the  lot  of  defendant  below  by  contract,  statute, 
or  any  other  way  known  to  the  law  for  acquiring  a  right  to,  in,  or 
upon  lands,  unless  such  right  may  be  acquired  by,  and  transferred  to 
hcr^  by  means  of  the  aforesaid,  "motives  of  unmixed  malice."    This 


Ch.  2)  TORTS   THROUGH   MALICE  1231 

is  a  mannci"  of  acquiring,  on  the  one  hand,  and  of  transferring,  on  the 
other,  a  right  to  property  unknown  to  the  law. 

But  it  is  urged  in  her  behalf  that  even  if  she  had  no  right  of  prop- 
erty, and  even  if  he  was  the  owner  of  the  lot,  he  could  not  use  his 
own  land  for  the  purpose  of  erecting  structures  thereon  which  sub- 
serve no  useful  or  ornamental  purpose,  and  a/j  erected  through  mo- 
tives of  unmixed  malice  towards  his  adjoining  neighbor.  It  is  and 
must  be  conceded  that  he  might,  by  erecting  a  building  on  his  lot, 
shut  off  her  light  and  air  to  exactly  the  same  extent  as  is  done  by  this 
fence,  and  that  in  such  case  she  would  be  without  right  and  without 
remedy,  even  though  done  with  the  same  feelings  of  malice  as  induced 
him  to  erect  the  fence;  thus  making  his  acts  lawful  when  the  malice 
is  seasoned  with  profit,  or  some  show  of  profit,  to  himself,  and  unlaw- 
ful when  his  malice  is  unmixed  with  profit,  the  injury  or  inconvenience 
to  her  meanvrhile  remaining  the  same  in  both  cases.  If,  through 
feelings  of  malice,  he  desires  to  shut  the  light  and  air  from  her  win- 
dows, it  is  nothing  to  her  w'hether  he  m.akes  a  profit  or  loss  thereby. 
Her  injury  is  no  greater  and  no  less  in  the  one  case  than  in  the  other. 
As  to  her  it  is  the  eft'ect  of  the  act,  and  not  the  motive.  In  effect, 
he  has  the  right  to  shut  off  the  light  and  air  from  her  window^s  by  a 
building  on  his  own  premises ;  and  she  is  not,  in  effect,  concerned 
in  the  means  by  which  such  effect  is  produced,  whether  by  a  building 
or  other  structure;  nor  is  she  concerned  as  to  the  motive,  nor  as  to 
whether  he  makes  or  loses  by  the  operation.  In  the  one  case  she 
might  have  a  strong  suspicion  of  his  malice,  w^hile  in  the  other  such 
suspicion  would  be  reduced  to  a  certainty.  But  this  is  nothing  to  her 
as  affecting  a  property  right.  As  long  as  he  keeps  on  his  ow'n  prop- 
erty, and  causes  an  effect  on  her  property  wdiich  he  has  a  right  to 
cause,  she  has  no  legal  right  to  complain  as  to  the  manner  in  which 
the  effect  is  produced ;  and  to  permit  her  to  do  so  would  not  be  en- 
forcing a  right  of  property,  but  a  rule  of  morals.  It  would  be  con- 
trolling and  directing  his  moral  conduct  by  a  suit  in  equity, — by  an 
injunction. 

To  permit  a  man  to  cause  a  certain  injurious  effect  upon  the  prem- 
ises of  his  neighbor  by  the  erection  of  a  structure  on  his  own  premises 
if  such  structure  is  beneficial  or  ornamental,  and  to  prohibit  him  from 
causing  the  same  effect  in  case  the  structure  is  neither  beneficial  nor 
ornamental,. but  erected  from  motives  of  pure  malice,  is  not  protect- 
ing a  legal  right,  but  is  controlling  his  moral  conduct.  In  this  state 
a  man  is  free  to  direct  his  moral  conduct  as  he  pleases,  in  so  far  as 
he  is  not  restrained  by  statute. 

But  it  is  said  that  such  acts  are  offensive  to  the  principles  of  equity. 
Not  so.  There  is  no  conflict  between  law  and  equity  in  our  practice, 
and  what  a  man  may  lawfully  do  cannot  be  prohibited  as  inequitable. 
It  may  be  immoral,  and  shock  our  notions  of  fairness,  but  what  the 
law  permits  equity  tolerates.  It  would  be  much  more  inequitable 
and  intolerable  to  allow  a  man's  neighbors  to  question  his  motives 


1232  TORTS   THROUGH  ACTS   OF   CONDITIONAL  LIABILITY  (Part  3 

every  time  that  he  should  undertake  to  erect  a  structure  upon  his  own 
premises,  and  drag  him  before  a  court  of  equity  to  ascertain  wheth- 
er he  is  about  to  erect  the  structure  for  ornament  or  profit,  or  through 
motives  of  unmixed  malice. 

The  case  is  not  like  annoying  a  neighbor  by  means  of  causing 
smoke,  gas,  noisome  smells,  or  noises  to  enter  his  premises,  thereby 
causing  injury.  In  such  cases  something  is  produced  on  one's  own 
premises,  and  conveyed  to  the  premises  of  another;  but  in  this  case 
nothing  is  sent,  but  the  air  and  light  are  withheld.  A  man  may  be 
compelled  to  keep  his  gas,  smoke,  odors,  and  noise  at  home,  but  he 
cannot  be  compelled  to  send  his  light  and  air  abroad.  Mullen  v. 
Strieker,  19  Ohio  St.  135,  2  Am.  Rep.  379.  If  smoke,  gas,  offensive 
odors,  or  noise  pass  from  one's  own  premises  to  or  upon  the  premises 
of  another,  to  his  injury,  an  action  will  lie  therefor,  even  though  the 
smoke,  gas,  odor,  or  noise  should  be  caused  by  the  lawful  business 
operations  of  defendant,  and  with  the  best  of  motives.  Broom,  Leg. 
]\Iax.  372.  In  such  cases  it  is  the  eft'ect  or  injury,  and  not  the  motive, 
that  is  regarded.  The  true  test  is  whether  anything  recognized  by- 
law as  injurious  passes  from  the  premises  of  one  neighbor  to  that  of 
another.  Anything  so  passing  invades  the  legal  rights  of  him  whose 
premises  it  reaches,  and  such  rights  will  be  protected.  But  courts 
cannot  regulate  or  control  the  moral  conduct  of  a  man,  unless  au- 
thorized so  to  do  by  statute.^^ 

17  Judge  Burket  here  referred  to  a  number  of  cases,  with  comments,  as 
follo\v^^:  Tlie  following  cases,  cited  by  plaiDtiff  in  error,  bear  more  or  less 
upon  the  question  involved  in  this  case,  and  seem  to  produce  a  decided  weight 
of  authority  in  his  favor:  Frazier  v.  Brown  (1S61)  12  Ohio  St.  294;  Falloon 
V.  Scliilling  (1S8;J)  29  Kan.  292,  44  Am.  Kep.  642;  Mahan  v.  Brown  (1835)  13 
Wend.  (N.  Y.)  261,  28  Am.  Dec.  461;  Greenleaf  v.  Francis  (1836)  18  Pick. 
(Mass.)  123;  Chatfield  v.  Wilson  (1855)  28  Vt.  49.  The  following  additional 
authorities  are  to  the  same  effect:  Gould,  Waters,  §  280,  citing  Chasemore 
V.  Richards  (1S.j9)  7  II.  L.  Cas.  349 ;  Dickinson  v.  Canal  Co.  (1852)  7  Exch. 
282 ;  Acton  v.  Blundell  (1843)  12  Mees.  &  W.  324 ;  Hammond  v.  Hall  (1840) 
10  Sim.  552 ;  Cooper  v.  Barber  (1810)  3  Taunt.  99 ;  Balston  v.  Bensted  (1808) 
1  Camp.  463;  Galgay  v.  Railway  Co.  (1854)  4  Ir.  C.  L.  456;  Chase  v.  Silver- 
stone  (1873)  62  Me.  175,  16  Am.  Rep.  419;  Roath  v.  DriscoU  (1850)  20  Conn. 
533,  52  Am.  Dec.  352;  Brown  v.  Illius  (1858)  27  Conn.  84,  71  Am.  Dec.  49; 
Ocean  Grove  Camp  Meeting  Ass'n  v.  Asbury  Bark  Com'rs  (1885)  40  N.  J.  Eq. 
447,  3  Atl.  108 ;  Taylor  v.  Fickas  (1878)  64  Ind.  167,  31  Am.  Rep.  114 ;  Vil- 
lage of  Delhi  v.  Youmans  (1871)  45  N.  Y.  362,  6  Am.  Rep.  100;  Dexter  v. 
Aqueduct  Co.  (1840)  1  Story,  387,  Fed.  Cas.  No.  3,864;  Wheatley  v.  Baugh 
(1855)  25  I*a.  528,  64  Am.  Dec.  721,  note ;    Haugh's  Appeal  (1882)  102  Pa.  42, 

48  Am.  Rep.  193,  note;  Haldeman  v.  Bruckhart  (1863)  45  Pa.  514,  84  Am. 
]>ce.  511;  Coleman  v.  Chadwick  (1876)  80  Pa.  81,  21  Am.  Rep.  93;  Trout  v. 
McDonald  (1877)  83  Pa.  140 ;  Lybe's  Appeal  (1884)  106  Pa.  626,  51  4-m.  Rep. 
542 ;    Smith  v.  Adams  (1837)  6  Paige  (N.  Y.)  435 ;    Elster  v.  Springfield  (1892) 

49  Ohio  St.  82,  30  N.  E.  274 ;  Ellis  v.  Duncan  (1864)  cited  in  29  N.  Y.  466 ; 
Radcliff  v.  Mayor,  etc.  (1850)  4  N.  Y.  39,5,  200,  53  Am.  Dec.  357;  Pixley  v. 
Clark  (1866)  35  N.  Y.  520,  91  Am.  Dec.  72;  Goodale  v.  Tuttle  (18(J4)  29  N.  Y. 
46():  Bliss  V.  Greeley  (1871)  45  N.  Y.  671,  6  Am.  Rep.  157;  Clark  v.  Couroe 
(1866)  38  Vt.  469;  Taylor  v.  Welch  (1876)  6  Or.  198;  Mosier  v.  Caldwell 
(1872)  7  Nev.  363;  Railwav  Co.  v.  Peterson  (1860)  14  Ind.  112,  77  Am.  Dec. 
60;  Ba.s.sett  v.  Manufacturing  Co.  (1862)  43  N.  H.  573,  82  Am.  Dec.  179;  30 
Cent.  Daw  J.  269;  23  Am.  I^w  Rev.  376;  Davis  v.  Afong  (1884)  5  Hawaii, 
216.     The  defendant  in  error  cites  the  cases  reviewed  in  Frazier  v.  Brown 


Ch.  2)  TORTS  THROUGH   MALICE  1233 

But  it  is  strongly  urged  by  counsel  for  defendant  in  error  that  the 
maxim,  "Enjoy  your  own  property  in  such  a  manner  as  not  to  in- 
jure that  of  another  person,"  applies  in  such  cases  as  this,  and  that, 
as  it  must  be  conceded  that  the  fence  in  question  is  an  injury  .to  the 
property  of  defendant  m  error,  his  acts  are  in  conflict  with  the  above 
maxim.  At  tirst  blush,  this  would  seem  to  be  so,  but  a  careful  con- 
sideration shows  the  contrary.  The  maxim  is  a  very  old  one,  and 
states  the  law  too  broadly.  In  this  case,  for  instance,  it  is  conceded 
that  the  plaintiff  in  error  had  the  right  to  enjoy  his  property  by  erect- 
ing a  house  so  as  to  do  the  same  injury  which  was  done  by  the  fence, 
and  that,  while  that  would  be  an  injury  to  the  property  of  defendant 
in  error,  she  would  be  without  remedy,  and  his  act  in  erecting  such 
house  would  not  be  regarded  as  violating  the  maxim. 

In  Jeffries  v.  Williams,  5  Exch.  797,  it  was  clanned,  and  in  Railroad 
Co.  V  Bingham,  29  Ohio  St.  369,  it  was  held,  that  the  true  and  legal 
meaning  of  the  maxim  is :  "So  use  your  own  property  as  not  to  injure 
the  rights  of  another"  Boynton,  J.,  in  that  case  says:  "Where  no 
right  has  been  invaded,  although  one  may  have  injured  another,  no 
liability  has  been  incurred.  Any  other  rule  would  be  manifestly 
wrong."  The  maxim  should  be  limited  to  causing  injury  to  the  rights 
of  another,  rather  than  to  the  property  of  another,  because  for  an  in- 
jury to  the  rights  of  another  there  is  always  a  remedy;  but  there 
may  be  injuries  to  the  property  of  another  for  which  there  is  no  rem- 
edy, as  in  draming  a  spring  or  well,  or  cutting  off  light  and  air  or 
a  pleasant  view  by  the  erection  of  buildings,  and.  many  other  cases 
which  might  be  cited. 

Thus  limiting  the  maxim  to  the  rights  of  the  defendant  in  er- 
ror, it  is  plain  that  the  acts  of  plaintiff  in  error  in  the  use  which  he 
made  of  his  property  did  not  injure  any  legal  right  of  hers,  and  that, 
therefore,  what  he  did  was  not  in  violation  of  such  maxim.* 

(1S61)  12  Ohio  St.  294,  and  also  the  ease  of  Burke  v.  Smith  (18SS)  69  Mich. 
395,  37  N.  W.  838.  Most  of  the  cases  cited  are  cases  arising  out  of  Interfer- 
ence with  wells,  springs,  and  percolating  waters.  Sv:ch  cases  bear  but  slight- 
ly upon  the  question.  The  Michigan  case  is  substantially  like  the  case  under 
consideration.  In  that  case  the  lower  court  enjoined  the  defendant,  and 
that  judgment  was  athrmed  by  an  equally  divided  court.  The  syllabus  says 
that,  the  court  being  equally  divided,  nothing  is  decided.  As  nothing  was 
decided,  the  case  is  not  an  authority  on  either  side  of  the  question. 

♦Compare  the  remark  of  Professor  Ames,  Law  &  Morals  (190S)  22  Harv. 
Law  Review,  111:  "Suppose,  again,  that  the  owner  of  land  sinks  a  well,  not 
in  order  to  get  water  for  himself,  but  solely  for  the  purpose  of  draining  his 
neighbor's  spring,  or  that  he  erects  an  abnormally  high  fence  on  his  own 
land,  but  near  the  boundary,  not  for  any  advantage  of  his  own,  but  merely 
to  darken  his  neighbor's  windows  or  to  obstruct  his  view.  Is  the  landowner 
re.sponsible  to  his  neighbor  for  the  damage  arising  from  such  malevolent 
conduct"?  In  thirteen  of  our  states  he  must  make  compensation  for  malevo- 
lently draining  tbe  neighbors  spring.  In  two  other  states  the  opposite  has 
been  decided.  In  four  states  one  who  erects  a  st)ite  fence  must  pay  for  the 
damage  to  the  neighbor.  In  six  others  he  infuis  no  liability.  Six  states 
have  passed  special  statutes  giving  an  action  tor  linilding  such  a  fence" 

For  statutes  changing  the  rule  followed  in  the  principal  case,  see  the  Massa- 
Hepb.Tobts — 78 


1234  TORTS  THROUGH  ACTS  OF   CONDITIONAL  LIABILITY         (Part  3 

The  circuit  court  erred  in  overruling  the  demurrer  to  the  petition, 
and  in  rendering  judgment  in  favor  of  defendant  in  error  upon  the 
facts  as  found  by  the  court.  The  judgment  of  the  circuit  court  is 
therefore  reversed,  and,  proceeding  to  render  such  judgment  as  the 
circuit  court  should  have  rendered  upon  the  facts  found,  the  petition 
of  plaintiff  below  is  dismissed,  at  her  cost.     Judgment  reversed. 


HUGHES  v.  Mcdonough. 

(Supreme  Court  of  Judicature  of  New  Jersey,  ISSl.     43  N.  J.  Law,  459, 

39  Am.  Rep.  603.) 

The  substance  of  the  declaration  was,  that  the  plaintiff  was  a 
blacksmith  and  horseshoer  by  trade,  of  good  character,  &c. ;  that  he 
had  obtained  the  patronage  of  one  Peter  Van  Riper,  and  that  on  a 
certain  occasion  he  shod  a  certain  mare  of  the  said  Van  Riper  in  a 
good  and  workmanlike  manner;  that  the  defendant,  maliciously  in- 
tending to  injure  the  plaintiff"  in  his  said  trade,  &c.,  "did  willfully  and 
maliciously  mutilate,  impair  and  destroy  the  work  done  and  performed 
by  the  said  plaintiff  upon  the  mare  of  the  said  Van  Riper,  without  the 
knowledge  of  the  said  Van  Riper,  by  loosing  a  shoe  which  was  re- 
cently put  on  by  the  said  plaintiff,  so  that  if  the  mare  was  driven,  the 
shoe  would  come  off  easily,  and  thus  make  it  appear  that  the  said 
plaintiff  was  a  careless  and  unskillful  horseshoer  and  blacksmith,  and 
that  the  said  mare  was  not  shod  in  a  good  and  workmanlike  manner, 
and  thus  deprive  the  plaintiff  of  the  patronage  and  custom  of  the 
said  Van  Riper." 

The  second  count  charges  the  defendant  with  driving  a  nail  in  the 
foot  of  the  horse  of  Van  Riper,  after  it  had  been  shod  by  the  plain- 
tiff, with  the  same  design  as  specified  in  the  first  count. 

The  special  damage  was  the  loss  of  Van  Riper  as  a  customer. 

BeaslEy,  C.  J.  The  single  exception  taken  to  this  record  is,  that 
the  wrongful  act  alleged  to  have  been  done  by  the  defendant  does  not 
appear  to  have  been  so  closely  connected  with  the  damages  resulting 
to  the  plaintiff  as  to  constitute  an  actionable  tort.  The  contention  was 
that  the  wrong  was  done  to  Van  Riper ;  that  it  was  his  horse  whose 
shoe  was  loosened,  and  whose  foot  was  pricked,  and  that  the  im- 
mediate injury  and  damage  were  to  him,  and  that,  consequently,  the 
damages  to  the  plaintiff  were  too  remote  to  be  made  the  basis  of  a 
legal  claim. 

But  this  contention  involves  a  misapplication  of  the  legal  principle, 
and  cannot  be  sustained.    The  illegal  act  of  the  defendant  had  a  close 

chusetts  act  of  June  2,  1887  (St.  1887,  c.  348)  discu.ssed  in  Rideout  v.  Knox 
(1889)  148  Mass.  3G8,  19  N.  E.  .-JOO,  2  L.  R.  A.  81,  12  Am.  St.  Rep.  560,  and  the 
Indiana  statute  of  February  27,  ]909  (Laws  1909,  p.  70,  c.  26). 

Compare,  also,  Tlie  German  Civil  Code  (1896)  §  826  (Wang's  trans.):  A 
per.son  who  willfully  causes  damage  to  another  in  a  manner  contra  bonos 
mores  is  bound  to  compeusate  the  other  fur  the  damaye." 


Ch.  2)  TORTS  THROUGH   MALICE  1235 

causal  connection  with  the  hurt  done  to  the  plaintiff,  and  such  hurt 
was  the  natural,  and  almost  the  direct  product  of  such  cause.  Such 
harmful  result  was  sure  to  follow,  in  the  usual  course  of  things,  from 
the  specified  malfeasance.  The  defendant  is  conclusively  chargeable 
with  the  knowledge  of  this  injurious  eft'ect  of  his  conduct,  for  such 
effect  was  almost  certain  to  follow  from  such  conduct,  without  the 
occurrence  of  any  extraordinary  event,  or  the  help  of  any  extraneous 
cause.  The  act  had  a  twofold  injurious  aspect;  it  was  calculated  to 
injure  both  Van  Riper  and  the  plaintiff;  and  as  each  was  directly 
damnified,  I  can  perceive  no  reason  why  each  cannot  repair  his  loses 
by  an  action. 

The  facts  here  involved  do  not,  with  respect  to  their  legal  sig- 
nificance, resemble  the  juncture  that  gave  rise  to  the  doctrine  estab- 
lished in  the  case  of  Vicars  v.  Wilcocks,  8  East,  1.  In  that  instance 
the  action  was  for  a  slander  that  required  the  existence  of  special 
damage  as  one  of  its  necessary  constituents,  and  it  was  decided  that 
such  constituent  was  not  shown  by  proof  of  the  fact  that  as  a  result 
of  the  defamation  the  plaintiff  had  been  discharged  from  his  service 
by  his  employer  before  the  end  of  the  term  for  which  he  had  contract- 
ed. The  ground  of  this  decision  was  that  this  discharge  of  the  plain- 
tiff from  his  employment  was  illegal,  and  was  the  act  of  a  third  party, 
for  which  the  defendant  was  not  responsible,  and  that,  as  the  wrong  of 
the  slander  had  been  detrimental  only  by  reason  of  an  independent 
wrongful  act  of  another,  the  injury  was  to  be  imputed  to  the  last 
wrong,  and  not  to  that  which  was  farther  distant  one  remove.  In 
his  elucidation  of  the  law  in  this  case,  Lord  Ellenborough  says,  allud- 
ing to  the  discharge  of  the  plaintiff"  from  his  employment,  that  it  "was 
a  mere  wrongful  act  of  the  master,  for  which  the  defendant  was  no 
more  answerable,  than  if,  in  consequence  of  the  words,  other  persons 
had  afterwards  assembled  and  seized  the  plaintiff  and  thrown  him 
into  a  horse-pond  by  way  of  punishment  for  his  supposed  transgres- 
sion." The  class  of  cases  to  which  this  authority  belongs,  rests  upon 
the  principle  that  a  man  is  responsible  only  for  the  natural  conse- 
quences of  his  own  misdeeds,  and  that  he  is  not  answerable  for  detri- 
ments that  ensue  from  the  misdeeds  of  others.  But  this  doctrine,  it 
is  to  be  remembered,  does  not  exclude  responsibility  when  the  dam- 
age results  to  the  party  injured  through  the  intervention  of  the  legal 
and  innocent  acts  of  third  parties,  for,  in  such  instances,  damage  is 
regarded  as  occasioned  by  the  wrongful  cause,  and  not  at  all  by  those 
which  are  not  v/rongful.  Where  the  eff'ect  was  reasonably  to  have 
been  foreseen,  and  where,  in  the  usual  course  of  events,  it  was  likely 
to  follow  from  the  cause,  the  person  putting  such  cause  in  motion 
will  be  responsible,  even  though  there  may  have  been  many  concurring 
events  or  agencies  between  such  cause  and  its  consequences.     *     *     * 

The  principles  thus  propounded  must  have  a  controlling  effect  in  the 
decision  of  the  question  now  before  this  court,  as  they  decisively  show 
that  the  damage  of  which  the  plaintiff  complained  was  not,  in  a  legal 


1236  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

sense,  remote  from  the  wrongful  act.  What,  in  point  of  substance, 
was  done  by  the  defendant,  was  this :  he  defamed,  by  the  medium  of 
a  fraudulent  device,  the  plaintiff  in  his  trade,  and  by  means  of  which 
defamation,  the  latter  sustained  special  detriment.  If  this  defamation 
had  been  accomplished  by  words  spoken  or  written,  or  by  signs  or 
pictures,  it  is  plain  the  wrong  could  have  been  remedied,  in  the  usual 
form,  by  an  action  on  the  case  for  slander;  and,  plainly,  no  reason 
exists  why  the  law  should  not  afford  a  similar  redress  when  the  same 
injury  has  been  inflicted  by  disreputable  craft.  It  is  admitted  upon 
the  record  that  the  plaintiff  has  sustained  a  loss  by  the  fraudulent 
misconduct  of  the  defendant;  that  such  loss  was  not  only  likely  in 
the  natural  order  of  events,  to  proceed  from  such  misconduct,  but  that 
it  was  the  design  of  the  defendant  to  produce  such  result  by  his  act. 
Under  such  circumstances  it  would  be  strange  indeed  if  the  party  thus 
wronged  could  not  obtain  indemnification  by  appeal  to  the  judicial 
tribunals. 


ASHLEY  y.  HARRISON. 

(At  Nisi  Prius,  Sittings  after  Michaelmas  Term,  1793.    1  Peake,  256, 

3  R.  R.  686.) 

This  declaration  stated  that  the  plaintiff  during  the  time  of  Lent, 
1793,  caused  to  be  performed  every  Wednesday  and  Friday  night,  by 
divers  singers  and  musicians  at  a  certain  place  of  public  amusement 
called  the  Covent  Garden  Theatre,  certain  m.usical  performances  for 
the  entertainment  of  the  public  for  certain  rewards  paid  to  him  for 
admission  into  the  said  place  of  public  amusement  by  those  persons 
who  were  desirous  of  hearing  the  said  musical  performances;  by 
means  whereof  he  derived  great  gains,  &c.,  yet  the  defendant. knowing 
the  premises,  but  contriving  to  lessen  the  profits,  &c.  and  to  terrify, 
deter,  &c.  a  certain  public  singer  called  Gertrude  Elizabeth  Mara ; 
who  had  been  before  that  time  retained  by  the  plaintiff  to  sing  pub- 
licly for  him  at  the  said  place,  &c.  from  singing;  wrote  and  published 
a  certain  false  and  malicious  paper  writing  of  and  concerning  the  said 
G.  E.  Alara,  and  of  and  concerning  her  conduct,  as  such  public  singer 
as  aforesaid,  containing  therein,  &c.  The  libel  was  then  set  out,  and 
the  declaration  concluded  that  by  reason  thereof  the  said  G.  E.  M. 
could  not  sing  without  great  danger  of  being  assaulted,  ill-treated,  and 
abused,  and  was  terrified,  deterred,  prevented,  and  hindered  from  so 
singing ;  and  that  the  profits  of  the  amusement  were  thereby  rendered 
much  less  than  they  otherwise  would  have  been. 

On  the  opening  of  the  cause.  Lord  Kenyon  expressed  his  disapproba- 
tion of  the  action,  but  on  Erskine,  for  the  plaintiff,  suggesting  that  the 
objection  was  on  the  record,  his  Lordship  permitted  the  case  to  pro- 
ceed. 


Ch.  2)  TORTS  THROUGH   MALICE  1237 

The  declaration  was  proved,  and  Madame  j\Iara  said,  that  "she  did 
not  choose  to  expose  herself  to  contempt  again,  and  therefore  refused 
to  sing." 

When  the  defendant's  counsel  were  proceeding  to  their  defence, 
they  were  stopped  by 

Lord  Kenyon,  who  said :  This  action  is  unprecedented,  and  I 
think  cannot  be  supported  on  principle.  The  injury  is  much  too 
remote  to  be  the  foundation  of  an  action.  If  this  action  is  to  be  main- 
tained, I  know  not  to  what  extent  the  rule  may  be  carried.  For  aught 
I  can  see  to  the  contrary,  it  might  equally  be  supported  against  every 
man  who  circulates  the  glass  too  freely,  and  intoxicates  an  actor,  by 
which  he  is  rendered  incapable  of  performing  his  part  on  the  stage. 
If  any  injury  has  happened,  it  was  occasioned  entirely  by  the  vain  fears 
or  caprice  of  the  actress.  Madame  Mara  says,  she  did  not  choose  to 
expose  herself  to  contempt  again.  The  action  then  is  to  depend  en- 
tirely upon  the  nerves  of  the  actress ;  if  she  chooses  to  appear  on 
the  stage  again,  no  action  can  be  maintained,  if  she  does  not,  her  re- 
fusal is  to  be  followed  with  an  action.  In  actions  for  defamations 
whereby  a  woman  loses  her  marriage,  it  is  not  sufficient  to  prove  that 
she  was  a  virtuous  woman,  and  one  who  might  reasonably  hope  to 
have  settled  well  in  life ;  but  a  marriage  already  agreed  upon  must 
be  shown  to  have  been  lost. 

The  plaintiff  was  nonsuited. 


LUMLEY  V.  GYE. 

(Ck)urt  of  Queen's  Bench,  1853.    2  El.  &  Bl.  216,  95  R.  R.  501.) 

The  first  count  of  the  declaration  stated  that  the  plaintiff  was  lessee 
and  manager  of  the  Queen's  Theatre,  for  performing  operas  for  gain 
to  him ;  and  that  he  had  contracted  and  agreed  with  Johanna  Wagner 
to  perform  in  the  theatre  for  a  certam  time,  with  a  condition,  amongst 
others,  that  she  should  not  sing  or  use  her  talents  elsewhere  during 
the  term  without  the  plaintiff's  consent  in  writing:  yet  defendant, 
knowing  the  premises,  and  maliciously  intending  to  injure  the  plain- 
tiff as  lessee  and  manager  of  the  theatre,  whilst  the  agreement  with 
Wagner  was  in  force,  and  before  the  expiration  of  the  term,  enticed 
and  procured  Wagner  to  refuse  to  perform:  by  means  of  which  en- 
ticement and  procurement  of  defendant,  Wagner  wrongfully  refused 
to  perform,  and  did  not  perform  during  the  term. 

Count  2,  for  enticing  and  procuring  Johanna  Wagner  to  continue 
to  refuse  to  perform  during  the  term,  after  the  order  of  Vice-Chan- 
cellor  Parker — affirmed  by  Lord  St.  Leonards  (see  Lumley  and  Wag- 
ner, 1  D.,  M.  &  G.  604,  91  R.  R.  193) — restraining  her  from  perform- 
ing at  a  theatre  of  the  defendants. 

Count  3,  that  Johanna  Wagner  had  been  and  was  hired  by  the  plain- 
tiff to  sing  and  perform  at  his  theatre   for  a  certain  time,  as  the 


1238  TORTS  THROUGH  ACTS  OF   CONDITIONAL   LIABILITY         (Part  3 

dramatic  artiste  of  plaintiff,  for  reward  to  her,  and  had  become  and 
was  such  dramatic  artiste  of  plaintiff  at  his  theatre:  yet  defendant, 
well  knowing  &c.,  maliciously  enticed  and  procured  her,  then  being 
such  dramatic  artiste,  to  depart  from  the  said  employment. 

In  each  count  special  damage  was  alleged. 

Demurrer.     Joinder. 

The  demurrer  was  argued  in  the  sittings  after  Hilary  Term  last 
before  Colkridgk,  Wightman,  Erle;  and  Crompton,  JJ. 

Willes,  for  the  defendant : 

The  counts  disclose  a  breach  of  contract  on  the  part  of  Wagner,  for 
which  the  plaintiff's  remedy  is  by  an  action  on  the  contract  against 
her.  The  relation  of  master  and  servant  is  peculiar;  and,  though 
it  originates  in  a  contract  between  the  employer  and  the  employed,  it 
gives  rise  to  rights  and  liabilities,  on  the  part  of  the  master,  different 
from  those  which  w^ould  result  from  any  other  contract.  Thus  the 
master  is  liable  for  the  negligence  of  his  servant,  whilst  an  ordinary 
contractor  is  not  liable  for  that  of  the  person  with  whom  he  contracts. 
And  a  master  may  lawfully  defend  his  servant  when  a  contractor  may 
not  defend  his  contractee.  And  so  a  master  may  bring  an  action  for 
enticing  away  his  servant.  But  these  are  anomalies,  having  their 
origin  in  times  when  slavery  existed :  they  are  intelligible  on  the  sup- 
position that  the  servant  is  the  property  of  his  master :  and,  though 
they  have  continued  long  after  all  but  free  service  has  ceased,  they  are 
still  confined  to  cases  where  the  relation  of  master  and  servant,  in  the 
strict  sense,  exists.  In  the  present  case  Wagner  is  a  dramatic  artiste, 
not  a  servant  in  any  sense. 

Cowling,  contra : 

The  general  principle  is  laid  down  in  Comyns's  Digest,  Action  upon 
the  Case  (A).  "In  all  cases,  where  a  man  has  a  temporal  loss,  or  dam- 
age by  the  wrong  of  another,  he  may  have  an  action  upon  the  case,  to 
be  repaired  in  damages."  In  Comyns's  Digest,  Action  upon  the  Case 
for  Misfeasance  (A,  6),  an  instance  is  given :  "If  he  threatens  the 
tenants  of  another,  whereby  they  depart  from  their  tenures,"  citing  1 
Rol.  Abr.  108,  Action  sur  Case  (N)  pi.  21.  An  action  lies  for  pro- 
curing plaintiff's  wife  to  remain  absent:  Winsmore  v.  Greenbank, 
Willes,  577.  An  action  for  ravishment  of  ward :  and,  if  "a  man  pro- 
cureth  a  ward  to  go  from  his  guardian,  this  is  a  ravishment  in  law :" 
2  Inst.  440.  Now,  as  neither  the  tenants,  the  wife  nor  the  ward  are 
servants,  it  cannot  be  said  that  the  action  for  procurement  is  an 
anomaly  confined  to  the  case  of  master  and  servant.     *     *     * 

CrompTon,  J.  The  declaration  in  this  case  consists  of  three  counts. 
*  *  *  To  this  declaration  the  defendant  demurred :  and  the  ques- 
tion for  our  decision  is,  whether  all  or  any  of  the  counts  are  good  in 
substance? 

The  effect  of  the  first  two  counts  is,  that  a  person,  under  a  bind- 
ing contract  to  perform  at  a  theatre,  is  induced  by  the  malicious 
act  of  the  defendant  to  refuse  to  perform  and  entirely  to  abandon 


Ch.  2)  TORTS  THROUGH   MALICE  1239 

her  contract;  whereby  damage  arises  to  the  plaintiff,  the  proprietor 
of  the  theatre.  The  third  count  differs,  in  stating  expressly  that  the 
performer  had  agreed  to  perform  as  the  dramatic  artiste  of  the  plain- 
tiff, and  had  become  and  was  the  dramatic  artiste  of  the  plaintiff  for 
reward  to  her;  and  that  the  defendant  maliciously  procured  her  to 
depart  out  of  the  employment  of  the  plaintiff  as  such  dramatic  ar- 
tiste ;  whereby  she  did  depart  out  of  the  employment  and  service  of 
the  plaintiff;  whereby  damage  was  suffered  by  the  plaintiff".  It  was 
said,  in  support  of  the  demurrer,  that  it  did  not  appear  in  the  dec- 
laration that  the  relation  of  master  and  servant  ever  subsisted  between 
the  plaintiff  and  Miss  Wagner ;  that  Miss  Wagner  was  not  averred, 
especially  in  the  first  two  counts,  to  have  entered  upon  the  service 
of  the  plaintiff';  and  that  the  engagement  of  a  theatrical  performer, 
even  if  the  performer  has  entered  upon  the  duties,  is  not  of  such  a 
nature  as  to  make  the  performer  a  servant,  within  the  rule  of  law 
which  gives  an  action  to  the  master  for  the  wrongful  enticing  away 
of  his  servant.  And  it  was  laid  down  broadly,  as  a  general  proposition 
of  law,  that  no  action  will  lie  for  procuring  a  person  to  break  a  con- 
tract, although  such  procuring  is  with  a  malicious  intention  and  causes 
great  and  immediate  injury.  And  the  law  as  to  enticing  servants 
was  said  to  be  contrary  to  the  general  rule  and  principle  of  law,  and 
to  be  anomalous,  and  probably  to  have  had  its  origin  from  the  state 
of  society  when  serfdom  existed,  and  to  be  founded  upon,  or  upon 
the  equity  of,  the  Statute  of  Labourers.     *     *     * 

The  proposition  of  the  defendant,  that  there  must  be  a  service  ac- 
tually subsisting,  seems  to  be  inconsistent  with  the  authorities  that 
show  these  actions  to  be  maintainable  for  receiving  or  harbouring 
servants  after  they  have  left  the  actual  service  of  the  master.     *     *     * 

In  Blake  v.  Lanyon,  6  T.  R.  221,  3  R.  R.  162,  a  journeyman  who 
was  to  work  by  the  piece,  and  who  had  left  his  work  unfinished,  was 
held  to  be  a  servant  for  the  purposes  of  such  an  action ;  and  I  think 
that  it  was  most  properly  laid  down  by  the  court  in  that  case, 
that  a  person  who  contracts  to  do  certain  work  for  another  is  the 
servant  of  that  other  (of  course  with  reference  to  such  an  action) 
until  the  work  is  finished.  It  appears  to  me  that  Miss  Wagner  had 
contracted  to  do  work  for  the  plaintrff  within  the  meaning  of  this 
rule;  and  I  think  that,  where  a  party  has  contracted  to  give  his  per- 
sonal services  for  a  certain  time  to  another,  the  parties  are  in  the 
relation  of  employer  and  employed,  or  master  and  servant,  within 
the  meaning  of  this  rule.  And  I  see  no  reason  for  narrowing  such 
a  rule;  but  I  should  rather,  if  necessary;  apply  such  a  remedy  to  a 
case  "new  in  its  instance,"  but  "not  new  in  the  reason  and  principle  of 
it"  (11  East,  573),  that  is,  to  a  case  where  the  wrong  and  damage 
are  strictly  analogous  to  the  wrong  and  damage  in  a  well  recognised 
class  of  cases.  In  deciding  this  case  on  the  narrower  ground,  I  wish 
by  no  means  to  be  considered  as  deciding  that  the  larger  ground  taken 
by  Mr.  Cowling  is  not  tenable,  or  of  saying  that  in  no  case  except 


1240  TOUTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

that  of  master  and  servant  is  an  action  maintainable  for  maliciously 
indncino^  another  to  break  a  contract  to  the  injury  of  the  person  with 
whom  such  contract  has  been  made.  It  does  not  appear  to  me  to  be 
a  sound  answer,  to  say  that  the  act  in  such  cases  is  the  act  of  the 
party  who  breaks  the  contract;  for  that  reason  would  apply  in  the 
acknowledged  case  of  master  and  servant.  Nor  is  it  an  answer,  to 
say  that  there  is  a  remedy  against  the  contractor,  and  the  party  relies 
on  the  contract;  for,  besides  that  reason  also  applying  to  the  case 
of  master  and  servant,  the  action  on  the  contract  and  the  action  against 
the  malicious  wrong-doer  may  be  for  a  different  matter ;  and  the 
damages  occasioned  by  such  malicious  injury  might  be  calculated  on 
a  very  dift'erent  principle  from  the  amount  of  the  debt  which  might 
be  the  only  sum  recoverable  on  the  contract.  Suppose  a  trader,  with 
a  malicious  intent  to  ruin  a  rival  trader,  goes  to  a  banker  or  other 
party  who  owes  money  to  his  rival,  and  begs  him  not  to  pay  the 
money  which  he  owes  him,  and  by  that  means  ruins  or  greatly  preju- 
dices the  party :  I  am  by  no  means  prepared  to  say  that  an  action 
could  not  be  maintained,  and  that  damages  beyond  the  amount  of 
the  debt,  if  the  injury  were  great,  or  much  less  than  such  amount 
if  the  injury  were  less  serious,  might  not  be  recovered.  Where  two  or 
more  parties  were  concerned  in  inflicting  such  injury,  an  indictment 
or  a  writ  of  conspiracy  at  common  law,  might  perhaps  have  been  main- 
tainable; and,  where  a  writ  of  conspiracy  would  lie  for  an  injury 
inflicted  by  two,  an  action  on  the  case  in  the  nature  of  conspiracy  will 
generally  lie ;  and  in  such  action  on  the  case  the  plaintiff  is  entitled 
to  recover  against  one  defendant  without  proof  of  any  conspiracy, 
the  malicious  injury  and  not  the  conspiracy  being  the  gist  of  the  action. 
1  Wms.  Saund.  230.  In  this  class  of  cases  it  must  be  assumed  that  it  is 
the  malicious  act  of  the  defendant,  and  that  malicious  act  only,  which 
causes  the  servant  or  contractor  not  to  perform  the  work  or  contract 
which  he  would  otherwise  have  done.  The  servant  or  contractor  may 
be  utterly  unable  to  pay  anything  like  the  amount  of  the  damage  sus- 
tained entirely  from  the  wrongful  act  of  the  defendant :  and  it  would 
seem  unjust,  and  contrary  to  the  general  principles  of  law,  if  such 
wrong-doer  were  not  responsible  for  the  damage  caused  by  his  wrong- 
ful and  malicious  act.  Several  of  the  cases  cited  by  Mr.  Cowling  on 
this  part  of  the  case  seem  worthy  of  attention. 

Without  however  deciding  any  such  more  general  question,  I  think 
that  we  are  justified  in  applying  the  principle  of  the  action  for  en- 
ticing away  servants  to  a  case  where  the  defendant  maliciously  pro- 
cures a  party,  who  is  under  a  valid  contract  to  give  her  exclusive 
personal  services  to  the  plaintiff  for  a  specified  period,  to  refuse  to 
give  such  services  during  the  period  for  which  she  had  so  contracted, 
whereby  the  plaintiff  was  injured. 

I  think,  therefore,  that  our  judgment  should  be  for  the  plaintiff. 

Coleridge,  J.  *  *  *  In  order  to  maintain  this  action,  one  of 
two  propositions  must  be  maintained;    either  that  an  action  will  lie 


Ch.  2)  TORTS  THROUGH  MALICE  1241 

against  anyone  by  whose  persuasions  one  party  to  a  contract  is  in- 
duced to  break  it  to  the  damage  of  the  other  party,  or  that  the  action, 
for  seducing  a  servant  from  the  master  or  persuading  one  who  has 
contracted  for  service  from  entering  into  the  employ,  is  of  so  wide 
an  apphcation  as  to  embrace  the  case  of  one  in  the  position  and 
profession  of  Johanna  Wagner,  After  much  consideration  and  en- 
quiry I  am  of  opinion  that  neither  of  these  propositions  is  true ;  and 
they  are  both  of  them  so  important,  and,  if  estabhshed  by  judicial  de- 
cision, will  lead  to  consequences  so  general,  that,  though  I  regret  the 
necessity,  I  must  not  abstain  from  entering  into  remarks  of  some 
length  in  support  of  my  view  of  the  law.     *     *     * 

Persuading  with  effect,  or  effectually  or  successfully  persuading, 
may  no  doubt  sometimes  be  actionable — as  in  trespass — even  where 
it  is  used  towards  a  free  agent :  the  maxims  qui  facit  per  alium 
f acit  per  se,  and  respondeat  superior,  are  questionable ;  but,  where 
they  apply,  the  wrongful  act  done  is  properly  charged  to  be  the  act 
of  him  who  has  procured  it  to  be  done.  He  is  sued  as  a  principal 
trespasser,  and  the  damage,  if  proved,  flows  directly  and  imm.ediately 
from  his  act,  though  it  was  the  hand  of  another,  and  he  a  free  agent, 
that  was  employed.  But  when  you  apply  the  term  of  effectual  per- 
suasion to  the  breach  of  a  contract  it  has  obviously  a  different  mean- 
ing; the  persuader  has  not  broken  and  could  not  break  the  contract, 
for  he  had  never  entered  into  any;  he  cannot  be  sued  upon  the  con- 
tract; and  yet  it  is  the  breach  of  the  contract  only  that  is  the  cause 
of  the  damage.  Neither  can  it  be  said  that  in  breaking  the  contract  the 
contractor  is  the  agent  of  him  who  procures  him  to  do  so ;  it  is  still  his 
own  act;  he  is  principal  in  so  doing,  and  is  the  only  principal.  This 
answer  may  seem  technical :  but  it  really  goes  to  the  root  of  the  matter. 
It  shows  that  the  procurer  has  not  done  the  hurtful  act ;  what  he  has 
done  is  too  remote  for  the  damage  to  make  him  answerable  for  it. 
The  case  itself  of  Winsmore  v.  Greenbank,  Willes,  577,  seems  to  me 
to  have  little  or  no  bearing  on  the  present :  a  wife  is  not,  as  regards 
her  husband,  a  free  agent  or  separate  person;  if  to  be  considered 
so  for  the  present  purpose,  she  is  rather  in  the  character  of  a  serv- 
ant, with  this  important  peculiarity,  that,  if  she  be  induced  to  with- 
draw from  his  society  and  cohabit  with  another  or  do  him  any 
wrong,  no  action  is  maintainable  by  him  against  her.  In  the  case 
of  criminal  conversation,  trespass  lies  against  the  adulterer  as  for 
an  assault  on  her,  however  she  may  in  fact  have  been  a  willing  party 
to  all  that  the  defendant  had  done.  No  doubt,  therefore,  effectual 
persuasion  to  the  wife  to  withdraw  and  conceal  herself  from  her  hus- 
band is  in  the  eye  of  the  law  an  actual  withdrawing  and  concealing 
her;  and  so,  in  other  counts  of  the  declaration,  was  it  charged  in  this 
very  case  of  Winsmore  v.  Greenbank,  Willes,  ^77.  A  case  explain- 
able and  explained  on  the  same  principle  is  that  of  ravishment  of 
ward.  The  writ  of  this  lay  against  one  who  procured  a  man's  ward 
to  depart  from  him;   and,  where  this  was  urged  in  a  case  hereafter 


1242  TOUTS  THROUGH   ACTS   OF  CONDITIONAL   LIABILITY         (Part  3 

to  be  cited,  Alich.  11  Hen.  IV,  fol.  23  A,  pi.  46,  post,  p.  527  seq.. 
Judge  Hankf ord  gives  the  answer :  the  reason  is,  he  says,  because 
the  ward  is  a  chattel,  and  vests  in  him  who  has  the  right.  None  of 
this  reasoning  appHes  to  the  case  of  a  breach  of  contract:  if  it  does, 
I  should  be  glad  to  known  how  any  treatise  on  the  law  of  contract 
could  be  complete  without  a  chapter  on  this  head,  or  how  it  happens 
that  we  have  no  decisions  upon  it.  Certainly  no  subject  could  be  more 
fruitful  or  important ;  important  contracts  are  more  commonly  bro- 
ken with  than  without  persuaders  or  procurers,  and  these  often  re- 
sponsible persons  when  the  principals  may  not  be  so.  I  am  aware 
that  with  respect  to  an  action  on  the  case  the  argument  primae  im- 
pressionis  is  sometimes  of  no  weight.  If  the  circumstances  under 
which  the  action  would  be  brought  have  not  arisen,  or  are  of  rare 
occurrence,  it  will  be  of  none  or  only  of  inconsiderable  weight;  but, 
if  the  circumstances  have  been  common,  if  there  has  been  frequent 
occasion  for  the  action,  I  apprehend  that  it  is  important  to  find  that 
the  action  has  yet  never  been  tried.     *     *     * 

Again,  where  several  persons  happen  to  persuade  to  the  same  ef- 
fect, and  in  the  result  the  party  persuaded  acts  upon  the  advice,  how 
is  it  to  be  determined  against  whom  the  action  may  be  brought,  wheth- 
er they  are  to  be  sued  jointly  or  severally,  in  what  proportions  dam- 
ages are  to  be  recovered  ?  Again,  if,  instead  of  limiting  our  recourse 
to  the  agent,  actual  or  constructive,  we  will  go  back  to  the  person 
who  immediately  persuades  or  procures  him  one  step,  why  are  we 
[to]  stop  there?  The  first  mover,  and  the  malicious  mover  too,  may 
be  removed  several  steps  backward  from  the  party  actually  induced 
to  break  the  contract :  why  are  we  not  to  trace  him  out  ?  Morally  he 
may  be  the  most  guilty.  I  adopt  the  arguments  of  Lord  Abinger  and 
my  Brother  Alderson  in  the  case  of  Winterbottom  v.'  Wright,  10  M. 
&  W.  109,  62  R.  R.  534;  if  we  go  the  first  step,  we  can  show  no 
good  reason  for  not  going  fifty.  And,  again,  I  ask  how  is  it  that,  if 
the  law  really  be  as  the  plaintiff  contends,  we  have  no  discussions 
upon  such  questions  as  these  in  our  books,  no  decisions  in  our  reports? 
Surely  such  cases  would  not  have  been  of  rare  occurrence :  they  are 
not  of  slight  importance,  and  could  hardly  have  been  decided  without 
reference  to  the  Courts  in  Banc.  Not  one  was  cited  in  the  argument 
bearing  closely  enough  upon  this  point  to  warrant  me  in  any  fur- 
ther detailed  examination  of  them.  I  conclude  therefore  what  oc- 
curs to  me  on  the  first  proposition  on  which  the  plaintiff's  case  rests. 

I  come  now  to  the  second  proposition,  that  the  decisions  in  respect 
of  master  and  servant,  and  the  seducing  of  the  latter  from  the  employ 
of  the  former,  are  exceptions  grafted  on  the  general  law  traceable 
up  to  the  Statute  of  Labourers.  This  is  of  course  distinct  from  the 
question  of  the  extent  of  the  exception,  that  is,  to  what  classes  of 
servants  it  applies :  but  the  enquiries  are  so  connected  together  in  fact, 
and  the  latter  has  so  obvious  a  bearing  in  support  of  the  former,  that 
it  will  be  better  to  take  them  both  together. 


Ch.  2)  TORTS    THROUGH    MALICE  1243 

Now,  in  the  first  place,  I  cannot  find  any  instance  of  this  action 
having  been  brought  before  the  statute  passed;  the  weight  of  which 
fact  is  much  increased  by  finding  that  it  was  of  common  occurrence 
very  soon  after.  The  evidence  for  it  is  not  merely  negative,  for  the 
mischief  and  the  cause  of  action  appear  to  have  been  well  known 
before,  and  the  want  of  the  remedy  felt.  The  common  law  did  give 
a  remedy  in  certain  cases ;  and  Judges  are  found  pointing  out  what 
that  remedy  was,  and  to  what  cases  it  applied.  From  the  cases  col- 
lected in  Fitzherbert's  Abridgment,  tit.  Laborers,  it  appears  that 
the  distinction  between  the  action  at  common  law  and  the  action  up- 
on the  statute  was  well  known :  wherever  the  former  action  lay  it 
was  in  trespass,  and  not  on  the  case:  in  saying  which  I  do  not  rely 
merely  on  the  words, — writ  of  trespass, — which  might  be  applicable 
to  trespass  on  the  case ;  but  I  rely  on  the  operative  words  of  the 
writ,  which  stated  a  taking  vi  et  armis:  it  might  be  joined  with 
trespass  quare  clausum  fregit  or  trespass  for  the  asportation  of 
chattels  or  false  imprisonment.  The  count  necessarily  charged  the 
taking  of  the  servant  out  of  the  service  of  the  plaintiff;  whereas  the 
writ  upon  the  statute,  as  appears  from  Fitzherbert's  Natura  Brevium, 
167  B,  charges  the  retainer  and  admission  of  the  servant  into  the 
defendant's  service  after  he  has  been  induced  to  withdraw,  or  has 
withdrawn  without  reasonable  cause,  from  that  of  the  plaintiff.  I 
do  not  wish  unnecessarily  to  multiply  citations  from  the  Year  Books ; 
but  it  will  be  necessary  to  refer  to  some,  and  at  a  greater  length  than 
they  are  found  in  the  abridgments.     *     *     * 

Any  one,  I  am  certain,  who  will  go  through  the  cases  abstracted 
by  Fitzherbert  under  the  title  Laborers,  will  be  satisfied  that  at  com- 
mon law,  before  the  statute,  such  an  action  as  the  present  could  not 
be  maintained.  Under  that  title  61  cases  are  abridged :  many  of 
them  are  for  the  seduction  of  servants;  but  there  is  no  instance  of 
any  one  in  which  the  action  at  common  law  was  sustained,  unless 
an  actual  trespass  was  charged :  and  it  is  clear  from  the  case  which 
I  have  cited  at  so  much  length,  that  the  distinction  between  taking 
^and  procuring  to  go  was  familiar  to  the  lawyers  of  that  day.  I  can 
hardly  imagine  that  this  could  have  been  said,  if  the  common  law 
would  have  given  relief  in  such  a  case :  and,  if  it  could,  the  rapid 
growth  of  the  action  after  the  Statute  of  Labourers  had  passed  would 
be  difficult  to  account  for. 

I  come  then  to  the  Statute  of  Labourers  (23  Edw.  Ill) ;  and  my 
object  now  is  to  show  that  nothing  in  the  provisions  or  policy  of  that 
statute  will  warrant  the  action  under  the  circumstances  of  this  case; 
and  that  the  older  authorities  are  decidedly  against  it.     *     *     * 

I  conclude  then  that  this  action  cannot  be  maintained,  because: 
1st.  Merely  to  induce  or  procure  a  free  contracting  party  to  break 
his  covenant,  whether  done  maliciously  or  not,  to  the  damage  of 
another,  for  the  reasons  I  have  stated,  is  not  actionable.  2nd.  That 
the  law  with  regard  to  the  seduction  of  servants  from  their  master's 


1244  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

employ,  in  breach  of  their  contract,  is  an  exception,  the  origin  of 
which  is  known,  and  that  that  exception  does  not  reach  the  case  of 
a  theatrical  performer. 

I  know  not  whether  it  may  be  objected  that  this  judgment  is  con- 
ceived in  a  narrow  spirit,  and  tends  unnecessarily  to  restrain  the  reme- 
dial powers  of  the  law.  In  my  opinion  it  is  not  open  to  this  objection. 
It  seems  to  me  wiser  to  ascertain  the  powers  of  the  instrument  with 
which  you  work,  and  employ  it  only  on  subjects  to  which  they  are 
equal  and  suited;  and  that,  if  you  go  beyond  this,  you  strain  and 
weaken  it,  and  attain  but  imperfect  and  unsatisfactory  and  often 
unjust,  results.  But,  whether  this  be  so  or  not,  we  are  limited  by  only 
the  principles  and  analogies  which  we  find  laid  down  for  us,  and  are 
to  declare,  not  to  make,  the  rule  of  law. 

I  think,  therefore,  with  the  greatest  and  most  real  deference  for 
the  opinions  of  my  Brethren,  and  with  all  the  doubt  as  to  the  cor- 
rectness of  my  own  which  these  opinions,  added  to  the  novelty  and 
difficulty  of  the  case  itself,  cannot  but  occasion,  ihat  our  judgment 
ought  to  be  for  the  defendant:  though  it  must  be  pronounced  for 
the  plaintiff. 

Judgment  for  plaintiff.^^ 


LA  SOClfiTfi  ANONYME  DE  REINTORQUAGE  A  HELICE  v. 

BENNETTS. 

(High  Court  of  Justice,  King'.s  Bench  Division,  1910.    [1911]  1  K.  B.  243.) 

Action  tried  in  the  Commercial  Court  before  Hamilton,  J.,  without 
a  jury. 

The  plaintiffs  claimed  to  recover  damages  suffered  by  them  by  rea- 
son of  the  negligence  of  the  defendant's  servants.  The  facts,  so  far 
as  material,  were  as  follows. 

On  April  4,  1910,  the  steam  tug  John  Bull,  belonging  to  the  plain- 
tiffs, was  engaged  in  towing  the  ship  Kate  Thomas  from  Antwerp  to 
Port  Talbot,  South  Wales,  when  the  steamship  India,  belonging  to. 
the  defendant,  by  the  negligence  of  defendant's  servants,  came  into 
collision  with  and  sank  the  Kate  Thomas.  The  tug  received  no  dam- 
age either  to  herself  or  to  her  equipment.  The  plaintiff's  alleged  that 
by  reason  of  the  negligence  of  the  defendant's  servants  they  were  de- 
prived of  their  tow  and  lost  the  towage  remuneration  they  would 
otherwise  have  received,  and  claimed  £80,  as  the  amount  of  the  tow- 
age remuneration  so  lost,  that  being  the  remuneration  fixed  by  the  con- 
tract for  the  towage  of  the  Kate  Thomas  from  Antwerp  to  Port  Tal- 
bot. At  the  time  of  the  acccident  about  four-fifths  of  the  voyage  from 
Antwerp  to  Port  Talbot  had  been  completed.  The  defendant  con- 
is  A  large  part  of  the  opinion  of  Crompton,  J.,  all  of  the  concurring  opin- 
ions of  Kile  and  Wightniau,  JJ.,  and  portions  of  the  dissenting  opinion  of 
Coleridge,  J.,  are  omitted. 


Ch.  2)  TORTS   THROUGH    MALICE  1245 

tended  that  the  plaintiff  had  no  cause  of  action  in  respect  of  the  loss 
of  the  towage  remuneration  upon  the  ground  that,  although  there  was 
negligence  on  the  part  of  the  defendant's  servants,  the  loss  of  towage 
remuneration  was  not  damage  to  the  plaintiffs  which  was  the  direct 
consequence  of  the  negligence  so  as  to  be  recoverable  in  law. 

It  appeared  from  the  report  of  the  master  of  the  John  Bull  that, 
seeing  that  the  Kate  Thomas  was  in  the  most  alarming  sinking  con- 
dition after  the  collision,  he  immediately  cast  off  the  hawser  in  order 
to  be  able  to  render  assistance  to  the  ship,  but  that  before  reaching 
the  place  of  the  disaster  she  had  sunk.  The  defendant  paid  the  plain- 
tiffs for  the  loss  of  the  hawser.  Clause  9  of  the  towage  contract  pro- 
vided as  follows:  "Sea  towage  interrupted  by  accident  to  be  paid 
pro  ratio  of  distance  towed." 

Hamilton,  J.  *  ''^  *  In  my  opinon  the  plaintiffs  have  no 
cause  of  action.  The  obligation  upon  the  defendant  which  was  brok- 
en by  his  servants  was  the  general  one  of  navigating  the  seas  with 
reasonable  care.  In  order  to  give  the  plaintiffs  a  cause  of  action 
arising  out  of  that  breach,  they  must  show  not  only  injuria,  namely, 
the  breach  of  the  defendant's  obligation,  but  also  damnum  to  them- 
selves in  the  sense  of  damage  recognized  by  law.  This  they  have 
failed  to  do.  No  doubt,  as  a  direct  consequence  of  the  collision,  in 
one  sense,  the  plaintiffs  lost  the  chance  of  completing  their  towage 
contract,  because  the  Kate  Thomas  went  to  the  bottom.  If  the  plain- 
tiffs' cause  of  action  had  been  completed  by  damage  to  the  tow  in- 
flicted by  the  defendant's  servants  whereby  the  tug  was  no  longer 
able  to  tow,  then  the  case  would  come  within  Lord  Stowell's  decision 
in  The  Betsey  Caines,  2  Hagg.  Adm.  28,  and  the  decision  of  the 
House  of  Lords  in  The  Argentino,  14  App.  Cas.  519,  would  apply. 
But  all  that  has  occurred  is  that  in  the  course  of  performing  a  prof- 
itable contract  an  event  happened  which  rendered  the  contract  no 
further  performable  and  therefore  less  profitable  to  the  plaintiffs. 
That  appears  to  me  to  bring  the  case  within  the  authority  of  Cattle  v. 
Stockton  Waterworks  Co.,  L.  R.  10  Q.  B.  453,  and  within  the  general 
statement  of  the  law  by  Lord  Penzance  in  his  judgment  in  Simpson 
V.  Thomson,  3  App.  Cas.  279.  It  has  been  suggested  that  a  distinc- 
tion can  be  drawn  between  a  case  where  the  contract  has  been  en- 
tered into  but  performance  of  it  has  not  been  entered  upon,  in  which 
case  it  is  admitted  on  the  plaintiffs'  behalf  that  the  loss  does  not  give 
a  cause  of  action,  and  a  case  where  the  contract  has  not  only  been 
entered  into,  but  performance  of  it  has  commenced.  No  authority  has 
been  cited  for  making  such  a  distinction  and  1  can  see  none  in  principle. 
I  think  this  case  involves  the  very  point  anticipated  by  Blackburn,  J., 
in  Cattle  v.  Stockton  Waterworks  Co.,  L.  R.  10  O.  B.  453,  where  in 
giving  judgment  he  said :  "In  the  present  case  the  objection  is  technical 
and  against  the  merits,  and  we  should  be  glad  to  avoid  giving  it  effect. 
But  if  we  did  so  we  should  establish  an  authority  for  saying  that  in 
such  a  case  as  that  of  Rylands  v.  Fletcher  (1868)  L.  R.  3  H.  L.  330, 


1246  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

the  defendant  would  be  liable,  not  only  to  an  action  by  the  owner  of 
the  drowned  mine,  and  by  such  of  his  workmen  as  had  their  tools 
or  clothes  destroyed,  but  also  to  an  action  by  every  workman  and  person 
employed  in  the  mine,  who  in  consequence  of  its  stoppage  made  less 
wages  than  he  otherwise  would  have  done."  It  can  make  no  substantial 
difference  whether  a  contract  which  has  been  entered  into  is  already  in 
the  course  of  performance  or  is  only  about  to  be  performed.  In  either 
case  all  that  has  happened  is  that  the  conditions  under  which  the  con- 
tract was  performable  have  been  altered  by  the  act  of  the  defendant 
so  as  to  make  them  less  favorable  to  one  of  the  contracting  parties, 
namely,  to  the  plaintiffs.  I  can  understand  that  the  law  might  regard 
any  interference  by  the  defendant  with  the  plaintiffs'  contractual  chanc- 
es with  a  third  party  as  a  ground  of  action  in  their  favor,  but  I  can- 
not understand  why,  as  the  policy  of  the  law  excludes  a  right  of  action 
in  the  one  case,  where  the  contract  has  been  made  but  not  performed, 
it  should  give  a  cause  of  action  in  the  other  case,  where  part  per- 
formance has  taken  place.  There  must  therefore,  be  judgment  for 
the  defendant. 

Judgment  for  the  defendant.^' 


TUTTLE  V.  BUCK. 

(Supreme  Court  of  Minnesota,  1909.    107  Minn.  14.5,  119  N.  W.  946,  22  L.  R.  A. 
[N.  S.]  599,  131  Am.  St.  Rep.  446,  16  Ann.  Cas.  807.) 

Elliott,  J.  This  appeal  was  from  an  order  overruling  a  general 
demurrer  to  a  complaint  in  which  the  plaintiff  alleged :  That  for 
more  than  10  years  last  past  he  has  been  and  still  is  a  barber  by  trade, 
and  engaged  in  business  as  such  in  the  village  of  Howard  Lake,  Minn., 
in  said  county,  where  he  resides,  owning  and  operating  a  shop  for  the 
purpose  of  his  said  trade.  That  until  the  injury  hereinafter  com- 
plained of  his  said  business  was  prosperous,  and  plaintiff  was  enabled 
thereby  to  comfortably  maintain  himself  and  family  out  of  the  income 
and  profits  thereof,  and  also  to  save  a  considerable  sum  per  annum, 
to  wit,  about  $800.  That  the  defendant,  during  the  period  of  about 
12  months  last  past,  has  wrongfully,  unlawfully,  and  maliciously  en- 
deavored to  destroy  plaintiff's  said  business  and  compel  plaintiff  to 
abandon  the  same.  That  to  that  end  he  has  persistently  and  system- 
atically sought,  by  false  and  malicious  reports  and  accusations  of  and 
concerning  the  plaintiff,  by  personally  soliciting  and  urging  plaintiff's 
patrons  no  longer  to  employ  plaintiff,  by  threats  of  his  personal  dis- 
pleasure, and  by  various  other  unlawful  means  and  devices,  to  induce, 
and  has  thereby  induced,  many  of  said  patrons  to  withhold  from  plain- 
tiff the  employment  by  them  formerly  given.  That  defendant  is  pos- 
sessed of  large  means,  and  is  engaged  in  the  business  of  a  banker  in 

i»  Fait  of  tlie  opinion  is  omitted. 


Ch.  2)  TORTS   THROUGH    MALICE  1247 

said  village  of  Howard  Lake,  at  Dassel,  Minn.,  and  at  divers  other 
places,  and  is  nowise  interested  in  the  occupation  of  a  barber;  yet  in 
the  pursuance  of  the  wicked,  malicious,  and  unlawful  purpose  afore- 
said, and  for  the  sole  and  only  purpose  of  injuring  the  trade  of  the 
plaintiff,  and  of  accomplishing  his  purpose  and  threats  of  ruining  the 
plaintiff's  said  business  and  driving  him  out  of  said  village,  the  defend- 
ant fitted  up  and  furnished  a  barber  shop  in  said  village  for  conducting 
the  trade  of  barbering.  That  failing  to  induce  any  barber  to  occupy 
said  shop  on  his  own  account,  though  offered  at  nominal  rental,  said 
defendant,  with  the  wrongful  and  malicious  purpose  aforesaid,  and  not 
otherwise,  has  during  the  time  herein  stated  hired  two  barbers  in  suc- 
cession for  a  stated  salary,  paid  by  him,  to  occupy  said  shop,  and  to 
serve  so  many  of  plaintiff's  patrons  as  said  defendant  has  been  or  may 
be  able  by  the  means  aforesaid  to  direct  from  plaintiff's  shop.  That 
at  the  present  time  a  barber  so  employed  and  paid  by  the  defendant  is 
occupying  and  nominally  conducting  the  shop  thus  fitted  and  fur- 
nished by  the  defendant,  without  paying  any  rent  therefor,  and  under 
an  agreement  with  defendant  whereby  the  income  of  said  shop  is  re- 
quired to  be  paid  to  defendant,  and  is  so  paid  in  partial  return  for  his 
wages.  That  all  of  said  things  were  and  are  done  by  defendant  with 
the  sole  design  of  injuring  the  plaintiff,  and  of  destroying  his  said 
business,  and  not  for  the  purpose  of  serving  any  legitimate  interest  of 
his  own.  That  by  reason  of  the  great  wealth  and  prominence  of  the 
defendant,  and  the  personal  and  financial  influence  consequent  thereon, 
he  has  by  the  means  aforesaid,  and  through  other  unlawful  means  and 
devices  by  him  employed,  materially  injured  the  business  of  the  plain- 
tiff", has  largely  reduced  the  income  and  profits  thereof,  and  intends 
and  threatens  to  destroy  the  same  altogether,  to  plaintiff's  damage  in 
the  sum  of  $10,000. 

It  has  been  said  that  the  law  deals  only  with  externals,  and  that  a 
lawful  act  cannot  be  made  the  foundation  of  an  action  because  it  was 
done  with  an  evil  motive.  In  Allen  v.  Flood,  [1898]  A.  C.  151,  Lord 
Watson  said  that,  except  with  regard  to  crimes,  the  law  does  not  take 
into  account  motives  as  constituting  an  element  of  civil  wrong.  In 
Mayor  v.  Pickles,  [1895]  A.  C.  587,  Lord  Halsbury  stated  that  if  the 
act  was  lawful,  "however  ill  the  motive  might  be,  he  had  a  right  to 
do  it."  In  Raycroft  v.  Tayntor,  68  Vt.  219,  35  Atl.  53,  33  L.  R.  A. 
225,  54  Am.  St.  Rep.  882,  the  court  said  that,  "where  one  exercises  a 
legal  right  only,  the  motive  which  actuates  him  is  immaterial."  In 
Jenkens  v.  Fowler,  24  Pa.  318,  Mr.  Justice  Black  said  that  "mis- 
chievous motives  make  a  bad  case  worse,  but  they  cannot  make  that 
wrong  which  in  its  own  essence  is  lawful."  This  language  was  quoted 
in  Bohn  Mfg.  Co.  v.  Hollis,  54  Minn.  233,  55  N.  \V.  1119,  21  L.  R.  A. 
337,  40  Am.  St.  Rep.  319,  and  in  substance  in  Ertz  v.  Produce  Ex- 
change, 79  Minn.  143,  81  N.  W.  72>7 ,  48  L.  R.  A.  90,  79  Am.  St. 
Rep.  433.  See,  also,  Cooley,  Torts  f3d  Ed.)  p.  1505;  Auburn  &  Co.  v. 
Douglass,  9  N.  Y.  444.     Such  generalizations  are  of  little  value  in  dc- 


1248  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY  (Part  3 

termining  concrete  cases.  They  may  state  the  truth,  but  not  the  whole 
truth.  Each  word  and  phrase  used  therein  may  require  definition  and 
Hmitation.  Thus,  before  we  can  apply  Judge  Black's  language  to  a 
particular  case,  we  must  determine  what  act  is  "in  its  own  essence  law- 
ful." What  did  Lord  Halsbury  mean  by  the  words  "lawful  act"? 
What  is  meant  by  "exercising  a  legal  right"  ?  It  is  not  at  all  correct  to 
say  that  the  motive  with  which  an  act  is  done  is  always  immaterial, 
providing  the  act  itself  is  not  unlawful.  Numerous  illustrations  of  the 
contrary  will  be  found  in  the  civil  as  well  as  the  criminal  law. 

We  do  not  intend  to  enter  upon  an  elaborate  discussion  of  the  sub- 
ject, or  become  entangled  in  the  subtleties  connected  with  the  words 
"malice"  and  "malicious,"  We  are  not  able  to  accept  without  limita- 
tions the  doctrine  above  referred  to,  but  at  this  time  content  ourselves 
with  a  brief  reference  to  some  general  principles.  It  must  be  remem- 
bered that  the  common  law  is  the.  result  of  growth,  and  that  its  de- 
velopment has  been  determined  by  the  social  needs  of  the  community 
which  it  governs.  It  is  the  resultant  of  conflicting  social  forces,  and 
those  forces  which  are  for  the  time  dominant  leave  their  impress  upon 
the  law.  It  is  of  judicial  origin,  and  seeks  to  establish  doctrines  and 
rules  for  the  determination,  protection,  and  enforcement  of  legal  rights. 
Manifestly  it  must  change  as  society  changes  and  new  rights  are  recog- 
nized. To  be  an  efficient  instrument,  and  not  a  mere  abstraction,  it 
must  gradually  adapt  itself  to  changed  conditions.  Necessarily  its 
form  and  substance  has  been  greatly  affected  by  prevalent  economic 
theories.  For  generations  there  has  been  a  practical  agreement  upon 
the  proposition  that  competition  in  trade  and  business  is  desirable, 
and  this  idea  has  found  expression  in  the  decisions  of  the  courts  as 
well  as  in  statutes.  But  it  has  led  to  grievous  and  manifold  wrongs  to 
individuals,  and  many  courts  have  manifested  an  earnest  desire  to 
protect  the  individuals  from  the  evils  which  result  from  unrestrained 
business  competition.  The  problem  has  been  to  so  adjust  matters  as 
to  preserve  the  principle  of  competition  and  yet  guard  against  its  abuse 
to  the  unnecessary  injury  to  the  individual.  So  the  principle  that  a 
man  may  use  his  own  property  according  to  his  own  needs  and  desires, 
while  true  in  the  abstract,  is  subject  to  many  limitations  in  the  con- 
crete. Men  cannot  always  in  civilized  society,  be  allowed  to  use  their 
own  property  as  their  interests  or  desires  may  dictate  without  refer- 
ence to  the  fact  that  they  have  neighbors  whose  rights  are  as  sacred 
as  their  own.  The  existence  and  well-being  of  society  requires  that 
each  and  every  person  shall  conduct  himself  consistently  with  the  fact 
that  he  is  a  social  and  reasonable  person.  The  purpose  for  which  a 
man  is  using  his  own  property  may  thus  sometimes  determine  his 
rights,  and  applications  of  this  idea  arc  found  in  Stillwater  Water  Co. 
V.  Farmer,  89  Minn.  58,  93  N.  W.  907,  60  L.  R.  A.  875,  99  Am.  St. 
Rep.  541,  Id.,  92  Minn.  230,  99  N.  W.  882,  and  Barclay  v.  Abraham, 
121  Iowa,  619,  96  N.  W.  1080,  64  L.  R.  A.  255,  100  Am.  St.  Rep.  365. 

Many  of  the  restrictions  which  should  be  recognized  and  enforced 


Ch.  2)  TORTS   THROUGH   MALIOB  1249 

result  from  a  tacit  recognition  of  principles  which  are  not  often  stated 
in  the  decisions  in  express  terms.  Sir  Frederick  Pollock  notes  that 
not  many  years  ago  it  was  dififiicult  to  find  any  definite  authority  for 
stating  as  a  general  proposition  of  English  law  that  it  is  wrong  to 
do  a  willful  wrong  to  one's  neighhor  without  lawful  justification  or 
excuse.  But  neither  is  there  any  express  authority  for  the  general 
proposition  that  men  must  perform  their  cont'racts.  Both  principles,  in 
this  generality  of  form  and  conception,  are  modern  and  there  was 
a  time  when  neither  was  true.  After  developing  the  idea  that  law 
begins,  not  with  authentic  general  principles,  but  with  the  enumeration 
of  particular  remedies,  the  learned  writer  continues :  "If  there  exists, 
then,  a  positive  duty  to  avoid  harm,  much  more,  then,  exists  the 
negative  duty  of  not  doing  willful  harm,  subject,  as  all  general  duties 
must  be  subject,  to  the  necessary  exceptions.  The  three  main  heads  of 
duty  with  which  the  law  of  torts  is  concerned,  namely,  to  abstain  from 
willful  injury,  to  respect  the  property  of  others,  and  to  use  due  dili- 
gence to  avoid  causing  harm  to  others,  are  all  alike  of  a  comprehensive 
nature."  Pollock,  Torts  (8th  Ed.)  p.  21.  He  then  quotes  with  ap- 
proval the  statement  of  Lord  Bowen  that  "at  common  law  there  was 
a  cause  of  action  whenever  one  person  did  damage  to  another,  will- 
fully and  intentionally,  without  just  cause  and  excuse."  In  Plant  v. 
Woods,  176  Mass.  492,  57  N.  E.  1011,  51  L.  R.  A.  339,  79  Am.  St. 
Rep.  330,  ]\Ir.  Justice  Hammond  said :  "It  is  said,  also,  that,  where 
one  has  the  lawful  right  to  do  a  thing,  the  motive  by  which  he  is 
actuated  is  immaterial.  One  form  of  this  statement  appears  in  the 
first  headnote  in  Allen  v.  Flood,  as  reported  in  [1898]  A.  C.  1,  as  fol- 
lows :  'An  act  lawful  in  itself  is  not  converted  by  a  malicious  or  bad 
motive  into  an  unlawful  act,  so  as  to  make  the  doer  of  the  act  liable 
to  a  civil  action.'  If  the  meaning  of  this  and  similar  expressions  is 
that,  where  a  person  has  the  lawful  right  to  do  a  thing  irrespective  of 
his  motive,  his  motive  is  immaterial,  the  proposition  is  a  mere  truism. 
If,  however,  the  meaning  is  that  where  a  person,  if  actuated  by  one 
kind  of  a  motive,  has  a  lawful  right  to  do  a  thing,  the  act  is  lawful 
when  done  under  any  conceivable  motive,  or  that  an  act  lawful  under 
one  set  of  circumstances  is  therefore  lawful  under  every  conceivable 
set  of  circumstances,  the  proposition  does  not  commend  itself  to  us 
as  either  logically  or  legally  accurate."  Similar  language  was  used  by 
Mr.  Justice  Wells  in  Walker  v.  Cronin,  107  Mass.  555 ;  by  Lord 
Coleridge  in  Mogul  Steamship  Co.  v.  McGregor,  21  Q.  B.  D.  544-553 ; 
by  Lord  Justice  Bowen  in  the  same  case,  22)  Q.  B.  D.  593 ;  by  Mr. 
Justice  Holmes  in  Aikens  v.  Wisconsin,  195  U.  S.  194,  204,  25  Sup. 
Ct.  3,  49  L.  Ed.  154;  by  Chief  Justice  McSherry  in  Klingel's  Pharma- 
cy V.  Sharp,  104  Md.  233,  64  Atl.  1029,  7  L.  R.  A.  (N.  S.)  976,  118 
Am.  St.  Rep.  399,  9  Ann.  Cas.  1184;  and  by  Judge  Sanborn  in  his 
dissenting  opinion  in  Passaic  Print  Works  v.  Ely  &  Walker  Dry  Goods 
Co.,  105  Fed.  163,  44  C.  C.  A.  426,  62  L.  R.  A.  672>.  Numerous  cases 
Hepb. Torts — 79 


1250  TORTS  THROUGH  ACTS   OF  CONDITIONAL   LIABILITY         (Part  o 

will  be  found  referred  to  in  the  note  to  this  case  in  62  L-  R.  A.  673,  and 
in  an  article  in  18  Harvard  Law  Review,  411. 

It  is  freely  conceded  that  there  are  many  decisions  contrary  to  this 
view;  but,  when  carried  to  the  extent  contended  for  by  the  appel- 
lant, we  think  they  are  unsafe,  unsound,  and  illy  adapted  to  modern 
conditions.  To  divert  to  one's  self  the  customers  of  a  business  rival 
by  the  offer  of  goods  at  lower  prices  is  in  general  a  legitimate  mode  of 
serving  one's  own  interest,  and  justifiable  as  fair  competition.  But 
when  a  man  starts  an  opposition  place  of  business,  not  for  the  sake 
of  profit  to  himself,  but  regardless  of  loss  to  himself,  and  for  the  sole 
purpose  of  driving  his  competitor  out  of  business,  and  with  the  inten- 
tion of  himself  retiring  upon  the  accomplishment  of  his  malevolent 
purpose,  he  is  guilty  of  a  wanton  wrong  and  an  actionable  tort.  In 
such  a  case  he  would  not  be  exercising  his  legal  right,  or  doing  an  act 
which  can  be  judged  separately  from  the  motive  which  actuated  him. 
To  call  such  conduct  competition  is  a  perversion  of  terms.  It  is 
simply  the  application  of  force  without  legal  justification,  which  in  its 
moral  quality  may  be  no  better  than  highway  robbery. 

Nevertheless,  in  the  opinion  of  the  writer  this  complaint  is  insuffi- 
cient. It  is  not  claimed  that  it  states  a  cause  of  action  for  slander. 
No  question  of  conspiracy  or  combination  is  involved.  Stripped  of 
the  adjectives  and  the  statement  that  what  was  done  was  for  the  sole 
purpose  of  injuring  the  plaintiff,  and  not  for  the  purpose  of  serving 
a  legitimate  purpose  of  the  defendant,  the  complaint  states  facts  which 
in  themselves  amount  only  to  an  ordinary  everyday  business  transac- 
tion. There  is  no  allegation  that  the  defendant  was  intentionally  run- 
ning the  business  at  a  financial  loss  to  himself,  or  that  after  driving 
the  plaintiff  out  of  business  the  defendant  closed  up  or  intended  to 
close  up  his  shop.  From  all  that  appears  from  the  complaint  he  may 
have  opened  the  barber  shop,  energetically  sought  business  from  his 
acquaintances  and  the  customers  of  the  plaintiff,  and  as  a  result  of 
his  enterprise  and  command  of  capital  obtained  it,  with  the  result  that 
the  plaintiff,  from  want  of  capital,  acquaintance,  or  enterprise,  was 
unable  to  stand  the  competition  and  was  thus  driven  out  of  business. 
The  facts  thus  alleged  do  not,  in  my  opinion,  in  themselves,  without 
reference  to  the  way  in  which  they  are  characterized  by  the  pleader, 
tend  to  show  a  malicious  and  wanton  wrong  to  the  plaintiff. 

A  majority  of  the  Justices,  however,  are  of  the  opinion  that,  on  the 
principle  declared  in  the  foregoing  opinion,  the  complaint  states  a 
cause  of  action,  and  the  order  is  therefore  affirmed. 

Affirmed. 

Jaggard,  J,,  dissents. 


Ch.  2)  TORTS  THROUGH   MALICE  1251 


HUSKIE  V.  GRIFFIN. 

(Supreme  Court  of  New  Hampshire,  1909.     75  N.  H.  345,  74  Atl.  595, 
27  L.  R.  A.  [N.  S.]  966,  139  Am.  St.  Rep.  718.) 

In  this  action,  by  Huskie  against  Griffin,  there  was  a  judgment  of 
nonsuit  in  the  superior  court,  and  the  case  was  transferred  on  the 
plaintiff's  exception. 

The  plaintiff's  evidence  tended  to  prove  that,  while  he  was  em- 
ployed by  the  defendant,  he  applied  for  an  increase  of  wages,  and 
was  told  by  the  defendant's  superintendent  that  he  was  at  liberty  to 
leave  at  any  time  if  he  could  better  himself.  He  sought  employment 
elsewhere,  and  one  day  received  a  note  stating  that  he  could  have 
work  at  the  McElwain  factory.  He  showed  the  note  to  Griffin's  super- 
intendent, who  made  no  objection  to  the  proposed  action,  but  at  once 
went  to  the  office  and  drew  the  plaintiff's  wages  for  him.  As  soon 
as  the  plaintiff  had  left.  Griffin  telephoned  to  Trull,  superintendent  of 
the  McElwain  shop.  .  Trull's  testimony  as  to  the  conversation  was  in 
part  as  follows:  "He  telephoned  and  said  there  was  a  man  from 
my  factory  came  up  to  his  factory  with  a  note  and  hired,  or  was  about 
to  hire,  one  of  his  men,  right  in  the  middle  of  the  day,  and  wanted  to 
know  if  I  thought  that  was  a  nice  thing  to  do.  I  said  it  was  not,  and 
that  I  would  not  hire  the  man;  and  when  I  found  out  about  it  I 
told  our  man  not  to  hire  him.  Q.  That  is,  you  instructed  your  agent 
not  to  hire  him?  A.  Yes,  sir;  but  after  that  Griffin  told  me  I  could 
hire  him,  but  I  told  him  I  didn't  want  him.  Q.  That  was  a  little 
ironical,  wasn't  it.  Air.  Trull?  A.  Well,  during  the  same  conversa- 
tion, right  afterward,  he  said,  'You  can  have  him  if  you  want  him, 
you  can  hire  him.'  Q.  And  you  understood  that  to  be  a  little  bit 
ironical,  didn't  you.  A.  I  didn't  understand  anything  about  it.  Q. 
Well,  you  didn't  hire  him,  anyhow?  A.  No,  sir;  I  didn't  hire  him." 
On  cross-examination,  the  witness  stated  the  conversation  more  fa- 
vorable to  the  defendant.  When  the  plaintiff  reached  the  McElwain 
factory  he  was  refused  employment.  He  then  returned  to  the  de- 
fendant, who  complained  because  the  plaintiff  received  a  note  in  the 
shop.  The  conversation  became  heated,  and  the  defendant  refused  to 
comply  with  the  plaintiff's  request  to  telephone  to  Trull  and  adjust  the 
matter. 

PEaslh;^,  J.  The  parties  to  this  action  do  not  agree  as  to  wliat 
facts  the  evidence  tended  to  prove.  The  defendant  argues  that  be- 
cause he  asked  Trull  to  retain  the  plaintiff  as  an  employe  therefore 
it  cannot  be  found  that  the  defendant  sought  to  cause  the  plaintiff's 
discharge  by  Trull.  The  plaintiff"'s  claim  is  that  the  request  to  retain 
him  might  be  found  to  be  a  mere  cover,  well  understood  by  both 
parties  to  the  conversation.  His  claim  is  well  founded.  A  jury  might 
believe  that  the  complaint  made  by  the  defendant  to  Trull  was  false, 
and  that  the  defendant,  after  he  had  encouraged  the  plaintiff'  to  seek 


1252  TORTS  THROUGH  ACTS   OF  CONDITIONAL   LIABILITY         (Part  3 

employment  elsewhere,  maliciously  caused  the  plaintiff's  discharge 
from  such  new  employment.  The  plaintiff's  engagement  was  not  for 
any  certain  period.  Trull  might  lawfully  discharge  him  at  any  time. 
It  therefore  follows  that  cases  involving  recovery  for  procuring  the 
breach  of  a  binding  executory  contract  (Bixby  v.  Dunlap,  56  N.  H. 
456,  22  Am.  Rep.  475 ;  South  Wales  Miners'  Fed.  v.  Glamorgan  Coal 
Co.,  [1905]  A.  C.  239)  are  not  in  point  here.  The  issue  presented  is 
that  of  the  existence  and  extent  of  what  has  come  to  be  known  as  the 
right  to  an  "open  market."  How  far  one  may  lawfully  interfere  to 
prevent  the  making  of  contracts  between  third  parties  is  a  problem 
which  has  been  much  discussed  in  other  jurisdictions.  It  is  new  in 
this  state.  Three  phases  of  it  are  presented  by  the  case  at  bar :  (1) 
When  the  interference  is  by  fraud ;  (2)  when  it  is  without  fraud  or 
force  (actually  applied  or  reasonably  apprehended),  but  prompted  by 
a  motive  to  injure  the  aggrieved  party;  (3)  when  it  is  unaccompanied 
by  what  are  ordinarily  considered  illegal  acts  or  motives,  and  is  in- 
duced solely  by  a  desire  of  the  defendant  to  promote  his  own  welfare. 

1.  It  is  well  established  that  the  inherent  right  of  every  man  to 
freely  deal,  or  refuse  to  deal,  with  his  fellowmen  is  not  to  be  de- 
stroyed or  abridged  by  acts  involving  the  elements  of  the  common-law 
action  for  deceit.  This  is  not  denied.  On  this  branch  of  the  case  the 
defendant  relies  upon  the  proposition  that  the  facts  are  not  made  out. 
He  concedes,  as  he  plainly  must  concede,  that  the  law  is  in  favor  of 
the  plaintift''s  position,  provided  only  that  there  is  evidence  to  support 
the  several  necessary  findings.  As  before  stated,  there  was  evidence  in 
this  case  which,  if  believed  by  the  jury,  would  lead  to  the  conclusion 
that  the  defendant  was  guilty  of  fraud.  It  could  be  found  that  the 
plaintiff'  quit  the  defendant's  employ  in  an  honorable  manner;  that  the 
defendant,  with  knowledge  of  the  facts,  represented  that  the  plaintiff's 
departure  was  dishonorable ;  that  this  was  done  with  the  intent  to  cause 
the  new  employer  to  act  to  the  plaintiff's  damage,  and  that  such  dam- 
aging action  resulted  from  this  cause.  The  plaintiff  was  entitled  to  go 
to  the  jury  upon  the  issue  of  fraud. 

2.  Whether  motive  (when  falsehood  is  absent)  is  a  material  ele- 
ment in  these  cases  is  a  question  upon  which  the  authorities  are  not 
so  fully  agreed.  That  it  is  material,  and  that  where  malice,  or  a  pur- 
pose to  do  the  plaintiff  injury,  is  the  moving  force  to  the  commission 
of  the  act,  a  recovery  may  be  had  is  the  rule  in  maity  jurisdictions. 
Plant  V.  Woods,  176  Mass.  492,  57  N.  E.  1011,  51  L.  R.  A.  339,  79 
Am.  St.  Rep.  330;  Van  Horn  v.  Van  Horn,  56  N.  J.  Law,  318,  28 
Atl.  669;  Doremus  v.  Hennessy,  176  111.  608,  52  N.  E.  924,  54  N.  E. 
524,  43  L.  R.  A.  797,  802,  68  Am.  St.  Rep.  203 ;  Ertz  v.  Produce  Ex- 
change, 79  Minn.  140,  81  N.  W.  7Z7 ,  48  L.  R.  A.  90,  79  Am.  St.  Rep. 
433;  Bowen  v.  Hall,  6  Q.  B.  Div.  333.  The  rule  is  well  stated  in  a 
recent  case  in  California:  "Any  injury  to  a  lawful  business,  whether 
the  result  of  a  conspiracy  or  not,  is  prima  facie  actionable,  but  may  be 
defended  upon  the  ground  that  it  was  merely  the  result  of  a  lawful 


Ch.  2)  TORTS   THROUGH    MALICE  1253 

effort  of  the  defendants  to  promote  their  own  welfare.  To  defeat 
this  plea  of  justification,  the  plaintiff  may  offer  evidence  that  the 
acts  of  the  defendants  were  inspired  by  express  malice,  and  were 
done  for  the  purpose  of  injuring  the  plaintiff,  and  not  to  benefit  them- 
selves. The  principle  is  the  same  which  permits  proof  of  express 
malice  to  defeat  the  plea  of  privilege  in  libel,  or  the  defense  of  prob- 
able cause  in  actions  for  malicious  prosecution  or  false  imprisonment." 
J.  F.  Parkinson  Co.  v.  Trades  Council,  154  Cal.  581,  98  Pac.  1027,  21 
L.  R.  A.  (N.  S.)  550,  16  Ann.  Cas.  1165.  The  opposite  view  is  taken 
by  high  authority.  Macauley  v.  Tierney,  19  R.  I.  255,  33  Atl.  1,  37  L. 
R.  A.  455,  61  Am.  St.  Rep.  770;  Bohn  Mfg.  Co.  v.  Hollis,  54  Minn. 
223,  55  N.  W.  1119,  21  L.  R.  A.  337,  40  Am.  St.  Rep.  319;  Judge 
Jeremiah  Smith  in  20  Harv.  Law  Rev.  451,  et  seq. 

For  the  reason  above  indicated,  and  others  which  will  be  given  in 
the  discussion  of  the  next  issue  in  this  case,  it  is  held  that  a  state- 
ment of  the  truth,  made  for  the  sole  purpose  of  damaging  the  plain- 
tiff' by  causing  a  third  party  to  refuse  to  further  deal  with  the  plain- 
tiff*, is  actionable  if  damage  ensues.  The  state  of  mind  of  an  offend- 
ing person  may  be  proved  in  various  ways.  It  may  appear  that  there 
was  no  good  reason  for  doing  the  act.  In  that  case,  malice  may  be  in- 
ferred from  the  proved  absence  of  other  motive  for  the  act  done.  In 
case  there  be  a  sufficient  justifiable  motive,  it  may  still  be  proved  that 
in  fact  malice  was  the  moving  force.  In  either  case  the  question  is 
one  of  fact.  There  was  in  the  case  at  bar  sufficient  evidence  to  sup- 
port a  finding  that  the  defendant  did  what  he  did  for  the  sole  purpose 
of  depriving  the  plaintiff  of  the  benefit  of  a  contract  for  employ- 
ment. The  question  is  not  what  the  defendant  now  says  his  purpose 
was.  It  is  not  even  what  he  said  his  purpose  was  at  the  time  he 
made  the  complaint  to  Trull.  Nor  is  his  motive  necessary  to  be 
found  in  a  literal  application  of  the  words  he  used.  The  conversa- 
tion as  testified  to  was  susceptible  of  more  than  one  interpretation. 
It  may  have  meant  that  the  defendant  intended  to  cause  the  plaintiff 
to  be  discharged  as  a  matter  of  small  revenge,  and  while  the  defend- 
ant was  formally  protesting  against  the  act  he  had  intentionally  and 
maliciously  caused.  It  is  not,  as  the  defendant  claims,  a  case  of  guess- 
ing. It  is  one  of  interpreting  the  acts  and  words  disclosed  by  the 
evidence  in  the  case.  Upon  this  issue  the  case  should  have  been  sub- 
mitted to  the  jury,  under  instructions  that  if  they  found  the  act  was 
done  solely  for  the  purpose  of  injuring  the  plaintiff  he  was  entitled 
to  recover.  If  the  damage  was  done  "for  its  own  sake,"  liability 
would  be  made  out.  Vegelahn  v.  Guntner,  167  Mass.  92,  44  N.  E. 
1077,  35  h.  R.  A.  722,  57  Am.  St.  Rep.  443,  dissenting  opinion  of 
Holmes,  J. 

3.  Beyond  the  issues  of  fraud  and  malicious  injury  lies  one  which 
has  caused  much  of  perplexity  and  conflicting  adjudication.  How  far 
advantage  may  or  may  not  lawfully  be  gained  by  appeal,  persuasion, 
or  threat  of  loss  of  future  favor — whether  those  not  involved  in  the 


1254  TORTS  THROUGH   ACTS   OF  CONDITIONAL   LIABILITY         (Part  3 

initial  contest  may  be  dragged  into  it  by  these  and  kindred  means — are 
questions  which  courts,  jurists,  and  pubHcists  have  not  found  it  easy 
to  answer.  Between  the  early  view  that  a  peaceful  strike  for  higher 
wages  was  inherently  wicked  (King  v.  Journeymen  Tailors  of  Cam- 
bridge, 8  j\Iod.  11;  In  re  Journeymen  Cordwainers,  Yates,  Sel.  Cas. 
Ill,  277)  and  the  theory  that  all  honest  and  peaceful  means  are  per- 
missible (dis.  op.  Vegelahn  v.  Guntner,  supra),  there  is  room  for  every 
shade  of  opinion.  "It  will  be  seen  that  in  the  dififerent  courts  there 
is  considerable  variety  and  some  conflict  of  opinion."  Berry  v.  Don- 
ovan, 188  Mass.  353,  74  N.  E.  603,  5  L.  R.  A.  (N.  S.)  899,  108  Am. 
St.  Rep.  499,  3  Ann.  Cas.  738.  Cases  where  the  act  complained  of 
was  committed  by  one  person  alone  are  comparatively  rare,  the  plain 
reason  being  that  peaceful  and  truthful  persuasion,  or  promise  of 
future  favor,  by  a  single  individual  is  not  likely  to  produce  results  of 
a  character  so  grave  as  to  induce  the  injured  party  to  seek  redress 
through  the  courts.  But  when  the  act  is  that  of  many  persons,  the 
result  has  not  infrequently  been  to  drive  the  injured  party  out  of 
business  or  deprive  him  of  an  opportunity  to  labor  at  his  chosen  call- 
ing. In  many  cases  it  has  been  decided  that  the  common  law  govern- 
ing criminal  conspiracies  offered  a  sufficient  ground  for  holding  the 
offenders  liable  civilly.  Lohse  Patent  Door  Co.  v.  Fuelle,  215  Mo. 
421,  114  S.  W.  997,  22  L.  R.  A.  (N.  S.)  607,  128  Am.  St.  Rep.  492, 
and  authorities  there  reviewed.  It  was  soon  perceived,  however,  that 
the  argument  was  unsound;  and  the  theory  that  acts  which  might 
lawfully  be  done  by  one  or  any  number  of  persons,  acting  singly,  were 
unlawful  when  done  by  several  acting  by  a  concerted  plan  was  aban- 
doned in  most  jurisdictions.  Boutwell  v.  Marr,  71  Vt.  1,  42  Atl.  607, 
43  L.  R.  A.  803,  76  Am.  St.  Rep.  746;  Toledo,  etc.,  Ry.  v.  Company 
(C.  C.)  54  Fed.  730,  19  L.  R.  A.  387. 

Another  ground  taken  was  that  there  is  in  the  concerted  action  of 
the  many  a  coercive  element  which  should  be  placed  on  a  par  with  the 
use  of  force,  or  with  the  undue  influence  sometimes  exercised  over 
persons  not  fully  capable  of  protecting  themselves.  Boutwell  v.  Marr, 
supra;  Plant  v.  Woods,  176  Mass.  492,  57  N.  E.  1011,  51  L.  R.  A. 
339,  79  Am.  St.  Rep.  330;  Curran  v.  Galen,  152  N.  Y.  33,  46  N.  E. 
297,  37  L.  R.  A.  802,  57  Am.  St.  Rep.  496;  Bohn  Mfg.  Co.  v.  Hollis, 
54  Minn.  223,  55  N.  W.  1119,  21  L.  R.  A.  337,  40  Am.  St.  Rep.  319; 
Casey  v.  Union  (C.  C.)  45  Fed.  135,  12  L.  R.  A.  193.  The  reasoning 
by  which  this  view  has  been  supported  not  infrequently  suggests  the 
true  solution  of  the  difficulty.  The  conclusion  has  been  reached  by 
deciding  what  was  or  was  not  reasonable  conduct  under  the  circum- 
stances of  the  case.  The  more  recent  authorities  reason  that,  as  the 
right  to  deal  or  not  to  deal  with  others  is  inherent  in  the'  idea  of 
Anglo-Saxon  liberty,  prima  facie  a  man  can  demand  an  open  market; 
and,  since  this  is  so,  one  who  interferes  with  this  free  market  must 
justify  his  acts  or  respond  in  damages.  Thus  far  these  authorities 
are  vniform;    but  when  they  proceed  to  the  determination  of  what 


Ch.  2)  TORTS   THROUGH    MALICE  1255 

amounts  to  a  justification,  they  differ  widely.  The  cause  is  not  far 
to  seek.  The  rule  which  they  apply  is  that  of  reasonable  conduct,  yet 
they  discuss  and  decide  each  case  as  though  it  involved  only  a  question 
of  law.  In  reality,  the  issue  is  largely  one  of  fact,  and  the  result  is 
what  would  be  expected.  Judges  are  men,  and  their  decisions  upon 
complex  facts  must  vary  as  those  of  juries  might  on  the  same  facts. 
Calling  one  determination  an  opinion  and  the  other  a  verdict  does  not 
alter  human  nature,  nor  make  that  uniform  and  certain  which  from 
its  nature  must  remain  variable  and  uncertain.  While  these  cases 
go  too  far  in  what  they  decide  as  questions  of  law,  yet  the  test  they 
constantly  declare  they  are  applying  is  the  true  one.  The  standard 
is  reasonable  conduct  under  all  the  circumstances  of  the  case.  Berry 
V.  Donovan,  188  Mass.  353,  74  N.  E.  603,  5  L.  R.  A.  (N.  S.)  899,  108 
Am.  St.  Rep.  499,  3  Ann.  Cas.  738;  Alacauley  v.  Tiernev,  19  R.  I. 
255,  33  Atl.  1,  37  L.  R.  A.  455,  61  Am.  St.  Rep.  770;  Doremus  v. 
Hennessy,  176  111.  608,  52  N.  E.  924,  54  N.  E.  524,  43  L.  R.  A.  797, 
802,  68  Am.  St.  Rep.  203.  "What  is  the  measure  or  test  by  which 
the  conduct  of  a  combination  of  persons  must  be  judged  in  order  to 
determine  whether  or  not  it  is  an  unlawful  interference  with  freedom 
of  employment  in  the  labor  market,  and  as  such  injurious  to  an  em- 
ployer of  labor  in  respect  of  his  'probable  expectancies,'  has  not  as 
yet  been  clearly  defined.  Perhaps  no  better  definition  could  be  sug- 
gested than  that  which  may  be  framed  by  conveniently  using  that 
important  legal  fictitious  person  who. has  taken  such  a  large  part  in 
the  development  of  our  law  during  the  last  fifty  years — the  reasonably 
prudent,  reasonably  courageous,  and  not  unreasonably  sensitive  man. 
Precisely  this  same  standard  is  employed  throughout  the  law  of  nui- 
sance in  determining  what  degree  of  annoyance  *  *  *  one  must 
submit  to."  Jersey  City  Printing  Co.  v.  Cassidy,  63  N.  J.  Eq.  759, 
766,  53  Atl.  230,  233.  Occasionally  courts  have  recognized  in  a  de- 
gree the  principle  that  the  question  should  be  treated  as  one  of  fact. 
"The  judge  rightly  left  to  the  jury  the  question  whether,  in  view  of 
all  the  circumstances,  the  interference  was  or  was  not  for  a  justifiable 
cause.  If  the  plaintift''s  habits,  or  conduct,  or  character  had  been  such 
as  to  render  him  an  unfit  associate  in  the  shop  for  ordinary  work- 
men of  good  character,  that  would  have  been  a  sufficient  reason  for 
interference  in  behalf  of  his  shopmates.  We  can  conceive  of  other 
good  reasons.  But  the  evidence  tended  to  show  that  the  only  rea- 
son for  procuring  his  discharge  was  his  refusal  to  join  the  union. 
The  question,  therefore,  is  whether  the  jury  might  find  that  such  an 
interference  was  unlawful."  Berry  v.  Donovan,  188  Mass.  353,  ZS7, 
74  N.  E.  603,  605,  5  L.  R.  A.  (N.  S.)  899,  108  Am.  St.  Rep.  499,  3 
Ann.  Cas.  738. 

There  is  no  such  difficulty  in  dealing  with  the  question  here  as  has 
been  met  with  elsewhere,  and  it  is  not  necessary  to  attempt  to  recon- 
cile the  conflict  which  has  resulted  from  the  application  of  a  view 
which  does  not  obtain  in  this  jurisdiction.     In  this  state  the  question 


1256  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY         (Part  3 

of  reasonable  conduct,  whether  in  relation  to  tangible  property  or  to 
intangible  rights,  is  one  of  fact.  Ladd  v.  Brick  Co.,  68  N.  H.  185, 
37  Atl.  1041,  and  cases  cited.  But  while  the  question  to  be  settled 
is  within  the  province  of  the  jury,  there  are  still  legal  propositions 
involved  in  the  case.  It  must  be  determined  whether  there  is  any- 
thing for  the  jury  to  weigh — whether  the  evidence  is  not  conclusive 
one  way  or  the  other  upon  the  issue  of  reasonable  conduct. 

At  the  present  time  no  one  w'ould  think  of  submitting  to  a  jury  the 
question  whether  a  peaceful  strike  for  higher  wages  was  reasonable. 
They  would  be  told,  as  matter  of  law,  that  such  action  was  within  the 
laborers'  rights.  So  there  may  be  conduct  wdiicli  is  clearly  unreason- 
able, or  not  justifiable.  An  illustration  of  such  conduct  is  presented 
by  the  second  ground  for  recovery  in  this  case.  One  may  not  inter- 
fere with  his  neighbor's  open  market  or  "reasonable  expectancies" 
solely  for  the  purpose  of  doing  harm.  It  has  been  said,  however,  in 
several  cases  that  a  w^rongful  motive  cannot  convert  a  legal  act  into 
an  illegal  one,  and  many  judges  have  thought  this  was  the  end  of  the 
law  upon  the  question.  They  seem  to  proceed  upon  a  theory  of  abso- 
lute right  in  the  defendant,  which  is  at  variance  with  the  holding  in 
many  of  the  same  cases,  that  the  defendant  may  be  called  upon  to 
justify  his  conduct.  Indeed,  the  authorities  are  practically  unanimous 
to  the  effect  that  the  defendant  is  liable  unless  he  shows  a  justifica- 
tion. If  this  is  true,  it  follows  as  matter  of  course  that  his  right  is 
not  absolute.  It  is  a  qualified  one,  and  the  rightfulness  of  its  exer- 
cise depends  upon  all  those  elements  which  go  to  make  up  a  cause  for 
human  action.  The  reasonableness  of  the  act  cannot  always  be  satis- 
factorily determined  until  something  is  known  of  the  state  of  the 
actor's  mind.  The  "justification  may  be  found  sometimes  in  the  cir- 
cumstances under  which  it  is  done,  irrespective  of  motive,  sometimes 
in  the  motive  alone,  and  sometimes  in  the  circumstances  and  mo- 
tive combined."  Plant  v.  Woods,  176  Mass.  492,  57  N.  E.  1011,  51 
L.  R.  A.  339,  79  Am.  St.  Rep.  330. 

Since  the  defendant  is  called  upon  to  justify — to  show  reasonable 
cause  for  the  interference  with  his  neighbor's  right — it  seems  to  clearly 
follow  that,  where  his  only  reason  is  his  malicious  wish  to  injure  the 
plaintiff,  he  has  no  justification.  It  is  a  contradiction  in  terms  to  say 
that  a  desire  to  do  harm  for  the  harm's  sake  can  be  called  a  just  mo- 
tive. In  a  late  case  in  this  state  it  is  said  of  the  use  of  property  that 
"it  cannot  be  justly  contended  that  a  purely  malicious  use  is  a  rea- 
sonable use.  The  question  of  reasonableness  depends  upon  all  the 
circumstances — the  advantage  and  profit  to  one  of  the  uses  attacked, 
and  the  unavoidable  injury  to  the  other.  Where  the  only  advantage 
to  one  is  the  pleasure  of  injuring  another,  there  remains  no  founda- 
tion upon  which  it  can  be  determined  that  the  disturbance  of  the 
other  in  the  lawful  enjoyment  of  his  estate  is  reasonable  or  necessary." 
Horan  v.  Byrnes,  72  N.  H.  93,  100,  54  Atl.  945,  948,  62  L.  R.  A.  602, 
101  Am.  St.  Rep.  670.     The  same  reason  applies  here.     If  the  evi- 


Ch.  2)  TORTS    THROUGH   MALICE  1257 

dence  had  been  conclusive  that  the  act  was  done  solely  from  a  malicious 
motive  a  verdict  would  have  been  directed  for  the  plaintiff.  It  is  not 
improbable  that  there  are  other  plain  cases — cases  where  there  is 
nothing  for  the  jury  to  pass  upon.  The  third  issue  in  this  case  does 
not  come  within  that  class.  It  cannot  be  said  that  all  reasonable  men 
would  conclude  that  every  reasonable  man  would  or  would  not  do 
what  the  defendant"  did,  even  though  he  acted  honestly  and  from  a 
proper  motive.  If  any  one  doubts  this  assertion,  he  has  but  to  read 
the  cases  where  this  and  kindred  questions  have  been  discussed  and 
decided  as  those  of  law.  Vegelahn  v.  Guntner,  167  Alass.  92,  44  N. 
E.  1077,  35  L.  R.  A.  722,  57  Am.  St.  Rep.  443;  Berry  v.  Donovan,  188 
Mass.  353,  74  N.  E.  603,  5  L.  R.  A.  (N.  S.)  899,  108  Am.  St.  Rep. 
499,  3  Ann.  Cas.  738,  and  cases  there  cited;  L.  D.  Willcutt  &  Sons 
Co.  V.  Driscoll,  200  Mass.  110,  85  N.  E.  897,  23  L.  R.  A.  (N.  S.) 
1236;  National  Protective  Ass'n  v.  Gumming,  170  N.  Y.  315,  68  N. 
E.  369,  58  L.  R.  A.  135,  88  Am.  St.  Rep.  648;  Jacobs  v.  Gohen,  183 
N.  Y.  207,  76  N.  E.  5,  2  L.  R.  A.  (N.  S.)  292.  Ill  Am.  St.  Rep.  730, 
5  Ann.  Gas.  280;  Wilson  v.  Hey,  232  111.  389,  83  N.  E.  928,  16  L. 
R.  A.  (N.  S.)  85,  122  Am.  St.  Rep.  119,  13  Ann.  Gas.  82;  Barnes  v. 
Union,  232  111.  424,  83  N.  E.  940,  14  L.  R.  A.  (N.  S.)  1018,  13  Ann. 
Gas.  54.  When  eminent  judges  come  to  opposite  conclusions  upon  a 
question,  it  can  hardly  be  said  that  jurors  might  not  reasonably  do 
the  same. 

The  plaintiff  was  entitled  to  go  to  the  jury  upon  all  three  grounds 
which  have  been  considered :  (1)  Fraud,  (2)  malicious  injury,  and  (3) 
unreasonable  interference  with  the  open  market.  Whether  section  12, 
c.  266,  Pub.  St.,  affords  a  basis  for  a  claim  of  greater  right  in  the 
plaintiff  is  a  question  which  has  not  been  argued  and  is  not  considered. 

Exception  sustained.    All  concurred. 


1258  TORTS  THROUGH  ACTS   OF   CONDITIONAL  LIABILITY        (Part  3 


SECTION  3.— AS  TO  JUSTIFYING  OR  EXCUSING  THE  USE 
OF  PROPERTY  OR  INFLUENCE  FOR  THE  INTEN- 
TIONAL HARM  OF  ANOTHER 

I.  The:  Principle;  in  Ge;nerai^ 


There  are  indeed  many  authorities  which  appear  to  hold  that  to 
constitute  an  actionable  wrong  there  must  be  a  violation  of  some  defi- 
nite legal  right  of  the  plaintiff.  But  those  are  cases,  for  the  most 
part  at  least,  where  the  defendants  were  themselves  acting  in  the  law- 
ful exercise  of  some  distinct  right,  which  furnished  the  defence  of  a 
justifiable  cause  for  their  acts,  except  so  far  as  they  were  in  viola- 
tion of  a  superior  right  in  another. 

Thus  every  one  has  an  ec[ual  right  to  employ  workmen  in  his  busi- 
ness or  service;  and  if,  by  the  exercise  of  this  right  in  such  manner 
as  he  may  see  fit,  persons  are  induced  to  leave  their  employment  else- 
where, no  wrong  is  done  to  him  whose  employment  they  leave,  unless 
a  contract  exists  by  which  such  other  person  has  a  legal  right  to  the 
further  continuance  of  their  services.  If  such  a  contract  exists,  one 
who  knowingly  and  intentionally  procures  it  to  be  violated  may  be 
held  liable  for  the  wrong,  although  he  did  it  for  the  purpose  of  pro- 
moting his  own  business. 

One  may  dig  upon  his  own  land  for  water,  or  any  other  purpose, 
although  he  thereby  cuts  off  the  supply  of  water  from  his  neighbor's 
well.  Greenleaf  v.  Francis,  18  Pick.  117.  It  is  intimated,  in  this  case, 
that  such  acts  might  be  actionable  if  done  maliciously.  But  the  rights 
of  the  owner  of  land  being  absolute  therein,  and  the  adjoining  proprie- 
tor having  no  legal  right  to  such  a  supply  of  water  from  lands  of 
another,  the  superior  right  must  prevail.  Accordingly  it  is  generally 
held  that  no  action  will  lie  against  one  for  acts  done  upon  his  own 
land  in  the  exercise  of  his  rights  of  ownership,  whatever  the  motive, 
if  they  merely  deprive  another  of  advantages,  or  cause  a  loss  to  him, 
without  violating  any  legal  right;  that  is,  the  motive  in  such  cases  is 
immaterial.  Frazier  v.  Brown,  12  Ohio  St.  294;  Chatfield  v.  Wilson, 
28  Vt.  49;  Mahan  v.  Brown,  13  Wend.  (N.  Y.)  261,  28  Am.  Dec. 
461 ;  Delhi  v.  Youmans,  50  Barb.  (N.  Y.)  316.  A  similar  decision 
was  made  in  Wheatley  v.  Baugh,  25  Pa.  528,  64  Am.  Dec.  721,  but 
the  suggestion  in  Greenleaf  v.  Francis  was  approved  so  far  as  this, 
namely,  that  malicious  acts  without  the  justification  of  any  right,  that 
is,  acts  of  a  stranger,  resulting  in  like  loss  or  damage,  might  be  ac- 
tionable ;  and  the  case  of  Parker  v.  Boston  &  Maine  Railroad,  3  Cush. 
107,  50  Am.  Dec.  709,  was  referred  to  as  showing  that  such  loss  of 
advantages  previously   enjoyed,   although   not  of   vested  legal   right, 


Ch.  2)  TORTS  THROUGH  MALICE  1259 

might  be  a  ground  of  damages  recoverable  against  one  who  caused 
the  loss  without  superior  right  or  justifiable  cause. 

Every  one  has  a  right  to  enjoy  the  fruits  and  advantages  of  his 
own  enterprise,  industry,  skill  and  credit.  He  has  no  right  to  be 
protected  against  competition ;  but  he  has  a  right  to  be  free  from  ma- 
licious and  wanton  interference,  disturbance  or  annoyance.  If  disturb- 
ance or  loss  come  as  a  result  of  competition,  or  the  exercise  of  like 
rights  by  others,  it  is  damnum  absque  injuria,  unless  some  superior 
right  by  contract  or  otherwise  is  interfered  with.  But  if  it  come  from 
the  merely  wanton  or  malicious  acts  of  others,  without  the  justifica- 
tion of  competition  or  the  service  of  any  interest  or  lawful  purpose, 
it  then  stands  upon  a  dift'erent  footing,  and  falls  within  the  principle 
of  the  authorities  first  referred  to. 

Wells,  J.,  in  Walker  v.  Cronin  (1871)  107  Mass.  555,  563. 


At  Common  Law  there  was  a  cause  of  action  whenever  one  person 
did  damage  to  another  wilfully  and  intentionally,  and  without  just  cause 
or  excuse.  Under  the  head  of  that  class  of  action  came  the  action 
of  slander  of  title,  whether  the  subject  of  the  slander  was  real  or 
personal  property.  If  a  man  falsely  and  maliciously — because  the 
malice  would  shew  there  was  no  just  cause — made  a  statement  about 
the  property  of  another  which  was  calculated  to  do,  and  which  did 
do,  damage  to  the  other  in  the  management  of  that  property,  an  ac- 
tion would  lie  at  Common  Law,  and  damages  would  be  recoverable 
and  in  Chancery,  I  suppose  that  even  if  you  could  not  prove  that  actual 
damage  had  occurred,  the  Court  might,  if  actual  damage  was  likely 
to  occur,  prevent  the  wrongful  act  by  injunction. 

Bowen,  L.  J.,  in  Skinner  &  Co.  v.  Shew  &  Co.,  [1893]  1  Ch.  413, 
422. 


It  has  been  considered  that,  prima  facie,  the  intentional  infliction 
of  temporal  damage  is  a  cause  of  action,  which,  as  a  matter  of  sub- 
stantive law,  whatever  may  be  the  form  of  pleading,  requires  a  jus- 
tification if  the  defendant  is  to  escape.  Mogul  Steamship  Co.  v.  Mc- 
Gregor, 23  Q.  B.  D.  598,  613;  S.  C,  [1892]  A.  C.  25.  If  this  is  the 
correct  mode  of  approach  it  is  obvious  that  justifications  may  vary 
in  extent  according  to  the  principle  of  policy  upon  which  they  are 
founded,  and  that  while  some,  for  instance,  at  common  law,  those 
affecting  the  use  of  land,  are  absolute,  Bradford  v.  Pickles,  [1895] 
A.  C.  587,  others  may  depend  upon  the  end  for  which  the  act  is  done. 
Moran  v.  Dunphy,  177  Mass.  485,  487,  50  N.  E.  125,  52  L.  R.  A.  115, 
83  Am.  St.  Rep.  289;  Plant  v.  Woods,  176  Mass.  492,  57  N.  E.  1011, 
51  L.  R.  A.  339,  79  Am.  St.  Rep.  330;  Squires  v.  Wason  Manuf.  Co., 
182  Mass.  137,  140,  141,  65  N.  E.  32.    See  cases  cited  in  Passaic  Print 


1260  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

Works  V.  Ely  &  Walker  Dry-Goods  Co.,  105  Fed.  163,  44  C.  C.  A.  426, 
62  L.  R.  A.  673.  It  is  no  sufficient  answer  to  this  line  of  thought  that 
motives  are  not  actionable  and  that  the  standards  of  the  law  are  exter- 
nal. That  is  true  in  determining  what  a  man  is  bound  to  foresee,  but  not 
necessarily  in  determining  the  extent  to  which  he  can  justify  harm 
which  he  has  foreseen. 

Holmes,  J.,  in  Aikens  v.  Wisconsin  (1904)  195  U.  S.  194,  204,  25 
Sup.  Ct.  3,  49  L.  Ed.  154.^'' 


At  Common  Law  every  member  of  the  community  is  entitled  to 
carry  on  any  trade  or  business  he  chooses  and  in  such  manner  as 
he  thinks  most  desirable  in  his  own  interests,  and  inasmuch  as  every 
right  connotes  an  obligation  no  one  can  lawfully  interfere  with  an- 
other in  the  free  exercise  of  his  trade  or  business  unless  there  exists 
some  just  cause  or  excuse  for  such  interference.  Just  cause  or  ex- 
cuse for  interference  with  another's  trade  or  business  may  sometimes 
be  found  in  the  fact  that  the  acts  complained  of  as  an  interference 
have  all  been  done  in  the  bona  fide  exercise  of  the  doer's  own  trade 
or  business  and  with  a  single  view  to  his  own  interests  (the  Mogul 
Steamship  Case,  23  Q.  B.  D.  598;  [1892]  A.  C.  25).  But  it  may  also 
be  found  in  the  existence  of  some  additional  or  substantive  right  con- 
ferred by  letters  patent  from  the  Crown  or  by  contract  between  in- 
dividuals. In  the  case  of  letters  patent  from  the  Crown  this  additional 
or  substantive  right  is  generally  descril^ed  as  a  monopoly.    In  the  lat- 

20  "X.,  who  intentionally  causes  damage  to  A.,  has  prima  facie  done  an 
injury  or  wrong  to  A.,  and  if  X.  can  show  no  legal  justification  for  the  damage 
he  has  thus  intentionally  done  to  A.,  he  is  liable  to  an  action  by  A."  Pro- 
fessor A.  y.  Dieey,  18  Law  Quar.  Rev.  4. 

"It  is  submitted  that  the  discussion  would  be  materially  simplified  if  it 
were  understood  that  all  damage  wilfully  done  to  one's  neighbor  is  actionable 
unless  it  can  be  justified  or  excused."  Sir  Frederick  Pollock,  Torts  (7th  Ed.) 
319. 

"The  wilful  causing  of  damage  to  another  by  a  positive  act,  whether  by  one 
man  alone,  or  by  several  acting  in  concert,  and  whether  by  direct  action 
against  him  or  indirectly  by  inducing  a  third  person  to  exercise  a  lawful 
right,  is  a  tort  unless  there  was  just  cause  for  infiicting  the  damage.  *  *  *  " 
Professor  James  Barr  Ames,  18  Harv.  Law  Rev.  412. 

Quoting  these  three  passages  and  the  opening  sentences  from  the  opinions 
of  Bowen,  L.  J.,  and  Holmes,  J.,  in  the  text,  Professor  Jeremiah  Smith  has 
remarked:  "The  above  statements  of  Bowen,  Dicey,  Holmes,  Pollock  and 
Ames  all  seem  to  imply  that  the  causing  of  the  damage  in  question  was  the 
object  immediately  aimed  at  by  the  defendant.  But  they  do  not  necessarily 
import  the  doing  of  damage  'for  the  sake  of  the  harm  as  au  evil  in  itself,  and 
not  merely  as  a  means  to  some  further  end  legitimately  desired.'  On  the 
contrary,  the  desire  to  cause  the  harm  is  entirely  consistent  with  the  absence 
of  personal  ill  will  towards  the  plaintiff,  and  also  with  the  existence  of  au 
ultimate  good  motive  on  the  part  of  the  defendant.  Conceding  that  damage 
as  .such,  i.  e.,  because  it  is  harmful  or  damaging  to  the  plaintifl",  is  the  very 
object  immediately  desired,  yet  it  may  jiot  be  the  ultimate  (nid  which  is 
sought  to  be  attained.  We  think  that  tlic  law  shoubl  be  h(;ld  to  go  as  far  as 
the  above  general  statements  of  P>owen,  Dicey,  Holmes  and  Pollock,  and  the 
more  specific  statement  of  Professor  Ames."    20  Harv.  Law  Rev.  263  (1007). 


Ch.  2)  TORTS  THROUGH  MALICH  1261 

ter  case  the  contract  on  which  the  additional  or  substantive  right  is 
founded  is  generally  described  as  a  contract  in  restraint  of  trade. 
Monopolies  and  contracts  in  restraint  of  trade  have  this  in  common, 
that  they  both,  if  enforced,  involve  a  derogation  from  the  common 
law  right  in  virtue  of  which  any  member  of  the  community  may  ex- 
ercise any  trade  or  business  he  pleases  and  in  such  manner  as  he 
thinks  best  in  his  own  interests. 

Lord  Parker  of  Waddington,  in  Attorney  General  of  Australia  v. 
Adelaide  Steamship  Co.,  [1913]  A.  C.  781,  793 


MOGUL  STEAMSHIP  CO.,  Limited,  v.  McGREGOR,  GOW 

&  CO.  et  al. 

(Queen's  Bench  Division,  ISSS.    21  Q.  B.  Div.  544.    Court  of  Appeal,  1889.    23 
Q.  B.  Div.  59S.    House  of  Lords.     [1892]  A.  C.  25.) 

In  this  action,  the  plaintiffs  claimed  damages  for  a  conspiracy  to 
prevent  them  from  carrying  on  their  trade  between  London  and  China, 
and  an  injunction  against  the  continuance  of  the  alleged  wrongful  acts. 
The  facts  were  shortly  as  follows:  -^ 

21  The  statement  here  given  is  from  the  reports  of  the  ease  in  the  Queen's 
Bench  Division,  21  Q.  B.  D.  544,  and  in  the  Court  of  Appeal,  2.3  Q.  B.  D.  598. 
The  facts  are  fully  set  forth  also  in  The  Mogul  Steamship  Company  v.  Mc- 
(xregor,  Gow  &  Co.  (1885)  15  Q.  B.  D.  476,  when  the  plaintiffs  were  seeking  an 
interim  injunction.  In  this  earlier  consideration  of  the  case  Ix)rd  Coleridge, 
C.  J.,  remarked:  "This  is  an  application  for  an  intei'locutory  or  interim  in- 
junction before  the  trial  of  the  action.  It  is  certainly  conceivable  that  such 
a  conspiracy, — because  conspiracy  undoubtedly  it  is, — as  this  might  be  pi'oved 
in  point  of  fact:  and  I  do  not  entertain  any  doubt,  nor  does  my  learned 
Brother,  that,  if  such  a  conspiracy  were  proved  in  point  of  fact,  and  the  in- 
tuitus  of  the  conspirators  were  made  out  to  be,  not  the  mere  honest  support 
and  maintenance  of  the  defendants'  trade,  but  the  destruction  of  the  plain- 
tiffs' trade,  and  their  consequent  i-uin  as  merchants,  it  would  be  an  offence 
for  which  an  indictment  for  conspiracy,  and,  if  an  indictment,  then  an  action 
for  conspiracy,  would  lie.  *  *  *  [But]  even  assuming  that  the  plaintiffs 
are  right  in  their  contention  it  will  be  competent  to  the  jury  at  the  trial  to 
award,  and  I  have  no  doubt  they  vdll  award,  the  plaintiffs  abundant  damages 
to  compensate  them  for  the  injury  that  they  may  have  sustained  at  the  hands 
of  the  defendants.  I  have  always  understood,  and  I  am  confirmed  in  that  un- 
derstanding by  the  larger  experience  of  Lord  Justice  Fry,  that  that  is  al- 
most of  itself  a  reason  for  not  issuing  an  injunction  prior  to  the  trial  of  tho 
action.  If  the  plaintiffs  establish  their  case  by  the  verdict  of  the  jury  or  the 
decision  of  the  judge,  they  will  get  all  they  are  entitled  to.  Next,  this  does 
not  appear  to  me  to  be  a  case  in  which,  as  I  was  at  one  time  inclined  to  think, 
the  plaintiffs  can  sustain  Irreparable  injury  by  our  declining  to  grant  the 
relief  prayed.  It  may  be  that  they  will  suffer  some  damage ;  it  may  be  that 
they  will  for  a  time  have  a  difficulty  in  carrying  on  their  China  trade  or  may 
have  to  carry  it  on  at  a  loss.  But  injury  of  that  soi-t  differs  altogether  from 
the  injury  which  is  called  'irreparable,'  to  prevent  which  injunctions  have 
heretofore  been  granted  in  the  Court  of  Chancery,  and  are  now  allowed  to 
issue  from  this  Court.  For  instance,  if  a  fine  old  ornamental  tree  in  a  noble- 
man's park  be  cut  down,  the  injury  is  pnictieally  irreparable,  and  cannot  be 
compensated  in  damages.  It  is  in  cases  of  that  nature  tbat  an  interim  in- 
junction issues.  The  injury  here,  if  it  be  made  out,  obviously  is  not  one  of 
that  character."    The  motion  for  the  interim  injunction  was  therefore  refused. 


1262  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

The  plaintiffs  were  a  shipping  company  incorporated  for  the  pur- 
pose of  acquiring  shares  in  certain  steamships — the  Sikh,  Afghan, 
Pathan,  and  Ghazee — and  became  the  owners  of  a  large  number  of 
shares  in  these  ships,  which  were  built  for  and  employed  in  the  China 
and  Australian  trades.  The  defendants  were  an  associated  body  of 
shipowners  trading  (among  other  places)  between  China  and  London, 
who  formed  themselves  into  a  conference  or  association  for  the  pur- 
pose of  keeping  up  the  rate  of  freights  in  the  tea  trade  between  China 
and  Europe,  and  securing  that  trade  to  themselves  by  allowing  a  re- 
bate of  5  per  cent,  on  all  freights  paid  by  shippers  who  shipped  tea 
for  Europe  in  conference  vessels  only.  The  defendants  alleged  (and, 
as  is  found  in  the  judgment,  truly  alleged)  that  the  large  profits  de- 
rived from  the  tea  freights  alone  enabled  them  to  keep  up  a  regular 
line  of  communication  all  the  year"  round  between  England  and  China, 
and  that  without  a  practical  monopoly  of  the  tea  trade  they  must 
cease  to  do  so.  The  plaintiffs  were  admitted  to  the  benefits  of  this 
conference  for  the  season  of  1884,  when  the  following  circular  was 
widely  distributed  by  the  defendants  among  the  merchants  engaged 
in  the  China  trade : 

"Shanghai,  10th  May,  18&4. 

"To  those  exporters  who  confine  their  shipments  of  tea  and  general  cargo 
from  China  to  Europe  (not  including  the  Mediterranean  and  Blacli  Sea  ports) 
to  the  P.  &  O.  Steam  Navigation  Co.'s,  Messageiie  Maritime  Co.'s,  Ocean 
Steamship  Co.'s,  Glen,  Castle,  Shire,  and  Ben  Lines,  and  to  the  steamships 
Oopack  and  Ningchow,  we  shall  be  happy  to  allow  a  rebate  of  5  per  cent,  on 
the  freight  charged. 

"Exporters  claiming  the  returns  will  be  required  to  sign  a  declaration  that 
they  have  not  made  nor  been  interested  in  any  shipments  of  tea  or  general 
cargo  to  Europe  (excepting  the  ports  above  named)  by  any  other  than  the  said 
line;*. 

"Shipments  by  the  steamships  Afghan,  Pathan,  and  Ghazee  on  their  present 
voyages  from  Hankow  will  not  prejudice  claims  for  returns. 

"Each  line  to  be  responsible  for  its  own  returns  only,  which  will  be  payable 
half-yearly,  commencing  30th  October  next. 

"Shipments  by  an  outside  steamer  at  any  of  the  ports  in  China  or  at  Hong 
Kong  will  exclude  the  firm  making  such  shipments  from  participation  in 
the  return  during  the  whole  six-monthly  period  within  which  they  have  been 
made,  even  although  its  other  branches  may  have  given  entire  support  to 
the  above  lines. 

"The  foregoing  agreement  on  our  part  to  be  in  force  from  present  date  till 
the  30th  April,  188U." 

In  May,  1885,  the  defendants  issued  and  widely  distributed  among 
the  merchants  in  the  China  trade  the  following  circular,  which  had  the 
effect  of  excluding  the  plaintiffs  from  the  benefits  of  the  conference: 

"Shanghai,  11   May,   18S5. 

"Referring  to  our  circular  dated  10th  May,  1884,  we  beg  to  remind  you  that 
shipments  for  London  by  the  steamships  Pathan,  Afghan,  and  Aberdeen,  or  by 
other  non-conference  steamers  at  any  of  the  ports  in  China  or  at  Hong  Kong, 
will  exclude  the  firm  making  such  shipments  from  participation  in  the  re- 
turn during  the  whole  six-monthly  period  in  which  they  have  been  made, 
even  although  the  firm  elsewhere  may  have  given  exclusive  support  to  tlie 
conference  lines." 

The  plaintiffs  by  their  statement  of  claim  alleged  a  conspiracy  on 
the  part  of  the  defendants  to  prevent  the  plaintiffs   from  obtaining 


Ch.  2)  TORTS  THROUGH  MALICE  1263 

cargoes  for  their  steamers,  such  conspiracy  consisting  in  a  combina- 
tion and  agreement  amongst  the  defendants,  having  by  reason  of  such 
combination  and  agreement  control  of  the  homeward  shipping  trade, 
pursuant  to  which  combination  and  agreement  shippers  were  bribed, 
coerced,  and  induced  to  agree  to  forbear,  and  to  forbear,  from  shipping 
cargoes  by  the  plaintiffs'  steamers.  In  the  alternative,  the  conspiracy 
was  alleged  to  consist  of  a  combination  and  agreement  amongst  the 
defendants  pursuant  to  which  the  defendants,  with  intent  to  injure  the 
plaintiffs  and  prevent  them  obtaining  cargoes  for  their  steamers,  agreed 
to  refuse,  and  refused,  to  accept  cargoes  from  shippers  except  upon 
the  terms  that  the  shippers  should  not  ship  any  cargoes  by  the  plain- 
tiffs' steamers,  and  by  threats  of  stopping  the  shipment  of  homeward 
cargoes  altogether,  which  they  had  the  power  and  intended  to  carry 
into  effect,  prevented  shippers  from  shipping  cargoes  by  plaintiffs' 
steamers.     *     *     * 

The  defence  included  a  denial  of  the  alleged  conspiracy,  and  an  ob- 
jection that  the  plaintiffs'  statement  of  claim  disclosed  no  cause  ot 
action. 

The  action  was  tried  without  a  jury,  before  Lord  Coleridge,  C.  J., 
who  delivered  a  w^ritten  judgment  for  the  defendants, ^^  The  plain- 
tiffs appealed. 

22  In  this  judgment,  21  Q.  B.  D.  544,  547,  which  is  omitted  here,  Lord  Cole- 
rid.w,  C.  J.,  i-emarlis:  "But  it  is  said  that  the  motive  of  these  acts  was  to 
ruin  the  plaintiffs,  and  that  sucli  a  motive,  it  has  been  held,  will  render  the 
combination  itself  wrongful  and  malicious,  and  that  if  damage  has  resulted 
to  the  plaintiffs  an  action  will  lie.  I  concede  that  if  the  premises  are  estab- 
lished the  conclusion  follows.  It  is  too  late  to  dispute,  if  I  desired  it,  as  I  do 
not,  that  a  wrongful  and  malicious  combination  to  ruin  a  man  in  his  trade 
may  be  gi'ound  for  such  an  action  as  this.  Was  then  this  combination  such? 
The  answer  to  this  question  has  given  me  much  trouble,  and  I  confess  to  the 
weakness  of  having  long  doubted  and  hesitated  before  I  could  make  up  my 
mind.  There  can  be  no  doubt  that  the  defendants  were  determined,  if  they 
could,  to  exclude  the  plaintiffs  from  this  trade.  Strong  expressions  were 
drawn  from  some  of  them  in  cross-examination,  and  the  telegrams  and  let- 
ters shewed  the  importance  they  attached  to  the  matter,  their  resolute  purpose 
to  exclude  the  plaintiffs  if  they  could,  and  to  do  so  without  any  consideration 
for  the  results  to  the  plaintiffs,  if  they  were  successfully  excluded.  This,  I 
think,  is  made  out,  and  I  think  no  more  is  made  out  than  this.  Is  this 
enough?  It  must  be  remembered  that  all  trade  is  and  must  be  in  a  sense 
selfish ;  trade  not  being  infinite,  nay,  the  trade  Of  a  particular  place  or  dis- 
trict being  possibly  very  limited,  what  one  man  gains  another  loses.  In  the 
hand  to  hand  war  of  commerce,  as  in,  the  conflicts  of  public  life,  whether  at 
the  bar,  in  Parliament,  in  medicine,  in  engineering,  (I  give  examples  only,) 
men  fight  on  without  much  thought  of  others,  except  a  desire  to  excel  or  to 
defeat  them.  Very  lofty  minds,  like  Sir  I'hilip  Sidney  with  his  cup  of  water, 
will  not  stoop  to  take  an  advantage,  if  they  think  another  wants  it  more.  Our 
age,  in  spite  of  high  authority  to  the  contrary,  is  not  without  its  Sir  Philip 
Sidneys ;  but  these  are  counsels  of  i>erfection  which  it  would  be  silly  indeed 
to  make  the  measure  of  the  rough  business  of  the  world  as  pursued  by  ordi- 
nary men  of  business.  The  line  is  in  words  difficult  to  draw,  but  I  cannot 
see  that  these  defendants  have  in  fact  passed  the  line  which  separates  the 
reasonable  and  legitimate  selfishness  of  traders  from  wrong  and  malice.  In 
1884  they  admitted  the  plaintiffs  to  their  conference ;  in  18S5  they  excluded 
them,  and  they  were  determined  no  doubt,  if  they  could,  to  make  the  exclu- 
sion complete  and  effective,  not  from  any  personal  malice  or  ill  will  to  the 


12G4  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

[In  the  Court  of  Appeal] 

BowEN,  L.  J.  We  are  presented  in  this  case  with  an  apparent  con- 
flict or  antinomy  between  two  rights  that  are  equally  regarded  by  the 
law — the  right  of  the  plaintiffs  to  be  protected  in  the  legitimate  ex- 
ercise of  their  trade,  and  the  right  of  the  defendants  to  carry  on  their 
business  as  seems  best  to  them,  provided  they  commit  no  wrong  to 
others.  The  plaintiffs  complain  that  the  defendants  have  crossed  the 
line  which  the  common  law  permits ;  and  inasmuch  as,  for  the  pur- 
poses of  the  present  case,  we  are  to  assume  some  possible  damage  to 
the  plaintiffs,  the  real  question  to  be  decided  is  whether,  on  such  an 
assumption,  the  defendants  in  the  conduct  of  their  commercial  affairs 
have  done  anything  that  is  unjustifiable  in  law.  The  defendants  are 
a  number  of  ship-owners  who  formed  themselves  into  a  league  or  con- 
ference for  the  purpose  of  ultimately  keeping  in  their  own  hands  the 
control  of  the  tea  carriage  from  certain  Chinese  ports,  and  for  the 
purpose  of  driving  the  plaintiff's  and  other  competitors  from  the  field. 
In  order  to  succeed  in  this  object,  and  to  discourage  the  plaintiff's'  ves- 
sels from  resorting  to  those  ports,  the  defendants  during  the  "tea  har- 
vest" of  1885  combined  to  offer  to  the  local  shippers  very  low  freights, 
with  a  view  of  generally  reducing  or  "smashing"  rates,  and  thus  ren- 
dering it  unprofitable  for  the  plaintiffs  to  send  their  ships  thither. 
They  offered,  moreover,  a  rebate  of  five  per  cent,  to  all  local  shippers 
and  agents  who  would  deal  exclusively  with  vessels  belonging  to  the 
Conference,  and  any  agent  who  broke  the  condition  was  to  forfeit  the 
entire  rebate  on  all  shipments  made  on  behalf  of  any  and  every  one 
of  his  principals  during  the  whole  year — a  forfeiture  of  rebate  or  al- 
lowance which  was  denominated  as  "penal"  by  the  plaintiffs'  counsel. 
It  must,  however,  be  taken  as  established  that  the  rebate  was  one  which 
the  defendants  need  never  have  allowed  at  all  to  their  customers.  It 
must  also  be  taken  that  the  defendants  had  no  personal  ill-will  to  the 
plaintiffs,  nor  any  desire  to  harm  them  except  such  as  is  involved  in 
the  wish  and  intention  to  discourage  by  such  measures  the  plaintiffs 
from  sending  rival  vessels  to  such  ports.  The  acts  of  which  the  plain- 
tiffs particularly  complained  were  as  follows :  First,  a  circular  of  May 
10,  1885,  by  which  the  defendants  offered  to  the  local  shippers  and 
their  agents  a  benefit  by  way  of  rebate  if  they  would  not  deal  with  the 
plaintiffs,  which  was  to  be  lost  if  this  condition  was  not  fulfilled.  Sec- 
ondly, the  sending  of  special  ships  to  Hankow  in  order  by  competition 
to  deprive  the  plaintiffs'  vessels  of  profitable  freight.  Thirdly,  the 
offer  at  Hankow  of  freights  at  a  level  which  would  not  repay  a  ship- 
owner for  his  adventure,  in  order  to  "smash"  freights  and  frighten 

plaintiffs  as  individuals,  but  because  they  were  determined,  if  they  could,  to 
keel)  the  trade  to  themselves ;  and  if  they  permitted  persons  In  the  ix)sition 
of  the  plaintiffs  to  come  in  and  share  it  they  thought,  and  honestly  and,  as  it 
turns  out,  lorrectly  thought,  that  for  a  time  at  least  there  vs'ould  be  au  end 
of  their  gains." 


Ch.  2)  TORTS  THROUGH  MALICE  1265 

the  plaintiffs  from  the  field.  Fourthly,  pressure  put  on  the  defendants' 
own  agents  to  induce  them  to  ship  only  by  the  defendants'  vessels,  and 
not  by  those  of  the  plaintiff's.  It  is  to  be  observed  with  regard  to  all 
these  acts  of  which  complaint  is  made  that  they  were  acts  that  in  them- 
selves could  not  be  said  to  be  illegal  unless  made  so  by  the  object  with 
which,  or  the  combination  in  the  course  of  which,  they  were  done ; 
and  tliat  in  reality  what  is  complained  of  is  the  pursuing  of  trade  com- 
petition to  a  length  which  the  plaintiffs  consider  oppressive  and  prejudi- 
cial to  themselves.  We  were  invited  by  the  plaintiff's'  counsel  to  ac- 
cept the  position  from  which  their  argument  started — that  an  action 
will  lie  if  a  man  maliciously  and  wrongfully  conducts  himself  so  as  to 
injure  another  in  that  other's  trade.  Obscurity  resides  in  the  language 
used  to  state  this  proposition.  The  terms  "maliciously,"  "wrongfully," 
and  "injure"  are  words  all  of  which  have  accurate  meanings,  well 
known  to  the  law,  but  which  also  have  a  popular  and  less  precise  sig- 
nification, into  which  it  is  necessary  to  see  that  the  argument  does  not 
imperceptibly  slide.  An  intent  to  "injure"  in  strictness  means  more 
than  an  intent  to  harm.  It  connotes  an  intent  to  do  wrongful  harm. 
"Maliciously,"  in  like  manner,  means  and  implies  an  intention  to  do 
an  act  which  is  wrongful,  to  the  detriment  of  another.  The  term 
"wrongful"  imports  in  its  turn  the  infringement  of  some  right.  The 
ambiguous  proposition  to  which  we  were  invited  by  the  plaintiff's'  coun- 
sel still,  therefore,  leaves  unsolved  the  question  of  what,  as  between 
the  plaintiffs  and  defendants,  are  the  rights  of  trade.  For  the  purpose 
of  clearness,  I  desire,  as  far  as  possible,  to  avoid  terms  in  their  popular, 
use  so  slipperv^  and 'to  translate  them  into  less  fallacious  language 
wherever  possible. 

The  English  law,  which  in  its  earlier  stages  began  with  but  an  im- 
perfect line  of  demarcation  between  torts  and  breaches  of  contract, 
presents  us  with  no  scientific  analysis  of  the  degree  to  which  the  in- 
tent to  harm,  or,  in  the  language  of  the  civil  law,  the  animus  vicino 
nocendi,  may  enter  into  or  aff'ect  the  conception  of  a  personal  wrong; 
see  Chasemore  v.  Richards,  7  H.  L.  C  349,  at  p.  388.  All  personal 
wrong  means  the  infringement  of  some  personal  right.  "It  is  essen- 
tial to  an  action  in  tort,"  say  the  Privy  Council  in  Rogers  v.  Rajendro 
Dutt,  13  :\roore,  P.  C.  209,  "that  the  act  complained  of  should  under 
the  circumstances  be  legally  wrongful  as  regards  the  party  complain- 
ing; that  is,  it  must  prejudicially  aff'ect  him  in  some  legal  right;  mere- 
ly that  it  will,  however  directly,  do  a  man  harm  in  his  interests,  is  not 
enough."  What,  then,  were  the  rights  of  the  plaintiffs  as  traders  as 
against  the  defendants?  The  plaintiffs  had  a  right  to  be  protected 
against  certain  kind  of  conduct ;  and  we  have  to  consider  what  conduct 
would  pass  this  legal  line  or  boundary.  Now,  intentionally  to  do  that 
which  is  calculated  in  the  ordinary  course  of  events  to  damage,  and 
which  does,  in  fact,  damage  another  in  that  other  person's  property 
or  trade,  is  actionable  if  done  without  just  cause  or  excuse.  Such  in- 
Hepb.Tokts — SO 


1266  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

tentional  action  when  done  without  just  cause  or  excuse  is  what  the 
law  calls  a  malicious  wrong  (see  Bromage  v.  Prosser,  4  B.  &  C.  247; 
Capital  and  Counties  Bank  v.  Henty,  7  App.  Cas.  741,  at  p,  772,  per 
Lord  Blackburn).  The  acts  of  the  defendants  which  are  complained 
of  here  were  intentional,  and  were  also  calculated,  no  doubt,  to  do 
the  plaintiffs  damage  in  their  trade.  But  in  order  to  see  whether  they 
were  wrongful  we  have  still  to  discuss  the  question  whether  they  were 
done  without  any  just  cause  or  excuse.  Such  just  cause  or  excuse 
the  defendants  on  their  side  assert  to  be  found  in  their  own  positive 
right  (subject  to  certain  limitations)  to  carry  on  their  own  trade  freely 
in  the  mode  and  manner  that  best  suits  them,  and  which  they  think 
best  calculated  to  secure  their  own  advantage. 

What,  then,  are  the  limitations  which  the  law  imposes  on  a  trader 
in  the  conduct  of  his  business  as  between  himself  and  other  traders? 
There  seem  to  be  no  burdens  or  restrictions  in  law  upon  a  trader 
which  arise  merely  from  the  fact  that  he  is  a  trader,  and  which  are 
not  equally  laid  on  all  other  subjects  of  the  Crown.  His  right  to  trade 
freely  is  a  right  which  the  law  recognizes  and  encourages,  but  it  is 
one  which  places  him  at  no  special  disadvantage  as  compared  with 
others.  No  man,  whether  trader  or  not,  can,  however,  justify  dam- 
aging another  in  his  commercial  business  by  fraud  or  misrepresenta- 
tion. Intimidation,  obstruction,  and  molestation  are  forbidden ;  so 
is  the  intentional  procurement  of  a  violation  of  individual  rights,  con- 
tractual or  other,  assuming  always  that  there  is  no  just  cause  for  it. 
The  intentional  driving  away  of  customers  by  shew  of  violence,  Tarle- 
ton  V.  AIcGawley,  Peak,  N.  P.  C.  270;  the  obstruction  of  actors  on 
the  stage  by  preconcerted  hissing,  Clifford  v.  Brandon,  2  Camp.  358, 
Gregory  v,  Brunswick,  6  J\i.  &  G.  205 ;  the  disturbance  of  wild  fowl 
in  decoys  by  the  firing  of  guns,  Carrington  v.  Taylor,  11  East,  571, 
and  Keeble  v.  Hickeringill,  1 1  East,  574,  n. ;  the  impeding  or  threaten- 
ing servants  or  workmen.  Garret  v.  Taylor,  Cro.  Jac.  567;  the  in- 
ducing persons  under  personal  contracts  to  break  their  contracts. 
Bowen  v.  Hall,  6  O.  B.  D.  333;  Lumley  v.  Gye,  2  E.  &  B.  216:  all 
are  instances  of  such  forbidden  acts.  But  the  defendants  have  been 
guilty  of  none  of  these  acts.  They  have  done  nothing  more  against  the 
plaintiffs  than  pursue  to  the  bitter  end  a  war  of  competition  waged  in 
the  interest  of  their  own  trade.  To  the  argument  that  a  competition 
so  pursued  ceases  to  have  a  just  cause  or  excuse  when  there  is  ill- 
will  or  a  personal  intention  to  harm,  it  is  sufficient  to  reply  (as  I  have 
already  pointed  out)  that  tliere  was  here  no  personal  intention  to  do 
any  other  or  greater  harm  to  the  plaintiffs  than  such  as  was  necessarily 
involved  in  the  desire  to  attract  to  the  defendants'  ships  the  entire 
tea  freights  of  the  ports,  a  portion  of  which  would  otherwise  have  fall- 
en to  the  plaintiffs'  sliare.  I  can  find  no  authority  for  the  doctrine 
that  such  a  commercial  motive  deprives  of  "just  cause  or  excuse"  acts 
done  in  the  course  of  trade  which  would  but  for  such  a  motive  be 
justifiable.     So  to  hold  would  be  to  convert  into  an  illegal  motive  the 


Ch.  2)  TORTS  THROUGH   MALICE  1267 

instinct  of  self-advancement  and  self-protection,  which  is  the  very  in- 
centive to  all  trade.  To  say  that  a  man  is  to  trade  freely,  but  that  he 
is  to  stop  short  at  any  act  which  is  calculated  to  harm  other  trades- 
men, and  which  is  designed  to  attract  business  to  his  own  shop,  would 
be  a  strange  and  impossible  counsel  of  perfection.  But  we  were  told 
that  competition  ceases  to  be  the  lawful  exercise  of  trade,  and  so  to 
be  a  lawful  excuse  for  what  will  harm  another,  if  carried  to  a  length 
which  is  not  fair  or  reasonable.  The  offering  of  reduced  rates  by  the 
defendants  in  the  present  case  is  said  to  have  been  "unfair."  This 
seems  to  assume  that,  apart  from  fraud,  intimidation,  molestation,  or 
obstruction,  of  some  other  personal  right  in  rem  or  in  personam,  there 
is  some  natural  standard  of  "fairness"  or  "reasonableness"  (to  be  de- 
termined by  the  internal  consciousness  of  judges  and  juries)  beyond 
which  competition  ought  not  in  law  to  go.  There  seems  to  be  no  au- 
thority, and  I  think  with  submission,  that  there  is  no  sufficient  reason, 
for  such  a  proposition.  It  would  impose  a  novel  fetter  upon  trade. 
The  defendants,  we  are  told  by  the  plaintiffs'  counsel,  might  lawfully 
lower  rates  provided  they  did  not  lower  them  beyond  a  "fair  freight/' 
whatever  that  may  mean.  But  where  is  it  established  that  there  is 
any  such  restriction  upon  commerce  ?  And  what  is  to  be  the  definition 
of  a  "fair  freight?"  It  is  said  that  it  ought  to  be  a  normal  rate  of 
freight,  such  as  is  reasonably  remunerative  to  the  ship-owner.  But 
over  what  period  of  time  is  the  average  of  this  reasonable  remunera- 
tiveness  to  be  calculated?  All  commercial  men  with  capital  are  ac- 
quainted with  the  ordinary  expedient  of  sowing  one  year  a  crop  of 
apparently  unfruitful  prices,  in  order  by  driving  competition  away  to 
reap  a  fuller  harvest  of  profit  in  the  future ;  and  until  the  present  ar- 
gument at  the  bar  it  may  be  doubted  whether  ship-owners  or  merchants 
were  ever  deemed  to  be  bound  by  law  to  conform  to  some  imaginary 
"normal"  standard  of  freights  or  prices,  or  that  law  courts  had  a  right 
to  say  to  them  in  respect  of  their  competitive  tariffs,  "Thus  far  shalt 
thou  go,  and  no  further."  To  attempt  to  limit  English  competition  in 
this  way  would  probably  be  as  hopeless  an  endeavor  as  the  experi- 
ment of  King  Canute.  But  on  ordinary  principles  of  law  no  such 
fetter  on  freedom  of  trade  can  in  my  opinion  be  warranted.  A  man 
is  bound  not  to  use  his  property  so  as  to  infringe  upon  another's  right. 
"Sic  utere  tuo  ut  alienum  non  Isedas."  If  engaged  in  actions  which  may 
involve  danger  to  others,  he  ought,  speaking  generally,  to  take  reason- 
able care  to  avoid  endangering  them.  But  there  is  surely  no  doctrine 
of  law  which  compels  him  to  use  his  property  in  a  way  that  judges  and 
juries  may  consider  reasonable:  see  Chasemore  v.  Richards,  7  H. 
L.  C.  349.  If  there  is  no  such  fetter  upon  the  use  of  property  known 
to  the  English  law,  why  should  there  be  any  such  a  fetter  upon  trade? 
It  is  urged,  however,  on  the  part  of  the  plaintiffs,  that  even  if  the 
acts  complained  of  would  not  be  wrongful  had  they  been  committed 
by  a  single  individual,  they  become  actionable  when  they  are  the  re- 
sult of  concerted  action  among  several.     In  other  words,  the  plain- 


1268  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

tiffs,  it  is  contended,  have  been  injured  by  an  illegal  conspiracy.     Of 
the  general  proposition,  that  certain  kinds  of  conduct  not  criminal  in 
any  one  individual  may  become  criminal  if  done  by  combination  among 
several,  there  can  be  no  doubt.     The  distinction  is  based  on  sound 
reason,   for  a  combination  may  make  oppressive   or   dangerous  that 
which  if  it  proceeded  only  from  a  single  person  would  be  otherwise, 
and  the  very  fact  of  the  combination  may  show  that  the  object  is 
simply  to  do  harm,  and  not  to  exercise  one's  own  just  rights.     In  the 
application  of  this  undoubted  principle  it  is  necessary  to  be  very  care- 
ful not  to  press  the  doctrine  of  illegal  conspiracy  beyond  that  which 
is  necessary  for  the  protection  of  individuals  or  of  the  public ;    and 
it  may  be  observed  in  passing  that  as  a  rule  it  is  the  damage  wrong- 
fully done,  and  not  the  conspiracy,  that  is  the  gist  of  actions  on  the 
case   for  conspiracy :    see  Skinner  v.   Gunton,    1   Wins.   Saund.  229 ; 
Hutchins  v.  Hutchins,  7  Hill's  New  York  Cases,  104,  Bigelow's  Lead- 
ing Cases  on  Torts,  207.    But  what  is  the  definition  of  an  illegal  com- 
bination?    It  is  an  agreement  by  one  or  more  to  do  an  unlawful  act, 
or  to  do  a  lawful  act  by  unlawful  means :    O'Connell  v.  The  Queen, 
11  01.  &  F.  155;    Reg.  v.  Parnell,  14  Cox,  Crim.  Cas.  508;    and  the 
question  to  be  solved  is  whether  there  has  been  any  such  agreement 
here.     Have  the  defendants  combined  to  do  an  unlawful  act?     Have 
they  combined  to  do  a  lawful  act  by  unlawful  means?     A  moment's 
consideration  will  be  sufficient  to  shew  that  this  new  inquiry  only  drives 
us  back  to  the  circle  of  definitions  and  legal  propositions  which  I  have 
already  traversed  in  the  previous  part  of  this  judgment.    The  unlaw- 
ful act  agreed  to,  if  any,  between  the  defendants  must  have  been  the 
intentional  doing  of  some  act  to  the  detriment  of  the  plaintiffs'  busi- 
ness without  just  cause  or  excuse.     Whether  there  was  any  such  jus- 
tification or  excuse  for  the  defendants  is  the  old  question  over  again, 
which,  so  far  as  regards  an  individual  trader,  has  been  already  solved. 
The  only  differentia  that  can  exist  must  arise,  if  at  all,  out  of  the  fact 
that  the  acts  done  are  the  joint  acts  of  several  capitalists,  and  not  of 
one  capitalist  only.     The  next  point  is  whether  the  means  adopted 
were  unlawful.     The  means  adopted  w^ere  competition  carried  to  a 
bitter  end.     Whether  such  means  were  unlawful  is  in  like  manner 
nothing  but  the  old  discussion  which  I  have  gone  through,  and  which 
is  now  revived  under  a  second  head  of  inquiry,  except  so  far  as  a 
combination  of  capitalists  differentiates  the  case  of  acts  jointly  done 
by  them  from  similar  acts  done  by  a  single  man  of  capital.     But  I 
find   it  impossible  myself  to  acquiesce  in  the  view  that  the  English 
law  places  any  such  restriction  on  the  combination  of  capital  as  would 
be  involved  in  the  recognition  of  such  a  distinction.     If  so,  one  rich 
capitalist  may  innocently  carry  competition  to  a  length  which  would 
become  unlawful  in  the  case  of  a  syndicate  with  a  joint  capital  no 
larger  than  his  own,  and  one   individual  merchant  may  lawfully   do 
that  which  a  firm  or  a  partnership  may  not.     What  limits,  on  such  a 
theory,  would  be  imposed  by  law  on  the  competitive  action  of  a  joint- 


Ch.  2)  TORTS  THROUGH  MALICE  1269 

stock  company  limited,  is  a  problem  which  might  well  puzzle  a  casuist. 
The  truth  is,  that  the  combination  of  capital  for  purposes  of  tiade  and 
competition  is  a  very  different  thing  from  such  a  combination  of  sev- 
eral persons  against  one,  with  a  view  to  harm  him,  as  falls  under  the 
head  of  an  indictable  conspiracy.  There  is  no  just  cause  or  excuse 
in  the  latter  class  of  cases.  There  is  such  a  just  cause  or  excuse  in 
the  former.  There  are  cases  in  which  the  very  fact  of  a  combination 
is  evidence  of  a  design  to  do  that  which  is  hurtful  without  just  cause 
— is  evidence — to  use  a  technical  expression — of  malice.  But  it  is  per- 
fectly legitimate,  as  it  seems  to  me,  to  combine  capital  for  all  the  mere 
purposes  of  trade  for  which  capital  may,  apart  from  combination,  be 
legitimately  used  in  trade.  To  limit  combinations  of  capital,  when 
used  for  purposes  of  com.petition,  in  the  manner  proposed  by  the  argu- 
ment of  the  plaintiff's,  would,  in  the  present  day,  be  impossible — would 
be  only  another  method  of  attempting  to  set  boundaries  to  the  tides. 
Legal  puzzles  which  might  well  distract  a  theorist  may  easily  be  con- 
ceived of  imaginary  conflicts  between  the  selfishness  of  a  group  of  in- 
dividuals and  the  obvious  well-being  of  other  members  of  the  com- 
munity. Would  it  be  an  indictable  conspiracy  to  agree  to  drink  up  all 
the  water  from  a  common  spring  in  a  time  of  drought;  to  buy  up 
by  preconcerted  action  all  the  provisions  in  a  market  or  district  in 
times  of  scarcity :  see  Rex  v.  Waddington,  1  East,  143 ;  to  combine 
to  purchase  all  the  shares  of  a  company  against  a  coming  settling-day ; 
or  to  agree  to  give  away  articles  of  trade  gratis  in  order  to  withdraw 
custom  from  a  trader?  May  two  itinerant  match-vendors  combine  to 
sell  matches  below  their  value  in  order  by  competition  to  drive  a 
third  match-vendor  from  the  street?  In  cases  like  these,  where  the 
elements  of  intimidation,  molestation,  or  the  other  kinds  of  illegality 
to  which  I  have  alluded  are  not  present,  the  question  must  be  decided 
by  the  application  of  the  test  I  have  indicated.  Assume  that  what  is 
done  is  intentional,  and  that  it  is  calculated  to  do  harm  to  others. 
Then  comes  the  question,  Was  it  done  with  or  without  "just  cause  or 
excuse?"  If  it  was  bona  fide  done  in  the  use  of  a  man's  own  prop- 
erty, in  the  exercise  of  a  man's  own  trade,  such  legal  justification 
would,  I  think,  exist  not  the  less  because  what  was  done  might  seem 
to  others  to  be  selfish  or  unreasonable :  see  the  summing-up  of  Erie, 
J.,  and  the  judgment  of  the  Queen's  Bench  in  Reg.  v.  Rowlands,  17  Q. 
B.  671.  But  such  legal  justification  would  not  exist  when  the  act  was 
merely  done  with  the  intention  of  causing  temporal  harm,  without 
reference  to  one's  own  lawful  gain,  or  the  lawful  enjoyment  of  one's 
own  rights.  The  good  sense  of  the  tribunal  which  had  to  decide  would 
have  to  analyze  the  circumstances  and  to  discover  on  which  side  of 
the  line  each  case  fell.  But  if  the  real  object  were  to  enjoy  what 
was  one's  own,  or  to  acquire  for  one's  self  some  advantage  in  one's 
property  or  trade,  and  what  was  done  was  done  honestly,  peaceably, 
and  without  any  of  the  illegal  acts  above  referred  to,  it  could  not,  in 
my  opinion,  properly  be  said  that  it  was  done  without  just  cause  or 


1270  TORTS  THROUGH  ACTS  OF   CONDITIONAL  LIABILITY        (Part  3 

excuse.  One  may  with  advantage  borrow  for  the  benefit  of  traders 
what  was  said  by  Erie,  J.,  in  Reg.  v.  Rowlands,  17  Q.  B.  671,  at  page 
687,  n.,  of  workmen  and  of  masters :  "The  intention  of  the  law  is  at 
present  to  allow  either  of  them  to  follow  the  dictates  of  their  own 
will,  with  respect  to  their  own  actions,  and  their  own  property ;  and 
either,  I  believe,  has  a  right  to  study  to  promote  his  own  advantage, 
or  to  combine  with  others  tO  promote  their  mutual  advantage." 

Lastly,  we  are  asked  to  hold  the  defendants'  Conference  or  associa- 
tion illegal,  as  being  in  restraint  of  trade.  The  term  "illegal"  here  is 
a  misleading  one.  Contracts,  as  they  are  called,  in  restraint  of  trade, 
are  not,  in  my  opinion,  illegal  in  any  sense,  except  that  the  law  will 
not  enforce  them.  It  does  not  prohibit  the  making  of  such  contracts ; 
it  merely  declines,  after  they  have  been  made,  to  recognize  their  va- 
lidity. The  law  considers  the  disadvantage  so  imposed  upon  the  con- 
tract a  sufficient  shelter  to  the  public.  The  language  of  Crompton,  J., 
in  Hilton  v.  Eckersley,  6  E.  &  B.  47,  is,  I  think,  not  to  be  supported. 
No  action  at  common  law  will  lie  or  ever  has  lain  against  any  individ- 
ual or  individuals  for  entering  into  a  contract  merely  because  it  is  in 
restraint  of  trade.  Lord  Eldon's  equity  decisions  in  Cousins  v.  Smith, 
13  Ves.  542,  is  not  very  intelligible,  even  if  it  be  not  open  to  the  some- 
what personal  criticism  passed  on  it  by  Lord  Campbell  in  his  "Lives 
of  the  Chancellors."  If  indeed  it  could  be  plainly  proved  that  the 
mere  formation  of  "conferences,"  "trusts,"  or  "associations"  such  as 
these  were  always  necessarily  injurious  to  the  public — a  view  which 
involves,  perhaps,  the  disputable  assumption  that,  in  a  country  of  free 
trade,  and  one  which  is  not  under  the  iron  regime  of  statutory  mo- 
nopolies, such  confederations  can  ever  be  really  successful — and  if  the 
evil  of  them  were  not  sufficiently  dealt  with  by  the  common  law  rule, 
which  held  such  agreements  to  be  void  as  distinct  from  holding  them 
to  be  criminal,  there  might  be  some  reason  for  thinking  that  the  com- 
mon law  ought  to  discover  within  its  arsenal  of  sound  common-sense 
principles  some  further  remedy  commensurate  with  the  mischief.  Nei- 
ther of  these  assumptions  are,  to  my  mind,  at  all  evident,  nor  is  it 
the  province  of  judges  to  mould  and  stretch  the  law  of  conspiracy  in 
order  to  keep  pace  with  the  calculations  of  political  economy.  If 
peaceable  and  honest  combinations  of  capital  for  purposes  of  trade 
competition  are  to  be  struck  at,  it  must,  I  think,  be  by  legislation,  for 
I  do  not  see  that  they  are  under  the  ban  of  the  common  law. 

In  the  result,  I  agree  with  Lord  Coleridge,  C.  J.,  and  differ,  with 
regret,  from  the  Master  of  the  Rolls.  The  substance  of  my  view  is 
this,  that  competition,  however  severe  and  egotistical,  if  unattended  by 
circumstances  of  dishonesty,  intimidation,  molestation,  or  such  illegali- 
ties as  I  have  above  referred  to,  gives  rise  to  no  cause  of  action  at 
common  law.  I  myself  should  deem  it  to  be  a  misfortune  if  we  were 
to  attempt  to  prescribe  to  the  business  world  how  honest  and  peacea- 
ble trade  was  to  be  carried  on  in  a  case  where  no  such  illegal  elements 
as  I  have  mentioned  exist,  or  were  to  adopt  some  standard  of  judicial 


Ch.  2)  TORTS  THROUGH  MALICE  1271 

"reasonableness,"  or  of  "normal"  prices,  or  "fair  freights,"  to  which 
commercial  adventurers,  otherwise  innocent,  were  bound  to  conform. 

In  my  opinion,  accordingly,  this  appeal  ought  to  be  dismissed  with 
costs.'^ 

From  this  decision  of  the  Court  of  Appeal,  the  plaintiffs  appealed 
to  the  House  of  Lords. 

[In  the  House  of  Lords] 

Lord  Fiejld.  My  Lords,  I  think  that  this  appeal  may  be  decided 
upon  the  principles  laid  down  by  Holt,  C.  J.,  as  far  back  as  the  case 
of  Keeble  v.  Hickeringill,  cited  for  the  appellants,  11  Mod.  74,  131, 
and  note  to  Carrington  v.  Taylor,  11  East,  574.  In  that  case  the  plain- 
tiff complained  of  the  disturbance  of  his  "decoy"  by  the  defendant 
having  discharged  guns  near  to  it  and  so  driven  away  the  wild-fowl, 
with  the  intention  and  effect  of  the  consequent  injury  to  his  trade. 
Upon  the  trial  a  verdict  passed  for  the  plaintiff,  but  in  arrest  of  judg- 
ment it  was  alleged  that  the  declaration  did  not  disclose  any  cause 
of  action.  Holt,  C.  J.,  however,  held  that  the  action,  although  new  in 
instance,  was  not  new  in  reason  or  principle,  and  well  lay,  for  he 
said  that  the  use  of  a  "decoy"  was  a  lawful  trade,  and  that  he  who 
hinders  another  in  his  trade  or  livelihood  is  liable  to  an  action  if  the 
injury  is  caused  by  "a  violent  or  malicious  act;"  suppose  "for  in- 
stance," he  said,  "the  defendant  had  shot  in  his  own  ground,  if  he  had 
occasion  to  shoot  it  would  have  been  one  thing,  but  to  shoot  on  pur- 
pose to  damage  the  plaintiff  is  another  thing  and  a  wrong."  But, 
he  added,  if  the  defendant,  "using  the  same  employment  as  the  plain- 
tiff," had  set  up  another  decoy  so  near  as  to  spoil  the  plaintiff's  cus- 
tom, no  action  would  lie,  because  the  defendant  had  "as  much  liberty 
to  make  and  use  a  decoy"  as  the  plaintiff.  In  support  of  this  view  he 
referred  to  earlier  authorities.  In  one  of  them  it  had  been  held  that 
for  the  setting  up  of  a  new  school  to  the  damage  of  an  ancient  one 
by  alluring  the  scholars  no  action  would  lie,  although  it  would  have 
been  otherwise  if  the  scholars  had  been  driven  away  by  violence  or 
threats. 

It  follows  therefore  from  this  authority,  and  is  undoubted  law,  not 
only  that  it  is  not  every  act  causing  damage  to  another  in  his  trade, 
nor  even  every  intentional  act  of  such  damage,  which  is  actionable, 
but  also  that  acts  done  by  a  trader  in  the  lawful  way  of  his  business, 
although  by  the  necessary  results  of  effective  competition  interfering 
injuriously  with  the  trade  of  another,  are  not  the  subject  of  any 
action. 

Of  course  it  is  otherwise,  as  pointed  out  by  Lord  Holt,  if  the  acts 
complained  of,  although  done  in  the  way  and  under  the  guise  of  com- 
petition  or   other   lawful   right,   are   in  themselves  violent  or  purely 

23  A  concurring  opinion  by  Fry,  L.  J.,  and  an  elaborate  dissenting  opinion 
by  Lord  Esher,  M.  R.,  are  omitted. 


1272  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

malicious,  or  have  for  their  ultimate  object  injury  to  another  from 
ill-will  to  him,  and  not  the  pursuit  of  lawful  rights.  No  doubt,  also, 
there  have  been  cases  in  wliich  agreements  to  do  acts  injurious  tq 
others  have  been  held  to  be  indictable  as  amounting  to  conspiracy, 
the  ultimate  object  or  the  means  being  unlawful,  although  if  done 
by  an  individual  no  such  consequence  would  have  followed,  but  I 
think  that  in  all  such  cases  it  will  be  found  that  tliere  existed  either 
an  ultimate  object  of  malice,  or  wrong,  or  wrongful  means  of  ex- 
ecution involving  elements  of  injury  to  the  public,  or,  at  least,  negativ- 
ing the  pursuit  of  a  lawful  object. 

Now,  applying  these  principles  to  the  case  before  your  Lordships, 
it  appears  upon  the  evidence  that  the  appellants  and  respondents  are 
shipowners,  and  have  for  many  years  been  engaged,  sometimes  in 
alliance,  at  other  times  in  competition,  in  the  carrying  trade  of  the 
eastern  seas  to  and  from  Europe  and  elsewhere.  A  very  important 
portion  of  this  trade  consists  of  a  large  amount  of  freight  to  be  earned 
at  the  ports  of  Hankow  and  Shanghai  during  the  season  by  carrying 
to  Europe  the  teas  brought  there  for  shipment,  and  it  was  of  the 
respondents'  action  in  that  business  during  the  season  of  1885  that 
the  appellants  complain.  They  do  not  allege  that  the  respondents  have 
been  guilty  of  any  act  of  fraud  or  violence,  or  of  any  physical  ob- 
struction to  the  appellants'  business,  or  have  acted  from  any  personal 
malice  or  ill-will,  but  they  say  that  the  respondents  acted  with  the  cal- 
culated intention  and  purpose  of  driving  the  appellants  out  of  the 
Hankow  season  carrying  trade  by  a  course  of  conduct  which,  al- 
though not  amounting  to  violence,  was  equally  effective,  and  so  being 
in  fact  productive  of  injury  to  them  was  wrongful  and  presumably 
malicious. 

It  appeared  upon  the  evidence  that  both  parties  have  been  for  some 
years  trading  in  competition  at  Hankow  for  tea  freights,  which  amount- 
ed to  a  very  considerable  sum,  and  the  earning  of  which  was  spread 
over  a  short  annual  season.  The  trade  was  carried  on  by  a  large 
number  of  independent  shipowners,  and  the  tonnage  which  was  em- 
ployed may  be  roughly  divided  into  two  classes :  First,  tonnage  en- 
gaged in  regular  lines  to  and  from  ports  in  the  China  and  Japan  seas 
all  the  year  through,  loading  both  outwards  and  inwards ;  and  sec- 
ondly, tonnage  loading  generally  outwards  to  ports  in  Australia  or 
elsewhere,  and  only  seeking  freights  and  taking  up  "homeward"  berths 
at  Hankow  during  the  short  period  when  freights  are  abundant  there 
and  scarce  elsewhere.  The  several  respondents  and  the  "Messageries 
Maritimes"  of  France  represent  substantially  the  first  class  of  ship- 
owners. The  appellants  and  other  shipowners,  who  are  no  parties 
to  this  record,  but  some  of  whom  were  in  alliance  with  the  appellants, 
in  the  same  interest,  forming  a  very  influential  class  of  traders,  may 
be  taken  to  represent  the  second. 

The  two  ports  of  Hankow  and  Shanghai  are  the  centres  of  these 
competing  interests,  and  it  is  hardly  necessary  to  add  that  the  com- 


Ch.  2)  TORTS  THROUGH  MALICE  1273 

petition  was  very  severe,  and  the  accumulation  of  tonnage  for  "home- 
ward" freights  produced  by  the  circulation  of  an  excessive  number  of 
ships  rendered  rates  so  unremunerative  that  in  each  of  the  years  1879, 
1883,  and  1885,  a  combination  of  shipowners  known  as  a  "conference," 
was  formed,  consisting  in  the  main  of  the  first  class  of  owners,  with 
the  object  of  limiting  the  amount  of  tonnage  to  be  sent  up  the  river, 
and  thus  securing  enhancement  and  regularity  of  rates.     *     *     *  -* 

It  was  under  these  circumstances  that  the  appellants  brought  the 
present  action,  in  which  they  in  substance  complain,  first,  of  the  re- 
turn of  5  per  cent,  to  the  shippers  who  have  not  shipped  with  the  ap- 
pellants, and  of  the  circular  to  that  effect;  secondly  of  the  placing  up- 
on tlie  berths  of  extra  ships  in  order  to  meet  the  appellants'  and  oth- 
er vessels;  and  thirdly,  the  reduction  of  freights  to  an  unremunera- 
tive extent  with  the  object  of  securing  cargo.  I  fail,  however,  to 
see  that  any  of  those  things  are  sufficient  to  support  this  action. 
Ever}'thing  that  was  done  by  the  respondents  was  done  in  the  exercise 
of  their  right  to  carry  on  their  own  trade,  and  was  bona  fide  so  done. 
There  was  not  only  no  malice  or  indirect  object  in  fact,  but  the  ex- 
istence of  the  right  to  exercise  a  lawful  employment,  in  the  pursuance 
of  which  the  respondents  acted,  negatives  the  presumption  of  malice 
which  arises  when  the  purposed  infliction  of  loss  and  injury  upon 
another  cannot  be  attributed  to  any  legitimate  cause,  and  is  therefore 
presumably  due  to  nothing  but  its  obvious  object  of  harm.  All  the 
acts  complained  of  were  in  themselves  lawful,  and  if  they  caused  loss 
to  the  appellants,  that  was  one  of  the  necessary  results  of  competition. 

It  remains  to  consider  the  further  contention  of  the  appellants  that 
these  acts  of  the  respondents,  even  if  lawful  in  themselves  if  done 
b}^  an  individual,  are  illegal  and  give  rise  to  an  action  as  having  been 
done  in  the  execution  of  the  conference  agreement,  which  is  said  to 
amount  to  a  conspiracy,  as  being  in  restraint  of  trade,  and  so  against 
public  policy,  and  illegal ;  but  this  contention  I  think,  also  fails.  I 
cannot  say  upon  the  evidence  that  tlie  agreement  in  question  was  cal- 
culated to  have  or  had  any  such  result,  nor,  even  if  it  had,  has  any 
authority  (except  one,  no  doubt  entitled  to  great  weight,  but  which 
has  not  met  with  general  approval)  been  cited  to  shew  that  such  an 
agreement  even  if  void  is  illegal,  nor  any  that,  even  if  it  be  so,  any 
action  lies  by  an  individual. 

For  these,  and  the  other  reasons  given  by  the  learned  Lords  Jus- 
tices Bowen  and  Fry,  and  which  I  need  not  recapitulate,  I  think  tliat 
the  appeal  fails,  and  ought  to  be  dismissed. 


2S 


24  A  portion  of  the  opinion,  giving  a  numlier  of  details,  is  omitted. 

25  The  opinions  of  Lord  Halsbury,  L.  C,  I/ord  Watson,  Lord  Bramwell,  Lord 
Morris,  and  Lord  Ilannen  are  omitted.  They  concur  in  holding  that  the  ap- 
peal should  be  dismissed,  and,  for  the  most  part,  in  expressly  adopting  tlie 
reasons  assigned  by  Bowen  and  Fry,  L.  JJ.,  iu  the  Court  of  Appeal. 


1274  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

TEMPERTON  v.  RUSSELL  et  al. 
(In  the  Court  of  Appeal.    [1S93]  1  Q.  B.  715.) 

The  plaintiff,  a  master  mason  and  builder  at  Hull,  sued  the  defend- 
ants, who  were  respectively  the  presidents  and  secretaries  of  three 
trade  unions  at  Hull,  called  the  Hull  Branch  of  the  Operative  Brick- 
layers' Society,  the  Hull  Branch  of  the  Builders'  Labourers'. Society, 
and  the  Hull  Branch  of  the  Operative  Plasterers'  Society,  and  of  a 
joint  committee  of  such  trade  unions,  and  members  of  such  committee, 
for  (1)  unlawfully  and  maliciously  procuring  certain  persons  who  had 
entered  into  contracts  with  the  plaintiff  to  break  such  contracts,  and 
(2)  for  maliciously  conspiring  to  induce  certain  persons  not  to  enter 
into  contracts  with  the  plaintiff,  by  reason  whereof  the  plaintiff  sus- 
tained damage.     *     *     * 

The  learned  judge  at  the  trial  directed  the  jury  that  to  induce  a 
person  who  had  made  a  contract  with  another  to  break  it,  in  order  to 
hurt  the  person  with  whom  it  had  been  made,  to  hamper  him  in  his 
trade,  or  to  put  undue  pressure  upon  him,  or  to  obtain  an  indirect  ad- 
vantage, was  in  point  of  law  to  do  it  maliciously  and  that,  if  the  jury 
were  satisfied  that  the  defendants  or  any  of  them  had  induced  persons 
to  break  contracts  with  the  plaintiff,  of  the  existence  of  which  they 
were  aware,  and,  if  their  object  in  doing  so  was  to  injure  the  plaintiff 
in  his  trade  in  order  to  compel  him  to  do  something  which  he  did 
not  want  to  do,  that  would  be  "maliciously"  in  point  of  law,  and  a 
cause  of  action  would  be  established.  He  also  directed  the  jury  in 
substance,  that  a  malicious  conspiracy  to  prevent  persons  from  enter- 
ing into  contracts  with  another,  if  followed  by  damage  to  the  person 
conspired  against,  was  actionable.  He  left  the  following  questions 
to  the  jury :  (1)  Did  the  defendants  or  any  of  them  maliciously  induce 
the  persons  named  (viz.,  Brentano,  Gibson  and  others),  or  any  of  them, 
to  break  tlieir  contracts  with  the  plaintiff?  (2)  Did  the  defendants, 
or  any  two  or  more  of  them,  maliciously  conspire  to  induce  the  per- 
sons named  and  others  not  to  enter  into  contracts  with  the  plaintiff, 
and  were  such  persons  thereby  induced  not  to  make  such  contracts? 
The  jury  found  for  the  plaintiff,  against  all  the  defendants,  on  both 
heads,  with  i50  damages  on  the  first  and  £200  damages  on  the  sec- 
ond. The  learned  judge  gave  judgment  for  the  plaintiff"  for  those 
amounts,  and  for  an  injunction  to  restrain  the  defendants  from  in- 
ducing persons  to  refuse  to  take  goods  from  the  plaintiff,  or  endeavor- 
ing to  induce  persons  to  break  their  contracts  with  the  plaintiff'.  The 
defendants  moved  for  judgment  or  a  new  trial,  on  the  ground  that  the 
learned  judge  misdirected  the  jury,  and  that  there  was  no  evidence 
to  go  to  the  jury  in  support  of  the  plaintiff's  claim  against  the  defend- 
ants respectively.^® 

26  The  statement  of  facts  is  abridged,  and  the  arguments  of  counsel  are 
omitted. 


Ch.  2)  TORTS  THROUGH  MALICE  1275 

Lord  Esher,  M.  R.  In  this  case  I  propose  first  to  state  the  facts 
of  the  case,  as  I  understand  the  effect  of  the  evidence,  and  then  my 
views  as  to  the  law  appHcable  to  those  facts.  There  appear  to  have 
been  three  trade  unions  formed  in  Hull,  consisting  respectively  of  per- 
sons employed  in  each  of  the  three  branches  of  labor  connected  with 
the  building  trade  there.  The  members  of  such  trade  unions  respec- 
tively agree  together  to  form  a  union,  to  subscribe  certain  amounts, 
and  to  subject  themselves  to  certain  obligations,  in  consideration  of 
which  they  are  respectively  to  be  entitled  to  certain  benefits.  The 
main  condition  upon  which  the  members  of  the  union  are  to  be  entitled 
to  the  benefits  of  membership  is,  that  they  will  obey  the  directions 
given  with  regard  to  certain  trade  matters  by  the  persons  authorized 
by  all  of  the  members  to  give  such  directions.  If  they  do  not,  they 
may  be  deprived  of  the  benefits  to  which  they  would  otherwise  have 
been  entitled  or  expelled  from  the  union.  Therefore  the  members  of 
the  union  have  given  up  their  liberty  of  action  in  respect  of  certain 
matters,  in  the  sense  that  they  have  -bound  themselves  by  agreement 
not  to  exercise  it  on  pain  of  losing  certain  benefits.  These  trade  un- 
ions appear  to  have  agreed  together  that  certain  rules,  which  they 
thought  to  be  for  their  benefit,  should  be  obsen^ed  by  the  master  build- 
ers of  Hull,  and  that,  if  any  builder  would  not  observe  such  rules,  they 
would  act  upon  their  respective  members  with  a  view  to  compelling 
him  to  do  so.  For  this  purpose  they  formed  a  joint  committee,  which 
appears  to  have  been  the  authority  appointed  to  determine  what  ac- 
tion should  be  taken  by  the  individual  members  of  the  trade  unions  in 
respect  of  such  building  controversies,  and,  therefore,  to  have  been 
for  this  purpose  the  agent  of  each  of  the  trade  unions,  and  of  the 
individual  members  of  them.  Apparently  this  committee  had  power 
to  delegate  their  authority  to  one  or  more  individual  members.  I  think 
that  the  evidence  in  this  case  proves  that  they  did  delegate  such  au- 
thority to  the  defendant  Russell,  who  therefore  acted  in  what  he  did 
as  the  delegate  of  such  committee,  and  so  of  each  of  the  three  unions, 
and  in  a  sense  of  each  member  of  them.  He,  therefore,  had  authority 
to  give  directions  to  the  individual  members  of  the  unions  what  to 
do  in  the  case  of  building  controversies.  The  trade  unions  and  the 
joint  committee  seem  to  have  come  to  the  conclusion  that  a  certain 
mode  of  carrying  on  building  operations  in  Hull  was  detrimental  to 
their  interests  or  those  of  their  constituents.  They  therefore  agreed, 
as  I  have  said,  to  a  set  of  rules,  one  of  which  was  the  9th  rule  which 
has  been  referred  to.^''    As  between  themselves,  the  members  of  these 

27  This  ninth  rule  provided  "that  no  member  of  the  Operative  Briclclayers' 
Society  shall  be  permitted,  under  any  circumstances,  to  cont  ract  for  or  take  by 
measurement,  either  in  the  whole  or  part,  any  kind  of  brickwork,  brick-point- 
ing, or  plastering,  that  may  have  been  contracted  for  or  sub-contracted  for 
under  the  original  contract,  nor  to  take  any  work  of  any  master  builder  who 
is  building  property  for  himself;  and  that  no  mcmlwr  of  this  society  shall  be 
allowed  to  work  on  such  jobs ;  that  no  member  of  these  societies  be  allowed  to 
work  on  any  job  where  labor  alone  is  contracted  for," 


1276  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

trade  unions  had  a  perfect  right  to  do  that  and  to  bind  themselves  to 
comply  with  such  rules.  But  these  rules  could  not  bind  any  person 
who  did  not  belong  to  such  unions,  and  they  had  no  right  to  enforce 
obedience  to  them  by  such  a  person.  A  firm  of  Myers  &  Temperton, 
who  were  builders  in  Hull,  thought  fit  to  carry  on  their  business,  as 
they  had  a  perfect  right  to  do,  in  a  manner  inconsistent  with  the  terms 
of  rule  9.  The  trade  unions  and  their  joint  committee  objected  to  this, 
and  resolved  to  coerce  the  firm  into  carrying  on  their  business  in  ac- 
cordance with  the  rule.  Failing  to  effect  their  object  by  direct  ac- 
tion upon  the  firm,  they  endeavored  to  coerce  them  through  the  per- 
sons who  dealt  with  them  and  who  supplied  them  widi  the  means  of 
carrying  on  their  business.  Among  these  persons  v/as  the  plaintiff, 
a  brother  of  one  of  the  members  of  the  firm.  They  desired  to  coerce 
the  firm  by  preventing  these  persons  from  dealing  with  them.  The 
plaintiff'  refused  to  fall  in  with  these  views,  and  would  not  agree  to 
cease  dealing  with  his  brother's  firm.  Having  failed  in  preventing  him 
from  doing  so  by  direct  actioi>  upon  him,  they  desired  to  overcome 
his  resistance  and  to  coerce  him,  in  the  same  manner  as  they  had 
sought  to  coerce  the  firm,  viz.,  through  the  persons  who  had  dealings 
with  him.  The  joint  committee  in  effect  said  that,  if  any  person  con- 
nected with  the  building  trade  in  Hull  should  deal  with  the  plaintiff 
for  materials,  the  members  of  the  unions  should  refuse  to  work  for 
that  person  upon  goods  supplied  by  the  plaintiff.  They  intended  thus 
to  coerce  the  plaintiff"  to  comply  with  their  views,  and  they  contemplat- 
ed that,  if  he  did  not  submit,  his  business  would  be  destroyed. 
Though,  of  course,  in  point  of  law  such  other  persons  might  be  free 
to  enter  into  contracts  with  the  plaintiff',  and  would  be  bound  to  per- 
form contracts  made  with  him,  as  before,  in  point  of  fact  the  commit- 
tee knew  that  the  probable  result  would  be  that  his  business  would 
come  to  an  end,  and  they  thought  that  the  prospect  of  this  would  have 
a  strongly  coercive  eff'ect  upon  him. 

They  were  not,  I  think,  actuated  in  their  proceedings  by  spite  or 
malice  against  the  plaintiff"  personally  in  the  sense  that  their  motive 
was  the  desire  to  injure  him,  but  they  desired  to  injure  him  in  his  busi- 
ness in  order  to  force  him  not  to  do  what  he  had  a  perfect  right  to  do. 
Amongst  those  who  had  dealings  with  the  plaintiff  were  two  persons 
named  Brentano  and  Gibson.  The  result  of  the  evidence  appears  to 
me  to  be  that  the  joint  committee  and  the  defendant  Russell,  who  was 
acting  as  the  delegate  of  such  committee,  knew  that  Brentano  had 
entered  into  a  contract  with  the  plaintiff,  and  also,  I  think,  that  he 
would  in  the  course  of  his  business  enter  in  the  future  into  other  con- 
tracts with  the  plaintiff  of  a  similar  description.  Russell  lets  Brentano 
know  that,  if  he  goes  on  dealing  with  the  plaintiff,  harm  will  come  to 
him,  because  none  of  the  workmen  at  Hull  who  are  comprised  in  the 
unions  will  touch  the  materials  supplied  by  the  plaintiff  or  will  do  his 
work.  \\'hat  was  said  by  Russell  to  Brentano,  and  the  previous  res- 
olution of  the  committee  which  was  made  known  to  Brentano,  clearly 


Ch.  2)  TORTS  THROUGH  MALICE  1277 

had  the  object  of  preventing  him  from  carrying  out  the  contract  he 
had  already  made  with  the  plaintiff,  and  I  should  say  that  the  infer- 
ence any  fair-minded  man  would  draw  would  be  that  they  also  had 
the  object  of  preventing  Brentano  from  entering  into  contracts  with 
the  plaintiff'  in  the  future.  The  object  was  not  to  injure  Brentano, 
but  to  injure  the  plaintiff"  in  his  business,  in  order  to  force  him  into 
obedience  to  the  views  of  the  unions.  It  was  argued  that  the  steps 
which  the  joint  committee  and  Russell,  their  representative,  took  with 
regard  to  the  men  working  for  Brentano  were  only  what  they  had 
a  perfect  right  to  take,  that  they  merely  gave  notice  or  advice  to  such 
workmen  that  the  rules  were  being  infringed,  and  that  they  should 
withdraw  from  his  employment  if  he  carried  out  his  contract  with  the 
plaintiff,  and  that  the  workmen  could  then  do  as  they  liked  in  the 
matter.  It  may  be  spoken  of  as  "notice"  or  "advice"  argumentative- 
ly;  but  those  words  do  not  represent  the  truth  of  the  thing.  These 
men  had  bound  themselves  to  obey;  and  they  knew  tliat 
they  had  done  so,  and  that,  if  they  did  not  obey,  they  would 
be  fined  or  expelled  from  the  union  to  which  they  belonged.  It 
was  really  an  order  which  was  given  to  them  just  as  much  as  a  di- 
rection given  to  a  servant  is  one.  It  might  be  said  that  such  a  di- 
rection is  not  an  order,  because  the  sen'ant  could  not  be  compelled 
to  obey  it;  but,  if  he  does  not,  he  will  lose  his  place.  The  unions 
through  their  joint  committee,  as  it  appears  to  me,  ordered  their  mem- 
bers employed  by  Brentano  to  cease  to  work  for  him  if  he  performed 
his  contract  with  the  plaintiff',  or  if  he  went  on  dealing  with  the  plain- 
tiff. I  think  that  the  meaning  of  what  Russell  said  to  Brentano  was 
that,  if  he  had  made  a  contract  with  the  plaintiff  and  proceeded  to 
perform  that  contract,  his  men  would  leave  him ;  and  that,  if  he  went 
on  dealing  with  the  plaintiff'  in  the  future,  the  same  result  would  fol- 
low. The  intention  was  that  by  so  acting  on  Brentano  the  plaintiff 
should  be  compelled  to  obey  their  directions,  and,  if  he  did  not,  that 
his  business  should  be  ruined.  I  think  that  there  was  clearly  evidence 
to  go  to  tlie  jury  against  all  the  defendants  of  having  been  parties  to 
these  transactions.  They  were  all  members  of  the  unions  and  of  the 
joint  committee,  and  they  none  of  them  went  into  the  box  except  Rus- 
sell, which  they  would  have  done  if  they  could  have  denied  that  they 
were  parties  to  them.  The  evidence  against  the  defendants  with  re- 
gard to  the  dealings  with  Gibson  is  substantially  to  the  same  eff'ect. 
This  is  not  simply  a  case  of  men  saying  that  they  will  not  work  for  a 
master  if  he  does  certain  things  which  they  do  not  like.  Brentano 
and  Gibson  were  dealt  with  thus  for  the  purpose  of  injuring  the 
plaintiff',  in  order  to  force  him  into  obedience  to  the  policy  of  the  un- 
ions, which  they  had  no  right  to  impose  upon  him. 

Then  what  is  the  law  applicable  to  these  facts?  The  questions  of 
law  were  dealt  with  in  the  argument  of  the  defendants'  counsel  boldly 
but  briefly,  the  main  bulk  of  their  arguments  being  directed  to  the 
endeavor  to  make  out  that  there  was  no  evidence  that  the  defendants 


127S  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

were  responsible  for  the  matters  complained  of.  It  was  argued  that 
the  action  for  inducing  persons  to  break  a  contract  is  confined  to  cases 
of  master  and  servant  or  cases  of  personal  service.  But  the  case  of 
Bowen  v.  Hall,  6  Q.  B.  D.  333,  shows  that  the  distinction  relied  on  is 
not  tenable.  That  was  not  a  case  of  master  and  servant.  In  that 
case  the  majority  of  the  judges  in  the  Court  of  Appeal  approved  of 
the  view  taken  by  the  majority  of  the  judges  in  Lumley  v.  Gye,  2  E. 
&  B.  216.  Their  judgment,  after  stating  that  merely  to  persuade  a 
person  to  break  his  contract  may  not  be  wrongful  in  law  or  fact,  pro- 
ceeds as  follows :  ''If  the  persuasion  be  used  for  the  indirect  puq^ose 
of  injuring  the  plaintiff,  or  of  benefiting  the  defendant  at  the  expense 
of  the  plaintiff,  it  is  a  malicious  act,  which  is  in  law  and  in  fact  a 
wrong  act,  and  therefore  a  wrongful  act,  and  therefore  an  actionable 
act,  if  injury  ensues  from  it.  We  think  that  it  cannot  be  doubted  that 
a  malicious  act,  such  as  is  above  described,  is  a  wrongful  act  in  law 
and  in  fact.  The  act  complained  of  in  such  a  case  as  Lumley  v.  Gye, 
and  which  is  complained  of  in  the  present  case,  is  therefore,  because 
malicious,  wrongful.  That  act  is  a  persuasion  by  the  defendant  of 
a  third  person  to  break  a  contract  existing  between  such  third  person 
and  the  plaintiff.  It  cannot  be  maintained  that  it  is  not  a  natural  and 
probable  consequence  of  that  act  of  persuasion  that  the  third  person 
will  break  his  contract.  It  is  not  only  the  natural  and  probable  conse- 
quence, but,  by  the  terms  of  the  proposition  which  involves  the  suc- 
cess of  the  persuasion,  it  is  the  actual  consequence."  Nothing  could 
be  more  directly  in  point  to  the  present  case  with  regard  to  the  first 
ground  of  action  set  up.  That  case  is  an  authority  which  is  binding 
on  us,  and  it  appears  to  me  to  apply  to  the  present  case. 

The  next  point  is,  whether  the  distinction  taken  for  the  defendants 
between  the  claim  for  inducing  persons  to  break  contracts  already 
entered  into  with  the  plaintiff  and  that  for  inducing  persons  not  to 
enter  into  contracts  with  the  plaintiff  can  be  sustained,  and  whether 
the  latter  claim  is  maintainable  in  law.  I  do  not  think  that  distinction 
can  prevail.  There  was  the  same  wrongful  intent  in  both  cases,  wrong- 
ful because  malicious.  There  was  the  same  kind  of  injury  to  the 
plaintiff.  It  seems  rather  a  fine  distinction  to  say  that,  where  a  de- 
fendant maliciously  induces  a  person  not  to  carry  out  a  contract  al- 
ready made  with  the  plaintiff  and  so  injures  the  plaintiff,  it  is  action- 
able, but  where  he  injures  the  plaintiff  by  maliciously  preventing  a 
person  from  entering  into  a  contract  with  the  plaintiff,  which  he  would 
otherwise  have  entered  into,  it  is  not  actionable.  At  any  rate  it  ap- 
pears to  me  that,  on  the  principle  acted  on  in  the  case  of  Gregory  v. 
Duke  of  Brunswick,  6  M.  &  G.  953,  where  defendants  conspire  or  com- 
bine together  maliciously  to  injure  the  plaintiff  by  preventing  persons 
from  entering  into  contracts  with  him,  and  injury  results  to  the  plain- 
tiff, it  is  actionable.  The  judgments  in  the  case  of  Mogul  Steamship 
Co.  V.  Macgregor,  Gow  &  Co.,  [1892]  A.  C.  25,  in  the  House  of  Lords, 
Beem  to  show  that  such  a  combination  if  followed  by  damage  to  the 


Ch.  2)  TORTS  THROUGH  MALICE  1279 

plaintiff  is  actionable.  With  regard  to  what  was  there  said,  the  coun- 
sel for  the  defendants  rehed  on  the  distinction  between  an  indictment 
and  a  civil  action,  and  said  that,  though  such  a  combination  might  be 
the  subject  of  an  indictment  for  conspiracy,  it  could  not  be  the  sub- 
ject of  an  action  for  damages.  I  agree  that  there  is  this  distinction, 
viz.,  that,  in  tlie  case  of  an  indictment,  when  the  conspiracy  is  proved 
the  indictment  is  proved,  but  in  the  case  of  an  action  it  is  necessary 
to  go  further  and  to  prove  damage.  Therefore  it  will  not  suffice  in 
an  action,  if  the  jury  only  find  that  the  defendants  agreed  together  to 
take  an  unlawful  course  of  action,  but  they  do  not  find  that  it  was 
taken  and  that  damage  resulted  to  the  plaintiff,  or  if  there  is  no  evi- 
dence on  which  tlie  jury  can  find  that  damage  resulted  to  the  plain- 
tiff". But,  if  there  is  evidence,  and  they  do  find,  that  damage  resulted 
to  the  plaintiff,  then  I  think  what  Lord  Bramwell  said  in  the  case 
of  Mogul  Steamship  Co.  v.  Alacgregor,  Gow  &  Co.  applies,  and  the 
action  will  lie.  He  said:  "The  plaintiffs  also  say  that  these  things, 
or  some  of  them,  if  done  by  an  individual,  would  be  actionable.  This 
need  not  be  determined  directly,  because  all  the  things  complained  of 
have  their  origin  in  what  the  plaintiffs  say  is  unlawfulness,  a  conspir- 
acy to  injure:  so  that,  if  actionable  when  done  by  one,  much  more 
are  they  when  done  by  several,  and,  if  not  actionable  when  done  by 
several,  certainly  they  are  not  when  done  by  one.  It  has  been  object- 
ed by  capable  persons  that  it  is  strange  that  that  should  be  unlawful, 
if  done  by  several,  which  is  not  if  done  by  one,  and  that  the  thing 
is  wrong  if  done  by  one,  if  wrong  when  done  by  several ;  if  not  wrong 
when  done  by  one,  it  cannot  be  when  done  by  several.  I  think  there 
is  an  obvious  answer,  indeed  two :  one  is  that  a  man  may  encounter 
the  acts  of  a  single  person,  yet  not  be  fairly  matched  against  several ; 
the  other  is  that  the  act  when  done  by  an  individual  is  wrong,  though 
not  punishable,  because  the  law  avoids  the  multiplicity  of  crimes :  De 
minimis  non  curat  lex ;  while  if  done  by  several  it  is  sufficiently  im- 
portant to  be  treated  as  a  crime."  It  seems  to  me  that  that  language 
recognizes  the  doctrine  of  law  as  being  that,  if  there  is  an  agreement 
to  take  an  unlawful  course  of  action  which  amounts  to  a  conspiracy, 
and  that  conspiracy  causes  damage  to  the  plaintiff,  an  action  will 
he  in  respect  of  such  conspiracy.  It  appears  to  me,  therefore,  that  the 
combination  here  entered  into  by  the  defendants  was  wrongful  both 
in  respect  of  the  interference  with  existing  contracts  and  in  respect 
of  the  prevention  of  contracts  being  entered  into  in  the  future.  I 
cannot  doubt  that  there  was  evidence  from  which  the  jury  might  find 
that  people  were  prevented  from  dealing  with  the  plaintiff  by  the  reso- 
lution of  the  joint  committee  and  the  action  taken  by  the  defendants, 
and  that  the  plaintiff  was  thereby  injured,  and  it  appears  to  me  that 
the  jury  have  so  found.  For  there  reasons  I  think  this  application 
must  be  refused. 

Lopes,  L.  J.     The  case  which  I  think  must  govern  our  decision  as 
to  the  first  head  of  claim  is  Bowen  v.  Hall.  6  O.  B.  D.  333,  which  I 


12S0  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

understand  to  lay  down  the  broad  principle  that  a  person  who  induces 
a  party  to  a  contract  to  break  it,  intending  thereby  to  injure  another 
person  or  to  get  a  benefit  for  himself,  commits  an  actionable  wrong. 
That  appears  to  me  to  be  the  effect  of  the  decision  in  that  case,  which 
was  decided  in  1881,  and  never  appears  to  have  been  since  questioned. 
I  presume  that  the  principle  is  this,  viz.,  that  the  contract  confers 
certain  rights  on  the  person  with  whom  it  is  made,  and  not  only  binds 
the  parties  to  it  by  the  obligation  entered  into,  but  also  imposes  on  all 
the  world  the  duty  of  respecting  that  contractual  obligation.  That 
being  the  law  on  the  subject,  the  jury  found  that  the  defendants  did 
maliciously  induce  persons  who  had  contracted  with  the  plaintiff  to 
break  their  contracts.  It  seems  to  me  that  there  was  abundant  evi- 
dence to  support  that  finding. 

The  second  question  in  the  case  is  with  regard  to  inducing  persons 
not  to  enter  into  contracts  with  the  plaintiff.  The  question  left  to  the 
jury  as  to  that  was,  whether  the  defendants  maliciously  conspired  to 
induce  persons  not  to  enter  into  contracts  with  the  plaintiff,  and  such 
persons  were  thereby  induced  not  to  make  such  contracts.  The  jury 
answered  that  question  in  the  affirmative.  That  being  so,  the  question 
is  whether,  upon  that  finding,  it  is  shown  that  the  defendants  committed 
an  actionable  wrong.  I  think  that  it  is.  I  will  state  shortly  what  I 
believe  to  be  the  law  on  the  subject.  The  result  of  the  authorities  ap- 
pears to  me  to  be  that  a  combination  by  two  or  more  persons  to  induce 
others  not  to  deal  with  a  particular  individual,  or  enter  into  contracts 
with  him,  if  done  with  the  intention  of  injuring  him,  is  an  actionable 
wrong  if  damage  results  to  him  therefrom.  That  appears  to  me  to 
follow  from  what  was  said  in  Gregory  v.  Duke  of  Brunswick,  6  M.  & 
G.  953,  and  in  the  House  of  Lords  in  the  case  of  Mogul  Steamship 
Co.  v.  Macgregor,  Gow  &  Co.,  [1892]  A.  C.  25.  It  was  argued  here 
that  there  was  no  evidence  that  any  persons  were  induced  not  to  en- 
ter into  contracts  with  the  plaintiff.  I  cannot  agree  with  that  con- 
tention. I  think  there  was  sufficient  evidence  to  that  effect,  and  that 
injury  was  thereby  occasioned  to  the  plaintiff.  For  these  reasons,  I 
think  that  the  verdict  ought  to  stand,  and  this  application  should  be 
dismissed.^*     Application  dismissed. 


LEATHEM  V.  CRAIG  et  al. 

(Court  of  Api>eal  in  Ireland.     [1S99]  2  I.  R.  744.) 

Lord  Ashbourne,  C.  This  is  an  action  instituted  by  Mr. 
Leathem,  a  flesher  or  butcher  of  Lisburn,  against  five  fleshers'  as- 
sistants and  members  of  the  Journeymen  Butchers'  Assistants'  Associa- 
tion, to  recover  damages  for  maliciously  and  wrongfully  procuring 
certain  persons  to  break  contracts  into  which  they  had  entered  with 
the  plaintiff,  and  not  to  enter  into  other  contracts  with  the  plaintiff'; 
and    for  maliciously  and   wrongfully  enticing  and  procuring  certain 

28  A  concurring  opinion  by  A.  L.  Smith,  L,  J.,  is  omitted. 


Ch.  2)  TORTS  THROUGH  MALICE  1281 

workmen  in  the  employment  of  the  said  persons  to  leave  the  service 
of  their  employers,  and  to  break  their  contracts  of  service  with  intent 
to  injure  the  plaintiff,  and  to  prevent  the  said  persons  from  carry- 
ing out  their  contracts  with  the  plaintiff;  and  for  maliciously  and 
wrongfully  intimidating  the  said  persons,  and  coercing  them  to  break 
their  contracts  with  the  plaintiff",  and  intimidating  the  servants  in  their 
employ,  and  coercing  them  to  leave  the  service  of  their  employers; 
and  for  unlawfully  conspiring  together,  and  with  certain  other  per- 
sons, to  do  the  acts  aforesaid  with  intent  to  injure  the  plaintiff. 

The  case  was  tried  at  the  Summer  Assizes  of  1896,  at  Belfast,  be- 
fore Lord  Justice  FitzGibbon,  and  resulted  in  a  verdict  for  the  plain- 
tiff'. The  Queen's  Bench  Division  (Palles,  C.  B.,  dissenting)  has  up- 
held that  verdict,  and  the  defendants  have  brought  the  case  before 
this  Court  on  appeal. 

The  facts  of  the  case  are  few  and  simple,  and  can  be  stated  very 
shortly.  The  plaintiff  offended  the  defendants  by  employing  some 
men  not  members  of  the  defendants'  Association,  and  refused  to  dis- 
miss them  when  requested.  The  plaintiff  appears  to  have  tried  to 
come  to  an  amicable  agreement  with  the  defendants'  Association,  and 
attended  a  meeting  of  theirs,  where  he  practically  offered  to  pay  the 
dues  and  charges  requisite  to  have  his  non-union  men  admitted  to  the 
Association,  and  thus  remove  the  sole  ground  of  trade  dispute.  In 
his  evidence  he  says:  "Shaw  objected,  and  said  my  men  should  be 
put  out  and  walk  the  streets  for  twelve  months.  I  said  it  was  a  hard 
case  to  make  a  man  with  nine  small  children  walk  the  streets  for 
twelve  months,  and  that  I  would  not  submit  to  it."  The  defendants 
then  called  out  the  plaintiff''s  union  assistants,  and  induced  one  of 
them  to  break  his  contract  of  service,  thus  causing  possibly  some  in- 
convenience to  the  plaintiff,  though  not  much  loss,  as  labour  appears 
to  have  been  abundant  in  the  neighborhood. 

The  plaintiff',  however,  alleged  a  much  graver  element  of  loss,  in 
the  successful  efforts  of  the  defendants  to  prevent  his  customers  deal- 
ing with  him.  Some  evidence  was  given  as  to  three,  but  attention 
may  be  concentrated  on  one.  His  principal  customer  appears  to  have 
been  a  Belfast  butcher  called  Munce,  who  had  dealt  with  him  in  a 
very  large  way  for  a  great  number  of  years.  The  course  of  dealing 
between  them  was  that  the  plaintiff  delivered  a  very  extensive  con- 
signment of  meat  every  week  to  Munce,  which  was  invariably  paid  for 
in  due  course.  The  defendants  determined  to  "put  a  screw"  on  Munce 
to  withdraw  his  custom  from  the  plaintiff,  and  he,  yielding  to  a  threat 
that  his  assistants  would  be  otherwise  called  out,  reluctantly  telegraph- 
ed to  the  plaintiff  to  cease  sending  him  meat. 

The  action  of  the  defendants  in  reference  to  Munce  was  the  cause 

of  the  most  serious  loss  sustained  by  the  plaintiff,  and  was  the  main 

element  of  damage  proved  by  him  at  the  trial.     Unquestionably,  the 

plaintiff  was  deprived  of  his  best  customer  through  the  action  of  the 

Hepb. Torts — 81 


12S2  TORTS  THROUGH   ACTS  OP   CONDITIONAL  LIABILITY        (Part  3 

defendants.  A  course  of  dealing  most  profitable  for  the  plaintiff  was 
broken  owing  to  their  intervention.  No  formal  contract  may  have 
existed  between  the  plaintiff  and  Munce,  though  possibly  one  might 
have  been  implied  from  week  to  week,  determinable  only  by  adequate 
notice.  But  the  real  ground  of  large  damage  was  the  driving  away 
of  the  plaintift"'s  best  customer  by  the  combined  action  of  the  defend- 
ants, and  their  deliberate  damage  to  a  most  lucrative  part  of  his  trade. 
In  addition,  his  name  was  put  on  a  "black  list''  under  circumstances 
fully  detailed  in  evidence. 

Lord  Justice  FitzGibbon,  in  charging  the  jury,  told  them  to  ask 
themselves  the  question  whether  the  action  of  the  defendants  was  or 
was  not  taken  for  the  purpose  of  injuring  Leathem  in  his  trade  or 
business,  as  distinguished  froni  being  action  for  the  legitimate  ad- 
vancement of  the  interest  of  the  men  themselves.  He  pointed  out  that 
"maliciously"  meant  with  intent  to  injure,  as  distinguished  from  ad- 
vancing their  O'wn  interests.  He  also  told  them  that  in  calculating 
damages  they  were  to  consider  money  injury  to  the  plaintiff  in  his 
business ;  but  in  considering  the  amount  they  were  not  bound  to 
confine  themselves  to  £  s.  d.  that  could  be  proved. 

The  learned  Lord  Justice  left  three  questions  to  the  jury:  First, 
Did  the  defendants,  or  any  of  them,  maliciously  induce  the  plaintiff's 
customers  or  servants  named  in  the  evidence  to  refuse  to  deal,  or  to 
continue,  with  the  plaintiff"?  Second,  Did  the  defendants,  or  any  of 
them,  maliciously  conspire  to  induce  the  plaintiff's  customers  and 
serv'ants  not  to  deal  with  the  plaintiff,  or  not  to  continue  in  his  em- 
ployment, and  whether  the  persons  thereby  induced  did  so?  Third, 
Did  the  defendants  Davey,  Dornan,  and  Shaw,  or  any  of  them,  publish 
the  "black  list"  with  the  intention  of  injuring  the  plaintiff?  The  jury 
answered  the  first  and  second  questions  in  the  affirmative  against  all 
the  defendants,  assessing  the  damages  at  £200 ;  they  also  answered  the 
third  question  in  the  affirmative  against  the  three  defendants  named 
therein,  assessing  the  damages  at  £50.  It  was  conceded  in  the  argu- 
ment that  no  separate  damages  could  be  given  on  the  third  ques- 
tion, and  it  may  therefore  be  disregarded  in  the  consideration  of 
the  case. 

The  case  of  Allen  v.  Flood,  [1898]  A.  C.  1,  had  not  been  decided 
in  the  House  of  Lords  at  the  time  of  the  trial  before  Lord  Justice 
FitzGibbon,  and  the  argument  addressed  to  us  substantially  amounted 
to  a  contention  that  the  decision  of  the  House  of  Lords  had  rendered 
it  impossible  to  uphold  the  verdict  in  the  present  case,  and  bad  prac- 
tically swept  away  the  authority  of  Temperton  v.  Russell,  [1893]  1 
Q.  B.  715,  on  which  tiic  plaintiff  might  have  otherwise  relied. 

The  case  of  Temperton  v.  Russell,  ibid.,  was  unquestionably  very 
like  the  present  in  its  essential  particulars.     *     *     *  29 

2  9  Part.s  of  the  opinion  of  Lord  Ashbourne,  C.  and  the  opinions  of  Porter, 
yi.  R..  and  Walker  and  Holmes,  L.  JJ.,  are  omitted. 


Ch.  2)  TORTS  THROUGH  MALIOEJ  1283 

Before  considering  how  far  this  decision  is  afifected  by  the  judgment 
of  tlie  House  of  Lords  in  the  case  of  Allen  v.  Flood,  [1898]  A.  C. 
1,  I  should  like  to  refer  to  the  case  of  the  Mogul  Steamship  Com- 
pany V.  Alacgregor  &  Co.,  [1892]  A.  C.  25,  when  the  House  of 
Lords  laid  down  what  could  not  be  charged  as  a  conspiracy  to  in- 
jure.   The  facts  of  that  case  are  important. 

''Ov/ners  of  ships,  in  order  to  secure  a  carrying  trade  exclusively 
for  tliemselves  and  at  profitable  rates,  formed  an  association,  and 
agreed  that  the  number  of  ships  to  be  sent  by  members  of  the  as- 
sociation to  the  loading  port,  the  division  of  cargoes  and  the  freights 
to  be  demanded,  should  be  the  subject  of  regulation,  that  a  rebate 
of  5  per  cent,  on  the  freights  should  be  allowed  to  all  shippers  who 
shipped  only  with  members ;  and  that  agents  of  members  should 
be  prohibited  on  pain  of  dismissal  from  acting  in  the  interest  of 
competing  shipowners ;  any  member  to  be  at  liberty  to  withdraw 
on  giving  certain  notices.  The  plaintiffs,  who  were  shipowners  ex- 
cluded from  the  association,  sent  ships  to  the  loading  ports  to  endeavour 
to  obtain  cargoes.  The  associated  owners  thereupon  sent  more  ships 
to  the  port,  underbid  the  plaintiffs,  and  reduced  freights  so  low  that 
the  plaintiff's  were  obliged  to  carry  at  unremunerative  rates.  They 
also  threatened  to  dismiss  certain  agents  if  they  loaded  the  plain- 
tiff's' ships,  and  circulated  a  notice  that  the  rebate  of  5  per  cent. 
would  not  be  allowed  to  any  person  who  shipped  cargoes  on  the  plain- 
tiffs' vessels.  The  plaintiffs  having  brought  an  action  for  damages 
against  the  associated  owners  alleging  a  conspiracy  to  injure  the 
plaintiffs:  Held,  affirming  the  decision  of  the  Court  of  Appeal  (23 
Q.  B.  D.  598),  that  since  the  acts  of  the  defendants  were  done  with 
the  lawful  object  of  protecting  and  extending  their  trade  and  increas- 
ing their  profits,  and  since  they  had  not  employed  any  unlawful* 
means,  the  plaintiffs  had  no  cause  of  action." 

It  will  thus  be  seen  that  the  case  of  Temperton  v.  Russell,  [1893] 
1  Q.  B.  '715,  is  very  like,  while  the  Mogul  Case,  [1892]  A.  C.  25,  is 
very  unlike,  the  present ;  but  each  throws  a  flood  of  light  on  the  prin- 
ciples which  should  guide  our  decision. 

The  facts  of  the  case  of  Allen  v.  Flood,  [1898]  A.  C.  1,  have 
been  stated  so  often  that  it  is  only  necessary  to  refer  to  them  very 
shortly.  Flood  and  Taylor,  the  plaintiffs,  were  employed  as  ship- 
wrights by  the  Glengall  Iron  Company,  on  the  terms  that  they  might 
be  discharged  at  any  time.  The  jury  found  that  Allen,  the  defendant, 
maliciously  induced  the  Company  to  discharge  Flood  and  Taylor 
from  the  Company's  employment  and  not  to  engage  them,  and  that 
each  had  suffered  £20  damages.  The  case,  when  finally  presented 
for  decision,  was  not  one  of  conspiracy  or  unlawful  combination. 

None  of  the  noble  and  learned  Lords  who  concurred  in  the  opin- 
ion of  the  majority  laid  it  down  that  their  decision  would  apply  to 
a  case  of  conspiracy,  and  several  of  them  expressly  guarded  them- 


1284  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

selves  against  their  judgments  being  quoted  as  applicable  to  a  case  of 
conspiracy.     *     *     * 

How  does  the  decision  of  Allen  v.  Flood  affect  the  authority  of 
Tcmperton  v.  Russell?  How  does  it  necessarily  compel  us  to  regard 
the  case  as  no  longer  entitled  to  weight?  In  my  opinion  it  leaves 
entirely  untouched  and  unshaken  the  larger  part  of  that  case — that  in 
respect  of  which  £200  damages  was  awarded  for  conspiracy. 

In  the  present  case  the  jury  has  expressly  found  tliat  the  defend- 
ants maliciously  conspired  to  induce  the  plaintiff's  customers  and  serv- 
ants not  to  deal  with  the  plaintiff,  and  not  to  continue  in  his  service, 
and  that  he  was  damaged  thereby  to  the  extent  of  £200.  Lord  Justice 
FitzGibbon  was  careful  to  express  what  was  meant  by  "maliciously" ; 
and  I  take  it  that  the  jury  found  and  meant  that  the  defendants  acted 
with  motive  and  intention  to  injure  and  punish  the  plaintiff,  and  not 
to  advance  their  own  interests,  or  to  further  their  own  trade  objects. 
I  am  disposed  to  think  that  there  was  evidence  of  coercion  and  intimi- 
dation; but  as  the  jury  did  not  return  any  separate  finding  on  the 
subject,  I  do  not  enter  on  the  subject  as  a  separate  or  independent 
topic. 

The  Mogul  Steamship  Company's  Case,  [1892]  A.  C.  25,  shows  how 
carefully  the  law  protects  all  legitimate  trade  competition,  and  that  the 
law  will  not  allow  it  to  be  interfered  with  because  the  combination 
which  is  formed  for  legal  purposes  is  styled  a  conspiracy.  On  the 
other  hand  the  case  of  Temperton  v.  Russell,  [1893]  1  Q.  B.  715, 
shows  that  where  the  elements  of  a  real  conspiracy  to  injure  exist, 
the  law  will  not  deny  relief  to  a  man  who  is  thereby  damaged. 

I  am  unable  to  concur  in  the  interesting  argument  founded  on  sec- 
tion 3  of  the  Conspiracy  and  Protection  of  Property  Act,  1875.  I  can- 
'not  regard  the  acts  of  the  defendants  as  being  done  in  contempla- 
tion and  furtherance  of  a  trade  dispute;  and  I  am  also  impressed  by 
the  argument  of  Mr.  Justice  Andrews  that  the  enactment  deals  with 
criminal  responsibility  only,  and  not  with  the  right  of  redress  for 
civil  wrongs. 

I  am  unable  to  find  anything  in  the  case  of  Allen  v.  Flood,  [1898] 
A,  C.  1,  as  decided  by  the  House  of  Lords,  to  apply  to  a  case  of  con- 
spiracy like  the  present;  I  can  see  nothing  to  justify  our  sending 
the  case  for  a  new  trial ;  I  think  that  the  verdict  for  £200  damages 
should  be  upheld,  and  the  decision  of  the  Queen's  Bench  Division  for 
that  amount  affirmed,  and  this  appeal  dismissed  with  costs. 


Ch.  2)  TORTS  THROUGH  MALICE  1285 

QUINN,  Appellant,  and  LEATHEM,   Respondent 
(House  of  Lords,  [1901]  A.  C.  405.) 

Leathern  brought  an  action  in  Ireland,  against  five  defendants,  and 
in  the  Queen's  Bench  Division  obtained  a  judgment,  on  two  causes 
of  action,  against  all  five,  for  £200  damages,  and  on  an  alleged  third 
cause,  the  publication  of  a  black  list,  had  judgment  in  the  further 
sum  of  £50  damages  against  three  of  the  defendants.  In  the  Irish 
Court  of  Appeal  the  decision  below  was  affirmed  as  to  the  judgment 
for  the  £200  damages.     Ouinn,  one  of  the  five  defendants,  appealed.^" 

Lord  LindlDy.  My  Lords,  the  case  of  Allen  v.  Flood,  [1898]  A. 
C.  1,  has  so  important  a  bearing  on  the  present  appeal  that  it  is 
necessary  to  ascertain  exactly  what  this  House  really  decided  in  that 
celebrated  case.^^ 

It  was  an  action  by  two  workmen  of  an  iron  company  against 
three  members  of  a  trade  union,  namely,  Allen  and  two  others,  for 
maliciously,  wrongfully,  and  with  intent  to  injure  the  plaintiffs,  pro- 
curing and  inducing  the  iron  company  to  discharge  the  plaintiffs. 
The  action  was  tried  before  Kennedy,  J.,  who  ruled  that  there  was 
no  evidence  to  go  to  the  jury  of  conspiracy,  intimidation,  coercion,  or 
breach  of  contract.  The  result  of  the  trial  was  that  the  plaintiff's  ob- 
tained a  verdict  and  judgment  against  Allen  alone.  He  appealed,  and 
the  only  question  which  this  House  had  to  determine  was  whether 
what  he  had  done  entitled  the  plaintiff's  to  maintain  their  action 
against  him.  What  the  jury  found  that  he  had  done  was,  that  he  had 
maliciously  induced  the  employers  of  the  plaintiff's  to  discharge  them, 
whereby  the  plaintiff's  suffered  damage.  Diff'erent  views  were  taken 
by  the  noble  Lords  who  heard  the  appeal  as  to  Allen's  authority  to 
call  out  the  members  of  the  union,  and  also  as  to  the  means  used  by 
Allen  to  induce  the  employers  of  the  plaintiff's  to  discharge  them ; 
but,  in  the  opinion  of  the  noble  Lords  who  formed  the  majority  of 
your  Lordships'  House,  all  that  Allen  did  was  to  inform  the  employers 
of  the  plaintiffs  that  most  of  their  worl-anen  would  leave  them  if  they 
did  not  discharge  the  plaintiffs.  There  being  no  question  of  conspir- 
acy, intimidation,  coercion,  or  breach  of  contract,  for  consideration 
by  the  House,  and  the  majority  of  their  Lordships  having  come  to  the 
conclusion  that  Allen  had  done  no  more  than  I  have  stated,  the  ma- 
jority of  the  noble  Lords  held  that  the  action  against  Allen  would  not 
lie;  that  he  had  infringed  no  right  of  the  plaintiffs;  that  he  had  done 
nothing  which  he  had  no  legal  right  to  do,  and  that  the  fact  that  he 

30  The  statement  of  facts  is  abridRod,  and  the  arguments  of  counsel  and 
parts  of  Tx)rd  Lindley's  opinion  are  omitted. 

In  the  House  of  Lords,  there  were  elaborate  opinions,  all  concurring,  from 
the  Earl  of  Ilalsbury,  L.  C,  Lord  Macnaghteu,  Lord  Shand,  Lord  Brampton, 
and  Lord  Lindley. 

31  On  Allen  v.  Flood,  the  report  of  which  in  the  House  of  Ixjrds  runs  to  ISO 
pages  ([1898]  A.  C.  3-lSl),  see  Salmond  on  Torts  (3d  Ed.)  473,  distinguit^hiug 
the  case  from  Quinn  v.  T>eathem. 


1286  TORTS  THROUGH   ACTS  OF   CONDITIONAL   LIABILITY        (Part  3 

had  acted  maliciously  and  with  intent  to  injure  the  plaintiffs  did  not, 
without  more,  entitle  the  plaintiffs  to  maintain  the  action. 

My  Lords,  this  decision,  as  I  understand  it,  establishes  two  propo- 
sitions :  one  a  far-reaching  and  extremely  important  proposition  of 
law,  and  the  other  a  comparatively  unimportant  proposition  of  mixed 
law  and  fact,  useful  as  a  guide,  but  of  a  very  different  character  from 
the  first. 

The  first  and  important  proposition  is  that  an  act  otherwise  lawful, 
although  hannful,  does  not  become  actionable  by  being  done  mali- 
ciously in  the  sense  of  proceeding  from  a  bad  motive,  and  with  intent 
to  annoy  or  harm  another.  This  is  a  legal  doctrine  not  new  or  laid 
down  for  the  first  time  in  Allen  v.  Flood ;  it  had  been  gaining  ground 
for  some  time,  but  it  was  never  before  so  fully  and  authoritatively 
expounded  as  in  that  case.  In  applying  this  proposition  care,  how- 
ever, must  be  taken  to  bear  in  mind,  first,  that  in  Allen  v.  Flood 
criminal  responsibility  had  not  to  be  considered.  It  would  revo- 
lutionize criminal  law  to  say  that  the  criminal  responsibility 
for  conduct  never  depends  on  intention.  Secondly,  it  must  be  borne 
in  mind  that  even  in  considering  a  person's  liability  to  civil  proceed- 
ings the  proposition  in  question  only  applies  to  "acts  otherwise  law- 
ful," i.  e.,  to  acts  involving  no  breach  of  duty,  or,  in  other  words,  no 
wrong  to  any  one.     I  shall  refer  to  this  matter  later  on. 

The  second  proposition  is  that  what  Allen  did  infringed  no  right  of 
the  plaintiffs,  even  although  he  acted  maliciously  and  with  a  view  to 
injure  them.  I  have  already  stated  what  he  did,  and  all  that  he  did. 
in  the  opinion  of  the  majority  of  the  noble  Lords.  If  their  view  of 
the  facts  was  correct,  their  conclusion  that  Allen  infringed  no  right 
of  the  plaintiffs  is  perfectly  intelligible,  and  indeed  unavoidable. 
Truly,  to  inform  a  person  that  others  will  annoy  or  injure  him  unless 
he  acts  in  a  particular  way  cannot  of  itself  be  actionable,  whatever  the 
motive  or  intention  of  the  informant  may  have  been. 

My  Lords,  the  questions  whether  Allen  had  more  power  over  the 
men  than  some  of  their  Lordships  thought,  and  whether  Allen  did 
more  than  they  thought,  are  mere  questions  of  fact.  Neither  of  these 
questions  is  a  question  of  law,  and  no  court  or  jury  is  bound  as  a  mat- 
ter of  law  to  draw  from  the  facts  before  it  inferences  of  fact  similar 
to  those  drawn  by  noble  Lords  from  the  evidence  relating  to  Allen 
in  the  case  before  them. 

I  will  pass  now  to  the  facts  of  this  case,  and  consider  (1)  what  the 
plaintiff's  rights  were ;  (2)  what  the  defendants'  conduct  was ;  (3) 
whether  that  conduct  infringed  the  plaintiff's  rights.  For  the  sake  of 
clearness  it  will  be  convenient  to  consider  these  questions  in  the  first 
place  apart  from  the  statute  which  legalizes  strikes,  and  in  the  next 
place  with  reference  to  that  statute. 

1.  As  to  the  plaintiff's  rights.  He  had  the  ordinary  rights  of  a 
British  subject.  He  was  at  liberty  to  earn  his  own  living  in  his  own 
way,  provided  he  did  not  violate  some  special  law  prohibiting  him 
from  so  doing,  and  provided  he  did  not  infringe  the  rights  of  other 


Ch.  2)  TORTS   THROUGH   MALICE  1287 

people.  This  liberty  involved  liberty  to  deal  with  other  persons  who 
were  willing  to  deal  with  him.  This  liberty  is  a  right  recognized  by 
law ;  its  correlative  is  the  general  duty  of  every  one  not  to  prevent 
the  free  exercise  of  this  liberty,  except  so  far  as  his  own  liberty  of 
action  may  justify  him  in  so  doing.  But  a  person's  liberty  or  right 
to  deal  with  others  is  nugatory,  unless  they  are  at  liberty  to  deal  with 
him  if  they  choose  to  do  so.  Any  interference  with  their  liberty  to 
deal  with  him  affects  him.  If  such  interference  is  justifiable  in  point 
of  law,  he  has  no  redress.  Again,  if  such  interference  is  wrongful, 
the  only  person  who  can  sue  in  respect  of  it  is,  as  a  rule,  the  person 
immediately  aft'ected  by  it;  another  who  suffers  by  it  has  usually  no 
redress ;  the  damage  to  him  is  too  remote,  and  it  would  be  obviously 
practically  impossible  and  highly  inconvenient  to  give  legal  redress  to 
all  who  suffered  from  such  wrongs.  But  if  the  interference  is  wrong- 
ful and  is  intended  to  damage  a  third  person,  and  he  is  damaged  in 
fact — in  other  words,  if  he  is  wrongfully  and  intentionally  struck  at 
through  others,  and  is  thereby  damnified — the  whole  aspect  of  the 
case  is  changed :  the  wrong  done  to  others  reaches  him,  his  rights  are 
infringed  although  indirectly,  and  damage  to  him  is  not  remote  or  un- 
foreseen, but  is  the  direct  consequence  of  what  has  been  done.  Our 
law,  as  I  understand  it,  is  not  so  defective  as  to  refuse  him  a  remedy 
by  an  action  under  such  circumstances.  The  cases  collected  in  the 
old  books  on  actions  on  the  case,  and  the  illustrations  given  by  the  late 
Bowen,  L.  J.,  in  his  aflmirable  judgment  in  the  Mogul  Steamship  Com- 
pany's Case,  23  Q.  B.  D.  613,  614,  may  be  referred  to  in  support  of 
the  foregoing  conclusion,  and  I  do  not  understand  the  decision  in 
Allen  v.  Flood  to  be  opposed  to  it. 

If  the  above  reasoning  is  correct,  Lumley  v.  Gye,  2  E.  &  B.  216,  was 
rightly  decided,  as  I  am  of  opinion  it  clearly  was.  Further,  the  prin- 
ciple involved  in  it  cannot  be  confined  to  inducements  to  break  con- 
tracts of  service,  nor  indeed  to  inducements  to  break  any  contracts. 
The  principle  which  underlies  the  decision  reaches  all  wrongful  acts 
done  intentionally  to  damage  a  particular  individual  and  actually  dam- 
aging him.  Temperton  v.  Russell,  [1893]  1  Q.  B.  715,  ought  to  have 
been  decided  and  may  be  upheld  on  this  principle.  That  case  was 
much  criticised  in  Allen  v.  Flood,  and  not  without  reason ;  for,  ac- 
cording to  the  judgment  of  Lord  Esher,  the  defendants'  liability  de- 
pended on  motive  or  intention  alone,  whether  anything  wrong  was 
done  or  not.  This  went  too  far,  as  was  pointed  out  in  Allen  v.  Flood. 
But  in  Temperton  v.  Russell  there  was  a  wrongful  act,  namely,  con- 
spiracy and  unjustifiable  interference  with  Brentano,  who  dealt  with 
the  plaintiff.  This  wrongful  act  warranted  the  decision,  which  I 
think  was  right. 

2.  I  pass  on  to  consider  what  the  defendants  did.  The  appellant 
and  two  of  the  other  defendants  were  the  officers  of  a  trade  union, 
and  the  jury  have  found  that  the  defendants  wrongfully  and  malicious- 
ly induced  the  customers  of  the  plaintiff  to  refuse  to  deal  with  him. 
and  maliciously  conspired  to  induce  them  not  to  deal  with  him.    There 


1288  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

were  similar  findings  as  to  inducing  servants  of  the  plaintiff  to  leave 
him.  What  the  defendants  did  was  to  threaten  to  call  out  the  union 
workmen  of  the  plaintiff  and  of  his  customers  if  he  would  not  dis- 
charge some  non-union  men  in  his  employ.  In  other  words,  in  order 
to  compel  the  plaintiff  to  discharge  some  of  his  men,  the  defendants 
threatened  to  put  the  plaintiff  and  his  customers,  and  persons  lawfully 
working  for  them,  to  all  the  inconvenience  they  could  without  using 
violence.  The  defendants'  conduct  was  the  more  reprehensible  be- 
cause the  plaintiff  offered  to  pay  the  fees  necessary  to  enable  his  non- 
union men  to  become  members  of  the  defendants'  union;  but  this 
would  not  satisfy  the  defendants.  The  facts  of  this  case  are  entirely 
different  from  those  which  this  House  had  to  consider  in  Allen  v. 
Flood.  In  the  present  case  there  was  no  dispute  between  the  plain- 
tiff and  his  men.  None  of  them  wanted  to  leave  his  employ.  Nor 
was  there  any  dispute  between  the  plaintiff's  customers  and  their  own 
men,  nor  between  the  plaintiff  and  his  customers,  nor  between  the  men 
they  respectively  employed.  The  defendants  called  no  witnesses,  and 
there  was  no  evidence  to  justify  or  excuse  the  conduct  of  the  defend- 
ants. That  they  acted  as  they  did  in  furtherance  of  what  they  con- 
sidered the  interests  of  union  men  may  probably  be  fairly  assumed 
in  their  favour,  although  they  did  not  come  forward  and  say  so  them- 
selves ;  but  that  is  all  that  can  be  said  for  them.  No  one  can,  I  think, 
say  that  the  verdict  was  not  amply  warranted  by  the  evidence.  I  have 
purposely  said  nothing  about  the  black  list,  as  the  learned  judge  who 
tried  the  case  considered  that  the  evidence  did  not  connect  the  appel- 
lant with  that  list.  But  the  black  list  was,  in  my  opinion,  a  very  im- 
portant feature  in  the  case. 

3.  The  remaining  question  is  whether  such  conduct  infringed  the 
plaintiff's  rights  so  as  to  give  him  a  cause  of  action.  In  my  opinion, 
it  plainly  did.  The  defendants  were  doing  a  great  deal  more  than 
exercising  their  own  rights:  they  were  dictating  to  the  plaintiff  and 
his  customers  and  servants  what  they  were  to  do.  The  defendants 
were  violating  their  duty  to  the  plaintiff  and  his  customers  and  serv- 
ants, which  was  to  leave  them  in  the  undisturbed  enjoyment  of  their 
liberty  of  action  as  already  explained.  What  is  the  legal  justification 
or  excuse  for  such  conduct?  None  is  alleged  and  none  can  be  found. 
This  violation  of  duty  by  the  defendants  resulted  in  damage  to  the 
plaintiff — not  remote,  but  immediate  and  intended.  The  intention  to 
injure  the  plaintiff  negatives  all  excuses  and  disposes  of  any  ques- 
tion of  remoteness  of  damage.  Your  lordships  have  to  deal  with  a 
case,  not  of  damnum  absque  injuria,  but  of  damnum  cum  injuria. 

Every  element  necessary  to  give  a  cause  of  action  on  ordinary  prin- 
ciples of  law  is  present  in  this  case.  As  regards  authorities,  they  were 
all  exhaustively  examined  in  the  Mogul  Steamship  Co.  v.  MacGregor 
and  Allen  v.  Flood,  and  it  is  unnecessary  to  dwell  upon  them  again. 
I  have  examined  all  those  which  are  important,  and  I  venture  to  say 
that  there  is  not  a  single  decision  anterior  to  Allen  v.  Flood  in  favour 


Ch.  2)  TORTS  THROUGH  MALICE  1289 

of  the  appellant.  His  sheet  anchor  is  Allen  v.  Flood,  which  is  far  from 
covering  this  case,  and  which  can  only  be  made  to  cover  it  by  greatly 
extending  its  operation. 

It  was  contended  at  the  bar  that  if  what  was  done  in  this  case  had 
been  done  by  one  person  only,  his  conduct  would  not  have  been  ac- 
tionable, and  that  the  fact  that  what  was  done  was  effected  by  many 
acting  in  concert  makes  no  difference.  My  Lords,  one  man  without 
others  behind  him  who  would  obey  his  orders  could  not  have  done 
wdiat  these  defendants  did.  One  man  exercising  the  same  control 
over  others  as  these  defendants  had  could  have  acted  as  they  did,  and, 
if  he  had  done  so,  I  conceive  that  he  would  have  committed  a  wrong 
towards  the  plaintiff  for  which  the  plaintiff  could  have  maintained 
an  action.  I  am  aware  that  in  Allen  v.  Flood,  Lord  Herschell,  at  pp. 
128,  138,  expressed  his  opinion  to  be  that  it  was  immaterial  whether 
Allen  said  he  would  call  the  men  out  or  not.  This  may  have  been 
so  in  that  particular  case,  as  there  was  evidence  that  Allen  had  no 
power  to  call  out  the  men,  and  the  men  had  determined  to  strike  be- 
fore Allen  had  anything  to  do  with  the  matter.  But  if  Lord  Herschell 
meant  to  say  that  as  a  matter  of  law  there  is  no  difference  between 
giving  information  that  men  will  strike,  and  making  them  strike,  or 
threatening  to  make  them  strike,  by  calling  them  out  when  they  do 
not  want  to  strike,  I  am  unable  to  concur  with  him.  It  is  all  very 
well  to  talk  about  peaceable  persuasion.  It  may  be  that  in  Allen  v. 
Flood,  there  was  nothing  more;  but  here  there  was  very  much  more. 
What  may  begin  as  peaceable  persuasion  may  easily  become,  and  in 
trades  union  disputes  generally  does  become,  peremptory  ordering, 
with  threats  open  or  covert  of  very  unpleasant  consequences  to  those 
who  are  not  persuaded.  Calling  workmen  out  involves  very  serious 
consequences  to  such  of  them  as  do  not  obey.  Black  lists  are  real  in- 
struments of  coercion,  as  every  man  whose  name  is  on  one  soon  dis- 
covers to  his  cost,  A  combination  not  to  work  is  one  thing,  and  is 
lawful.  A  combination  to  prevent  others  from  working  by  annoying 
them  if  they  do  is  a  very  different  thing,  and  is  prima  facie  unlawful. 
Again,  not  to  work  oneself  is  lawful  so  long  as  one  keeps  off  the  poor- 
rates,  but  to  order  men  not  to  work  wiien  they  are  willing  to  work  is 
another  thing.  A  threat  to  call  men  out  given  by  a  trade  union  of- 
ficial to  an  employer  of  men  belonging  to  the  union  and  willing  to 
work  with  him  is  a  form  of  coercion,  intimidation,  molestation,  or  an- 
noyance to  them  and  to  him  very  difificult  to  resist,  and,  to  say  the 
least,  requiring  justification.     None  was  offered  in  this  case. 

My  Lords,  it  is  said  that  conduct  which  is  not  actionable  on  the 
part  of  one  person  cannot  be  actionable  if  it  is  that  of  several  acting 
in  concert.  This  may  be  so  where  many  do  no  more  than  one  is  sup- 
posed to  do.  But  numbers  may  annoy  and  coerce  where  one  may  not. 
Annoyance  and  coercion  by  many  may  be  so  intolerable  as  to  become 
actionable,  and  produce  a  result  which  one  alone  could  not  produce. 
I  am  aware  of  the  difficulties  which  surround  the  law  of  conspiracy 


1290  TORTS  THROUGH   ACTS  OF   CONDITIONAL   LIABILITY        (Part  3 

both  in  its  criminal  and  civil  aspects ;  and  older  views  have  been 
greatly  and,  if  I  may  say  so,  most  beneticially  modified  by  the  discus- 
sions and  decisions  in  America  and  this  country.  Amongst  the  Ameri- 
can cases  I  would  refer  especially  to  Vegelahn  v.  Guntner,  167  Mass. 
92,  where  coercion  by  other  means  than  violence,  or  threats  of  it,  was 
held  unlawful.  In  this  country  it  is  now  settled  by  the  decision  of 
this  House  in  the  case  of  the  Mogul  Steamship  Co.,  [1892]  A.  C.  25, 
23  Q.  B.  D.  598,  that  no  action  for  a  conspiracy  lies  against  persons 
who  act  in  concert  to  damage  another  and  do  damage  him,  but  who 
at  the  same  time  merely  exercise  their  own  rights  and  who  infringe 
no  rights  of  other  people.  Allen  v.  Flood  emphasizes  the  same  doc- 
trine. The  principle  was  strikingly  illustrated  in  the  Scottish  Co-opera- 
tive Society  v.  Glasgow  Fleshers'  Association  (1898)  35  Sc.  L.  R.  645, 
which  was  referred  to  in  the  course  of  the  argument.  In  this  case 
some  butchers  induced  some  salesmen  not  to  sell  meat  to  the  plain- 
tiffs. The  means  employed  were  to  threaten  the  salesmen  that  if  they 
continued  to  sell  meat  to  the  plaintiffs,  they,  the  butchers,  would  not 
buy  from  the  salesmen.  There  was  nothing  unlawful  in  this,  and  the 
learned  judge  held  that  the  plaintiffs  showed  no  cause  of  action,  al- 
though the  butchers'  object  was  to  prevent  the  plaintiffs  from  buying 
for  co-operative  societies  in  competition  with  themselves,  and  the  de- 
fendants were  acting  in  concert. 

The  cardinal  point  of  distinction  between  such  cases  and  the  pres- 
ent is  that  in  them,  although  damage  was  intentionally  inflicted  on  the 
plaintiffs,  no  one's  right  was  infringed — no  wrongful  act  was  commit- 
ted ;  whilst  in  the  present  case  the  coercion  of  the  plaintiff's  customers 
and  servants,  and  of  the  plaintiff  through  them,  was  an  infringement 
of  their  liberty  as  well  as  his,  and  was  wrongful  both  to  them  and  also 
to  him,  as  I  have  already  endeavoured  to  show. 

Intentional  damage  which  arises  from  the  mere  exercise  of  the  rights 
of  many  is  not,  I  apprehend,  actionable  by  our  law  as  now  settled. 
To  hold  the  contrary  would  be  unduly  to  restrict  the  liberty  of  one 
set  of  persons  in  order  to  uphold  the  liberty  of  another  set.  Accord- 
ing to  our  law,  competition,  with  all  its  drawbacks,  not  only  between 
individuals,  but  l:)etween  associations,  and  between  them  and  individ- 
uals, is  permissible,  provided  nobody's  rights  are  infringed.  The  law 
is  the  same  for  all  persons,  whatever  their  callings :  it  applies  to  mas- 
ters as  well  as  to  men;  the  proviso,  however,  is  all-important,  and  it 
also  applies  to  both,  and  limits  the  rights  of  those  who  combine  to 
lock-out  as  well  as  the  rights  of  those  who  strike.  But  coercion  by 
threats,  open  or  disguised,  not  only  of  bodily  harm  but  of  serious  an- 
noyance and  damage,  is  prima  facie,  at  all  events,  a  wrong  inflicted 
on  the  persons  coerced ;  and  in  considering  whether  coercion  has  been 
applied  or  not,  numbers  cannot  be  disregarded.     *     *     * 

I  conclude  this  part  of  the  case  by  saying  that,  in  my  opinion,  the 
direction  given  to  the  jury  by  the  learned  judge  who  tried  the  case  was 
correct,  so  far  as  the  liability  of  the  defendants  turns  on  principles  of 


Ch.  2)  TORTS  THROUGH   MALICE  1291 

common  law,  and  that  the  objection  taken  to  it  by  the  counsel  for  the 
appellant  is  untenable.  I  mean  the  objection  that  the  learned  judge 
did  not  distinguish  between  coercion  to  break  contracts  of  service, 
and  coercion  to  break  contracts  of  other  kinds,  and  coercion  not  to 
enter  into  contracts.     *     *     * 

My  Lords,  I  will  detain  your  Lordships  no  longer.  Allen  v.  Flood 
is  in  many  respects  a  very  valuable  decision,  but  it  may  be  easily  mis- 
understood and  carried  too  far. 

Your  Lordships  are  asked  to  extend  it  and  to  destroy  that  individ- 
ual liberty  which  our  laws  so  anxiously  guard.  The  appellant  seeks 
by  means  of  Allen  v.  Flood,  and  by  logical  reasoning  based  upon  some 
passages  in  the  judgments  given  by  the  noble  Lords  who  decided  it, 
to  drive  your  Lordships  to  hold  that  boycotting  by  trades  unions  in 
one  of  its  most  objectionable  forms  is  lawful,  and  gives  no  cause  of 
action  to  its  victims  although  they  may  be  pecuniarily  ruined  thereby. 

My  Lords,  so  to  hold  would,  in  my  opinion,  be  contrary  to  well- 
settled  principles  of  English  law,  and  would  be  to  do  what  is  not  yet 
authorized  by  any  statute  or  legal  decision. 

In  my  opinion  this  appeal  ought  to  be  dismissed  with  costs. 

Order  appealed  from  affirmed,  and  appeal  dismissed  with  costs. 


READ  V.  FRIENDLY  SOCIETY  OF  OPERATIVE  STONEMA- 
SONS OF  ENGLAND,  IRELAND  AND  WALES  et  al. 

(Court  of  Appeal.     fl002]  2  K.  B.  732.) 

Collins,  M.  R.,  read  the  follov/ing  judgment:  This  is  an  appeal 
by  the  defendants  from  the  decision  of  the  Divisional  Court  order- 
ing a  new  trial  of  a  case  decided  by  a  county  court  judge  in  favour 
of  the  defendants.  There  is  a  cross-appeal  by  the  plaintiff  asking  that 
fhis  Court  should  give  judgment  for  the  plaintiff  with  damages.  The 
Court  below,  while  agreed  that  the  decision  was  unsatisfactory,  were 
divided  as  to  the  relief;  Darling,  J-,  and  Channel!,  J.,  holding  that 
there  ought  to  be  a  new  trial,  while  Lord  Alverstone,  C.  J.,  was  of 
opinion  that  the  plaintiff'  was  entitled  to  judgment.  The  parties  agreed 
before  them  and  before  us  that  if  judgment  were  given  for  the  plain- 
tiff the  Court  should  assess  the  damages. 

The  facts  are  stated  in  the  judgments  as  reported  below,  and  I 
need  do  no  more  than  summarize  them  for  the  purpose  of  this  judg- 
ment. The  claim  was  for  £50  damages  for  wrongfully  and  malicious- 
ly inducing  Messrs.  Wigg  &  Wright  to  break  their  contract  of  ap- 
prenticeship with  the  plaintiff.  The  evidence  for  the  plaintiff"  was  that 
he  had  become  bound  by  an  indenture  of  apprenticeship  to  Messrs. 
Wigg  &  Wright,  stonemasons,  of  Ipswich,  whereby  they  undertook 
to  teach  him  the  trade  of  a  mason,  paying  him  wages  of  15s.  a  week 
during  a  period  of  three  years.  Messrs.  Wigg  &  Wright  had  in  their 
capacity  as  masters  agreed  to  certain  working  rules  with  the  defend- 


1292  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

ant  society,  one  of  which  (6)  was  as  follows :  "That  boys  entering  the 
trade  shall  not  work  more  than  three  months  without  being  legally 
bound  apprentice,  and  in  no  case  to  be  more  than  sixteen  years  of  age, 
except  masons'  sons  and  stepsons.  Employers  to  have  one  apprentice 
to  every  four  masons  on  an  average."  The  plaintiiFs  father  was  a 
mason.  The  plaintiff  was  not  a  member  of  the  society,  and  was  twen- 
ty-five years  of  age  when  he  entered  into  the  indenture  of  apprentice- 
ship. The  defendant  society  in  concert  with  the  other  defendants, 
on  becoming  aware  that  the  plaintiff'  had  been  taken  as  an  apprentice 
by  Messrs.  Wigg  &  ^Vright,  took  steps  to  enforce  compliance  by  them 
with  rule  6  as  interpreted  by  the  defendants  by  threatening  in  the 
language  of  their  letter  set  out  in  Darling,  J.'s,  judgment:  "If  the  man 
in  question  (the  plaintiff")  starts  working  at  the  trade,  we  are  bound 
to  protest  against  you  for  introducing  an  individual  not  of  the  trade; 
and  in  accordance  with  our  general  rule  we  have  empowered  our  mem- 
bers working  for  your  firm  to  take  prompt  action  in  the  matter.  We 
regret  the  thing  has  occurred,  but  we  feel  that  the  blame  does  not 
rest  with  us  in  any  way."  This  was  in  effect  a  threat  that  they  would 
call  out  the  workmen  in  Messrs.  Wigg  &  Wright's  employ,  all  of 
whom  were  members  of  the  defendant  society,  and,  as  was  explained 
by  counsel,  if  so  empowered,  would  be  supported  while  off'  work  out  of 
the  funds  of  the  society.  Messrs.  Wigg  &  Wriglit  disputed  the  con- 
struction placed  by  the  defendants  on  rule  6,  contending,  and  as  I 
think  rightly,  that  it  did  not  extend  to  masons'  sons.  Feeling,  how- 
ever, that  they  could  not  resist  the  coercion  brought  to  bear  on  them, 
they  dismissed  the  plaintiff.  It  was  not  suggested  before  us  that  the 
acts  complained  of  were  not  all  done  by  the  defendants  in  concert. 
The  plaintiff  has  therefore  lost  the  opportunity,  which  he  was  lawfully 
entitled  to,  of  emerging  from  the  position  of  a  labourer  at  15s.  a  week 
to  that  of  a  mason  who  may  earn  up  to  35s.  and  he  has  brought  his 
action  accordingly.  No  evidence  was  called  for  the  defendants,  and 
no  proof  given  oi  assent  by  Messrs.  Wigg  &  Wright  to  any  rules  oth- 
er than  those  put  in,  of  which  rule  6  is  one. 

On  these  facts  the  learned  county  court  judge  held  as  follows:  "I 
hold  that  the  facts  as  proved  and  admitted  before  me  fall  short  of 
giving  any  ground  of  action  against  the  defendants.  The  defendants 
seem  to  me  to  have  acted  bona  fide  in  the  best  interests  of  the  society 
of  masons,  and  not  to  have  been  in  any  way  actuated  by  any  improper 
motives.  They  gave  a  certain  interpretation  to  rule  6  and  acted  upon 
it,  and  though  their  interpretation  may  or  may  not  be  correct,  as  it 
was  honestly  held,  I  do  not  consider  they  have  acted  improperly  in 
their  method  of  enforcing  it." 

On  these  facts  the  case  seems  to  me  to  be  clear.  The  plaintiff  was 
entitled  to  the  benefit  of  the  contract  which  he  had  made,  and  that 
benefit  he  would  have  continued  to  enjoy  but  for  the  intervention  of 
the  defendants.  The  object  of  the  defendants'  intervention  was  to 
deprive  him  of  that  benefit.     The  facts  leave  no  room  for  doubt  as 


Ch.  2)  TORTS  THROUGH  MALICE  1293 

to  that.  He  was  not  a  member  of  their  society,  and  was  under  no 
obHgation,  legal  or  moral,  to  conform  to  their  rules.  In  these  cir- 
cumstances they  conspired  to  enforce,  l>y  threats  of  a  formidable  char- 
acter which  they  had  the  means  of  carr}-ing  into  eti'ect,  a  breach  by 
his  employers  and  instructors  of  the  contract  which  the  latter  had  with 
him;  and  the  only  justification  they  can  suggest  for  this  conduct  is 
that  Messrs.  Wigg  &  Wright  had  come  under  an  obligation  to  them, 
not  perhaps  legally  enforceable,  if  not  illegal,  not  to  make  such  a 
contract  as  they  had  made  with  the  plaintift.  But  the  justification 
to  be  of  any  avail  must  cover  their  whole  conduct,  the  means  they  used 
as  well  as  the  end  they  had  in  view.  As  against  Messrs.  Wigg  & 
Wright  they  had  whatever  rights  within  the  law  the  rules  assented 
to  by  Messrs.  Wigg  &  Wright  afforded  them.  But  to  combine  to  co- 
erce them,  by  threats  of  the  character  I  have  described,  to  break  tlieir 
contract  with  the  plaintiff  was  in  my  judgment  an  illegal  act  carried 
out  by  illegal  means.  They  cannot  be  in  a  better  position  if  the  rules 
are  unenforceable  than  they  would  have  been  had  a  breach  of  them 
givea  them  a  legal  cause  of  action.  But  in  such  case  how  can  they 
possibly  justify  taking  the  law  into  their  own  hands  and  compelling 
the  opposing  litigant  by  coercion  to  give  effect  to  their  view  of  a  dis- 
puted obligation  by  breaking  his  contract  with  the  plaintiff?  Further, 
does  not  such  conduct  demonstrate  that  their  object  was  to  defeat  the 
plaintiff''s  purpose  of  becoming  a  mason?  Belief,  however  honest,  that 
in  what  they  did  they  were  acting  in  the  best  interest  of  the  society 
of  masons  could  be  no  excuse  for  conspiring  to  deprive  the  plaintiff'  of 
the  advantages  of  his  contract.  Persuasion  by  an  individual  for  the 
purpose  of  depriving  another  person  of  the  benefit  of  a  contract,  if  it 
is  eft'ectual  in  bringing  about  a  breach  of  the  contract  to  the  damage  of 
that  person,  gives  a  cause  of  action:  Lumley  v.  Gye,  2  E.  &  B.  216; 
and  a  strong  belief  on  the  part  of  the  persuader  that  he  is  acting  for 
his  own  interests  does  not  seem  to  me  to  improve  his  position  in 
any  respect.  Still  less  can  it  do  so  when  he  does  not  confine  himself 
to  persuasion,  but  joins  with  others  to  enforce  their  common  interests 
at  the  plaintiff's  expense  by  coercion.  "That  a  conspiracy  to  injure 
— an  oppressive  combination — differs  widely  from  an  invasion  of  civil 
rights  by  a  single  individual  cannot  be  doubted."  See  per  Lord  Mac- 
naghten  in  Quinn  v.  Leathem,  [1901]  A.  C.  495,  at  p.  511,  and  per 
Lord  Brampton  in  the  same  case,  [1901]  A.  C.  at  pp.  528  et  seq.  It 
seems  to  me,  therefore,  that  this  case  stands  wholly  outside  the  de- 
bateable  ground  traversed  in  the  discussion  of  Allen  v.  Flood,  [1898] 
A,  C.  1.  The  action  of  the  defendants  was  as  clearly  malicious,  or, 
if  the  phrase  be  preferred,  "without  just  cause  or  excuse,"  as  in  Lum- 
ley v.  Gye,  which,  as  well  as  Temperton  v.  Russell,  [1893]  1  Q.  B.  715, 
has  been  finally  established  in  Quinn  v.  Leathem  to  be  a  binding  au- 
thority. "There  are,"  says  Lord  Watson  in  Allen  v.  Flood,  [1898]  A 
C.  1,  at  p.  96,  "in  my  opinion,  two  grounds  only  upon  which  a  person 
who  procures  tlie  act  of  another  can  be  made  legally  responsible  for 


1294  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY        (Part  3 

its  consequences.  In  the  first  place,  he  will  incur  liability  if  he  know- 
ingly and  for  his  own  ends  induces  that  other  person  to  commit  an  ac- 
tionable wrong.  In  the  second  place,  when  the  act  induced  is  within 
the  right  of  the  immediate  actor,  and  is  therefore  not  wrongful  in  so 
far  as  he  is  concerned,  it  may  yet  be  to  the  detriment  of  a  third  par- 
ty ;  and  in  that  case  *  *  *  ^he  inducer  may  be  held  liable  if  he 
can  be  shewn  to  have  procured  his  object  by  the  use  of  illegal  means 
directed  against  that  third  party."  This  view  is  approved  by  Lord 
Macnaghten  and  treated  by  him  as  embodying  the  opinion  of  the  ma- 
jority in  that  case.  Ouinn  v.  Leathern,  [1901]  A.  C.  495,  at  p.  509. 
The  present  case  inevitably  falls  under  one  or  other  of  those  proposi- 
tions, and  I  think  within  both.  The  defendants  did  knowingly  and 
for  their  own  ends  induce  the  commission  of  an  actionable  wrong,  and 
they  employed  illegal  means  to  bring  it  about.  Such  conduct  would 
be  actionable  in  an  individual  and  incapable  of  justification,  a  fortiori 
where  the  defendants  acted  in  concert.  These  considerations  seem  to 
ine  to  exclude  from  discussion  in  this  case  the  illustrations  given  in 
argument  of  what  might  in  given  circumstances  be  "just  cause,"  or,  in 
other  words,  suffice  to  negative  malice.  There  was  no  relation  be- 
tween the  defendants  and  either  of  the  parties  in  this  case  at  all  anal- 
ogous to  those  existing  in  the  instances  put  of  father  and  child,  or 
doctor  and  patient,  which  I  leave  for  solution  when  the  case  arises. 
The  defendants  have  no  higher  immunity  from  legal  obligations  than 
any  other  members  of  the  community,  and  if  they  have  legal  rights 
they  can  enforce  them  by  legal  means  only.  It  is  not  at  all  necessary 
in  this  case  to  embark  upon  the  question  whether  "without  just  cause" 
is  a  complete  equivalent  for  what  was  meant  in  the  common  law  by 
malice.  I  am  inclined  to  think  that,  though  in  many  cases  adequate 
as  a  description,  it  is  not  co-extensive  with  it,  nor  do  I  think  that  in 
civil  actions  any  more  than  in  criminal  it  will  be  possible  to  eliminate 
raotives  from  the  discussion.  See  the  weighty  observations  of  Lord 
Brampton  on  this  point  in  Quinn  v.  Leathem,  [1901]  A.  C.  495,  at  p. 
524.  It  is,  however,  very  desirable  to  guard  against  the  notion  that 
if  the  act  done  be  illegal  "just  cause"  may  still  be  averred  to  purge  tlie 
wrong.  For  instance,  where  illegal  means  have  been  used  to  bring 
about  the  breach  of  a  contract  to  the  detriment  of  a  party  thereto, 
"just  cause"  cannot  come  into  the  discussion  at  all.  The  use  of  il- 
legal means  evidenced  malice,  and  in  this  connection  malice  was  not 
equivalent  to  "without  just  cause."  The  cause  of  intervention  might  be 
just,  but  the  means  used  to  enforce  it  might  be  illegal.  The  common  law 
action  threw  the  burden  of  proof  on  the  plaintiff.  It  was  not  enough 
for  him  to  shew  that  the  defendant  had  brought  about  the  breach  of 
a  contract  between  a  third  party  and  the  plaintiff.  He  had  to  shew 
that  it  was  done  maliciously,  and  the  burden  of  proving  malice  lay 
upon  him.  It  was  not  a  case  of  a  prima  facie  cause  of  action  based 
on  the  fact  that  a  breach  of  contract  had  been  brought  about  to  the 
detriment  of  the  plaintiff,   party  thereto,   by  a  stranger  to  the  con- 


Ch.  2)  TORTS  THROUGH   MALICE  1295 

tract.  The  common  law  did  not  lightly  extend  rights  arising  out  of 
contracts  to  and  against  persons  not  parties  thereto,  owing  to  the  ab- 
sence of  privity.  (See  the  cases  collected  in  the  notes  to  Pasley  v. 
Freeman,  2  Sm.  L.  C.  [10th  Ed.]  64.)  Some  nexus  had  to  be  es- 
tablished between  the  plaintiff  and  the  stranger,  and  this  was  found 
in  malice.  Unless  the  plaintiff  could  shew  this  he  failed  to  bring  the 
stranger  into  such  relations  with  him  as  to  ground  a  cause  of  action, 
and,  therefore,  the  burden  was  upon  the  plaintiff  to  prove  a  cause 
of  action,  not  upon  the  defendant  to  justify.  I  think  some  confusion 
has  crept  into  the  discussions  on  this  matter  through  want  of  sufficient 
regard  to  these  elementary  points. 

I  think  the  materials  before  us  are  sufficient  to  enable  us  to  enter 
judgment,  and  I  agree  with  the  Lord  Chief  Justice  that  the  defendants' 
appeal  should  be  dismissed  and  the  plaintiff's  cross-appeal  allowed, 
and  judgment  entered  for  the  plaintiff"  for  £50.^^ 


HOLBROOK  et  al.  v.  MORRISON. 

(Supreme    Judicial    Court   of   Massachusetts,    1913.      214    Mass.    209, 
100  N.  E.  1111,  44  L.  R.  A.  [N.  S.]  22S,  Aud.  Cas.  1914B,  824.) 

Morton,  J.  The  complainants  are  dealers  in  real  estate  and  own 
a  number  of  lots  on  Wellington  Hill  in  the  Dorchester  district  of  the 
city  of  Boston.  The  respondent  owns  a  house  and  lot  abutting  on 
two  of  the  lots  belonging  to  the  complainants  and  in  close  proximity 
to  the  others.  She  has  caused  to  be  placed  on  the  front  of  her  house 
a  large  sign  headed  with  the  words  "For  Sale,"  and  concluding  with 
the  words  "Best  Offer  from  Colored  Family,"  all  in  large  letters. 
The  first  entrance  onto  Wellington  Hill  and  the  way  prospective 
purchasers  would  take  in  going  there  is  past  her  house.  She  has 
also  caused,  it  is  alleged,  advertisements  of  like  tenor  to  be  inserted 
in  the  "Boston  Globe,"  a  newspaper  of  large  circulation,  and  has 
threatened  and  is  threatening  to  sell  her  house  and  lot  to  a  colored 
family.  This  is  a  bill  to  restrain  the  respondent  from  maliciously 
interfering  with  the  complainants'  business  by  means  of  such  sign 
and  advertisements  and  by  such  threats.  The  bill  alleges  that  the 
effect  of  the  respondent's  acts  has  been  greatly  to  injure  the  sale  of 
the  complainants'  lots  and  that  the  respondent's  purpose  is  to  injure 
the  complainants'  business,  and  that  she  has  no  real  intention  of  sell- 
ing her  house  and  lot  to  members  of  the  negro  race. 

The  case  was  heard  by  a  single  justice  and  comes  here  on  a  report 
by  him  of  the  evidence  and  of  a  finding  made  by  him  "that  the  re- 
spondent did  not  put  up  the  sign  for  the  sole  purpose  of  selling  her 
property,  but  that  she  did  so  for  the  purpose  of  annoying  the  com- 

32  The  statement  of  facts  and  opinions  of  Stirling  and  Cozens-Hardy,  L.  JJ.. 
are  omitted. 


1296  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

plainants."  This  finding  was  made  by  the  single  justice  "without 
going  into  the  question  of  whether  she  [the  respondent]  was  justified 
in  having  that  ill  feeling'' ;  and  the  report  concludes,  "such  decree 
to  be  entered  by  the  court  as  justice  and  equity  may  require." 

It  appeared  from  the  uncontradicted  evidence  that  the  threatened 
sale  by  the  respondent  of  her  house  and  lot  to  a  colored  family  has 
injured  and  will  continue  to  injure  the  business  of  the  complainants 
unless  prevented.  We  interpret  the  finding  made  by  the  single  jus- 
tice as  meaning  that  one  purpose  which  the  respondent  had  in  put- 
ting up  the  sign  and  in  advertising  her  property  as  she  did  was  to 
sell  it.  She  also  had  the  purpose,  as  he  finds,  of  annoying  the  com- 
plainants. 

There  can  be  no  doubt  that  the  respondent  has  the  right  to  adver- 
tise her  property  for  sale  by  signs  or  othenvise  in  the  usual  way,  and 
to  sell  it  if  she  sees  fit  to  a  negro  family,  even  though  the  effect  may 
be  to  impair  the  business  of  the  complainants ;  just  as,  for  instance, 
the  owner  of  land  on  a  hillside  may  cultivate  it  in  the  usual  way  even 
though  the  effect  of  the  surface  drainage  may  be  to  fill  up  his  neigh- 
bor's millpond  below.  Middlesex  Co.  v.  McQjie,  149  Mass.  103,  21 
N.  E.  230,  14  Am.  St.  Rep.  402.  Does  the  presence  in  the  sign  and 
advertisements  of  a  malevolent  motive  quoad  the  complainants  al- 
though they  are  not  named,  intended  to  annoy  and  in  fact  annoying 
and  injuring  the  complainants'  business  by  announcing  in  effect  that 
the  property  is  for  sale  to  a  colored  family  change  what  otherwise 
would  be  a  legal  right  into  an  actionable  wrong?  It  would  seem 
clear  according  to  our  own  decisions  that  it  does  not.  Rideout  v. 
Knox,  148  Mass.  368,  19  N.  E.  390,  2  L.  R.  A.  81,  12  Am.  St.  Rep. 
560;  Greenleaf  v.  Francis,  18  Pick.  118;  Walker  v.  Cronin,  107 
Mass.  555.  See,  also,  Frazier  v.  Brown,  12  Ohio  St.  294;  Chatfield 
v.  Wilson,  28  Vt.  49;  Mahan  v.  Brown,  13  Wend.  (N.  Y.)  261,  28 
Am.  Dec.  461.  In  the  present  case  it  is  plain,  as  we  have  said,  that 
the  respondent  has  the  right,  if  she  sees  fit  to  do  so,  to  sell  her  house 
and  lot  to  a  negro  family  whatever  the  effect  may  be  upon  the  com- 
plainants' business  and  property.  If  she  had  put  up  the  sign  and  had 
caused  the  advertisements  to  be  inserted  without  any  real  intention 
as  alleged  in  the  bill  of  selling  her  property  but  solely  with  the  pur- 
pose of  injuring  the  business  and  property  of  the  complainants,  there 
can  be  no  doubt  that  such  conduct  on  her  part  would  have  been  ac- 
tionable. As  was  said  in  Rideout  v.  Knox,  148  Mass.  368,  372,  19 
N.  E.  390,  391  (2  L.  R.  A.  81,  12  Am.  St.  Rep.  560),  "the  right  to 
use  one's  property  for  the  sole  purpose  of  injuring  others  is  not  one 
of  the  immediate  rights  of  ownership."  But  as  we  have  construed 
the  finding  of  the  single  justice,  one  of  her  purposes  in  putting  up 
the  sign  was  to  sell  her  property,  which  was  a  lawful  purpose  and  one 
of  the  indefeasible  rights  of  ownership.  The  case  is  different,  there- 
fore, from  Sherry  v.  Perkins,  147  Mass.  212,  17  N.  E.  307,  9  Am.  St. 
Rep.  689;    Quinn  v.  Leatham  [19011    A.  C.  495,  and  other  similar 


Ch.  2)  TORTS  THROUGH  MALICE  1297 

cases  relied  on  or  referred  to  by  the  complainants  into  which  we  do 
not  deem  it  necessary  to  go,  where  the  motive  was  wholly  malicious 
and  the  case  lacked  the  element  of  justification  which  is  present  here. 
If  the  offering  of  her  property  for  sale  by  the  respondent  in  the  man- 
ner in  which  it  has  been  offered  had  been  or  had  been  found  to  be 
a  mere  pretext  on  her  part  for  the  purpose  of  gratifying  her  spite 
and  ill  will  towards  the  complainants,  or  if  that  had  been  her  domi- 
nant and  controlling  purpose  there  would  have  been  no  justification 
for  her  conduct.  But  there  is  no  finding  to  that  effect.  On  the  con- 
trary it  is  found  that  one  purpose  which  she  has  is  to  sell  her  prop- 
erty, w^hich  is  a  legitimate  purpose,  and  to  enable  her  to  accomplish 
it  she  has  a  right  to  as  wide  a  market  as  she  can  command  by  adver- 
tisements and  signs  or  otherwise.  She  has  a  right  to  ask  for  bids 
from  white  people  or  colored  people,  or  both.  She  is  not  limited  to 
bidders  of  any  particular  race  or  class  or  creed.  And  if  one  of  her 
purposes  in  asking  for  bids  from  colored  families  is  to  annoy  and  in- 
jure the  complainants,  and  she  succeeds  in  doing  so,  her  conduct  is 
not  thereby  rendered  unlawful  so  long  as  her  object  is  to  procure  a 
purchaser  for  and  to  sell  her  house  and  lot.  It  follows  that  the  bill 
must  be  dismissed. 

Bill  dismissed  with  costs. ^' 

3  3  Compare:  Falloon  v.  Scliilling  (188.3)  29  Kan.  292,  44  Am.  Rep.  642,  where 
the  facts  were  thus  given  by  Brewer,  J.:  ''The  facts,  as  stated  iu  the  peti- 
tion, are  that  defendant  was  the  owner  of  a  tract  of  eighty  acres  adjoining 
the  town  of  Hiawatha.  Out  of  this  tract  he  conveyed  three-fourths  of  an 
acre  to  one  Oscar  Spalsbury,  which  last-named  tract  by  sundry  conveyances 
passed  to  and  became  the  property  of  plaintiff.  It  was  his  homestead.  His 
family  consisted  of  himself,  wife,  and  two  boys  aged  respectively  six  and  one 
years.  Plaintiff's  dwelling-house  is  located  within  thirteen  feet  of  the  east 
line  of  his  lot,  and  has  three  windows  opening  on  that  side.  The  towTi  of  Hia- 
watha has  been  growing  rapidly  for  the  last  few  years,  and  there  is  quite  a 
demand  for  town  lots.  The  eightj^-acre  tract,  which  as  alleged  was  once  whol- 
ly owned  by  defendant,  is  eligibly  situated  for  the  purposes  of  an  addition  to 
the  town  of  Hiawatha,  and  defendant  was  anxious  to  lay  off  the  entire  eighty 
acres  as  such  as  an  addition.  He  offered  plaintiff  $1,600  for  his  property,  which 
was  refused,  the  same  being  reasonably  worth  $1,900  or  $2,000.  Thereupon 
defendant  conceived  the  oppressive  and  unlawful  idea  of  rendering  plaintiff's 
home  obnoxious  and  unendurable  to  himself  and  family  by  erecting  cheap 
tenement  houses  on  either  side  of  plaintifTs  land,  and  filling  them  with  worth- 
less negroes,  that  they  might  annoy  plaintiff's  wife,  who  is  a  person  in  deli- 
cate health,  and  thereby  punish  plaintiff  for  refusing  defendant's  inadequate 
offer  for  the  property.  In  pursuance  of  this  purpose,  defendant  started  to 
build  one  of  these  tenement  houses  directly  on  the  line  of  plaintiff's  land,  and 
thus  distant  only  thirteen  feet  from  plaintiff's  house.  Upon  these  facts  the 
T)etition  prays  for  an  injunction  restraining  the  defendant  from  erecting  such 
buildings." 

Hepb.Torts — 82 


1298  TORTS  THROUGH   ACTS   OF   CONDITIONAL  LIABILITY        (Part 


GAGNON  et  al.  v.  FRENCH  LICK  SPRINGS  HOTEL  CO. 
(Supreme  Court  of  Indiana,  1904.    163  Ind.  687,  72  N.  E.  849,  68  L.  R.  A.  175.) 

The  French  Lick  Springs  Hotel  Company  filed  its  complaint  in 
the  circuit  court  of  Orange  county  against  George  S.  Gagnon,  the 
Baden  Lick  Sulphur  Springs  Company,  John  L.  Howard,  and  John 
C.  Howard,  asking  that  the  defendants  be  temporarily  restrained  and 
enjoined  from  pumping  water  on  the  premises  of  the  defendants,  and 
from  doing  other  acts  alleged  to  be  injurious  to  the  property  of  the 
plaintiits,  and  that  on  final  hearing  the  injunction  be  made  perpetual. 
ThereuiX)n,  an  emergency  being  disclosed,  the  judge,  in  the  vacation 
of  the  court  and  without  notice  issued  a  temporary  restraining  order 
pursuant  to  the  prayer  of  the  complaint,  and  fixed  a  day  for  the 
hearing  of  the  application.  The  result  was  a  temporary  injunction 
as  prayed,  against  all  the  defendants.  Their  motions  to  dissolve 
this  injunction  were  subsequently  overruled,  and  the  defendants  ap- 
pealed. 

The  facts  in  the  controversy,  so  far  as  material,  were  as  follows : 

The  French  Lick  Springs  Hotel  Company  owns  some  550  acres  of  land 
situated  in  a  valley  2%  miles  long  by  three-fourths  of  a  mile  wide,  known  as 
"French  Lick  Valley,"  in  Orange  county,  in  this  state.  A  group  of  sprmgs, 
known  as  the  "French  Lick  Springs,"  possessing  healing  and  medicinal  proper- 
ties in  a  high  degree,  is  situated  on  the  lands  of  the  appellee.  The  Baden  Lick 
Company  is  the  owner  of  80  acres  of  land  situated  to  the  north  and  northeast 
of  the  lands  of  the  French  Lick  Company,  and  adjoining  the  same.  John  C. 
and  John  L.  Howard  own  a  tract  of  land  extending  from  the  hilltops  to  the 
northeast  of  French  Lick  Springs  down  into  said  valley  and  to  a  point  about 
85  rods  distant  from  the  northeast  comer  of  the  lands  owned  by  said  French 
Lick  Company.  The  waters  flowing  from  the  springs  known  as  the  French 
Lick  Springs  had  for  more  than  30  years  been  known  throughout  the  United 
States  to  possess  healing  and  medicinal  properties,  and  during  that  time  had 
attracted  many  visitors  to  said  valley  from  all  parts  of  the  United  States, 
who  came  to  drink  and  bathe  in  such  waters.  Underlying  all  the  land  in  the 
said  French  Lick  valley  is  a  subterranean  body  of  water,  and  the  waters  in 
the  natural  springs  of  the  French  Lick  Company  are  forced  upward  through 
the  rocks  by  the  hydrostatic  pressure  of  said  body  of  water,  and  for  more 
than  30  years  said  springs  have  had  a  natural  flow  resulting  from  said  pres- 
sure. Within  a  year  prior  to  the  bringing  of  the  action,  the  Baden  Lick  Com- 
pany and  the  Howards  have  each  sunk  a  well  on  their  resijective  tracts  of 
land  in  said  valley  for  the  purpose  of  tapping  the  body  of  water  underlying 
said  valley,  and  such  wells  were  sunk  to  such  depth  as  to  penetrate  such  body 
of  water;  the  Howard  well  being  located  at  a  point  85  rods  northeast  of  the 
Fi-ench  Lick  Company's  premises,  and  160  rods  from  the  natural  springs  of 
said  company,  and  the  Baden  Lick  well  being  located  at  about  one-half  mile 
north  of  such  springs. 

About  the  18th  of  July,  1903,  having  theretofore  placed  in  said  well  a  power- 
ful steam  pump,  they  commenced  to  operate  the  sam^,  pumping  water  from 
said  subterranean  body  of  water,  knowing  that  the  same  was  connected  with 
such  springs,  and  knowing  that  their  said  pump  had  suflicient  power  of  suc- 
tion to  draw  the  underlining  waters  away  from  said  springs  and  destroy  the 
same;  and  with  such  knowledge  continued  to  operate  said  pump  day  and 
night,  drawing  millions  of  gallons  of  water  from  said  body  of  water,  which 
they  allowed  to  escape  on  the  ground  and  run  into  French  Lick  creek  and 
be  wasted,  and  such  pumping  being  continued  up  to  the  time  of  the  commence- 
ment of  this  action.  Some  weeks  prior  to  the  18th  of  July,  1903,  the  ai>pellant 
the  Baden  Lick  Company,  by  Gagnon,  who  acted  for  it,  also  placed  a  powerful 


Ch.  2)  TORTS  THROUGH   MALICE  1299 

pump  in  its  said  well,  and  operated  the  same  almost  continually  up  to,  on,  and 
after  said  last-mentioned  date,  drawinj;  from  said  subterranean  basin  more 
than  a  half  million  gallons  of  water  every  day,  and  allowing  all  of  the  same 
to  escape  into  French  Lick  creek  and  be  wasted ;  such  pumping  continuing  up 
to  the  time  of  the  servic-e  of  the  temporary  restraining  order  herein.  Gagnon 
and  the  Baden  Lick  Company  knew  that  the  removal  of  a  large  quantity  of 
water  from  said  subterranean  body  would  result  in  the  destruction  of  the 
natural  springs,  and  after  the  19th  of  July  they  also  knew  that  the  joint 
action  of  the  Howards  and  themselves  in  such  pumping  was  resulting  in  the 
injury  of  such  springs,  and,  with  such  knowledge,  continued  so  to  pump  and 
waste  said  waters  until  said  natural  springs  of  the  French  Lick  Company 
ceased  to  flow,  and  became  for  the  time  practically  worthless,  and  so  remain- 
ed until  the  service  of  the  restraining  order.  Neither  the  Baden  Lick  Com- 
pany nor  the  Howards  had  any  use  for  the  waters  so  pumped  by  them  through 
their  resi>ective  wells  from  said  subterranean  basin  of  water,  but  wasted  all 
of  it,  and  while  their  pumping  was  in  progress  they  caused  observations  to 
be  made  to  discover  its  effect  on  the  natural  springs  of  the  French  Lick  Com- 
pany ;  and  when  they  learned  that  said  springs  were  being  exhausted  by  rea- 
son of  such  pumping  they  continued  to  pump  and  waste  said  waters  until  the 
flow  of  water  in  said  springs  stopped,  and  the  value  thereof  for  the  time  being 
was  destroyed.  The  connection  between  the  wells  of  the  Baden  Lick  Com- 
pany and  the  Howards  and  the  said  natural  springs  of  the  appellee  through 
said  subterranean  body  of  water  is  so  well  defined  that  when  the  pumping 
from  said  wells  from  any  cause  ceased  for  a  few  hours,  the  waters  would  again 
begin  to  flow  into  and  out  of  the  said  springs,  and  when  said  pumping  was 
again  resumed  the  suction  from  the  pumps  would  again  cause  said  springs  to 
cease  flowing.  About  11  p.  m.  on  July  21,  1903  (the  day  prior  to  the  com- 
mencement of  this  action),  while  the  pumps  in  both  of  the  wells  referred 
to  were  being  operated,  John  L.  Howard,  one  of  the  apiJellants,  visited  the 
natural  spring  of  the  French  Lick  Company  known  as  "Pluto,"  and,  finding,  on 
examination  that  the  same  had  ceased  to  flow,  said  to  his  companion,  "We 
have  got  her  down ;  she  has  gone  to  hell."  John  Stevens,  Howard's  manager, 
after  the  well  was  sunk  on  Howard's  land,  and  prior  to  placing  a  pump  there- 
in, said  to  John  C.  Howard,  "I  want  you  to  get  me  a  good  pump  and  put  in 
there,  and  I  will  sink  old  Pluto  to  hell."  After  such  pump  was  procured  and 
placed  in  operation,  and  was  operated  until  about  the  time  of  the  commence- 
ment of  this  action,   Stevens  again  declared,   "I  have  them  working  on  old 

Pluto,  and  I  don't  give  a  d n  if  Pluto  goes  as  dry  as  a  chip."     John  L. 

Howard,  before  sinking  the  well  referred  to  said:  "I  will  drill  a  hole  up  there 
deep  enough  to  reach  the  sulphur  water,  and  it  doesn't  matter  whether  it 
flows  out  natural  or  not,  for  I  will  put  in  a  compressed  air  pump,  and  by 
this  means  I  can  lift  the  water  from  the  bottom  of  the  well  instead  of  the 
top,  and  when  this  is  done  it  will  lower  the  fresh-water  pressure  here,  and 
whenever  you  affect  the  fresh-water  pressure  Pluto  will  not  inin  out."  He 
again  said,  "I  viill  have  Pluto  right  here  at  my  door."  And  again:  "When  we 
get  through  with  them  [referring  to  the  French  Lick  Company],  they  will 
either  take  us  back  in  the  company  or  buy  me  out  at  my  figures.  *  *  * 
I  know  more  about  Pluto  than  anybody  in  this  valley,  and  when  I  get  through 
with  my  well  they  will  want  me,  because  I  can  control  Pluto."  s-i 

Si  "In  certain  portions  of  Indiana,  and  other  states,  hundreds  of  feet  be- 
neath the  surface,  natural  gas  was  found  confined  under  pressure  in  a  stratum 
of  porous  rock.  Owners  of  the  surface  claimed  for  themselves  severally  the 
right  of  making  unrestricted  drafts  upon  the  common  source  of  supply.  Some 
owners  opened  up  large  wells— gushers — lighted  the  gas  and  let  it  burn  day  and 
night.  Others  who  were  putting  their  gas  wells  to  beneficial  use  for  heat, 
light  or  fuel  purposes,  protested  against  the  reckless  waste  which  was  weak- 
ening their  wells.  Put  the  wasters  refused  to  quit.  The  beneficial  users  urged 
that,  since  their  wells  were  being  damaged  without  any  benefit  to  the  wasters, 
the  act  of  the  wasters  could  be  attributed  to  nothing  but  pure  malevolence. 
What  of  it,  replied  the  wasters ;  we  are  on  our  own  ground  and  can  do  asi  we 
please ;  we  have  as  much  right  as  you  have  to  bore  gas  wells,  and  it  is  none 
of  your  concern  what  we  do  with  the  gas.  This  defense  or  justification  has 
been  stated  in  various  forms:     'Where  one  exercises  a  legal  right  only,  the 


1300  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

DowLiNG,  C.  J.  *  *  *  The  English  and  American  cases  cited 
by  counsel  for  appellants  undoubtedly  state  the  general  rules  which 
have  been  applied  by  the  courts  to  subterranean  waters,  and  we  have 
no  inclination  to  question  their  wisdom  and  authority  in  the  particu- 
lar cases  to  which  they  apply.  But  there  are  well-recognized  excep- 
tions to  these  rules,  and  doubtless  further  exceptions  and  departures 
from  them  will  from  time  to  time  be  found  necessary  or  expedient. 
Where  the  diversion  of  the  water  is  purely  malicious,  and  is  detri- 
mental to  another  proprietor,  it  may  be  prevented  by  injunction. 
Miller  v.  Black  Rock,  99  Va.  747,  40  S.  E.  27,  86  Am.  St.  Rep.  924. 
So  where  the  water  is  simply  wasted.  Stillwater  v.  Farmer,  89  Minn. 
58,  93  N.  W.  907,  60  L.  R.  A.  875,  99  Am.  St.  Rep.  541.  If  the 
water  flows  in  a  definite  channel  under  ground,  the  same  rules  apply 
to  it  as  apply  to  surface  streams,  and  the  landowner  cannot  use  or 
destroy  it  at  his  pleasure.  Southern  Pacific  R.  R.  Co.  v.  Dufour,  95 
Cal.  616,  30  Pac.  783,  19  L.  R.  A.  92,  note.  And  the  courts  of  New 
York  have  held  that  the  drainage  of  land  of  a  private  owner  by  a  city 
pumping  works,  which  exhausts  from  all  the  ground  in  its  vicinity 
the  natural  supply  of  underground  or  subterranean  water,  and  thus 

motive  which  actuates  him  is  immaterial.'  Ra. v croft  v.  Tayntor  (1S96)  68  Vt. 
219,  35  Atl.  53,  33  L.  E.  A.  225,  54  Am.  St.  Rep.  SS2.  'Mischievous  motives  can- 
not make  that  wrong  whicla  in  its  own  essence  is  lawful.'  Jenkins  v.  Fowler 
(185-5)  24  Pa.  308.  'An  act  lawful  in  itself  is  not  converted  by  a  malicious  or 
bad  motive  into  an  unlawful  act.'  Allen  v.  Flood  [1898]  A.  C.  1.  It  seems  to  me 
that  these  explanations  must  be  taken  to  mean  one  or  the  other  of  two  things. 
One  is,  that  where  an  act  is  lawful  without  regard  to  motive,  motive  need  not 
be  regarded.  That  is  worthless  as  being  a  mere  running  around  in  a  circle. 
The  other  is  that,  where  an  act  is  lawful  if  done  under  one  kind  of  a  motive, 
it  is  therefore  lawful  if  done  under  any  and  every  kind  of  a  motive — in  short, 
that  motive  can  never  be  determinative  of  the  lawfulness  of  an  act.  And  this, 
I  submit,  is  not  time  in  morals  or  losic  or  law.  Plant  v.  Woods  (1S99)  176 
Mass.  492,  57  N.  E.  1011,  51  L.  R.  A.  339,  79  Am.  St.  Rep.  330.  In  the  natural 
gas  cases  the  Supreme  Court  of  Indiana  ruled,  in  substance,  that  the  surface 
proprietors  had  coequal  rights  of  access  to  the  common  source  of  supply — the 
»;o  nmon  fund;  that  the  right  of  each  was  therefore  not  an  absolute  right,  but 
v.-as  limited  and  restricted  by  the  coexisting  and  coextensive  rights  of  the  oth- 
ers :  that  each  therefore  had  the  right  to  the  beneficial  use  and  enjoyment  of 
the  wbole  supply  except  as  it  was  cut  down  by  the  beneficial  use  and  enjoyment 
of  the  others ;  that  while  the  loss  that  came  to  each  from  the  beneficial  use 
of  the  common  fund  by  the  others  was  damnum  absque  injuria,  a  loss  without 
cause  of  complaint,  none  of  them  was  bound  to  suffer  a  loss  malevolently  in- 
fiicted — inflicteii  "for  tbe  s;U\e  of  the  harm  as  an  end  in  itself  and  not  merely 
as  a  means  to  some  further  end  legitimately  desired.'  Aikens  v.  Wisconsin 
(1904)  195  U.  S.  194,  25  Sup.  Ct.  3,  49  L.  Ed.  154.  And  so  it  was  held  that 
the  wasters  could  be  stojiped  by  injunction.  Further,  a  penal  statute  of  the 
state,  punishing  the  wasting  of  gas  as  a  species  of  malicious  mischief,  was 
sustained  by  the  Supreme  Court  of  the  United  States  against  an  attack  based 
on  the  ground  that  denying  a  landowner  the  right  to  do  as  he  plea.sed  with 
tbe  gas  llowiiig  from  a  well  in  his  own  soil  was  a  taking  of  private  property 
without  compensation.  Ohio  Oil  Co.  v.  Indiana  (1900)  177  U.  S.  390,  20  Sup. 
Ct.  576,  44  L.  Ed.  729.  So  far  as  I  know  there  are  no  natural  gas  decisions 
that  deny  malicious  waste  may  be  enjoined,  and  no  cases  that  fail  to  treat 
natural  gas  and  petroleum  as  being  of  tbe  same  class.  If  adjoining  landown- 
ers bore  down  into  an  underlying  porous  stratmn  containing  a  fiuid,  I  fail  to 
see  any  reason  why  their  rights  should  be  different  whether  they  find  gas,  or 
oil,  or  water.     Yet  the  common  law  of  England  (Corporation  of  Bradford  v. 


Ch.  2)  TORTS  THROUGH  MALICE  '  1301 

prevents  the  raising  on  it  of  crops  to  which  it  was  or  would  be  pe- 
cuharly  adapted,  or  destroys  such  crops  after  they  are  grown  or 
partly  grown,  renders  the  city  liable  to  the  landowner  for  the  damages 
he  sustains,  and  entitles  him  to  an  injunction  against  the  continuance 
of  the  wrong.  Forbell  v.  New  York,  164  N.  Y.  522,  58  N.  E.  644, 
51  L.  R.  A.  695,  79  Am.  St.  Rep.  666.  In  Willis  v.  Perry,  92  Iowa, 
297,  60  N.  W.  727,  26  L.  R.  A.  124,  it  was  held  that  a  use  for  nat- 
ural purposes  takes  precedence  over  artificial  ones.  A  further  excep- 
tion to  the  rules  laid  down  in  Acton  v.  Blundell,  12  Alees.  &  W.  335, 
Chasemore  v.  Richards,  7  H.  L.  Cases,  340,  and  Ewart  v.  Belfast,  9 
L.  R.  (Ireland)  172,  was  made  in  the  recent  case  of  Katz,  Ex'r,  v. 
Walkinshaw,  141  Cal.  116,  70  Pac.  663,  74  Pac.  766,  64  L.  R.  A.  236, 
99  Am.  St.  Rep.  35,  w^here  it  was  declared  that  the  owner  of  a  por- 
tion of  a  tract  of  land  which  is  saturated  below  the  surface  with  an 
abundant  supply  of  percolating  water  cannot  remove  water  from  wells 
thereon  for  sale,  if  the  remainder  of  the  tract  is  thereby  deprived  of 
water  necessary  for  its  profitable  enjovment.  See,  also,  Bassett  v. 
SaHsbur}'  ^Ifg.  Co.,  43  N.  H.  569,  82  Am.  Dec.  179;  Dexter  v. 
Providence  Aqueduct  Co.,  Fed.  Cas.  No.  3,864;    Smith  v.  Brooklyn, 

Pickles  [1895]  A.  C.  687),  that  a  landowner  has  an  absolute  and  unqualified 
right  to  intercept  on  his  own  land  underground  percolating  water,  with  the 
effect  of  preventing  his  neighbor  from  getting  any  from  the  common  fund, 
even  though  his  motive  in  so  doing  be  not  to  benefit  himself  or  his  estate,  but 
solely  to  injure  his  neighbor,  has  been  quite  generally  followed  in  this  coun- 
try, and  might  be  said  to  be  sustained  by  the  weight  of  authority,  if  a  major- 
ity constitutes  a  preponderance.  Huber  v.  Merkel  (1903)  117  Wis.  355,  94  X. 
W.  354,  62  L.  R.  A.  589,  98  Am.  St.  Rep.  933,  and  cases  cited  in  text  and  note. 
There  are,  however,  some  vigorous  decisions  in  Maine,  New  Hampshire,  New 
York,  Iowa  and  Miimesota  (Chesley  v.  King  [1882]  74  Me.  164,  43  Am.  Rep. 
569;  Bassett  v.  Salisbury  Mfg.  Co.  [1862]  43  X.  H.  569,  82  Am.  Dec.  179; 
Swett  V.  Cutts  [1870]  50  N.  H.  439,  9  Am.  Rep.  276 ;  Forbell  v.  New  York 
[1900]  164  N.  Y.  522.  58  N.  E.  &44.  51  L.  R.  A.  695.  79  Am.  St.  Rep.  666 ;  Smith 
v.  Broolclvn  [1899]  160  N.  Y.  357,  &4  N.  E.  787,  45  L.  R.  A.  664  ;  Barclay  v.  Abra- 
ham [1903]  121  Iowa,  619,  96  N.  W.  1080.  64  L.  R.  A.  255.  100  Am.  St.  Rep. 
365;  Stillwater  Co.  v.  Farmer  [1903]  89  Minn.  58,  93  N.  W.  907.  60  L.  R.  A. 
875,  99  Am.  St.  Rep.  541)  denying  the  landowner  an  absolute  title  in  subter- 
ranean waters,  and  recognizing  in  him  only  a  limited  and  qualified  right 
which  must  lie  used  and  enjoyed  by  him  with  due  regard  to  the  equal  rights 
of  his  neighbors  in  the  common  supply.  These  decisions  square  with  the 
natural  gas  and  oil  cases  already  mentioned,  and  properly  accord,  I  believe, 
with  the  basic  theory  of  our  social  system."  Judge  Francis  E.  Baker,  before 
the  Chicago  Bar  Ass'n,  1911.  The  paper  is  reprinted  in  5  Illinois  Law  Rev. 
452. 

The  "natural  gas  cases"  referred  to  by  Judge  Baker  are  Manufacturers' 
Gas  Co.  V.  Indiana  Nat.  Gas  Co.  (1900)  155  Ind.  461,  57  N.  E.  912,  50  L.  R.  A. 
768;  Lippincott  Glass  Co.  v.  Ohio  Oil  Co.  (1898)  150  Ind.  095.  49  N.  E.  HOG; 
State  V.  Ohio  Oil  Co.  a89S)  150  Ind.  21,  49  N.  E.  809,  47  L.  R.  A.  627 ;  Ohio 
Oil  Co.  V.  Indiana  (1900)  177  U.  S.  190,  20  Sup.  Ct.  576,  44  L.  Ed.  729.  See 
also,  Westmoreland  Nat.  Gas  Co.  v.  De  Witt  (1889)  130  Pa.  235,  18  Atl.  724,  5 
L.  R.  A.  731.  In  Hague  v.  Wheeler  (1893)  157  Pa.  324.  27  Atl.  714,  22  L.  R.  A. 
141,  37  Am.  St  Rep.  736,  the  trial  court  found  that  the  waste  was  malicious 
and  entered  an  injunction.  The  Supreme  Court  reversed  the  decree  on  the 
ground  that  the  finding  of  malice  was  not  sustained.  "I  think,"  remarks 
Judge  Baker,  that  "the  Supreme  Court  should  have  determiniMl  malice,  not 
as  a  state  of  mind  subjectively  held  by  defendant,  but  objectively  as  deter- 
mined bv  the  nature  and  necessary  conscKiueuce  of  the  act." 


1302  TORTS  THROUGH   ACTS   OF   CONDITIONAL  LIABILITY        (Part  3 

18  App.  Div.  340,  46  N.  Y.  Supp.  141.  The  strong  trend  of  the 
later  decisions  is  toward  a  quaHfication  of  the  earlier  doctrine  that 
the  landowner  could  exercise  unlimited  and  irresponsible  control  over 
subterranean  waters  on  his  own  land,  without  regard  to  the  injuries 
which  might  thereby  result  to  the  lands  of  other  proprietors  in  the 
neighborhood.  Local  conditions,  the  purpose  for  which  the  land- 
owner excavates  or  drills  holes  or  wells  on  his  land,  the  use  or  non- 
use  intended  to  be  made  of  the  water,  and  other  like  circumstances 
have  come  to  be  regarded  as  more  or  less  influential  in  this  class  of 
cases,  and  have  justly  led  to  an  extension  of  the  maxim,  "Sic  utere 
tuo  ut  alienum  non  Ijedas,"  to  the  rights  of  landowners  over  subter- 
ranean waters,  and  to  some  abridgment  of  their  supposed  power  to 
injure  their  neighbors  without  benefiting  themselves. 

The  only  conclusions  which  can  fairly  be  drawn  from  the  verified 
pleadings  and  evidence  in  this  case  is  that  a  bitter  rivalry  exists  be- 
tween the  parties  to  this  action,  their  stockholders  and  officers,  and 
that,  without  a  real  necessity  therefor,  the  appellants  dug  wells  and 
put  machinery  and  appliances  in  them  and  pumped  large  quantities 
of  water  therefrom  for  the  purpose  of  stopping  the  flow  of  water 
of  the  mineral  springs  on  the  land  of  the  appellee.  The  thinly  dis- 
guised pretext  that  some  of  the  acts  complained  of  were  done  in  an 
attempt  to  repair  a  well  or  stop  a  leak  in  it.  is  an  insufficient  explana- 
tion of  the  injurious  proceedings  of  the  appellants,  and  wholly  fails 
to  convince  us  of  their  good  faith.     *     *     * 

In  our  opinion,  the  court  did  not  err  in  any  of  its  rulings,  and  the 
judgment  is  affirmed.^^ 


ANGLE  V.  CHICAGO,  ST.  P.,  M.  &  O.  RY.  CO. 

(Supreme  Court  of  the  United  States,  1894.     151  U.  S.  1,  14  Sup.  Ct.  240, 

38  L.  Ed.  55.) 

This  was  an  appeal  from  a  decree  of  the  Circuit  Court  of  the 
United  States  for  the  Western  District  of  Wisconsin  dismissing  plain- 
tiff's bill.    The  facts  in  the  case  were  shortly  as  follows : 

The  state  of  Wisconsin  had  granted  certain  lands  to  the  Chicago,  St.  Paul, 
Minneapolis  &  Omaha  Railway  Comi)any,  hereafter  referred  to  as  the  Omaha 
Company,  for  the  pui'i)ose  of  constructing  a  defined  railway.  Certain  other 
lands  had  been  granted  by  Wisconsin  to  the  Chicago,  Portage  &  Superior 
liailway  Company,  hereafter  referred  to  as  the  Portage  Company,  for  the 
purpose  of  constructing  another  defined  railway.  The  latter  road,  if  con- 
structed, would  be,  to  some  extent,  a  competitor  of  the  Omaha  road.  The 
grant  to  the  Portage  Company  was  conditioned  ui)on  the  completion  of  the 
ro;id  within  a  certain  time.  By  a  later  act  of  the  Wisconsin  legislature  this 
time  was  extended  to  May  9,  1882. 

In  ISSl,  the  Portage  Company  made  a  contract  with  Horatio  Angle  for 
the  construction  of  sixty-five  miles  of  road  covered  by  its  land  grant  before 
May  5,  1882.  Angle  commenced  work  and  made  such  progress  that,  on  January 
20th,  1882,  he  had  1,G00  men  employed  along  the  line,  and  it  was  an  assured 

3'  Pnrts  of  the  opinion  are  omitted. 


Ch.  2)  TORTS   THROUGH   MALICB  130:^. 

fact  tluit.  unless  interfered  with,  tie  would  complete  the  railway,  according 
to  the  terms  of  the  contract,  on  or  before  May  5,  1SS2. 

But  in  February,  18S2,  the  Wisconsin  legislature,  without  inquiry  or  hear- 
ing, hurriedly  passed  an  act  forfeiting  and  revoking  the  grant  to  the  Portage 
Company,  and  bestowing  it  upon  the  Omaha  Company.  This  action  of  the 
legislature  was  intentionally  caused  by  certain  false  representations  made  to 
the  legislators  by  persons  acting  on  behalf  of  the  Omaha  Company.  As  a 
result  of  this,  and  of  other  machinations  by  the  Omaha  Company,  the  Portage 
Company  failed  to  meet  its  contract  with  Angle,  and  he,  on  his  part,  was 
thereby  prevented  from  going  on  with  the  building  of  the  road. 

The  contract  with  Angle  having  been  thus  broken  by  the  Portage  Company, 
he  commer.ced  an  action  at  law  against  that  company.  While  this  action  was 
pending  Angle  died,  but  a  revivor  was  had  in  the  name  of  his  administratrix, 
who  recovered  a  judgment  for  some  $200,000.  Upon  this  judgment  execution 
was  issued  and  returned  "nulla  bona,"  and  thereupon  this  bill  was  filed  to 
reach  the  land  grant  in  the  hands  of  the  Omaha  Company.  3g 

The  bill  charged,  among  other  things,  that  the  Omaha  Company  con- 
spired with  other  parties  to  wrest  from  the  Portage  Company  its 
land  grant,  and  to  that  end  to  prevent  the  completion  of  the  contract 
by  Angle  and  the  construction  of  the  road.  The  defendant's  demurrer 
to  the  bill  was  sustained  in  the  Circuit  Court,  and  the  decree  of  dis- 
missal was  entered.^'' 

Mr.  Justice  Brewer,  after  stating  the  facts,  delivered  the  opinion 
of  the   court. 

That  which  attracts  notice  on  even  a  casual  reading  of  the  bill — the 
truth  of  all  the  allegations  in  which  must  be  taken,  upon  this  record,' 
to  be  admitted  by  the  demurrer — is  the  fact  that,  while  Angle  was  ac- 
tively engaged  in  executing  a  contract  which  he  had  with  the  Por- 
tage Company, — a  contract  whose  execution  had  proceeded  so  far  that 
its  successful  completion  within  the  time  necessary  to  secure  to  the 
Portage  Company  its  land  grant  was  assured,  and  when  neither  he  nor 
the  Portage  Company  was  moving  or  had  any  disposition  to  break  that 
contract  or  stop  the  work, — through  the  direct  and  active  efforts  of 
the  Omaha  Company  the  performance  of  that  contract  was  prevented, 
the  profits  which  Angle  would  have  received  from  a  completion  of  the 
contract  were  lost  to  him,  and  the  land  grant  to  the  Portage  Com- 
pany was  wrested  from  it. 

Surely  it  would  seem  that  the  recital  of  these  facts  would  carry  with 
it  an  assurance  that  there  was  some  remedy  which  the  law  would  give 
to  Angle  and  the  Portage  Company  for  the  losses  they  had  sustained, 
and  that  such  remedy  would  reach  to  the  party,  the  Omaha  Company, 
by  whose  acts  these  losses  were  caused. 

That  there  were  both  wrong  and  loss  is  beyond  doubt.  And,  as 
said  by  Croke,  J.,  in  Baily  v.  ]\lerrell,  3  Bulst.  94,  95,  "damage  without 

36  The  statement  of  the  facts  is  abridged. 

3  7  For  the  case  below,  see  Angle  v.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  (C.  C. 
1889),  39  Fed.  912,  and  Farmers'  Ix)an  &  Trust  Co.  v.  Chicago,  P.  &  S.  Ry.  Co. 
(C.  C.  1889)  39  Fed.  143.  The  opinion  in  the  Circuit  Court  was  by  Mr.  Justice 
Harlan,  who  dismissed  the  bill  upon  the  ground  that  the  Portage  road  had  no 
interest  in  the  lands  which  could  be  subjected  in  satisfaction  of  Angle's  judg- 
ment against  it 


1304  TORTS  THROUGH    ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

fraud  gives  no  cause  of  action;  but  where  these  two  do  concur  and 
meet  together,  there  an  action  lieth."  The  Portage  Company  held  a 
land  grant  worth  four  millions  of  dollars.  It  had  contracted  for  the 
construction  of  its  road,  such  construction  to  be  completed  in  time  to 
perfect  its  title  to  the  land.  The  contract  had  been  so  far  executed 
that  its  full  completion  within  the  time  prescribed  was  assured.  The 
contractor  had  1,600  men  employed.  The  rails  had  been  purchased. 
The  company  had  lifted  itself  out  of  the  embarrassments  which  years 
before  had  surrounded  it.  It  had  taken  up  all  its  old  stock  but  $25,- 
000,  which  was  ignorantly  or  wrongfully  withheld  by  one  of  its 
officers.  It  had  issued  1,000,000  of  new  stock,  had  authorized  a 
new  issue  of  bonds,  and  had  arranged  for  the  canceling  of  all  its  obli- 
gations with  700,000  of  these  bonds  and  1,000,000  of  stock.  It  had 
consummated  arrangements  with  a  wealthy  company  for  the  ad- 
vancement of  moneys  sufficient  for  its  work,  and  had  gone  so  far  as 
to  place  in  the  hands  of  that  company  100,000  of  its  bonds,  upon 
which  $50,000  in  cash  was  to  be  advanced.  Except  through  some 
wrongful  interference,  it  was  reasonably  certain  that  everything  would 
be  carried  out  as  thus  planned  and  arranged. 

At  this  time  the  Omaha  Company,  which  was  a  rival  in  some  re- 
spects, and  which  had  located  a  line  parallel  and  contiguous  to  the 
line  of  the  Portage  Company,  interferes,  and  interferes  in  a  wrongful 
way.  It  bribes  the  trusted  officers  of  the  Portage  Company  to  trans- 
fer the  entire  outstanding  stock  into  its  hands,  or  at  least  place  it  under 
its  control.  Being  thus  the  only  stockholder,  it  induces  the  general 
manager  to  withdraw  the  several  engineering  corps,  whose  presence 
was  necessary  for  the  successful  carrying  on  of  the  work  of  con- 
structing the  road ;  to  give  such  notice  as  to  result  in  the  seizure  of 
all  the  tools  and  supplies  of  the  contractor  and  the  company,  and  the 
dispersion  of  all  laborers  employed.  To  prevent  any  action  by  the 
faithful  officers  of  the  Portage  Company,  it  wrongfully  obtains  an 
injunction  tying  their  hands.  In  the  face  of  this  changed  condition 
of  afifairs,  the  company,  which  had  negotiated  with  the  Portage  Com- 
pany, and  was  ready  to  advance  it  money,  surrendered  the  100,000  of 
the  bonds,  and  abandoned  the  arrangement.  By  false  representa- 
tions to  the  legislature  as  to  the  facts  of  the  case,  it  persuaded  that 
body  to  revoke  the  grant  to  the  Portage  Company,  and  bestow  the 
lands  upon  itself. 

That  this  was  a  wrongful  interference  on  the  part  of  the  Omaha 
Company,  and  that  it  resulted  directly  in  loss  to  the  contractor  and 
to  the  Portage  Company,  is  apparent.  It  is  not  an  answer  to  say 
that  there  was  no  certainty  that  the  contractor  would  have  completed 
his  contract,  and  so  earned  these  lands  for  the  Portage  Company.  If 
such  a  defense  were  tolerated,  it  would  always  be  an  answer  in  case 
of  any  wrongful  interference  with  the  performance  of  a  contract, 
for  there  is  always  that  lack  of  certainty.     It  is  enough  that  there 


Ch.  2)  TORTS  THROUGH   MALICH  1305 

should  be,  as  there  was  here,  a  reasonable  assurance,  considering  all 
the  surroundings,  that  the  contract  would  be  performed  in  the  man- 
ner and  within  the  time  stipulated,  and  so  performed  as  to  secure  the 
land  to  the  company. 

It  certainly  does  not  lie  in  the  mouth  of  a  wrongdoer,  in  the  face 
of  such  probabilities  as  attend  this  case,  to  say  that  perhaps  the  con- 
tract would  not  have  been  completed  even  if  no  interference  had  been 
had,  and  that,  therefore,  there  being  no  certainty  of  the  loss,  there  is 
no  liability. 

Neither  can  it  be  said  that  the  Omaha  Company  had  a  right  to  con- 
tend for  these  lands ;  that  it  simply  made  an  effort,  which  any  one 
might  make,  to  obtain  the  benefit  of  this  land  grant.  No  rights  of 
this  kind,  whatever  may  be  their  extent,  justify  such  wrongs  as  were 
perpetrated  by  the  Omaha  Company,  Here,  bribery  was  resorted  to 
to  induce  the  trusted  officers  of  the  Portage  Company  to  betray  their 
trust,  and  to  place  at  least  the  apparent  ownership  of  the  stock  in 
the  hands  of  the  rival  company. 

Without  notice,  without  hearing,  and  by  false  allegations,  it  secured 
an  injunction  to  stay  the  liands  of  the  honest  officers  of  the  Por- 
tage Company.  Such  wrongful  use  of  the  powers  and  processes  of 
the  court  cannot  be  recognized  as  among  the  legitimate  means  of 
contest  and  competition.  It  burdens  the  whole  conduct  of  the  Omaha 
Company  with  the  curse  of  wrongdoing,  and  makes  its  interference 
with  the  afifairs  of  the  Portage  Company  a  wrongful  interference. 

Further,  by  false  representations  as  to  what  the  Portage  Company 
has  done  and  intends  to  do,  it  induced  the  legislature  of  the  state 
to  revoke  the  grant  to  the  Portage  Company,  and  bestow  it  upon  itself. 
The  result,  and  the  natural  result,  of  these  wrongful  actions  on  the 
part  of  the  Omaha  Company  was  the  breaking  down  of  the  Por- 
tage Company,  the  disabling  it  from  securing  the  means  of  carrying 
on  this  work,  the  dispersion  of  the  laborers,  and  the  prevention  of  the 
contractor  from  completing  his  contract.  It  will  not  do  to  say  that  the 
contractor  was  not  bound  to  quit  the  work,  but  might  have  gone  on  and 
completed  his  contract,  and  thus  earned  the  lands  for  the  Portage 
Company;  nor  that  the  wrongful  act  of  the  trusted  officers  of  the 
Portage  Company  in  betraying  their  trust  could  have  been  corrected 
by  the  Portage  Company  by  appropriate  suit  in  the  courts;  tliat  the 
law  in  one  shape  or  another  would  have  ofifered  redress  to  the  Portage 
Company  for  all  the  wrongs  that  were  attempted  and  done  by  the 
Omaha  Company.  Granting  all  of  this,  yet  the  fact  remains  that  the 
natural,  the  intended,  result  of  these  wrongful  acts  was  the  breaking 
down  of  the  Portage  Company,  the  unwillingness  of  the  foreign  com- 
pany to  furnish  it  with  money,  and  the  prevention  of  the  contractor 
from  completing  his  contract. 

It  is  not  enough  to  say  that  other  remedies  might  have  existed  and 
been  resorted  to  by  the  Portage  Company,  and  that  notwithstanding 


1306  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

the  hands  of  its  officers  were  tied  by  this  wrongful  injunction.  It  is 
enough  that  the  Portage  Company  did  break  down ;  that  it  broke  down 
in  consequence  of  these  wrongful  acts  of  the  Omaha  Company,  and 
that  they  were  resorted  to  by  the  latter  with  the  intention  of  breaking 
it  down.     *     *     * 

It  follows  from  these  considerations  that  the  court  erred  in  sustain- 
ing the  demurrer  to  this  bill,  and  the  decree  of  dismissal  must  be 

Reversed,  and  the  case  remanded  with  instructions  to  overrule  the 
demurrer,  and  for  further  proceedings  in  confomiity  to  law.^^ 


CUMBERLAND  GLASS  MFG.  CO.  v.  DE  WITT. 

(Court  of  Appeals  of  Maryland,  1913.     120  Md.  381,  87  Atl.   927, 

Aiiu.  Cas.  1915A,  702.) 

In  this  action,  which  was  against  the  glass  manufacturing  company, 
the  judgment  below  was  for  the  plaintiff.    The  defendant  appealed. 

Burke,  J.  The  amended  declaration  upon  which  this  case  was 
tried  alleged  that  since  the  year  1886  the  plaintiff  had  been  a  dealer 
in  imported  and  domestic  bottles,  demijohns,  etc. ;  that  the  defend- 
ant, the  Cumberland  Glass  Manufacturing  Company,  a  foreign  cor- 
poration, was  engaged  in  the  manufacture  of  glass  bottles,  window 
glass,  etc.,  and  conducted  its  factory  at  Bridgton  in  the  state  of  New 
Jersey ;  that  it  complied  with  the  requirements  of  the  law  of  this 
state,  which  permit  foreign  corporations  to  transact  business  here,  and 
that  it  was  in  fact  doing  business  here.  It  further  alleged  tliat  on  Feb- 
ruary 8,  1906,  the  plaintiff'  entered  into  a  written  contract  with  the 
Mallard  Distilling  Company  of  New  York  to  supply  them  with  1,000 
gross  of  half-pint  lettered  gin  flasks,  eight-ounce  capacity,  at  the  price 
of  $2.40  per  gross,  and  that  on  or  about  the  same  date  did  verbally 
enter  into  an  additional  contract  with  said  company  for  another  1,000 
gross  of  bottles  at  $2.40  per  gross,  which  bottles  were  to  be  made 
identical  in  every  respect  with  those  specified  in  the  written  contract. 
It  then  alleged  "that  the  Cumberland  Glass  Manufacturing  Company 
did,  with  knowledge  of  the  existing  contract,  on  or  about  the  15th  day 
of  February,  1906,  by  and  through  the  medium  of  their  agents,  visit 
the  said  Mallard  Distilling  Company,  and  maliciously  and  without 
just  cause,  with  the  intent  to  injure  the  plaintiff'  and  to  derive  a  benefit 
for  itself,  cause,  induce,  and  procure  the  said  Mallard  Distilling  Com- 
pany to  rescind,  break,  and  violate  their  contracts"  with  the  plaintiff. 
It  further  alleged  that  at  the  time  the  Mallard  Distilling  Company 
broke  its  contracts,  the  plaintiff  charged  the  defendant  with  having 

3  8  Part  of  the  opinion  is  omitted.  In  tins  omitted  portion,  Mr.  Justice 
Brewer,  speaking  for  the  Court,  reached  the  conclusion  that  the  wrongdoing 
of  the  Omaha  Company  had  wrested  the  title  of  the  lands  from  the  Portage 
Company  and  transferred  it  to  itself.  "It  has  become,  therefore,  a  trustee  ex 
maleficio  in  respect  to  the  property."  On  this  question,  Mr.  Justice  Harlan 
dissented. 


Ch.  2)  TORTS  THROUGH   MALICE  1307 

interfered  with  and  caused  the  Mallard  Company  to  break  the  con- 
tracts ;  that  the  defendant  denied  that  it  had  in  any  way  interfered 
with  the  contracts,  or  had  procured,  or  caused  the  same  to  be  broken ; 
that  the  plaintiff  was  unable  to  procure  sufficient  proof  against  the 
defendant  of  its  violation  of  duty,  and  that  the  proof  of  the  facts 
was  not  known  or  exhibited  to  him  until  the  latter  part  of  the  year 
1909,  but  was  fraudulently  concealed  and  withheld  by  the  defend- 
ant.     *      =!=     * 

The  declaration  is. said  to  be  bad  for  three  reasons:  First,  because 
it  contains  no  allegation  that  the  plaintiff  was  able  and  willing  to 'carry 
out  his  contracts  with  the  Mallard  Distilling  Company;  secondly,  for 
duplicity,  since  it  contains  two  complete,  separate,  and  independent 
causes  of  action  in  one  count ;  tliirdly,  because  one  of  the  contracts 
was  unenforceable  under  the  statute  of  frauds,  and  the  declaration 
does  not  allege  that  but  for  the  defendant's  interference  the  Mallard 
Company  would  have  carried  out  this  contract,  and  would  not  have  re- 
lied upon  the  defense  of  the  statute.  The  first  and  second  grounds 
of  objection  rest  upon  the  doctrine  declared  in  Dimmick  v.  Hendley, 
117  Md.  458,  84  Atl.  171;  Milske  v.  Steiner  Mantel  Company,  103 
Md.  235,  63  Atl.  471,  5  L.  R.  A.  (N.  S.)  1105,  15  Am.  St.  Rep.  354,  and 
other  cases.  But  those  cases  have  no  application  to  cases  of  this  kind. 
The  cause  of  action  set  out  in  the  declaration  is  the  wrongful  inter- 
ference by  the  defendant  with  the  contract  relations  between  the  plain- 
tiff* and  the  Mallard  Distilling  Company.  The  cause  of  action  is  the 
tortious  act  of  the  defendant  in  procuring  or  causing  the  breach  of 
the  plaintift"'s  contracts  with  the  Ad^allard  Company.  The  suit  is  not 
upon  the  contracts,  nor  does  it  charge  the  defendant  with  several  dis- 
tinct torts.  It  charges  one  single  tort,  resulting  in  damages  to  the 
plaintiff.  It  is  well  settled  that  a  declaration,  whether  it  is  based  upon 
a  contract  or  upon  tort,  cannot  combine  in  one  count  two  distinct 
causes  of  action.  But  we  do  not  regard  tlie  declaration  in  this  case  as 
open  to  this  objection.     *     *     * 

Nor  does  the  fact  that  one  of  these  contracts  was  oral  affect  the 
sufficiency  of  the  narr.  The  contract  is  not  void,  although  it  might  not 
have  been  enforceable  against  the  Mallard  Company.  But  this  cir- 
cumstance cannot  avail  the  defendant.  This  was  decided  in  Knicker- 
bocker Ice  Company  v.  Gardiner  &  Co.,  107  Md.  556,  69  Atl.  405,  16 
L.  R.  A.  (N.  S.)  746.  We  are  of  opinion  that  the  declaration  was 
sufficient.     *     *     * 

Since  the  decisions  of  this  court  in  Knickerbocker  Ice  Company  v. 
Gardiner  Dairy  Co.,  and  the  Sumwalt  Ice  Co.  v.  Knickerbocker  Ice 
Co.,  114  Md.  403,  80  Atl.  48,  there  ought  not  to  be  any  difficulty  about 
the  general  principles  of  law  in  this  state  applicable  to  this  class 
of  actions.  In  those  cases  this  court  adopted  the  conclusion  reached 
by  the  majority  of  the  judges  of  the  Queen's  Bench  in  Lumley  v.  Gye, 
^  El.  &  Bl.  216.    The  doctrine  of  that  case  has  been  followed  in  Eng- 


1308  TORTS  THROUGH   ACTS   OF   CONDITIONAL  LIABILITY        (Part  3 

land  in  Bowen  v.  Hall,  6  Q.  B.  D.  333 ;  Read  v.  Friendly  Society,  etc., 
2  K.  B.  88 ;  South  Wales  Miners'  P'ederation  et  al.  v.  Glamorgan  Coal 
Co.,  Limited,  et  al..  Appeal  Cases  (1905)  239.  It  has  been  affirmed 
by  the  Supreme  Court  of  the  United  States  in  Angle  v.  Chicago,  etc., 
R.  R.  Co.,  151  U.  S.  1,  14  Sup.  Ct.  240,  38  L.  Ed.  55,  and  is  followed 
by  many  of  the  state  courts.  That  decision,  as  stated  by  Lord  Mac- 
naghten  in  Quinn  v.  Leathem,  Appeal  Cases  (1901)  495,  established 
this  general  proposition :  "That  it  is  a  violation  of  legal  right  to  in- 
terfere with  contractual  relations  recognized  by  law,  if  there  is  no 
sufficient  justification  for  the  interference." 

Malice  in  tliis  form  of  action  does  not  mean  actual  malice,  or  ill  will, 
but  consists  in  the  intentional  doing  of  a  wrongful  act  without  legal 
justification  or  excuse.  In  South  Wales  Miners'  Federation  v.  Gla- 
morgan Coal  Company,  supra,  Lord  Lindley  said :  "Bearing  in  mind 
that  malice  may  or  may  not  be  used  to  denote  ill  will,  and  that  in  legal 
language  presumptive  or  implied  malice  is  distinguishable  from  ex- 
press malice,  it  conduces  to  clearness,  in  discussing  such  cases  as 
these,  to  drop  the  word  'malice'  altogether,  and  to  substitute  for  it  the 
meaning  which  is  really  intended  to  be  conveyed  by  it.  Its  use  may 
be  necessary  in  drawing  indictments,  but  when  all  that  is  meant  by 
malice  is  an  intention  to  commit  an  unlawful  act  without  reference  to 
spite  or  ill  will,  it  is  better  to  drop  the  word  'malice'  and  so  avoid  all 
misunderstanding."  The  same  principle  was  announced  in  the  Knick- 
erbocker Ice  Company  Case,  supra,  in  which  Judge  Boyd  said :  "Al- 
though many  of  the  cases  speak  of  the  act  as  being  maliciously  done, 
it  would  seem  to  be  clear  that  express  malice  is  not  necessary  if  the 
act  is  wrongful  and  unjustifiable." 

Turning  now  to  an  examination  of  the  facts  appearing  in  the  record 
we  find  evidence  tending  to  establish  the  contracts  between  the  plain- 
tiff and  the  Mallard  Distilling  Company.  Did  the  defendant  know 
of  these  contracts,  and  did  it  intentionally  cause  the  Mallard  Company 
to  break  them?  These  are  questions  of  fact.  It  is  not  the  province 
of  this  court  to  decide  these  questions.  We  are  merely  to  determine 
whether  the  plaintiff  offered  evidence  from  which  the  jury  might  have 
reasonably  found  that  the  defendant  had  this  knowledge,  and  that  it 
intentionally  procured  their  cancellation.  In  our  opinion  the  evidence 
of  the  plaintiff  and  that  of  Robert  B.  Frist  and  Cliarles  M.  Kohn  was 
abundantly  sufficient  to  have  carried  the  case  to  the  jury  upon  these 
questions.  This  evidence  is  uncontradicted,  and  tends  to  show  that 
the  defendant  acquired  knowledge  of  these  contracts  through  Arthur 
MacLellan,  its  agent  in  Baltimore,  and  that  it  intentionally  deprived 
the  plaintiff  of  the  fruits  of  the  contracts  by  offering  the  Mallard  Com- 
pany lower  prices  on  the  flasks.  "^^  *  *  Unless,  therefore,  the  de- 
fendant had  a  legal  excuse  or  justification  for  its  act,  the  plaintiff'  was 
entitled  to  recover;  provided  the  evidence  supported  the  allegation 
of  the  replication  to  the  plea  of  limitations. 


Ch.  2)  TORTS  THROUGH  MALICE  1309 

Now,  what  is  the  justification  upon  which  the  defendant  rehes  to 
exonerate  itself  from  responsibihty  ?  It  is  the  right  of  competition  in 
trade.  It  asserts  this  proposition:  That  the  right  of  competition  jus- 
tifies a  defendant  in  knowingly  and  deliberately,  for  its  own  benefit  or 
advantage,  inducing  the  breach  of  a  contract  by  offering  lower  prices. 
No  case  has  been  cited  to  support  this  contention.  Counsel  for  ap- 
pellant have  cited  a  number  of  cases  bearing  upon  die  right  of  competi- 
tion in  trade  or  business.  But  this  is  altogether  different  from  the  right 
which  one  has  to  be  protected  from  interference  with  his  rights  under 
existing  contracts.  There  is  a  wide  distinction  between  the  two  classes 
of  cases,  and  tliey  are  governed  by  distinct  rules  of  law.  The  prin- 
ciples applicable  to  the  first  class  are  stated  in  Klingel's  Pharm.acy  v. 
Sharp  &  Dohme,  104  Md.  218,  64  Atl.  1029,  7  L.  R.  A.  (N.  S.)  976, 
118  Am.  St.  Rep.  399,  9  Ann.  Cas.  1184,  and  in  ?^logul  Steamship 
Company  v.  McGregor,  Gow  &  Co.,  Appeal  Cases  (1892)  25,  and  other 
cases  cited  on  appellant's  brief. 

In  the  last-cited  case  it  was  said  ''that  the  procuring  of  people  to 
break  their  contracts"  is  an  unlawful  act.  In  his  opinion  in  that  case 
Lord  Morris  said :  "All  the  acts  done,  and  the  means  used,  by  the  de- 
fendant were  acts  of  competition  for  trade.  There  was  nothing  in  the 
defendant's  acts  to  disturb  any  existing  contract  of  the  plaintiffs,  or 
to  induce  any  one  to  break  such."  In  discussing  the  right  of  competi- 
tion in  Walker  v.  Cronin,  107  Mass.  555,  the  court  said:  "Every  one 
has  a  right  to  enjoy  the  fruits  and  advantages  of  his  own  enterprise, 
industry^  skill,  and  credit.  He  has  no  right  to  be  protected  against 
competition ;  but  he  has  a  right  to  be  free  from  malicious  and  wanton 
interference,  disturbance,  or  annoyance.  If  disturbance  or  loss  come 
as  a  result  of  competition,  or  the  exercise  of  like  rights  by  others,  it 
is  damnum  absque  injuria,  unless  some  superior  right  by  contract 
or  otherwise  is  interfered  with."  We,  therefore,  hold  that  the  right  to 
compete  furnished  no  justification  to  the  defendant  in  this  case. 

We  also  hold  that  the  evidence  was  legally  sufficient  to  be  consid- 
ered by  the  jury  on  the  issUe  raised  upon  the  plea  of  limitation.  The 
plaintiff  suspected  that  the  contracts  with  the  Mallard  Company  had 
been  canceled  through  the  act  of  the  defendant,  and  it  made  an  effort 
to  ascertain  that  fact.  The  Mallard  Company  declined  to  give  him  any 
information,  and  John  F.  Perry  deliberately  misled  him,  and,  except 
for  the  information  derived  from  Frist  in  the  fall  of  1909,  it  is  doubt- 
ful if  he  ever  would  have  been  able  to  connect  the  defendant  with  the 
violation  of  his  contracts. 

The  defendant  got  the  full  benefit  under  the  general  issue  plea  of 
all  the  facts  set  out  in  its  third  plea,  and  no  harm  resulted  to  it  in  sus- 
taining the  demurrer  to  that  plea. 

The  judgment  will  be  affirmed.^* 

8  9  I'arts  of  the  opinion  are  omitted. 


1310  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

II.  In  Trade  or  Business  Competition 

BOHN  MFG.  CO.  v.  HOLLIS  et  al. 

(Supreme  Court  of  Minnesota,  1893.    54  Minn.  223,  55  N.  W.  1119, 
21  L.  R.  A.  337,  40  Am.  St.  Rep.  319.) 

This  action  is  by  the  Bohn  Manufacturing  Company  for  an  in- 
junction. Stripped  of  all  extraneous  matter,  the  case  discloses  just 
this  state  of  facts : 

The  plaintiff  is  a  manufacturer  and  vendor  of  lumber  and  other  building 
material,  having  a  large  and  profitable  trade  at  wholesale  and  retail  in  this 
and  adjoining  states,  a  large  and  valuable  part  of  this  trade  being  with  the 
retail  lumber  dealers.  The  defendant  the  Northwestern  Lumberman's  Associa- 
tion is  a  voluntary  association  of  retail  lumber  dealers,  comprising  from  25  to 
50  per  cent,  of  the  retail  dealers  doing  business  in  the  states  referred  to,  many 
of  whom  are,  or  have  been,  customers  of  the  plaintiff.  A  "retailer,"  as  defined 
in  the  constitution  of  the  association,  is  "any  person  who  is  engaged  in  re- 
tailing lumber,  who  carries  at  all  times  a  stock  of  lumber  adequate  to  the 
wants  of  the  community,  and  who  regularly  maintains  an  office  as  a  lumber 
dealer,  and  keeps  the  same  open  at  proper  times."  Any  wholesale  dealer  or 
manufacturer  of  lumber  who  conforms  to  the  rules  of  the  association  may 
become  an  honorary  member,  and  attend  its  meetings,  but  is  not  allowed  to 
vote.  The  object  of  the  association  is  stated  in  its  constitution  to  be  "the 
protection  of  its  members  against  sales  by  \^holesale  dealers  and  manufac- 
turers to  contractors  and  consumers."  The  object  is  more  fully  stated,  ami 
the  means  by  which  it  is  to  be  carried  into  effect  are  fully  set  out,  in  sections 
3,  314.  4,  and  6  of  the  by-laws,  which  are  all  that  we  consider  material  in 
this  case.  The  plaintiff  sold  two  bills  of  lumber  directly  to  consumers  or 
contractors  at  points  where  members  of  the  association  were  engaged  in  busi- 
ness as  retail  dealers.  Defendant  Hollis,  the  secretary  of  the  association, 
having  been  informed  of  this  fact,  notified  plaintiff,  in  pursuance  of  section 
3  of  the  by-laws,  that  he  had  a  claim  against  it  for  10  per  cent,  of  the  amount 
of  these  sales.  Considerable  correspondence  with  reference  to  the  matter 
ensued,  in  which  the  plaintiff,  from  time  to  time,  promised  to  adjust  the  mat- 
ter, but  procrastinated  and  evaded  doing  so  for  so  long  that  finally  Hollis 
threatened  that  unless  plaintiff  immediately  settled  the  matter  he  would  send 
to  all  the  members  of  the  association  the  lists  or  notices  provided  for  by 
section  6  of  the  by-laws,  notifying  them  that  plaintiff  refused  to  comply 
with  the  rules  of  the  association,  and  was  no  longer  in  sympathy  with  it. 
Thereupon,  plaintiff  commenced  this  action  for  a  permanent  injunction,  and 
obtained,  ex  parte,  a  temporary  one,  enjoining  the  defendants  from  issuing 
these  notices,  etc. 

The  appeal  is  from  an  order  refusing  to  dissolve  the  temporary  in- 
junction. It  is  alleged,  and  in  view  of  the  facts  was  presumed  by 
the  court  to  be  true,  that  if  these  notices  should  be  issued  the  mem- 
bers of  the  association  would  thereafter  refuse  to  deal  with  the  plain- 
tiff, thereby  resulting  in  loss  to  it  of  gains  and  profits. 

Mitchell,  J.  (after  stating  the  facts).  The  case  presents  one 
phase  of  a  subject  which  is  likely  to  be  one  of  the  most  important 
and  difficult  which  will  confront  the  courts  during  the  next  quarter 
of  a  century.  This  is  the  age  of  associations  and  unions,  in  all  de- 
partments of  labor  and  business,  for  purposes  of  mutual  benefit  and 
protection.    Confined  to  proper  limits,  both  as  to  end  and  means,  they 


Ch.  2)  TORTS  THROUGH   MALICE  1311 

are  not  only  lawful,  but  laudable.  Carried  beyond  those  limits,  they 
are  liable  to  become  dangerous  agencies  for  wrong  and  oppression. 
Beyond  what  limits  these  associations  or  combinations  cannot  go, 
without  interfering  with  the  legal  rights  of  others,  is  the  problem 
which,  in  various  phases,  the  courts  will  doubtless  be  frequently 
called  to  pass  upon.  There  is,  perhaps,  danger  that,  influenced  by 
such  terms  of  illusive  meaning  as  "monopolies,"  "trusts,"  "boycotts," 
"strikes,"  and  the  like,  they  may  be  led  to  transcend  the  limits  of 
their  jurisdiction,  and,  like  the  court  of  king's  bench  in  Bagg's  Case, 
11  Coke,  98a,  assume  that,  on  general  principles,  they  have  authority 
to  correct  or  reform  everything  which  they  may  deem  wrong,  or,  as 
Lord  Ellsmere  puts  it,  "to  manage  the  state."  But  whatever  doubts 
or  difficulties  may  arise  in  other  cases,  presenting  other  phases  of 
the  general  subject  involved  here,  it  seems  to  us  that  there  can  be 
none  on  the  facts  of  the  present  case.  Both  the  affidavits  and  brief 
in  behalf  of  the  plaintiff  indulge  in  a  great  deal  of  strong,  and  even 
exaggerated,  assertion,  atid  in  many  words  and  expressions  of  very 
indefinite  and  illusive  meaning,  such  as  "wreck,"  "coerce,"  "extort," 
"conspiracy,"  "monopoly,"  "drive  out  of  business,"  and  the  like. 
This  looks  very  formidable,  but  in  law,  as  well  as  in  mathematics, 
it  simplifies  things  very  much  to  reduce  them  to  their  lowest  terms. 
It  is  conceded  that  retail  lumber  yards  in  the  various  cities,  towns, 
and  villages  are  not  only  a  public  convenience,  but  a  public  necessity ; 
also,  that,  to  enable  the  owners  to  maintain  these  yards,  they  must 
sell  their  lumber  at  a  reasonable  profit.  It  also  goes  without  saying 
that  to  have  manufacturers  or  wholesale  dealers  sell  at  retail,  direct- 
ly to  consumers,  in  the  territory  upon  which  the  retail  dealer  depends 
for  his  customers,  injuriously  affects  and  demoralizes  his  trade.  This 
is  so  well  recognized  as  a  rule  of  trade,  in  every  department,  that  gen- 
erally wholesale  dealers  refrain  from  selling  at  retail  within  the 
territory  from  which  their  customers  obtain  their  trade. 

Now,  when  reduced  to  its  ultimate  analysis,  all  that  the  retail  Imn- 
ber  dealers,  in  this  case,  have  done,  is  to  form  an  association  to  pro- 
tect themselves  from  sales  by  wholesale  dealers  or  manufacturers, 
directly  to  consumers  or  other  nondealers,  at  points  where  a  member 
of  the  association  is  engaged  in  the  retail  business.  The  means  adopt- 
ed to  effect  this  object  are  simply  these:  They  agree  among  them- 
selves that  they  will  not  deal  with  any  wholesale  dealer  or  manufac- 
turer who  sells  directly  to  customers,  not  dealers,  at  a  point  where  a 
member  of  the  association  is  doing  business,  and  provide  for  notice 
being  given  to  all  their  members  whenever  a  wholesale  dealer  or 
manufacturer  makes  any  such  sale.  That  is  the  head  and  front  of 
defendants'  offense.  It  will  be  observed  that  defendants  were  not 
proposing  to  send  notices  to  any  one  but  members  of  the  association. 
There  was  no  element  of  fraud,  coercion,  or  intimidation,  either  to- 
wards plaintiff  or  the  members  of  the  association.  True,  the  secre- 
tary, in  accordance  with  section  3  of  the  by-laws,  made  a  demand  on 


1312  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

plaintiff  for  10  per  cent,  on  the  amount  of  the  two  sales.  But  this 
involved  no  element  of  coercion  or  intimidation,  in  the  legal  sense  of 
those  terms.  It  was  entirely  optional  with  plaintiff  whether  it  would 
pay  or  not.  If  it  valued  the  trade  of  the  members  of  the  association 
higher  than  that  of  nondealers  at  the  same  points,  it  would  probably 
conclude  to  pay;  otherwise,  not.  It  cannot  be  claimed  that  the  act 
of  making  this  demand  was  actionable ;  much  less,  that  it  constituted 
any  ground  for  an  injunction;  and  hence  this  matter  may  be  laid  en- 
tirely out  of  view.  Nor  was  any  coercion  proposed  to  be  brought  to 
bear  on  the  members  of  the  association,  to  prevent  them  from  trading 
with  the  plaintiff.  After  they  received  the  notices,  they  would  be  at 
entire  liberty  to  trade  with  plaintiff,  or  not,  as  they  saw  fit.  By  the 
provisions  of  the  by-laws,  if  they  traded  with  the  plaintiff',  they  were 
liable  to  be  "expelled ;"  but  this  simply  meant  to  cease  to  be  members. 
It  was  wholly  a  matter  of  their  own  free  choice,  which  they  preferred, 
— to  trade  with  the  plaintiff,  or  to  continue  members  of  the  associa- 
tion. So  much  for  the  facts,  and  all  that  remains  is  to  apply  to  them 
a  few  well-settled,  elementary  principles  of  law: 

1.  The  mere  fact  that  the  proposed  acts  of  the  defendants  would 
have  resulted  in  plaintiff's  loss  of  gains  and  profits  does  not,  of  itself, 
render  those  acts  unlawful  or  actionable.  That  depends  on  whether 
the  acts  are,  in  and  of  themselves,  unlawful.  "Injury,"  in  its  legal 
sense,  means  damage  resulting  from  an  unlawful  act.  Associations 
may  be  entered  into,  the  object  of  which  is  to  adopt  measures  that 
may  tend  to  diminish  the  gains  and  profits  of  another,  and  yet,  so 
far  from  being  unlawful,  they  may  be  highly  meritorious.  Com.  v. 
Hunt,  4  Mete.  (Mass.)  Ill,  38  Am.  Dec.  346;  Steamship  Co.  v.  Mc- 
Gregor, 21  Q.  B.  Div.  544. 

2.  If  an  act  be  lawful, — one  that  the  party  has  a  legal  right  w  do, 
— the  fact  that  he  may  be  actuated  by  an  improper  motive  does  not 
render  it  unlawful.  As  said  in  one  case,  "the  exercise  by  one  man 
of  a  legal  right  cannot  be  a  legal  wrong  to  another,"  or,  as  expressed 
in  another  case,  "malicious  motives  make  a  bad  case  worse,  but  they 
cannot  make  that  wrong  which,  in  its  own  essence,  is  lawful."  Hey- 
wood  v.  Tillson,  75  Me.  225,  46  Am.  Rep.  373;  Phelps  v.  Nowlen, 
72  N.  Y.  39,  28  Am.  Rep.  93 ;   Jenkins  v.  Fowler,  24  Pa.  308. 

3.  To  enable  the  plaintiff  to  maintain  this  action,  it  must  appear 
that  defendants  have  committed,  or  are  about  to  commit,  some  un- 
lawful act,  which  will  interfere  with,  anrl  injuriously  affect,  some 
of  its  legal  rights.  We  advert  to  this  for  the  reason  that  counsel  for 
plaintiff  devotes  much  space  to  assailing  this  association  as  one  whose 
object  is  unlawful  because  in  restraint  of  trade.  We  fail  to  see  where- 
in it  is  subject  to  this  charge;  but,  even  if  it  were,  this  would  not, 
of  itself,  give  plaintiff  a  cause  of  action.  No  case  can  be  found  in 
which  it  was  ever  held  that,  at  common  law,  a  contract  or  agreement 
in  general  restraint  of  trade  was  actionable  at  the  instance  oi  third 


Ch.  2)  TORTS  THROUGH   MALICE  1313 

parties  or  could  constitute  the  foundation  for  such  an  action.  The 
courts  sometimes  call  such  contracts  "unlawful"  or  "illegal,"  but  in 
every  instance  it  will  be  found  that  these  terms  were  used  in  the 
sense,  merely,  of  "void"  or  "unenforceable"  as  between  the  parties; 
the  law  considering  the  disadvantage  so  imposed  upon  the  contract  a 
sufficient  protection  to  the  public.  Steamship  Co.  v.  McGregor,  23 
O.  B.  Div.  598,  [1892]  App.  Cas.  25. 

4.  What  one  man  may  lawfully  do  singly  two  or  more  may  lawfully 
agree  to  do  jointly.  The  number  who  unite  to  do  the  act  cannot 
change  its  character  from  lawful  to  unlawful.  The  gist  of  a  private 
action  for  the  wrongful  act  of  many  is  not  the  coml)ination  or  con- 
spiracy, but  the  damage  done  or  threatened  tO'  the  plaintiff  by  the  acts 
of  the  defendants.  If  the  act  be  unlawful,  the  combination  of  many 
to  commit  it  may  aggravate  the  injury,  but  cannot  change  the  char- 
acter of  the  act.  In  a  few  cases  there  may  be  some  loose  remarks 
apparently  to  the  contrary,  but  they  evidently  have  their  origin  in  a 
confused  and  inaccurate  idea  of  the  law  of  criminal  conspiracy,  and 
in  failing  to  distinguish  between  an  unlawful  act  and  a  criminal  one. 
It  can  never  be  a  crime  to  combine  to  commit  a  lawful  act,  but  it 
may  be  a  crime  for  several  to  conspire  to  commit  an  unlawful  act, 
which,  if  done  by  one  individual  alone,  although  unlawful  would  not 
be  criminal.  Hence,  the  fact  that  the  defendants  associated  themselves 
together  to  do  the  act  complained  of  is  wholly  immaterial  in  this  case. 
We  have  referred  to  this  for  the  reason  that  counsel  has  laid  great 
stress  upon  the  fact  of  the  combination  of  a  large  number  of  persons,  as 
if  that,  of  itself,  rendered  their  conduct  actionable.  Bowen  v.  IMathe- 
son,  14  Allen  (Mass.)  499;  Steamship  Co.  v.  McGregor,  23  O.  B. 
Div.  598,  [1892]  App.  Cas.  25;  Parker  v.  Huntington,  2  Gray  (Mass.) 
124;  Wellington  v.  Small,  3  Cush.  (Mass.)  145,  50  Am.  Dec.  719; 
Payne  v.  Railway  Co.,  13  Lea  (Tenn.)  507,  49  Am.  Rep.  666. 

5.  With  these  propositions  in  mind,  which  bring  the  case  down 
to  a  very  small  compass,  we  come  to  another  proposition,  which  is 
entirely  decisive  of  the  case.  It  is  perfectly  lawful  for  any  man 
(unless  under  contract  obligation,  or  unless  his  employment  charges 
him  with  some  public  duty)  to  refuse  to  work  for  or  to  deal  with  any 
man  or  class  of  men,  as  he  sees  fit.  This  doctrine  is  founded  upon 
the  fundamental  right  of  every  man  to  conduct  his  own  business  in 
his  own  way,  subject  only  to  the  condition  that  he  does  not  interfere 
with  the  legal  rights  of  others.  And,  as  has  been  already  said,  the 
right  w^hich  one  man  may  exercise  singly,  many,  after  consultation, 
may  agree  to  exercise  jointly,  and  make  simultaneous  declaration  of 
their  choice.  This  has  been  repeatedly  held  as  to  associations  or 
unions  of  workmen,  and  associations  of  men  in  other  occupations  or 
lines  of  business  must  be  governed  by  the  same  principles.  Summed 
up,  and  stripped  of  all  extraneous  matter,  this  is  all  that  defendants 
have  done,  or  threatened  to  do,  and  we  fail  to  see  anything  unlawful 

Hepb.Torts — 83 


1314  TORTS   THROUGH   ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

or  actionable  in  it.  Com.  v.  Hunt,  supra;  Carew  v.  Rutherford,  106 
^lass.  1,  8  Am.  Rep.  287;  Steamship  Co.  v.  McGregor,  [1892]  App. 
Cas.  25. 

Order  reversed,  and  injunction  dissolved.*'* 

40  Accord:  Macauley  Bros.  v.  Tierney  (1895)  19  R.  I.  255,  33  Atl.  1,  37  L. 
R.  A.  455,  61  Am.  St.  Rep.  770:  (The  plaintiffs  were  master  pluml)ers  engaged 
in  the  plumbing  business  in  Rhode  Island.  The  National  Association  of  Master 
Plumbers,  of  which  the  plaintiffs  were  not  members,  adopted  a  resolution 
that  they  would  withdraw  their  patronage  from  any  firm  manufacturing  or 
dealing  in  plumbing  material  who  sold  to  a  master  plumber  who  was  not  a 
member  of  the  National  Association  or  one  of  its  aflJiliated  local  associations. 
Notice  of  this  was  given  to  the  wholesale  dealei's  in  plumbing  materials 
throughout  the  United  States.  As  a  result,  the  wholesalers  in  Rhode  Island 
from  whom  the  plaintiffs  were  accustomed  to  buy  refused  to  sell  any  longer  to 
plaintiffs,  nor  could  they  purchase  from  wholesalers  anywhere.  The  plaintiffs 
seek  an  injunction  against  the  officers  and  members  of  the  Providence  Master 
Plumbers'  Association,  which  was  afliliated  with  the  National  Association. 
"The  complainants  proceed  on  the  theory  that  they  are  entitled  to  protection 
in  the  legitimate  exercise  of  their  business ;  that  the  sending  of  the  notices  to 
wholesale  dealers  not  to  sell  supplies  to  plumbers  not  members  of  the  associa- 
tion, under  the  penalty,  expressed  in  some  instances  and  implied  in  others,  of 
the  withdrawal  of  the  patronage  of  the  members  of  the  associations  in  case  of 
a  failure  to  comply,  was  unlawful,  because  it  was  intended  injuriously  to 
affect  the  plumbers  not  members  of  the  association  in  the  conduct  of  their 
business,  and  must  necessarily  have  that  effect.  It  is  doubtless  true,  speaking 
generallj%  that  no  one  has  a  right  intentionally  to  do  an  act  with  the  intent  to 
injure  another  in  his  business.  Injury,  however,  in  its  legal  sense,  means 
damage  resulting  from  a  violation  of  a  legal  right.  It  is  this  violation  of  a 
legal  right  which  renders  the  act  wrongful  in  the  eye  of  the  law  and  makes  it 
actionable.  If,  therefore,  there  is  a  legal  excuse  for  the  act  it  is  not  wrong- 
ful, even  though  damage  may  result  from  its  performance.  The  cause  and 
excuse  for  the  sending  of  the  notices,  it  is  evident,  was  a  selfish  desire  on  the 
part  of  the  members  of  the  association  to  rid  themselves  of  the  competition 
of  those  not  members,  with  a  view  to  increasing  the  profits  of  their  own  busi- 
ness. The  question,  then,  resolves  itself  into  this:  Was  the  desire  to  free 
themselves  from  competition  a  suflicient  excuse  in  legal  contemplation  for 
the  sending  of  the  notices?"    Per  Matteson,  C.  J.) 

Scottish  Co-op.  Society  v.  Glasgow  Fleshers'  Ass'n  (1898)  35  Sc.  L.  R.  645: 
("Co-operative  societies  have  of  recent  years  been  formed  in  this  country  with 
the  object  of  supplying  the  public  with  provisions  at  cheaper  rates  than  are 
usually  charged  in  shops.  Their  tendency  is  no  doubt  to  reduce  the  trade,  the 
prices,  and  the  profits  of  the  ordinary  shopkeeper,  and  among  them  of  the 
butchers.  The  co-operative  societies  and  the  butchers  are  therefore  in  a  posi- 
tion of  antagonism  and  competition ;  and  the  butchers  of  Glasgow,  or  some  of 
them,  have  recently  formed  themselves  into  an  association  in  opposition  to 
the  co-operative  societies.  It  occurred  to  them  that  the  co-operative  societies 
might  be  put  in  a  position  of  disadvantage  if  they  could  be  excluded  from  the 
American  and  Canadian  meat  market,  which,  as  it  happens,  is  at  present  car- 
ried on  at  only  one  place  in  Scotland, — the  Yorkhill  Wharf  in  Glasgow, — and 
is  conducted  there  by  means  of  sales  by  auction.  The  association  considered 
that  they  would  attain  their  object  if  they  could  induce  the  cattle  salesmen 
who  were  in  use  to  sell  the  cattle  at  Yorkhill  to  refuse  to  sell  to  the  co-opera- 
tive stores,  and  with  that  view  they  approached  those  cattle  salesmen  and  in- 
timated that  they  would  not  buy  at  their  auction  sales  unless  they  declined  to 
sell  to  the  co-operative  stores.  The  cattle  salesmen  were  thus  placed  in  a  di- 
lemma, and  put  to  choose  between  the  Glasgow  Fleshers'  Trade  Association,  as 
it  is  called,  and  the  co-operative  stores,  and,  judging  (as  I  supix)se)  that  the 
butchers  were  the  better  customers,  they  yielded  to  their  pressure,  and  in- 
timated in  their  conditions  of  sale  that  they  would  not  accept  the  bids  of  per- 
sons connected  with  the  co-operative  stores,  with  the  result  that  the  co-oi)era- 
tive  societies  have  been  cut  out  of  the  foreign  meat  market.  The  arrangement. 
It  will  be  observed,  is  or  seems  to  be  doubly  advantageous  to  the  butchers,  for 


Ch.  2) 


TORTS  THROUGH   MALICE  1315 


it  relieves  them  from  the  competition  of  the  co-operative  stores  at  the  auction 
sales,  so  presumably  reducing  the  prices  when  they,  the  butchers,  buy,  and 
also  fi-om  their  competition  in  the  sale  in  their  shops  of  American  and  Cana- 
dian meat,  so  presumably  enabling  the  butchers  to  raise  their  prices  when 
they  sell.  This  action  has  been  brought  to  try  whether  this  arrangement  can 
be  supported  in  law."     Per  Lord  Kincairney.) 

Heim  v.  New  York  Stock  Exchange  (1901>)  G4  Misc.  Rep.  529,  118  N.  Y.  Supp. 
591:  (By  a  resolution  of  the  New  York  Stock  Exchange  any  member  of  this 
Exchange  who  transacted  business  with  an  active  member  of  the  Consolidated 
Stock  Exchange  was  liable  to  suspension  or  expulsion.  '"This  plaintiff  is  and 
was  an  active  member  on  the  Consolidated  Exchange,  also  transacting  busi- 
ness with  Albert  Loeb  &  Co.,  a  Stock  Exchange  house,  through  whom  he  bought 
and  sold  stocks  and  bonds  upon  the  floor  of  said  Stock  Exchange.  On  May 
21,  1909,  Albert  Loeb  &  Co.  notified  the  plaintiff  that,  because  of  the  above 
resolution  of  their  exchange,  he  must  withdraw  his  account,  and  that  there- 
after they  could  transact  no  further  business  with  him.  It  is  alleged,  and  not 
denied,  that  by  reason  of  the  constitution  and  resolution  above  referred  to  all 
the  members  of  the  Stock  Exchange  will  refuse  to  buy  or  sell  stocks  and  bonds 
for  the  plaintiff,  or  any  other  active  member  of  the  Consolidated  Exchange. 
It  is  conceded  that  the  Consolidated  Exchange,  organized  in  1875  as  a  mining 
stock  exchange,  is  to  a  degree  a  i-ival  of  the  Stock  Exchange;  its  sales  of 
stocks  averaging  per  annum  nearly  one-fourth  of  those  of  the  latter.  There 
are  1,225  members,  of  whom  4.50  are  active.  The  nature  of  the  business  trans- 
acted upon  the  floor  of  the  Consolidated  Exchange  is  very  largely  the  same  as 
that  of  the  Stock  Exchange.  The  plaintiff  by  this  action  seeks  to  enjoin  the 
Stock  Exchange  from  enforcing  this  resolution  of  nonintercourse  as  to  him, 
and  to  prevent  Albert  Loeb  &  Co.  from  rejecting  his  account  upon  the  reasons 
stated  by  them."    Per  Crane,  J.) 

Montgomery  Ward  &  Co.  v.  South  Dakota  Retail  Merchants'  &  Hardware 
Dealers'  Ass'n  (C.  C.  1907)  150  Fed.  413:  (The  complainants,  Montgomery 
Ward  &  Co.,  seek  to  enjoin  the  defendants  from  coercing  or  inducing  whole- 
salers and  jobbers  to  cease  selling  merchandise  to  the  complainants.  The 
defendants  are  members  of  an  association  of  retail  dealers  who  have  agreed 
among  themselves  that  they  will  not  purchase  any  merchandise  from  whole- 
salers and  jobbers  who  sell  to  catalogue  or  mail  order  houses.  The  defend- 
ants have  corresponded  with  jobbers  and  wholesalers  stating  that  the  retail 
dealers  are  opposed  to  wholesalers  and  jobbers  selling  to  a  catalogue  or  mail 
order  house  and  request  that  they  do  not  make  such  sales.  By  reason  of 
these  letters  some  wholesalers  and  jobbers  have  declined,  and  continue  to 
decline,  to  pll  to  the  complainants,  so  that  the  complainants  are  unable  to 
procure  many  articles  of  merchandise  which  they  have  been  accustomed  to 
sell.) 

Whether  the  defendant's  act  in  such  a  case  is  within  the  statute  forbidding 
contracts  in  restraint  of  trade,  see  Retail  Lumber  Dealers'  Ass'n  v.  Missis- 
sippi (1909)  95  Miss.  337,  48  South.  1021,  35  L.  R.  A.  (N.  S.)  1054,  and  note ; 
Grenada  Lumber  Co.  v.  Mississippi  (1910)  217  U.  S.  433,  30  Sup.  Ct.  535,  54 
D.  Ed.  826. 

On  the  prima  facie  liability  in  these  cases,  compare  Ertz  v.  Produce  Ex- 
change Co.  of  Minneapolis  et  al.  (1900)  79  Minn.  140,  81  N.  W.  737,  48  L.  R. 
A.  90,  79  Am.  St.  Rep.  433.  The  question  was  on  a  demurrer  to  a  complaint 
in  which  the  following  allegations  appeared :  That  the  defendant  the  Produce 
ICxchange  of  Minneapolis  and  the  other  defendants  w^ere  engaged  in  buying 
and  selling  farm  produce  in  Minneapolis  and  were  practically  in  control 
of  this  market;  that  the  plaintiff  was  a  commission  merchant  buying  and 
selling  farm,  produce  in  the  Minneapolis  market,  and  as  such  had  been  ac- 
customed  to  buy  of  the  defendants,  paying  them  in  fall ;  that  on  a  day  named 
the  defendant  the  Produce  Exchange  conspired  with  the  other  defendants 
not  to  sell  to  or  buy  from  the  plaintiff  any  farm  produce ;  that  in  pursuance 
of  this  agreement  the  defendants  and  others  refused  to  deal  with  the  plain- 
tiff and  circulated  among  his  patrons  reports  that  he  was  unable  to  buy 
such  produce,  with  the  intent  to  induce  his  patrons  to  discontinue  doing 
business  with  him;  that  as  a  result,  the  plaintiff's  business  was  ruined,  to 
his  damage  .$20,000.  Aflirming  the  trial  court  in  overruling  the  demurrer  to 
this  comidaiut,  Start,  C.  J.,  remarked:    "The  defendants  rely  upon  the  case 


1316  TORTS  THROUGH  ACTS   OF  CONDITIONAL   LIABILITY         (Part  3 

Of  Bohn  Mfg:.  Co.  v.  Hollis  (1S93)  54  Minn.  223,  55  N.  W.  1119.  21  L.  R.  A. 
oo7,  40  Am.  St.  Rep.  319,  in  support  of  their  contention  that  tlie  defendnnts' 
acts  in  question  were  lawful.  The  general  propositions  of  law  laid  down  in 
the  decision  in  that  case  are  sound  as  applied  to  the  facts  of  that  particular 
case.  *  *  *  It  is  to  be  noted  that  the  defendants  in  the  Bolm  Case  had 
similar  legitimate  interests  to  protect,  which  were  menaced  by  the  practice  of 
wholesale  dealers  in  selling  lumber  to  contractors  and  consumers,  and  that 
the  defendants'  efforts  to  induce  parties  not  to  deal  with  offending  wholesale 
dealers  were  limited  to  the  members  of  the  association  having  similar  interests 
to  conserve,  and  that  there  was  no  agreement  or  combination  or  attempt  to 
induce  other  persons  not  members  of  the  association  to  withhold  their  patron- 
age from  such  wholesale  dealer.  In  this  respect  the  case  differs  essentially 
from  the  one  at  bar,  in  which  the  complaint  does  not  show  that  the  defend- 
ants had  any  legitimate  interests  to  protect  by  their  alleged  combination.  On 
the  contraiy,  it  is  expressly  alleged  in  the  complaint  that  the  combination, 
which  was  carried  into  execution,  was  for  the  sole  purix)se  of  injuring  the 
plaintiff's  business,  and  that  the  defendants  conspired  to  induce  the  plain- 
tiff's patrons  and  i)ersons,  other  than  the  defendants,  to  refuse  to  deal  with 
him.  Such  alleged  acts  on  the  part  of  the  defendants  are  clearly  unlawful. 
It  is  true,  as  claimed  by  the  defendants  and  as  stated  in  the  Bohn  Case,  that 
a  man,  not  under  contract  obligations  to  the  contrary,  has  a  right  to  refuse 
to  work  for,  or  deal  with,  any  man  or  class  of  men,  as  he  sees  fit,  and  that 
the  right  which  one  man  may  exercise  singly,  many  may  lawfully  agree  to 
do  jointly  by  voluntary  association,  provided  they  do  not  interfere  with  the 
legal  rights  of  others.  But  one  man  singly,  or  any  number  of  men  jointly, 
having  no  legitimate  interests  to  protect,  may  not  lawfully  ruin  the  busi- 
ness of  another  by  maliciously  inducing  his  patrons  and  third  parties  not 
to  deal  with  him.  See  Walker  v.  Cronin  (1871)  107  Mass.  555,  562;  Delz  v. 
Winf ree  (1S91)  80  Tex.  400,  16  S.  W.  Ill,  26  Am.  St.  Rep.  755 ;  Graham  v.  St. 
Charles  St.  R.  Co.  (1S95)  47  La.  Ann.  214,  16  South.  806,  27  L.  R.  A.  416, 
49  Am.  St.  Rep.  366;  Hopkins  v.  Oxley  Stave  Co.  (1S94)  28  C.  C.  A.  99,  83 
Fed.  912.  This  is  just  what  the  complaint  in  this  case  charges  the  defend- 
ants with  doing,  and  we  hold  that  it  states  a  cause  of  action." 

See,  also,  on  the  question  of  prima  facie  lialnlity,  Union  Labor  Hospital 
Ass'n  v.  Vance  Redwood  Lumber  Co.  et  al.  (1910)  158  Cal.  551,  112  Pac.  886, 
33  L.  R.  A.  (N.  S.)  1034.  The  action  was  by  the  hospital  association  against 
seven  lumber  companies  to  enjoin  them  from  conspiring  to  annoy  and  de- 
stroy the  hospital  business  of  plaintiff.  The  scheme  of  annoyance  and  de- 
struction consisted  in  this:  The  defendants  compelled  every  employe  to  con- 
sent to  the  deduction  of  $1  from  his  monthly  wage,  12iA  cents  of. which  went 
into  a  contingent  fund  to  help  needy  employes  who  might  be  injured  and 
871/^  cents  went  to  a  hospital  for  an  employe's  ticket.  This  titket  entitled 
the  employ^  to  medical  and  surgical  care  and  attendance  in  case  of  injury. 
The  hospital  could  be  selected  by  the  employ^  from  a  list  of  three  or  four 
presented  to  him,  but  the  Union  Labor  Hospital  was  not  mentioned  and  was 
not  on  this  list.  The  defendants  were  all  companies  engaged  in  lumbering 
and  milling.  The  occupations  of  their  men  were  dangerous.  That  provision 
.should  be  made  for  the  medical  and  surgical  care  of  the  men  injured  was 
most  proper.  No  objection  is  made  to  this,  nor  to  the  means  adopted  to  ef- 
fectuate it,  saving  that  plaintiff  contends  that  becaiise  its  liospital  Avas  not 
upon  the  list  and  because  the  employes  were  compelled  to  take  out  hospital 
tickets  in  one  or  another  of  the  enumerated  hospitals,  a  species  of  unlawful 
discrimination  by  the  defendants  against  the  plaintiff  was  thus  established,  a 
discrimination  which  it  is  urged  and  which  the  trial  court  found  was  an  illegal 
boycott.  It  was  found  by  the  trial  judge  that  the  defendants,  without  any 
interests  of  their  own  to  subserve,  or  any  lawful  object  to  promote,  did  con- 
spire and  confederate  together  for  the  purjjose  of  unlawfully  injuring  the 
plaintiff  in  the  manner  alleged  in  the  complamt;  but  it  was  also  found,  as 
shown  in  the  opinion  of  the  court  that,  the  agreement  with  the  four  favored 
hospitals  was  entered  into  by  the  defendants  solely  ft)r  the  purpose  and  with 
the  intent  to  suljserve  their  own  interests.  "These  two  findings  appear  to  me 
to  stand  in  absolute  and  irreconcilable  opposition  to  each  other,  and  tlie  re- 
sult is  no  finding  at  all  upon  a  point  essential  to  the  validity  of  the  judg- 
ment."   Per  Beatty,  C.  J. 


Ch.  2)  TORTS  THROUGH   MALICE  1317 

JACKSON  et  al.  v.  STANFIELD  et  al. 
(Supreme  Court  of  Indiana,  1894.    137  Ind.  592,  36  N.  E.  345,  23  L.  R.  A.  588.) 

In  tliis  action,  brought  by  Jackson,  the  judgment  below  was  for 
the  defendants.     The  plaintiffs  appeal. 

DailEy,  J.  This  is  an  action  brought  by  the  appellants  against  the 
appellees  for  damages,  and  for  relief  by  injunction,  on  the  ground  that 
the  defendants  had  entered  into  an  unlawful  combination  for  the  pur- 
pose of  injuring  the  appellees  in  their  business,  and  that  in  conse- 
quence thereof  plaintiff's  had  suffered  actual  damage  and  were  threat- 
ened with  great  loss  in  their  business.  By  request  of  the  parties,  the 
court  below  made  a  special  finding  of  the  facts  and  stated  its  con- 
clusion of  the  law  thereon, — that  the  plaintiffs  were  not  entitled  to 
recover.  There  was  no  motion  for  a  new  trial,  and  the  only  questions 
presented  by  the  record  are  these :  First.  Whether  the  plaintiff's  are 
entitled  to  an  injunction.  Second.  If  not  entitled  to  an  injunction, 
are  they  entitled  to  recover  damages?     *     *     * 

We  have,  for  convenience,  taken  so  much  of  the  special  finding  as 
we  deemed  material  to  the  questions  involved: 

That  the  plaintiffs,  Newton  Jackson  and  Martha  E.  Jacl^son,  are  husband 
and  wife.  That  Newton  Jackson  has  no  means,  that  his  wife  has  means  of 
her  own,  and  for  the  past  three  years  Newton  Jackson  has  been  encrased  in 
the  business  of  buying  and  selling  lumber.  That  he  has  bought  and  sold 
lumber,  dealing  with  his  wife's  means,  and  also  on  commission,  by  negotiating 
sales  as  agent  of  a  wholesale  dealer  or  manufacturer,  and  receiving  a  com- 
mission therefor,  without  owning  the  lumber  himself.  That  the  arrangement 
between  plaintiffs  was  that  the  husband  supported  himself  and  family  from 
his  earnings  and  profits,  and  if  any  surplus  remained  it  was  the  property  of 
his  wife.  That  the  business  was  managed  solely  by  Newton  Jackson,  in  his 
own  name,  he  occasionally  using  the  word  "agent"  in  connection  with  his  own 
name,  and  using  from  .$3,000  to  $4,000  of  his  wife's  means;  but  defendants 
had  no  knowledge  that  he  was  acting  as  agent  for  his  wife.  That  plaintiffs 
have  kept  no  himber  yard  or  stock  on  hand  in  South  Bend.  Ind.,  where  they 
have  done  business  for  the  past  three  years.  That  the  defendants  are  part- 
ners, retail  dealers  in  lumber  in  South  Bend,  Ind.,  and  have  kept  a  lumber 
yard  and  stock  on  hand.  That  prior  to  1SS9  the  defendants  and  other  retail 
dealers  in  lumber  in  Indiana,  about  1.50  in  number,  associated  themselves 
together  into  an  association  known  and  designated  as  the  "Retail  Lumber 
Dealers'  Association  of  Indiana,"  and  agreed  to  a  constitution  and  by-laws  for 
their  government,  which  constitution  and  by-laws  are  in  these  words:     *     *     * 

"Article  2.  Conditions  of  Membership.  Any  person  who  may  be  regularly 
in  the  retail  lumber  trade,  owning  or  operating  a  lumber  yard,  in  which  a 
general  assortment  of  stock  in  kind  and  quantity  commensurate  with  the  de- 
mands of  the  community  where  located  is  kept  for  sale,  may  become  n  mem- 
ber of  this  association  by  subscribing  to  the  constitution  and  paying  the  an- 
nual dues  prescribed  by  the  by-laws.     *     *     * 

'■Article  10.  Any  manufacturer  or  wholesale  dealer  may  become  an  honorary 
member  of  this  association,  with  all  the  privileges  and  benefits  save  that  of 
voting,  upon  payment  of  the  annual  dues.  *  *  *  Sec.  5.  Members  are  en- 
titled to  the  protection  of  this  asscK-iation  in  the  towns  in  which  their  yards 
are  situated  and  the  adjacent  territory,  which  must  be  designated  in  the  appli- 
cation for  membership,  and  written  in  the  membership  certificate.  If  protec- 
tion is  wanted  for  more  than  one  point,  where  applicant  owns  or  operates  a 
yard,  separate  memberships  must  be  taken.     *     ♦     * 


1318  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

"Relations  with  Wliolesalers.  *  *  *  gee.  3.  Wlienever  and  as  often  as 
any  maniifacturer  or  wholesale  dealer,  or  their  agents,  shall  sell  lumber, 
sash,  doors,  or  blinds  to  any  person  not  a  regular  dealer,  as  contemplated  by 
article  2  of  the  constitution  of  the  association,  any  memlier  doing  business  in 
the  town  to  which  such  shipment  was  made  may  notify  the  shipper,  manu- 
facturer, or  wholesale  dealer  who  made  such  shipment  that  he  has  a  claim 
against  them  for  such  shipment.  If  the  parties  cannot  adjust  the  claim,  it  shall 
bo  the  duty  of  the  member  to  notify  the  secretary  of  the  facts  in  the  case, 
who  shall  refer  the  case  to  the  executive  committee,  whose  duty  it  shall  be  to 
hear  both  sides  of  the  question  and  determine  the  claim.  If  the  wholesaler 
or  manufacturer  refuses  to  abide  by  the  decision  of  the  executive  committee, 
it  shall  be  the  duty  of  the  secretary  to  notify  the  members  of  this  association 
of  the  name  of  such  wholesaler  or  manufacturer.  It  shall  also  be  the  duty  of 
the  members  to  no  longer  patronize  said  wholesaler  or  maniifacturer.  If  any 
member  continues  to  deal  with  such  dealer  or  manufacturer,  he  shall  be  ex- 
pelled from  the  association.  If  the  member  refuses  to  abide  by  the  decision  of 
the  executive  committee,  his  name  shall  be  stricken  from  the  membership  of 
the  association.  It  is  provided  that  nothing  in  this  section  shall  be  so  con- 
strued as  to  entitle  members  to  make  complaint  on  account  of  lumber  sold  to 
manufacturers,  and  actually  used  in  articles  manufactured,  nor  to  railroads 
or  transportation  companies,  nor,  in  case  of  sash,  doors,  or  blinds,  to  hard- 
ware merchants  who  keep  a  regular  stock  of  such  goods.     *     *     * 

We  infer  from  article  2  of  the  constitution,  that  "any  person  in  the 
retail  lumber  trade,  owning  and  operating  a  lumber  yard  in  which 
a  general  assortment  of  stock  in  kind  and  quantity  commensurate  with 
the  demands  of  the  community  where  located  is  kept  for  sale,  is  a 
regular  dealer."  The  regular  dealer,  in  accordance  with  the  provi- 
sions of  section  3  of  the  by-laws,  when  his  territory  is  encroached 
upon  by  a  wholesale  dealer  or  manufacturer,  is  authorized  to  notify 
the  person  so  offending  that  he  has  a  claim  against  him  for  such  sale 
or  shipment,  and  to  make  a  demand  therefor.  If  the  parties  cannot 
adjust  it,  it  is  made  the  duty  of  the  member  to  notify  the  secretary  of 
the  facts  in  the  case,  who  shall  refer  the  matter  to  the  executive  com- 
mittee, whose  duty  it  is  to  hear  the  grievances  and  determine  the 
claim.  If  the  wholesaler  or  manufacturer  ignores  the  decision  of  the 
committee,  it  is  the  duty  of  the  secretary  to  notify  the  members  of 
the  association  of  the  name  of  the  person  so  offending,  and  of  the 
members  to  no  longer  patronize  him.  If  they  continue  to  deal  with 
the  oft'ender,  they  shall  be  expelled  from  the  association;  and  if  any 
member  refuses  to  abide  by  the  decision  of  the  executive  committee, 
his  name  is  to  be  stricken  from  the  membership  of  the  society. 

The  facts  found  by  the  court  disclose  that  the  appellees,  as  mem- 
bers of  the  combination  complained  oi  availed  themselves  of  the 
means  provided  for  in  section  3  to  destroy  the  business  of  the  appel- 
lants as  brokers  in  lumber,  because  they  were  not  retail  dealers  within 
the  definition  of  the  term,  and  that  they  effectuated  their  purpose. 
The  special  findings  of  fact  clearly  show  it  to  be  a  compact  to  sup- 
press the  competition  of  those  dealers  who  did  not  own  yards  with  an 
adequate  stock  on  hand,  by  driving  them  out  of  business.  By  this 
plan  they  reach  the  wholesale  dealer  and  compel  him  to  pay  an  ar- 
bitrary penalty,  under  a  threat  of  financial  injury,  and  they  force  him 


Ch.  2)  TORTS  THROUGH   MALICE  1319 

to  assist  in  ruining  the  dealer  who  does  not  own  a  yard.  There  is 
such  an  element  of  coercion  and  intimidation  in  the  by-law  under  con- 
sideration, towards  the  wholesale  dealers,  manufacturers,  and  even 
the  members  of  the  society,  and  such  provision  made  for  penalties 
and  forfeitures  against  them,  that  it  will  not  do  to  say  it  was  optional 
with  the  wholesale  dealer  whether  it  would  pay  the  demand  or  not, 
or  that  it  was  left  to  the  discretion  or  choice  of  the  members  to  either 
trade  witli  the  wholesaler  or  abandon  the  association.  A  conspiracy 
formed  and  intended,  directly  or  indirectly,  to  prevent  the  carrying 
on  of  any  lawful  business,  or  to  injure  the  business  of  any  one,  by 
wrongfully  preventing  those  who  would  be  customers  from  buying 
anything  from  the  representatives  of  such  business  by  threats  or  in- 
timidation, is  in  restraint  of  trade  and  unlawful.     *     *     * 

The  great  weight  oi  authority  supports  the  doctrine  that,  where 
the  policy  pursued  against  a  trade  or  business  is  of  a  menacing  char- 
acter, calculated  to  destroy  or  injure  the  business  of  the  person  so 
engaged,  either  by  threats  or  intimidation,  it  becomes  unlawful,  and 
the  person  inflicting  the  wrong  is  amenable  to  the  injured  party  in  a 
civil  action  for  damages  therefor.  It  is  not  a  mere  passive,  let-alone 
policy,  a  withdrawal  of  all  business  relations,  intercourse,  and  fellow- 
ship, that  creates  the  liability,  but  the  threats  and  intimidation  shown 
in  the  complaint.  The  learned  counsel  for  the  appellees,  in  his  very 
able  brief,  contends  that  the  plaintiffs  were  only  incidentally  injured 
bv  the  acts  of  the  defendants  in  enforcing  a  penalty  of  $100  against 
the  West  Michigan  Lumber  Company.  It  will  be  observed  that  the 
Retail  Lumber  Dealers'  Association  invites  wholesalers  to  become 
honorary  members,  and  that  said  lumber  company  is  an  honorary 
member.  But  the  rules  of  the  association  do  not  affect,  alone,  mem- 
bers active  and  honorary.  They  extend  to  and  reach  any  wholesale 
dealer  in  the  United  States  with  whom  the  threat  to  withdraw  the 
trade  of  150  retail  dealers  can  have  weight.  It  is  shown  in  the  find- 
ing that  Michigan  is  the  source  from  which  most  of  the  lumber  in 
northern  Indiana  is  procured,  and  that  the  rules  of  the  association 
are  published  in  pamphlet  form  and  sent  to  every  wholesale  dealer 
in  the  United  States.  The  retail  dealers  who  organized  the  associa- 
tion in  question  are  members  of  the  various  cities  and  towns  where 
they  are  located.  They  have  lumber  yards  containing  stock  in  quan- 
tity and  quality  suited  to  and  commensurate  with  the  wants  of  the 
consumers  in  their  several  localities.  These  gentlemen  are  prominent, 
wealthy,  and  influential  citizens  of  our-  state,  whose  power,  from  the 
elevated  stations  they  occupy,  so  exercised,  enables  them  to  control 
the  wholesale  dealers  of  the  United  States  against  the  agents  and 
brokers  within  their  own  territory,  and  effectually  drive  them  out  of 
business.  It  is  idle  to  say  that  the  victim  of  such  a  combination  is 
only  "incidentally"  affected  thereby.  The  object  of  the  association 
and  the  result  attained  is  a  monoi)oly  of  the  trade  by  owners  of  yards, 
and  the  broker  is  simply  ignored  by  the  wholesale  dealers. 


1320  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

It  is  not  in  point  to  cite  cases  where  men  voluntarily  agree  to  ob- 
serve rules  adopted  by  themselves.  This  is  no  voluntary  affair  of  the 
v.?holesale  dealers.  It  is  not  even  a  combination  of  wholesalers.  They 
may  and  do  sometimes  become  honorary  members,  so  as  to  keep  with- 
in touch  of  the  retail  dealers  and  secure  trade.  It  is,  as  stated,  an 
association  of  retailers  to  restrict  the  liberty  of  wholesalers  to  sell 
to  consumers  and  brokers,  and  the  wholesalers  must  obey  or  lose  their 
trade. 

It  is  found  as  a  fact  that  the  market  in  which  the  plaintiffs  could 
most  profitably  buy  was  in  Michigan.  Freight  and  railroad  facilities 
necessarily  limited  the  field.  It  is  also  found  that  the  West  Michigan 
Lumber  Company  is  the  dealer  that  made  the  plaintiff's  trade  most 
profitable,  and  that,  for  fear  of  the  penalties,  this  company  and  an- 
other refused  to  deal  with  them.  The  West  Michigan  Lumber  Com- 
pany was  willing  and  anxious  to  sell  to  the  plaintiffs  until  fined  by 
the  defendants  and  mulcted  in  the  sum  of  $100,  when  it  refused  to 
make  further  sales  for  the  reason  that  it  was  afraid  of  the  penalties. 
Such  rules  contravene  the  rights  of  nonmembers  to  earn  their  living 
by  fair  competition. 

The  case  of  Eohn  Manuf'g  Co.  v.  Hollis  (1893)  54  Minn.  223,  55 
N.  W.  1119,  21  L.  R.  A.  ZZ7,  40  Am.  St.  Rep.  319,  is  cited  by  appellees 
as  sustaining  the  decision  of  the  lower  court.  It  was  a  case  in  which 
a  large  number  of  lumber  dealers  had  formed  an  association  very 
similar  in  its  character  to  the  one  in  the  case  at  bar.  *  *  *  f  he 
opinion  proceeds  upon  the  theory  that  there  was  no  element  of  co- 
ercion or  intimidation  in  the  acts  complained  of,  but  we  think  the  de- 
cision in  this  respect  is  in  conflict  with  approved  authority,  and  is 
bad  as  a  precedent. 

It  appears  from  the  facts  found  by  the  court  that,  after  the  pay- 
ment of  the  $100  fine  so  assessed,  the  appellant  Newton  Jackson  made 
an  oft'er  to  the  Studebaker  Bros.  Manufacturing  Company,  of  South 
Bend,  to  sell  said  company  two  million  feet  of  lumber,  which  offer 
was  based  on  the  price  list  of  the  West  Michigan  Lumber  Company ; 
that  his  commission  thereon  would  have  been  $500;  that  the  offer 
of  said  Jackson  was  accepted  by  the  Studebaker  Bros.  Manufactur- 
ing Company,  but  the  West  Michigan  Lumber  Company  refused  to 
sell  to  or  through  Jackson  by  reason  of  the  rules  of  said  association, 
and  on  account  of  having  paid  said  penalty,  and  said  Jackson  there- 
upon did  not  contract  with  said  Studebaker  Bros.  Manufacturing 
Company,  but  turned  over  such  sale  to  the  West  Michigan  Lumber 
Company,  and  allowed  it  to  make  such  sale  without  paying  any  com- 
mission to  him ;  that  said  Newton  Jackson  thereafter  caused  lumber 
to  be  purchased  for  his  customers  in  the  name  of  Smith  &  Jackson, 
a  firm  of  regular  dealers  as  defined  by  the  association,  in  South  Bend, 
and  paid  to  them  $83  of  his  commission  for  the  use  of  their  name, 
which  was  a  reasonable  and  fair  charge  therefor;  that  by  reason  of 
the  refusal  of  the  said  West  Michigan  Lumber  Company  to  sell  him 


Ch.  2)  TORTS  THROUGH  MALICE  1321 

lumber  to  fill  an  existing  contract  said  Jackson  went  to  Manistee, 
Mich.,  to  purchase  lumber,  and  expended  in  railroad  fare  and  freight 
$82  more  than  it  would  have  cost  him  had  said  West  Michigan  Lum- 
ber Company  not  refused  to  sell  to  him ;  that,  except  for  such  refusal, 
the  \\"est  Michigan  Lumber  Company  could  have  sold  him  lumber  to 
fill  such  contract;  that  during  the  year  1890  plaintiffs'  business  had 
decreased,  and  before  the  commencement  of  this  suit  plaintiff's  re- 
quested defendants  to  permit  them  to  do  business  as  heretofore,  and 
to  abandon  their  position  in  this  matter,  and  not  to  complain  to  the 
association  of  sales  made  to  plaintiff's,  but  defendants  refused  to  do  so, 
and  declared  their  intention  to  adhere  to  their  position,  and  that  they 
intended  to  enforce  the  rules  and  by-laws  of  said  association. 

Without  further  extending  this  opinion,  we  only  need  to  say  that, 
if  it  had  not  been  for  the  wrongful  acts  of  the  appellees,  the  plaintiffs 
would  have  made  $583  in  profits  upon  contracts  of  which  they  were 
deprived.  They  are  entitled  as  compensation  to  the  amount  of  dam- 
ages sustained,  which  is  measured  by  the  loss  actually  incurred.  If 
there  was  any  circumstance  to  be  considered  in  mitigation  of  damages, 
it  was  incumbent  on  the  defendants  to  show  that  fact ;  but  as  the  rec- 
ord is  silent  on  this  question,  we  must  infer  that  none  existed.  We 
think  the  claim  for  expenses  to  Manistee  and  return  too  remote  to  be 
considered  in  this  case.  The  judgment  is  reversed,  with  instructions 
to  restate  conclusions  of  law  and  render  judgment  upon  the  special 
findings  in  favor  of  the  appellants  for  $583,  and  with  the  further  in- 
struction to  render  a  judgment  perpetually  enjoining  the  defendants 
from  in  any  wa}^  other  than  fair,  open  competition,  interfering  with 
the  plaintiffs  in  their  business,  and  from  demanding  a  penalty  or  mak- 
ing a  claim  against  any  one,  under  the  by-laws  of  said  association,  who 
may  sell  to  the  plaintiffs,  or  through  them  to  a  consumer,'*^ 


MARTELL  v.  WHITE  et  al. 

(Supreme  Judic-ial  Court  of  Massachusetts,  1904.    185  Mass.  255,  69  N.  E.  10S5, 
64  L.  R.  A.  260,  102  Am.  St.  Rep.  341.) 

Tort  by  Martell  for  conspiracy  to  injure  his  business.  In  the  supe- 
rior court  a  verdict  was  ordered  for  the  defendants.  The  plaintiff 
excepted. 

Hammond,  J.  The  evidence  warranted  the  finding  of  the  following 
facts,  many  of  which  were  not  in  dispute :  The  plaintiff  was  engaged 
in  a  profitable  business  in  quarrying  granite  and  selling  the  same  to 
granite  workers  in  Quincy  and  vicinity.  About  January,  1899,  his 
customers  left  him,  and  his  business  was  ruined,  through  the  action  of 

<i  Parts  of  the  opinion  are  omitted. 


1322  TORTS  THROUGH   ACTS   OP   CONDITIONAL  LIABILITY         (Part  3 

the  defendants  and  their  associates.  The  defendants  were  all  members 
of  a  voluntary  association  known  as  the  Granite  Manufacturers'  As- 
sociation of  Quincy,  Mass.,  and  some  of  them  were  on  the  executive 
committee.  The  association  was  composed  of  "such  individuals,  firms, 
or  corporations  as  are,  or  are  about  to  become  manufacturers,  quar- 
riers,  or  polishers  of  granite."  There  was  no  constitution,  and,  while 
there  were  by-laws,  still,  except  as  hereinafter  stated,  there  was  in 
them  no  statement  of  the  objects  for  which  the  association  was  fonned 
The  by-laws  provided  among  other  things,  for  the  admission,  suspen- 
sion, and  expulsion  of  members,  the  election  of  officers,  including  an 
executive  committee  and  defined  the  respective  powers  and  duties  of 
the  officers.  One  of  the  by-laws  read  as  follows :  "For  the  purpose  of 
defraying  in  part  the  expense  of  the  maintenance  of  this  organization, 
any  member  thereof  having  business  transactions  with  any  party  or 
concern  in  Quincy  or  its  vicinity,  not  members  hereof,  and  in  any  way 
relating  to  the  cutting,  quarrying,  polishing,  buying  or  selling  of  gran- 
ite (hand  polishers  excepted)  shall  for  each  of  said  transactions  con- 
tribute at  least  $1  and  not  more  tlian  $500.  The  amount  to  be  fixed 
by  the  association  upon  its  determining  the  amount  and  nature  of  said 
transaction." 

Acting  under  the  by-laws  the  association  investigated  charges  which 
were  made  against  several  of  its  members  that  they  had  purchased 
granite  from  a  party  "not  a  member"  of  the  association.  The  charges 
were  proved,  and,  under  the  section  above  quoted,  it  was  voted  that  the 
ofifending  parties  "should  respectively  contribute  to  the  funds  of  the 
association"  the  sums  named  in  the  votes.  These  sums  ranged  from 
$10  to  $100.  Only  the  contribution  of  $100  has  been  paid,  but  it  is  a 
fair  inference  that  the  proceedings  to  collect  the  others  have  been  de- 
layed only  by  reason  of  this  suit.  The  party  "not  a  member"  was  the 
present  plaintiff,  and  the  members  of  the  association  knew  it.  Most 
of  the  customers  of  the  plaintiff  were  members  of  the  association,  and 
after  these  proceedings  they  declined  to  deal  with  him.  This  action 
on  their  part  was  due  to  the  course  of  the  association  in  compelling 
them  to  contribute  as  above  stated,  and  to  their  fear  that  a  similar 
vote  for  contribution  would  be  passed,  should  they  continue  to  trade 
with  the  plaintiff.  The  jury  might  properly  have  found,  also,  that  the 
euphemistic  expression,  "shall  contribute  to  the  funds  of  the  associa- 
tion," contained  an  idea  which  could  be  more  tersely  and  accurately 
expressed  by  the  phrase  "shall  pay  a  fine,"  or,  in  other  words,  that  the 
plain  intent  of  the  section  was  to  provide  for  the  imposition  upon 
those  who  came  within  its  provisions  of  a  penalty  in  the  nature  of  a 
substantial  fine. 

The  bill  of  exceptions  recites  that  "there  was  no  evidence  of  threats 
or  intimidation  practiced  upon  the  plaintiff  himself,  and  the  acts  com- 
plained of  were  confined  to  the  action  of  the  society  upon  its  own 
mcmliers."  We  understand  this  statement  to  mean  simply  that  the 
acts  of  the  association  concerned  only  such  of  the  plaintiff's  customers 


Ch.  2)  TORTS  THROUGH   MALICE  1323 

as  were  members,  and  that  no  pressure  was  broug-ht  to  bear  upon  the 
plaintiff,  except  such  as  fairly  resulted  from  action  upon  his  customers. 
While  it  is  true  that  the  by-law  was  not  directed  expressly  against  the 
plaintiff"  by  name,  still  he  belonged  to  the  class  whose  business  it  was 
intended  to  affect,  and  the  proceedings  actually  taken  were  based  upon 
transactions  with  him  alone,  and  in  that  way  were  directed  against  his 
business  alone.  It  was  the  intention  of  the  defendants  to  withdraw 
his  customers  from  him,  if  possible,  by  the  imposition  of  fines  upon 
them,  with  the  knowledge  that  the  result  would  be  a  great  loss  to  the 
plaintiff.  The  defendants  must  be  presumed  to  have  intended  the  nat- 
ural result  of  their  acts.  Here,  then,  is  a  clear  and  deliberate  inter- 
ference with  the  business  of  a  person,  with  the  intention  of  causing 
damage  to  him,  and  ending  in  that  result.  The  defendants  combined 
and  conspired  together  to  ruin  the  plaintiff  in  his  business,  and  they 
accomplished  their  purpose.  In  all  this,  have  they  kept  within  lawful 
bounds  ?  It  is  elemental  that  the  unlawfulness  of  a  conspiracy  may  be 
found  either  in  the  end  sought,  or  the  means  to  be  used.  If  either  is 
unlawful,  within  the  meaning  of  the  term  as  applied  to  the  subject, 
then  the  conspiracy  is  unlawful.  It  becomes  necessary,  therefore,  to 
examine  into  the  nature  of  the  conspiracy  in  this  case,  both  as  to  the 
object  sought  and  the  means  used. 

The  case  presents  one  phase  of  a  general  subject  which  gravely  con- 
cerns the  interests  of  the  business  world,  and,  indeed,  those  of  all  or- 
ganized society,  and  which  in  recent  years  has  demanded  and  received 
great  consideration  in  the  courts  and  elsewhere.  Much  remains  to  be 
done  to  clear  the  atmosphere,  but  some  things,  at  least,  appear  to  have 
been  settled;  and  certainly  at  this  stage  of  the  judicial  inquiry  it  can- 
not be  necessary  to  enter  upon  a  course  of  reasoning  or  to  cite  authori- 
ties in  support  of  the  proposition  that,  while  a  person  must  submit  to 
competition,  he  has  the  right  to  be  protected  from  malicious  interfer- 
ence with  his  business.  The  rule  is  well  stated  in  Walker  v.  Cronin, 
107  Mass.  555,  564,  in  the  following  language:  "Every  one  has  a  right 
to  enjoy  the  fruits  and  advantages  of  his  own  enterprise,  industry,  skill 
and  credit.  He  has  no  right  to  be  protected  against  competition,  but  he 
has  a  right  to  be  free  from  malicious  and  wanton  interference,  disturb- 
ance, or  annoyance.  If  disturbance  or  loss  come  as  a  result  of  competi- 
tion, or  the  exercise  of  like  rights  by  others,  it  is  damnum  absque  in- 
juria, unless  some  superior  right  by  contract  or  otherwise  is  interfered 
with.  But  if  it  come  from  the  merely  wanton  or  malicious  acts  of  oth- 
ers, without  the  justification  of  competition  or  the  service  of  any  inter- 
est or  lawful  purpose,  it  then  stands  upon  a  different  footing."  In  a  case 
like  this,  where  the  injury  is  intentionally  inflicted,  the  crucial  question 
is  whether  there  is  justifiable  cause  for  the  act.  If  the  injury  be  inflict- 
ed without  just  cause  or  excuse,  then  it  is  actionable.  Bowen,  L.  J.,  in 
Mogul  Steainship  Co.  v.  McGregor,  23  Q.  B.  D.  598,  613 ;  Plant  v. 
Woods,  176  Mass.  492,  57  N.  E.  1011,  51  L.  R.  A.  339,  79  Am.  St.  Rep. 
330.    The  justification  must  be  as  broad  as  the  act,  and  must  cover  not 


1324  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

only  the  motive  and  the  purpose,  or,  in  other  words,  the  object  sought, 
but  also  the  means  used. 

The  defendants  contend  that  both  as  to  object  and  means,  they  are 
justified  by  the  law  applicable  to  business  competition.  In  considering 
this  defense,  it  is  to  be  remembered,  as  was  said  by  Bowen,  L.  J.,  in 
Mogul  Steamship  Co.  v.  McGregor,  L.  R.  23  O.  B^  D.  598,  611,  that 
there  is  presented  "an  apparent  conflict  or  antinomy  between  two 
rights  that  are  equally  regarded  by  the  law — the  right  of  the  plaintiff 
to  be  protected  in  the  legitimate  exercise  of  his  trade,  and  the  right  of 
the  defendants  to  carry  on  their  business  as  seems  best  to  them,  pro- 
vided they  commit  no  wrong  to  others."  Here,  as  in  most  cases  where 
there  is  a  conflict  between  two  important  principles,  either  of  which  is 
sound,  and  to  be  sustained  within  proper  bounds,  but  each  of  which 
must  finally  yield,  to  some  extent,  to  the  other,  it  frequently  is  not  pos- 
sible by  a  general  formula  to  mark  out  the  dividing  line  with  reference 
to  every  conceivable  case,  and  it  is  not  wise  to  attempt  it.  The  best 
and  only  practicable  course  is  to  consider  the  cases  as  they  arise,  and, 
bearing  in  mind  the  grounds  upon  which  the  soundness  of  each  prin- 
ciple is  supposed  to  rest,  by  a  process  of  elimination  and  comparison 
to  establish  points  through  which,  at  least,  the  line  must  run,  and  be- 
yond which  the  party  charged  with  trespass  shall  not  be  allowed  to  go. 

While  the  purpose  to  injure  the  plaintiff  appears  clearly  enough,  the 
object  or  motive  is  left  somewhat  obscure,  upon  the  evidence.  The 
association  had  no  written  constitution,  and  the  by-laws  do  not  ex- 
pressly set  forth  its  objects.  It  is  true  that  from  the  by-laws  it  appears 
that  none  but  persons  engaged  in  the  granite  business  can  be  members, 
and  that  a  member  transacting  any  business  of  this  kind  with  a  per- 
son not  a  member  is  liable  to  a  fine,  from  which  it  may  be  inferred  that 
it  is  the  idea  of  the  members  that,  for  the  protection  of  their  business, 
it  would  be  well  to  confine  it  to  transactions  among  themselves,  and 
that  one,  at  least,  of  the  objects  of  the  association  is  to  advance  the 
interests  of  the  members  in  that  way.  The  oral  testimony  tends  to 
show  that  one  object  of  the  association  is  to  see  that  agreements  made 
between  its  members  and  their  employes  and  between  this  association 
and  similar  associations  in  the  same  line  of  business,  be  kept  and  "lived 
up  to."  Whether  this  failure  to  set  out  fully  in  writing  the  objects,  is 
due  to  any  reluctance  to  have  them  clearly  appear  or  to  some  other 
cause,  is,  of  course,  not  material  to  this  case.  The  result,  however, 
is  that  its  objects  do  not  so  clearly  appear  as  might  be  desired;  but, 
in  view  of  the  conclusion  to  which  we  have  come  as  to  the  means  used, 
it  is  not  necessary  to  inquire  more  closely  as  to  the  objects.  It  may 
be  assumed  that  one  of  the  objects  was  to  enable  the  members  to  com- 
pete more  successfully  with  others  in  the  same  business,  and  that  the 
acts  of  which  the  plaintiff  complains  were  done  for  the  ultimate  pro- 
tection and  advancement  of  their  own  business  interests,  with  no  in- 
tention or  desire  to  injure  the  plaintiff,  except  so  far  as  such  injury 


Ch.  2)  TORTS  THROUGH   MALICE  1325 

was  the  necessary  result  of  measures  taken  for  their  own  interests.  If 
that  was  true,  then,  so  far  as  respects  the  end  sought,  the  conspiracy 
does  not  seem  to  have  been  illegal. 

The  next  question  is  whether  there  is  anything  unlawful  or  wrong- 
ful in  the  means  used,  as  applied  to  the  acts  in  question.  Nothing 
need  be  said  in  support  of  the  general  right  to  compete.  To  what  ex- 
tent combination  may  be  allowed  in  competition  is  a  matter  about 
which  there  is  as  yet  much  conflict,  but  it  is  possible  that,  in  a  more 
advanced  stage  of  the  discussion,  the  day  may  come  when  it  will  be 
more  clearly  seen,  and  will  more  distinctly  appear  in  the  adjudication 
of  the  courts,  than  as  yet  has  been  the  case,  that  the  proposition  that, 
what  one  man  lawfully  can  do  any  number  of  men,  acting  together 
by  combined  agreement  lawfully  may  do,  is  to  be  received  with  newly 
disclosed  qualifications,  arising  out  of  the  changed  conditions  of  civil- 
ized life  and  of  the  increased  facility  and  power  of  organized  combina- 
tion, and  that  the  difference  between  the  power  of  individuals,  acting 
each  according  to  his  own  preference,  and  that  of  an  organized  and  ex- 
tensive combination,  may  be  so  great  in  its  effect  upon  public  and 
private  interests  as  to  cease  to  be  simply  one  of  degree,  and  to  reach 
the  dignity  of  a  difference  in  kind.  Indeed,  in  the  language  of  Bowen, 
L.  J.,  in  the  Mogul  Steamship  Case  ubi  supra  (page  616) :  "Of  the 
general  proposition  that  certain  kinds  of  conduct  not  criminal  in  one 
individual  may  become  criminal  if  done  by  combination  among  several, 
there  can  be  no  doubt.  The  distinction  is  based  on  sound  reason,  for 
a  combination  may  make  oppressive  or  dangerous  that  which,  if  it 
proceeded  only  from  a  single  person,  would  be  otherv\dse;  and  the 
very  fact  of  the  combination  may  show  that  the  object  is  simply  to  do 
harm,  and  not  to  exercise  one's  own  just  rights."  See,  also,  opinion 
of  Stirling,  L.  J.,  in  Giblan  v.  National  Amalgamated  Labourers'  Un- 
ion, [1903]  2  K.  B.  600,  621.  Speaking  generally,  however,  competition 
in  business  is  permitted  although  frequently  disastrous  lo  those  en- 
gaged in  it.  It  is  always  selfish,  often  sharp,  and  sometimes  deadly. 
Conspicuous  illustrations  of  the  destructive  extent  to  which  it  may  be 
carried  are  to  be  found  in  the  Mogul  Steamship  Case,  above  cited, 
and  in  Bowen  v.  Matheson,  14  Allen,  499.  The  fact,  therefore,  that 
the  plaintiff  was  vanquished  is  not  enough,  provided  that  the  contest 
was  carried  on  within  the  rules  allowable  in  such  warfare.  It  is  a 
right  however,  which  is  to  be  exercised  with  reference  to  the  existence 
of  a  similar  right  on  the  part  of  others.  The  trader  has  not  a  free 
lance.  He  may  fight,  but  as  a  soldier,  not  as  a  guerilla.  The  right  of 
competition  rests  upon  the  doctrine  that  the  interests  of  the  great  pub- 
lic are  best  subserved  by  permitting  the  general  and  natural  laws  of 
business  to  have  their  full  and  free  operation,  and  that  this  end  is  best 
attained  when  the  trader  is  allowed,  in  his  business,  to  make  free  use 
of  these  laws.  He  may  praise  his  wares,  may  oft'er  more  advantageous 
terms  than  his  rival,  may  sell  at  less  than  cost,  or  in  the  words  of 


1S26  TORTS  THROUGH   ACTS   OF  CONDITIONAL   LIABILITY        (Part  3 

Bowen,  L.  J.,  in  the  Mogul  Steamship  Case,  ubi  supra,  may  adopt  "the 
expedient  of  sowing  one  year  a  crop  of  apparently  unfruitful  prices, 
in  order,  by  driving  competition  away  to  reaHze  a  fuller  harvest  of 
profit  in  the  future."  In  these  and  many  other  obvious  ways  he  may 
secure  the  customers  of  his  rival,  and  build  up  his  own  business  to  the 
destruction  of  that  of  others ;  and,  so  long  as  he  keeps  within  the  oper- 
ation of  the  laws  of  trade,  his  justification  is  complete.  But  from  the 
very  nature  of  the  case,  it  is  manifest  that  the  right  of  competition 
furnishes  no  justification  for  an  act  done  by  the  use  of  means  which 
in  their  nature  are  in  violation  of  the  principle  upon  which  it  rests.  The 
w^eapons  used  by  the  trader  who  relies  upon  this  right  for  justifica- 
tion must  be  those  furnished  by  the  laws  of  trade,  or  at  least  must 
not  be  inconsistent  with  their  free  operation.  No  man  can  justify  an 
interference  with  another  man's  business  through  fraud  or  misrepre- 
sentation, nor  by  intimidation,  obstruction,  or  molestation.  In  the  case 
before  us  the  members  of  the  association  were  to  be  held  to  the  policy 
of  refusing  to  trade  with  the  plaintiff  by  the  imposition  of  heavy  fines, 
or,  in  other  words,  they  were  coerced  by  actual  or  threatened  injury 
to  their  property.  It  is  true  that  one  may  leave  the  association  if  he 
desires,  but,  if  he  stays  in  it,  he  is  subjected  to  the  coercive  effect  of 
a  fine  to  be  determined  and  enforced  by  the  majority.  This  method 
of  procedure  is  arbitrary  and  artificial,  and  is  based  in  no  respect  upon 
the  grounds  upon  which  competition  in  business  is  permitted,  but,  on 
the  contrary,  it  creates  a  motive  for  business  action  inconsistent  with 
that  freedom  of  choice  out  of  which  springs  the  benefit  of  competition 
to  the  public,  and  has  no  natural  or  logical  relation  to  the  grounds  up- 
on which  the  right  to  compete  is  based.  Such  a  method  of  influenc- 
ing a  person  may  be  coercive  and  illegal.  Carew  v.  Rutherford,  106 
Mass.  1,  8  Am.  Rep.  287. 

Nor  is  the  nature  of  the  coercion  changed  by  the  fact  that  the  per- 
sons fined  were  members  of  the  association.  The  words  of  Munson, 
J.,  in  Boutwell  v.  Marr,  71  Vt.  1,  9,  42  Atl.  607,  609,  43  L.  R.  A.  803,  76 
Am.  St.  Rep.  746,  are  applicable  here :  "The  law  cannot  be  compelled, 
by  any  initial  agreement  of  an  associate  member,  to  treat  him  as  one 
having  no  choice  but  that  of  the  majority,  nor  as  a  willing  participant 
in  whatever  action  may  be  taken.  The  voluntary  acceptance  of  by-laws 
providing  for  the  imposition  of  coercive  fines  does  not  make  them  le- 
gal and  collectible,  and  the  standing  threat  of  their  imposition  may 
properly  be  classed  with  the  ordinary  threat  of  suits  upon  groundless 
claims.  The  fact  that  the  relations  and  processes  deemed  essential  to  a 
recovery  are  brought  within  the  membership  and  proceedings  of  an 
organized  body  cannot  change  the  result.  The  law  sees  in  the  member- 
ship of  an  association  of  this  character  both  the  authors  of  its  coercive 
system  and  the  victim  of  its  unlawful  pressure.  If  this  were  not  so, 
men  could  deprive  their  fellows  of  established  rights  and  evade  the 
duty  of  compensation  simply  by  working  through  an  association." 


Ch.  2)  TORTS   THROUGH   MALICE  1327 

In  view  of  the  considerations  upon  which  the  right  of  competition 
is  based  we  are  of  opinion  that  as  against  the  plaintiff  the  defendants 
have  failed  to  show  that  the  coercion  or  intimidation  of  the  plaintiff's 
customers  by  means  of  a  fine  is  justified  by  the  law  of  competition. 
The  ground  of  the  justification  is  not  broad  enough  to  cover  the  acts 
of  interference  in  their  entirety,  and  the  interference,  being  injurious 
and  unjustifiable,  is  unlawful.  We  do  not  mean  to  be  understood  as 
saying  that  a  fine  is  of  itself  necessarily,  or  even  generally,  an  illegal 
implement.  In  many  cases  it  is  so  slight  as  not  to  be  coercive  in  its 
nature ;  in  many  it  serves  a  useful  purpose  to  call  the  attention  of  a 
member  of  an  organization  to  the  fact  of  the  infraction  of  some  inno- 
cent regulation ;  and,  in  many,  it  serves  as  an  extra  incentive  to  the 
performance  of  some  absolute  duty  or  the  assertion  of  some  absolute 
right.  But  where,  as  in  the  case  before  us,  the  fine  is  so  large  as  to 
amount  to  moral  intimidation  or  coercion,  and  is  used  as  a  means  to  en- 
force a  right  not  absolute  in  its  nature,  but  conditional,  and  is  inconsist- 
ent with  those  conditions  upon  which  the  right  rests,  then  the  coercion 
becomes  unjustifiable,  and  taints  with  illegality  the  act. 

The  defendants  strongly  rely  upon  Bowen  v.  Matheson,  14  Allen, 
499;  Mogul  Steamship  Co.  v.  McGregor  [1892]  A.  C.  25;  Bohn  Mfg. 
Co.  V.  Hollis,  54  Minn.  223,  55  N.  W.  1119,  21  L.  R.  A.  337,  40  Am.  St. 
Rep.  319;  Macauley  Bros.  v.  Tierney,  19  R.  I.  255,  33  Atl.  1,  Z7  L.  R. 
A.  455,  61  Am.  St.  Rep.  770;  and  Cote  v.  Murphy,  159  Pa.  420,  28 
Atl.  190,  23  L.  R.  A.  135,  39  Am.  St.  Rep.  686.  In  none  of  these  cases 
was  there  any  coercion  by  means  of  fines  upon  those  who  traded  with 
the  plaintiff.  Inducements  were  held  out,  but  they  were  such  as  are 
naturally  incident  to  competition — for  instance,  more  advantageous 
terms  in  the  way  of  discounts,  increased  trade,  and  otherwise.  In  the 
Minnesota  case  there  was  among  the  rules  of  the  association  a  clause 
requiring  the  plaintiff  to  pay  10  per  cent.,  but  tlie  propriety  or  the  le- 
gality of  that  provision  was  not  involved.  In  Bowen  v.  Matheson,  it 
is  true  that  the  by-laws  provided  for  a  fine,  but  the  declaration  did  not 
charge  that  any  coercion  by  means  of  a  fine  had  been  used.  A  demur- 
rer to  the  declaration  was  sustained  upon  the  ground  that  there  was  no 
sufficient  allegation  of  an  illegal  act.  The  only  allegation  which  need 
be  noticed  here  was  that  the  defendants  "did  prevent  men  from  ship- 
ping with"  the  plaintiff,  and  as  to  this  the  court  said :  "This  might  be 
done  in  many  ways  which  are  legal  and  proper  and,  as  no  illegal  meth- 
ods are  stated,  the  allegation  is  bad."  This  comes  far  short  of  sus- 
taining the  defendants  in  their  course  of  coercion  by  means  of  fines. 

For  the  reasons  above  stated,  a  majority  of  the  court  are  of  opinion 
that  the  case  should  have  been  submitted  to  the  jury.  Exceptions  sus- 
tained.^^ 

*2  Part  of  the  opinion  is  omitted. 


1328  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 


CHAMBERS  et  al.  v.  BALDWIN. 

(Court  of  Appeals  of  Kentucky,  1S91.    91  Ky.  121,  15  S.  W.  57,  11  L.  R.  A.  545, 

34  Am.  St.  Rep.  165.) 

Appeal  by  the  plaintiffs  below  from  a  judgment  sustaining  a  demur- 
rer to  their  petition.  The  cause  of  action  as  stated  in  this  petition 
was  substantially  as  follows : 

That,  as  partners  doing  business  under  the  firm  name  of  Chambers  &  Mar- 
shall, they  made  a  contract  with  one  Wise,  whereby  he  sold,  and  agreed  to 
deliver  to  them  in  good  order  during  delivery  season  of  1877,  his  half  of  a 
crop  of  tobacco,  then  undivided,  which  he  had  raised  on  shares  upon  the 
farm  of  appellee ;  in  consideration  whereof  they  promised  to  pay  on  delivery 
at  the  rate  of  five  cents  per  pound.  That  they  were  ready,  able,  and  willing 
to  receive  and  pay  for  the  tobacco  as  and  at  the  time  agreed  on,  and  demanded 
of  him  compliance  with  the  contract;  but  he  had  already  delivered  it  to  ap- 
pellee and  Newton  Cooper,  tobacco  dealers,  and  then  notified  appellants  he 
would  not  deliver  it  to  them,  and  they  might  treat  the  contract  as  broken  and 
at  an  end.  That  appellee  knew  of  the  existence  of  said  contract,  but  mali- 
ciously, on  account  of  his  personal  ill  will  to  Chambers,  one  of  appellants,  and 
with  design  to  injure  by  depriving  them  of  profit  on  their  purchase,  and  to 
benefit  himself  by  becoming  purchaser  in  their  stead,  advised  and  procured 
Wise,  who  would  else  have  kept  and  performed,  to  break  the  contract,  where- 
by they  have  been  damaged  $ .    Tliat  he  (Wise)  was  at  the  time  known 

by  appellee  to  be,  and  now  is,  insolvent;   so,  being  without  other  redress,  they 
bring  this  action. 

Ldwis,  J.,  after  stating  the  substance  of  the  petition.  Appellee  is 
alleged  to  have  been  actuated  to  do  the  act  complained  of  by  ill  will 
to  one  of  appellants  only,  which,  however,  to  avoid  confusion  we  will 
treat  as  a  malicious  intent  to  injure  both;  and  also  by  a  design  to 
benefit  himself  by  becoming  purchaser  of  the  tobacco  for  the  firm  of 
which  he  was  a  member.  And  thus  two  questions  of  law  arise  on  de- 
murrer to  the  petition :  First,  whether  one  party  to  a  contract  can 
maintain  an  action  against  a  person  who  has  maliciously  advised  and 
procured  the  other  party  to  break  it;  second,  whether  an  act  lawful 
in  itself  can  become  actionable  solely  because  it  was  done  maliciously. 

As  appellee,  being  no  party  to  the  contract,  did  not,  nor  could,  him- 
self break  it,  his  wrong,  if  any,  was  in  advising  and  procuring  the 
equivalent  of  canceling,  and  inducing  Wise  to  do  so.  Consequently, 
while  the  remedy  of  appellants  against  him  (Wise)  was  by  action  ex 
contractu,  recovery  being  limited  to  actual  damage  sustained,  their  ac- 
tion against  appellee  is,  and  could  be,  in  no  other  than  in  form  ex  de- 
licto; recovery,  if  any  at  all,  not  being  so  limited.  Nevertheless,  in 
Addison  on  Torts  (volume  1,  p.  37)  it  is  said:  "Maliciously  inducing 
a  party  to  a  contract  to  break  his  contract,  to  the  injury  of  the  person 
with  whom  the  contract  was  made,  creates  that  conjunction  of  wrong 
and  damage  which  supports  an  action."  The  authority  cited  in  sup- 
port of  the  proposition  thus  stated,  without  qualification,  is  the  Eng- 
lish case  of  Lumley  v.  Gye,  2  El.  &  Bl.  228,  decided  in  1853,  followed 
by  Bowen  v.  Ilall^  decided  in  1881,  and  reported  in  20  Amer.  Law  Reg. 
(N.  S.)  578,  though  it  is  proper  to  say  there  was  a  dissenting  opinion 


Cll.  2)  TORTS  THROUGH  MALICE  1329 

in  each  case.  The  action  of  Lumley  v.  Gye  was  in  tort,  the  complaint 
being  that  the  defendant  mahciously  enticed  and  procured  a  person, 
under  a  binding  contract  to  perform  at  plaintiff's  theater,  to  refuse  to 
perform,  and  abandon  the  contract  The  majority  of  judges  held,  and 
the  case  was  decided  upon  the  theory,  that  remedies  given  by  the  com- 
mon law  in  such  cases  are  not  in  terms  limited  to  any  description  of 
servants  or  service ;  and  the  action  could  be  maintained  upon  the  prin- 
ciple, laid  own  in  Comyn's  Digest,  that,  "in  all  cases  wdiere  a  man  has 
a  temporal  loss  or  damage  by  the  wrong  of  another,  he  may  have  an 
action  upon  tlie  case  to  be  repaired  in  damages."  The  position  of 
Justice  Coleridge  was  to  the  contrary, — that,  as  between  master  and 
servant,  there  was  an  admitted  exception  to  the  general  rule  of  the 
common  law  confining  remedies  by  action  to  the  contracting  parties, 
dating  from  the  statute  of  laborers,  passed  in  25  Edw.  III.,  and  both 
on  principle  and  authority  limited  by  it;  and  that  "the  existence  of 
intention,  that  is,  malice,  will  in  some  cases  be  an  essential  ingredient 
in  order  to  constitute  the  wrongfulness  or  injurious  nature  of  the  act; 
but  it  will  neither  supply  the  want  of  the  act  itself,  or  its  hurtful  con- 
sequences." 

We  have  been  referred  to  some  American  cases  as  being  in  harmony 
with  the  two  cases  mentioned.  In  Walker  v.  Cronin,  107  Mass.  555, 
it  was  held  that  where  a  contract  exists  by  which  a  person  has  a  legal 
right  to  continuance  of  service  of  workmen  in  business  of  manufactur- 
ing boots  and  shoes,  and  another  knowingly  and  intentionally  procures 
it  to  be  violated,  he  may  be  held  liable  for  the  wrong,  although  he 
did  it  for  the  purpose  of  promoting  his  own  business.  But  it  was 
not  alleged  the  defendant  in  that  case  had  any  such  purpose  in  pro- 
curing the  persons  to  leave  and  abandon  the  employment  of  the  plain- 
tiff; the  real  grievance  complained  of  being  damage  by  the  wanton 
and  malicious  act  of  defendant  and  others.  In  Haskins  v.  Royster,  70 
N.  C.  601,  16  Am.  Rep.  780,  it  was  held  that  if  a  person  maliciously, 
entices  laborers  or  croppers  on  a  farm  to  break  their  contract,  and  de- 
sert the  service  of  their  employer,  damages  may  be  recovered  against 
him.  But  both  those  cases  relate  to  rights  and  duties  growing  out  of 
the  relation  of  employer  and  persons  agreeing  to  do  labor  and  per- 
sonal service,  and  do  not  apply  here,  except  so  far  as  the  decisions  rest 
upon  other  grounds  than  the  statute  of  laborers.  In  Jones  v.  Stanly, 
76  N.  C.  355,  it  was,  however,  held  that  the  same  reasons  which  con- 
trolled the  decisions  rendered  in  Haskins  v.  Royster  "cover  every  case 
in  which  one  person  maliciously  persuades  another  to  break  any  con- 
tract with  a  third  person.  It  is  not  confined  to  contracts  for  service." 
But  we  have  not  seen  any  other  case  in  which  the  doctrine  is  stated  so 
broadly.  Chesley  v.  King,  74  Me.  164,  43  Am.  Rep.  569,  we  do  not 
regard  at  all  decisive,  because  the  court  went  no  further  than  to  say 
they  were  inclined  to  the  view  that  there  may  be  cases  where  an  act, 
otherwise  lawful,  when  done  for  the  sole  purpose  of  damage  to  a  per- 
Hepb.Torts — 84 


1330  TORTS  THROUGH  ACTS  OP  CONDITIONAL  LIABILITY        (Part  3 

son,  without  design  to  benefit  the  doer  or  others,  may  be  an  invasion 
of  the  legal  rights  of  such  person.  Cooley  on  Torts,  497,  agreeing 
with  Justice  Coleridge,  says :  "An  action  cannot,  in  general,  be  main- 
tained for  inducing  a  third  person  to  break  his  contract  with  the  plain- 
tiff ;  the  consequence,  after  all,  being  only  a  broken  contract,  for  which 
the  party  to  the  contract  may  have  his  remedy  by  suing  upon  it." 
And  it  seems  to  us  that  the  rule  harmonizes  with  both  principle  and 
policy,  and  to  it  there  can  be  safely  and  consistently  made  but  two 
classes  of  exception ;  for,  as  to  make  a  contract  binding,  the  parties 
must  be  competent  to  contract  and  do  so  freely,  the  natural  and  rea- 
sonable presumption  is  that  each  party  enters  into  it  with  his  eyes  open, 
and  purpose  and  expectation  of  looking  alone  to  the  other  for  redress 
in  case  of  breach  by  him.  One  such  exception  was  made  by  the  Eng- 
lish statute  of  laborers  to  apply  where  apprentices,  menial  servants, 
and  others,  whose  sole  means  of  living  was  manual  labor,  were  en- 
ticed to  leave  their  employment,  and  may  be  applied  in  this  state  in 
virtue  of  and  as  regulated  by  our  own  statutes.  The  other  arises 
where  a  person  has  been  procured  against  his  will,  or  contrary  to 
his  purpose,  by  coercion  or  deception  of  another  to  break  his  contract. 
Green  v.  Button,  2  Cromp.  M.  &  R.  707;  Ashley  v.  Dixon,  48  N. 
Y.  430,  8  Am.  Rep.  559.  But  as  Wise  was  not  induced  by  either  force 
or  fraud  to  break  the  contract  in  question,  it  must  be  regarded  as 
having  been  done  of  his  own  will,  and  for  his  own  benefit.  And  his 
voluntary  and  distinct  act,  not  that  of  appellee,  being  the  proximate 
cause  of  damage  to  appellants,  they,  according  to  a  familiar  and  rea- 
sonable principle  of  law,  cannot  seek  redress  elsewhere  than  from 
him. 

That  an  action  on  the  case  will  lie  whenever  there  is.  concurrence 
of  actual  damage  to  the  plaintiff,  and  wrongful  act  by  the  defendant, 
is  a  truism,  yet,  unexplained,  misleading.  The  act  must  not  only  be 
the  direct  cause  of  the  damage,  but  a  legal  wrong,  else  it  is  damnum 
absque  injuria.  But  whether  a  legal  wrong  has  been  done  for  which 
the  law  affords  reparation  in  damages  depends  upon  the  nature  of  the 
act,  and  cannot  be  consistently  or  fitly  made  to  depend  upon  the  mo- 
tive of  the  person  doing  it;  for  an  act  may  be  tortious,  and  conse- 
quently actionable,  though  not  malicious,  nor  even  willful.  If  it  was 
not  so,  there  could  be  no  reparation  for  an  act  of  pure  negligence, 
though  ever  so  hurtful  in  its  effects.  And  it  is  just  as  plain  that  an 
act  which  does  not  of  itself  amount  to  a  legal  wrong,  without,  cannot 
be  made  so  by  a  bad  motive  accompanying  it ;  for  there  is  no  logical 
process  by  which  a  lawful  act,  done  in  a  lawful  way,  can  be  trans- 
formed or  not  into  a  legal  wrong  according  to  the  motive,  bad  or 
good,  actuating  the  person  doing  it.  The  proposition  is  clearly  and 
forcibly  stated  in  Jenkins  v.  Fowler,  24  Pa.  308,  as  follows :  "Ma- 
licious motives  make  a  bad  case  worse,  but  they  cannot  make  that 
wrong  which  in  its  own  essence  is  lawful.  Where  a  creditor  who  ha.s 
a*  just  debt  brings  a  suit  or  issues  execution,  though  he  does  it  out  of 


Ch.  2)  TORTS  THROUGH   MALICE  1331 

pure  enmity  to  the  debtor,  he  is  safe.  In  slander,  if  the  defendant 
proves  the  words  spoken  to  be  true,  his  intention  to  injure  the  plain- 
tiff by  proclaiming  his  infamy  will  not  defeat  justification.  One  who 
prosecutes  another  for  a  crime  need  not  show  he  was  actuated  by  cor- 
rect feelings,  if  he  can  prove  that  there  was  good  reason  to  believe  the 
charge  was  well  founded.  In  short,  any  transaction  which  would  be 
lawful  if  the  parties  were  friends  cannot  be  made  the  foundation  of 
an  action  merely  because  they  happen  to  be  enemies.  As  long  as  a 
man  keeps  himself  within  the  law  by  doing  no  act  which  violates  it,  we 
must  leave  his  motives  to  Him  who  searches  hearts."  In  Frazier  v. 
Brown,  12  Ohio  St.  294,  the  cause  of  action  stated  was  diversion,  with 
malicious  intent,  by  the  defendant  of  subterraneous  water  on  his  own 
land  from  adjoining  land  of  the  plaintiff;  but  it  was  held  there  could 
be  no  recovery,  because,  as  said  by  the  court,  "the  act  done,  to  wit,  the 
using  of  one's  own  property,  being  lawful  in  itself,  the  motive  with 
which  it  is  done, — whatever  it  may  be  as  a  matter  of  conscience, — 
is,  in  law  a  matter  of  indifference."  In  Chatfield  v.  Wilson,  28  Vt. 
49,  the  action  was  for  the  same  cause  substantially,  and  the  language 
of  the  court  was :  "An  act  legal  in  itself,  and  which  violates  no  right, 
cannot  be  made  actionable  on  account  of  the  motive  which  induced 
it."  In  Mahan  v.  Brown,  13  Wend.  (N.  Y.)  261,  28  Am.  Dec.  461, 
the  complaint  was  that  the  defendant  wantonly  and  maliciously  erected 
on  his  own  premises  a  high  fence  near  to  and  in  front  of  plaintiff's 
window,  without  benefit  to  himself,  and  for  the  sole  purpose  of  an- 
noying the  plaintiff,  thereby  rendering  her  house  uninhabitable.  But 
it  was  held  the  action  would  not  lie,  because,  no  legal  right  of  the 
plaintiff  having  been  injured,  the  defendant  had  not  so  used  his  prop- 
erty as  to  injure  another,  and,  whether  his  motive  was  good  or  bad, 
she  had  no  legal  cause  of  complaint.  To  the  same  effect  is  the  de- 
cided weight  of  authority  in  the  United  States.  Adler  v.  Fenton,  24 
How.  412,  16  L.  Ed.  696;  Phelps  v.  Nowlen,  72  N.  Y.  39,  28  Am. 
Rep.  93;  Benjamin  v.  Wheeler,  8  Gray  (Mass.)  410;  Iron  Co.  v. 
Uhler,  75  Pa.  467,  15  Am.  Rep.  599;  Plank-Road  Co.  v.  Douglass,  9 
N.  Y.  444. 

Upon  neither  principle  nor  authority  could  this  action  have  been 
maintained  if  the  same  thing  it  is  complained  appellee  did  had  been 
done  by  a  person  on  friendly  terms  with  appellant  Chambers,  or  by  a 
stranger,  though  he  might  have  profited  by  the  purchase  to  the  damage 
of  appellants ;  for  competition  in  every  branch  of  business  being  not 
only  lawful,  but  necessary  and  proper,  no  person  should,  or  can  upon 
principle,  be  made  liable  in  damages  for  buying  what  may  be  freely 
offered  for  sale  by  a  person  having  the  right  to  sell,  if  done  without 
fraud,  merely  because  there  may  be  a  pre-existing  contract  between 
the  seller  and  a  rival  in  business,  for  a  breach  of  which  each  party 
may  have  his  legal  remedy  against  the  other.  Nor,  the  right  to  buy 
existing,  should  it  make  any  difference,  in  a  legal  aspect,  what  motive 


1332  TORTS  THROUGH  ACTS  OF   CONDITIONAL  LIABILITY        (Part  3 

influenced  the  purchaser.  Competition  frequently  engenders,  not  only 
a  spirit  of  rivalry,  but  enmity;  and,  if  the  motive  influencing  every 
business  transaction  that  may  result  in  injury  or  inconvenience  to  a 
business  rival  was  made  the  test  of  its  legality,  litigation  and  strife 
would  be  vexatiously  and  unnecessarily  increased,  and  the  sale  and  ex- 
change of  commodities  very  much  hindered.  As  pertinently  inquired 
in  Plank-Road  Co.  v.  Douglass,  "Independently  of  authority,  if  malig- 
nant motive  is  sufiicient  to  make  a  man's  dealings  with  his  own  prop- 
erty, when  accompanied  by  damage  to  another,  actionable,  where  is 
this  principle  to  stop?"  And  as  correctly  said  by  Lord  Coleridge  in 
Bowen  v.  Hall :  "The  inquiries  to  which  this  view  of  the  law  [making 
an  act  lawful  or  not  according  to  motive]  would  lead,  are  dangerous 
and  inexpedient  inquiries  for  courts  of  justice.  Judges  are  not  very 
fit  for  them,  and  juries  are  very  unfit." 

In  our  opinion,  no  cause  of  action  is  stated  in  the  petition,  and  the 
demurrer  was  properly  sustained.    Judgment  aflirmed.*^ 


BITTERMAN  v.  LOUISVILLE  &  N.  R.  CO. 

(Supreme  Court  of  the  United  States,  1907.    207  U.  S.  205,  28  Sup.  Ct.  91, 
52  L.  Ed.  171,  12  Ann.  Cas.  693.) 

Upon  a  bill  filed  on  behalf  of  the  Louisville  &  Nashville  Railroad 
Company,  the  circuit  court  of  the  United  States  for  the  eastern  dis- 
trict of  Louisiana  entered  a  decree  perpetually  enjoining  Bitterman 
and  four  other  ticket  brokers,  engaged  in  business  in  the  city  of  New 
Orleans,  from  dealing  in  nontransferable  round-trip  tickets  issued  at 
reduced  rates  for  passage  over  the  lines  of  railway  of  the  complain- 
ant on  account  of  the  United  Confederate  Veterans'  Reunion  and  the 
Mardi  Gras  celebration  held  in  the  city  of  New  Orleans  in  the  years 
1903  and  19CM-,  respectively.  On  an  appeal  prosecuted  by  the  railroad 
company,  complaining  of  the  limited  relief  awarded,  the  circuit  court 
of  appeals  held  that  the  defendants  should  also  be  enjoined  generally 
from  dealing  in  nontransferable  round-trip  reduced-rate  tickets  when- 
ever issued  by  the  complainant,  and  ordered  the  cause  to  be  remanded 
to  the  circuit  court  with  directions  to  enter  a  decree  in  accordance  with 
the  views  expressed  in  the  opinion.  75  C.  C.  A.  192,  144  Fed.  34. 
A  writ  of  certiorari  was  thereupon  allowed. 

It  was  averred  in  the  bill  that  complainant  was  a  Kentucky  cor- 
poration, operating  about  3,000  miles  of  railway  for  the  carriage  of 
passengers,  baggage,  mail,  express,  and  freight,  its  lines  of  road  ex- 
tending from  New  Orleans  through  various  states,  and  making  con- 
nections by  which  it  reached  all  railroad  stations  in  the  LTnited  States, 
Canada,  and  Mexico.  The  persons  named  as  defendants  were  averred 
to  be  citizens  and  residents  of  Louisiana,  each  engaged  in  the  city  of 

*3  Accord,  Boyson  v.  Thorn  (1893)  98  Cal.  578,  33  Pac.  492,  21  L.  R.  A.  233. 


Ch.  2)  TORTS  THROUGH  MALICE  1333 

New  Orleans  as  a  ticket  broker  or  scalper  in  the  business  of  buying 
and  selling  the  unused  return  portions  of  railroad  passenger  tickets, 
especially  excursion  or  special-rate  tickets  issued  on  occasions  of  fairs, 
expositions,  conventions,  and  the  like.  It  was  further  averred  that  the 
defendants  were  joined  in  the  bill,  "because  their  business  and  trans- 
actions complained  of  are  in  act,  purpose,  and  effect  identical,  and  in 
order  to  prevent  a  multiplicity  of  suits,  the  same  relief  being  sought  as 
to  each  and  all  of  them." 

Six  articles  or  paragraphs  of  the  bill  related  to  an  approaching  re- 
union of  United  Confederate  Veterans  to  be  held  in  the  city  of  New 
Orleans,  which  it  was  expected  would  necessitate  the  transportation 
by  the  railroads  entering  New  Orleans  of  100,000  visitors,  one  fourth 
of  which  number  would  pass  over  the  lines  of  railway  of  the  com- 
plainant. A  necessity  was  alleged  to  exist  for  special  reduced  rates 
of  fare  to  secure  a  large  attendance  at  such  reunion,  and  it  was  averred 
that  a  rate  of  1  cent  a  mile,  one-third  the  regular  rate,  had  been  agreed 
upon  for  nontransferable  round-trip,  reduced-rate  tickets  which  were 
to  be  issued  for  the  occasion,  and  it  was  stated  "that  among  the  condi- 
tions on  the  face  of  said  ticket,  which  ticket  contract  is  signed  by  the 
original  purchaser  and  the  company,  is  one  that  said  ticket  is  non- 
transferable, and,  if  presented  by  any  other  than  the  original  purchaser, 
who  is  required  to  sign  the  same  at  date  of  purchase,  it  will  not  be 
honored,  but  will  be  forfeited,  and  any  agent  or  conductor  of  any  of 
the  lines  over  which  it  reads  shall  have  the  right  to  take  up  and  can- 
cel the  entire  ticket."  And  for  various  alleged  reasons,  based  mainly 
upon  the  large  number  of  expected  purchasers,  it  was  averred  that  the 
return  portion  of  each  ticket  was  not  required  to  be  signed  by  the 
original  purchaser  or  presented  to  an  agent  of  the  complainant  in  the 
city  of  New  Orleans  for  the  purpose  of  the  identification  of  the  holder 
as  the  purchaser  of  the  ticket. 

It  was  averred  that  each  defendant  was  accustomed  to  buy  and  sell 
the  return  coupons  of  nontransferable  tickets,  for  the  express  purpose, 
and  no  other,  of  putting  them  in  the  hands  of  purchasers,  to  be  fraud- 
ulently used  for  passage  on  the  trains  of  complainant,  and  it  was  fur- 
ther averred  that  the  defendants  intended  in  like  manner  to  fraudu- 
lently deal  in  the  return  portion  of  the  tickets  about  to  be  issued  for 
the  reunion  in  question,  and  that  complainant  would  sustain  irreparable 
injury,  for  which  it  would  have  no  adequate  remedy  at  law,  unless  it 
was  protected  from  such  wrongful  acts. 

AIr.  Justice;  White;,  after  stating  the  case,  delivered  the  opinion 
of  the  court.  *  *  *  That  the  complainant  had  the  lawful  right 
to  sell  nontransferable  tickets  of  the  character  alleged  in  the  bill  at  re- 
duced rates  we  think  is  not  open  to  controversy,  and  that  the  condi- 
tion of  nontransferability  and  forfeiture  embodied  in  such  tickets  was 
not  only  binding  upon  the  original  purchaser,  but  upon  anyone  who  ac- 
quired such  a  ticket  and  attempted  to  use  the  same  in  violation  of  its 
terms,  is  also  settled.    Mosher  v.  St.  Louis,  I.  M.  &  S.  R.  Co.,  127  U. 


1334  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

S.  390,  32  L.  Ed.  249,  8  Sup.  Ct.  1324.  See  also  Boylan  v.  Hot 
Springs  R.  Co.,  132  U.  S.  146,  33  L.  Ed.  290,  10  Sup.  Ct.  50.  *  *  * 
Any  third  person  acquiring  a  nontransferable  reduced-rate  railroad 
ticket  from  the  original  purcliaser,  being  therefore  bound  by  the  clause 
forbidding  transfer,  and  the  ticket  in  the  hands  o.f  all  such  persons 
being  subject  to  forfeiture  on  an  attempt  being  made  to  use  the  same 
for  passage,  it  may  well  be  questioned  whether  the  purchaser  of  such 
ticket  acquired  anything  more  than  a  limited  and  qualified  owner- 
ship thereof,  and  whether  the  carrier  did  not,  for  the  purpose  of  en- 
forcing the  forfeiture,  retain  a  subordinate  interest  in  the  ticket, 
amounting  to  a  right  of  property  therein,  which  a  court  of  equity 
would  protect.  Board  of  Trade  v.  Christie  Grain  &  Stock  Col,  198 
U.  S.  236,  49  L.  Ed.  1031,  25  Sup.  Ct.  637,  and  authorities  there  cited. 
See  also  Sperry  &  H.  Co.  v.  Mechanics'  Clothing  Co.  (C.  C.)  128  Fed. 
800. 

We  pass  this  question,  however,  because  the  want  of  merit  in  the 
contention  that  the  case  as  made  did  not  disclose  the  commission  oi  a 
legal  wrong  conclusively  results  from  a  previous  decision  of  this  court. 
The  case  is  Angle  v.  Chicago,  St.  P.,  M.  &  O.  R.  Co.,  151  U.  S.  1, 
38  L.  Ed.  55,  14  Sup.  Ct.  240,  where  it  was  held  that  an  actionable 
wrong  is  committed  by  one  ''who  maliciously  interferes  in  a  contract 
between  two  parties  and  induces  one  of  them  to  break  that  contract 
to  the  injury  of  the  other."  That  this  principle  embraces  a  case  like 
the  present,  that  is,  the  carrying  on  of  the  business  of  purchasing  and 
selling  nontransferable  reduced-rate  railroad  tickets  for  profit,  to  the 
injury  of  the  railroad  company  issuing  such  tickets,  is,  we  think  clear. 
It  is  not  necessary  that  the  ingredient  of  actual  malice,  in  the  sense 
of  personal  ill  will,  should  exist  to  bring  this  controversy  within  the 
doctrine  of  the  Angle  Case.  .  The  wanton  disregard  of  the  rights  of 
a  carrier,  causing  injury  to  it,  which  the  business  of  purchasing  and 
selling  nontransferable  reduced-rate  tickets  of  necessity  involved,  con- 
stitute legal  malice  within  the  doctrine  of  the  Angle  Case.  We  deem 
it  unnecessary  to  restate  the  grounds  upon  which  the  ruling  in  the 
Angle  Case  was  rested,  or  to  trace  the  evolution  of  the  principle  in 
that  case  announced,  because  of  the  consideration  given  to  the  subject 
in  the  Angle  Case  and  the  full  reference  to>  the  authorities  which  wa? 
made  in  the  opinion  in  that  case.     *     *     * 

Affirmed.** 

<4  The  statement  of  facts  is  abridged,  and  parts  of  the  opinion  are  omitted. 


Ch.  2)  TORTS  THROUGH   MALICB  1335 


NATIONAL  PHONOGRAPH  CO.,  Limited,  v.  EDISON-BELL 
CONSOLIDATED  PHONOGRAPH  CO.,  Limited. 

(Court  of  Appeal.    [190S]  1  Ch.  33,j.) 

The  plaintiffs  were  dealers  in  Edison  phonographs,  records,  and 
blanks.  To  secure  uniformity  of  price  and  prevent  their  business 
from  being  injured  by  any  dealer  cutting  prices,  the  plaintiffs  sold 
their  goods  only  upon  the  terms  of  two  printed  documents,  described 
as  the  "factor's  agreement"  and  "the  retail  dealer's  agreement"  appli- 
cable to  the  wholesale  and  the  retail  trade  respectively.  Both  the 
factor's  agreement  and  the  retail  dealer's  agreement  provided  that 
the  plaintift"'s  goods  should  not  be  sold  at  less  than  current  list  prices, 
or  to  dealers  on  the  plaintiff's'  suspended  list.  The  defendant  company 
dealt  in  phonographic  goods  and  wished  to  sell  the  plaintiffs'  mar 
chines.  The  plaintiffs,  however,  for  trade  reasons,  desired  to  pre- 
vent the  defendant  company  from  having  this  trade,  and  to  that  end 
placed  their  name  on  the  suspended  list.  The  defendant  company 
sought  to  frustrate  this  design  to  embarrass  them  in  their  business. 

In  1903  one  Ell,  a  dealer  in  phonographic  materials,  became  a  cus- 
tomer of  one  of  the  plaintiffs'  factors,  Simpson  &  Co.,  for  the  pur- 
pose of  obtaining  through  them  the  plaintiffs'  goods.  Simpson  &  Co., 
before  doing  business  with  EU,  required  him  to  sign  the  retail  deal- 
er's agreement,  which  he  accordingly  did.  Ell  was  also  a  customer 
of  the  defendant  company,  and  had  purchased  goods  from  them.  In 
1904  Ell,  as  the  result  of  an  interview  with  one  Presland,  an  employee 
of  the  defendant  company,  obtained  twenty-seven  of  the  plaintiffs' 
phonographs  from  Simpson  &  Co.,  and  supplied  them  through  Pres- 
land to  the  defendant  company.  Ell  paid  to  Simpson  &  Co.  the  pre- 
scribed factor's  price  for  the  machines  with  money  paid  to  him  by 
the  defendant  company,  making  no  profit  himself  out  of  the  trans- 
action. 

In  1904,  two  persons,  Hughes  and  Leach,  acting  on  behalf  of  and 
with  the  authority  of  the  defendant  company,  assumed  fictitious 
names,  and,  representing  falsely  that  they  were  independent  dealers  in 
phonographic  goods,  applied  to  wholesale  dealers  who  had  entered 
into  factors'  agreements  with  the  plaintiff's,  and,  having  signed  retail- 
ers' agreements  in  fictitious  names,  obtained  from  the  wholesale  deal- 
ers a  large  number  of  the  plaintiffs'  machines  with  the  usual  trade 
discounts.  These  machines  were  in  fact,  though  not  to  the  knowl- 
edge of  the  wholesale  dealers,  obtained  for  and  were  handed  over  to 
the  defendant  company. 

It  appeared  from  the  evidence  that  the  defendant' company  sold 
phonograph  records,  which  fitted  the  plaintiff's'  machines,  at  a 
cheaper  rate  than  the  records  sold  by  the  plaintiff's  (Is.,  as  against  Is. 
6d.),  and  that  records  were  a  better  paying  product  than  the  machines 
themselves.     It  was  stated  that  the  defendant  company  had  obtained 


133G  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

about  700  of  the  plaintiff's  machines.  The  plaintiffs  alleged  that  the 
acts  of  the  defendant  company  o<i  which  they  complained  had  caused 
them  great  injury  in  their  business.  No  direct  pecuniary  loss  was 
proved,  but  a  general  falling  off  of  business  was  shewn,  which,  it  was 
said,  was  due  to  the  fact  that  the  sale  of  the  plaintiffs'  machines  by 
the  defendant  company  caused  a  demand  for  the  records  of  the  de- 
fendant company  rather  than  for  those  of  the  plaintiffs,  whereas 
if  the  plaintiff's'  machines  could  only  be  obtained  by  the  public  from 
retailers  who  had  signed  the  plaintiff's'  retailer's  agreement,  the  re- 
tailers would  have  obtained  from  the  factors,  and  the  public  from  the 
retailers,  the  plaintiff's  records ;  it  was  also  said  that  persons  going  to 
the  defendant  company's  place  Oif  business  to  purchase  the  plaintiffs' 
machines  might  ultimately  be  induced  to  purchase  the  defendant  com- 
pany's machines  instead  of  the  plaintiff''s,  and  it  was  further  said  that 
the  plaintiffs'  business  would  be  injured  by  the  acts  of  the  defendant 
company,  because  if  retailers  saw  that  the  plaintiff's'  machines  were 
being  sold  by  the  defendant  company,  and  knew  that  the  defendant 
company  were  on  the  suspended  list,  the  retailers  would  think  that 
the  plaintiff's  were  incapable  of  maintaining  their  agreements,  and 
would  consequently  cease  to  stock  the  plaintiffs'  goods. 

In  respect  of  both  these  transactions — the  EH  transaction  and  the 
Hughes  and  Leach  transaction — the  plaintiffs  sued  for  an  injunction 
and  damages.  The  action  came  on  for  hearing  before  Joyce,  J.,  who 
held  that  it  failed  altogether,  and  dismissed  it  with  costs.  The  plain- 
tiffs appealed  to  the  Court  of  Appeal.*^ 

Kenneidy,  L.  J.,  read  the  following  judgment:  In  this  case  the 
plaintiffs'  claim  for  damages  and  an  injunction  is  based  upon  two  dis- 
tinct sets  of  circumstances,  with  which  I  will  deal  in  the  same  order 
as  that  in  which  they  have  been  dealt  with  in  the  judgment  appealed 
against.  The  real  defendant  is  the  defendant  company.  The  other 
defendants  are  practically  nominal  defendants  only.  The  plaintiffs 
deal  in  phonographs  and  phonographic  goods.  These  they  sell  to 
wholesale  traders,  whom  they  call  factors,  and  they  in  their  turn  re- 
sell to  retail  dealers.  The  plaintiffs  act  upon  a  system  of  restrictive 
and  exclusive  trading.  They  exact  from  the  factors  who  purchase  from 
them  an  agreement  not  to  sell  to  retail  dealers  except  for  certain  dis- 
counts which  the  plaintiffs  prescribe ;  not  to  sell  to  any  retail  dealers 
who  decline  to  sign  an  agreement  form  to  which  I  will  presently  refer ; 

<5  The  statement  of  facts  is  abridged,  and  the  armnnonts  of  counsel  are 
omitted. 

For  the  defendant  it  was  urged  by  Hughes,  K.  C,  and  J.  G.  Wood  that  "nei- 
ther Quinn  v.  Leathern  nor  South  Wales  ISIiners'  Federation  v.  Glamorgan  Coal 
Co.  has  anything  to  do  with  this  case.  In  the  former  there  was  a  conspiracy 
deliberately  to  injure,  and  in  the  latter  case  the  miners  were  induced  to  break 
their  contract  in  order  to  coerce  the  masters,  and  there  necessarily  was  loss  to 
the  masters.  With  regard  to  the  complaint  tlint  the  defendants  obtained  goods 
by  using  fictitious  names,  it  is  not  wrongful  or  a  tort  to  buy  goods  under  an 
ali;is.  The  only  result  is  that  the  seller's  malicious  intent  to  boycott  is  frus- 
trated." 


Ch.  2)  TORTS  THROUGH   MALICE  1337 

and  not  to  sell  to  any  person  whose  name  is  on  a  list  which  they  de- 
scribe as  "our  suspended  list,"  and  which,  although  it  is  in  the  agree- 
ment itself  only  stated  to  include  those  who  are  referred  to  in  the  sev- 
enth condition,  is  a  list  in  which  the  plaintiffs  include  the  name  of  any 
person  whom  they  choose  in  this  way  to  proscribe.  If  a  factor  fails 
to  observe  any  of  these  or  certain  further  stipulations  of  the  agree- 
ment, he  may  be  at  once  cut  off  from  any  further  supply  of  goods  and 
be  placed  on  the  suspended  list.  The  retail  dealer's  agreement,  which 
he  must  sign  and  give  to  the  factor  before  he  can  buy  from  the  fac- 
tor, purports  to  bind  the  retail  dealer  (inter  alia)  not  to  sell  to  any 
one  at  a  discount  or  at  less  than  current  list  prices,  or  to  any  dealer 
who  is  on  the  plaintiff's'  suspended  list.  If  a  retail  dealer  fails  to  ob- 
serve any  of  the  stipulations,  he  may  be  placed  by  the  plaintiffs  on 
their  suspended  list,  and  so  be  cut  off  from  any  further  supply  of 
goods.  The  justification  alleged  by  the  plaintiffs  for  this  system  con- 
sists, as  alleged  by  them,  in  the  maintenance  of  price  and  the  en- 
couragement to  hold  large  stocks  of  the  plaintiff's'  wares,  which  the 
assurance  of  this  is  said  to  aff'ord  to  factors  and  dealers.     *     *     *  ^e 

The  learned  judge  has  given  judgment  for  the  defendants  in  regard 
to  both  of  the  transactions. 

In  regard  to  the  first,  which  I  will  call  the  Ell  transaction,  he  has 
held,  first,  that  there  was  no  contract  existing  between  the  plaintiffs 
and  Ell  upon  which  the  plaintiff's  could  have  successfully  sued  Ell; 
secondly,  that  the  plaintiffs  failed  to  prove  that  the  defendant  com- 
pany or  Presland  directly  procured  or  incited  Ell  to  violate  the  con- 
tract, if  any  existed;  thirdly,  that,  if  any  contract  existed  between 
the  plaintiffs  and  Ell,  it  did  not  create  a  contractual  relation  between 
them  within  the  meaning  of  Lord  Macnaghten's  judgment  in  Quinn 
V.  Leathem,  [1901]  A.  C.  495;  and  fourthly,  that  the  plaintiff's  had 
failed  to  prove  the  real  and  actual  damage  which  was  essential  to  their 
case.  I  agree  with  Joyce,  J.,  as  to  the  first  of  tliese  grounds ;  as  to 
the  second,  which  is  one  of  fact,  I  should  be  slow  to  differ  from  the 
learned  judge  who  himself  heard  the  witnesses  give  their  testimony. 
If  either  of  these  conclusions  is  correct  the  plaintiffs'  claim  on  this 
part  of  their  case  fails,  and  it  is  unnecessary  for  the  purposes  of  this 
appeal  to  consider  the  third  and  fourth  grounds  on  which  the  learn- 
ed judge  has  also  decided  adversely  to  the  plaintiffs.  I  reserve,  till 
I  deal  with  the  Leach  and  Hughes  case,  any  consideration  of  the  ques- 
tion of  damage.  But,  as  the  question  of  contractual  relation  involves 
a  legal  point  of  much  general  importance,  and  as,  with  sincere  respect, 
I  am  not  disposed  to  concur  in  the  view  which  Joyce,  J.,  has  ex- 
pressed, I  do  not  think  that,  whilst  agreeing  for  other  reasons  with 
the  result  of  his  judgment  on  this  branch  of  the  case,  I  ought  to  pass 
over  the  point  altogether  without  comment.  The  learned  judge  holds 
that  a  valid  contract  by  A,  with  B.  not  to  do  a  particular  act  or  acts 

46  Part  of  the  opinion,  stating  the  facts  of  the  two  transactions,  is  omitted. 


1338  TORTS  THROUGH   ACTS   OF   CONDITIONAL  LIABILITY        (Part  3 

— for  instance,  not  to  purchase  goods  from  or  sell  goods  to  C. — does 
not  constitute  a  contractual  relation  in  the  sense  in  which  Lord 
Macnaghten  must  be  understood  to  have  used  that  phrase  in  Quinn 
V.  Leathem,  [1901]  A.  C.  495,  and  in  substance,  as  I  understand  his 
judgment,  that  an  action  at  the  suit  of  B.  against  one  who  procured 
or  incited  A.  to  break  his  contract  not  to  do  the  particular  act  or  acts 
could  not  properly  be  based  upon  any  principles  which  are  laid  down 
in  such  cases  as  Lumley  v.  Gye,  2  E.  &  B.  216,  Quinn  v.  Leathem, 
[1901]  A.  C.  495,  and  South  Wales  Miners'  Federation  v.  Glamorgan 
Coal  Co.,  [.1905]  A.  Cy  239.  Now,  I  agree  that  in  these  cases,  as  well 
as  in  Bowen  v.  Hall,  6  Q.  B.  D.  333,  and  Temperton  v.  Russell, 
[1893]  1  Q.  B.  715,  the  contractual  relation,  which  the  parties  sued 
in  those  cases  were  held  to  have  unlawfully  interrupted,  involved 
something  more  than  an  obligation  to  abstain  from  doing  a  particu- 
lar act  or  acts.  In  each  case  there  subsisted  between  the  contracting 
parties,  by  virtue  of  the  contract,  that  which,  for  want  of  a  better 
phrase,  I  think  might  be  described  as  a  more  or  less  continuous  course 
of  dealing,  as,  for  example,  of  personal  service,  though  the  case  is 
not  confined  to  personal  service,  of  which  without  justification  the 
party  sued  had  successfully  tried  to  procure  the  rupture.  I  agree  with 
the  defendants'  counsel  that  the  decision  of  the  Court  of  Appeal  in 
Exchange  Telegraph  Co.  v.  Gregory  &  Co.,  [1896]  1  Q.  B.  147,  157, 
cited  by  the  plaintiffs,  does  not  throw  light  upon  this  part  of  the  case 
when  carefully  looked  at.  That  decision  as  is  correctly  stated  at  the 
close  of  the  head-note  in  the  Law  Reports,  simply  was  that  the  plain- 
tiffs in  that  case  had  a  right  of  property  at  common  law,  and  were 
entitled  to  an  injunction  to  restrain  the  defendant  from  infringing 
that  right.  And  indeed,  in  the  following  passage  in  his  judgment 
Rigby,  L.  J.,  suggested  that  there  is  some  limitation :  "It  is  not  every 
procuring  of  a  breach  of  contract  that  will  give  a  right  of  action,"  ^'' 

4  7  On  this  remark  by  Rigby,  J.,  this  comment  is  made  by  Joyce,  .7.,  in  the 
principal  case,  [190S|  1  Ch.  ;]35,  8.50:  "For  instance,  sometimes  it  happens  that 
a  lady,  having  contracted  to  marry  A.,  is  induced  to  change  her  mind  and 
marry  B.,  as,  it  must  be  presumed,  upon  a  pressing  invitation  by  him  to  do  so. 
If  B.  was  aware  of  the  lady's  previous  engagement  to  A.,  can  A.,  instead  of 
bringing  an  action  for  breach  of  promise  against  the  lady,  recover  damages  in 
an  action  of  tort  against  her  husband  B.,  upon  the  gi'ound  that  he  has  inter- 
fered with  a  contractual  relation  lietwecn  the  lady  and  A.  and  induced  her 
to  break  her  contractV  Could  A.,  if  he  commenced  his  action  soon  enough,  ob- 
tain an  injunction  against  B.  to  restrain  him  from  procuring  the  lady  to  marry 
him?  If  the  contention  of  the  counsel  of  the  plaintiffs  before  me  be  correct, 
these  questions  would  have  to  be  answered  in  the  aflirmative.  Again,  suppose 
A.  is  employed  by  B.,  with  a  stipulation  that  after  the  termination  of  the  en- 
gagement he  shall  not  enter  into  any  similar  employment  in  the  same  neigh- 
bourhood, then  suppose  A.,  being  no  longer  employed  by  B.,  enters  the  service 
of  C,  carrying  on  a  similar  Itusiness  in  the  same  town,  can  B.  sue  C.  for  dam- 
ages and  obtain  an  injunction  to  prevent  his  employing  A.  when  he  is  no  long- 
er iu  the  service  of  B.V  We  have  heard  lately  that  publishei's,  when  they  issue 
a  boo!<  at  a  net  price,  stipulate  that  the  booksellers  they  supply  shall  not  resell 
within  six  months  at  less  than  .such  net  price.  Does  any  one  who,  within  six 
months  from  the  publication  of  such  a  book  at  a  net  price,  asks,  or  if  you  like 
induces,  the  b(K)lvseller  to  let  him  have  a  copy  for  less  than  the  net  price,  reu' 
der  himself  liable  to  an  action  at  the  suit  of  the  publisher?" 


Ch.  2)  TORTS  THROUGH   MALICE  1330 

I  am  not  aware  of  any  case  in  which  the  line  or  nature  of  the  Hmi- 
tation  has  been  defined.  But,  if  it  had  been  necessary,  which  it  is 
not,  to  decide  the  point,  I  do  not  see  how,  in  view  of  the  decisions  of 
the  House  of  Lords  to  which  I  have  just  referred,  and  of  the  lan- 
guage used  by  Lord  Watson  in  Allen  v.  Flood,  Lord  Lindley  in 
Ouinn  V.  Leathern,  and  Lord  Macnaghten  in  the  same  case,  I  could 
concur  with  Joyce,  J.,  if  he  has  held  that  in  no  circumstances  could  the 
intentional  procurement  of  a  breach  of  contract  not  to  do  a  particu- 
lar act  constitute  in  law  an  actionable  wrong. 

The  case  made  out  by  the  plaintiffs  in  regard  to  the  Hughes  and 
Leach  transactions  appears  to  me  to  differ,  in  important  respects, 
from  the  EU  transaction.  By  intentional  misrepresentations  the  de- 
fendant company,  through  their  agents  or  servants,  procured  from 
the  factors  goods  of  the  plaintiffs'  manufacture  which  the  factors 
would  not  have  parted  with  if  they  had  known  that  the  persons  with 
whom  they  were  dealing  -were  agents  or  servants  of  a  firm  included 
in  the  suspended  list.  There  has  been,  in  a  sense,  a  sale  contrary  to 
the  terms  and  the  intention  of  the  factor's  agreement.  Then  comes 
the  question,  Did  such  a  transaction  constitute,  on  the  part  of  the 
factors,  in  each  case  an  actionable  violation  of  their  contract  with 
the  plaintiff's,  which  I  assume  to  be  valid  in  point  of  law?  I  do  not 
think  it  did.  The  factors  did  not  know,  or  have  reason  to  suppose, 
that  they  were  selling  to  the  defendants ;  on  the  contrary,  they  were 
intentionally  misled  by  Hughes  and  Leach  into  the  belief  that  they 
were  selling  to  independent  retail  dealers,  who  had  their  own  places 
of  business  and  were  in  no  way  connected  with  the  defendants.  The 
names  given  by  Hughes  and  Leach  were  not  names  on  the  suspended 
list.  It  seems  to  me  that  a  sale  honestly  made  by  a  factor  under  these 
circumstances  ought  not,  according  to  the  proper  interpretation  of 
the  agreement,  to  be  held  to  be  a  sale  to  a  person  on  the  suspended 
list,  and,  as  such,  constituting  a  breach  of  the  agreement.  The  de- 
fendants' counsel  contended  that,  if  this  be  so — if  the  plaintiffs 
could  not  successfully  sue  the  factor  for  damages  or  justly  place  him 
on  the  suspended  list  under  the  seventh  condition— the  plaintiffs' 
case  at  once  fails,  because  (they  argue)  the  defendants'  stratagem,  how- 
ever reprehensible,  did  not  produce  a  violation  by  the  factors  of 
the  contracts  with  the  plaintiffs.  I  think  that  this  is  too  narrow  a 
view.  I  am  certainly  disposed  toi  hold  that  if  A.,  who  knows  that 
B.,  the  producer  of  an  article,  has  sti]:)ulated  in  selling  it  to  C,  the 
factor,  that  he  shall  not  resell,  it  to  A.,  procures  by  an  intentional 
misrepresentation  to  C.  a  sale  to  himself,  he  has  committed  towards 
B.  an  actionable  wrong  provided  tliat  B.  can  prove  he  has  been  there- 
by damaged,  although,  in  the  particular  circumstances,  B.  may  have 
no  cause  of  action  against  C.  in  respect  of  the  transaction.  I  agree 
with  the  defendants'  counsel  that  Exchange  Telegraph  Cp,  v.  Greg- 
ory &  Co.,  [1896]  1  Q.  B.  147,  is  not  an  authority  for  such  a  propo- 
sition,  for  in  that  case  the  subscriber  who  improperly  supplied  the 


1340  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  S 

defendant  with  the  information  in  which  the  plaintiffs  had  proprie- 
tary rights  must  have  known  that  he  was  violating  his  contract  with 
the  plaintiffs  in  so  doing.  There  is  no  suggestion  in  the  case,  as  re- 
ported, that  he  did  not.  But  I  think  a  sufficient  declaration  of  the 
soundness  of  the  view  which  I  have  expressed  appears  in  a  passage  in 
the  judgment  of  Bowen,  L.  J.,  in  Mogul  Steamship  Co.  v.  McGregor, 
Gow  &  Co.,  23  O.  B.  D.  614,  to  which  my  attention  has  been  drawn : 
"No  man,  whether  trader  or  not,  can,  however,  justify  damaging 
another  in  his  commercial  business  by  fraud  or  misrepresentation. 
Intimidation,  obstruction,  and  molestation  are  forbidden ;  so  is  the 
intentional  procurement  of  a  violation  of  individual  rights,  contrac- 
tual or  other,  assuming  always  that  there  is  no  just  cause  for  it." 
And  in  Allen  v.  Flood,  [1898]  A.  C.  96,  Lord  Watson  remarks: 
"When  the  act  induced  is  within  the  right  of  the  immediate  actor  and 
is  therefore  not  wrongful  in  so  far  as  he  is  concerned,  it  may  yet  be 
to  the  detriment  of  a  third  party;  and  in  that  case,  according  to  the 
law  laid  down  by  the  majority  in  Lumley  v.  Gye,  2  E.  &  B.  216,  the 
inducer  may  be  held  liable  if  he  can  be  shewn  to  have  procured  his 
object  by  the  use  of  illegal  means  directed  against  that  third  party."  ^^ 


WEST  VIRGINIA  TRANSP.  CO.  v.  STANDARD  OIL  CO.  et  al. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1902.    50  W.  Va.  Oil, 
40  S.  E.  591,  56  L.  R.  A.  804,  88  Am.  St.  Rep.  895.) 

Trespass  on  the  case  against  the  Standard  Oil  Company  and  the 
Eureka  Pipe  Line  Company.  A  demurrer  to  the  declaration,  which 
was  framed  in  two  counts,  was  sustained  by  the  Circuit  Court,  and 
the  plaintiff  brings  error.*" 

Brannon,  j.  *  *  *  What  wrongful  acts  does  this  first  count 
state?  The  formation  of  trade  combination — call  it  "monopoly" — 
is  not  actionable  alone.  How  far  the  grant  of  exclusive  privilege 
by  the  state  (and  this  is  the  only  monopoly,  legally  speaking)  is  valid 
when  its  right  is  contested,  is  one  thing.  We  are  not  dealing  with 
that.  This  monopoly  is  not  that.  It  is  the  act  of  persons  and  corpo- 
rations, by  union  of  means  and  effort,  drawing  to  themselves,  in  the 
field  of  competition,  the  lion's  share  of  trade.  This  is  not  monopoly 
condemned  by  law.     *     *     * 

Observe  the  question  here  is  not  one  of  enforcing  a  contract  in 
favor  of  a  monopoly,  or  of  determining  whether  its  conditions  are 

48  The  opinions  of  Lord  .AJverstono,  C.  J.,  and  Buckley,  L.  J.,  are  omitted. 

Tlie  result  of  the  case  was  that  "the  defendant  couipauy  agreed  to  au  in- 
junction in  the  form  suggested  by  Buckley,  L.  J. ;"  that  is,  "to  restrain  the  de- 
fendant company,  their  servants  and  agents,  from  inducing  any  jiersons  or 
firms  who  have  entered  into  factors'  agreements  with  the  i)laintilf  company  to 
deal  witli  tlie  defendant  company  in  goods  of  the  plaintiff  company  by  repre- 
senting or  leading  to  the  belief  that  the  purchaser  is  not  the  defendant  com- 
pany," 

4  0  The  statement  of  facts  is  abridged. 


Ch.  2)  TORTS  THROUGH  MALICE  1341 

reasonable;  not  a  question  of  how  far  the  courts  would  go  to  enforce 
a  contract  between  the  Standard  Oil  Company  and  producers,  or  be- 
tween the  Eureka  Company  and  producers  binding  the  latter  to  trans- 
port oil  only  over  that  line ;  not  a  proceeding  by  the  state  to  forfeit 
a  charter  for  misuse.  The  question  here  is,  has  the  company,  by  illegal 
act,  violated  the  rights  of  the  plaintiff?  Counsel  for  plaintiff  put 
emphasis  on  the  charge  of  conspiracy  and  malice;  but  there  can  be 
no  conspiracy  to  do  a  legitimate  act, — an  act  which  the  law  allows, 
— nor  malice  therein.  To  give  action  there  must  not  only  be  con- 
spiracy, but  conspiracy  to  do  a  wrongful  act.  If  the  act  is  lawful, 
no  matter  how  many  unite  to  do  it.  Bohn  Mfg.  Co.  v.  Ilollis,  54 
Minn.  223,  55  N.  W.  1119,  21  L.  R.  A.  337,  40  Am.  St.  Rep.  319. 
"A  conspiracy  cannot  be  made  the  subject  of  an  action,  though  dam- 
ages result,  unless  something  is  done  which,  without  the  conspiracy, 
would  give  right  of  action.  The  true  test  as  to  whether  such  action 
wall  lie  is  whether  the  act  accomplished  after  the  conspiracy  is  formed 
is  itself  actionable."  Delz  v.  Winfree,  80  Tex.  400,  16  S.  W.  Ill, 
26  Am.  St.  Rep.  755.  An  agreement  to  get  trade  into  your  own 
hands, — that  being  the  sole  purpose, — though  it  harm  others,  is  not 
actionable.  Steamship  Co.  v.  McGregor,  21  O.  B.  Div.  544,  23  O. 
B.  Div.  598  (see  note  below);  Huttley  v.  Simmons,  [1898]  1  O.  B. 
Div.  181.  The  case  cited  by  counsel  (Morris  Run  Coal  Co.  v.  Barclay 
Coal  Co.,  68  Pa.  173,  8  Am.  Rep.  159),  was  a  combination  of  coal 
companies  to  enhance  prices  to  the  public.  So  People  v.  Sheldon,  139 
N.  -Y.  251,  34  N.  E.  785,  23  L.  R.  A.  221,  36  Am.  St.  Rep.  690, 
and  People  v.  Milk  Exchange,  145  N.  Y.  267,  39  N.  E.  1062,  27  L. 
R.  A.  437,  45  Am.  St.  Rep.  609,  involved  right  of  a  corporation  to  fix 
prices  of  milk,  and  it  was  declared  against  public  policy,  sO'  as  to 
forfeit  charter.  Jackson  v.  Stanfield,  137  Ind.  592,  36  N.  E.  345, 
37  N.  E.  14,  23  L.  R.  A.  588,  comes  nearer  the  point,  though  it,  too, 
has  in  it  the  element  of  an  agreement  harmful  to  the  public,  and  is 
not  a  case  where  owners  of  property  and  business,  as  here,  seek  to 
further  their  interests  by  inducing  others  to  trade  with  them,  and  not 
with  competitors.  There  it  w^as  a  pure  agreement  to  compel  others 
not  to  deal  with  a  party  (a  boycott),  not,  as  in  this  instance,  to  compel 
persons  to  deal  with  the  defendants.  State  v.  Standard  Oil  Co., 
49  Ohio  St.  137,  30  N.  E.  279,  15  L.  R.  A.  145,  34  Am.  St.  Rep.  541, 
was  an  agreement  to  control  productit)n  and  prices  against  the  pub- 
lic interests,  and  was  a  proceeding  by  the  state  to  withdraw  a  char- 
ter, not  an  action  by  an  individual  on  the  theory  of  private  injur)\ 
I  do  not  say  that  an  individual  damaged  by  a  combination  against 
public  policy  and  law  cannot  sue.  I  say  he  can.  In  Bohn  Mfg.  Co. 
V.  Hollis,  54  Minn.  223,  55  N.  W.  1119,  21  L.  R.  A.  337.  40  Am. 
St.  Rep.  319,  it  is  held  that  "any  man,  unless  under  contract  obli- 
gation, or  unless  his  employment  charges  him  with  some  public  duty, 
has  right  to  refuse  to  work  for  or  deal  with  any  man  or  class  of  men, 
as  he  sees  fit ;    and  this  right,  which  one  man  may  exercise  singly. 


1342  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

any  number  may  exercise  jointly."  The  wholesale  merchants  refuse 
to  deal  with  consumers  in  favor  of  retail  dealers.  Can  we  consumers 
sue  them?  "He  may  refuse  to  deal  with  any  man  or  class  of  men. 
It  is  no  crime  for  any  number  of  persons,  without  any  unlawful  ob- 
ject in  view,  to  associate  and  agree  that  they  will  not  work  for  or 
deal  with  certain  men,  or  classes  of  men,  or  work  under  a  certain 
price,  or  without  certain  conditions."  Carew  v.  Rutherford,  106  Mass. 
1,  14,  8  Am.  Rep.  287.  The  great  Chief  Justice  Shaw  said  that  the 
legality  of  the  association  depends  upon  its  object,  and  whether  it 
be  innocent  or  otherwise.  Com.  v.  Hunt,  4  Mete.  (Mass.)  Ill,  38 
Am.  Dec.  346.  The  law  allows  men  to  combine  to  obtain  a  lawful 
benefit  to  themselves.  Greenh.  Pub.  Pol.  651.  In  Olive  v.  Van  Pat- 
ten, 7  Tex.  Civ.  App.  630,  25  S.  W.  428,  while  condemning  the  par- 
ticular act  involved  in  that  case,  the  court  declared  the  right  to  com- 
pete, though  it  injured  the  plaintiff.  "This  would  be  legitimate. 
They  could  do  this  without  responsibility  for  injurious  consequence 
to  the  plaintiff's  business ;  but  they  could  not,  without  some  legal 
purpose  directly  serving  their  own  business,  maliciously  induce  oth- 
ers not  to  trade  with  the  plaintiff."  Who  can  say  that  the  acts  at- 
tributed to  the  defendants  did  not  benefit  them?  Had  they  done  these 
acts  to  benefit  strangers,  from  malice,  it  would  be  dift'erent.  Now, 
these  companies  were  furthering  their  own  interests  in  lawful  com- 
petition with  others.  If  they  possessed  the  lav^^ful  right  above  stated, 
what  matters  it  that  they  did  have  the  intent  to  cut  down  the  business 
of  others,  or  that  they  did  cut  it  down  and  injure  others,  though 
they  did  this  that  they  might  themselves  fatten?  So  far  this  first 
count  charges  only  the  exercise  by  the  defendants  of  a  right  of  con- 
stitutional liberty,  accorded  alike  to  all, — simply  the  right  of  self- 
advancement  in  legitimate  business, — self-preservation,  we  may  say. 

•1^         'I'         'K 

Second  Count.  It  specifies  as  its  pointed  gravamen  that  the  defend- 
ants and  Shattuck  conspired  to  destroy  the  plant  and  business  of  the 
plaintiff,  and  did  by  threats  and  unfair  means  oblige  persons  owning 
and  producing  oil  to  ship  it  by  other  means  of  transportation  than 
those  of  the  plaintiff,  which  persons  had  before  been  the  customers 
of  the  plaintiff;  and  that  the  West  Virginia  Oil  Company  and  Shat- 
tuck notified  such  customers  not  to  ship  any  oil  over  the  plaintiff's 
line,  and  not  to  permit  plaintiff  to  do  any  business  in  transporting 
oil,  so  far  as  such  customers  could  prevent  it.  While  the  first  count 
does,  the  second  count  does  not,  state  that  the  defendants  were  en- 
gaged in  the  business  of  buying,  refining,  and  transporting  oil  as  com- 
petitors with  the  plaintiff,  and  thus  present  a  justification  for  their 
action,  but  simply  charges  that  they  interfered  unlawfully  and  mali- 
ciously with  the  plaintiff's  business,  with  malign  purpose  to  destroy  it. 
This,  I  think,  is  a  legal  cause  of  action.  It  is  argued  for  the  defend- 
ants that  it  is  not  stated  that  the  plaintiff  had  contracts  with  its 
patrons  with  which  the  defendants  interfered,  and  without  right  in- 


Ch.  2)  TORTS  THROUGH   MALICE  1343 

duced  such  patrons  to  break  such  contracts;  and  that,  as  such  cus- 
tomers had  right  to  deal  with  whom  they  pleased,  the  defendants 
could  not  commit  an  actionable  wrong  in  inducing  them  to  withdraw 
their  usual  patronage  from  the  plaintiff.  But  it  does  seem  to  me  that, 
though  those  customers  had  such  right,  it  did  not  impart  to  the  de- 
fendants any  right  and  immunity  to  step  in  between  them  and  the 
plaintiff',  and  induce  those  customers  to  withdraw  their  patronage, 
not  for  the  benefit  of  the  defendants  in  the  exercise  of  the  right  of 
free  competition,  but  in  malice  only  to  injure  and  destroy  the  plaintiff. 
Cases  above  cited  show  this.  In  Delz  v.  Winfree,  80  Tex.  400,  16  S. 
W.  Ill,  26  Am.  St.  Rep.  755,  it  is  held  that  while  one  has  a  right 
to  deal  with  whom  he  pleases,  yet  this  right  is  limited  to  him,  and 
does  not  give  another  the  right  to  influence  him  not  to  deal.  It  is 
an  officious  act,  hurtful  to  another,  not  done  in  legitimate  competition, 
without  just  excuse,  done  only  to  injure  a  fellow.  It  is  a  "boycott." 
Cook,  Trade  &  Labor  Combin.  §  9;  Crump's  Case,  84  Va.  927,  6 
S.  E.  620,  10  Am.  St.  Rep.  895;  Beach,  Monop.  311,  322.  "In  all 
cases  where  a  man  has  a  temporal  loss  or  damage  by  the  wrong  of 
another,  he  may  have  an  action  on  the  case  tO'  be  repaired  in  damages. 
The  intentional  causing  of  such  loss  to  another,  without  justifiable 
cause,  and  with  the  malicious  purpose  to  inflict  it,  is  of  itself  a  wrong." 
Walker  v.  Cronin,  107  Mass.  555;  Carew  v.  Rutherford,  106  Mass. 
1,  8  Am.  Rep.  287.  "Every  one  has  a  right  to  enjoy  the  fruits  of  his 
own  enterprise,  industry,  skill,  and  credit.  He  has  no  right  to  be 
protected  against  skill  and  competition,  but  he  has  a  right  to  be  free 
from  malicious  and  wanton  interference,  disturbance,  and  annoyance. 
If  disturbance  and  annoyance  come  as  a  result  of  competition,  or  the 
execution  of  like  rights  by  others,  it  is  damnum  absque  injuria,  un- 
less some  superior  right  by  contract  or  otherwise  is  interfered  with. 
But  if  it  comes  from  the  mere  wanton  or  malicious  acts  of  others, 
without  the  justification  of  competition,  or  the  service  of  any  inter- 
est or  lawful  purpose,  it  then  stands  on  a  different  footing,"  and  the 
wrong  is  actionable.  Walker  v.  Cronin,  supra ;  1  Eddy,  Trade  Comb. 
§  480. 

Counsel  for  defendants,  in  answer  to  the  second  count,  take  the 
position  that  no  contract  is  stated  as  subsisting  between  the  plaintiff 
and  its  patrons,  and  that  the  defendants  are  not  charged  with  inducing 
the  violation  of  any  contract,  and  that  as  these  patrons  of  the  plaintiff 
had  perfect  right  to  withhold  their  patronage,  and  could  not  be  sued 
for  so  doing,  the  defendants  did  no  legal  wrong  in  inducing  those  pa- 
trons to  do  so.  I  do  not  concur  in  this  view.  The  authorities  above 
logically  repel  it.  That  there  is  no  binding  contract  between  employer 
and  employe,  or  between  the  trader  and  his  usual  customers,  makes 
no  difl'ercnce.  Presumably,  the  customers  would  have  continued  their 
voluntary  patronage- but  for  the  wrongful  intervention  and  influence 
of  the  intervener.  I  think  this  contention  is  met  by  Chipley  v.  Atk'in- 
son,  23  Fla.  206,  1  South.  934,  11  Am.  St.  Rep.  367;   Benton  v.  Pratt, 


1344  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

2  Wend.  (N.  Y.)  385,  20  Am.  Dec.  623 ;    Rice  v.  Manley,  66  N.  Y. 
d,2,  23  Am.  Rep.  30. 

I  understand  the  law  to  be  as  follows :  One  may  without  liability 
induce  the  customers  of  another  to  withdraw  their  custom  from  him, 
in  the  race  of  competition,  in  order  that  the  former  may  himself  get 
the  custom,  there  being  no  contract ;  and  it  is  no  matter  that  such 
person  is  injured,  and  it  is  no  matter  that  the  other  party  was  moved 
by  express  intent  to  injure  him ;  motive  being  immaterial  where  the 
act  is  not  unlawful.  But  where  the  act  is  not  done  under  the  right 
of  competition,  or  under  the  cover  of  friendly,  neighborly  counsel, 
but  wantonly  or  maliciously,  with  intent  to  injure  another,  it  is  ac- 
tionable, if  loss  ensue.  Nor  is  it  material  in  the  latter  case  that  there 
was  no  binding  contract  between  the  business  man  and  his  customers. 

^         ^         ^   5li 


DUNSHEE  V.  STANDARD  OIL  CO.  et  al. 

(Supreme  Court  of  Iowa,  1911.    152  Iowa,  618,  132  N.  W.  371, 
36  L.  R.  A.   [N.  S.]  263.) 

This  was  an  action  at  law  against  tlie  Standard  Oil  Company  and 
others,  to  recover  damages  for  an  alleged  unlawful  interference  with 
the  trade  of  plaintiff's  assignor.  The  judgment  below  was  for  the 
plaintiff,  and  the  defendants  appealed.  There  was  an  appeal  by  the 
plaintiff  also,  but  in  the  discussion  of  the  case  the  defendants  only 
are  spoken  of  as  appellants. 

Weaver,  J.  During  all  the  period  covered  by  this  controversy, 
tli€  Standard  Oil  Company  has  been  a  wholesale  dealer  in  oil  at  the 
city  of  Des  Moines.  In  the  year  1893  the  Crystal  Oil  Company 
(plaintiff's  assignor),  a  local  corporation,  entered  the  retail  trade  in 
oil,  selling  its  goods  from  tank  wagons  hauled  about  the  streets,  and 
delivered  to  its  customers  at  their  homes.  Its  business  grew  from 
year  to  year  until,  in  1898,  it  employed  from  four  to  eight  wagons, 
covering  the  territory  of  the  city  very  generally.  During  the  period 
mentioned,  the  Crystal  Company  purchased  its  supplies  from  the 
defendant,  but  in  1898  it  for  some  reason  began  to  make  purchases 
from  other  wholesale  dealers.  Trouble  at  once  ensued.  The  defend- 
ant, which,  up  to  that  time,  had  abstained  from  the  retail  trade,  pro- 
ceeded to  equip  itself  with  tank  wagons,  teams,  and  drivers  substan- 
tially equal  in  number  to  those  of  the  Crystal  Company,  and  began 
active  solicitation  for  the  patronage  of  the  "ultimate  consumer."  At 
the  end  of  some  months  of  strife,  the  Crystal  Company  abandoned 
the  contest  and  quit  the  business  at  a  loss,  claiming  to  have  been  driven 
out  by  the  tactics  of  its  rival.    The  plaintiff,  as  assignee  of  said  com- 

50  A  considorahle  portion  of  the  opinion  is  omitted.  The  case  was  reversed 
and  remanded,  but  apparently  not  exclusively  for  the  reasons  given  above. 


Ch.  2)  TORTS  THROUGH  MALICE  1345 

pany,  brings  this  action  for  damages,  alleging  a  conspiracy  between 
the  Standard  Oil  Company  and  its  managers,  agents,  and  employes 
to  ruin  the  business  of  said  Crystal  Company,  and  setting  forth  al- 
leged wrongful  acts  done  in  pursuance  of  such  conspiracy  by  which 
said  company's  business  was  destroyed.     *     *     * 

1.  Upon  the  issues  of  fact,  we  shall  attempt  no  general  review  of 
the  testimony.     For  present  purposes  it  is  enough  to  say  that  the  case 
as  made  by  the  plaintiff  tends  strongly  to  show  that  defendant  in- 
stalled its  scheme  of  retail  distribution  of  oil  in  the  city  of  Des  Moines 
not  for  the  purpose  of  establishing  a  retail  trade,  but  as  a  mere  tem- 
porary expedient  to  drive  out  the  Crystal  Cbmpany,  and  that,  this 
being   accomplished   and   having  the   field   to  itself,   it  withdrew  its 
wagons  and  drivers,   and  gave  its  whole   attention  to  its  wholesale 
business.     In  the  prosecution  of  its  business,  the  Crystal  Company 
was  accustomed  to  supply  its  customers  with  cards  to  be  displayed 
from  a  window  or  other  conspicuous  place,  indicating  a  desire  to  pur- 
chase oil  and  inviting  the  distributor  to  stop  and  furnish  the  needed 
supply.     The  evidence  further  tends  to  show  that  w^hen  the  Standard 
entered  the  field  its  drivers  were  directed  to  give  special  attention  to 
the  Crystal  Company's  "green  cards,"  and  that,  at  the  outset  at  least, 
there  w^as  little  or  no  attempt  to  build  up  a  retail   trade  with  the 
public  generally,  but  to  take  aw^ay  or  destroy  the  trade  of  the  Crystal 
Company.     Some  of  the  witnesses  say  the  Standard's  drivers  would 
make  it  a  point  to  get  in  advance  of  the  Crystal's  wagons,  and  wher- 
ever a  green  card  was  displayed  would  stop  and  make  the  sale  if  pos- 
sible, sometimes  permitting  the  buyer  to  suppose  that  he  or  she  was 
dealing  with   a   Crystal   agent,   and   in   other  cases  appropriating  or 
carr}'ing  aw^ay  the  Crystal's  cards.     The  Standard's  hand  in  these  ef- 
forts was  not  disclosed  to  the  public.     The  drivers  were  instructed 
to   do  business  ostensibly  as  independent  dealers   driving  their  own 
wagons,    none    of    which   were    marked   wath    the    Standard's    name, 
though  in  fact  the  outfits  were  furnished  and  all  expenses  paid  by  it, 
and  the  entire  business  was  carried  on  under  the  secret  management 
of   its   agent,   w^ho  held   frequent  meetings   with  the   drivers,   urging 
them  to  "go  after  the  green  cards,"  to  "hustle  the  green  cards,"  to 
"go  after  the  Crystal  Oil  Company,"  and  at  the  same  time  cautioned 
them  to  "keep  quiet"  about  the  real  ownership  and  management.     It 
is  further  testified  that  when  the  Crystal  Company  had  been  elimi- 
nated the  manager  in  charge  had  a  final  meeting  of  the  drivers  at  his 
residence,  where  he  said,  "The  fight  is  over  and  we  have  bought  them 
out."     Plaintiff  also  shows  that  defendants'  movement  in  the  matter 
followed  closely  upon  the  Crystal  Company's  exercise  of  its  right  to 
purchase  part  of  its  oil  from  another  dealer,  and  had  refused  to  yield 
to  the  Standard's  insistence  that  it  wanted  "all  or  none"  of  the  Crys- 
tal's trade.     In  short,  the  record  as  a  whole  is  sufficient  to  justify  the 
inference  that  the  real  end  sought  to  be  accomplished  was  to  bar  or 
IIepb. Torts — 85 


1346  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

exclude  from  the  retail  trade  one  who  would  not  give  the  Standard 
Company,  as  a  wholesale  dealer,  its  exclusive  patronage.  The  defend- 
ants take  issue  upon  the  charge  as  thus  preferred,  but  the  jury  could 
properly  find  the  facts  to  be  as  above  outlined. 

As  we  understand  appellants'  contention,  it  is  that  their  conduct  did 
not  transgress  the  bounds  of  legitimate  competition,  and  that  so  long 
as  they  kept  within  this  limitation  the  question  of  the  alleged  malice 
or  motive  inspiring  their  acts  is  wholly  immaterial.  Cases  involving 
the  question  thus  suggested  have  frequently  arisen,  both  in  this  coun- 
try and  in  England,  and  there  is  much  inharmony  in  the  expressions 
of  judicial  opinion  thereon.  Many  authorities  may  be  found  holding 
without  apparent  qualification  or  exception,  that  the  law  takes  no  ac- 
count whatever  of  motives  as  constituting  an  element  of  civil  wrong. 
In  other  words,  if  a  man  do  a  thing  which  is  otherwise  lawful,  the 
fact  that  he  does  it  maliciously  and  for  the  express  purpose  of  in- 
juring his  neighbor  affords  the  latter  no  remedy  at  law.  Such  is  the 
net  eft'ect  of  Raycroft  v.  Tayntor,  68  Vt.  219,  35  Atl.  53,  33  L.  R.  A. 
225,  54  Am.  St.  Rep.  882;  Jenkins  v.  Fowler,  24  Pa.  308,  and  oth- 
ers of  that  class.  If  this  be  the  correct  view  of  the  law,  a  man  may 
excavate  the  earth  near  the  boundary  of  his  own  land  for  the  mere 
purpose  of  seeing  the  foundation  of  the  house  of  his  neighbor  slide 
into  the  pit  thus  prepared  for  it;  he  may  dig  through  his  own  soil 
to  the  subterranean  sources  of  his  neighbor's  spring  or  well  and  di- 
vert the  water  into  a  ditch,  where  it  will  serve  no  purpose  of  use  or 
profit  to  himself  or  any  one  else ;  if  a  banker  or  merchant,  he  may 
punish  the  blacksmith  who  refuses  to  patronize  him  by  temporarily 
establishing  a  shop  on  the  next  lot  and  hiring  men  to  shoe  horses 
without  money  and  without  price,  until  he  has  driven  the  offending 
smith  to  come  to  his  terms  or  to  go  out  of  business ;  and  if  a  farmer, 
dependent  upon  a  subterranean  supply  of  water  for  the  irrigation  of 
his  soil  or  watering  of  his  live  stock,  he  may  contrive  to  ruin  his 
competing  neighbor  by  wasting  the  surplus  not  reasonably  required 
for  his  own  use.  The  laws  of  competition  in  business  are  harsh 
enough  at  best ;  but  if  the  rule  here  suggested  were  to  be  carried  to 
its  logical  and  seemingly  unavoidable  extreme  there  is  no  practical 
limit  to  the  wrongs  which  may  be  justified  upon  the  theory  that  "it 
is  business."  Fortunately,  we  think,  there  has  for  many  years  been 
a  distinct  and  growing  tendency  of  the  courts  to  look  beneath  the  let- 
ter of  the  law  and  give  some  effect  to  its  beneficent  spirit,  thereby 
preventing  the  perversion  of  the  rules  intended  for  the  protection  of 
human  rights  into  engines  of  oppression  and  wrong.  It  is  doubtless 
true  that  under  many  circumstances  an  act  is  legally  right  and  de- 
fensible without  regard  to  the  motive  which  induces  or  characterizes 
it;  but  there  is  abundance  of  authority  for  saying  that  this  is  by  no 
means  the  universal  rule,  and  that  an  act  which  is  legally  right  when 
done  without  malice  may  become  legally  wrong  when  done  malicious- 


Ch.  2)  TORTS   THROUGH   MALICE  1347 

ly,  wantonlv,  or  without  reasortable  cause.  *  *  *  '^^  In  Parkinson 
V.  Council,' 154  Cal.  581,  98  Pac.  1027,  21  h.  R.  A.  (N.  S.)  550,  16 
Ann.  Cas.  1165,  the  court,  while  reaching  the  opposite  conclusion 
generally,  concedes  it  to  be  the  law  that:  "Any  injury  to  a  lawful 
business,  whether  the  result  of  conspiracy  or  not,  is  prima  facie  ac- 
tionable, but  may  be  defended  on  the  ground  that  it  was  merely  a  law- 
ful effort  of  the  defendants  to  promote  their  own  welfare.  To  defeat 
this  plea  of  justification,  the  plaintiff  may  offer  evidence  that  the 
acts  of  the  defendants  were  inspired  by  express  malice,  and  were  done 
for  the  purpose  of  injuring  the  plaintiff,  and  not  to  benefit  them- 
selves."     *      *      *  22 

Coming  to  the  case  in  hand,  we  may  concede  to  the  appellants  the 
undoubted  right  to  establish  a  retail  oil  business  in  Des  Moines,  to 
employ  agents  and  drivers,  and  send  them  out  over  the  same  routes 
and  make  sales  to  the  same  people  with  whom  the  Crystal  Oil  Com- 
pany was  dealing ;  but  in  so  doing  it  was  bound  to  conduct  such  busi- 
ness with  reasonable  regard  and  consideration  for  the  equal  right  of 
the  Crystal  Company  to  continue  supplying  oil  to  such  of  its  custom- 
ers as  desired  to  remain  with  it.  If,  however,  there  was  no  real  pur- 
pose or  desire  to  establish  a  competing  business,  but,  under  the  guise 
or  pretense  of  competition,  to  accomplish  a  malicious  purpose  to  ruin 
the  Crystal  Company  or  drive  it  out  of  business,  intending  themselves 
to  retire  therefrom  when  their  end  had  been  secured,  then  they  can 
claim  no  immunity  under  the  rules  of  law  which  recognize  and  pro- 
tect competition  between  dealers  in  the  same  line  of  business  seeking 
in  good  faith  the  patronage  of  the  same  people.  And  if,  under  such 
pretense  of  competition,  defendants  maliciously  interfered  with  the 
business  of  the  Crystal  Oil  Company  in  the  manner  charged,  and 
injury  to  the  latter  was  thereby  inflicted,  a  right  of  action  exists  for 
the  recovery  of  damages.  It  may  be  conceded  that  authorities  are 
not  wanting  to  sustain  the  position  that,  even  though  the  Standard 
Oil  Company  had  no  intention  of  becoming  a  retail  dealer  in  oil  in 
Des  Moines,  but  entered  the  business  of  selling  oil  in  this  manner 
temporarily,  for  the  sole  purpose  of  driving  the  Crystal  Company 
out,  it  is  a  matter  into  which  the  courts  will  not  inquire ;  but  we  think 
such  precedents  are  out  of  harmony  with  fundamental  principles  of 
justice,  which,  as  we  have  said,  underlie  the  law,  as  well  as  out  of 
harmony  with  the  later  and  better-considered  cases.  True  the  Stand- 
ard Company,  as  a  wholesale  dealer,  would  violate  no  law  in  oft'ering 
its  product  for  sale  at  retail  at  half  price  in  the  territory  supplied  by 
the  Crystal  Company,  but  such  fact,  if  proven,  would  have  a  distinct 
bearing  upon  the  reasonableness  of  its  methods  employed  in  divert- 

61  Judge  Weaver  here  cited  a  number  of  authorities,  and  quoted  from  Vau 
Horn  V.  \an  Horn  (1890)  52  N.  J.  Law,  284,  20  Atl.  485,  10  L.  R.  A.  184. 

6  2  Huskie  v.  Griffin  (1909)  75  N.  H.  345,  74  Atl.  595,  27  D.  R.  A.  (N.  S.)  9CG, 
139  Am.  St.  Rep.  718,  given  in  text,  ante.  12.">1,  is  here  quoted  at  length,  and 
other  cases  are  cited. 


1348  TORTS  THROUGH  ACTS   OP  CONDITIONAL  LIABILITY        (Part  3 

ing  trade  from  said  company,  as  well  as  upon  the  charge  that  in  in- 
terfering between  the  Crystal  Company  and  its  customers  the  Stand- 
ard Company  was  actuated  by  malice  or  spirit  of  wanton  assault  upon 
the  business  of  another,  who  had  given  it  offense.  *  *  *  °^  No 
man  entering  or  carrying  on  business  has  any  right  to  demand  pro- 
tection against  fair  competition,  and  if  he  cannot  meet  it  and  succeed 
he  must  expect  to  fail,  and  for  losses  and  injuries  resulting  the  law 
affords  him  no  remedy.  But  if  competition  be  "war,"  in  which 
"everything  is  fair,"  or  if  it  be  so  regarded  by  those  who  participate 
therein,  certainly  the  law  will  not  give  that  doctrine  its  sanction.  It 
follows  of  necessity  that  the  trial  court  did  not  err  in  refusing  to 
direct  a  verdict  in  defendants'  favor. 

2.  In  ruling  upon  the  defendants'  motion  for  a  directed  verdict,  the 
trial  court  seems  to  have  held  or  suggested  that  proof  that  defend- 
ants, in  pursuance  of  their  alleged  conspiracy,  had  interfered  with 
contracts  made  between  the  Crystal  Company  and  its  patrons  would 
give  rise  to  a  cause  of  action,  and  upon  the  final  submission  of  the 
cause  it  instructed  the  jury,  as  a  matter  of  law,  that  the  display  of 
the  green  cards  were  orders  upon  the  Crystal  Company  for  the  de- 
liver}' of  oil,  and  that  a  malicious  interference  by  the  defendants 
with  the  filling  of  such  orders  by  the  Crystal  Company  would  be  a 
wrong  for  which  an  action  would  lie,  if  such  interference  was  in  pur- 
suance of  a  conspiracy  between  the  defendants  to  injure  the  business 
of  said  company.  Of  this  instruction  both  parties  complain,  and  we 
are  inclined  to  the  view  that  it  cannot  be  sustained  as  broadly  as 
stated. 

Referring,  first,  to  plaintiff's  exception,  we  think  the  proposition 
last  stated  places  a  too  narrow  construction  upon  the  rule  of  law  here 
applicable,  in  that  it  seems  to  require,  not  only  the  proof  of  a  malicious 
wrong  and  injury  therefrom,  but  further  proof  that  such  wrong  was 
done  in  pursuance  of  a  conspiracy  previously  formed.  The  gravamen 
of  the  charge  made  is  not  the  alleged  conspiracy,  but  the  wrong  done 
to  the  plaintiff's  assignor,  and  if  the  wrong  is  sufficiently  established 
by  the  evidence  a  recovery  may  be  had  by  the  party  injured,  although 
there  be  a  failure  of  proof  of  the  conspiracy. 

The  defendants'  exception  to  the  instruction  is  that  the  display  of 
the  cards  by  the  Crystal  Company's  customers  cannot  be  said  as  a 
matter  of  law,  to  constitute  orders  upon  that  company.  The  point 
is  well  made.  True,  if  there  were  some  prior  arrangement  or  agree- 
ment with  a  customer  by  which  the  display  of  a  card  would  evidence 
a  definite  order,  such  act  might  be  as  effective  as  the  sending  of  a 
written  request  to  the  company  for  a  stated  quantity  of  oil  at  a  defi- 
nite price;  but  the  record  does  not  disclose  such  a  state  of  facts,  and 
we  think  that,  so  far  as  the  evidence  goes,   the  display  should  be 

08  The  court  here  quotes  from  Tuttle  v.  Buck  (1909)  107  Minn.  145,  119  N.  W. 
940,  22  L.  R.  A.  (N.  S.)  599,  131  Am.  St.  Rep.  446,  16  Ann.  Cas.  807,  given  in 
text,  ante,  p.  124G,  us  illustrating  the  principle. 


Ch.  2)  TORTS   THROUGH  MALICE  1349 

treated  rather  as  a  notice  or  invitation  to  the  Crystal  Company's  driv- 
ers, observance  of  which  on  their  part  would  lead  to  a  sale. 

But  we  are  not  of  the  opinion  that  an  actual  contract  must  exist  be- 
fore wanton  interference  by  a  third  party  would  amount  to  a  legal 
wrong.  For  illustration,  if,  instead  of  displaying  cards,  it  was  the 
habit  of  the  Crystal  Company's  customers  to  communicate  their  wants 
by  messenger  or  by  telephone,  and  that  defendant  in  the  zeal  of  com- 
petition should  maliciously  intercept  the  messenger  and  induce  him 
to  reveal  the  nature  of  his  errand,  or  should  maliciously  tap  the  tel- 
ephone wire  and  with  the  advantage  thus  acquired  should  rush  their 
wagons  to  the  front  and  deprive  the  company  of  the  sales  which  it 
would  otherwise  have  made,  we  think  no  advocate  of  the  widest  al- 
lowable license  of  unrestricted  competition  would  contend  that  this 
would  not  constitute  a  legal  wrong,  even  though  the  conduct  com- 
plained of  did  not  in  fact  amount  to  an  interference  with  an  existing 
contract.  For  the  same  reason  we  think  the  defendants  could  not, 
upon  the  plea  of  competition,  justify  any  malicious  interference  with 
existing  contracts  or  orders  of  the  Crystal  Company,  or  interfere 
witli  or  remove  the  cards  posted  as  an  invitation  or  notice  to  said  com- 
pany for  the  delivery  of  oil ;  but  we  think  the  court  cannot  assume 
to  say,  as  a  matter  of  law,  that  the  display  of  such  cards  constituted 
in  itself  either  a  contract  or  order.  It  may  be  open  to  some  question 
whether  the  error  of  the  instruction  was  of  a  prejudicial  character, 
but,  taking  the  record  as  a  whole,  we  think  it  the  safer  conclusion  to 
solve  that  doubt  in  the  appellants'  favor. 

3.  The  trial  court  correctly  instructed  the  jury  that,  if  plaintiff  had 
established  his  right  to  recover  because  of  the  wrongful  and  mali- 
cious acts  of  the  defendants  as  charged,  he  was  entitled  to  a  verdict 
for  the  actual  damages  so  sustained  by  the  Crj^stal  Company,  to  which 
sum  the  jury  w^ere  at  liberty  to  add  exemplary  damages.  It  also, 
in  another  connection  and  in  a  general  way,  told  the  jury  that,  if  found 
entitled  to  recover,  plaintiff  should  also  be  allowed  interest  on  the 
damages  so  sustained.  The  jury  returned  a  general  verdict  for  plain- 
tiff for  a  sum  stated  in  round  numbers,  but  not  indicating  what  part, 
if  any,  of  said  amount  was  allowed  as  exemplary  damages.  Neither 
does  it  indicate  how  much  of  the  verdict  is  for  interest,  nor  on  what 
part  of  it  interest  was  computed.  The  point  is  made  that  interest  is 
not  allowable  upon  exemplary  damages,  and  as  there  are  no  data 
or  basis  from  which  to  determine  what  part  of  the  verdict  represents 
damages  of  that  kind  there  is  no  way  in  which  the  court  can  cure 
or  remove  the  prejudice.  We  see  no  way  to  avoid  the  force  of  this 
objection.  It  may  be  that  little  or  no  allowance  was  made  for  exem- 
plary damages;  it  may  also  be  that  no  interest  was  computed;  but 
there  is  nothing  by  which  to  determine  that  fact.  It  may  also  be  that 
much  the  larger  part  of  the  verdict  was  for  exemplary  damages,  and  if 
so,  and  interest  was  computed  thereon  (as  the  jury  under  the  court's 
charge  may  have  felt  authorized  to  do),  the  amount  of  the  recovery 


1350  TORTS  THROUGH  ACTS  OF   CONDITIONAL  LIABILITY        (Part  3 

must  have  been  very  materially  increased  by  that  item.  Interest  as 
such  upon  exemplary  damages  is  not  recoverable.  16  Am.  &  Eng. 
Ency.  Law  (2d  Ed.)  1031.  The  error  is  one  which  is  not  amenable  to 
correction  in  this  court,  except  by  an  order  for  a  new  trial.     *     *     * 

For  the  reasons  stated,  the  judgment  of  the  district  court  is  re- 
versed, and  the  cause  remanded  for  a  new  trial. 

Reversed.^* 


BOGGS  V.  DUNCAN-SCHELL  FURNITURE   CO. 

(Supreme  Court  of  Iowa,  1913.    163  Iowa,  106,  143  N.  W.  4S2,  L.  R.  A.  1915B, 

1196.) 

This  action  was  brought  against  the  Duncan-Schell  Furniture  Com- 
pany to  recover  damages  for  an  alleged  injury  to  the  plaintiff's  busi- 
ness. The  plaintiff  claimed  that  on  February  1,  1910,  he  was  the  ex- 
clusive agent  for  the  sale  of  the  New  Improved  White  sewing  machine 
in  Lee  county  and  adjoining  counties ;  that  the  defendant  Duncan- 
Schell  Furniture  Company,  prior  to  that  time,  had  been  selling  the 
same  machines  for  profit,  or  as  agents  for  the  said  sewing  machine 
company;  that,  after  plaintiff  had  secured  the  sole  and  exclusive 
agency  for  said  machine,  and  while  he  was  selling  the  same  as  agent, 
the  defendants,  for  the  purpose  of  destroying  plaintift"'s  business,  and 
breaking  him  up  financially,  anl  putting  him  out  of  business,  maliciously 
and  willfully  procured  various  old  styles  of  said  White  sewing  ma- 
chine, and  advertised  the  same  at  a  price  of  $24.75,  and  published 
that  they  were  selling  the  latest  improved  drop  head  White  sewing 
machine  for  that  price,  the  same  kind  of  machine  which  the  plain- 
tiff was  handling,  and  was  selling  for  $45  ;  that  the  selling  price  of 
the  sewing  machines,  and  the  price  at  which  the  defendants  sold  the 
machine  during  the  time  the  defendant  company  was  the  agent,  was 
$45;  that  defendants  further  advertised  and  published  that  they  had 
just  received  new  White  sewing  machines,  both  rotary  and  vibrator, 
which  they  would  sell  at  $24.75 ;  that  they  did  not  have  any  such 
machines,  and  the  statement  that  they  had  just  received  them  was 
untrue ;  that  the  defendants  had  not  received,  at  any  time,  any  new 
White  sewing  machines  of  the  rotary  type;  that  they  further  falsely 
said  that  the  machines  just  received  by  tliem  were  of  the  latest  pattern 
of  said  machine.  The  usual  market  price  of  the  latest  improved  White 
sewing  machine  was  $45,  and  the  defendants  knew  this  at  the  time. 
Plaintiff  says  all  the  foregoing  acts  were  committed  by  the  defendants 
willfully  and  maliciously,  and  for  the  sole  purpose  of  driving  the  plain- 
tiff out  of  business  in  the  sale  of  his  machines,  and  for  the  purpose  of 
falsely  putting  the  plaintiff  in  the  light  of  a  dishonest  dealer,  and 
unworthy  of  patronage,  in  that  he  was  attempting  to  sell  a  $25  ma- 

6  4  Parts  of  the  opinion  are  omitted. 


Ch.  2)  TORTS  THROUGH  MALICE  1351 

» 

chine  for  $45.  Defendants'  answer  to  plaintiff's  claim  is  a  general 
denial.  Upon  the  issues  tlnis  tendered,  the  cause  was  tried  to  a  jury, 
and  resulted  in  a  verdict  and  judgment  for  the  plaintiff.  The  defend- 
ants appealed. 

On  the  trial  these  facts  appeared  in  the  evidence: 

The  defendant  Duncan  inserted  the  following  advertisments  in  one  of  the 
daily  papers  published  in  Keokuk  on  or  about  March  2d: 

"Duncan-Schell  Furniture  Co.  March  Sale  Special. 
"[Followed  by  a  cut  of  a  White  Sewing  Machine.] 
"Automatic  Drop  Lift  White  Sewing  Machine,  both  Vibratory  and 
Rotary,  Latest  Pattern $24.75" 

And  again: 

"March  Sale  Prices  on  Sewing  Machines. 
"More  White  Machines  just  received.     March   Sale  price  on  White 
Sewing  Machines,  the  latest  patterns,  both  Vibratory  and  Rotary. ..  .$24.75" 

Again: 

"March  Sale  on  Special  Sewing  Machines. 

"[With  cut  of  White  Machine  in  advertisement.] 
"More  White  Sewing  Machines  just  received. 
"March  Sale  Special. 

"White  Sewing  Machines  in  latest  patterns,  both  vibratory  and  ro- 
tary     $24.75" 

Again,  with  the  same  heading: 

"The  March  Sale  of  Drop  Head  White  Sewing  Machines  of  the  lat- 
est   pattern $25.00" 

Again,  with  the  same  caption: 

".$25.00  buys  the  latest  improved  6  Drawer  Drop  Head  White  Sewing  Ma- 
chine, with  Automatic  Lift  and  best  set  of  attachments." 

Again,  the  same  caption,  with  cut  of  White  Sewing  Machine: 

"The  best  machine  at  any  price $25.00 

"Your  money  back  in  365  days  if  you  are  not  convinced  you  have  the 
best  on  earth.  White  Sewing  Machine  with  White  Sewing  Machine 
Co.'s    guarantee $25.00" 

Then  in  September  appeared  the  following  advertisement: 

"Duncan-Schell  Furniture  Co.'s  Annual  September  Sale. 
"$25.00  buys  the  latest  improved  6  Drawer,  Drop  Head  White  Sewing  Ma- 
chine, with  Automatic  Lift  and  best  set  of  attachments." 

Then  follows  practically  the  same  advertisement  that  appeared  in  March. 

Some  time  before  these  advertisements  appeared,  and  on  or  about  Febru- 
ary 1st,  Duncan  had  said  to  the  plaintiff:  "Boggs,  I  understand  that  you  are 
going  to  take  the  agency  for  the  White  sewing  machine.  You  know  you  have 
no  money,  and  you  cannot  get  the  machines,  and.  if  you  get  them,  I  will  run 
you  out  of  business  with  the  same  machine."  After  the  advertisements  came 
out  in  March,  Duncan  said  to  the  plaintiff:  "Boggs,  have  we  starved  you  out 
yet?  If  you  are  not  starved  out  yet,  we  will  soon  see  that  you  are  starved 
out." 

The  defendants  did  not  buy  any  White  sewing  machines  of  the  White  Sew- 
ing Machine  Company  in  1910,  or  at  any  time  after  that.  On  an  offer  by  the 
White  Sewing  Machine  Company  in  September,  1910,  to  buy,  at  the  defend- 
ants' own  price,  all  the  White  machines  which  the  defendants  then  had,  Dun- 
can declined  to  sell  at  all,  saying  that  he  wanted  to  keep  them  as  souvenirs. 
When  told  that  he  was  hurting  Boggs  and  the  White  Sewing  Machine  Com- 
pany, he  answered  that  he  did  not  care  for  that;    he  advertised  as  he  pleased. 

The  Duncan-Schell  Furniture  Company,  prior  to  the  time  Boggs  became 
the  sole  a^'ent,  had  handled  these  White  sewing  machines,  and  sold  them  at 
retail,  and  had  done  so  for  a  number  of  years.    Boggs  was  then  in  the  serv- 


1352  TOUTS   THROUGH   ACTS   OP   CONDITIONAL   LIABILITY         (Part  3 

ice  of  the  defendant  company  as  its  asent  in  disposing  of  those  machines. 
When  Boggs  quit,  the  company  had  12  White  macluues  on  hand,  eight  in  its 
Keokulv  store,  and  four  in  its  Carthage  store.  The  latter  were  brought  to 
Keokuk  in  March,  1910.  The  company  had  bought  these  machines  outriglit 
from  the  White  Sewing  Machine  Company.  They  were  not  the  latest  improv- 
ed pattern  of  the  White  machine,  and  did  not  have  the  attachments  adver- 
tised. The  company  had  not  just  received  thorn,  as  stated  in  the  advertise- 
ment, and  they  were  not  furnished  with  the  improvements  advertised.  The 
machines  handled  by  the  plaintiff  were  of  that  character  and  kind,  and  had 
the  latest  improvements.  5  5 

Gaynor,  J.,  after  stating  the  facts  shown  in  the  evidence :  So  it  is 
apparent  that,  upon  the  issues  tendered  by  the  plaintiff,  there  was  evi- 
dence upon  which  the  jury  might  well  find  all  the  material  facts,  upon 
which  plaintiff  bases  his  right  to  recover,  established,  both  as  to  what 
the  defendants  did,  and  as  to  the  motive  by  which  they  were  ac- 
tuated in  the  doing.  We  do  not  understand  that  the  defendants  seri- 
ously questioned  this,  but  contend  that,  conceding  the  facts  to  be 
established  as  alleged,  and  as  established  by  the  evidence,  still  the  plain- 
tiff has  no  right  to  recover :  (1)  Because  the  defendants  had  an  abso- 
lute right  to  publish  the  advertisements  complained  of,  and  their 
motive  in  so  doing  cannot  be  questioned.  (2)  That,  inasmuch  as  the 
advertisements  complained  of  made  no  attack  upon  the  plaintiff',  or 
upon  the  machines  kept  for  sale  by  the  plaintiff,  no  legal  right  of 
Boggs  was  assailed  by  the  defendants,  and  whether  they  thought 
good  or  ill  of  him  when  they  published  these  articles  is  immaterial. 
(3)  That  public  policy  forbids  that  the  motive  of  established  trader, 
in  publishing  a  legal  advertisement  of  his  own  wares,  shall  be  inquired 
into  or  questioned. 

Defendants'  contention  resolves  itself  into  the  proposition  that  ma- 
licious motives  in  the  doing  of  an  act  may  make  the  act  worse,  where 
the  act  is  wrongful  or  unlawful,  yet  it  cannot  make  that  wrong  or  un- 
lawful which  is,  in  itself  not  unlawful  or  wrongful ;  or,  in  other  words, 
that  an  action  cannot  be  predicated  upon  the  doing  of  an  act  which 
does  not,  in  itself,  amount  to  a  legal  wrong,  because  the  party  doing 
the  act  was  moved  to  it  by  a  wicked  or  malevolent  heart.  There- 
fore the  defendant  contends  that,  as  it  had  in  its  possession  certain 
White  sewing  machines,  and  had  the  same  for  sale,  the  fact  that  they 
wrongfully  or  purposely  deceived  the  public  as  to  the  character  or  the 
quality  of  the  articles  for  sale  would  not  entitle  one  engaged  in  the 
same  business  to  complain,  though  the  defendant,  in  the  doing  of  the 
act,  had  the  purpose  and  intent  to  injure  his  competitor,  and  was,  in 
fact,  actuated  by  malice  towards  his  competitor,  and  though  the  com- 
petitor lost  his  business  by  reason  of  the  defendant's  conduct. 

This  would  seem  like  a  simple  proposition,  and,  abstractly  consider- 
ed, would  appeal  to  any  mind,  possessing  legal  acumen,  as  sound.  No 
one  could  seriously  question  the  proposition  that,  if  one  does  that  only 
which  he  has  a  right  to  do  under  the  law,  and  does  it  in  a  legal 

65  The  statement  of  facts  is  abridged,  and  part  of  the  opinion  is  omitted. 


Ch.  2)  TORTS  THROUGH  MALICE  1353 

way,  he  ought  not  to  be  called  to  account  for  his  conduct,  no  matter 
what  his  motive  might  be,  and  there  are  many  authorities  to  support 
the  abstract  proposition  tlxat  a  lawful  act  cannot  be  made  the  founda- 
tion of  an  action  because  it  was  done  with  an  evil  motive,  and  some 
cases  have  held  that  the  motive  with  which  an  act  is  done  is  not  an 
element  of  a  civil  wrong.  It  may  go  to  enhance  the  damages,  but  is 
not  an  element  of  the  wrong  itself. 

In  Guethler  v.  Altman,  26  Ind.  App.  587,  60  N.  E.  355,  84  Am.  St. 
Rep.  313,  an  action  in  which  a  merchant  sought  to  recover  damages  of 
the  members  of  the  school  board  and  a  teacher  in  the  school,  on  the 
ground  that  tliey  had  willfully  and  maliciously  prevented  their  stu- 
dents, by  threats  and  intimidations,  from  trading  at  plaintiff's  store, 
alleging  that  they  had  talked  to  the  pupils,  advising  them  to  stay  away 
from  plaintiff's  place  of  business,  and  to  purchase  their  supplies  else- 
where, and  threatening  that,  if  they  did  not  do  so,  they  would  be  sus- 
pended, and  that,  as  a  result  of  the  wrongful  act  of  the  defendants, 
plaintiff  was  injured  in  his  business,  plaintiff  alleged  that,  when  high 
school  pupils  started  to  enter  his  store,  they  would  discover  they  were 
being  w^atched  by  the  defendant,  Crull,  and  they  would  turn  away  and 
not  enter ;  that  Crull  wrote  letters  to  the  parents  of  the  pupils  contain- 
ing threats  that,  if  the  pupils  visited  plaintift''s  store,  they  would  be 
suspended,  and  that  it  w-as  all  done  with  the  systematic  purpose  and 
intent  of  injuring  plaintiff  in  his  business ;  that  Crull  was  following 
the  instructions  of  the  other  defendants  in  what  he  did ;  and  that 
plaintiff  was  thereby  injured  in  his  business.  The  case  was  disposed 
of  on  demurrer.  In  the  opinion  delivered  by  the  Supreme  Court,  it 
says:  "It  was  not  an  unlawful  act  for  Crull  to  advise  or  persuade 
the  pupils  not  to  visit  appellant's  store.  The  fact  that  he  acted  mali- 
ciously does  not  change  the  rule.  The  act  which  is  not  unlawful 
in  itself,  and  which  violates  no  right,  cannot  be  made  actionable  be- 
cause of  the  motive  which  induced  it.  A  malicious  motive  will  not 
make  that  wrong  which,  in  its  own  essence,  is  lawful,  and  cites,  in 
support  of  tliat  rule,  Chatfield  v.  Wilson,  28  Vt.  49 ;  Jenkins  v.  Fowl- 
er, 24  Pa.  308 ;  Frazier  v.  Brown,  12  Ohio  St.  294 ;  Phelps  v.  Nowlen, 
72  N.  Y.  39,  28  Am.  Rep.  93 ;  Cooley  on  Torts  (2d  Ed.)  832 ;  Boyson 
v.  Thorn,  98  Cal.  578,  33  Pac.  492,  21  L.  R.  A.  233.  Many  other  cases 
might  be  cited  in  support  of  this  abstract  proposition. 

These  cases  present,  as  strongly  as  any,  the  application  of  the  ab- 
stract rule  contended  for  by  appellant.  They  present  the  general  rule 
to  concrete  cases  that,  what  a  man  has  a  lawful  right  to  do,  he  may 
do,  no  matter  what  his  motive  may  be,  no  matter  what  injuries  may 
result  from  it,  and  yet  not  be  called  to  answer  for  his  conduct. 

It  is  not  so  difficult  to  know  what  the  law  is  as  to  know  what  is  a 
just  and  fair  and  right  application  of  tlie  law  to  a  given  state  of  facts. 
As  civilization  advances,  and  the  social  and  business  conditions  be- 
come more  involved  and  complicated,  when  even  legitimate  competi- 


1354  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

tion  has  become  so  strong  that  even  honest  men  are  tempted  to  force 
their  way  beyond  the  Hmits  of  legitimate  competition,  the  law — which 
is  a  rule  of  civil  conduct  for  the  government  of  men  in  their  social 
and  business  relationships — oug'ht  to  keep  pace  with  the  new  condi- 
tions. The  integrity  of  the  social  order,  the  stability  of  business  itself, 
requires,  and  the  law  should  require,  that  every  man  conduct  him- 
self in  full  recognition  of  the  fact  that  he  is  a  member  of  that  social 
order;  that  he  not  only  has  rights,  but  has  corresponding  duties; 
and  that  the  performance  of  those  duties  is  as  binding  upon  him  as  a 
member  of  the  social  order  as  are  the  rights  given  to  him.  Men,  as 
members  of  organized  society,  under  the  law,  have  the  right  to  do  cer- 
tain things ;  but  that  right  is  restricted  and  limited  by  the  duty  imposed 
upon  them  not  to  exercise  those  rights  wantonly  and  willfully  to  the 
injury  of  another.  In  the  exercise  of  the  law-given  right,  the  well- 
being  of  the  social  order  requires  that  each  person  should  exercise 
his  right  consistently  with  the  fact  tliat  he  is  a  member  of  the  social 
order  out  of  which  his  rights  grew.  While  a  person  has  the  right 
to  pursue  his  avocations  and  his  business  for  his  own  pleasure  and 
profit,  he  has  no  right,  directly  or  indirectly,  to  willfully  and  mali- 
ciously injure  another  in  his  lawful  business  or  occupation.  Men  have 
the  right  to  engage  in  lawful  competition,  and,  though  the  competi- 
tion may  have  the  effect  of  driving  another  out  of  business,  if  the  com- 
petition is  lawful,  no  action  arises,  though  injury  resulted  from  the 
competition.  Where  there  is  lawful  competition  for  gain,  for  su- 
premacy in  business,  for  the  legitimate  control  of  business,  even  though 
the  purpose  and  effect  of  the  competition  is  to  drive  from  business 
competitors,  yet,  if  the  competition  is  laAvful  and  carried  on  in  a  law- 
ful way,  no  action  will  lie.  There  is  a  difference  between  lawful  com- 
petition and  simulated  competition  carried  on  with  the  sole  purpose 
and  intent,  not  of  profit  and  gain,  but  of  maliciously  injuring  otliers 
engaged  in  that  particular  business. 

The  case  before  us  does  not  present  a  case  of  lawful  competition,  but 
a  case  of  simulated  or  pretended  competition,  designed  and  carried  out 
with  malice  for  the  purpose  of  injury  to  the  plaintiff  in  his  business. 
At  least  the  jury  might  have  so  found  from  the  evidence.     *     *     * 

Every  man  has  the  legal  right  to  advance  himself  before  his  fellows, 
and  to  build  up  his  own  business  enterprises,  and  to  use  all  lawful 
means  to  tlxat  end,  although  in  the  path  of  his  impetuous  movements 
he  leaves  strewn  the  victims  of  his  greater  industry,  energy,  skill,  prow- 
ess or  foresight.  But  the  law  will  not  permit  him  to  wear  the  garb 
of  honor  only  to  destroy.  The  law  will  not  permit  him  to  masquerade 
in  the  guise  of  honest  competition  solely  for  the  purpose  of  injuring 
his  neighbor.  The  law  will  not  permit  him  to  simulate  that  which  is 
right  for  the  sole  purpose  of  protecting  himself  in  the  doing  of  that 
which  is  palpably  wrong.     *     *     * 

We  find  no  error  in  the  record,  and  the  case  is  affirmed. 


Ch.  2)  TORTS   THROUGH   MALICE  135i 


III.  In  Labor  Contests;   Strikes,  Lockouts,  Boycotts 

But  the  vital  question  remains  whether  a  court  of  equity  will,  under 
any  circumstances,  by  injunction,  prevent  one  individual  from  quit- 
ting the  personal  service  of  another?  An  affirmative  answer  to  this 
question  is  not,  we  think,  justified  by  any  authority  to  which  our  at- 
tention has  been  called  or  of  which  we  are  aware.  It  would  be  an  in- 
vasion of  one's  natural  liberty  to  compel  him  to  work  for  or  to  re- 
main in  the  personal  service  of  another.  One  who  is  placed  under 
such  constraint  is  in  a  condition  of  involuntary  servitude, — a  condi- 
tion which  the  supreme  law  of  the  land  declares  shall  not  exist  with- 
in the  United  States,  or  in  any  place  subject  to  their  jurisdiction. 
Courts  of  equity  have  sometimes  sought  to  sustain  a  contract  for 
services  requiring  special  knowledge  or  peculiar  skill,  by  enjoining 
acts  or  conduct  that  would  constitute  a  breach  of  such  contract.  To 
this  class  belong  the  cases  of  singers,  actors,  or  musicians,  who  after 
agreeing,  for  a  valuable  consideration,  to  give  their  professional  serv- 
ice, at  a  named  place  and  during  a  specified  time,  for  the  benefit  of 
certain  parties,  refuse  to  meet  their  engagement,  and  undertake  to 
appear  during  the  same  period  for  the  benefit  of  other  parties  at  an- 
other place.  Lumley  v.  Wagner,  1  De  Gex,  M.  &  G.  604,  617;  Id., 
5  De  Gex  &  S.  485,  16  Jur.  871 ;  Montague  v.  Flockton,  L.  R.  16  Eq. 
189.  While  in  such  cases  the  singer,  actor,  or  musician  has  been  en- 
joined from  appearing  during  the  period  named  at  a  place  and  for 
parties  different  from  those  specified  in  his  first  engagement,  it  was 
never  supposed  that  the  court  could  by  injunction  compel  the  affirma- 
tive performance  of  the  agreement  to  sing  or  to  act  or  to  play.  In  Powell 
Duffryn  Steam-Coal  Co.  v.  Taff  Vale  Ry.  Co.,  9  Ch.  App.  331,  335, 
Lord  Justice  James  observed  that  when  what  is  required  is  not  merely 
to  restrain  a  party  from  doing  an  act  or  wrong,  but  to  oblige  him  to 
do  some  continuous  act  involving  labor  and  care,  the  court  has  never 
found  its  way  to  do  this  by  injunction.  In  the  same  case  Lord  Jus- 
tice Mellish  stated  the  principle  still  more  broadly,  perhaps  too  broad- 
ly, when  he  said  that  a  court  can  only  order  the  doing  of  something 
which  has  to  be  done  once  for  all,  so  that  the  court  can  see  to  its  be- 
ing done. 

The  rule,  we  think,  is  without  exception  that  equity  will  not  compel 
the  actual,  affirmative  performance  by  an  employe  of  merely  personal 
services,  any  more  than  it  will  compel  an  employer  to  retain  in  his 
personal  service  one  who,  no  matter  for  what  cause,  is  not  acceptable 
to  him  for  service  of  that  character.  The  right  of  an  employe  en- 
gaged to  perform  personal  service  to  quit  that  service  rests  upon  the 
same  basis  as  the  right  of  his  employer  to  discharge  him  from  further 
personal  service.  If  the  quitting  in  the  one  case  or  the  discharging  in 
the  other  is  in  violation  of  the  contract  between  the  parties,  tlie  one  in- 


1356  TOUTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

jured  by  the  breach  has  his  action  for  damages;  and  a  court  of  equi- 
ty will  not,  indirectly  or  negatively,  by  means  of  an  injunction  restrain- 
ing the  violation  of  the  contract  compel  the  affirmative  performance 
from  day  to  day  or  the  affirmative  acceptance  of  merely  personal  serv- 
ices. Relief  of  that  character  has  always  been  regarded  as  impracti- 
cable. 

Mr.  Justice  Harlan,  in  Arthur  v.  Oakes  (1894). ^« 


In  1705  it  was  decided  that,  if  wild  ducks  alight  in  the  plaintiff's 
decoy  pond,  the  defendant,  though  he  has  the  right  to  set  up  a  rival 
decoy  pond  on  his  own  land  and  by  offering  greater  inducements  per- 
suade the  wild  ducks  to  pass  by  the  plaintift"s  pond  and  come  to  his 
own,  and  though  he  has  the  further  right  on  his  own  land  to  shoot  or 
shoot  at  the  wild  ducks  that  are  on  or  are  passing  over  his  own  land, 
even  if  the  eft"ect  is  to  scare  away  the  wild  ducks  that  are  on  the  plain- 
tiff's land,  still  he  has  no  right  to  shoot  off  guns  or  explode  rockets  on 
his  own  land,  when  the  purpose  and  the  only  possible  effect  is  to  fright- 
en the  wild  ducks  from  the  plaintiff''s  pond.  Whether  the  law  was  so 
determined  on  account  of  the  difficulty  of  enforcing  statutes  to  regulate 
the  movements  of  ducks,  or  because  the  competition  was  between  mem- 
bers of  the  same  caste,  it  is  needless  to  speculate ;  but  certain  it  is  that 
the  court  had  no  difficulty  in  deciding  that  an  action  would  lie  even 
if  the  plaintiff  had  no  dominant  right  over  the  defendant — would  lie 
simply  because  the  defendant  was  abusing  a  coequal  right  of  his  own — 
was  doing  a  harm  purely  for  the  sake  of  the  harm. 

Through  all  these  instances,  and  more  can  undoubtedly  be  found,  one 
broad  principle  runs — a  principle  broad  enough  to  serve  as  a  basis 
for  a  classification  of  all  litigation  under  one  or  the  other  of  two 
heads.  Under  one  the  plaintiff  complains  of  a  harm  that  flows  from 
the  defendant's  invasion  of  the  plaintift''s  absolute,  exclusive,  dominant 
right ;  under  the  other  the  plaintiff  complains  of  a  harm  that  flows 
from  the  manner  in  which  the  defendant  exercises  his  coequal,  com- 
petitive right.  And  the  principle  running  through  all  the  instances  I 
have  given  of  the  latter  class  is  this :  Wherever  there  is  an  antinomy 
— a  conflict  between  coequal  and  competitive  rights — the  one  party 
must  suffer  in  silence  the  harm  that  is  the  direct  and  natural  conse- 
quence of  the  other's  bona  fide  effort  to  benefit  himself  by  the  exercise 
of  his  competitive  right,  but  does  not  have  to  submit  to  the  harm  that 
is  attributable  exclusively  to  malevolence.     Take  the  spite  fence,  for 

BO  03  Fed.  310,  317,  11  C.  C.  A.  209,  25  L.  R.  A.  414;  Justice  Harlan  there 
delivering  the  opinion  of  the  Circuit  Court  of  Appeals  for  the  Seventh  Cir- 
cuit. On  the  point  that  the  relief  snsfiostofi  was  impracticable,  specific  ref- 
erence was  made  to  Toledo.  A.  A.  &  N.  M.  Ky.  Co.  v.  I'ennsylvaiiia  Co.  (G.  C. 
189:3)  54  Fed.  730.  740.  19  L.  II.  A.  387,  Taft,  J.,  and  authorities  cited;  Fry, 
Spec.  rerf.  (3d  Am.  Ed.)  §§  87-91,  and  authorities  cited. 


Ch.  2)  TORTS  THROUGH  MALICE  1357 

instance.  The  harm  to  you  is  one  and  the  same  whether  your  neighbor 
Hmits  your  access  to  hght  and  air  by  means  of  a  useless  fence  fifty 
feet  high  or  a  useful  house  fifty  feet  high.  If  he  builds  tlie  useful 
house,  he  knows  that  your  supply  of  light  and  air  will  be  curtailed, 
and  in  that  sense  he  intends  harm.  But  the  hann  you  suffer  is  only 
the  inevitable  harm  that  comes  from  his  beneficial  enjoyment  of  his 
property.  Organized  society,  government,  has  conferred  upon  you 
and  your  neighbor  coequal  rights,  limited  and  conditioned  by  coequal 
obligations.  If  he  builds  the  useless  fence  to  punish  you,  I  say  he  is 
exercising  neither  a  legal  nor  a  moral  right.  If  he  thinks  you  guilty 
of  violating  the  laws  of  the  land,  organized  society,  government,  has 
not  authorized  him  to  act  as  prosecutor,  judge,  jury,  and  executioner. 
If  he  thinks  you  guilty  of  violating  the  laws  of  God,  he  has  not  been 
ordained  to  administer  God's  punishment. 

The  underlying  principle  above  stated  may  be  expressed  in  a  slightly 
different  form :  Wherever  there  is  a  conflict  between  coequal  and 
competitive  rights,  so  exercise  your  right  that  you  do  not  unnecessarily 
interfere  with  your  neighbor  in  the  exercise  of  his  eqvial,  reciprocal 
right.  This  was  a  universal  maxim  of  the  civil  law.  "Sic  utere  tuo 
ut  alienum  non  Isedas."  It  was  transported  sporadically  by  the  old 
English  chancellors  into  the  English  common  law.  In  our  land,  under 
our  pledges  of  manhood  equality,  no  interpretation  of  our  common 
law  should  long  endure  that  gives  to  any  man  under  any  circumstances 
the  right  to  inflict  a  wanton  and  malicious  injury. 

By  "wanton  and  malicious"  I  do  not  mean  the  subjective  state  of 
mind  of  the  doer  of  the  harm,  as  determined  by  some  psychologist  or 
other;  I  mean  the  character  of  the  act  as  determined  objectively  by 
weighing  the  external  facts  and  circumstances ;  I  mean  motive  as 
judged  by  setting  up  ideally  the  average  good  neighbor  as  a  standard, 
just  as  in  the  law  of  negligence  we  set  up  ideally  the  average  prudent 
man  as  a  standard. 

I  have  been  endeavoring  to  develop  before  you  the  idea  that  the 
strike  is  not  a  question  that  stands  by  itself,  to  be  solved  according 
to  separate  and  unique  principles,  to  be  dealt  with  by  processes  that 
are  applicable  to  it  alone.  While  at  first  blush  it  may  seem  a  far  cry 
from  wild  ducks  to  strikes,  yet  on  reflection  I  hope  you  will  agree 
that  the  contestants  in  the  wald  game  cases,  in  the  light  and  air  cases, 
in  the  spring  and  well  cases,  in  the  natural  oil  and  gas  cases,  did  not 
have — any  one  of  them  as  against  his  opponent — an  absolute  and  ex- 
clusive right;  that  the  right  of  each  was  limited  and  qualified  by  the 
right  of  the  other ;  and  that  their  rights  in  the  common  source  of  sup- 
ply— the  common  fund — were  coexistent  and  coequal.  And  since,  as 
I  have  already  stated,  a  strike,  originating  in  a  competition  or  strug- 
gle over  the  division  between  wages  and  dividends,  involves  a  com- 
petition or  struggle  for  control  of  the  labor  market — involves  the  ef- 
fort of  each  side  to  draw  to  itself  the  common  fund  of  available  labor 


1358  TORTS  THROUGH  ACTS  OF  CONDITIONAL   LIABILITY         (Part  3 

— I  hope  you  will  also  agree  that  the  strike  case  is  not  unique,  but  is 
merely  one  of  a  broad  class.  And  if  the  principles  of  truth  and  jus- 
tice that  govern  all  other  cases  of  the  same  kind  have  been  properly 
declared,  then  a  means  for  measuring  the  rights  of  labor  in  its  con- 
flict with  capital  is  to  apply  the  saine  principles  to  the  strike  case. 

If  we  examine,  for  example,  a  supposititious  strike  of  bricklayers 
against  their  employing  contractor,  we  find  that  they  intend  to  deprive 
him  of  their  own  labor  and  to  prevent  him  from  getting  otlicr  labor 
to  take  their  places.  They  knowingly  inflict  the  harm  as  a  means  of 
compelling  him  to  grant  their  demands.  This  infliction  of  harm  is  un- 
justifiable unless  the  harm  comes  from  a  truly  competitive  act.  That 
is,  the  demands  must  be  pending.  For  if  there  were  no  demands  pend- 
ing, the  infliction  of  harm  would  properly  be  charged  to  a  desire  to 
harm  for  the  sake  of  harm  as  the  end.  And  further,  the  demands  must 
really  and  substantially  relate  to  the  terms  and  conditions  of  the  brick- 
layers' employment.  For  instance,  a  demand  that  the  contractor  some- 
how or  other  compel  the  theaters  to  employ  union  musicians  is  out- 
side of  the  direct  and  immediate  interests  of  bricklayers  as  bricklayers; 
and  a  strike  merely  to  enforce  such  a  demand — a  sympatlietic  strike 
— is  therefore  unlawful.  For  the  sympathetic  strike,  like  the  spite 
fence,  is  not  the  beneficial  use  of  a  coequal  right,  but  is  the  usurpation 
of  the  power  to  punish. 

This  infliction  of  harm  is  unjustifiable  unless  the  harm  is  only  the 
harm  that  naturally  and  directly  flows  from  the  good-faith  exercise 
of  the  competitive  right.  That  is,  the  loss  to  his  business  that  the 
contractor  suffers  by  reason  of  the  striking  bricklayers  presenting  their 
side  of  the  controversy  to  other  bricklayers  (actual  or  potential)  so 
that  the  other  bricklayers  freely  and  of  their  own  judgment  decline  to 
work  for  the  contractor,  must  be  suffered  by  him  without  complaint. 
Therefore,  persuasion  and  picketing  limited  to  learning  who  the  new 
bricklayers  are  to  whom  to  present  their  cause,  are  lawful ;  and  all 
judgments  to  the  contrary  are  wrong,  as  I  believe.  But  the  use  of 
force  or  intimidation  to  keep  other  bricklayers  away  from  the  contractor 
against  their  will  is  unjustifiable,  because  it  deprives  the  contractor 
of  his  coequal  right  of  access  to  a  free  labor  market.  And  it  must  not 
be  forgotten  that  force  and  intimidation  are  just  as  unlawful  when 
exercised  under  the  guise  of  persuasion  or  picketing.  More  unjustifia- 
ble than  the  use  of  force  and  intimidation  to  keep  new  bricklayers 
away  is  the  combined  assault  of  the  striking  bricklayers  upon  the 
business  of  outsiders  for  the  purpose  of  compelling  them  to  cut  off 
all  intercourse  with  the  contractor.  The  strikers  may  deprive  the  con- 
tractor of  their  own  society  and  trade,  if  they  choose,  for  that  is  in  the 
exercise  of  a  coequal  right;  but  concerted  pressure  by  the  strikers 
to  coerce  members  of  society  who  are  not  directly  concerned  in  the 
pending  controversy  with  the  contractor  to  make  raids  in  the  rear — 
the  secondary  boycott — is  wrong  not  only  because  such  action  is  not 


Ch.  2)  TORTS  THROUGH   MALICE  1359 

within  the  immediate  field  of  competition,  but  because  the  direct,  the 
primary  attack  is  upon  society  itself. 

Without  attempting  to  follow  further  this  supposititious  case  of  the 
bricklayers,  and  without  considering  the  many  difficult  complications 
of  fact  that  have  arisen  or  may  hereafter  arise  in  labor  cases,  I  venture 
to  express  my  belief  that  a  just  decree  can  always  be  framed  by  ap- 
plying to  the  controversy  the  principle  of  coequal  and  coexistent  rights 
in  a  common  fund  as  the  means  of  solution. 

Society — government — has  a  definite  interest  in  seeing  to  it  that 
harm  shall  be  kept  at  the  minimum  and  that  harm  shall  never  be  in- 
flicted for  the  mere  sake  of  the  harm.  But  independently  of  the  in- 
terests of  society,  one  set  of  rules  should  govern  the  action  of  both 
contestants.  Any  fighter  who  wants  to  be  fair  would  not  ask  for  more. 
If  blows  below  the  belt  are  prohibited  on  one  side,  they  should  be  pro- 
hibited to  the  other.  If  the  sympathetic  strike  is  a  foul  blow,  a  sym- 
pathetic lock-out  is  equally  foul.  If  a  boycott  under  certain  circum- 
stances is  held  to  be  an  attack  in  the  rear  and  tlierefore  prohibited, 
under  like  circumstances  a  blacklist  as  an  attack  in  tlie  rear  should 
also  be  prohibited.  In  short,  the  same  rights  and  the  same  restrictions 
should  be  applied  to  both.  And  for  the  enforcement  of  these  mutual 
and  reciprocal  rights  and  restraints  the  courts  of  our  land  offer  to 
both  parties  equally,  all  the  instrumentalities  of  law  and  of  equity. 

Judge  Francis  E.  Baker,  before  Chicago  Bar  Ass'n  (1911)."^ 


The  word  "boycott"  at  the  present  time  is  no  more  obnoxious  than 
was  the  word  ''strike"  a  quarter  of  a  century  ago.  Then  it  was  sought 
through  the  courts  of  equity  to  invoke  the  injunctive  writ  to  restrain 
laboring  men  from  organizing  a  peaceable  strike.  In  some  instances, 
inferior  federal  courts  granted  injunctions,  but  they  were  never  up- 
held in  the  superior  courts  of  the  country.  It  is  well  settled  now  that  a 
man,  or  a  number  of  men,  may  refuse  to  continue  to  work  for  their 
employer,  and  they  may  combine  for  tlie  purpose  of  organizing  a 
strike.  They  may  advise  others  to  quit  work  and  join  in  the  strike,  so 
long  as  no  contractual  rights  are  invaded,  and  they  may  advise  others 
not  to  engage  their  services  to  the  employer  against  whom  the  strike 
is  directed.  All  this  is  within  their  constitutional  rights,  and  is  justi- 
fied by  their  freedom  to  do  those  things  which  they  think  will  better 
their  condition.  It  is  no  answer  that  it  may  not,  in  many  instances, 
accomplish  that  end,  or  that  it  invariably  damages  the  employer  and 
interferes  with  his  property  rights.  Of  course,  a  man  has  a  property 
right  in  his  business,  so  has  a  laboring  man  a  property  right  equally 

5  7  Judge  Baker's  paper  has  been  printed  in  5  111.  I-/a\v  Rev.  453,  462^65. 

On  the  right  to  strike,  historically  considered,  see  Mr.  W.  A.  Purrington's 
article  on  "The  Tubwomen  v.  The  Brewers  of  London,"  3  Columbia  Law  Re- 
view 446  (1903).     See,  also,  24  Cyc.  820. 


1360  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

sacred  in  his  labor ;  and  when  these  rights  conflict,  there  must,  of  ne- 
cessity, be  injury  to  one  or  the  other,  or  both.  This  is  the  result  of 
conflicting  opinion  and  an  exigency  of  the  contractual  relation,  for 
which  the  law  furnishes  no  relief. 

I  am  not  unmindful  of  the  rule  of  the  common  law  that  combinations 
of  two  or  more  persons  to  injure  the  rights  of  others  were  held  to  be 
illegal.  But  if  the  injury  there  referred  to  be  held  to  include  the  com- 
bination of  two  or  more  persons  to  withhold  patronage  from  another, 
then  the  rule  of  the  common  law  has  long  since  been  overruled  by  the 
courts  of  this  country  in  dealing  with  strikes.  I  am  aware  that,  at 
common  law,  a  combination  of  two  or  more  persons  to  do  an  unlawful 
thing,  even  if  nothing  is  done  in  furtherance  of  the  intent,  is  a  con- 
spiracy,— a  substantive  ofliense ;  while  in  the  case  of  an  individual, 
there  can  be  no  offense  until  there  is  some  affimiative  act  tending  to 
carry  the  intent  into  effect.  But  that  has  no  bearing  where  the  unlaw- 
ful intent  is  the  same,  and  the  offense  has  actually  been  committed,  ei- 
ther by  the  individual  or  by  a  number  of  persons  combined  together  for 
that  purpose. 

The  old  rule  that  one  may  do  lawfully  what,  if  done  by  two  or  more 
persons  in  combination  together,  may  become  unlawful,  has  been 
greatly  modified  in  this  country.  It  is  a  rule  that  gained  currency  at  a 
time  when  even  the  right  of  assembly  was  looked  upon  with  disapprov- 
al and  suspicion.  When  this  rule  was  first  announced  by  the  English 
courts,  a  labor  union  would  not  have  been  tolerated.  In  one  of  the 
early  English  cases,  decided  in  1721  (Tubwomen  v.  Brewers  of  Lon- 
don, 3  Columbia  L.  Rev.  447),  it  was  held  to  be  a  criminal  conspiracy 
for  two  or  more  persons  to  combine  together  and  refuse  to  continue 
to  work  for  their  employer  unless  he  should  comply  with  their  demand 
for  higher  wages.  In  other  words,  it  was  held  to  be  a  criminal  con- 
spiracy for  workmen  to  join  together  and  strike.  It  was  conceded  in 
the  same  case  that  one  person  might  abandon  his  employment  if  his 
demand  was  not  complied  with,  but  it  was  held  unlawful  for  two  or 
more  persons  to  combine  together  for  the  purpose  of  demanding  higher 
wages.  It  was  held  that  such  a  combination  constituted  a  criminal 
conspiracy.  The  same  rule  was  applied  as  late  as  1809  in  New  York, 
in  the  case  of  Re  Journeymen  Cordwainers,  reported  in  Yates,  Sel. 
Cas.  111. 

The  right  of  laboring  men  to  organize  into  unions,  and  the  right  of 
these  unions  to  conduct  peaceable  strikes,  is  justified  because  of  their 
inability  to  compete  single-handed  in  contests  with  their  employers.  In 
this  competition,  any  peaceable  and  lawful  means  may  be  resorted  to, 
and  it  is  only  when  the  means  employed  become  unlawful  that  the 
courts  will  interfere.  The  law  recognizes  the  right  of  both  labor  and 
capital  to  organize.  The  contest  between  employer  and  employe  is  one 
which  courts  of  equity  should  recognize  as  entitled  to  be  fought  out 
upon  the  basis  of  equality;    and  the  rule  applied  by  the  courts  to  the 


Ch.  2)  TORTS  THROUGH  MALICE  1361 

Strike  is  based,  I  think,  upon  that  principle.  The  fundamental  princi- 
ple underlying  this  contest  is,  that  the  employer  who  employs  one 
thousand  workmen  is  in  possession  of  the  same  competitive  power  to 
force  those  workmen  to  his  terms  as  the  one  thousand  workmen,  by 
the  most  powerful  lawful  organization,  have  to  force  him  to  a  compli- 
ance with  their  terms.  The  contest,  therefore,  opens  with  the  one  on 
one  side  and  a  thousand  on  the  other  upon  a  substantial  basis  of  equal- 
ity. The  employer  has  a  property  right  in  his  business  which  he  asks 
the  courts  to  protect,  and  which  is  entitled  to  protection.  It  consists, 
among  other  things,  in  his  right  to  employ  whom  he  pleases.  That  right 
extends  to  a  discrimination  against  workmen  of  a  certain  class,  or  to 
men  belonging  to  labor  organizations.  He  may  use  in  his  business  such 
types  of  machinery  and  appliances  as  he  may  think  adapted  to  carry 
out  his  work  most  successfully,  so  long  as  they  are  reasonably  safe 
and  sanitary.  The  law  protects  him  in  these  rights,  and  the  courts 
W'ill  require  others  to  respect  them.  On  the  other  hand,  the  thousand 
employes  have  a  property  right  in  their  labor,  which  is  equally  sacred 
with  that  of  the  employer.  They  have  a  right  to  engage  their  services 
wherever  and  to  wdiomsoever  they  can  secure  the  largest  rewards  and 
the  fairest  treatment.  They  have  a  right  to  cease  working  for  their 
employer,  with  due  regard  for  their  contractual  relations,  w^hen  in  their 
judgment,  they  can  better  their  condition  by  so  doing.  They  have  a 
right  to  organize  for  this  purpose,  and  they  have  a  right  to  advise 
otliers  to  join  their  organization,  and  the  law  will  protect  them  in  the 
exercise  of  these  rights  equally  with  the  rights  of  the  employer.  The 
refusal  of  the  employes  to  work  for  the  employer  may  result  in  his 
financial  ruin,  but  the  loss  wall  be  no  greater  than  the  damage  his  re- 
fusal to  employ  the  one  thousand  laborers  may  w'ork  in  the  aggregate 
upon  them  and  those  dependent  upon  their  labor.  In  this  contest  be- 
tween employer  and  employed,  it  should  be  remembered  that  the  one 
who  most  strictly  recognizes  and  observes  the  legal  and  equitable  rights 
of  the  other  enters  the  struggle  with  tremendous  odds  in  his  favor. 

Applying  the  same  principle,  I  conceive  it  to  be  the  privilege  of  one 
man,  or  a  number  of  men,  to  individually  conclude  not  to  patronize  a 
certain  person  or  corporation.  It  is  also  the  right  of  these  men  to  agree 
together,  and  to  advise  others,  not  to  extend  such  patronage.  That 
advice  may  be  given  by  direct  communication  or  through  the  medium 
of  the  press,  so  long  as  it  is  neither  in  the  nature  of  coercion  or  a 
threat.  As  long  as  the  actions  of  this  combination  of  individuals  are 
lawful,  to  this  point  it  is  not  clear  how  they  can  become  unlawful  be- 
cause of  their  subsequent  acts  directed  against  the  same  person  or  cor- 
poration. To  this  point,  there  is  no  conspiracy, — no  boycott.  The 
word  "boycott"  is  here  used  as  referring  to  what  is  usually  understood 
as  "the  secondary  boycott."  It  is,  therefore,  only  when  the  combina- 
tion becomes  a  conspiracy  to  injure  by  threats  and  coercion  the  proper- 
ty rights  of  another,  that  the  power  of  the  courts  can  be  invoked. 
Hepb.Tobts — 86 


1362  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

This  point  must  be  passed  before  the  unlawful  and  unwarranted  acts 
which  the  courts  will  punish  and  restrain  are  committed. 

Van  Orsdel,  J.,  in  American  Fed.  of  I^abor  v.  Buck's  Stove  and 
Range  Co.  (1909)  33  App.  D.  C.  83.=« 


PICKETT  et  al.  v.  WALSH  et  al. 

(Supreme  Judicial  Court  of  Massacliusetts,  1906.     192  Mass.  572,  78  N.  B.  753, 
6  L.  R.  A.  [N.  S.]  1067,  116  Am,  St,  Rep,  272,  7  Ann,  Cas,  638.) 

Bill  to  enjoin  Walsh  and  others  from  combining  and  conspiring 
to  interfere  with  the  plaintiffs  in  pursuing  their  trade  of  brick  and 
stone  pointers.    The  facts  in  dispute  are  thus  stated  by  Loring,  J, : 

It  appeal's  from  the  evidence  that  the  trade  of  brick  and  stone  pointing  is 
a  trade  which,  in  the  neighborhood  of  the  city  of  Boston  at  any  rate,  has  been 
carried  on  to  some  extent  as  a  separate  trade  for  nearly  if  not  quite  100  years. 
It  further  appears  that  there  are  now  some  45  men  engaged  in  that  trade  in 
the  vicinity  of  that  city. 

The  trade  of  a  brick  or  stone  pointer  consists  in  going  over  a  building  (gen- 
erally when  it  is  first  erected)  to  clean  it  and  put  a  finish  on  the  mortar  of  the 
joints.  Apparently  in  the  city  of  Worcester,  and  to  some  extent  in  the  city  of 
Boston,  this  work  of  pointing  is  done  by  bricklayers  and  stone  masons. 

The  dispute  which  gave  rise  to  the  suit  now  before  us  had  its  origin  in  a  set 
of  rules  adopted  in  January,  1905,  by  the  Bricklayers'  and  Masons'  Interna- 
tional Union  of  America,  to  which  the  two  unions  here  in  question  were  sub- 
ordinate unions.  This  set  of  rules  contained  a  provision  that  bricklaying  ma- 
sonry should  consist  (inter  alia)  of  "all  pointing  and  cleaning  brick  wall,"  and 
that  stone  masonry  should  consist  (inter  alia)  of  the  "cleaning  and  pointing  of 
stone  work."  The  practical  working  of  the  principles  of  brick  and  stone  ma- 
sonry as  defined  in  these  rules  was  left  to  the  subordinate  unions. 

By  the  constitution,  by-laws  and  rules  of  order  of  the  Bricklayers'  Union  No. 
3,  it  is  provided  that  members  shall  not  accept  employment  "where  a  difliculty 
exists  in  consequence  of  questions  involving  the  rules  which  govern  the  union," 
and  that  any  member  violating  a  law  of  the  union  shall  on  conviction  "be 
reprimanded,  suspended  or  fined  at  the  discretion  of  the  union."     «     *     * 

There  was  an  executive  committee  of  the  two  unions.  On  July  28,  1905,  this 
executive  committee  voted  "that  beginning  September  18,  1905,  no  member  of 
the  bricklayers'  and  masons'  unions  of  Boston  and  vicinity,  will  work  on  any 
building  where  the  contractor  will  not  agree  to  have  the  pointing  done  by 
bricklayers  or  masons," 

This  action  of  the  executive  committee  was  formally  adopted  by  the  Brick- 
layers' Union  No.  3,  and  seems  to  have  been  informally  adopted  by  the  Stone 
Masons'  Union  No.  9.  In  pursuance  thereof  the  following  circular  letter  was 
issued:  "The  bricklayers'  and  masons'  unions  of  Boston  and  vicinity  have 
voted  that  no  bricklayer  or  mason  will  work  for  any  firm  or  contractor  who 
will  not  employ  bricklayers  or  masons  to  do  the  pointing  of  brick,  terra  cotta 
and  stone  masonry.     This  action  will  go  into  effect  September  18,  1905." 

In  September,  1905,  L.  D.  Willcutt  &  Son  as  general  contractors  wore  erect- 
ing (among  other  buildings)  a  stone  building  on  the  conier  of  Massachusetts 
avenue  and  Boylston  street  in  Boston.  On  the  18th  day  of  that  month,  Mr.  L, 
D.  Willcutt  of  that  fii'm  was  notified  that  if  he  did  not  discharge  the  pointers 
who  were  working  for  his  finn  in  pointing  that  building  all  the  masons  and 
bricklayers  working  for  his  firm  on  other  buildings  in  Boston  (all  of  whom 
were  union  men)  would  strike.  Thereupon  he  .susi)ended  the  work  which  was 
being  done  by  the  pointers  on  the  building  on  the  corner  of  Massachusetts 
avenue  and  Boylston  street.     This  evidence  was  admitted  to  show  that  there 

5  8  S.  c.  32  K  R.  A.  (N.  S.)  748.  On  the  origin  of  the  word  "boycott,"  see 
State  v.  Glidden  (1887)  55  Conn.  46,  70,  8  Atl.  890,  3  Am,  St,  Rep.  23. 


Ch.  2)  TORTS  THROUGH  MALICE  1363 

was  a  general  scheme  tliat  where  pointiug  was  given  to  any  one  besides  union 
bricklayers  and  stone  masons  there  would  be  a  strike. 

On  November  13,  1905,  the  defendant  Walsh,  the  walking  delegate  of  the 
Stone  Masons'  Union  No.  9,  and  the  defendant  Driseoll,  the  walking  delegate 
of  the  Bricklayers'  Union  No.  3,  came  to  the  Ford  Building,  for  which  the 
corporation  of  L.  P.  Soule  &  Son  Company  were  the  general  contractors,  and 
found  that  the  cleaning  and  pointing  of  that  building  was  being  done  under  a 
contract  between  the  owners  of  the  building  and  Robert  II.  Pickett,  one  of  the 
plaintiffs  here.  They  then  went  to  a  brick  building  which  was  being  erected 
by  the  L.  P.  Soule  &  Son  Company  as  contractors,  namely,  a  cold  storage  ware- 
house on  Eastern  avenue,  where  Driseoll  notified  the  man  that  the  pointing  at 
the  Ford  Building  was  being  done  by  pointers.  In  consequence  all  the  brick- 
layers employed  by  the  L.  P.  Soule  &  Son  Company  on  the  cold  storage  build- 
ing, 50  in  all,  being  union  men.  struck  work  on  that  or  the  next  day.  The 
next  day,  November  14,  Walsh  went  to  a  stone  building  which  was  being  erect- 
ed by  the  same  corporation  for  the  International  Trust  Company  on  the  cor- 
ner of  Arch  and  Devonshire  streets,  and  told  the  workmen  there  of  the  point- 
ing on  the  Ford  building ;  whereupon  all  the  stone  masons  working  there,  5  or 
6  in  all,  being  union  men,  struck  work.     *     *     * 

It  appeared  from  the  testimony  of  Parker  F.  Soule.  an  officer  of  the  Tj.  P. 
Soule  &  Son  Company,  that  it  was  cheaper  to  make  a  contract  with  pointers 
for  the  work  of  pointing  and  cleaning  than  to  employ  stone  masons  and  brick- 
layers to  do  that  work.  It  appeared  from  other  evidence  tliat  the  wages  of  n 
bricklayer  or  stone  mason  were  55  cents  an  hour,  while  pointers  are  paid  .$3.00 
a  day  of  eight  hours,  or  STVo  cents  an  hour.  It  further  appeared  from  Mr. 
Soule's  testin]ony  that  he  preferred  to  give  the  work  to  the  pointers  because 
in  cleaning  a  building  acid  has  to  be  used,  and.  if  the  acid  is  used  to  excess, 
stains  are  caused  which  in  some  instances  it  is  imix)ssible  to  "get  out" ;  he 
did  not  think  that  the  bricklayers  and  stone  masons  were  competent  to  use 
these  acids.  He  preferred  al*o  to  give  the  work  to  the  pointers  because  the 
work  which  is  done  by  the  pointers  usually  is  done  by  contract,  in  which  case 
the  general  contractor  who  employs  the  pointers  is  relieved  from  responsibility 
on  account  of  accidents  which  may  occur  because  of  the  fact  that  tlie  work  is 
done  on  a  swinging  stage,  at  times  at  great  heights.  It  also  appeared  from 
the  evidence  that  L.  P.  Soule  &  Son  Com]>any  were  not  the  only  contractors 
who  thought  they  got  better  work  at  a  smaller  cost  and  with  less  liability  by 
making  a  contract  with  stone  pointers  for  the  doing  of  this  work  than  by  em- 
ploying stone  masons  and  bricklayers  to  do  it. 

All  this  was  explained  to  the  walking  delegate  of  the  Bricklayers'  Union 
here  in  question,  at  an  interview  between  Mr.  Soule  and  the  walking  delegate 
of  that  union  held  within  two  days  of  the  strike.  It  also  appeared  that  at  that 
interview  the  delegate  told  I\Ir.  Soule  that  while  it  had  been  against  the  rules 
of  the  union  that  any  member  should  take  piece  work,  the  taking  of  piece  work 
recently  had  been  allowed ;  whereui>on  Mr.  Soule  told  him  that  "if  he  had 
any  members  of  his  union  who  were  reliable  men.  whom  we  could  have  confi- 
dence enough  in  to  let  a  contract  to,  who  would  give  prices  as  low,  *  *  * 
he  would  have  no  trouble  in  getting  all  the  stone  pointing  tliere  was  going."  No 
offer  to  make  a  contract  on  these  terms  was  made,  and  on  the  evidence  it  must 
be  assumed  that  there  was  nothing  in  this  statement  of  the  defendant  Walsh. 

On  these  facts,  inter  alia,  a  bill  was  filed,  on  November  20,  1905, 
against  the  officers  of  the  Unincorporated  Bricklayers'  Union  No.  3, 
the  officers  of  the  Unincorporated  Stone  Masons'  Union  No.  9,  the 
walking  delegates  of  these  unions  respectively,  Driseoll  and  Walsh, 
and  certain  other  persons.  The  purpose  of  the  bill  as  stated  in  the 
prayers  for  relief  was  to  enjoin  the  defendants  (1)  "from  combining 
and  conspiring  in  any  way  to  compel  L.  P.  Soule  &  Son  Company,  or 
any  other  person,  firm  or  corporation,  by  force,  threats,  intimidation 
or  coercion,  to  discharge  the  complainants  in  the  bill  of  complaint, 
*     *     *     or  to  refrain  from   further  employing  them  in  and  about 


1364  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

their  trade  and  occupation";  (2)  "from  combining  and  conspiring  to 
compel  the  owners  of  the  so-called  Ford  Building  on  Ashburton  Place 
in  the  city  of  Boston  to  break  or  decline  to  carry  out  tlieir  said  contract 
with  the  complainant  Robert  H.  Pickett" ;  and  (3)  "from  combining 
and  conspiring  to  interfere  with  the  said  complainants,  or  any  of  them, 
in  the  practice  of  their  trade  and  occupation,  or  to  prevent  them  from 
obtaining  further  employment  thereat." 

At  the  hearing,  a  final  decree  in  favor  of  the  plaintiff,  on  all  those 
grounds,  was  made  in  tlie  superior  court,  and  the  defendants  ap- 
pealed.^^ 

LoRiNG,  J.,  after  stating  the  facts  and  the  pleading.  There  seem 
therefore  to  be  three  causes  of  action  upheld  by  the  decree."*'  *  :i=  * 
In  the  third  cause,  the  plaintiffs  sought  to  be  protected  against  a  strike 
by  the  defendants  in  order  to  get  tlie  work  of  pointing  for  the  mem- 
bers of  their  unions.     *     *     * 

The  question,  so  far  as  this  the  third  cause  of  action  goes,  apart  from 
a  question  of  fact  which  we  will  deal  with  later,  is  whether  the  defend- 
ant unions  have  a  right  to  strike  for  the  purpose  for  which  they  struck ; 
or,  to  put  it  more  accurately  and  more  narrowly,  it  is  this:  Is  a  union 
of  bricklayers  and  stone  masons  justified  in  striking  to  force  a  contrac- 
tor to  employ  them  by  the  day  to  do  cleaning  and  pointing  at  higher 
wages  than  pointers  are  paid,  where  the  contractors  wish  to  make 
contracts  with  the  pointers  for  such  work  to  be  done  by  the  piece,  be- 
cause they  think  they  get  better  work  at  less  cost  with  no  liability 
for  accidents,  and  where  the  pointers  wish  to  make  contracts  for  that 
work  with  the  contractors  on  terms  satisfactory  to  them? 

In  other  words,  we  have  to  deal  with  one  of  the  great  and  pressing 
questions  growing  out  of  the  powerful  combinations,  sometimes  of 
capital  and  sometimes  of  labor,  which  have  been  instituted  in  recent 
years  where  their  actions  come  into  conflict  wnth  the  interests  of  indi- 
viduals. The  combination  in  the  case  at  bar  is  a  combination  of  work- 
men, and  the  conflict  is  between  a  labor  union  on  the  one  hand  and  sev- 
eral unorganized  laborers  on  the  other  hand. 

It  is  only  in  recent  years  that  these  great  and  powerful  combinations 
have  made  their  appearance,  and  the  limits  to  which  they  may  go  in 
enforcing  their  demands  are  far  from  being  settled. 

It  is  settled  however  that  laborers  have  a  right  to  organize  as  labor 
unions  to  promote  their  welfare.  Further,  there  is  no  question  of 
the  general  right  of  a  labor  union  to  strike. 

On  the  other  hand,  it  is  settled  that  some  strikes  by  a  labor  union 
are  illegal.  It  was  held  in  Carew  v.  Rutherford,  106  Mass.  1,  8  Am. 
Rep.  287,  that  a  strike  by  the  members  of  labor  unions  was  illegal 
when  set  on  foot  to  force  their  employer  to  pay  a  fine  imposed  upon 


6»  The  statement  of  the  case  is  abridged. 

«o  Ouly  so  much  of  the  opinion  is  given  as  relates  to  this  third  cause. 


Ch.  2)  TORTS   THROUGH   MALICE  13G5 

him  by  the  union  of  which  he  was  not  a  member,  for  not  giving  the 
union  all  his  work.     *     *     * 

We  are  brought  to  the  question  of  the  legality  of  the  strike  in  the 
case  at  bar,  namely,  a  strike  of  bricklayers  and  masons  to  get  the 
work  of  pointing,  or,  to  put  it  more  accurately,  a  combination  by  the 
defendants,  who  are  bricklayers  and  masons,  to  refuse  to  lay  bricks 
and  stone  where  the  pointing  of  them  is  given  to  others.  The  defend- 
ants in  effect  say  we  want  the  work  of  pointing  the  bricks  and  stone 
laid  by  us,  and  you  must  give  us  all  or  none  of  the  work. 

The  case  is  a  case  of  competition  between  the  defendant  unions  and 
the  individual  plaintiffs  for  the  work  of  pointing.  The  work  of  point- 
ing for  which  these  two  sets  of  workmen  are  competing  is  work  which 
the  contractors  are  obliged  to  have.  One  peculiarity  of  the  case  there- 
fore is  that  the  fight  here  is  necessarily  a  triangular  one.  It  neces- 
sarily involves  the  two  sets  of  competing  workmen  and  the  contractor, 
and  is  not  confined  to  the  two  parties  to  the  contract,  as  is  the  case 
where  workmen  strike  to  get  better  wages  from  their  employer  or  oth- 
er conditions  which  are  better  for  them.  In  this  respect  the  case  is 
like  Mogul  Steamship  Co.  v.  McGregor,  23  Q.  B.  D.  598,  on  appeal 
[1892]  A.  C.  25. 

The  right  which  the  defendant  unions  claim  to  exercise  in  carry- 
ing their  point  in  the  course  of  this  competition  is  a  trade  advantage, 
namely,  that  they  have  labor  which  the  contractors  want,  or,  if  you 
please,  cannot  get  elsewhere;  and  they  insist  upon  using  this  trade 
advantage  to  get  additional  work,  namely,  the  work  of  pointing  the 
bricks  and  stone  which  they  lay.  It  is  somewhat  like  the  advantage 
which  the  owner  of  back  land  has  when  he  has  bought  the  front  lot. 
He  is  not  bound  to  sell  them  separately.  To  be  sure  the  right  of 
an  individual  owner  to  sell  both  or  none  is  not  decisive  of  the  right  of 
a  labor  union  to  combine  to  refuse  to  lay  bricks  or  stone  unless  they 
are  given  the  job  of  pointing  the  bricks  laid  by  them.  There  are 
things  which  an  individual  can  do  which  a  combination  of  individuals 
cannot  do.  But  having  regard  to  the  right  on  which  the  defendants' 
organization  as  a  labor  union  rests,  the  correlative  duty  owed  by  it 
to  others,  and  the  limitation  of  the  defendants'  rights  coming  from  the 
increased  power  of  organization,  we  are  of  opinion  that  it  was  within 
the  rights  of  these  unions  to  compete  for  the  work  of  doing  the  point- 
ing and,  in  the  exercise  of  their  right  of  competition,  to  refuse  to  lay 
bricks  and  set  stones  unless  they  were  given  the  work  of  pointing  them 
when  laid.  See  in  this  connection  "l^lant  v.  Woods,  176  Mass.  492, 
502,  57  N.  E.  1011,  51  L.  R.  A.  339,  79  Am.  St.  Rep.  330;  Berry  v. 
Donovan,  188  Mass.  353,  ZS?,  74  N.  E.  603,  5  L.  R.  A.  (N.  S.)  899, 
108  Am.  St.  Rep.  499,  3  Ann.  Cas.  738. 

The  result  to  which  that  conclusion  brings  us  in  the  case  at  bar 
ought  not  to  be  passed  by  without  consideration. 

The  result  is  harsh  on  the  contractors,  who  prefer  to  give  the  work 


1366  TORTS  THROUGH   ACTS   OF  COXDITIOXAL  LIABILITY        (Part  3 

to  the  pointers  because  (1)  the  pointers  do  it  by  contract  (in  which  case 
the  contractors  escape  the  liabiHty  incident  to  the  relation  of  employer 
and  employe) ;  because  (2)  the  contractors  think  that  the  pointers  do 
the  work  better,  and  if  not  well  done  the  buildings  may  be  permanently 
injured  by  acid ;  and  finally  (3)  because  they  get  from  the  pointers 
better  work  with  less  liability  at  a  smaller  cost.  Again,  so  far  as  the 
pointers  (who  cannot  lay  brick  or  stone)  are  concerned,  the  result  is 
disastrous.  But  all  tliat  the  labor  unions  have  done  is  to  say  you  must 
employ  us  for  all  the  work  or  none  of  it.  They  have  not  said  that 
if  you  employ  the  pointers  you  must  pay  us  a  fine,  as  they  did  in 
Carew  v.  Rutherford,  106  Mass.  1,  8  Am.  Rep.  287.  They  have  not 
undertaken  to  forbid  the  contractors  employing  pointers,  as  they  did 
in  Plant  v.  Woods,  176  Mass.  492,  57  N.  E.  1011,  51  L.  R.  A.  339,  79 
Am.  St.  Rep.  330.  So  far  as  the  labor  unions  are  concerned  the  con- 
tractors can  employ  pointers  if  they  choose,  but  if  the  contractors 
choose  to  give  the  work  of  pointing  the  bricks  and  stones  to  oth- 
ers, the  unions  take  the  stand  that  the  contractors  will  have  to  get  some 
one  else  to  lay  them.  The  effect  of  this  in  the  case  at  bar  appears 
to  be  that  the  contractors  are  forced  against  their  will  to  give  the 
work  of  pointing  to  the  masons  and  bricklayers.  But  the  fact  that 
the  contractors  are  forced  to  do  what  they  do  not  want  to  do  is  not 
decisive  of  the  legality  of  the  labor  union's  acts.  That  is  true  wher- 
ever a  strike  is  successful.  The  contractors  doubtless  would  have 
liked  it  better  if  there  had  been  no  competition  between  the  brick- 
layers and  masons  on  the  one  hand  and  the  individual  pointers  on  the 
other  hand.  But  there  is  competition.  There  being  competition,  they 
prefer  the  course  they  have  taken.  They  prefer  to  give  all  the  work  to 
the  unions  rather  than  get  nonunion  men  to  lay  bricks  and  stone  to 
be  pointed  by  the  plaintiffs. 

Further,  the  effect  of  complying  with  the  labor  unions'  demands 
apparently  will  be  the  destruction  of  the  plaintiff's  business.  But  the 
fact  that  the  business  of  a  plaintiff  is  destroyed  by  the  acts  of  the 
defendants  done  in  pursuance  of  their  right  of  competition  is  not 
decisive  of  the  illegality  of  them.  It  was  well  said  by  Hammond,  J., 
in  Martell  v.  White,  185  Mass.  255,  260,  69  N.  E.  1085,  1087,  64  L.  R. 
A.  260,  102  Am.  St.  Rep.  341,  in  regard  to  the  right  of  a  citizen 
to  pursue  his  business  without  interference  by  a  combination  to  de- 
stroy it :  "Speaking  generally,  however,  competition  in  business  is  per- 
mitted, although  frequently  disastrous  to  those  engaged  in  it.  It  is 
always  selfish,  often  sharp,  and  sometimes  deadly." 

We  cannot  say  on  the  evidence  that  pointing  is  something  foreign 
to  the  work  of  a  bricklayer  or  a  stone  mason,  and  therefore  some- 
tliing  which  a  union  of  bricklayers  and  stone  masons  have  no  right 
to  compete  for  or  insist  upon  and  so  to  bring  the  case  within  Carew 
v.  Rutherford,  106  Mass.  1,  8  Am.  Rep.  287;  March  v.  Bricklayers' 
and  Plasterers'  Union  No.  1,  79  Conn.  7,  63  Atl.  291,  4  L.  R.  A.  (i\.  S.) 


Ch,  2)  TORTS  THROUGH  MALICE  13G7 

1198,  118  Am.  St.  Rep.  127,  6  Ann.  Cas.  848;  and  Giblan  v.  National 
Amalgamated  Labourers'  Union,  [1903]  2  K.  B.  600.  On  the  con- 
trary the  evidence  shows  that  in  Boston  the  pointing  is  done  to  some 
extent  by  bricklayers  and  stone  masons,  and  there  is  no  evidence  that 
the  trade  of  pointing  exists  outside  that  city. 

The  protest  of  the  defendant  unions  against  the  plaintiffs'  being 
allowed  to  organize  a  pointers'  union  is  not  an  act  of  oppression.*^ 
It  is  not  like  the  refusal  of  the  union  in  Quinn  v.  Leathern,  [1901]  A. 
C.  495,  to  work  with  the  nonunion  men  or  to  admit  the  nonunion 
men  to  their  union.  The  defendants'  unions  are  not  shown  to  be  un- 
willing to  admit  the  plaintiffs  to  membership  if  they  are  qualified  as 
bricklayers  or  stone  masons.  But  the  difficulty  is  that  the  plaintiffs  are 
not  so  qualified.  They  are  not  bricklayers  or  masons.  The  unions 
have  a  right  to  determine  what  kind  of  workmen  shall  compose  the 
union,  and  to  insist  that  pointing  shall  not  be  a  separate  trade  so  far 
as  union  work  is  concerned.  They  have  not  undertaken  to  say  that  the 
contractors  shall  not  treat  the  two  trades  as  distinct.  What  they  in- 
sist upon  is  that  if  the  contractors  employ  them  they  shall  employ  them 
to  do  both  kinds  of  work. 

The  application  of  the  right  of  the  defendant  unions,  who  are  com- 
posed of  bricklayers  and  stone  masons,  to  compete  with  the  individ- 
ual plaintiff's,  who  can  do  nothing  but  pointing  (as  we  have  said),  is 
in  the  case  at  bar  disastrous  to  the  pointers  and  hard  on  the  contrac- 
tors. But  this  is  not  the  first  case  where  the  exercise  of  the  right  of 
competition  ends  in  such  a  result.  The  case  at  bar  is  an  instance 
w^here  the  evils  which  are  or  may  be  incident  to  competition  bear  verj- 
harshly  on  those  interested  but  in  spite  of  such  evils  competition  is 
necessary  to  the  welfare  of  the  community.     *     *     * 


TEMPERTON  v.  RUSSELL  et  al. 

(Court  of  Appeal.     [1893]  1  Q.  B.  715.) 
[This  case  is  given  in  the  text,  ante  p.  1274.*^-] 

61  It  appeared  from  the  evidence  that  the  brick  and  stone  pointers  of 
Boston  had  applie<i  to  the  Building  Trades  Council  for  a  charter,  that  the  de- 
fendant unions  had  protested,  and  that  the  requested  charter  had  been  denied. 

6  2  On  the  question  whether  Temperton  v.  Russell  "denies  to  the  laborer  a 
right  which  is  allowed  to  the  trader,"  see  Professor  Jeremiah  Smith,  "Crucial 
Issues  in  Labor  Litigation,"  20  Harv.  Law  Rev.  429,  443,  444  (1907). 


1368  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 


PLANT  et  al.  v.  WOODS  et  al. 

(Supreme  Judicial  Court  of  IMassaehusetts,  1000.    176  Mass.  492,  57  N.  E.  1011, 
51  L.  R.  A.  339,  79  Am.  St.  Rep.  330.) 

Bill  in  equity  by  the  officers  and  members  of  a  labor  union  to  re- 
strain the  officers  and  members  of  another  labor  union  from  any  acts 
or  the  use  of  any  methods  tending  to  prevent  the  members  of  the 
plaintiff  association  from  securing  employment  or  continuing  in  tlieir 
employment.     From  a  decree  for  the  plaintiffs  tlie  defendants  appeal. 

Hammond,  J.  This  case  arises  out  of  a  contest  for  supremacy  be- 
tween two  labor  unions  of  the  same  craft,  having  substantially  the  same 
constitution  and  by-laws.  The  chief  difference  between  them  is  that 
the  plaintiff  union  is  affiliated  with  a  national  organization  having  its 
headquarters  in  Lafayette,  in  the  state  of  Indiana,  while  the  defend- 
ant union  is  affiliated  with  a  similar  organization  having  its  headquar- 
ters in  Baltimore,  in  the  state  of  Maryland.  The  plaintiff  union  was 
composed  of  workmen  who,  in  1897,  withdrew  from  the  defendant 
union.  There  does  not  appear  to  be  anything  illegal  in  the  object  of 
either  union,  as  expressed  in  its  constitution  and  by-laws.  The  defend- 
ant union  is  also  represented  by  delegates  in  the  Central  Labor  Union, 
which  is  an  organization  composed  of  five  delegates  from  each  trades 
union  in  the  city  of  Springfield,  and  had  in  its  constitution  a  provi- 
sion for  levying  a  boycott  upon  a  complaint  made  by  any  union.  The 
case  is  before  us  upon  the  appeal  of  the  defendants  from  a  final 
decree  in  favor  of  the  plaintiffs,  based  upon  the  findings  stated  in  the 
report  of  the  master. 

The  contest  became  active  early  in  the  fall  of  1898.  In  September 
of  that  year  the  members  of  tlie  defendant  union  declared  "all  painters 
not  affiliated  with  the  Baltimore  headquarters  to  be  nonunion  men," 
and  voted  "to  notify  bosses"  of  that  declaration.  The  manifest  ob- 
ject of  the  defendants  was  to  have  all  the  members  of  the  craft  sub- 
jected to  the  rules  and  discipline  of  their  particular  union,  in  order 
that  they  might  have  better  control  over  the  whole  business,  and  to 
that  end  they  combined  and  conspired  to  get  the  plaintiffs,  and  each 
of  them,  to  join  the  defendant  association,  peaceably,  if  possible,  but 
by  threat  and  intimidation  if  necessary.  Accordingly,  on  October  7th, 
they  voted  that,  "If  our  demands  are  not  complied  with,  all  men  work- 
ing in  shops  where  Lafayette  people  are  employed  refuse  to  go  to 
work."  The  plaintiffs  resisting  whatever  persuasive  measures,  if  any, 
were  used  by  the  defendants,  the  latter  proceeded  to  carry  out  their 
plan  in  the  manner  fully  set  forth  in  the  master's  report.  Without  re- 
hearsing the  circumstances  in  detail,  it  is  sufficient  to  say  here  that  the 
general  method  of  operations  was  substantially  as  follows : 

A  duly  authorized  agent  of  the  defendants  would  visit  a  shop  where 
one  or  niore  of  the  plaintiffs  were  at  work,  and  inform  the  employer 
of  the  action  of  the  defendant  union  with  reference  to  tlie  plaintiffs. 


Ch.  2)  TORTS  THROUGH   MALICE  13G9 

and  ask  him  to  induce  such  of  the  plaintiffs  as  were  in  his  employ 
to  sign  applications  for  reinstatement  in  tlie  defendant  union.  As  to 
the  general  nature  of  these  interviews  the  master  finds  that  the  de- 
fendants have  been  courteous  in  manner,  have  made  no  threats  of  per- 
sonal violence,  have  referred  to  the  plaintiffs  as  nonunion  men,  but 
have  not  otherwise  represented  them  as  men  lacking  good  standing 
in  their  craft;  that  they  have  not  asked  that  the  Lafayette  men  be 
discharged,  and  in  some  cases  have  expressly  stated  that  they  did  not 
wish  to  have  them  discharged,  but  only  that  they  sign  the  blanks  for 
reinstatement  in  the  defendant  union.  The  master,  however,  further 
finds,  from  all  the  circumstances  under  which  those  requests  .were 
made,  that  the  defendants  intended  that  employers  of  Lafayette  men 
should  fear  trouble  in  their  business  if  they  continued  to  employ  such 
men,  and  that  employers  to  whom  these  requests  were  made  were 
justified  in  believing  that  a  failure  on  the  part  of  their  employes  who 
were  Lafayette  men  to  sign  such  reinstatement  blanks,  and  a  failure 
on  the  part  of  the  employers  to  discharge  them  for  not  doing  so, 
would  lead  to  trouble  in  the  business  of  the  employers  in  the  nature 
of  strikes  or  a  boycott;  and  the  employers  to  whom  these  requests 
were  made  did  believe  that  such  results  would  follow,  and  did  suggest 
their  belief  to  the  defendants,  and  the  defendants  did  not  deny  that 
such  results  might  occur ;  that  the  strikes  which  did  occur  appear  to 
have  been  steps  taken  by  the  defendants  to  obtain  the  discharge  of 
such  employes  as  were  Lafayette  men  who  declined  to  sign  application 
blanks  for  reinstatement;  that  these  defendants  did  not  in  all  cases 
threaten  a  boycott  of  the  employers'  business,  but  did  threaten  that  the 
place  of  business  of  at  least  one  such  employer  would  be  left  off  from 
a  so-called  "fair  list"  to  be  published  by  the  Baltimore  union.  The 
master  also  found  that,  from  all  the  evidence  presented,  the  object 
which  the  Baltimore  men  and  the  defendant  association  sought  to  ac- 
complish in  all  the  acts  which  were  testified  to  was  to  compel  the  mem- 
bers of  the  Lafayette  union  to  join  tlie  Baltimore  union,  and  as  a 
means  to  this  end  they  caused  strikes  to  be  instituted  in  the  shops 
where  strikes  would  seriously  interfere  with  the  business  of  the  shops, 
and  in  all  other  shops  they  made  such  representations  as  would  lead 
the  proprietors  thereof  to  expect  trouble  in  their  business. 

We  have,  therefore,  a  case  where  the  defendants  have  conspired 
to  compel  the  members  of  the  plaintiff  union  to  join  the  defendant 
union,  and,  to  carry  out  their  purpose,  have  resolved  upon  such  coercion 
and  intimidation  as  naturally  may  be  caused  by  threats  of  loss  of 
property  by  strikes  and  boycotts,  to  induce  the  employers  either  to  get 
the  plaintiffs  to  ask  for  reinstatement  in  the  defendant  union,  or,  that 
failing,  then  to  discharge  them.  It  matters  not  that  this  request  to 
discharge  has  not  been  expressly  made.  There  can  be  no  doubt,  upon 
the  findings  of  the  master  and  the  facts  stated  in  his  report,  that  the 
compulsory  discharge  of  the  plaintiffs  in  case  of  noncompliance  with 
the  demands  of  the  defendant  union  is  one  of  the  prominent  features 


1370  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (i'art  3 

of  the  plan  agreed  upon.  It  is  well  to  see  what  is  the  meaning  of  this 
threat  to  strike,  when  taken  in  connection  with  the  intimation  that  the 
employer  may  "expect  trouble  in  his  business."  It  means  more  than 
that  the  strikers  will  cease  to  work.  That  is  only  the  preliminary  skir- 
mish. It  means  that  those  who  have  ceased  to  work  will  by  strong, 
persistent  and  organized  persuasion  and  social  pressure  of  every  de- 
scription do  all  they  can  to  prevent  the  employer  from  procuring  work- 
men to  take  tlieir  places.  It  means  much  more.  It  means  that,  if 
these  peaceful  measures  fail,  the  employer  may  reasonably  expect  that 
unlawful  physical  injur}^  may  be  done  to  his  property;  that  attempts 
in  all  the  ways  practiced  by  organized  labor  will  be  made  to  injure  him 
in  his  business,  even  to  his  ruin,  if  possible;  and  that  by  tlie  use 
of  vile  and  opprobrious  epithets  and  other  annoying  conduct,  and  actual 
and  threatened  personal  violence,  attempts  will  be  made  to  intimidate 
those  who  enter  or  desire  to  enter  his  employ;  and  that  whether  or 
not  all  this  be  done  by  the  strikers  or  only  by  their  sympathizers,  or 
with  the  open  sanction  and  approval  of  the  former,  he  will  have  no 
help  from  them  in  his  efforts  to  protect  himself.  However  mild  the 
language  or  suave  the  manner  in  which  the  threat  to  strike  is  made 
under  such  circumstances  as  are  disclosed  in  this  case,  the  employer 
knows  that  he  is  in  danger  of  passing  through  such  an  ordeal  as  that 
above  described,  and  those  who  make  the  threat  know  that  as  well  as 
he  does.  Even  if  the  intent  of  the -strikers,  so  far  as  respects  their 
own  conduct  and  influence,  be  to  discountenance  all  actual  or  threat- 
ened injury  to  person  or  property  or  business  except  that  which  is  the 
direct  necessary  result  of  the  interruption  of  the  work,  and  even  if 
their  connection  with  the  injurious  and  violent  conduct  of  the  turbu- 
lent among  them  or  of  their  sympathizers  be  not  such  as  to  make  them 
liable  criminally,  or  even  answerable  civilly  in  damages  to  those  who 
suffer,  still,  with  full  knowledge  of  what  is  to  be  expected,  they  give 
the  signal,  and  in  so  doing  must  be  held  to  avail  themselves  of  the 
degree  of  fear  and  dread  which  the  knowledge  of  such  consequences 
will  cause  in  the  mind  of  those — whether  their  employer  or  fellow 
workmen — against  whom  the  strike  is  directed ;  and  the  measure  of 
coercion  and  intimidation  imposed  upon  those  against  whom  the  strike 
is  threatened  or  directed  is  not  fully  realized  until  all  those  probable 
consequences  are  considered.  Such  is  the  nature  of  the  threat,  and 
such  the  degree  of  coercion  and  intimidation  involved  in  it.  If  the  de- 
fendants can  lawfully  perform  the  acts  complained  of  in  the  city  of 
Springfield,  they  can  pursue  the  plaintiffs  all  over  the  state  in  the  same 
manner,  and  compel  them  to  abandon  their  trade,  or  bow  to  the  be- 
hests of  their  pursuers. 

It  is  to  be  observed  that  this  is  not  a  case  between  the  employer  and 
employed,  or,  to  use  a  hackneyed  expression,  between  capital  and 
labor,  but  between  laborers  all  of  the  same  craft,  and  each  having  the 
same  right  as  any  one  of  the  others  to  pursue  his  calling.  In  this  as 
in  every  other  case  of  equal  rights  the  right  of  each  individual  is  to 


Ch.  2)  TORTS  THROUGH   MALICE  1371 

be  exercised  with  due  regard  to  the  similar  right  of  all  others,  and  the 
right  of  one  be  said  to  end  where  that  of  anotlier  begins.  The  right 
involved  is  the  right  to  dispose  of  one's  labor  with  full  freedom.  This 
is  a  legal  right,  and  it  is  entitled  to  legal  protection.  Sir  William  Erie, 
in  his  book  on  Trades  Unions  (page  12),  has  stated  this  in  the  follow- 
ing language,  which  has  been  several  times  quoted  with  approval  by 
judges  in  England :  "Every  person  has  a  right,  under  the  law,  as  be- 
tween himself  and  his  fellow  subjects,  to  full  freedom  in  disposing  of 
his  own  labor  or  his  own  capital  according  to  his  own  will.  It  fol- 
lows that  every  other  person  is  subject  to  the  correlative  duty  arising 
therefrom,  and  is  prohibited  from  any  obstruction  to  the  fullest  ex- 
ercise of  this  right  which  can  be  made  compatible  with  the  exercise 
of  similar  rights  by  others.  Every  act  causing  an  obstruction  to  an- 
other in  the  exercise  of  the  right  comprised  within  this  description, 
done  not  in  the  exercise  of  the  actor's  own  right,  but  for  the  purpose 
of  obstruction,  would,  if  damage  should  be  caused  thereby  to  the  party 
obstructed,  be  a  violation  of  this  prohibition."  The  same  rule  is  stated 
with  care  and  discrimination  by  Wells,  J.,  in  Walker  v.  Cronin,  107 
Mass.  555 :  ''Every  one  has  a  right  to  enjoy  the  fruits  and  advantages 
of  his  own  enterprise,  industry,  skill,  and  credit.  He  has  no  right  to 
be  protected  against  competition,  but  he  has  a  right  to  be  free  from 
malicious  and  wanton  interference,  disturbance,  or  annoyance.  If 
disturbance  or  loss  come  as  the  result  of  competition,  or  the  exercise 
of  like  rights  by  others,  it  is  damnum  absque  injuria,  unless  some  su- 
perior right  by  contract,  or  otherwise,  is  interfered  with.  But  if  it 
come  from  the  merely  wanton  or  malicious  acts  of  others,  witliout  the 
justification  of  competition,  or  the  service  of  any  interest  or  lawful 
purpose,  it  then  stands  upon  a  different  footing."  In  this  case  the 
acts  complained  of  v/ere  calculated  to  cause  damage  to  the  plaintiffs, 
and  did  actually  cause  such  damage ;  and  they  were  intentionally  done 
for  that  purpose.  Unless,  therefore,  there  was  justifiable  cause,  the 
acts  were  malicious  and  unlawful.  Walker  v.  Cronin,  ubi  supra ; 
Carew  v.  Rutherford,  106  Mass.  1,  8  Am.  Rep.  287,  and  cases  cited 
therein. 

The  defendants  contend  that  they  have  done  nothing  unlawful,  and 
in  support  of  that  contention  they  say  that  a  person  may  work  for 
whom  he  pleases,  and,  in  the  absence  of  any  contract  to  the  contrary, 
may  cease  to  work  when  he  pleases,  and  for  any  reason  whatever, 
whether  the  same  be  good  or  bad ;  that  he  may  give  notice  of  his  in- 
tention in  advance,  with  or  without  stating  the  reason ;  that  what  one 
man  may  do  several  men  acting  in  concert  may  do,  and  may  agree 
beforehand  that  they  will  do,  and  may  give  notice  of  the  agreement; 
and  that  all  this  may  be  lawfully  done,  notwithstanding  such  con- 
certed action  may,  by  reason  of  the  consequent  interruption  of  the 
work,  result  in  great  loss  to  the  employer  and  his  other  employes,  and 
that  such  a  result  was  intended.  In  a  general  sense,  and  without  ref- 
erence to  exceptions  arising  out  of  conflicting  public  and  private  in- 


1372  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

terests,  all  this  may  be  true.  It  is  said  also  that,  where  one  has  the 
lawful  right  to  do  a  thing,  the  motive  by  which  he  is  actuated  is  im- 
material. One  fonn  of  this  statement  appears  in  the  first  headnote 
in  Allen  v.  Flood,  as  reported  in  (1898)  App.  Cas.  1,  as  follows:  "An 
act  lawful  in  itself  is  not  converted,  by  a  bad  or  malicious  motive,  into 
an  unlawful  act,  so  as  to  make  the  doer  of  the  act  liable  to  a  civil  ac- 
tion." If  the  meaning  of  this  and  similar  expressions  is  that,  where 
a  person  has  the  lawful  right  to  do  a  thing  irrespective  of  his  motive, 
his  motive  is  immaterial,  the  proposition  is  a  mere  truism.  If,  how- 
ever, the  meaning  is  that  where  a  person,  if  actuated  by  one  kind 
of  a  motive,  has  a  lawful  right  to  do  a  thing,  the  act  is  lawful  when 
done  under  any  conceivable  motive,  or  that  an  act  lawful  under  one 
set  of  circumstances  is  therefore  lawful  under  ever}^  conceivable  set 
of  circumstances,  the  proposition  does  not  commend  itself  to  us  as 
eitlier  logically  or  legally  accurate.  In  so  far  as  a  right  is  lawful  it 
it  lawful,  and  in  many  cases  the  right  is  so  far  absolute  as  to  be  lawful 
whatever  may  be  the  motive  of  the  actor, — as,  where  one  digs  upon 
his  own  land  for  water  (Greenieaf  v.  Francis,  18  Pick.  117),  or  makes 
a  written  lease  of  his  land  for  the  purpose  of  terminating  a  tenancy 
at  will  (Groustra  v.  Bourges,  141  Mass.  7,  4  N.  E.  623) ;  but  in  many 
cases  the  lawfulness  of  an  act  which  causes  damage  to  another  may 
depend  upon  whether  the  act  is  for  justifiable  cause,  and  this  justifica- 
tion may  be  found  sometimes  in  the  circumstances  under  which  it  is 
done,  irrespective  of  motive,  sometimes  in  the  motive  alone,  and  some- 
times in  the  circumstances  and  motive  combined.  This  principle  is  of 
very  general  application  in  criminal  law,  and  also  is  illustrated  in  many 
branches  of  the  civil  law,  as  in  cases  of  libel,  and  of  procuring  a  wife 
to  leave  her  husband.  Tasker  v.  Stanley,  153  Mass.  148,  26  N.  E. 
417,  10  L.  R.  A.  468,  and  cases  therein  cited.  Indeed,  the  principle 
is  a  prominent  feature  underlying  the  whole  doctrine  of  privilege, 
malice,  and  intent.  See,  on  this,  an  instructive  article  in  8  Harv.  Law 
Rev.  1,  where  the  subject  is  considered  at  some  length.  It  is  manifest 
that  not  much  progress  is  made  by  such  general  statements  as  those 
quoted  above  from  Allen  v.  Flood,  whatever  may  be  their  meaning. 

Still  standing  for  solution  is  the  question,  under  what  circumstances, 
including  the  motive  of  the  actor,  is  the  act  complained  of  lawful,  and 
to  what  extent?  In  cases  somewhat  akin  to  the  one  at  bar  this  court 
has  had  occasion  to  consider  the  question  how  far  acts  manifestly 
coercive  and  ""intimidating  in  their  nature,  which  cause  damage  and 
injury  to  the  business  or  property  of  another,  and  are  done  with  in- 
tent to  cause  such  injury,  and  partly  in  reliance  upon  such  coercion, 
are  justifiable.  In  Bowen  v.  Matheson,  14  Allen,  499,  it  was  held  to 
be  lawful  for  persons  engaged  in  the  business  of  shipping  seamen  to 
combine  together  into  a  society  for  the  purpose  of  competing  with 
other  persons  engaged  in  the  same  business,  and  it  was  held  lawful 
for  them,  in  pursuance  of  that  purpose,  to  take  men  out  of  a  ship 
if  men  shipped  by  a  nonmcmber  were  in  that  ship,  to  refuse  to  furnish 


Ch.  2)  TORTS  THROUGH  MALICE  1373 

seamen  through  a  iionmember,  to  notify  the  pubhc  that  they  had  com- 
bined against  nonmembers  and  had  "laid  the  plaintiff  on  the  shelf," 
to  notify  the  plaintiff's  customers  and  friends  that  the  plaintiff  could 
not  ship  seamen  for  them,  and  to  interfere  in  all  these  ways  with  the 
business  of  the  plaintiff"  as  a  shipping  agent,  and  compel  him  to  aban- 
don the  same.  The  justification  for  these  acts  so  injurious  to  the 
business  of  the  plaintiff,  and  so  intimidating  in  their  nature,  is  to  be 
found  in  the  law  of  competition.  No  legal  right  of  the  plaintiff  was 
infringed  upon,  and,  as  stated  by  Chapman,  J.,  in  giving  the  opinion 
of  the  court  (page  503),  "if  the  effect  of  these  acts  was  to  destroy  the 
business  of  shipping  masters  who  are  not  members  of  the  association, 
it  is  such  a  result  as,  in  the  competition  of  business,  often  follows 
from  a  course  of  proceeding  that  the  law  permits."  The  primary 
object  of  the  defendants  was  to  build  up  their  own  business,  and  this 
they  might  lawfully  do  to  tlie  extent  disclosed  in  that  case,  even  to 
the  injury  of  their  rivals.  Similar  decisions  have  been  made  in  other 
courts  where  acts  somewhat  coercive  in  their  nature  and  eft'ect  have 
been  held  justifiable  under  tlie  law  of  competition.  Steamship  Co.  v. 
McGregor  (1892)  App.  Cas.  25;  Manufacturing  Co.  v.  Hollis,  54 
Minn.  223,  55  N.  W.  1119,  21  L.  R.  A.  337,  40  Am.  St.  Rep.  319; 
IMacauley  v.  Tierney,  19  R.  I.  255,  33  Atl.  1,  37  L.  R.  A.  455,  61  Am. 
St.  Rep.  770. 

On  the  other  hand,  it  w^as  held  in  Carew  v.  Rutherford,  106  Mass. 
1,  8  Am.  Rep.  287,  that  a  conspiracy  against  a  mechanic — who  is  un- 
der the  necessity  of  employing  workmen  in  order  to  carry  on  his  busi- 
ness— to  obtain  a  sum  of  money  from  him,  which  he  is  under  no  legal 
obligation  to  pay,  by  inducing  his  workmen  to  leave  him,  or  by  deter- 
ring others  from  entering  into  his  employ,  or  by  threatening  to  do  this, 
so  that  he  is  induced  to  pay  the  money  demanded  under  a  reasonable 
apprehension  tliat  he  cannot  carry  on  his  business  without  yielding 
to  the  demands,  is  illegal,  if  not  criminal,  conspiracy;  that  the  acts 
done  under  it  are  illegal,  and  that  the  money  thus  obtained  may  be 
recovered  back.  Chapman,  C.  J.,  speaking  for  the  court,  says  that 
"there  is  no  doubt  that,  if  the  parties  under  such  circumstances  suc- 
ceed in  injuring  the  business  of  the  mechanic,  they  are  liable  to  pay 
all  the  damages  done  to  him."  That  case  bears  a  close  analogy  to  the 
one  at  bar.  The  acts  there  threatened  were  like  those  in  this  case, 
and  the  purpose  was,  in  substance,  to  force  the  plaintiff  to  give  his 
work  to  the  defendants,  and  to  extort  from  him  a  fine  because  he  had 
given  some  of  his  work  to  other  persons.  Without  now  indicating 
to  what  extent  workmen  may  combine,  and  in  pursuance  of  an  agree- 
ment may  act  by  means  of  strikes  and  boycotts  to  get  tlie  hours  of 
labor  reduced,  or  their  wages  increased,  or  to  procure  from  their  em- 
ployers any  other  concession  directly  and  immediately  affecting  their 
own  interests,  or  to  help  themselves  in  competition  with  their  fellow 
workmen,  we  think  this  case  must  be  governed  by  the  principles  laid 
down  in  Carew  v.  Rutherford,  ubi  supra.     The  purpose  of  these  de- 


1374  TORTS  THROUGH  ACTS   OF  CONDITIONAL   LIABILITY        (Part  .'{ 

fendants  was  to  force  the  plaintiffs  to  join  the  defendant  association, 
and  to  that  end  they  injured  the  plaintiffs  in  their  business,  and  mo- 
lested and  disturbed  them  in  their  efforts  to  work  at  their  trade.  It 
is  true  they  committed  no  acts  of  personal  violence,  or  of  physical 
injury  to  property,  although  they  threatened  to  do  something  which 
might  reasonably  be  expected  to  lead  to  such  results.  In  their  threat, 
however,  there  was  plainly  that  which  was  coercive  in  its  effect  upon 
the  will.  It  is  not  necessary  that  the  liberty  of  the  body  should  be  re- 
strained. Restraint  of  the  mind,  provided  it  would  be  such  as  would 
be  likely  to  force  a  man  against  his  will  to  grant  the  thing  demanded, 
and  actually  has  that  effect,  is  sufficient  in  cases  like  this.  As  stated 
by  Lord  Bramwell  in  Reg.  v.  Druitt,  10  Cox,  Cr.  Cas.  592:  "No 
right  of  property  or  capital  is  so  sacred  or  carefully  guarded  by  the 
law  of  the  land  as  that  of  personal  liberty.  That  liberty  is  not  liberty 
of  the  mind  only ;  it  is  also  a  liberty  of  the  mind  and  will ;  and  the 
liberty  of  a  man's  mind  and  will  to  say  how  he  should  bestow  himself, 
his  means,  his  talent,  and  his  industry  is  as  much  a  subject  of  the  law's 
protection  as  that  of  his  body."  It  was  not  the  intention  of  the  de- 
fendants to  give  fairly  to  the  employer  the  option  to  employ  them  or 
the  plaintiffs,  but  to  compel  the  latter  against  their  will  to  join  the 
association,  and  to  that  end  to  molest  and  interfere  with  them  in  their 
efforts  to  procure  work  by  acts  and  threats  well  calculated  by  their 
coercive  and  intimidating  nature  to  overcome  the  will.  The  defendants 
might  make  such  lawful  rules  as  they  please  for  the  regulation  of 
their  own  conduct,  but  they  had  no  right  to  force  other  persons  to 
join  them.  The  necessity  that  the  plaintiffs  should  join  this  associa- 
tion is  not  so  great,  nor  is  its  relation  to  the  rights  of  the  defendants, 
as  compared  with  the  right  of  the  plaintiffs  to  be  free  from  molesta- 
tion, such  as  to  bring  the  acts  of  the  defendant  under  the  shelter  of 
the  principles  of  trade  competition.  Such  acts  are  without  justifica- 
tion, and  therefore  are  malicious  and  unlawful,  and  the  conspiracy 
thus  to  force  the  plaintiffs  was  unlawful.  Such  conduct  is  intolerable, 
and  inconsistent  with  the  spirit  of  our  laws.  The  language  used  by 
this  court  in  Carew  v.  Rutherford,  106  Mass.  1,  may  be  repeated  here 
with  emphasis,  as  applicable  to  this  case:  "The  facts  alleged  and 
proved  in  this  case  are  peculiarly  offensive  to  the  free  principles  which 
prevail  in  this  country,  and,  if  such  practices  could  enjoy  impunity, 
they  would  tend  to  establish  a  tyranny  of  irresponsible  persons  over 
labor  and  mechanical  business  which  would  be  extremely  injurious  to 
both."  See,  in  addition  to  the  authorities  above  cited,  Com.  v.  Hunt, 
4  Mete.  (Mass.)  HI,  38  Am.  Dec.  346;  Sherry  v.  Perkins,  147  Mass. 
214,  17  N.  E.  307,  9  Am.  St.  Rep.  689;  Vegelahn  v.  Guntner,  167 
Mass.  97,  44  N.  E.  1077,  35  L.  R.  A.  722,  57  Am.  St.  Rep.  443 ;  St. 
1894,  c.  508,  §  2;  State  v.  Donaldson,  32  N.  J.  Law,  151,  90  Am. 
Dec.  649;  State  v.  Stewart,  59  Vt.  273,  9  Atl.  559,  59  Am.  Rep.  710; 
State  V.  Glidden,  55  Conn.  46,  8  Atl.  890,  3  Am.  St.  Rep.  23 ;  State 
V.  Dyer,  67  Vt.  690,  32  Atl.  814;   Lucke  v.  Assembly,  17  Md.  396,  26 


Ch.  2)  TORTS  THROUGH   MALICE  1375 

Atl.  505.  19  h.  R.  A.  408,  39  Am.  St.  Rep.  421.  As  the  plaintiffs  have 
been  injured  by  these  acts,  and  there  is  reason  to  beheve  that  the  de- 
fendants contemplate  further  proceedings  of  the  same  kind,  which  will 
be  likely  still  more  to  injure  the  plaintiffs,  equity  lies  to  enjoin  the  de- 
fendants.   Vegelahn  v.  Guntner,  ubi  supra. 

Some  phases  of  the  labor  question  have  recently  been  discussed  in 
the  very  elaborately  considered  case  of  Allen  v.  Flood,  ubi  supra. 
Whether  or  not  the  decision  made  therein  is  inconsistent  with  the 
propositions  upon  which  we  base  our  decision  in  this  case,  we  are  not 
disposed,  in  view  of  the  circumstances  under  which  that  decision  was 
made,  to  follow  it.  We  prefer  the  view  expressed  by  the  dissenting 
judges,  which  view,  it  may  be  remarked,  was  entertained  not  only  by 
three  of  the  nine  lords  who  sat  in  the  case,  but  also  by  the  great  ma- 
jority of  the  common-law  judges  who  had  occasion  officially  to  express 
an  opinion.  There  must  be,  therefore,  a  decree  for  the  plaintiffs. 
We  think,  however,  that  the  clause,  "or  by  causing  or  attempting  to 
cause  any  person  to  discriminate  against  any  employer  or  members  of 
plaintiffs'  said  association  (because  he  is  such  employer)  in  giving  or 
allowing  the  performance  of  contracts  to  or  by  such  employer,"  is 
too  broad  and  indefinite,  inasmuch  as  it  might  seem  to  include  mere 
lawful  persuasion  and  other  similar  and  peaceful  acts :  and  for  that 
reason,  and  also  because,  so  far  as  respects  unlawful  acts,  it  seems 
to  cover  only  such  acts  as  are  prohibited  by  other  parts  of  the  decree, 
we  think  it  should  be  omitted.  Inasmuch  as  the  association  of  the 
defendants  is  not  a  corporation,  an  injunction  cannot  be  issued  against 
it  as  such,  but  only  against  its  members,  their  agents  and  servants.  As 
thus  modified,  in  the  opinion  of  the  majority  of  the  court,  the  decree 
should  stand.     Decree  accordingly. 

Holmes,  C.  J.  (dissenting).  When  a  question  has  been  decided  by 
the  court,  I  think  it  proper,  as  a  general  rule,  that  a  dissenting  judge, 
however  strong  his  convictions  may  be,  should  thereafter  accept  the 
law  from  the  majority,  and  leave  the  remedy  to  the  legislature,  if  that 
body  sees  fit  to  interfere.  If  the  decision  in  the  present  case  simply 
had  relied  upon  Vegelahn  v.  Guntner,  I  should  have  hesitated  to  say 
anything,  although  I  might  have  stated  that  my  personal  opinion  had 
not  been  weakened  by  the  substantial  agreement  with  my  views  to 
be  found  in  the  judgments  of  the  majority  of  the  house  of  lords  in 
Allen  v.  Flood.  But,  much  to  my  satisfaction,  if  I  may  say  so,  the 
court  has  seen  fit  to  adopt  the  mode  of  approaching  the  question  which 
I  believe  to  be  the  correct  one,  and  to  open  an  issue  which  otherwise 
I  might  have  thought  closed.  The  difference  between  my  Brethren 
and  me  now  seems  to  be  a  difference  of  degree,  and  the  line  of  reason- 
ing followed  makes  it  proper  for  me  to  explain  where  the  difference 
lies. 

I  agree  that  the  conduct  of  the  defendants  is  actionable  unless  justi- 
fied. May  v.  Wood,  172  Mass.  11,  14,  51  N.  E.  191,  and  cases  cited. 
I  agree  that  the  presence  or  absence  of  justification  may  depend  upon 


1376  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

tlie  object  of  their  conduct;  that  is,  upon  the  motive  with  which  they 
acted.  Vegelalin  v.  Guntner,  167  Mass.  92,  105,  106,  44  N.  E.  1077, 
35  L.  R.  A.  722,  57  Am.  St.  Rep.  443.  I  agree,  for  instance,  that, 
if  a  boycott  or  a  strike  is  intended  to  override  the  jurisdiction  of  the 
courts  by  the  action  of  a  private  association,  it  may  be  illegal.  Weston 
V.  Barnicoat,  175  Mass.  454,  56  N.  E.  619,  49  L.  R.  A.  612.  On  the 
other  hand,  I  infer  that  a  majority  of  my  Brethren  would  admit  that 
a  boycott  or  strike  intended  to  raise  wages  directly  might  be  lawful, 
if  it  did  not  embrace  in  its  scheme  or  intent  violence,  breach  of  con- 
tract, or  other  conduct  unlawful  on  grounds  independent  of  the  mere 
fact  that  the  action  of  the  defendants  was  combined.  A  sensible  work- 
ingman  would  not  contend  that  the  courts  should  sanction  a  combina- 
tion for  the  purpose  of  inflicting  or  threatening  violence,  or  the  in- 
fraction of  admitted  rights.  To  come  directly  to  the  point,  the  issue  is 
narrowed  to  the  question  whether,  assuming  that  some  purposes  would 
be  a  justification,  the  purpose  in  this  case  of  the  threatened  boycotts 
and  strikes  was  such  as  to  justify  the  threats.  That  purpose  was  not 
directly  concerned  with  wages.  It  was  one  degree  more  remote.  The 
immediate  object  and  motive  was  to  strengthen  the  defendants'  society 
as  a  preliminary  and  means  to  enable  it  to  make  a  better  fight  on 
questions  of  wages  or  other  matters  of  clashing  interests. 

I  differ  from  my  Brethren  in  thinking  that  the  threats  were  as  law- 
ful for  this  preliminary  purpose  as  for  the  final  one  to  which  strength- 
ening the  union  was  a  means.  I  think  that  unity  of  organization  is 
necessary  to  make  the  contest  of  labor  effectual,  and  that  societies  of 
laborers  lawfully  may  employ  in  their  preparation  the  means  which 
they  might  use  in  the  final  contest. 

Although  this  is  not  the  place  for  extended  economic  discussion,  and 
although  the  law  may  not  always  reach  ultimate  economic  conceptions, 
I  think  it  well  to  add  that  I  cherish  no  illusions  as  to  the  meaning  and 
effect  of  strikes.  While  I  think  the  strike  a  lawful  instrument  in  the 
universal  struggle  of  life,  I  think  it  pure  phantasy  to  suppose  that 
there  is  a  body  of  capital  of  which  labor,  as  a  whole,  secures  a  larger 
share  by  that  means. 

The  annual  product,  subject  to  an  infinitesimal  deduction  for  the 
luxuries  of  the  few,  is  directed  to  consumption  by  the  multitude,  and 
is  consumed  by  the  multitude  always.  Organization  and  strikes  may 
get  a  larger  share  for  the  members  of  an  organization,  but,  if  they 
do,  they  get  it  at  the  expense  of  the  less  organized  and  less  powerful 
portion  of  the  laboring  mass.  They  do  not  create  something  out  of 
nothing. 

It  is  only  by  devesting  our  minds  of  questions  of  ownership  and  oth- 
er machinery  of  distribution,  and  by  looking  solely  at  the  question  of 
consumption, — asking  ourselves  what  is  the  annual  product,  who  con- 
sumes it,  and  what  changes  would  or  could  we  make, — that  we  can 
keep  in  the  world  of  realities. 


Ch.  2)  TORTS  THROUGH  MALICE  1377 

But,  subject  to  the  qualifications  which  I  have  expressed,  I  think 
it  lawful  for  a  body  of  workmen  to  try  by  combination  to  get  more 
than  they  now  are  getting,  although  they  do  it  at  the  expense  of  their 
fellows,  and  to  that  end  to  strengthen  their  union  by  the  boycott  and 
the  strike. 


NATIONAL  PROTECTIVE  ASS'N  OF  STEAM  FITTERS  AND 
HELPERS  et  al  v.  GUMMING  et  al. 

(Court  of  Appeals  of  New  York,  1902.    170  N.  Y.  315,  63  N.  E.  3G9,  5S  U  R.  A. 

135,  88  Am.  St  Rep.  648.) 

This  action  was  brought  by  the  National  Protective  Association  of 
Steam  Fitters  and  Helpers,  a  domestic  corporation,  and  Gharles  Mc- 
Queed,  a  member  of  the  corporation,  suing  for  the  benefit  of  himself 
and  his  fellow  members.  The  defendants  were  two  individuals,  Gum- 
ming, the  walking  delegate  of  the  Enterprise  Association  of  Steam 
Fitters,  and  Nugent,  the  walking  delegate  of  the  Progress  Associa- 
tion of  Steam  Fitters,  tliese  associations,  as  such,  each  being  an  un- 
incorporated association  of  more  than  seven  members,  and  certain 
other  persons.  The  prayer  was  to  restrain  the  defendants,  and  each 
of  them,  from  preventing  the  employment  of  members  of  the  plain- 
tiff corporation,  and  from  coercing  or  obtaining  by  command,  threats, 
strikes,  or  otherwise,  the  dismissal  or  discharge  by  any  employer,  con- 
tractor, or  owner,  of  members  of  this  corporation,  or  the  plaintiff  Mc- 
Queed,  from  their  work,  employment,  or  business. 

On  the  issues  raised  by  the  denials  of  the  several  defendants,  the 
trial  Justice,  in  stating  the  grounds  upon  which  he  proceeded,  found 
specifically  as  follows : 

"That  the  defendants  have  entered  into  a  combination  which,  in  effect  pre- 
vents, and  will  continue  to  prevent,  the  plaintiff  McQueed  and  the  other  mem- 
bers of  the  plaintiff  association  from  working  at  his  or  their  trade  in  tlie 
city  of  New  York ;  *  *  *  that  the  defendant  Gumming  threatened  to 
cause  a  general  strike  against  the  plaintiff  association  and  against  tlie  phiin- 
tiff  McQueed  wherever  he  found  them  at  work,  and  that  he  would  not  allow 
them  to  work  at  any  job  in  the  city  of  New  York,  except  some  small  jobs 
where  the  men  of  the  Enterprise  Association  were  not  employed,  and  that  he 
and  the  defendant  Nugent  threatened  to  drive  the  plaintiff  association  out  of 
existence;  *  *  *  that  the  defendants,  Gumming  and  Nugent,  while  acting 
in  their  capacity  of  walking  delegates  for  their  respective  associations,  and 
members  of  the  board  of  delegates,  caused  the  plaintiff  McQueed  and  other 
members  of  the  plaintiff  association  to  be  discharged  by  their  employers  from 
various  places  of  work  upon  buildings  in  the  course  of  erection  by  [naming 
three  different  employers  who  were  erecting  buildings  at  different  places  in  the 
boroughs  of  Brooklyn  and  Manhattan],  by  threatening  the  said  employers  that 
if  they  did  not  discharge  the  members  of  the  plaintiff  association,  and  employ 
the  members  of  the  Enterprise  Progress  Association  in  their  stead,  the  said 
walking  delegates  would  cause  a  general  strike  of  all  men  of  other  trades  em- 
ployed on  said  buildings,  and  that  the  defendant  Gumming,  as  such  walking 
delegate,  did  cause  strikes  *  *  *  in  order  to  prevent  tlie  members  of  the 
plaintiff  association  from  continuing  with  the  work  they  were  doing  at  the 
time  the  strike  was  ordered,  and  that  the  said  employers,  by  reason  of  said 
IlEPn. Torts — 87 


1378  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY         (Part    3 

threats  and  the  acts  of  the  defendants  Cummiug  and  Nugent,  discharged  the 
members  of  the  plaintiff  association,  *  *  *  a^j  employed  the  members  of 
the  Enterprise  and  Progress  Associations  in  their  stead ;  *  *  *  that  the 
threats  made  by  the  defendants,  and  the  acts  of  said  walking  delegates  in 
causing  the  discharge  of  the  members  of  the  plaintiff  association  by  means  of 
threats  of  a  general  strike  of  other  working  men,  constituted  an  illegal  com- 
bination and  conspiracy,  injured  the  plaintiff  association  in  its  business,  de- 
prived its  members  of  employment  and  an  opportunity  to  labor,  prevented, 
them  from  earning  their  livelihood  in  their  trade  or  business.     *     *     *" 

A  .ludgmeut  was  directed  and  entered  restraining  the  defendants  from  "pre- 
venting the  work,  business,  or  employment  of  the  plaintiff  corporation,  or  any 
of  its  members,  in  the  city  of  New  York  or  elsewhere,  and  from  coercing  or 
obtaining,  by  command,  threats,  strikes,  or  otherwise,  the  dismissal  or  dis- 
charge by  any  employer,  contractor,  or  owner  of  the  members  of  the  plaintiff 
corporation,  or  the  plaintiff  McQueed,  or  any  or  either  of  them,  from  their 
work,  employment,  or  business,  or  in  any  wise  interfering  with  the  lawful  busi- 
ness or  work  of  the  plaintiff  corporation  or  of  its  members.  But  the  defend- 
ants are  not,  nor  is  any  one  of  them,  enjoined  and  restrained  from  refusing  to 
work  with  the  plaintiff  or  any  member  of  the  plaintiff  corporation." 

The  decision  in  the  Special  Term  awarded  to  the  plaintiffs  sub- 
stantially all  the  relief  demanded  in  their  complaint,  and  a  judgment 
was  entered  accordingly.  Gumming  and  the  Enterprise  Association 
and  Nugent  and  the  Progress  Association  appealed.  In  the  Appellate 
Division  the  judgment  of  the  Special  Term  was  reversed. ^^  The  plain- 
tiffs then  appealed  to  the  Court  of  Appeals.*'* 

Parker,  C.  J.  The  order  of  the  Appellate  Division  should  be  af- 
firmed, on  the  ground  that  the  facts  found  do  not  support  the  judg- 
ment of  the  Special  Term.     *     *     * 

If  the  organization  notifies  the  employer  that  its  members  will  not 
work  with  nonmembers,  and  its  real  object  is  to  benefit  the  organiza- 
tion and  secure  employment  for  its  members,  it  is  lawful.  If  its  sole 
purpose  be  to  prevent  nonmembers  working,  then  it  is  unlawful.  I  do 
not  assent  to  this  proposition,  although  there  is  authority  for  it.  It 
seems  to  me  illogical  and  little  short  of  absurd  to  say  that  the  everyday 
acts  of  the  business  world,  apparently  within  the  domain  of  competi- 
tion, may  be  either  lawful  or  unlawful  according  to  the  motive  of  the 
actor.  If  the  motive  be  good,  the  act  is  lawful.  If  it  be  bad,  the 
act  is  unlawful.  Within  all  the  authorities  upholding  the  principle 
of  competition,  if  the  motive  be  to  destroy  another's  business  in  or- 
der to  secure  business  for  yourself,  the  motive  is  good,  but,  accord- 
ing to  a  few  recent  authorities,  if  you  do  not  need  the  business,  or  do 
not  wish  it,  then  the  motive  is  bad;  and  some  court  may  say  to  a 
jury,  who  are  generally  the  triors  of  fact,  that  a  given  act  of  competi- 
tion which  destroyed  A.'s  business  was  legal  if  the  act  was  prompt- 
ed by  a  desire  on  the  part  of  the  defendant  to  secure  to  himself  the 

«3  See  National  Protective  Ass'n  of  Steam  Fitters  v.  Gumming  (1900)  53 
App.  Div.  227,  65  N.  Y.  Supp.  946. 

6  4  The  statement  of  the  case  is  taken  partly  from  the  report  of  the  case  in 
the  Appellate  Division,  and  i>artly  from  the  statement  of  the  findings  given  in 
the  introductory  portion  of  .Judge  Vaun's  opinion.  Several  passages  are  omit- 
ted, as  indicated,  from  the  opinions  given,  and  a  short  opinion  by  Judge  Gray 
is  entirely  omitted. 


Ch.  2)  TORTS  THROUGH   MALICE  1370 

benefit  of  it,  but  illegal  if  its  purpose  was  to  destroy  A.'s  business  in 
revenge  for  an  insult  given.  But  for  the  purpose  of  this  discussion 
I  shall  assume  this  proposition  to  be  sound,  for  it  is  clear  to  me  that, 
applying  that  rule  to  the  facts  found,  it  will  appear  that  the  Appellate 
Division  order  should  be  sustained. 

While  I  shall  consider  every  fact  found  by  the  learned  trial  judge, 
I  shall  consider  the  findings  in  a  different  order,  because  it  seems  to  me 
the  more  logical  order.  He  finds  "that  the  defendants  Gumming  and 
Nugent,  while  acting  in  their  capacity  of  walking  delegates  for  their 
respective  associations  and  members  of  the  board  of  delegates,  caused 
the  plaintiff  McOueed  and  other  members  of  the  plaintiff  association 
to  be  discharged  by  their  employers  from  various  pieces  o.f  work  upon 
buildings  in  the  course  of  erection,  *  *  *  ^y  threatening  the 
*  *  *  employers  that  if  they  did  not  discharge  the  members  of  the 
plaintiff  association,  and  employ  the  members  of  the  Enterprise  and 
Progress  Associations  in  their  stead,  the  said  walking  delegates  would 
cause  a  general  strike  of  all  men  oi  other  trades  employed  on  said 
buildings,  and  that  the  defendant  Gumming,  as  such  walking  delegate, 
did  cause  strikes  *  *  *  in  order  to  prevent  the  members  of  the 
plaintiff  association  from  continuing  with  the  work  they  were  doing 
at  the  time  the  strike  was  ordered,  and  that  said  employers,  by  reason 
of  said  threats  and  the  acts  of  the  defendants  Gumming  and  Nugent, 
discharged  the  members  of  the  plaintiff  association,  and  employed 
the  members  oi  the  Enterprise  and  Progress  Associations  in  their 
stead."  Now  there  is  not  a  fact  stated  in  that  finding  which  is  not 
lawful,  within  tlie  rules  which  I  have  quoted  supra.  Those  principles 
concede  the  right  of  an  association  to  strike  in  order  to  benefit  its 
members ;  and  one  method  of  benefiting  them  is  to  secure  them  em- 
ployment,— a  method  conceded  to  be  within  the  right  of  an  organiza- 
tion to  employ.  There  is  no  pretense  that  the  defendant  associations 
or  their  walking  delegates  had  any  other  motive  than  one  which  the 
law  justifies, — of  attempting  to  benefit  their  members  by  securing  their 
employment.  Nowhere  throughout  that  finding  will  be  found  even  a 
hint  that  a  strike  was  ordered,  or  a  notification  given  of  the  intention 
to  order  a  strike,  for  the  purpose  of  accomplishing  any  other  result 
than  that  of  securing  the  discharge  of  the  members  of  the  plaintiff 
association,  and  the  substitution  of  members  of  the  defendant  associa- 
tions in  their  place.  Such  a  purpose  is  not  illegal  within  the  rules  laid 
down  in  the  opinion  of  Judge  Vann,  nor  within  the  authorities  cited 
therein.  On  the  contrary,  such  a  motive  is  conceded  to  be  a  legal  one. 
It  is  only  where  the  sole  purpose  is  to  do  injury  to  another,  or  the  act 
is  prompted  by  malice,  that  it  is  insisted  that  the  act  becomes  illegal. 
No  such  motive  is  alleged  in  that  finding.  It  is  not  hinted  at.  On  the 
contrary,  the  motive  which  always  underlies  competition  is  asserted 
to  have  been  the  animating  one.  It  is  beyond  the  right  and  the  power 
of  this  court  to  import  into  that  finding,  in  contradiction  of  another 
finding    or   otherwise,    the    further    finding    that    the    motive   which 


13S0  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

prompted  the  conduct  of  defendants  was  an  unlawful  one,  prompted 
by  malice,  and  a  desire  to  do  injury  to  plaintiffs,  without  benefiting  the 
members  of  the  defendant  associations.  I  doubt  if  it  would  ever  have 
occurred  to  any  one  to  claim  that  there  was  anything  in  that  finding 
importing  a  different  motive  from  that  specially  alleged  in  the  finding, 
bad  not  the  draftsman  characterized  the  notice  given  to  the  employers 
by  the  associatioiis  of  their  intention  to  strike  as  "threats."  The  de- 
fendant associations,  as  appears  from  the  finding  quoted,  wanted  to 
put  their  men  in  the  place  of  certain  men  at  work  who  were  nonmem- 
bers,  working  for  smaller  pay,  and  they  set  about  doing  it  in  a  per- 
fectly lawful  way.  They  determined  that  if  it  were  necessary  they 
Vv'ould  bear  the  burden  and  expense  of  a  strike  to  accomplish  that  re- 
sult, and  in  so  determining  they  were  clearly  within  their  rights,  as  all 
agree.  They  could  have  gone  upon  a  strike  without  oft'ering  any  ex- 
planation until  the  contractors  should  have  come  in  distress  to  the  of- 
ficers of  the  associations,  asking  the  reason  for  the  strike.  Then,  aft- 
er explanations,  the  nonmembers  would  have  been  discharged,  and 
the  men  of  defendant  associations  sent  back  to  work.  Instead  of  tak- 
ing that  course,  they  chose  to  inform  the  contractors  of  their  deter- 
mination, and  the  reason  for  it.  It  is  the  giving  of  this  information — 
a  simple  notification  of  their  determination,  which  it  was  right  and 
proper  and  reasonable  to  give — that  has  been  characterized  as 
"threats"  by  the  Special  Term,  and  which  has  led  to  no  inconsiderable 
amount  of  misunderstanding  since.  But  the  sense  in  which  the  word 
was  employed  by  the  court  is  of  no  consequence,  for  the  defendant 
associations  had  the  absolute  right  to  threaten  to  do  that  which  they 
had  the  right  to  do.  Having  the  right  to  insist  that  plaintift"'s  men  be 
discharged,  and  defendants'  men  put  in  their  place,  if  the  services 
of  the  other  members  of  the  organization  were  to  be  retained,  they 
also  had  the  right  to  threaten  that  none  of  their  men  would  stay  un- 
less their  members  could  have  all  the  work  there  was  to  dot. 

The  findings  further  stated  that  the  defendants  Gumming  and  Nu- 
gent were  the  walking  delegates  of  the  defendant  associations,  and 
as  such  were  members  of  the  board  of  delegates  of  the  building  trades 
in  New  York,  and  were  therefore  in  control  of  the  matters  in  their 
respective  trades.  The  trial  court  also  found  "that  the  defendant 
Gumming  threatened  to  cause  a  general  strike  against  the 
plaintiff  association  and  against  the  plaintiff  McQueed  wher- 
ever he  found  them  at  work,  and  that  he  would  not  allow  them. 
to  work  at  any  job  in  the  city  of  New  York,  except  some  small 
jobs  where  the  men  of  the  Enterprise  Association  were  not  employed, 
and  that  he  and  the  defendant  Nugent  threatened  to  drive  the  plain- 
tiff association  out  of  existence."  Now,  this  finding  should  be  read 
in  connection  with  and  in  the  light  of  the  other  findings  which  I  have 
already  read  and  commented  on,  and  which  show  that  the  purpose  of 
the  strike  was  to  secure  the  employment  of  members  of  the  defendant 
associations  in  the  places  filled  by  the  members  of  plaintiff's  associa- 


I 


Ch.  2)  TORTS  THROUGH  MALICE  1381 

tion,  who  were  willing  to  work  for  smaller  wages, — a  perfectly  proper 
and  legitimate  motive,  as  we  have  seen.  But  if  the  otlier  findings  be 
driven  from  the  mind  while  considering  this  one,  which  the  opinions 
of  the  Appellate  Division  indicate  was  not  justified  by  the  evidence,  it 
will  be  found  that  it  fairly  means  no  more  than  that  the  defendant  as- 
sociations did  not  purpose  to  allow  McQueed  and  the  members  of  his 
association  to  work  upon  any  jobs  where  members  of  defendant  associa- 
tions were  employed ;  that  they  were  perfectly  willing  to  allow  them  to 
have  small  jobs,  fitted,  perhaps,  for  men  w^io  were  willing  to  work 
for  small  wages,  but  that  the  larger  jobs,  where  they  could  afford  to 
pay  and  would  pay  the  rate  of  wages  demanded  by  defendant  as- 
sociations, they  intended  to  secure  for  their  members  alone, — a  deter- 
mination to  which  they  had  a  perfect  right  to  come,  as  is  conceded 
by  the  rules  which  I  have  quoted.  Having  reached  that  conclusion,  de- 
fendants notified  McOueed,  who  had  organized  an  association  when  he 
failed  to  pass  the  defendants'  examination,  that  they  would  prevent 
him  and  the  men  of  his  association  from  working  on  a  certain  class 
of  jobs.  They  did  not  threaten  to  employ  any  illegal  method  to  ac- 
complish that  result.  They  notified  them  of  the  purpose  of  the  de- 
fendants to  secure  this  work  for  themselves,  and  to  prevent  McOueed 
and  his  associates  from  getting  it,  and  in  doing  that  they  but  informed 
them  of  their  intention  to  do  what  they  had  a  right  tO'  do;  and,  when 
an  man  purposes  to  do  something  which  he  has  the  legal  right  to  do, 
there  is  no  law  which  prevents  him  from  telling  another,  who  will  be 
affected  by  his  act,  of  his  intention.  A  man  has  a  right,  under  the 
law,  to  start  a  store,  and  to  sell  at  such  reduced  prices  that  he  is  able 
in  a  short  time  to  drive  the  other  storekeepers  in  his  vicinity  out  of 
business,  when,  having  possession  of  the  trade,  he  finds  himself  soon 
able  to  recover  the  loss  sustained  while  ruining  the  others.  Such  has 
been  the  law  for  centuries.  The  reason,  of  course,  is  that  the  doctrine 
has  generally  been  accepted  that  free  competition  is  worth  more  to 
society  than  it  costs,  and  that  on  this  ground  the  infliction  of  damages 
is  privileged.  Com.  v.  Hunt,  4  Mete.  (Mass.)  Ill,  134,  38  Am.  Dec.  346. 
Nor  could  this  storekeeper  be  prevented  from  carrying  out  his  scheme 
because,  instead  of  hiding  his  purpose,  he  openly  declared  to  those 
storekeepers  that  he  intended  to  drive  them  out  of  business  in  order 
that  he  might  later  profit  thereby.  Nor  would  it  avail  such  storekeep- 
ers, in  the  event  of  their  bringing  an  action  to  restrain  him  from  ac- 
complishing their  ruin  by  underselling  them,  to  persuade  the  trial  court 
to  characterize  the  notification  as  a  "threat,"  for  on  review  the  an- 
swer would  be,  "A  man  may  threaten  to  do  that  which  the  law  says 
he  may  do,  provided  that,  wathin  the  rules  laid  down  in  those  cases,  his 
motive  is  to  help  himself."  A  labor  organization  is  endowed  with 
precisely  the  same  legal  right  as  is  an  individual  to  threaten  to  do  that 
which  it  may  lawfully  do. 

Having  finished  the  discussion  of  the  facts,  I  reiterate  that,  within 
the  rules  of  law  I  have  quoted,  it  must  appear,  in  order  to  make  out 


1382  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

a  cause  of  action  against  these  defendants,  that  in  what  they  did  they 
were  actuated  by  improper  motives, — by  a  mahcious  desire  to  injure 
the  plaintiffs.  There  is  no  such  finding  of  fact,  and  there  is  no  right 
in  this  court  to  infer  it  if  it  would,  and,  from  the  other  facts  found,  it 
is  plain  that  it  should  not  if  it  could. 

The  findings  conclude  with  a  sentence  which  commences  as  fol- 
lows :  "I  find  that  the  threats  made  by  the  defendants,  and  the  acts 
of  the  said  walking  delegates  in  causing  the  discharge  of  the  mem- 
bers of  the  plaintiff  association  by  means  of  threats  of  a  general  strike 
of  other  workmen,  constituted  an  illegal  combination  and  conspiracy." 
That  is  not  a  finding  of  fact,  but  a  conclusion  of  law,  that  the  trial 
court  erroneously,  as  I  think,  attempted  to  draw  from  the  facts  found, 
which  I  have  already  discussed,  and  which  clearly,  in  my  judgment, 
require  this  court  to  hold  that  the  defendants  acted  within  their  legal 
rights. 

In  the  last  analysis  of  the  findings,  therefore,  it  appears  that  they 
declare  that  members  of  the  organizations  refused  to  work  any  longer, 
as  they  lawfully  might ;  that  they  threatened  to  strike,  which  was  also 
v.'ithin  their  lawful  right,  but  without  any  suggestion  whatever  in  the 
findings  that  they  threatened  an  illegal  or  unlawful  act.  And  such 
findings  are  claimed  to  be  sufficient  to  uphold  a  judgment  that  abso- 
lutely enjoins  the  defendant  associations  and  their  members  from  strik- 
ing. This  is  certainly  a  long  step  in  advance  of  any  decision  brought 
to  my  attention.     *     *     * 

Vann,  J.,  dissenting,  after  stating  the  findings  of  the  trial  justice. 
*  *  *  The  Appellate  Division,  according  to  its  order,  which  is  the 
only  evidence  of  its  action  that  we  can  consider,  did  not  reverse  upon 
a  question  of  fact;  and  a  reversal  upon  the  law,  only,  is  an  affirmance 
of  the  facts  found,  which  are  thus  placed  beyond  our  control,  as  there 
was  some  evidence  to  support  the  findings.  People  v.  Adirondack  Ry. 
Co.,  160  N.  Y.  225,  235,  54  N.  E.  689 ;  Code  Civ.  Proc.  §  1338.  Thus 
we  have  before  us  a  controversy,  not  between  employer  and  employe, 
but  between  different  labor  organizations,  wherein  one  seeks  to  restrain 
the  others  from  driving  its  members  out  of  business,  and  absolutely 
preventing  them  from  earning  a  living  by  working  at  their  trade, 
through  threats,  made  to  the  common  employer  of  members  of  all  the 
organizations,  to  destroy  his  business  unless  he  discharged  the  plain- 
tiff's members  from  his  employment.  The  primary  question  is  whether 
the  action  of  the  defendants  was  unlawful,  for  a  lawful  act  done  in  a 
lawful  manner  cannot  cause  actionable  injury.  It  is  not  the  duty  of  one 
man  to  work  for  another  unless  he  has  agreed  to,  and  if  he  has  so 
agreed,  but  for  no  fixed  period,  either  may  end  the  contract  whenever 
he  chooses.  The  one  may  work  or  refuse  to  work  at  will,  and  the  other 
may  hire  or  discharge  at  will.  The  terms  of  employment  are  subject 
to  mutual  agreement,  without  let  or  hindrance  from  any  one.  If  the 
terms  do  not  suit,  or  the  employer  does  not  please,  the  right  to  quit  is 
absolute,  and  no  one  mav  demand  a  reason  therefor.     Whatever  one 


Ch,  2)  TORTS  THROUGH  MALICE  1383 

man  may  do  alone,  he  may  do  in  combination  with  others,  provided 
they  have  no  unlawful  object  in  view.  Mere  numbers  do  not  ordinarily 
affect  the  quality  of  the  act.  Workingmen  have  the  right  to  organize 
for  the  purpose  of  securing  higher  wages,  shorter  hours  of  labor,  or 
improving  their  relations  with  their  employers.  They  have  the  right  to 
stril<:e  (that  is,  to  cease  working  in  a  body  by  prearrangement  until  a 
grievance  is  redressed),  provided  the  object  is  not  to  gratify  malice,  or 
inflict  injury  upon  others,  but  to  secure  better  terms  of  employment 
for  themselves.  A  peaceable  and  orderly  strike,  not  to  harm  others, 
but  to  improve  their  own  condition,  is  not  a  violation  of  law.  They 
have  the  right  to  go  farther,  and  to  solicit  and  persuade  others,  who  do 
not  belong  to  their  organization,  and  are  employed  for  no  fixed  period, 
to  quit  work,  also,  unless  the  common  employer  of  all  assents  to  law- 
ful conditions,  designed  to  improve  their  material  welfare.  They  have 
no  right,  however,  through  the  exercise  of  coercion,  to  prevent  others 
from  working.  When  persuasion  ends,  and  pressure  begins,  the  law  is 
violated ;  for  that  is  a  trespass  upon  the  rights  of  others,  and  is  ex- 
pressly forbidden  by  statute.  Pen.  Code,  §  168.  They  have  no  right, 
by  force,  threats,  or  intimidation,  to  prevent  members  of  another  labor 
organization  from  working,  or  a  contractor  from  hiring  them  or  con- 
tinuing them  in  his  employment.  They  may  not  threaten  to  cripple 
his  business  unless  he  will  discharge  them,  for  that  infringes  upon  lib- 
erty of  action,  and  violates  the  right  which  every  man  has  to  conduct 
his  business  as  he  sees  fit,  or  to  work  for  whom  and  on  what  terms  he 
pleases.  Their  labor  is  their  property,  to  do  with  as  they  choose ;  but 
the  labor  of  others  is  their  property,  in  turn,  and  is  entitled  to  protec- 
tion against  wrongful  interference.  Both  may  do  what  they  please 
with  their  own,  but  neither  may  coerce  another  into  doing  what  he  does 
not  wish  to  with  his  own.  The  defendant  associations  made  their  own 
rules  and  regulations,  and  the  plaintiff  corporation  did  the  same.  Nei- 
ther was  entitled  to  any  exclusive  privilege,  but  both  had  equal  rights 
according  to  law.  The  defendants  could  not  drive  the  plaintiff's  mem- 
bers from  the  labor  market  absolutely,  and  the  plaintiff  could  not  drive 
the  defendants'  members  therefrom.  The  members  of  each  organiza- 
tion had  the  right  to  follow  their  chosen  calling  without  unwarrantable 
interference  from  others.'  Public  policy  requires  that  the  wages  of 
labor  should  be  regulated  by  the  law  of  competition  and  of  supply  and 
demand,  the  same  as  the  sale  of  food  or  clothing.  Any  combination  to 
restrain  "the  free  pursuit  in  this  state  of  any  lawful  business,"  in  or- 
der "to  create  or  maintain  a  monopoly,"  is  expressly  prohibited  by  stat- 
ute, and  an  injunction  is  authorized  to  prevent  it.  In  re  Davies,  168 
N.  Y.  89,  96,  61  N.  E.  118,  56  L.  R.  A.  855 ;  Laws  1897,  c.  3S3 ;  Laws 
1899,  c.  690. 

A  combination  of  workmen  to  secure  a  lawful  benefit  to  themselves 
should  be  distinguished  from  one  to  injure  other  workmen  in  their 
trade.    Here  we  have  a  conspiracy  to  injure  the  plaintiffs  in  their  busi- 


1384  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

ness,  as  distinguished  from  a  legitimate  advancement  of  the  defend- 
ants' own  interests.  While  they  had  the  right  by  fair  persuasion  to  get 
the  work  of  the  plaintiff  McQueed,  for  instance,  they  had  no  right,  ei- 
ther by  force  or  by  threats,  to  prevent  him  from  getting  any  work  what- 
ever, or  to  deprive  him  of  the  right  to  earn  his  living  by  plying  his 
trade.  Competition  in  the  labor  market  is  lawful,  but  a  combination 
to  shut  workmen  out  of  the  market  altogether  is  unlawful.  One  set 
of  laborers,  whether  organized  or  not,  has  no  right  to  drive  another  set 
out  of  business,  or  prevent' them  from  working  for  any  person  upon 
any  terms  satisfactory  to  themselves.  By  threatening  to  call  a  general 
strike  of  the  related  trades,  the  defendants  forced  the  contractor  to 
discharge  competent  workmen  who  wanted  to  work  for  him,  and  whom 
he  wished  to  keep  in  his  employment.  They  conspired  to  do  harm  to 
the  contractor  in  order  to  compel  him  to  do  harm  to  the  plaintiffs,  and 
their  acts  in  execution  of  the  conspiracy  caused  substantial  damage  to 
the  members  of  the  plaintiff  corporation.     *     *     * 

The  object  of  the  defendants  was  not  to  get  higher  wages,  shorter 
hours,  or  better  terms  for  themselves,  but  to  prevent  others  from  fol- 
lowing their  lawful  calling.  Thus  one  of  the  defendants  said  to  the 
plaintiff  ]\IcOueed:  "I  will  strike  against  your  men  wherever  I  find 
them,  and  not  allow  them  to  work  on  any  job  in  the  city,  except  some 
small  place  where  the  Enterprise  men  are  not  em.ployed."  The  same 
man  said  to  one  of  the  contractors  that  he  could  not  have  the  plain- 
tiff's men  in  his  employment  and  unless  they  were  discharged  he  would 
order  a  "general  strike  of  the  whole  building."  They  were  discharged 
accordingly,  although  the  contractor  testified  that  they  were  good  work- 
men, that  their  work  was  satisfactory,  and  that  he  had  no  reason  for 
discharging  them,  other  than  the  threats  made.  Another  contractor 
testified  that  two  of  the  defendants  told  him  that  he  must  take  the 
plaintiff's  men  off  and  put  their  men  on,  "or  else  the  whole  building 
would  be  tied  up,  as  they  would  not  allow  the  other  men  to  work."  The 
usual  discharge  followed,  although  the  men  were  satisfactory  to  their 
employer.  The  same  witness  testified  that  "Mr.  Gumming  would  nei- 
ther allow  my  men  to  work,  nor  would  he  allow  his  men  to  go  to  work 
until  the  time  had  been  paid  for  between  the  interval  they  struck  and 
the  time  they  were  to  go  to  work  again."  A  member  of  the  plaintiff" 
corporation  swore  that  "Mr.  Gumming  told  us  that,  if  he  ever  found 
us  on  a  job  in  the  vicinity  of  New  York,  he  would  strike  it  by  order 
of  the  board  of  delegates.  He  said  they  would  not  allow  us  to  work 
on  any  job,  except  it  was  a  small  job, — a  cheap  job, — and  he  allowed 
us  to  do  it."  The  threat  was  repeated  in  substance  to  the  employer, 
who  discharged  the  witness,  and  he  was  not  employed  on  the  building 
afterwards.  There  was  other  evidence  to  the  same  effect,  and,  al- 
though the  defendants  denied  making  these  threats,  the  trial  judge 
accepted  the  version  of  the  plaintiff's  witnesses,  and  hence  we  must  do 
the  same.     I  assume,  therefore,  that  the  defendants  caused  the  dis- 


Ch.  2)  TORTS  THROUGH  MALICE  1385 

charge  of  the  plaintiff's  men  by  threatening  to  cripple  their  employer's 
business  unless  he  discharged  them,  and  that  they  also  molested  them 
by  threatening  to  prevent  them  from  working  at  their  trade  in  the 
city  of  New  York,  by  calling  a  general  strike  of  all  trades  on  any 
building  where  they  might  be  employed.  The  action  of  the  defendants 
was  wrongful  and  malicious,  and  their  object  was  to  force  men  who 
had  learned  a  trade  to  abandon  it  and  take  up  some  other  pursuit. 
There  is  no  finding  that  the  defendants  maintain  a  higher  standard  of 
skill  than  the  plaintiff's.     *     *     * 

The  conclusions   I  have  announced  are  supported  by  the  weight 
of  authority  in  this  country  and  in  England.    The  leading  case  in  this 
state  is  controlling  in  principle,  and  requires  a  reversal  of  the  order 
appealed  from.     Curran  v.  Galen,  152  N.  Y.  33,  46  N.  E.  297,  37  L. 
R.  A.  802,  57  Am.  St.  Rep.  496.    The  plaintiff  in  that  case  alleged  in 
his  complaint  that  the  defendants  wrongfully  conspired  to  injure  him 
and  take  away  his  means  of  earning  a  livelihood ;    that  they  threat- 
ened to  accomplish  this  unless  he  would  join  their  association;    that 
in  pursuance  of  the  conspiracy,  "upon  plaintiff"s  refusing  to  become 
a  member  of   said  association,"  the  defendants   '"made  complaint  to 
the   plaintiff''s    employers,    and    forced   them   to   discharge  him   from 
their  employ,  and,  by  false  and  malicious  reports  in  regard  to  him, 
sought  to  bring  him  into  ill  repute  with  members  of  his  trade  and 
employers,  and  to  prevent  him  from  prosecuting  his  trade  and  earn- 
ing a   livelihood."     The  answer   set   forth   an  agreement   between  a 
brewer's  association  and   a  labor  organization,   of   which  defendants 
were  members,  to  the  effect  that  all  employes  of  the  brewery  com- 
panies belonging  to  the  former  should  be  members  of  the  latter,  and 
that  no  employe  should  work  for  a  longer  period  than   four  weeks 
without  becoming  a  member.     It  was  further  alleged  that  the  plain- 
tiff was  retained  in  the  employment  of  one  of  the  brewing  companies 
for  more  than   four  weeks  after  he  was  notified   of   the  provisions 
of  said  agreement  requiring  him  to  become  a  member  of  the  local  as- 
sembly ;   that  the  defendants  requested  him  to  become  a  member,  and, 
on  his  refusal  to  comply,  they,  through  their  committee,  notified  the 
officers  of   said   company   that  the  plaintiff,  after  repeated   requests, 
had  refused  for  more  than  four  weeks  to  become  a  member  of  said 
assembly ;   and  that  they  did  so  solely  in  pursuance  of  said  agreement, 
and  in  accordance  with  the  terms  thereof,  without  intent  or  purpose 
to  injure  plaintiff  in  any  way.     The  plaintiff  demurred  to  this  defense 
upon  the  ground  that  it  was  insufficient,  in  law,  upon  the  face  thereof. 
The  demurrer  was  sustained  in  all  the  courts.     77  Hun,  610,  28  N. 
Y.  Supp.  1134;   152  N.  Y.  33,  46  N.  E.  297,  37  L.  R.  A.  802,  57  Am. 
St.  Rep.  496.    All  the  judges  who  sat  in  this  court  united  with  Judge 
Gray  in  saying  that:   "Public  policy  and  the  interests  of  society  favor 
the  utmost  freedom  in  the  citizen  to  pursue  his  lawful  trade  or  calling, 
and  if  the  purpose  of  an  organization  or  combination  of  workingmen 


1386  TORTS  THROUGH  ACTS  OF  CONDITIONAL   LIABILITY        (Part    3 

be  to  hamper  or  to  restrict  that  freedom,  and,  through  contracts  or 
arrangements  with  employers,  to  coerce  other  workingmen  to  become 
members  of  the  organization,  and  to  come  under  its  rules  and  con- 
ditions, under  the  penalty  of  the  loss  of  their  position  and  of  depriva- 
tion of  employment,  then  that  purpose  seems  clearly  unlawful,  and 
militates  against  the  spirit  of  our  government  and  the  nature  of 
our  institutions.  The  effectuation  of  such  a  purpose  would  conflict 
with  that  principle  of  public  policy  which  prohibits  monopolies  and 
exclusive  privileges.  It  would  tend  to  deprive  the  public  of  the  serv- 
ices of  men  in  useful  employment  and  capacities.  It  would,  to  use  the 
language  of  Mr.  Justice  Barrett  in  People  v.  Smith,  5  N.  Y.  Cr.  R.,  at 
page  513,  'impoverish  and  crush  a  citizen  for  no  reason  connected  in 
the  slightest  degree  with  the  advancement  of  wages  or  the  maintenance 
of  the  rate.' "     *     *     *  65 


L.  D.  WILLCUTT  &  SONS  CO.  v.  BRICKLAYERS'  BENEVO- 
LENT &  PROTECTIVE  UNION  NO.  3  et  al. 

(Supreme  Judicial  Court  of  Massachusetts,  1908.    200  Mass.  110,  85  N.  E.  897, 

23  L.  R.  A.  [N.  S.]  12.37.) 

This  bill,  brought  by  the  L.  D.  Willcutt  &  Sons  Company,  ran  orig- 
inally against  two  unincorporated  labor  unions  by  name,  but  was 
amended  so  as  to  run  only  against  certain  individuals  as  officers  and 
members  of  these  unions  and  against  their  other  members  as  thus 
represented.  No  question  was  made  that  the  defendants  did  not 
sufficiently  represent  all  the  members  of  both  unions. 

In  the  Superior  Court  the  justice  who  heard  the  case  entered  a 
decree  in  favor  of  the  defendants  and  reported  the  facts  for  the  opin- 
ion of  the  Supreme  Judicial  Court.  The  case  grew  out  of  a  trade 
dispute  between  the  plaintiff  and  certain  members  of  the  union  who 
were  in  the  plaintiff's  employ.    Briefly,  the  facts  were  as  follows : 

In  April,  1906,  these  unions  adopted  a  code  of  working  rules,  in  which,  be- 
side some  minor  demands  not  now  material,  they  demanded  that  wases  be  in- 
creased five  cents  an  hour,  that  all  foremen  should  be  members  of  the  unions, 
that  the  business  agent  of  the  unions  should  be  allowed  to  visit  any  building 
under  construction  to  attend  to  his  official  duties,  and  that  wages  should  be 
Pit  id  during  working  hours.  The  plaintiff  declined  to  accept  these  rules,  and 
a  strike  followed. 

By  the  constitution  and  rules  of  the, unions  it  appeared  that  a  code  of  fines 
and  penalties  was  established  by  the  International  Union,  an  association 
composed  of  these  and  other  similar  unions  throughout  the  country,  and  that 
this  code  was  being  actively  enforced  by  the  local  unions.  One  rule  provided 
that  any  member  violating  any  section  of  the  working  code  should  be  fined 
upon  conviction  not  less  than  $5  nor  more  than  .$25,  one  of  these  sections  being 
that  "no  member  of  the  union  shall  work  with  a  nonunion  man  who  refuses 
to  join  the  union."  Various  other  penalties  wore  provided,  varying  from  .$5 
to  S.oOO  for  each  offense,  to  be  imposed  upon  iwrsons  designated  as  "common 
scabs,"  "inveterate  or  notorious  scabs,"  and  •'iniion  wreckere" ;    these  terms 


o".  O'Brien,  Haight,  and  Gray,  JT.,  concurred  with  Parlcer,  C.  J.     Bartlett 
and  Martin,  JJ.,  concurred  with  Vann,  J. 


Ch.  2)  TORTS  THROUGH   MALICE  1387 

being  applied  to  those  wlio  in  different  ways  persist  in  working  after  a  strike 
has  been  called.  These  fines  in  their  operation  are  likely  to  be  coercive  in 
their  nature. 

This  code  was  actively  enforced  by  the  unions,  and  most  of  the  members  of 
the  unions  who  left  their  work  did  so  through  fear  of  the  fines  that  would  be 
imposed  upon  them  if  they  continued  to  work.  The  defendants  Driscoll  and 
Reagan  on  one  occasion  found  two  men  at  work  for  the  plaintiff,  one  a  jour- 
neyman who  had  been  and  the  other  a  foreman  who  was  a  member  of  the 
union.  Eeagan  threatened  the  joumeyman  with  a  fine  of  $100  if  he  contin- 
ued to  work,  and  Driscoll  notified  the  foreman  that  he  was  called  out.  Both 
refused  to  leave.  Driscoll  reported  the  fact  at  a  meeting  of  tl\e  union  and  a 
vote  was  passed  that  charges  be  preferred  against  the  men  for  working  con- 
trary to  the  rules.  A  preliminary  injunction  was  issued  in  tliis  case,  and  no 
further  steps  were  taken  under  the  vote. 

The  defendants  established  a  strike  headquarters,  and  provided  a  strike  fund 
from  which  payments  were  made  to  the  strilvcrs  and  other  men  out  of  work. 
Some  of  the  defendants  made  constant  visits  to  a  .iob  of  the  plaintiff,  general- 
ly at  noontime,  to  persuade  men  whom  the  plaintiff  had  hired  to  leave  its  em- 
ploy. They  offered  as  inducements  in  some  cases  to  nonunion  men  inembership 
without  the  full  payments  usually  required,  and  in  other  cases  work  else- 
where. Men  frequently  left  the  plaintiff's  employ  after  these  talks,  in  some 
cases  stating  that  they  would  like  to  work  but  could  not  run  the  risk  of  being 
fined.  The  defendant  Driscoll  induced  two  men  to  go  who  otherwise  would 
have  continued  at  work,  by  paying  them  with  funds  of  the  unions  the  wages 
due  them  from  the  plaintiff  and  providing  them  with  transportation  to  Utica, 
N.  T.,  where  he  had  secured  other  work  for  them. 

Hammond,  J.  (after  stating  the  facts).  *  *  *  The  strike  had 
four  objects.  Of  these  the  demand  for  an  increase  of  wages  was 
properly  enforceable  by  a  strike.  The  demand  that  wages  should  be 
paid  during  working  hours  amounts  merely  to  a  demand  for  a  short- 
er day,  and  also  was  properly  enforceable  by  a  strike.  The  reason- 
ableness of  such  demands  we  have  not  the  means  of  determining; 
and  it  is  settled  that  such  matters  are  best  left  to  be  adjudicated  in 
the  freedom  of  private  contract  between  the  interested  parties.  More 
difficult  questions  are  presented  by  the  demands  that  all  foremen  shall 
be  members  of  the  unions,  and  that  the  business  agent  of  the  unions 
shall  be  allowed  to  visit  any  building  under  construction.  See  as  to 
the  first  of  these  points  a  very  interesting  article  by  Professor  Smith. 
20  Harvard  Law  Review,  431,  note  1.  But  it  is  unnecessary  under 
the  circumstances  to  determine  these  questions,  as  the  plaintifif  re- 
plied with  a  bare  refusal  of  all  the  demands. 

We  are  of  opinion  therefore  that  this  strike  must  be  regarded  as 
simply  a  strike  for  higher  wages  and  a  shorter  day.  It  was  not  a 
mere  sympathetic  strike,  as  in  Pickett  v.  Walsh,  192  Mass.  572,  587, 
78  N.  E.  753,  6  L.  R.  A.  (N.  S.)  1067,  116  Am.  St.  Rep.  272,  7  Ann. 
Cas.  638,  or  one  whose  immediate  object  was  only  remotely  connected 
with  the  ultimate  object  of  the  strikers,  as  in  Plant  v.  Woods,  176 
Mass.  492,  57  N.  E.  1011,  51  L.  R.  A.  339,  79  Am.  St.  Rep.  330.  It 
was  a  direct  strike  by  the  defendants  against  the  other  party  to  the 
dispute,  instituted  for  the  protection  and  furtherance  of  the  interests 
of  the  defendants  in  matters  in  which  both  parties  were  directly  in- 
terested and  as  to  which  each  party  had  the  right,  within  all  lawful 
limits,  to  determine  its  own  course.  Such  a  strike  must  be  treated 
as  a  justifiable  strike  so  far  as  respects  its  ultimate  object. 


1388  TORTS  THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

But  however  justifiable  or  even  laudable  may  be  the  ultimate  ob- 
jects of  a  strike,  unlawful  means  must  not  be  employed  in  carrying" 
it  on;  and  it  is  contended  by  the  plaintiff  that  the  use  of  fines  and 
threats  of  fines,  under  the  circumstances  disclosed  in  the  record,  are 
unlawful.  The  question  is  stated  by  the  trial  judge  in  the  following- 
language  :  "In  case  of  a  justifiable  strike,  has  the  contractor  the  right 
to  invoke  the  aid  of  the  court  to  prevent  the  labor  union  from  im- 
posing a  fine  [which  the  court  has  found  to  be  coercive  in  its  nature] 
or  taking  action  to  impose  one  upon  one  or  more  of  its  members  un- 
der its  rules  to  induce  them  to  leave  the  contractor's  employ  to  his 
injury?"  Under  the  findings  of  the  court  it  would  seem  that  the  ques- 
tion is  not  intended  to  be  quite  sO'  broad  as  otherwise  might  be  in- 
ferred from  its  language.  The  language  is  broad  enough  to  include 
the  case  where  the  employe  is  under  a  contract  to  stay  with  his  em- 
ployer and  where  to  leave  would  be  a  violation  of  that  contract. 
But  no  such  state  of  things  appears  upon  the  record.  The  plaintiff 
"hired  its  masons  by  the  day  and  paid  them  on  the  basis  of  the  num- 
ber of  hours  worked,  and  it  might  have  discharged  them  and  they 
might  have  left  at  the  close  of  any  day."  The  question  must  there- 
fore be  considered  as  applying  only  to  cases  where  the  employe  by 
leaving  violates  no  contractual  right  of  the  employer. 

The  question  how  far  the  imposition  of  fines  by  an  organization 
upon  its  members  where  the  effect  is  to  injure  a  third  party  is  jus- 
tifiable, was  considered  by  this  court  in  Martell  v.  White,  185  Mass. 
255,  69  N.  E.  1085,  64  h.  R.  A.  260,  102  Am.  St.  Rep.  341,  and  it 
was  there  adjudged  that  the  imposition  of  such  a  fine  by  which  mem- 
bers of  the  organization  were  coerced  into  refusing  to  trade  with  the 
plaintiff,  not  a  member,  to  his  great  damage,  was  inconsistent  with 
the  ground  upon  which  the  right  to  competition  in  trade  is  based,  and 
as  against  him  was  not  justifiable.     *     "'     * 

That  principle,  if  applicable  to  the  facts  of  this  case,  is  decisive. 
The  majority  of  the  court  are  of  the  opinion  that  it  is  applicable, 
and  hence  that  there  should  be  a  decree  for  the  plaintiff  enjoining 
intimidation  or  coercion  by  fines. 

Under  ordinary  circumstances  this  opinion  would  end  here.  But 
inasmuch  as  a  minority  of  the  court  still  think  that  the  principle  laid 
down  in  Martell  v.  White,  with  reference  to  intimidation  by  fines 
imposed  by  an  organization  upon  its  members,  is  not  correct,  and 
also  perhaps,  that,  even  if  correct,  it  is  not  applicable  to  the  facts  of 
this  case,  and  are  unwilling  to  accept  that  principle  as  law  in  this 
commonwealth  notwithstanding  the  authority  of  that  case,  it  may  be 
well  to  say  something  in  addition  to  what  was  there  said.  We  are 
also  somewhat  influenced  to  take  this  action  by  reason  of  the  import- 
ance of  the  question  and  its  relation  to  a  part  of  the  law  still  in  the 
nebulous  but  clearing  stage. 

Before  entering  more  fully  upon  the  discussion  it  is  well  to  get  a 
clear  conception  of  what  the  case  is.     To  begin  with,  it  is  not  a  con- 


Ch.  2)  TORTS  THROUGH  MALICE  1389 

test  between  the  members  of  two  competing-  labor  unions,  as  was 
Plant  V.  Woods,  176  Mass.  492,  57  N.  E.  1011,  51  L.  R.  A.  339,  79 
Am.  St.  Rep.  330,  nor  is  it  a  conflict  between  an  organization  and  one  of 
its  members  in  a  matter  in  which  no  third  party  is  interested.  Nor 
does  the  plaintiff  corporation  contend  that  it  has  any  right  to  compel 
the  intimidated  workman  to  enter  its  employ.  Neither  is  it  seeking,  in 
behalf  of  a  member  of  a  union,  to  enforce  or  defend  the  right  of  such 
member  to  be  free  from  a  fine  or  threat  of  a  fine.  The  plaintiff  has  no 
concern  with  the  imposition  of  fines  by  a  union  upon  its  members 
unless,  and  only  so  far  as,  such  an  imposition  is  in  violation  of  a 
right  of  the  plaintiff'.  Even  if  the  fine  be  illegal  the  plaintiff  has  no 
standing  in  court  to  complain  unless  some  one  of  its  rights  is  invaded 
to  its  damage.  In  a  word,  the  case  is  not  between  the  party  imposing 
the  fine  and  the  person  fined,  nor  between  the  person  fined  as  such 
and  a  third  party  who  suff'ers,  but  on  the  contrary  it  is  between  such 
third  party  and  the  party  imposing  the  fine.  If  it  were  only  between 
the  person  fined  and  the  party  imposing  the  fine,  then  with  some  de- 
gree of  plausibility  it  might  be  said  that  the  former  had  no  right  to 
complain,  or  at  least  had  waived  that  right;  but  it  is  manifest  that 
neither  of  the  immediate  parties  to  the  fine  can,  either  by  an  agree- 
ment among  themselves  or  by  waiver,  justify  the  invasion  of  the  right 
of  a  third  party,  if  any  he  has,  to  object  to  it. 

What  is  the  complaint  of  the  plaintiff?  It  is  a  corporation  en- 
gaged in  the  construction  of  buildings  and  employing  a  number  of 
men.  Its  men  left  its  employ  on  a  strike.  To  keep  them  away  the 
defendants  threatened  with  fines  such  as  were  members  of  the  unions, 
and  by  that  means  kept  them  away  from  the  plaintiff'  when  otherwise 
they  would  have  stayed ;  all  to  the  great  damage  of  the  plaintiff. 
Shortly  stated  the  case  is  this:  The  plaintiff''s  men  are  being  coerced 
by  threats  of  a  fine  to  leave  its  employ,  greatly  to  its  injury,  the  fines 
to  be  levied  in  accordance  with  the  by-laws  of  a  voluntary  associa- 
tion of  which  the  proposed  victims  are  members.  This  injury  to  the 
plaintiff  is  intended  by  the  defendants.  Has  the  plaintiff  any  stand- 
ing in  equity  to  an  injunction  against  the  infliction  of  such  injury? 

It  is  to  be  premised  that  the  right  which  the  plaintiff  seeks  to  have 
protected  against  the  acts  of  the  defendants  arises  from  no  contract 
or  statute,  but  out  of  the  nature  of  things.  It  is  one  of  the  large 
body  of  .rights  which  have  their  foundation  in  the  fitting  necessities 
of  civilized  society.  It  is  the  common  law  right  to  a  reasonably 
free  labor  market.  Vice  Chancellor  Stevenson,  in  speaking  of  it,  says 
it  has  been  called  a  "probable  expectancy"  and  describes  it  as  "the 
right  which  every  man  has  to  earn  his  living  or  pursue  his  trade 
without  undue  interference."  Jersey  City  Printing  Co.  v.  Cassidy, 
63  N.  J.  Eq.  759,  765,  53  Atl.  230.  ?Ie  further  remarks  (pages  765, 
766  of  63  N.  J.  Eq.,  and  page  233  of  53  Atl.) :  "It  will  probably  be 
found  *  *  *  that  the  natural  expectancy  of  employers  in  rela- 
tion to  the  labor  market  and  the  natural  expectancy  of  merchants 


1390  TORTS  THROUGH  ACTS  OF  CONDITIONAL   LIABILITY        (Part  3 

in  respect  to  the  merchandise  market  must  be  recognized  to  the  same 
extent  by  courts  of  law  and  courts  of  equity  and  protected  by  sub- 
stantially the  same  rules.  It  is  freedom  in  the  market,  freedom  in 
the  purchase  and  sale  of  all  things,  including  both  goods  and  labor, 
that  our  modern  law  is  endeavoring  to  insure  to  every  dealer  on  either 
side  of  the  market."  And  in  Atkins  v.  Fletcher  Co.,  65  N.  J.  Eq. 
658,  664,  55  Atl.  1074,  1076,  the  same  judge  says:  "The  elemental 
right  of  the  employer  of  labor  which  the  courts  recognize  today  no 
doubt  is  the  right  to  employ,  while  the  corresponding  right  of  the 
workman  is  the  right  to  be  employed.  In  other  words,  the  right  to 
buy  labor  and  the  right  to  sell  labor  are  recognized  by  the  law,  and 
their  enjoyment  is  greatly  impaired  or  destroyed  unless  freedom  in 
the  labor  market — freedom  on  both  sides  of  the  labor  market — is 
maintained.  Each  party  to  a  contract  for  the  sale  of  labor  has  an 
interest  in  the  freedom  of  the  other  party  with  respect  to  making  the 
contract."  In  Mie  words  of  Lord  Lindley  in  Ouinn  v.  Leathem  [1901] 
A.  C.  495,  534,  "a  person's  liberty  or  right  to  deal  with  others  is  nuga- 
tory unless  they  are  at  liberty  to  deal  with  him  if  they  choose  to  do 
so."  This  right  of  the  employer  is  conclusively  established  by  the 
numerous  cases  which  hold  that  he  may  maintain  an  action  against 
those  who  by  intimidation  prevent  persons  from  entering  into  his 
employ.  See  remarks  of  Lord  Halsbury  in  Allen  v.  Flood  [1898] 
A.  C.  1,  71,  72.  In  our  own  reports  such  a  case  may  be  found  in 
Vegelahn  v.  Guntner,  167  Mass.  92,  44  N.  E.  1077,  35  L.  R.  A.  722, 
57  Am.  St.  Rep.  443.  This  is  the  right — the  right  to  a  free  labor 
market — which  the  plaintiff  claims  has  been  invaded  by  the  defend- 
ants, and  for  which  he  seeks  protection. 

The  defendants  also  have  rights.  They  have  the  right  to  work  or 
not  to  work,  to  sell  their  labor  upon  such  terms  as  they  see  fit  and 
to  combine  for  the  purpose  of  getting  more  pay  or  a  shorter  day.  And 
for  the  purpose  of  strengthening  their  organization  and  making  it 
more  effective  they  have  the  right  to  make  appropriate  by-laws  for 
its  internal  management,  and  for  the  regulation  of  the  conduct  of 
its  members  toward  each  other  in  matters  affecting  the  general  in- 
terests of  the  body;  and  they  may  enforce  obedience  to  such  by-laws 
and  regulations  by  fines  or  other  suitable  penalties. 

But  not  much  progress  is  made  by  this  general  statement  of  the 
rights  of  the  respective  parties.  We  are  still  only  on  the  skirmish 
line.  In  the  jurisprudence  of  any  civilized  country  there  are'but  few, 
if  any,  absolute  rights — rights  which  bend  to  nothing  and  to  which 
everything  else  must  bend.  The  right  to  one's  life  would  seem  to  be 
quite  absolute,  but  it  must  yield  to  the  private  right  of  self-defense 
and  to  the  public  right  to  punish  for  crime.  And  so  in  the  case  be- 
fore us,  neither  the  right  of  the  plaintiff  to  a  free  labor  market  nor 
the  right  of  the  union  to  impose  a  fine  upon  its  members  is  absolute. 
Neither  is  to  be  considered  apart  from  the  other,  or  without  refer- 
ence to  any  other  conflicting  right,  whether  public  or  private;    but 


Ch.  2)  TORTS  THROUGH  MALICE  1391 

each  must  be  regarded  as  having  in  the  rules  of  human  conduct  its 
own  place  beyond  the  limits  of  which  it  must  not  go.  Moreover  it 
must  be  borne  in  mind  (what  sometimes  seems  to  be  forgotten  by 
the  actors  upon  each  side  of  such  controversies)  that  the  controversy 
is  not  a  warfare  in  the  sense  that  for  the  time  bcinor  the  usual  rules 
of  conduct  are  changed,  as  in  the  case  of  an  actual  war  between  two 
countries.  There  is  no  martial  law  in  these  cases,  no  change  in  the 
ordinary  rules  of  society,  but  these  rules  remain  the  same  as  before, 
commanding  what  was  theretofore  right  and  prohibiting  what  was 
theretofore  wrong. 

The  right  of  an  employer  to  free  labor  is  subject  to  the  right  of 
the  laborer  to  hamper  him  by  many  expedients  short  of  fraud  or  in- 
timidation amounting  to  injury  to  the  person  or  property  of  those 
who  desire  to  enter  his  employ,  or  threats  of  such  injury.  For  in- 
stance, persuasion  not  amounting  to  such  intimidation  is  lawful,  and 
j>erhaps  the  same  may  be  said  of  social  pressure  even  when  carried  to 
the  extent  of  social  ostracism,  not  including  however  any  threat  in  a 
business  point  of  view.  See  Vegelahn  v.  Guntner,  167  Mass.  92,  44 
N.  E.  1077,  35  L.  R.  A.  722,  57  Am.  St.  Rep.  443 ;  Jersey  City  Print- 
ing Co.  v.  Cassidy,  63  N.  J.  Eq.  759,  769,  53  Atl.  230;  20  Harvard 
Law  Review,  267.  Social  rights  and  privileges  must  take  care  of 
themselves.  The  law  cannot  prescribe  with  whom  one  shall  shake 
hands  or  associate  as  a  friend. 

So  long  also  as  the  by-laws  of  a  union  relate  to  matters  in  which 
no  one  is  interested  except  the  association  and  its  members,  and  vio- 
late no  right  of  a  third  party  or  no  rule  of  public  policy,  they  are 
valid.  Fines  may  be  imposed,  for  instance  for  tardiness,  absence, 
failure  to  pay  dues,  or  for  misconduct  affecting  the  organization  or 
any  of  its  members ;  and  for  numerous  other  acts.  It  cannot  be 
successfully  contended,  however,  that  as  against  the  right  of  some 
party  other  than  the  association  and  its  members  an  act,  otherwise 
a  violation  of  the  third  party's  rights,  is  any  less  a  violation  because 
done  by  some  member  in  obedience  to  a  by-law.  If  a  member  com- 
mits an  assault  upon  a  person,  and  is  called  into  court  by  the  common- 
wealth upon  a  criminal  complaint  or  in  a  civil  action  by  the  victim, 
he  can  find  no  valid  ground  of  defense  in  the  fact  that  he  committed 
the  assault  in  compliance  with  the  requirements  of  a  contract  with 
some  other  person,  or  in  obedience  to  a  by-law  of  an  association  of 
which  he  was  a  member.  So  a  by-law  providing  that,  upon  an  order 
to  strike,  every  employe  shall  quit  work  even  although  such  an  act 
should  be  in  violation  of  a  contract  then  existing  between  him  and 
his  employer  for  continuous  service,  and  that  for  failure  thus  to  break 
his  contract  the  member  should  be  fined,  doubtless  would  be  declared 
invalid.  And  the  principle  at  the  bottom  of  such  a  decision  is  this, 
namely:  An  interference  with  the  right  of  a  third  party  cannot  be 
justified  upon  the  ground  that  the  intruder  is  acting  in  accordance 
with  an  agreement  between  him  and  some  other  person.     In  a  word. 


1392  TORTS  THROUGH  ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

SO  long  as  a  fine  is  imposed  for  the  guidance  of  members  in  matters 
in  which  outside  parties  have  no  interest,  or  in  which  there  is  no 
violation  of  a  right  of  an  outside  party,  then  no  such  party  can  com- 
plain. But  when  the  right  of  such  a  party  is  invaded,  it  is  no  defense, 
cither  to  the  person  fined  or  to  those  who  have  imposed  the  fine,  that 
the  invasive  act  was  done  in  accordance  with  the  by-laws  of  an  as- 
sociation. 

In  the  case  before  us,  standing  opposed  to  each  other  are  these 
two  rights :  The  right  of  the  employer  to  a  free  labor  market,  and 
the  right  of  the  striking  employes  in  their  strife  with  him  to  impair  that 
freedom;  and  the  crucial  question  is,  how  far  can  the  latter  go?  On 
which  side  of  the  line  shall  stand  the  matter  of  coercion  by  fines  im- 
posed by  a  union  upon  its  members  to  impair  that  freedom?  Is  the 
employer's  right  to  a  free  market  subject  to  this  system  of  mutual 
intimidation  and  coercion  by  fines,  or  is  the  right  to  establish  such  a 
system  subject  to  the  right  of  the  employer  to  a  free  market?  If  the 
employer's  right  is  not  subject  to  this  method  of  intimidation,  then 
of  course  as  against  him  it  is  unlawful.  If  it  is  subject  to  it,  then  he 
cannot  complain,  no  matter  how  severe  the  blow. 

So  far  as  concerns  the  law  of  this  commonwealth  at  least,  some 
things  seem  to  be  settled.  It  is  settled  that  the  flow  of  labor  to  the 
employer  cannot  be  obstructed  by  intimidation  or  coercion  produced 
by  means  of  injury  to  person  or  property,  or  by  threats  of  such 
injury.  Vegelahn  v.  Guntner,  167  Mass.  92,  44  N.  E.  1077,  35  L.  R. 
A.  722,  57  Am.  St.  Rep.  443.  In  that  case  Allen,  J.,  said:  "Such  an 
act  [picketing  as  a  means  of  intimidation]  is  an  unlawful  interference 
with  the  rights  both  of  employer  and  employed.  An  employer  has  a 
right  to  engage  all  persons  who  are  willing  to  work  for  him  at  such 
prices  as  may  be  mutually  agreed  upon ;  and  persons  employed  or 
seeking  employment  have  a  corresponding  right  to  enter  into  or  remain 
in  the  employment  of  any  person  or  corporation  willing  to  employ 
them.  These  rights  are  secured  by  the  Constitution  itself.  Com.  v. 
Perry,  155  Mass.  117,  28  N.  E.  1126,  14  L.  R.  A.  325,  31  Am.  St.  Rep. 
533;  People  v.  Gillson,  109  N.  Y.  389,  17  N.  E.  343,  4  Am.  St.  Rep. 
465;  Braceville  Coal  Co.  v.  People,  147  111.  66,  71,  35  N.  E.  62,  22 
L.  R.  A.  340,  37  Am.  St.  Rep.  206;  Ritchie  v.  People,  155  111.  98, 
40  N.  E.  454,  29  L.  R.  A.  79,  46  Am.  St.  Rep.  315  ;  Low  v.  Rees  Print- 
ing Co.,  41  Neb.  127,  59  N.  W.  362,  24  L.  R.  A.  702,  43  Am.  St.  Rep. 
670."  See,  also.  Sherry  v.  Perkins,  147  Mass.  212,  17  N.  E.  307,  9  Am. 
St.  Rep.  689.  And  it  is  unnecessary  to  cite  cases  in  support  of  the 
proposition  that  such  is  the  great  weight  of  authority  elsewhere,  even 
though  the  ultimate  object  of  the  strike  be  legal. 

There  can  be  no  doubt  that  fining  is  one  method  of  injuring  a  man 
in  his  estate,  and  that  a  threat  to  fine  is  a  threat  of  such  an  injury. 
Indeed  this  is  recognized  by  the  decree  made  by  the  trial  court  in 
this  very  case,   so  far  as  it  affects  Reagan,  one  of  the  defendants. 


Ch.  2)  TORTS  THROUGH  MALICE  1393 

who  it  was  found  had  threatened  with  a  fine  a  man  once  but  not 
then  a  member  of  a  union. 

It  is  urged  however  that  although  this  method  of  intimidation  is  gen- 
erally an  invasion  of  the  employer's  right  to  a  free  market  and  there- 
fore illegal,  yet  when  the  intimidation  is  exerted  by  a  union  upon  its 
members  in  accordance  with  its  by-laws  in  a  strike  whose  object  is 
legal;  it  is  justifiable  and  legal.  To  this  the  obvious  reply  is  that  the 
rule  of  freedom  to  contract  is  founded  upon  principles  of  public  pol- 
icy, that  each  party  to  a  contract  is  interested  in  the  freedom  of  the 
other  party,  that  it  can  make  no  difference  to  the  public  or  to  the  em- 
ployer (who  in  this  case  is  the  other  party)  that  the  person  intimidated 
is  or  is  not  a  member  of  the  society  intimidating.  In  either  case  the 
injury  is  the  same  and  is  from  the  same  cause  namely  intimidation. 
The  workman  is  no  longer  free.  In  Longshore  Printing  Co.  v.  How- 
ell, 26  Or.  527,  38  Pac.  547,  28  L.  R.  A.  464,  46  Am.  St.  Rep.  640, 
the  court,  after  speaking  of  the  general  right  of  labor  unions  to  make 
rules,  proceeds  thus :  "It  must  be  understood,  however,  that  these  as- 
sociations, like  other  voluntary  societies,  must  depend  for  their  mem- 
bership upon  the  free  and  untrammelled  choice  of  each  individual  mem- 
ber. No  resort  can  be  had  to  compulsory  methods  of  any  kind  to  in- 
crease or  keep  up  or  maintain  such  membership.  Nor  is  it  permissible 
for  associations  of  this  kind  to  enforce  the  observance  of  their  laws, 
rules  and  regulations  through  violence,  threats  or  intimidation,  or  to 
employ  any  methods  that  would  induce  the  intimidation  or  deprive 
persons  of  perfect  freedom  of  action." 

The  keynote  on  this  matter  is  struck  in  Booth  v.  Burgess,  72  N.  J. 
Eq.  181,  197,  65  Atl.  226,  233,  in  the  following  language:  "No  sur- 
render of  liberty  or  voluntary  agreement  to  abide  by  by-laws  on  the 
part  of  the  employes  who  are  first  coerced,  made  by  them  when  they 
enter  their  labor  unions,  can  *  *  *  affect  the  right  of  the  com- 
plainant to  a  free  market,  which  right  he  will  enjoy  for  all  it  may  be 
worth  if  these  employes  are  permitted  to  exercise  their  liberty.  The 
employes  may  be  able  to  surrender  their  own  right  but  they  certainly 
cannot  surrender  the  rights  of  other  parties" — citing  Boutwell  v. 
Marr,  '71  Vt.  1,  42  Atl.  607,  43  L.  R.  A.  803,  76  Am.  St.  Rep.  746,  and 
Berry  v.  Donovan,  188  Mass.  353,  74  N.  E.  603,  5  L.  R.  A.  (N.  S.) 
899,  108  Am.  St.  Rep.  499,  3  Ann.  Cas.  738.  And  in  Downes  v.  Ben- 
nett, 63  Kan.  653,  662,  66  Pac.  623,  626  (55  L.  R.  A.  560,  88  Am.  St. 
Rep.  256),  there  is  a  recognition  of  the  same  doctrine :  "This  is  not 
the  case  of  a  union  or  association  of  persons  intimidating  its  members 
from  engaging  in  a  specific  service  offered  by  an  employer  and  stand- 
ing ready  and  open  to  be  entered.  In  such  cases,  on  a  showing  of 
continuous  damage  caused  by  inability  to  secure  employes,  preventive 
relief  has  been  afforded."  Boutwell  v.  Marr,  71  Vt.  1,  42  Atl.  607,  43 
L.  R.  A.  803,  76  Am.  St.  Rep.  746. 
Hepb.Torts— 88 


1394  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

An  opposite  doctrine  leads  to  strange  conclusions.  For  instance,  if 
ten  men  banded  together  undertake  by  coercion  to  keep  two  other 
men  from  entering  an  employment,  and  they  do  this  in  order  to  force 
the  employer,  for  lack  of  ability  to  get  the  two,  to  employ  them  (the 
ten),  the  employer's  right  to  a  free  market  is  invaded,  and  if  he  suffers 
thereby  he  may  proceed  either  in  equity  or  law  against  the  ten ;  but 
if  the  ten  men  first  induce  the  two  other  men  to  enroll  tliemselves  in 
the  same  organization  with  the  ten,  then,  it  is  said,  the  ten  man  may 
by  fines  or  threats  of  fines  so  intimidate  the  two  men  as  to  frighten 
them  from  the  employer,  and  that  such  intimidation  is  no  violation  of 
the  employer's  right.  A  rule  of  law  which  leads  to  such  inconsisten- 
cies is  not  to  be  adopted.  It  does  not  distinguish  between  coercion 
and  noncoercion,  but  between  organized  coercion  and  sporadic  coercion. 
It  makes  a  distinction  entirely  foreign  and  immaterial  to  the  ground 
upon  which  the  right  to  a  free  market  is  based. 

If  it  be  said  that  fines  are  not  in  themselves  illegal,  and  that  conse- 
quently their  use  cannot  be  illegal,  the  answer  is  that  when  they  are 
used  as  a  method  of  coercion  and  create  a  kind  of  coercion  inconsist- 
ent with  the  right  of  a  person  they  are,  as  against  that  person's  right, 
illegal.  If  it  be  said  as  we  have  heard  it  said  that  fines  are  inno- 
cent and  cannot  be  illegal  because  they  are  used  by  all  governments 
as  a  method  of  punishing  criminals,  the  answer  is  that  if  the  prin- 
ciple is  true  that,  what  a  government  may  do  to  punish  for  crime,  in- 
dividuals or  societies  may  do  to  enforce  private  rights,  then  it  fol- 
lows that  a  by-law  providing  for  imprisonment  or  even  death  may 
be  legal. 

If  it  be  said  that  the  member  fined  may  take  his  choice  either  to  leave 
tlie  organization  or  abide  by  its  rules  to  which  he  has  before  assented, 
and  that  where  there  is  a  choice  there  can  be  no  coercion,  the  answer 
is  that  in  almost  every  conceivable  case  of  coercion  short  of  an  actual 
overpowering  of  the  physical  forces  of  the  victim  there  is  a  choice. 
The  highwayman,  who  presents  his  cocked  pistol  to  the  traveler  and 
demands  his  purse  under  pain  of  instant  death  in  case  of  refusal, 
offers  his  victim  a  choice.  He  may  either  give  up  his  purse  and  live, 
or  refuse  and  die.  In  Carew  v.  Rutherford,  106  Mass.  1,  8  Am. 
Rep.  287,  the  victim  had  a  choice  either  to  pay  a  fine  or  take  the  con- 
sequences of  a  refusal.  And  so  the  member  of  a  labor  union  has 
the  choice  either  to  pay  the  fine  or  leave  the  union.  Is  it  difficult  to 
realize  what  that  choice  is  in  these  days  of  organized  labor?  Is  it 
too  much  to  say  that  many  times  it  is  very  difficult,  indeed  practically 
impossible,  for  a  workman  to  get  bread  for  himself  and  his  family 
by  working  at  his  trade  unless  he  is  a  member  of  a  union?  It  is  true 
he  lias  a  choice  between  paying  his  fine  and  not  paying  it,  but  is  it 
not  frequently  a  hard  one  ?  May  not  the  coercion  upon  him  sometimes 
be  most  severe  and  effective?    Such  is  not  a  free  choice.    And  a  mar- 


Ch.  2)  TORTS   THROUGH   MALICE  1395 

ket  filled  with  such  men  is  not  a  reasonably  free  market.  In  this  con- 
nection the  language  of  Boutwell  v.  Marr,  71  Vt.  1,  42  Atl.  607,  43  L. 
R.  A.  803,  ud  Am.  St.  Rep.  746,  seems  significant  and  appropriate : 
"The  law  cannot  be  compelled  by  any  initial  agreement  of  an  associate 
member  to  treat  him  as  one  having  no  choice  but  that  of  the  majority, 
nor  as  a  willing  participant  in  whatever  action  may  be  taken.  The 
voluntary  acceptance  of  by-laws  providing  for  the  imposition  of  co- 
ercive fines  does  not  make  them  legal  and  collectible.  *  *  *  The 
fact  that  the  relations  and  processes  deemed  essential  to  a  recovery 
are  brought  within  the  membership  and  proceedings  of  an  organized 
body  cannot  change  the  result.  The  law  sees  in  the  member  of  an 
association  of  tliis  character  both  the  authors  of  its  coercive  system 
and  tlie  victims  of  this  unlawful  pressure.  If  this  were  not  so,  men 
could  deprive  their  fellows  of  established  rights,  and  evade  the  duty 
of  compensation  simply  by  working  through  an  association." 

If  it  be  said  that  without  fines  the  same  result  may  be  indirectly 
reached  by  the  organization  by  exercising  two  rights,  namely  the  right 
to  expel  a  member  and  the  right  to  charge  an  initiation  fee  upon  his  re- 
turn, and  since  the  same  result  may  thus  be  legitimately  reached,  no- 
body is  harmed  if  it  be  reached  by  fine,  the  reply  is  that  if  the  pur- 
pose of  expulsion  and  the  subsequent  initiation  fee  be  each  a  part 
of  one  and  the  same  transaction,  namely,  the  imposition  of  a  fine,  and 
the  two  acts  are  in  substance  the  procedure  by  which  the  intimidation 
by  fine  is  exercised,  and  such  is  the  intention,  then  there  may  be  a  strong 
reason  for  holding  that  such  a  procedure  is  one  imposing  a  fine  and 
should  be  treated  as  such.  Ordinarily,  however,  each  separate  act  should 
be  treated  by  itself  and  its  validity  judged  by  itself.  The  fact  tliat 
separately  and  independently  executed  they  incidentally  may  have  the 
effect  of  a  fine  is  immaterial  on  the  question  of  the  right  to  fine.  The 
fact  that  a  result  may  be  incidentally  reached  in  one  way  does  not  show 
that  the  same  result  may  be  lawfully  reached  in  another  way. 

In  considering  this  question  we  cannot  lose  sight  of  the  great  pow- 
er of  organization.  It  should  be  taken  into  account  when  one  is  con- 
sidering where  the  line  should  be  drawn  between  the  right  of  the  em- 
ployer to  a  free  market  and  the  right  of  workmen  to  interfere  with 
that  market  by  coercion  through  the  rules  of  a  labor  union.  It  is  not 
universally  true  that  what  one  man  may  do  any  number  of  men  by 
concerted  action  may  do.  In  Pickett  v.  Walsh,  192  ]\Iass.  572,  78  N. 
E.  753,  6  L.  R.  A.  (N.  S.)  1067,  116  Am.  St.  Rep.  272,  7  Ann.  Cas. 
638,  Loring,  J.,  after  alluding  to  the  great  increase  of  power  by  com- 
bination, says:  "The  result  of  this  greater  power  of  coercion  on  the 
part  of  a  combination  of  individuals  is  that  what  is  lawful  for  an 
individual  is  not  the  test  of  what  is  lawful  for  a  combination  of  in- 
dividuals, or  to  state  it  in  another  way,  there  are  things  which  it  is 
lawful  for  an  individual  to  do  which  it  is  not  lawful  for  a  combination 
of  individuals  to  do." 


1396  TORTS  THROUGH   ACTS   OF  CONDITIONAL   LIABILITY        (Part  3 

This  organization  of  labor  to  better  the  condition  of  the  laborer  is 
natural  and  proper.  There  can  be  no  doubt  that  it  is  the  most  effective 
way,  perhaps  the  only  effective  way,  in  which  as  against  the  organiza- 
tion of  capital  tlie  rights  of  the  laborer  can  be  adequately  protected. 
In  many  ways  the  labor  unions  have  succeeded  in  bettering  the  condi- 
tion of  the  laborer;  and  so  far  as  their  ultimate  intentions  and  the 
means  used  in  accomplishing  them  are  legal  they  are  entitled  to  pro- 
tection to  the  extreme  limit  of  the  law. 

But  their  powers  must  not  be  so  far  extended  as  to  encroach  upon 
the  rights  of  others.  It  is  clear  that  if  the  power  to  intimidate  by  fine 
be  regarded  as  one  of  the  powers  which  labor  unions  may  rightfully 
exercise,  then  the  right  to  a  free  market  for  labor — nay,  even  the  right 
of  the  laborer  to  be  free — is  seriously  interfered  with,  to  the  injury 
both  of  the  public  and  the  employer  as  well  as  the  laborer. 

In  ^lartell  v.  White,  185  Mass.  255,  69  N.  E.  1085,  64  L.  R.  A.  260, 
102  Am.  St.  Rep.  341,  it  was  said:  "The  right  of  competition  rests  up- 
on the  doctrine  that  the  interests  of  the  public  are  best  subserved  by 
permitting  the  general  and  natural  laws  of  business  to  have  their  full 
and  free  operation,  and  that  this  end  is  best  attained  when  the  trader 
is  allowed  in  his  business  to  make  free  use  of  those  laws."  So  of  com- 
petition in  labor ;  and  so  of  competition  between  the  employer  and 
employe.  The  contest  between  them  is  only  competition  on  a  wide 
basis.  As  was  said  by  Knowlton,  C.  J.,  in  Berry  v.  Donovan,  188 
Mass.  353,  358,  74  N.  E.  603,  605,  5  L.  R.  A.  (N.  S.)  899,  108  Am.  St. 
Rep.  499,  3  Ann.  Cas.  738,  "In  a  broad  sense  the  contending  forces 
may  be  called  competitors."  If  the  contest  be  carried  on  under  the 
rules  which  regulate  the  law  of  supply  and  demand,  leaving  those  en- 
gaged on  either  side  to  act  under  the  general  and  natural  laws  of  busi- 
ness, free  from  artificial  coercion  or  intimidation  as  the  words  are 
ordinarily  understood  in  this  connection,  then  neither  party  has  the 
right  to  complain ;  but  if  the  coercion  or  intimidation  by  threats  of  a 
direct  personal  loss,  due  not  to  causes  arising  out  of  the  situation 
or  logical  to  the  situation,  but  to  a  cause  having  no  natural  relation 
to  the  situation  and  entirely  inconsistent  with  the  basic  principle  of 
freedom  of  action  under  the  natural  laws  of  business,  then  there  is 
cause  for  the  complaint.  Such  a  method  of  coercion  must  be  declared 
illegal,  as  in  violation  of  the  right  of  the  public  and  all  concerned  to  a 
reasonably  free  labor  market,  that  is,  a  market  where  all  may  act  under 
this  basic  principle  of  freedom. 

In  view  of  these  considerations  and  of  others  more  fully  set  forth, 
in  iMartell  v.  White,  which  are  not  here  repeated,  and  in  Boutwell  v. 
Marr,  ubi  supra,  a  majority  of  the  court  are  of  opinion  that  the 
overwhelming  sense  of  the  thing  is  that  the  principle  that  the  right  of 
the  employer  is  not  subject  to  coercion  or  intimidation  by  injury  or 
threats  of  injury  to  the  persons  or  property  of  laborers  standing  in  the 
market  to  meet  him,  should  apply  to  the  coercion  and  intimidation  ex- 


Ch.  2)  TORTS  THROUGH  MALICE  1397 

erted  by  labor  unions  upon  their  members  by  fines  or  threats  of  fines. 
Any  other  conchision  is  inconsistent  with  the  existence  of  a  reasonably 
free  labor  market  to  which  both  the  employer  and  the  employe  are 
entitled. 

Our  attention  has  not  been  called  to  any  case,  nor  are  we  aware  of 
any,  in  which  the  precise  point  here  involved  has  been  discussed, 
which  is  inconsistent  with  the  conclusion  which  we  have  reached.  We 
are  not  aware  of  any  case  in  which  it  has  been  adjudged  that  where  a 
third  party  has  a  right  to  insist  that  those  with  whom  he  deals  shall 
be  free  from  coercion  the  rule  does  not  apply  to  coercive  acts  by  way 
of  fines  or  threats  of  fines,  imposed  or  to  be  imposed,  by  a  voluntary 
association  upon  its  members  in  accordance  with  its  by-laws.  The  case 
of  Bowen  v.  Matheson,  14  Allen,  499,  was  explained  in  Plant  v. 
Woods,  176  Mass.  492,  S7  N.  E.  1011,  51  L.  R.  A.  339,  79  Am.  St. 
Rep.  330.  Neither  in  that  case  nor  in  Pickett  v.  Walsh,  supra,  was 
there  any  evidence  of  coercion  by  fines.  And  the  same  may  be  said 
of  Mogul  Steamship  Co.  v.  McGregor,  15  O.  B.  D.  476,  21  Q.  B.  D. 
54^^,  23  Q.  B.  D.  598,  [1892]  A.  C.  25.  In  that  case  there  was  simply 
a  withdrawal  of  trade  advantages  under  certain  conditions.  The  de- 
fendants had  two  prices — one  price  for  one  class  of  customers,  and 
a  different  one  for  another  class.  There  was  nothing  in  the  nature 
of  an  arbitrary  fine.  As  stated  by  Fry,  L.  J.,  in  the  case  as  reported 
in  23  Q.  B,  D.  598,  622:  "Competition  was  in  substance  the  only 
weapon  which  the  defendants  intended  to  use  against  their  rivals  in 
trade.  No  thought  of  using  violence,  molestation,  intimidation,  fraud, 
or  misrepresentation  was  entertained  by  the  defendants."  See,  also,  in 
same  case  the  language  of  Coleridge,  C.  J.,  21  Q.  B.  D.  544,  552,  and 
that  of  Halsbury,  Lord  Chancellor,  [1892]  A.  C,  on  p.  36,  as  follows: 
"After  a  most  careful  survey  of  the  evidence  in  this  case,  I  have  been 
unable  to  discover  anything  done  by  the  members  of  the  associated 
body  of  traders  other  than  an  offer  of  reduced  freights  to  persons  who 
would  deal  exclusively  with  them" — and  that  of  Lord  Watson,  on  page 
43  of  the  same  volume.     *     *     * 

The  result  is  that  in  the  opinion  of  a  majority  of  the  court  there 
should  be  a  decree  restraining  and  enjoining  the  defendants,  their 
agents  and  servants  from  intimidating  by  the  imposition  of  a  fine,  or 
by  a  threat  of  such  fine,  any  person  or  persons  from  entering  into  the 
employ  of  the  plaintiff  or  renoaining  therein,  or  from  in  any  way  being 
a  party  or  privy  to  the  imposition  of  any  fine  or  threat  of  such  im- 
position upon  any  person  desiring  to  enter  into  or  remain  in  the  em- 
ploy of  the  plaintiff;  and  it  is 

So  ordered.°^ 

■8  0  The  statement  of  facts  is  abridged  and  parts  of  tlie  opinion  are  omitted. 
Knowlton,  C.  J.,  and  Slioldon,  ,7.,  dissented  from  tlie  reasoning  of  tlie  majori- 
ty, upon  the  ground  that  the  strike  in  this  case  was  lawful,  "because  it  must 


1398  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

GIBLAN  V.  NATIONAL  A^TALGAMATED  LABOURERS'  UN- 
ION OF  GREAT  BRITAIN  AND  IRELAND. 

(Court  of  Appeal.     [1903]  2  K.  B.  600.) 

The  action  was  brought  by  James  Giblan,  a  labourer,  residing  at 
Newport,  Mon.,  against  the  National  Amalgamated  Labourers'  Union 
of  Great  Britain  and  Ireland,  Harry  W,  Williams,  its  general  secre- 
tary, and  John  Tooniey,  its  local  secretary  at  Newport,  claiming  dam- 
ages for  loss  of  wages;  also  an  injunction  to  restrain  the  defendants 
respectively,  or  their  agents  or  coadjutors,  (a)  from  interfering  in  any 
manner  howsoever  with  any  person  or  persons,  company  or  corpora- 
tion, with  a  view  to  causing  such  person  or  persons,  company  or  cor- 
poration, to  break  his  or  their  contract  or  contracts  with  the  plaintiff, 
or  to  cease  to  employ  him,  or  to  abstain  from  entering  into  contracts 
with  him;  (b)  from  preventing,  or  attempting  to  prevent,  any  person 
or  persons  from  working  with  the  plaintiff' ;  and  (c)  from  otherwise 
molesting  or  interfering  in  any  manner  with  the  plaintiff  in  follow- 


be  treated  as  instituted  and  carried  on  for  the  lawful  purpose  of  obtaining 
higher  wages  and  shorter  periods  of  labor,"'  and  the  method  employed  was 
ueither  forbidden  by  any  rule  of  law  or  "inconsistent  with  some  rule  of  pub- 
lic policy.  *  *  *  What  seems  to  us  the  fallacy  of  the  majority  opinion  is 
its  failure  to  act  upon  the  fact  that  the  strike  in  this  case  was  upon  justifiable 
grounds,  and  of  course  was  lawful.  It  follows  that  the  action  of  each  mem- 
ber of  the  union  in  trying  to  maintain  the  strike,  without  force,  or  wrongful 
coercion  or  intimidation  exercised  upon  any  one.  was  justifiable  and  lawful. 
It  was  not  an  interference  with  the  rights  of  the  plaintiff,  because,  as  we  have 
seen,  the  right  of  au  employer  to  conduct  his  business  without  interference  in 
the  labor  market  is  subordinate  to  the  right  of  his  employes  to  strike  and  to 
maintain  the  strike  in  a  lawful  manner.  As  against  this  right  of  the  em- 
ployes the  employer  has  no  right  to  have  their  labor  flow  to  him  uninfluenced 
or  undiverted." 

But  compare  the  remark  of  Professor  .Teremiah  Smith  in  20  Harv.  I^aw  Rev. 
355  (1907):  "Assuming  that  a  combination,  in  its  intrinsic  nature,  is  not  nec- 
essarily unlawful,  and  assuming  also  that  the  obvious  aiming  at  monopoly 
by  labor  combinations  does  not  make  them  unlawful,  still  such  combinations 
may  use  special  methods  which  are  unlawful.  Two  methods  deserve  particu- 
lar consideration  here:  The  expulsion  of  members  and  the  imposition  of  fines. 
*  *  *  Suppose  that  is  one  of  the  articles  of  agi'eement  that  disobedient 
memliers  may  be  heavily  fined :  and  that  thereafter  the  majority  use  the 
threat  of  imposing  a  heavy  fine  in  order  to  induce  a  minority  member  to  join 
in  action  damaging  to  a  third  person.  Is  this,  as  against  the  third  person,  an 
unlawful  method  of  inducoment?" 

It  has  been  held  unlawful  in  Vermont  and  Massachusetts.  Boutwell  v.  Marr 
(isnoi  71  Vt.  1.  42  Atl.  007,  4?,  L.  R.  A.  803,  76  Am.  St.  Rep.  746.  and  Martell 
V.  White  (1004)  183  Mass.  25r).  69  N.  H.  lO.So.  64  L.  R.  A  200,  102  Am.  St.  Rep. 
341.  And  this  result  seems  correct.  The  initial  agreement  of  the  member  does 
no)  make  the  imposition  of  the  fine  a  lawful  method  of  coercion.  "*  •  * 
When  the  will  of  the  majority  of  an  organized  tKxly,  in  matters  involving  the 
rights  of  outside  parties,  is  enforced  upon  its  members  by  means  of  fines  and 
penalties,  the  situation  is  essentially  the  same  as  when  unity  of  action  is  se- 
cured amon'.'  unorganized  individuals  by  threats  or  intimidation."  Munson, 
J.,  in  Boutwell  v.  Marr  (1809)  71  Vt.  1,  8,  42  Atl.  607,  43  L.  R.  A.  S03,  76  Am. 
St.  Rep.  746. 


Ch.2) 


TORTS  THROUGH  MALICE  1399 


ing  his  calling.     The  facts  leading  to  the  commencement  of  the  action 
were  as  follows : 

In  1S91  the  plaintiff,  wlio  was  at  tlie  time  a  riveter  employed  in  the  busi- 
ness of  repairing  ships,  became  a  member  of  the  defendant  union.  He  lived  at 
Ne'R'port,  Mon.,  where  there  was  a  branch  of  the  union,  and  ultimatel.v  he 
l)ecame  treasurer  of  that  branch,  holding  that  office  in  1S96  and  1897.  In  1S99 
some  difficulties  arose  with  reference  to  his  accounts ;  and  it  was  alleged  that 
he  hod  retained  a  sum  in  hand  of  about  f3S,  which  should  have  been  handed 
over  to  the  society.  He  was  seen  by  the  general  secretary,  the  defendant  Wil- 
liams, in  reference  to  the  matter,  and  on  September  28,  1899,  an  agreement 
was  signed  by  which  he  admitted  his  indebtedness  to  the  society  in  a  sum  of 
£36.  9s.  2d.,  and  agreed  to  pay  this  by  £10  on  October  9,  1890.  and  £1  a  month 
until  the  whole  debt  was  liquidated.  As  he  failed  to  carry  out  this  agreement 
an  action  was  brought  against  him  in  the  county  court,  at  the  instance  of  the 
union,  in  December,  1899,  when  judgment  was  obtained  against  him  for  the 
amount  of  the  arrears  payable  under  the  agreement,  which  at  that  time 
amounted  to  about  £11.  By  the  judgment  he  was  ordered  to  pay  £5  forth- 
with, and  the  balr.nce  of  the  axuount  by  installments  of  £1  per  month.  Shortly 
afterwards  he  ixiid  £4,  but  after  making  that  payment  he  failed  to  make  any 
further  payments  under  the  judgment  or  the  agreement. 

On  February  5,  1900,  whilst  the  plaintiff  was  engaged  at  work  at  the  Prihce 
of  Wales  Dry  Dock  at  Swansea,  the  defendant  Williams  went  to  the  foreman 
and  gave  him  notice  that  unless  the  plaintiff  was  dismissed  the  other  union 
men  who  were  employed  there  would  be  called  out  on  strike.  In  consequence  of 
that  the  plaintiff's  employers  discharged  him,  and  for  some  two  or  three  weeks 
he  was  out  of  employment.  After  that,  however,  he  again  obtained  employ- 
ment, and  was  in  full  work  until  nearly  the  close  of  the  year  1900.  Mean- 
while, he  had  made  no  payments  in  respect  of  the  amount  he  owed  the  imion, 
and  in  June,  1900.  a  judgment  summons  was  issued  against  him  at  tlie  instance 
of  the  union  in  the  eountj-  court,  claiming  that  £11  was  due  from  him.  This 
proved  to  be  an  error,  and  the  summons  was  dismissed  with  costs.  This  fact, 
according  to  the  plaintiff's  case,  irritated  the  officials  and  members  of  the 
union,  and  determined  them,  by  the  course  they  subsequently  took,  to  punish 
him  by  preventing  him  from  obtaining  employment  or  from  continuing  to  work 
if  he  happened  to  obtain  a  job.  He  was  still  a  member  of  the  union,  and  had 
duly  paid  his  contributions  as  such.  In  August,  1900,  his  poiiition  in  relation 
to  the  union,  and  his  indebtedness  to  that  body,  came  up  for  consideration  at 
the  annual  genei'al  meeting  of  the  union,  which  took  place  on  August  6,  7.  and 
8,  at  the  town  hall.  Newport,  when  a  resolution  for  his  expulsion  was  passed, 
which  was  embodied  in  the  following  minutes:  "The  general  secretary  ex- 
plained what  he  had  done  in  this  matter,  and  the  position  at  present.  He  said 
that  Giblan  seemed  determined  not  to  pay  back  to  the  society  his  defalcations, 
but  was  putting  it  to  all  the  trouble  and  expense  he  could.  Afer  the  whole  of 
the  facts  had  been  stated,  it  was  moved  by  brothers  J.  Bui'ns  and  Kenny,  'That 
after  hearing  the  genei'al  secretary's  statement  re  Giblan's  actions,  and  the 
amount  of  his  defalcations,  he  shall  be  expelled  from  this  union  and  shall 
only  be  allowed  to  rejoin  by  paying  to  the  society  such  moneys  as  are  due, 
being  defalcations  when  treasurer  of  Newport  No.  4  branch.  The  terms  of 
pavment  to  be  arranged  with  the  general  secretary  on  the  basis  of  this  resolu- 
tion.' " 

The  plaintiff  having  thus  been  expelled  from  the  union,  the  defendant  Wil- 
liams, on  August  11,  1900,  wrote  to  the  then  treasurer  of  the  Newport  branch, 
informing  him  of  the  resolution,  and  requesting  him  to  post  by  registered  letter 
to  the  plfiiiitiff  a  notice  of  his  expulsion,  also  requesting  him  to  consider  the 
plaintiff"  a  non-member,  and  so  to  inforin  the  members  of  that  and  other 
branches,  and  to  post  up  in  the  club-room  a  notification  that  he  was  not  a 
member,  and  that  he  nmst  be  treated  by  the  members  as  a  non-unionist  until 
further  orders.  Notice  of  expulsion  was  accordingly  sent  to  the  plaintiff".  At 
a  district  joint  committee  meeting  held  at  Newport  on  October  13,  1900,  sev- 
eral union  men  were  fined  for  working  wath  the  plaintiff  as  being  an  expelled 
member. 

On  December  29,  1900,  the  plaintiff  was  in  employment  at  NewT)ort,  when 
the  defendant  Toomey,  the  union's  local  secretary  there,  went  to  his  employer 


1400  TORTS  THROUGH   ACTS   OF  CONDITIONAL  LIABILITY        (Part  3 

and  gave  him  notice  that  unless  tlie  plaintiff  was  discharged  other  men  in  the 
employment  would  be  called  out  by  the  union;  and  Toomey  also  gave  notice 
to  the  other  men,  being  members  of.  the  union,  that  if  they  worked  with  the 
plaintiff  they  would  be  called  out.  Consequently  the  plaintiff  was  discharged. 
In  a  similar  way,  on  four  subsequent  occasions,  at  Newpoit,  Sharpness,  and 
Swansea,  the  last  occasion  being  on  April  19,  1901,  once  through  the  inten-en- 
tion  of  the  defendant  Williams,  and  thrice  through  that  of  the  defendant 
Toomey,  the  plaintiff  was  prevented  from  retaining  employment,  in  each  case 
notice  being  given  to  the  union  men  in  the  employment  that  if  tbey  worked 
with  the  plaintiff  they  would  be  called  out.  It  appeared  that  another  ground 
for  those  proceedings  against  the  plaintiff  was  that  he,  a  non-unionist,  was  ob- 
taining employment  when  union  men  were  out  of  work. 

The  action  was  tried  at  Cardiff  before  Walton,  J.,  with  a  jury,  when 
after  hearing  a  considerable  amount  of  evidence  the  learned  judge 
left  the  following  questions  to  the  jury: 

(1)  Did  the  defendants  Williams  and  Toomey,  acting  together  or 
individually,  call  out  the  union  men  or  threaten  to  call  them  out 
unless  the  plaintiff  was  stopped?  (2)  If  they  or  either  of  them  did, 
did  they  or  he  by  so  doing  prevent,  or  endeavour  to  prevent,  the 
plaintiff"  from  getting  employment  or  retaining  his  employment?  (3) 
Was  this  done  in  order  to  compel  the  plaintiff  to  pay  the  arrears  of 
his  defalcations?  (4)  Was  it  done  in  order  to  punish  the  plaintiff 
for  not  paying  such  arrears  ?  The  following  alternative  questions  were 
also  submitted  to  the  jury  in  the  event  of  their  answering  the  above 
questions  in  the  affirmative :  (5)  Was  what  the  defendants  Williams 
and  Toomey,  or  either  of  them,  did  only  to  warn  the  employers  that 
the  union  men  would  leave  in  consequence  of  union  workmen  being 
unwilling  to  work  with  the  plaintiff?  (6)  Was  this  done  in  conse- 
quence of  the  union  men  objecting  to  work  with  the  plaintiff?  (7) 
What  damages,  if  any?  The  jury  answered  the  first  three  questions 
in  the  affirmative,  and  the  fourth  also  as  regarded  Williams,  but  in 
the  negative  as  regarded  Toomey.  Their  replies  to  the  alternative 
questions  were  in  the  negative,  and  they  assessed  the  damages  at 
ilOO. 

The  result  was  that  Walton,  J.,  came  to  the  conclusion  that  the 
defendant  Williams  was  individually  liable  to  the  plaintiff  for  the 
acts  complained  of,  but  he  gave  judgment  for  the  other  defendants, 
the  union  and  Toomey.  The  plaintiff'  appealed  against  so  much  of 
the  judgment  as  refused  the  relief  he  claimed  by  his  action.  The  de- 
fendant Williams  did  not  appeal  from  the  judgment  against  him.''^ 

RoMER,  L.  J.  What  are  the  facts  of  this  case  as  stated  by  Walton, 
J.,  and  found  by  the  jury?  In  effect  they  are  that  the  defendants 
Williams  and  Toomey,  as  officers  of  the  defendant  union,  had,  by 
virtue  of  their  position,  control  over  the  men  of  the  union,  and  con- 
sequently power  to  influence  employers  by  calling  out  or  threatening 
to  call  out  the  men  unless  the  demands  of  the  defendants  Williams  and 
Toomey   were  complied  with;    and  accordingly  that  the  defendants 

«7  The  statement  of  facts  is  abridged,  and  the  arguments  of  counsel  are 
omitted. 


Ch.  2)  TORTS  THROUGH  MALICE  1401 

combined  to  prevent,  and  did  prevent,  the  plaintiff  from  getting  or 
retaining  employment  by  calling  out  or  threatening  to  call  out  the 
men ;  and,  further,  that  this  caused  damage  to  the  plaintiff  to  the  ex- 
tent of  £100,  and  the  jury  negatived  the  suggestion  that  what  tlie  de- 
fendants did,  first,  was  only  to  warn  the  employers  that  the  men 
would  leave  in  consequence  of  the  men  objecting  to  work  with  the 
plaintiff;  and,  secondly,  was  done  in  fact  in  consequence  of  the  men 
objecting  to  work  with  the  plaintiff.  Lastly,  it  is  found  that  the  de- 
fendants acted  as  they  did  in  order  to  compel  the  plaintiff  to  pay  the 
arrears  of  some  moneys  due  from  him  to  the  union. 

The  question  then  is  whether,  on  these  facts,  the  defendant  Toomey 
ought  not  to  have  been  held  liable  to  tlie  plaintiff,  as  well  as  the  de- 
fendant Williams  who  was  also  found  to  have  been  actuated  by  a 
desire  to  punish  the  plaintiff  for  not  paying  the  arrears.  Now,  since 
the  decision  of  the  House  of  Lords  in  the  case  of  Ouinn  v.  Leathem, 
[1901]  A.  C.  495,  I  take  it  to  be  clear,  even  if  it  had  not  been  clear 
before,  that  a  combination  of  two  or  more  persons,  without  justifica- 
tion, to  injure  a  workman  by  inducing  employers  not  to  employ  him  or 
continue  to  employ  him,  is,  if  it  results  in  damage  to  him,  actionable. 
But  although  I  think  there  is  no  difficulty  in  stating  the  law,  I  fully 
realize  that  considerable  difficulty  may  often  arise  in  particular  cases 
in  ascertaining  what  is  a  "justification"  within  the  meaning  of  my 
statement.  As  to  this,  I  can  only  say  that  regard  must  be  had  to 
the  circumstances  of  each  case  as  it  arises,  and  that  it  is  not  practical- 
ly feasible  to  give  an  exhaustive  definition  of  the  word  to  cover  all 
cases;  and  I  would  refer  to  what  I  have  already  said  on  a  similar 
point  in  the  judgment  I  have  just  delivered  in  the  case  of  the  Gla- 
morgan Coal  Co.  V.  South  Wales  Miners'  Federation,  [1903]  2  K. 
B.  545.  I  will  only  add  that  I  do  not  think  any  excessive  practical 
difficulty  would  arise  in  directing  a  jury  on  the  point  in  any  particular 
case ;  and  I  may  refer  as  illustrating  this,  to  the  direction  given  to 
the  jury  by  FitzGibbons,  L.  J.,  in  the  case  of  Ouinn  v.  Leathem, 
[1901]  A.  C.  at  p.  500.  In  the  case  now  before  us  I  cannot  say  that  I 
feel  any  difficulty  in  applying  the  law  as  regards  the  defendant  Toomey. 
For,  on  the  facts,  I  have  simply  to  detennine  whether  two  or  more 
persons,  who  by  virtue  of  their  position  have  special  power  to  carry 
out  their  design,  are  justified  in  combining  to  prevent,  and  in  fact 
preventing,  a  workman  from  obtaining  any  employment  in  his  trade 
or  calling,  to  his  injury,  merely  because  they  wish  to  compel  him  to 
pay  a  debt  due  from  him.  In  my  opinion  they  are  not  justified;  and 
consequently  the  defendants  Toomey  and  Williams  are,  in  my  opin- 
ion, liable  to  the  plaintiff  for  the  damage  suffered  by  him  through  the 
conduct  of  the  defendants. 

I  may  point  out,  with  reference  to  some  observations  made  in  the 
course  of  the  argument,  that  this  is  not  a  case  where  the  defendants, 
knowing  of  the  plaintiff's  defalcations,  thought  it  their  duty  to  warn 


1402  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

employers  as  to  the  plaintiff's  character,  or  where  the  plaintiff's  fel- 
low-workmen, by  reason  of  that  character,  declined  to  work  with  him. 
The  findings  of  the  jury  negative  any  such  case.  And,  further,  I  desire 
to  add,  with  reference  to  an  argument  addressed  to  us  on  behalf  of 
the  defendants,  that  the  intent  on  the  part  of  the  defendants  Williams 
and  Toomey  to  injure  the  plaintiff  appears  from  the  findings  of  the 
jury.  The  intent  of  the  defendants  was  to  prevent  the  plaintiff's 
obtaining  or  retaining  employment,  in  order  to  compel  him  to  pay  a 
debt  due  from  him ;  and  from  this  the  intent  to  injure  the  plaintiff  ap- 
pears to  me  to  follow. 

But  I  should  be  sorry  to  leave  this  case  without  observing  that,  in 
my  opinion,  it  was  not  essential,  in  order  for  the  plaintiff  to  suc- 
ceed, that  he  should  establish  a  combination  of  two  or  more  persons 
to  do  the  acts  complained  of.  In  my  judgment,  if  a  person  who,  by 
virtue  of  his  position  or  influence,  has  power  to  carry  out  his  design, 
sets  himself  to  the  task  of  preventing,  and  succeeds  in  preventing,  a 
man  from  obtaining  or  holding  employment  in  his  calling,  to  his  injury, 
by  reason  of  threats  to  or  special  influence  upon  the  man's  employers, 
or  would  be  employers,  and  the  design  was  to  carry  out  some  spite 
against  the  man,  or  had  for  its  object  the  compelling  him  to  pay  a 
debt,  or  any  similar  object  not  justifying  the  acts  against  the  man, 
then  that  person  is  liable  to  the  man  for  the  damage  consequently 
suffered.  The  conduct  of  that  person  would  be,  in  my  opinion,  such 
an  unjustifiable  molestation  of  the  man,  such  an  improper  and  inex- 
cusable interference  with  the  man's  ordinary  rights  of  citizenship,  as 
to  make  that  person  liable  in  an  action.  And  I  think  this  view  is 
borne  out  by  the  views  expressed  by  the  members  of  the  House  of 
Lords  who  decided  the  case  of  Quinn  v.  Leathem,  [1901]  A.  C. 
495.''« 

The  remaining  question  is  as  to  the  liability  of  the  defendant  union. 
That  depends  upon  whether,  if  the  acts  complained  of  had  been  done 
by  the  executive  committee,  the  union  would  have  been  liable.  I  have 
come  to  the  conclusion  tliat  the  union  would  have  been  liable  on  the 
principle  stated  in  Barwick  v.  English  Joint  Stock  Bank,  L.  R.  2  Ex. 
259, — that  the  acts  were  done  in  the  service  and  for  the  benefit  of  the 
union. 

Stirling,  L.  J.  The  findings  of  the  jury  in  this  case,  even  when 
taken  most  favourably  for  the  defendants,  appear  to  amount  to  this — 
that  the  defendants  Williams  and  Toomey,  acting  together,  prevented 
or  endeavoured  to  prevent  the  plaintiff  from  being  employed,  by 
threatening  his  employers  that  the  union  men  would  be  called  out  on 
strike  unless  they  dismissed  him  (which  those  employers  could  do 
without  breach  of  any  contract  between  them  and  the  plaintiff),  and 
that  Williams  and  Toomey  so  acted  with  the  object  of  compelling  the 

«8  For  a  discussion  of  this  point,  see  Salmond  on  Torts  (3d  Ed.)  476-479. 


Ch.  2)  TORTS  THROUGH  MALICE  1403 

plaintiff  to  pay  the  arrears  of  his  defalcations  as  a  former  officer  of 
the  union. 

I  shall  first  consider  the  case  as  against  the  defendant  Toomey, 
which  appears  to  turn  on  the  question  whether  he  and  his  codefendant 
Williams  have  been  engaged  in  an  unlawful  conspiracy. 

In  the  case  of  Mulcahy  v.  Reg.  (1868)  L.  R.  3  H.  L.  306,  317,  Willes, 
J.  (advising  the  House  of  Lords),  defined  a  conspiracy  as  consisting 
in  the  agreement  O'f  two  or  more  to  do  an  unlawful  act  or  to  do  a 
lawful  act  by  unlawful  means.®® 

In  this  case  I  assume  that  the  defendants  agreed  to  do  what  they 
did  for  a  lawful  object,  namely,  to  obtain  payment  from  the  plaintiff 
of  what  he  owed  to  the  trade  union.  It  must  then  be  made  out  that 
they  sought  to  do  so  by  unlawful  means.  It  was  contended  in  argu- 
ment that  unlawful  means  must  be  such  as  would  be  wrongful  if  com- 
mitted by  a  single  individual :  I  cannot  agree.  In  Mogul  Steamship 
Co.  V.  McGregor  (1889)  23  O.  B.  D.  598,  616,  Bowen,  L.  J.,  states 
the  law  thus :  "Of  the  general  proposition,  that  certain  kinds  of  con- 
duct not  criminal  in  any  one  individual  may  become  criminal  if  done 
by  combination  among  several,  there  can  be  no  doubt.  The  distinction 
is  based  on  sound  reason,  for  a  combination  may  make  oppressive  or 
dangerous  that  which  if  it  proceeded  only  from  a  single  person  would 
be  otherwise,  and  the  very  fact  of  the  combination  may  shew  that  the 
object  is  simply  to  do  harm  and  not  to  exercise  one's  own  just  rights. 
In  the  application  of  this  undoubted  principle  it  is  necessary  to  be  very 
careful  not  to  press  the  doctrine  of  illegal  conspiracy  beyond  that 
which  is  necessary  for  the  protection  of  individuals  or  of  the  public; 
and  it  may  be  observed  in  passing  that  as  a  rule  it  is  the  damage 
wrongfully  done,  and  not  the  conspiracy,  that  is  the  gist  of  actions 
on  tlie  case  for  conspiracy."  This  view  of  the  law  has  been  recogniz- 
ed in  the  House  of  Lords  in  the  same  case  on  appeal,  [1892]  A.  C.  25, 
and  also  in  Quinn  v.  Leathern,  [1901]  A.  C.  495,  particularly  by  Lord 
Macnaghten,  at  pp.  510,  511,  by  Lord  Brampton,  at  pp.  529-531,  and  by 
Lord  Lindley,  at  p.  538.  Lord  Brampton  further  says,  at  pp.  528,  529  ; 
"The  essential  elements,  whether  of  a  criminal  or  of  an  actionable 
conspiracy,  are,  in  my  opinion,  the  same,  though  to  sustain  an  action 
special  damage  must  be  proved."  This  agrees  with  what  is  laid  down 
by  Bowen,  L.  J.,  in  the  last  sentence  cited  above,  and  is  supported  by 
the  case  of  Barber  v.  Lesiter  (1860)  7  C.  B.  (N.  S.)  l75,\o  which 
Lord  Brampton  refers.  In  the  present  case  damage  has  been  found 
by  the  jury. 

The  question  then  arises  whether  the  preventing  the  plaintiff  from 
obtaining  employment,  by  threats  of  calling  out  the  union  men  unless 
he  was  dismissed,  is  an  unlawful  act  on  the  part  of  Toomey  and  Wil- 
liams acting  in  combination;    and  in  considering  this  question  there 

0  9  On  conspiracy  as  a  substantive  wrong,  see  also  Pollock  on  Torts  (9tli  Ed.) 
328 ;  Salmond  on  Torts  (3fl  Ed.)  471 ;  Burdick  on  Torts  (3d  Ed.)  325 ;  27  Hals- 
bury's  Laws  of  England,  655-658. 


1404  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

must  be  borne  in  mind  the  observation  of  Bowen,  L.  J.,  just  quoted,  as 
to  the  necessity  of  using  great  care  not  to  extend  too  far  the  doctrine 
of  illegal  conspiracy.  In  the  Mogul  Case,  [1892]  A.  C.  25,  it  was 
decided  that  acts  done  by  traders  in  the  exercise  of  their  right  to  car- 
ry on  a  legal  business  were  not  illegal,  although  highly  detrimental 
to  another  trader  engaged  in  a  similar  and  competing  business.  Fry, 
L.  J.,  puts  the  matter  thus,  23  Q.  B.  D.  625 :  "The  right  of  the  plain- 
tiffs to  trade  is  not  an  absolute  but  a  qualified  right — a  right  condi- 
tioned by  the  like  right  in  the  defendants  and  all  Her  Majesty's  sub- 
jects, and  a  right  therefore  to  trade  subject  to  competition."  So 
also  every  workman  is  entitled  to  dispose  of  his  labour  on  his  own 
terms ;  but  that  right  is  conditioned  by  the  right  of  every  other  work- 
man to  do  the  like.  In  particular,  each  employee  is,  as  I  think,  at  lib- 
erty to  decide  for  himself  whether  he  will  or  will  not  work  along  with 
another  individual  in  the  same  employ;  and  if  all  the  workmen  but 
one  determine  that  they  will  not  continue  their  labour  in  company  with 
that  one,  they  may  inform  their  employer  of  their  decision.  On  this 
I  refer  to  what  was  said  in  Allen  v.  Flood,  [1898]  A.  C.  1,  by  Lord  Wat- 
son, at  pp.  98-9,  and  Lord  Davey,  at  p.  173.  Those  who  desire  to  ex- 
ercise such  a  right  must  indeed  proceed  with  care,  for  the  law  forbids 
in  this  connection  various  classes  of  acts.  I  think,  however,  that  it  is 
unnecessary  on  this  occasion  to  discuss  this  part  of  the  subject,  for 
the  fifth  and  sixth  findings  of  the  jury  appear  to  me  to  negative  any 
suggestion  that  the  acts  of  Williams  and  Toomey  were  done  on  behalf 
of  the  fellow-labourers  of  the  plaintiff,  or  in  exercise  of  any  right  of 
theirs  to  withdraw  themselves  from  an  employment  in  which  he  took 
part.  These  acts  were  directed  to  inflict  harm  on  the  plaintiff  by 
preventing  him  fro.m  obtaining  or  retaining  employment,  and  conse- 
quently from  earning  his  livelihood  in  the  only  way  in  which  he  could 
do  so.  By  their  acts  they,  Williams  and  Toomey,  caused  him  as  seri- 
ous an  injury  as  can  well  be  done  to  a  working  man;  and  that  injury 
resulted  in  damage.  They  did  those  acts  from  time  to  time,  as  the 
plaintiff  succeeded  in  obtaining  employment,  by  going  to  his  employer 
and  threatening  that  they  would  resort  to  the  powers  which  were,  or 
v/ere  believed  to  be,  vested  in  them  as  officers  of  a  trade  union,  and 
which  involved  a  resort  to  tlie  power  of  numbers  in  a  way  which 
might  and  probably  would  cause  detriment  to  the  employer.  It  may, 
in  my  opinion,  be  fairly  inferred  from  the  evidence  that  this  course 
of  conduct  was  intended  to  be  continued  until  the  plaintiff  made  terms 
satisfactory  to  the  trade  union.  Such  acts,  so  persisted  in,  seem  to 
me  to  be  in  the  nature  of  molestation  or  coercion ;  and  although  they 
do  not  involve  recourse  to  physical  force,  I  am  far  from  satis^ed  that 
they  are  not  such  as  to  be  illegal  even  if  done  by  a  single  individual. 
Fry,  L.  J.,  in  the  same  judgment  in  the  Mogul  Case,  says:  "I  do  not 
doubt  that  it  is  unlawful  and  actionable  for  one  man  to  interfere  with 
another's  trade  by  fraud  or  misrepresentation,  or  by  molesting  his 
customers,  or  those  who  would  be  his  customers,  whether  by  physical 


Ch.  2)  TORTS  THROUGH  MALICE  1405 

obstruction  or  moral  intimidation."  It  is  unnecessary,  however,  to 
decide  this  point,  for  these  acts  which  inflicted  injury  on  the  plaintiff, 
resulting  in  damage,  were  done  by  two  persons  in  combination,  and 
amounted  to  an  interference  with  the  plaintiff's  rights  no  less  serious 
than  that  which  was  the  subject  of  the  action  of  Gregory  v.  Duke  of 
Brunswick  (1843-44)  6  Man.  &  G.  205,  953,  a  case  which  has  been 
treated  as  an  authority  in  the  House  of  Lords  in  Quinn  v.  Leathem, 
[1901]  A.  C.  at  p.  503.  It  was  there  held  that  a  conspiracy  to  hiss  an 
actor  off  the  stage,  and  so  injure  him  in  his  trade  or  calling,  was  il- 
legal, and  that  acts  done  in  pursuance  of  such  a  conspiracy  were  not 
excused  by  shewing  that  the  actor  was  an  unfit  person  to  appear  be- 
fore the  public.  So  here,  the  acts  of  the  defendants  Williams  and 
Toomey  were  not  excused,  in  my  opinion,  by  the  fact  that  the  plaintiff 
had  been  guilty  of  defalcations  and  owed  a  considerable  sum  to  the 
trade  union.  I  do  not  in  the  least  extenuate  the  wrongs  suffered  by 
the  trade  union  at  tlie  hands  of  the  plaintiff' :  I  think  he  behaved  bad- 
ly and  the  trade  union  shewed  him  great  forbearance :  still,  even  a 
criminal  ought  not  to  be  persecuted  but  to  be  punished  according  to 
law.  If  the  plaintiff  was  guilty  of  a  criminal  offence  he  might  and 
ought  to  have  been  prosecuted,  in  which  case  the  appropriate  punish- 
ment would  have  been  meted  out  to  him  by  a  legal  tribunal.  If  he 
failed  to  pay  a  just  debt,  the  law  provides  ample  means  for  enforcing 
payment  of  it.  In  certain  cases,  though  not  universally,  the  non-pay- 
ment of  a  debt  is  punishable  by  imprisonment.  The  plaintiff  might 
possibly  have  been  punished  in  this  way :  an  attempt  to  punish  him 
was  made  and  was  defeated  on  technical  grounds  only ;  but,  so  far 
as  I  can  see,  the  attempt  might  have  been  repeated  with  a  fair  pros- 
pect of  success.  This  was  not  done,  but  Williams  and  Toomey  adopt- 
ed the  course  which  has  resulted  in  the  present  action.  If  the  ex- 
istence O'f  the  default  or  debt  were  admitted  as  a  valid  excuse  for  de- 
priving a  defaulter  or  debtor  of  his  employment,  a  punishment  might 
be  inflicted  on  him  far  greater  than  that  which  is  allowed  by  law. 

I  come,  therefore,  to  the  conclusion  that  the  defendants  Williams 
and  Toomey  were  guilty  of  a  tort  in  respect  of  which  they  are  liable 
to  the  plaintiff  in  this  action;  and  I  pass  on  to  consider  whether  the 
defendants,  the  trade  union,  are  also  liable.     *     *     *  ^'^ 

Appeal  allowed.'^ ^ 

70  On  this  question,  Stirling,  L,  J.,  reactiecl  the  conclusion  that  the  union 
was  liable. 

Ti  An  opinion  by  Vaughan  Williams,  L.  J.,  that  the  appeal  must  be  allowed, 
is  omitted. 


1406  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

GLAMORGAN  COAL  CO.,  Limited,  et  al.  v.   SOUTH  WALES 
MINERS'  FEDERATION  et  al. 

(King's  Bench  Division.    [1903]  1  K.  B.  118.    Court  of  Appeal. 

[1903]  2  K.  B.  545.) 

This  action  was  brought  by  the  Glamorgan  Coal  Company,  Limited, 
and  seventy-three  other  plaintiffs  against  the  South  Wales  Miners' 
Federation,  its  trustees,  its  officers,  and  a  number  of  the  members  of 
its  executive  council,  to  recover  damages  for  wrongfully  and  mali- 
ciously procuring  and  inducing  the  workmen  in  the  plaintiffs'  col- 
lieries to  break  their  contracts  of  service  with  the  plaintiffs.  In  the 
alternative,  the  plaintiff's  also  sue  the  defendants  for  wrongfully, 
unlawfully,  and  maliciously  conspiring  together  to  do  the  acts  com- 
plained of.  The  conspiracy  count  is  put  this  way:  The  defendant 
federation,  by  its  agents,  its  executive  council,  and  the  other  defend- 
ants (naming  them),  well  knowing  the  terms  and  conditions  of  the  con- 
tracts of  service  with  the  workmen,  wrongfully,  unlawfully,  and  ma- 
liciously conspired  together  to  do  the  acts  complained  of,  that  is,  to 
procure  the  workmen  to  break  their  contracts  of  service  by  taking  holi- 
days, called  stop-days.  The  plaintiff's  claim  both  damages  and  an  in- 
junction. 

The  defendants,  after  denying  the  material  allegations  in  the  state- 
ment of  claim,  alleged  in  substance  that  the  acts  complained  of,  if 
done  at  all,  were  done  with  reasonable  justification  and  excuse. 

In  his  written  judgment  in  the  Divisional  Court  Bigham,  J.,  made 
a  finding  of  facts,  in  which  the  following,  among  other  facts,  appear : 

The  plaiutiflfs  are  seventy-four  limited  liability  companies  associated  to- 
gether for  the  protection  of  their  own  interests  under  the  style  of  the  Mon- 
mouthshire and  South  Wales  Coal  Owners'  Association.  They  work  upwards 
of  200  collieries  in  the  South  Wales  district,  and  in  these  collieries  they  em- 
ploy about  100,000  men.  For  the  last  twenty  or  twenty-five  years  the  masters 
and  the  men  in  the  South  Wales  colliery  district  have  worked  together  under 
an  agreement,  called  the  sliding  scale  agreement,  by  which  the  rate  of  wages 
paid  to  the  men  is  made  to  depend  on  the  price  for  the  time  being  of  a  certain 
agreed  class  of  coal — that  is  to  say,  as  the  price  of  that  coal  rises  or  falls  so 
the  rate  of  wages  moves  up  or  down.  It  is  thus  to  the  interest,  not  only  of  the 
masters,  but  also  of  the  men,  to  keep  up  the  price  of  coal,  but,  at  tho  same 
time,  not  to  drive  it  up  to  such  a  point  as  will  unduly  interfere  with  the  de- 
mand. Against  the  producers  of  coal  there  are  always  arrayed  a  number  of 
coal  dealers,  known  as  merchants  or  middlemen,  who  buy  coal  to  be  shipped  to 
foreign  ports,  or  for  resale  in  the  South  Wales  market  The  interest  of  these 
men  is,  of  course,  to  keep  down  prices,  so  that  they  may  buy  as  cheaply  as 
possible.  They  fre<iuently  sell  large  quantities  of  coal  for  forward  delivery 
at  prices  below  those  current  for  immediate  delivery,  trusting  to  supply  them- 
selves later  on  by  purchases  fi'oni  one  or  other  of  the  many  collieries  at  prices 
which  will  make  their  bargains  remunerative.  This  has  the  effect  of  depress- 
ing the  market,  and  on  more  than  one  occasion,  and  particularly  in  the  years 
IS'JG  and  1897,  the  masters  and  men  have  tried  together  to  devise  some  scheme 
to  so  regulate  the  output  of  the  mines,  by  means  of  stop-days  or  otlierwise,  as 
to  counteract  this  effect.  There  has,  however,  always  been  a  difficulty  in  get- 
ting a  sufficient  number  of  the  colliery  proin-ietors  to  fall  in  witli  any  scheme 
having  for  its  ol).ject  the  restriction  of  output,  and  thus  nothing  has  been  done. 
On  April  1,  1898,  a  strike  broke  out  in  the  South  Wales  district,  and  the  col- 


Ch.2) 


TORTS  THROUGH   MALICE  1407 


lieries  were  closed  from  that  date  to  August  31.  On  September  1  work  was 
resumed  throughout  the  district.  At  the  collieries  of  foi-ty-seven  of  the  plain- 
tiff companies  it  was  resumed  under  an  agreement  which  embodied  the  old 
sliding  scale.  By  this  agreement  it  was  provided  that  a  joint  committee  of 
masters  and  men  should  be  formed,  which  should  be  called  the  joint  sliding 
scale  committee ;  and  that  it  should  be  comprised  of  twelve  masters,  represent- 
ing the  forty-seven  firms,  and  of  twelve  men  elected  by  the  colliers  in  the 
employment  of  those  firms.  Each  half  of  this  committee  was  to  have  its  own 
secretary,  elected  from  its  own  twelve  members,  and  it  was  contemplated  that 
each  half  might  from  time  to  time  meet  separately  to  discuss  matters  affect- 
ing its  own  interests.  One  of  the  principal  objects  of  the  joint  committee  was 
to  ascertain,  by  audits  of  the  sales  of  the  forty-seven  firms,  the  average  price 
of  coal,  for  the  purpose  of  regulating  wages  thereby.  The  agreement  contained 
many  other  provisions  in  addition  to  the  provision  for  the  formation  of  the 
joint  committee,  but  it  is  only  necessary  to  refer  to  one  of  them — clause  23  of 
the  embodied  sliding  scale  agreement,  which  is  as  follows:  'It  is  hereby 
agreed  that  all  notices  to  terminate  contracts  on  the  part  of  the  employers,  as 
well  as  employed,  shall  be  given  only  on  the  first  day  of  any  calendar  month, 
and  to  terminate  on  the  last  day  of  the  same  month.'  Although  only  forty- 
seven  of  the  plaintiffs  were  parties  to  that  agreement  and  were  alone  to  be 
represented  on  the  joint  sliding  scale  committee,  the  men  employed  by  the 
other  twenty-seven  plaintiffs  went  back  to  work  on  the  same  terms,  both  as  to 
wages  and  notice,  as  those  contained  in  the  agreement.  On  October  11,  1898, 
the  defendant  federation  was  formed,  and  practically  all  the  miners  in  the 
South  Wales  district  became  members  of  it.  Tliey  number  about  128,000,  and 
they  include  all,  or  very  nearly  all,  the  men  who  work  for  the  plaintiffs. 

The  federation  prospered  greatly  so  that  by  the  end  of  1900  it  found  itself 
in  the  possession  of  funds  amounting  to  £100.000.  The  price  of  coals  also 
rose,  and  with  it  the  rate  of  wages.  But  in  October  or  November,  1900,  the 
council  of  the  federation  seemed  to  have  felt  some  apprehension  that  this  pros- 
perity was  being  threatened  by  the  merchant  and  the  middleman.  It  is  at 
this  season  of  the  year  that  foreign  governments  and  others  make  their  con- 
tracts for  forward  delivei"y  of  coal,  and  the  prices  at  which  these  contracts 
were  being  effected  alarmed  the  council,  and  foreshadowed  a  fall  in  prices. 

To  guard  against  this,  and  in  the  honest  belief  that  the  danger  was  real, 
the  council  of  the  federation  passed  a  resolution  ordering  a  stoi>-day  for  Fri- 
day, November  9.  A  further  resolution  was  passed  that  a  general  conference 
of  the  federation  should  be  convened  for  November  12.  In  the  meanwhile  the 
following  manifesto  was  ordei'ed  to  be  circulated:  "Fellow  Workmen — Your 
council,  having  seriously  considered  the  present  condition  of  the  coal  trade, 
are  strongly  of  opinion  that  an  organized  attempt  is  being  made  to  unduly  in- 
terfere with  trade  and  prices  to  such  an  extent  as  will  prejudice  the  interest 
of  the  members  of  the  federation.  With  a  view  of  preventing  the  industry  be- 
ing exploited  by  merchants  and  middlemen,  we  have  unanimously  resolved 
that  a  general  holiday  be  taken  throughout  the  coal  field  by  all  colliery  work- 
men on  Friday  next,  November  9,  1900.  We  also  request  you  upon  that  day 
to  hold  general  meetings  for  the  purpose  of  appointing  delegates  to  attend  a 
conference  at  the  Cory  Memorial  Hall  on  Monday  next,  November  12,  1900,  to 
consider  and  determine  our  future  policy,  as  embodied  in  the  following  reso- 
lution: That  the  conference  hereby  authorizes  the  council  to  declare  a  gen- 
eral holiday  at  any  time  they  think  it  necessary  for  the  protection  of  our 
wages  and  the  industry  generally.  W.  Abraham."  This  manifesto  had  the  de- 
sired effect,  and  on  November  9  all  the  colliers  in  the  coal  field,  including  the 
men  working  in  the  plaintiffs'  collieries,  stopped  work.  No  notice  of  any 
kind  was  served  on  the  masters,  and  they  knew  nothing  of  the  matter  xmtil 
they  saw  a  report  of  Mr.  Abraham's  si>eech  in  the  newspapers  of  November  6. 
This  stoppage  on  November  9  is  the  first  matter  of  which  the  plaintiff's  com- 
plain in  this  action.  On  November  12,  1900,  the  conference  which  had  been 
convened  for  that  day  was  held,  and  at  it  a  resolution  was  passed  authorizing 
the  council  of  the  federation  to  declare  a  general  holiday  at  any  time  they 
might  think  it  necessary  for  the  protection  of  wages  and  of  the  industry  gen- 
erally. 

In  ordering  the  stop-day  on  November  9,  the  federation  acted  as  they 
thought  in  the  best  interest  of  the  men,  and  without  any  intention,  malicious 


1408  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

or  otherwise,  of  injuring  the  plaintiffs.  About  three  weeks  after  this  stop- 
day,  the  associated  owners  met,  and,  after  negativing  the  expediency  of  prose- 
cuting the  men,  resolved  as  follows:  "That  tlie  owners'  side  of  the  sliding 
scale  committee  ix>iut  out  to  the  workmen's  representatives  that  a  resolution 
has  been  passed  by  the  association,  that,  if  the  men  make  any  future  illegal 
stoppage,  the  owners  will  take  proceedings  against  the  men." 

On  October  23,  1901,  the  federation  published  the  following  signed  manifes- 
to: "To  the  workmen  employed  at  the  South  Wales  and  Monmouthshire  Col- 
lieries. It  having  come  to  the  knowledge  of  your  representatives  upon  the 
sliding  scale  committee  that  large  contracts  have  already  been  made  at  con- 
siderably lower  prices  than  the  average  price  declared  by  the  last  sliding  scale 
audit,  and  fearing  the  result  of  those  contracts  upon  annual  and  other  con- 
tracts about  to  be  made,  which  must  of  necessity  mean  a  heavy  reduction  in 
wages,  it  was  unanimously  resolved  that  the  workmen  shall  observe  as  gen- 
eral holidays  Friday  and  Saturday  next."  Telegrams  were  then  sent  to  all 
the  collieries  in  South  Wales,  notifying  the  fact  that  the  stop-days  had  been 
declared.  Subsequently  two  other  stop-days  were  ordered  by  the  federation, 
one  for  October  31  and  one  for  November  6. 

The  result  of  all  this  was  that  the  men  stayed  away  from  work  on  the  four 
days,  and  so  broke  their  contracts  with  the  masters. 

In  concluding  his  finding  of  facts,  Bigham,  J.,  remarked  as  fol- 
lows : 

"There  was  no  quarrel  at  all  between  the  masters  and  the  men,  and, 
so  far  as  I  can  see,  no  ill  will.  The  men  objected  to  the  course  of 
business  adopted  by  the  middlemen,  and  in  this  objection  some,  at  least, 
of  the  masters  seem  to  have  shared.  The  evidence  satisfies  me  that 
the  action  of  the  federation,  and  of  the  other  defendants  in  1901,  was 
dictated  by  an  honest  desire  to  forward  the  interest  of  the  workmen, 
and  was  not,  in  any  sense,  prompted  by  a  wish  to  injure  the  mas- 
ters. Neither  the  federation  nor  the  other  defendants  had  any  pros- 
pect of  personal  gain  from  the  operation  of  the  stop-days.  Having 
been  requested  by  the  men,  by  the  resolution  of  November  12,  1900. 
to  advise  and  direct  them  as  to  when  to  stop  work,  the  federation  and 
the  other  defendants,  who  were  its  officers,  in  my  opinion,  did  to 
the  best  of  their  ability  advise  and  direct  the  men.  Whether  they  ad- 
vised them  wisely  I  cannot  say,  though  I  am  inclined  to  think  not. 
But  I  am  satisfied  that  they  advised  them  honestly  and  without  malice 
of  any  kind  against  the  plaintiflfs. 

"I  have  to  decide,  in  these  circumstances,  whether  an  action  in 
tort  will  lie  against  the  defendants.  The  advice  and  guidance  of  the 
defendants  was  solicited  and  given.  If  followed,  it  involved,  as  the 
defendants  knew,  the  breaking  of  the  subsisting  contracts.  It  was 
followed,  as  the  defendants  wished  it  should  be ;  and  damage  resulted 
to  the  masters;  but  there  was  no  malicious  intention  to  cause  injury, 
no  profit  was  gained  for  themselves  by  the  defendants,  and  their  sole 
object  was  to  benefit  the  men,  whom  they  were  advising  and  direct- 
ing." 

On  these  facts  the  judgment  in  the  Divisional  Court  was  for  the 
defendants  on  both  branches  of  tlie  plaintiffs'  claim.  The  plaintiffs 
appealed. 


Ch.  2)  TORTS  THROUGH  MALICE  '1409 

[In  the  Court  of  Appeal] 

The  following"  judgments  were  read: 

Vaughan  Williams,  L.  J.  *  *  *  This  decision  of  Bigham, 
J.,  does  not,  of  course,  involve  any  such  proposition  as  that  the 
workmen  have  a  right  to  break  the  contracts  entered  into  by  them 
respectively  because  each  one  of  them  may  think  honestly  that  it  is 
either  for  his  individual  advantage,  or  for  the  advantage  of  the  work- 
men collectively,  that  the  contracts  should  be  broken.  Each  work- 
man will,  of  course,  be  liable  to  be  sued  for  his  own  breach  of  con- 
tract. The  question  is  whether  an  action  will  lie  for  procuring  a 
breach  of  contract  or  for  conspiracy.  Taken  in  its  simplest  form, 
the  question  would  be  whether,  if  a  hundred  men  in  the  same  em- 
ploy agreed  that  they  would  each  of  them  with  the  same  object  break 
their  respective  contracts  on  a  given  day,  an  action  would  lie,  either 
against  each  of  them  for  procuring  breaches  of  contract  by  the  others, 
or  against  the  hundred  collectively  for  conspiracy,  or  whether  it  could 
be  said  that  there  was  anything  in  the  relation  of  the  men  one  to 
another  which  negatived  an  action  in  the  form  of  an  action  for  pro- 
curing a  breach  of  contract,  or  an  action  for  conspiracy,  in  a  case  in 
which  that  which  was  agreed  to  be  done,  or  to  do  which  the  com- 
bination was  formed,  was  undoubtedly  a  wrongful  act,  for  which  each 
one  could  be  sued  for  breach  of  his  own  personal  contract.  It  seems 
to  me  that  if  these  prima  facie  causes  of  action,  arising  for  procuring 
a  breach  of  contract  or  combining  to  procure  it,  do  not  lie,  it  must 
be  either  on  the  ground  that  community  of  interest  excludes  a  pro- 
curing each  of  the  other  connected  by  community  of  interest,  or  be- 
cause the  relation  of  the  parties,  whoever  they  are,  raises  a  duty 
to  counsel  one  another  and  to  arrange  for  concerted  action.  Some 
such  proposition  would  cover  the  instances  suggested  by  the  learned 
judge  and  by  counsel  in  argument,  such  as  a  brother  advising  a  sister, 
or  a  parent  a  child,  or  a  doctor  a  patient,  or  a 'solicitor  a  client,  but 
the  principle  is  the  same  in  each  case,  and  the  question  must  be  the 
same  in  each  case.  Is  the  relation  such  as  to  raise  the  duty?  In  each 
of  those  cases  the  person  breaking  the  contract  is  not  the  agent  of 
the  person  giving  the  advice,  however  influential  the  adviser  may  be. 
The  action  for  procuring  a  breach  of  contract  is  an  action  for  wrong- 
fully interfering  in  the  contractual  relations  of  other  persons.  The 
effect,  if  any,  of  the  duty  or  right  arising  from  the  relation  is  only 
that  it  negatives  the  prima  facie  presumption  of  malice  which  the  law 
supposes  from  interference  with  the  contractual  rights  between  the 
parties  to  a  contract  of  which  the  interferer  has  notice;  and  the  de- 
fendant can  always  rebut  the  prima  facie  presumption  thus  arising  by 
the  proof  of  circumstances  raising  a  duty  to  advise ;  but  the  plaintiff 
on  his  part  can  neutralize  this  by  proof  of  express  malice.'  In  no 
other  sense  is  it  true  to  say  that,  in  an  action  for  procuring  a  breach 

IlErB.TOBTS — SO 


1410  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

of  contract,  it  is  necessary  to  prove  malice  or  motive,  or  anything 
more  than  mere  notice  of  the  contract.  I  think  that  similar  observa- 
tions arise  on  conspiracy ;  for,  prima  facie,  a  combination  to  inter- 
fere with  the  civil  rights  of  another,  whether  it  be  his  right  to  full 
freedom  in  disposal  of  his  own  labor  or  his  own  capital  or  any  other 
right  of  citizenship,  is  an  unlawful  combination,  because  such  in- 
terference, if  carried  into  effect,  is  an  actionable  wrong,  and  it  is  this 
fact,  and  not  any  mere  malicious  motive,  which  constitutes  the  com- 
bination a  conspiracy.  This  prima  facie  wrongful  interference  may 
be  negatived  by  showing  that  the  exercise  of  the  defendants'  own 
rights  involved  the  interference  complained  of,  which  interference  is 
merely  the  exercise  of  the  right  of  a  man  to  interfere  in  a  matter  in 
which  he  is  jointly  interested  with  others,  and  such  interference  gives 
no  cause  of  action.  In  such  a  case  there  will  be  intentional  procure- 
ment of  a  violation  of  individual  rights,  contractual  or  other,  but 
just  cause  for  it,  as  being  done  for  the  maintenance  of  the  equal  civil 
rights  of  the  defendants.     *     *     * 

But  whatever  may  be  the  identity  of  the  federation  and  the  men, 
it  seems  impossible  in  any  action  for  breach  of  contract  merely,  and 
nothing  else,  brought  against  the  federation,  as  the  collective  forensic 
name  of  the  men,  to  sign  a  judgment  against  the  federation,  because 
the  federation  are  not  parties  to  the  contract  which  has  been  broken. 
It  follows  that,  if  the  federation  is  liable  at  all,  it  must  be  either  in 
an  action  for  procuring  breaches  of  contract  or  conspiracy,  and  in 
either  form  of  action  there  is  a  prima  facie  case  against  the  federa- 
tion, and  the  federation,  being  a  separate  entity  from  the  men,  must 
shew  some  sufficient  justification  for  their  interference.  The  federa- 
tion and  the  members  of  their  council  who  are  defendants  seek  to 
base  this  justification  on  the  suggestion  that  their  relation  to  the  men 
raises  a  duty  on  their  part  to  advise  the  men,  or,  at  all  events,  nega- 
tives their  being  mere  meddlers.  It  was  argued  before  us  that  the 
defendants  were  not  mere  advisers,  but  that  they  were  actors  who  did 
the  very  thing  complained  of,  in  that  they  issued  the  notices  ordering 
the  stop-days,  and  compelled  reluctant  men  to  break  their  contracts  by 
staying  away  from  work  without  giving  proper  notices  to  their  em- 
ployers, and  that  the  view  of  the  federation  was  that  men  who  refused 
to  stay  away  would  be  guilty  of  disloyalty  to  the  federation ;  but  this 
argument  does  not  convince  me  that  the  federation  were  not  acting 
as  advisers,  nor  does  the  fact  that  the  federation  actually  issued  the 
notices  deprive  the  defendants  of  their  character  of  advisers.  It  is 
not  suggested  in  this  case  that  the  men  stayed  away  from  work  under 
threats,  intimidation,  or  physical  compulsion.  I  think,  therefore,  the 
judgment  of  Bigham,  J.,  must  be  affirmed  for  the  reasons  given  by 
him.     *     *     * 

RoMDR,  L.  J.  The  law  applicable  to  this  case  is,  I  think,  well  set- 
tled.    I  need  only  refer  to  two  passages  in  which  that  law  is  shortly 


Ch.  2)  TORTS  THROUGH  MALICE  1411 

and  comprehensively  stated.  In  Quinn  v.  Leathern,  [1901]  A.  C. 
495,  at  p.  510,  Lord  Macnaghten  said:  "A  violation  of  legal  right 
committed  knowingly  is  a  cause  of  action,  and  it  is  a  violation  of  legal 
right  to  interfere  with  contractual  relations  recognized  by  law  if  there 
be  no  sufficient  justification  for  the  interference."  And  in  Mogul 
Steamship  Co.  v.  McGregor,  Gow  &  Co.,  23  Q.  B.  D.  598,  at  p.  614, 
Bowen,  L.  J.,  included  in  what  is  forbidden  "the  intentional  procure- 
ment of  a  violation  of  individual  rights,  contractual  or  other,  assum- 
ing always  that  there  is  no  just  cause  for  it."  But  although,  in  my 
judgment,  there  is  no  doubt  as  to  the  law,  yet  I  fully  recognize  that 
considerable  difficulties  may  arise  in  applying  it  to  the  circumstances 
of  any  particular  case.  When  a  person  has  knowingly  procured  an- 
other to  break  his  contract,  it  may  be  difficult  under  the  circum- 
stances to  say  whether  or  not  there  was  "sufficient  justification  or 
just  cause"  for  his  act.  I  think  it  would  be  extremely  difficult,  even 
if  it  were  possible,  to  give  a  complete  and  satisfactory  definition  of 
what  is  "sufficient  justification,"  and  most  attempts  to  do  so  would 
probably  be  mischievous.  I  certainly  shall  not  make  the  attempt. 
*  *  *  But,  though  I  deprecate  the  attempt  to  define  justification, 
I  think  it  right  to  express  my  opinion  on  certain  points  in  connection 
with  breaches  of  contract  procured  where  the  contract  is  one  of  mas- 
ter and  servant.  In  my  opinion,  a  defendant  sued  for  knowingly  pro- 
curing such  a  breach  is  not  justified  of  necessity  merely  by  his  show- 
ing that  he  had  no  personal  animus  against  the  employer,  or  that  it 
was  to  the  advantage  or  interest  of  both  the  defendant  and  the  work- 
man that  the  contract  should  be  broken.  I  take  the  following  simple 
case  to  illustrate  my  view.  If  A.  wants  to  get  a  specially  good  work- 
man, who  is  under  contract  with  B.,  as  A.  knows,  and  A.  gets  the 
workman  to  break  his  contract  to  B.'s  injury  by  giving  him  higher 
wages,  it  would  not,  in  my  opinion,  afiford  A.  a  defence  to  an  ac- 
tion against  him  by  B.  that  he  could  establish  he  had  no  personal  ani- 
mus against  B.,  and  that  it  was  both  to  the  interest  of  himself  and 
of  the  workman  that  the  contract  with  B.  should  be  broken.  I  think 
that  the  principle  involved  in  this  simple  case,  taken  by  me  by  way 
of  illustration,  really  governs  the  present  case.  For  it  is  to  be  re- 
membered that  what  A.  has  to  justify  is  his  action,  not  as  between 
him  and  the  workman,  but  as  regards  the  employer  B.  And,  if  I 
proceed  to  apply  the  law  I  have  stated  to  the  circumstances  of  the 
present  case,  what  do  I  find?  On  the  findings  of  fact  it  is  to  my 
mind  clear  that  the  defendants,  the  federation,  procured  the  men  to 
break  their  contracts  with  the  plaintiffs — so  that  I  need  not  consider 
how  the  question  would  have  stood  if  what  the  federation  had  done 
had  been  merely  to  advise  the  men,  or  if  the  men,  after  taking  ad- 
vice, had  arranged  between  themselves  to  break  their  contracts,  and 
the  federation  had  merely  notified  the  men's  intentions  to  the  plain- 
tiffs.   The  federation  did  more  than  advise.    They  acted,  and  by  their 


1412  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

agents  actually  procured  the  men  to  leave  their  work  and  break  their 
contracts.  In  short,  it  was  the  federation  who  caused  the  injury  to 
the  plaintiffs.  This  was  practically  admitted  before  us  by  the  coun- 
sel for  the  federation,  and,  indeed,  such  an  admission  could  not,  in 
my  opinion,  be  avoided,  having  regard  to  the  facts  stated  by  the 
learned  judge  in  his  judgment.  And  it  is  not  disputed  that  the  fed- 
eration acted  as  they  did  knowingly.  So  that  the  only  question  which 
remains  is  one  of  justification.  Now  the  justification  urged  is  that  it 
was  thought,  and  I  will  assume  for  this  purpose  rightly  thought,  to 
be  in  the  interest  of  the  men  that  they  should  leave  their  work  in 
order  to  keep  up  the  price  of  coal,  on  which  the  amount  of  wages  of 
the  men  depended.  As  to  this,  I  can  only  say  that  to  my  mind  the 
ground  alleged  affords  no  justification  for  the  conduct  of  the  federa- 
tion towards  the  employers;  for,  as  I  have  already  pointed  out,  the 
absence  on  the  part  of  the  federation  of  any  malicious  intention  to 
injure  the  employers  in  itself  aft'ords  no  sufficient  justification.  But 
it  was  said  that  the  federation  had  a  duty  towards  the  men  which 
justified  them  in  doing  what  they  did.  For  myself  I  cannot  see  that 
they  had  any  duty  which  in  any  way  compelled  them  to  act,  or  justi- 
fied them  in  acting,  as  they  did  towards  the  plaintiffs.  And  the  fact 
that  the  men  and  the  federation,  as  being  interested  in  or  acting  for 
the  benefit  of  the  men,  were  both  interested  in  keeping  up  prices,  and 
so  in  breaking  the  contracts,  affords  in  itself  no  sufficient  justification 
for  the  action  of  the  federation  as  against  the  plaintiffs,  as  I  have 
already  pointed  out.     I  think,  therefore,  that  the  appeal  must  succeed. 

Stirling,  L.  J.  The  law  applicable  to  the  decision  of  this  case  is, 
in  my  judgment,  as  stated  by  Lord  Macnaghten  in  Quinn  v.  Leathern, 
[1901]  A.  C.  495,  at  p.  510.  Referring  to  Lumley'^.  Gye,  2  E.  &  B. 
216,  his  lordship  said:  "Speaking  for  myself,  I  have  no  hesitation  in 
saying  that  I  think  the  decision  was  right,  not  on  the  ground  of  mali- 
cious intention — that  was  not,  I  think,  the  gist  of  the  action — but  on 
the  ground  that  a  violation  of  legal  right  committed  knowingly  is 
a  cause  of  action,  and  that  it  is  a  violation  of  legal  right  to  interfere 
with  contractual  relations  recognized  by  law  if  there  be  no  sufficient 
justification  for  the  interference."  If  it  were  necessary  to  say  any- 
thing more  on  the  subject  of  Lumley  v.  Gye,  I  should  be  content  to 
refer  to  what  was  said  by  Lord  Herschell  in  Allen  v.  Flood,  [1898] 
A.  C.  at  pp.  121-123,  to  which  I  can  add  nothing. 

In  my  opinion,  therefore,  only  two  questions  have  to  be  considered : 
(1)  Did  the  defendants  interfere  with  the  contractual  relations  be- 
tween the  plaintiff's  and  their  workmen?  (2)  Was  there  in  law  suf- 
ficient justification  for  the  interference? 

As  to  the  first  question :  Bigham,  J.,  has  expressly  found  that 
whatever  was  done  in  the  way  of  interference  was  the  act  of  the 
federation.  I  need  not  refer  to  specific  acts  beyond  this — that  all 
the  men  working  at  the  South  Wales  and  Monmouthshire  Collieries 


Ch.  2)  TORTS  THROUGH  MALICB  1413 

were  directed  to  observe  as  holidays  two  days,  October  25  and  26, 
1901,  contrary  to  the  contracts  entered  into  by  the  workmen.  The 
uncontradicted  evidence  of  Evan  Williams  at  the  trial  shows  that 
in  consequence  of  that  direction  men  who  otherwise  would  have 
worked  on  those  twO  days  did  not  do  so.  In  these  circumstances  it 
seems  to  me  to  be  made  out  that  the  federation  wilfully  and  with 
notice  of  the  contracts  procured  some  men  to  break  their  contracts, 
and  therefore  knowingly  brought  about  a  violation  of  legal  rights, 
which  is  actionable  unless  there  is  sufficient  justification  for  what  was 
done.  That  interference  with  contractual  relations  known  to  the  law 
may  in  some  cases  be  justified  is  not,  in  my  opinion,  open  to  doubt. 
For  example,  I  think  that  a  father  who  discovered  that  a  child  of 
his  had  entered  into  an  engagement  to  marry  a  person  of  immoral 
character  would  not  only  be  justified  in  interfering  to  prevent  that 
contract  from  being  carried  into  efl:'ect,  but  would  greatly  fail  in  his 
duty  to  his  child  if  he  did  not.  This  duty  is  recognized  by  the  courts ; 
for  the  Court  of  Chancery  and  the  Chancery  Division  of  the  High 
Court  of  Justice  have  continually  so  interfered  on  behalf  of  wards 
of  Court,  sometimes  with  a  heavy  hand ;  and  the  principle  on  which 
the  judges  of  those  courts  have  acted  is  simply  that  of  doing  on 
behalf  of  the  ward  that  which  a  right-minded  father  would  do  in 
the  true  interest  of  his  child.  I  conceive  that  circumstances  might 
occur  which  would  give  rise  to  the  same  duty  in  the  case  of  a  con- 
tract of  ser\'ice.  I  need  not  say  that  the  present  is  a  very  different 
case  from  that  which  I  have  just  put.  It  would  no  doubt  be  desirable 
if  a  general  rule  could  be  fomiulated  which  would  determine  in  what 
cases  such  a  justification  exists;  but  no  such  rule  has  been  laid  down, 
and  I  doubt  whether  this  can  be  done;  so  far  as  I  can  see  it  must 
be  left  (in  the  language  of  Lord  Bowen)  to  the  tribunal  to  analyze 
the  circumstances  of  each  particular  case  and  discover  whether  a 
justification  exists  or  not. 

In  the  present  case  the  learned  judge  finds  that  the  federation  and 
the  other  defendants  "had  lawful  justification  or  excuse  for  what  they 
did  in  this,  that  having  been  solicited  by  the  men  to  advise  and  guide 
them  on  the  question  of  stop-days,  it  was  their  duty  and  right  to  give 
them  advice,  and  to  do  what  might  be  necessary  to  secure  that  the 
advice  should  be  followed" ;  and  the  existence  of  this  duty  has  been 
strongly  pressed  upon  us  in  argument  by  the  learned  counsel  for  the 
several  defendants.  It  will  be  observed  that  the  learned  judge  ex- 
pressly finds  that  the  defendants  were  not  mereh'  advisers,  but  also 
agents  "to  do  what  might  be  necessary  to  secure  that  the  advice  should 
be  followed."  In  the  view  which  I  take  of  the  facts  the  defendants 
not  only  gave  advice,  but  acted,  and  their  action  took  the  form  of 
interfering  with  the  contractual  relations  between  the  masters  and  the 
men.  If  in  so  doing  they  committed  a  tort,  it  would  be  no  answer  to 
say  that  they  acted  upon  the  advice  of  a  third  person,  as,  for  example, 


1414  TORTS  THROUGH   ACTS  OF   CONDITIONAL  LIABILITY        (Part  3 

their  own  solicitor;  and  it  is  difficult  to  see  how  they  can  be  in  a 
better  position  simply  because  the  advice  on  which  they  acted  emanat- 
ed from  themselves. 

In  my  judgment  the  liability  of  the  defendants  must  turn  on  the 
answer  to  be  given  to  the  question  whether  the  circumstances  of  the 
case  were  in  fact  such  as  to  justify  the  defendants,  or  any  of  them, 
in  acting  as  they  did. 

The  circumstances  were  these:  Middlemen  at  Cardiff  were  at- 
tempting to  reduce  the  price  of  coal,  and  it  was  feared  that  some 
employers  might  yield  to  the  pressure  of  competition  and  enter  into 
agreements  for  the  sale  of  coal  at  prices  lower  than  those  existing 
at  the  time,  with  the  result  that  the  wages  of  the  miners,  which  were 
regulated  by  a  sliding  scale,  would  be  reduced. 

To  counteract  this  it  was  considered  desirable  by  the  men's  advisers 
that  prices  should  be  sustained  by  diminishing  the  output  of  coal,  and 
that  this  should  be  effected  by  the  men  taking  the  holidays  complained 
of.  It  was  not  contended  or  suggested  that  a  limitation  of  the  output 
of  coal  was  an  illegitimate  object  or  aim  on  the  part  of  the  men, 
or  that,  if  it  could  have  been  attained  without  the  breach  of  con- 
tracts (as,  for  example,  by  the  service  of  proper  notices  putting  an 
end  to  those  contracts),  the  men  would  not  have  been  within  their 
legal  rights.  The  difficulty  which  presented  itself  was  this, — that 
one  of  the  terms  of  the  arrangement  under  which  the  sliding  scale 
of  wages  existed  was  that  notices  of  the  determination  of  contracts 
of  employment  should  only  be  given  on  the  first  day  of  a  calendar 
month  to  terminate  on  the  last  day,  and  this  prevented  notices  of  de- 
termination being  effective  at  the  desired  moment.  The  critical  pe- 
riod was  known  to  occur  in  October  or  November.  The  men  persuad- 
ed themselves  that  it  was  the  masters'  interest  as  well  as  their  own 
that  they  should  have  power  to  take  holidays  at  this  period ;  but  this 
was  a  point  on  which  the  masters  were  entitled  to  have  their  own 
opinion ;  and  from  what  occurred  in  November,  1900,  it  was  known 
to  the  men  that  the  masters'  view  did  not  agree  with  that  of  the  men. 
If  the  men  had  faith  in  the  soundness  of  their  opinion,  their  course 
was  to  negotiate  through  the  defendants  for  a  modification  of  the 
sliding  scale  arrangement;  what  they  actually  thought  fit  to  do  was 
that  while  insisting  on  the  benefit  of  the  sliding  scale  they  treated 
themselves  as  emancipated  from  the  observance  of  one  of  the  terms  on 
which  that  scale  had  been  agreed  to,  although  the  masters  objected, 
and  although  the  course  taken  by  the  men  might  result  in  serious 
damage  to  the  masters,  or  some  of  them.  This  is,  I  think,  a  difficult 
position  to  maintain.  The  justification  set  up  seems  to  me  to  amount 
to  no  more  than  this — that  the  course  which  they  took,  although  it 
might  be  to  the  detriment  of  the  masters,  was  for  the  pecuniary  inter- 
est of  the  men;  and  I  think  it  wholly  insufficient.  The  defendants 
took  active  steps  to  carry  this  policy  into  effect,  and,  as  I  have  said, 


Ch.  2)  TORTS  THROUGH   MALICE  1415 

interfered  to  bring  about  the  violation  of  legal  rights.     In  my  judg- 
ment they  fail  to  justify  those  acts,  and  the  appeal  ought  to  be  al- 
lowed.    *     *     * 
Appeal  allowed.''* 


SOUTH  WALES  MINERS'  FEDERATION  et  ah,  Appellants,  v. 
GLAMORGAN  COAL  CO.,  Limited,  et  ah.  Respondents. 

(House  of  Lords.     [1905]  A,  C.  239.) 

In  this  action,  brought  by  the  Glamorgan  Coal  Company,  the  judg- 
ment in  the  King's  Bench  Division  was  for  the  defendants. ^^  This 
decision  was  reversed  by  the  Court  of  Appeal,''*  which  entered  judg- 
ment for  the  plaintiffs.  The  defendants  then  appealed  to  the  House 
of  Lords. '^^ 

Earl  of  Halsbury,  L.  C.  My  Lords,  I  cannot  think  that  in  this 
case  there  is  anything  to  be  determined  except  the  question  of  fact. 

1  say  so  because  the  questions  of  law  discussed  are  so  well  settled  by 
authority,  and  by  authority  in  this  House. 

To  combine  to  procure  a  number  of  persons  to  break  contracts  is 
manifestly  unlawful.  This  is  found  as  a  fact  to  have  been  done  here, 
and  is  also  found  to  have  caused  serious  damage  to  the  persons  who 
were  entitled  to  have  these  contracts  performed. 

It  is,  further,  a  principle  of  the  law,  applicable  even  to  the  crim- 
inal law,  that  people  are  presumed  to  intend  the  reasonable  conse- 
quences of  their  acts.  It  is  not,  perhaps,  necessary  to  have  recourse 
to  such  a  presumption  where,  as  upon  the  facts  stated,  it  is  apparent 
that  what  they  were  doing  must  necessarily  cause  injury  to  the  em- 
ployers. We  start,  then,  with  the  infliction  of  an  unlawful  injury 
upon  the  persons  entitled  to  have  the  services  of  their  workmen.  It 
follows  that  this  is  an  actionable  wrong  unless  it  can  be  justified. 

Now  it  is  sought  to  be  justified,  first,  because  it  is  said  that  the  men 
were  acting  in  their  own  interest,  and  that  they  were  sincerely  under 
the  belief  that  the  employers  would  themselves  benefit  by  their  col- 
lieries being  interrupted  in  their  work ;  but  what  sort  of  excuse  is  this 
for  breaking  a  contract  when  the  co-contractor  refuses  to  allow  the 
breach  ?  It  seems  to  me  to  be  absurd  to  suppose  that  a  benefit  which 
he  refuses   to  accept  justified   an   intentional  breach   of   contractual 

7  2  The  statement  of  facts  from  1  K.  B.  118,  and  parts  of  the  opinions  of 
Vaughan  Williams,  Romer,  and  Stirling,  L.  .JJ.,  are  omitted. 

"3  Glamorgan  Coal  Company  v.  South  Wales  Miners'  Federation,  [1903]  1 
K.  B.  118. 

7  4  Glamorgan  Coal   Company   v.   South   Wales  Miners'   Federation,   [1903] 

2  K.  B.  545. 

7  5  The  reporter's  statement  of  the  facts  and  the  summary  of  the  arguments 
of  counsel,  which  occupied  six  days,  and  part  of  Lord  James'  opiuion,  are 
omitted.  For  the  facts,  see  the  reix)rt  of  the  case  in  the  lower  courts,  ante, 
p.  1406. 


1416  TORTS  THROUGH  ACTS  OF   CONDITIONAL  LIABILITY         (Part  3 

rights.  It  may,  indeed,  be  urged  in  proof  of  the  allegation  that  there 
was  no  ill-will  against  the  employers.  I  assume  this  to  be  true,  but 
I  have  no  conception  what  can  be  meant  by  an  excuse  for  breaking 
a  contract  because  you  really  think  it  will  not  harm  your  co-con- 
tractor. 

I  absolutely  refuse  to  discuss  the  cases  which  have  been  suggested 
widely  apart  from  the  question  of  what  pecuniary  advantage  may  be 
reaped  from  breaking  a  contract,  where,  upon  moral  or  religious 
grounds,  people  may  be  justly  advised  to  refuse  to  perform  what  they 
have  agreed  to  do. 

Some  cases  may  be  suggested  when  higher  and  deeper  considerations 
may,  in  a  moral  point  of  view,  justify  the  refusal  to  do  what  has  been 
agreed  to  be  done.  Such  cases  may  give  rise  to  the  consideration 
whether,  in  a  moral  or  religious  point  of  view,  you  are  not  bound  to 
indemnify  the  person  whom  your  refusal  injures ;  but  a  court  of  law 
has  only  to  decide  whether  there  is  a  legal  justification. 

Again,  I  refuse  to  go  into  a  discussion  of  the  duty  or  the  moral 
right  to  tender  advice.  The  facts  in  this  case  shew  nothing  in  the 
nature  of  advice,  even  if  the  supposed  duty  could  be  created  by  people 
who  made  them  their  official  advisers  who  were  to  advise  them  even 
to  break  the  law.  But,  as  I  have  said,  these  are  peremptory  orders 
given  by  the  official  superiors  of  the  body,  and  it  has  been  found  by 
the  learned  judge  who  tried  the  case  that  the  body  sued  was  responsi- 
ble for  the  interference  with  the  workmen. 

I  think  the  appeal  should  be  dismissed. 

Lord  Macnaghten.  My  Lords,  I  agree  in  the  motion  which  my 
noble  and  learned  friend  the  Lord  Chancellor  proposes,  and  I  also 
agree  with  him  in  thinking  that  the  question  before  your  Lordships 
lies  in  a  very  narrow  compass. 

It  is  not  disputed  now — it  never  was  disputed  seriously — that  the 
union  known  as  the  South  Wales  Miners'  Federation,  acting  by  its 
executive,  induced  and  procured  a  vast  body  of  workmen,  members  of 
the  union,  who  were  at  the  time  in  the  employment  of  the  plaintiffs, 
to  break  their  contracts  of  service,  and  thus  the  federation  acting  by 
its  executive  knowingly  and  intentionally  inflicted  pecuniary  loss  on 
the  plaintiffs.  It  is  not  disputed  that  the  federation  committed  an 
actionable  wrong.  It  is  no  defence  to  say  that  there  was  no  malice  or 
ill-will  against  the  masters  on  the  part  of  the  federation  or  on  the  part 
of  the  workmen  at  any  of  the  collieries  thrown  out  of  work  by  the 
action  of  the  federation.  It  is  settled  now  that  malice  in  the  sense 
of  spite  or  ill-will  is  not  the  gist  of  such  an  action  as  that  which  the 
plaintiffs  have  instituted.  Still  less  is  it  a  defence  to  say  that  if  the 
masters  had  only  known  their  own  interest  they  would  have  wel- 
comed the  interference  of  the  federation. 

It  was  argued — and  that  was  the  only  argument — that  although  the 
thing  done  was  prima  facie  an  actionable  wrong,  it  was  justifiable 
under  the  circumstances.     That  there  may  be  a  justification  for  that 


Ch.  2)  TORTS  THROUGH  MALICE  1417 

which  in  itself  is  an  actionable  wrong  I  do  not  for  a  moment  doubt. 
And  I  do  not  think  it  would  be  difficult  to  give  instances  putting  aside 
altogether  cases  complicated  by  the  introduction  of  moral  considera- 
tions. But  what  is  the  alleged  justification  in  the  present  case?  It  was 
said  that  the  council — the  executive  of  the  federation — had  a  duty  cast 
upon  them  to  protect  the  interests  of  the  members  of  the  union,  and 
lliat  they  could  not  be  made  legally  responsible  for  the  consequences 
of  their  action  if  they  acted  honestly  in  good  faith  and  without  any 
sinister  or  indirect  motive.  The  case  was  argued  with  equal  candour 
and  ability.  But  it  seems  to  me  tliat  the  argument  may  be  disposed 
of  by  two  simple  questions.  How  was  the  duty  created?  What  in 
fact  was  the  alleged  duty?  The  alleged  duty  was  created  by  the 
members  of  the  union  themselves,  who  elected  or  appointed  the  officials 
of  the  union  to  guide  and  direct  their  action;  and  then  it  was  contend- 
ed that  the  body  to  whom  the  members  of  the  union  have  thus  com- 
mitted their  individual  freedom  of  action  are  not  responsible  for  what 
they  do  if  they  act  according  to  their  honest  judgment  in  furtherance 
of  wdiat  they  consider  to  be  the  interest  of  their  constituents.  It  seems 
to  me  that  if  that  plea  were  admitted  there  would  be  an  end  of  all 
responsibility.  It  would  be  idle  to  sue  the  workmen,  the  individual 
wrong-doers,  even  if  it  were  practicable  to  do  so.  Their  counsellors 
and  protectors,  the  real  authors  of  the  mischief,  would  be  safe  from 
legal  proceedings.  The  only  other  question  is,  What  is  the  alleged 
duty  set  up  by  the  federation?  I  do  not  think  it  can  be  better  de- 
scribed than  it  was  by  Mr.  Lush.  It  comes  to  this — it  is  the  duty  on 
all  proper  occasions,  of  which  the  federation  or  their  officials  are  to 
be  the  sole  judges,  to  counsel  and  procure  a  breach  of  duty. 

I  agree  with  Romer  and  Stirling,  L.  JJ.,  and  I  think  the  appeal 
must  be  dismissed. 

Lord  Jame;s.  My  Lords,  *  *  *  at  the  trial  and  at  the  bar  of 
your  Lordships'  House  the  counsel  for  the  appellants  contended  that 
their  clients  had  good  cause  and  excuse  for  the  alleged  unlawful  act 
they  committed.  That  such  justification — such  "good  cause  and  ex- 
cuse"— may  exist  is,  I  think,  a  sound  proposition.  The  above  words 
of  Lord  Macnagliten  and  of  Bowen,  L.  J.,  so  declare.  The  facts  upon 
which  this  attempted  justification  in  this  case  is  based  are  fully  before 
your  Lordships  and  need  not  be  recapitulated.  I  take  the  results  of 
them  to  be  that  in  one  sense  the  defendants  acted  in  good  faith.  They, 
I  think,  honestly  believed  that  the  stoppage  of  work  they  resolved  upon 
would  increase  the  price  of  coal  and  so  benefit  both  the  workmen 
and  the  employers.  Towards  their  employers  the  defendants  enter- 
tained no  malice.  At  the  same  time  they  knew  that  the  employers 
had  given  notice  of  their  objection  to  any  such  stoppage  of  work. 
And  so  the  federation  not  only  advised,  but  resolved  and  ordered  that 
the  workmen  should  break  their  contracts  under  conditions  that  would 
constitute  an  unlawful  act  in  the  men.  As  far  as  the  defendants  could 
exercise  control  the  men  were  not  allowed  toi  make  use  of  their  own 


1418  TORTS  THROUGH   ACTS   OF   CONDITIONAL  LIABILITY        (Part  3 

discretion.  In  order,  therefore,  to  establish  the  existence  of  good 
cause  and  excuse  all  the  defendants  can  say  is,  "We,  the  federation, 
had  tlie  duty  cast  upon  us  to  advise  the  workmen.  We  did  advise  them 
to  commit  an  unlawful  act,  but  in  giving  that  advice  we  honestly  be- 
lieved that  they  would  be  in  a  better  financial  position  than  if  they 
acted  lawfully  and  fulfilled  their  contracts."  Even  if  it  be  assumed 
that  such  allegations  are  correct  in  fact,  I  think  that  no  justification 
in  law  is  established  by  them.  The  intention  of  the  defendants  was 
directly  to  procure  the  breach  of  contracts.  The  fact  that  their  mo- 
tives were  good  in  the  interests  of  those  they  moved  to  action  does 
not  form  any  answer  to  those  who  have  suffered  from  the  unlawful 
act.  During  the  arguments  that  have  been  addressed  to  your  Lord- 
ships I  do  not  think  quite  sufficient  distinction  was  drawn  between 
the  intention  and  the  motives  of  the  defendants.'^®  Their  intention 
clearly  was  that  the  workmen  should  break  their  contracts.  The  de- 
fendants' motives  no  doubt,  were  that  by  so  doing  wages  should  be 
raised.  But  if  in  carrying  out  the  intention  the  defendants  purposely 
procured  an  unlawful  act  to  be  committed,  the  wrong  that  is  thereby 
inflicted  cannot  be  obliterated  by  the  existence  of  a  motive  to  secure  a 
njoney  benefit  to  the  wrong-doers. 

For  these  reasons  I  think  the  judgment  of  the  Court  of  Appeal 
should  be  affirmed. 

Order  of  the  Court  of  Appeal  affirmed  and  appeal  dismissed  with 
costs. '^■'' 


LARKIN  et  al.,  Appellants,  v.  LONG,  Respondent. 

(House  of  Lords.     [1915]  A.  C.  814.) 

This  action  was  brought  against  Larkin,  who  was  the  organizing 
secretary  of  an  association  of  dock  labourers  known  as  the  Transport 
Workers'  Union,  Hopkins  and  Redmond,  who  were  delegates  of  this 
association,  and  three  other  defendants,  Newman,  William  Long,  and 
Donohoe,  members  of  an  association  of  employers  called  the  Steve- 
dores' Association.  The  action  was  for  damages  and  an  injunction 
in  respect  of  an  alleged  conspiracy  on  the  part  of  the  defendants  to 
procure  and  induce  the  plaintiff's  labourers  to  leave  his  employment. 
The  facts  out  of  which  the  action  arose  were  as  follows : 

The  plaiutiff,  Matthew  Long,  had  been  a  stevedore  in  the  port  of  Dublin  for 
many  years.  lie  had  never  had  any  dispute  with  his  men  or  with  the  Trans- 
port Workers'  Union  and  lie  had  always  paid  the  highest  rate  of  wages.  Until 
1912  there  had  been  no  .stevedores'  association  in  the  port.  In  June,  1912,  the 
Irish  Transport  and  General  Workers'  Union  proposed  a  change  in  the  condi- 
tions of  employment  of  labour  in  the  port  of  Dublin,  with  a  view  to  procuring 

7  8  "At  present  'intent'  and  'motive'  are  often  used  interchangeably,  as 
thongb  they  were  exact  efiuivaleuts  of  each  other."  Professor  Jeremiah  Smith, 
20  Ilarv.  Law  Rev.  25(5  (1907).  For  the  distinction  between  the  two  terms, 
and  for  instances  in  which  they  have  been  confounded,  see  Ibid.  256-259. 

7  7  The  concurring  opinion  of  Lord  Lindley  is  omitted. 


Ch.  2)  TORTS  THROUGH  MALICE  1419 

the  employment  of  a  larger  number  of  men  in  the  discharge  of  a  ship,  and  the 
Dublin  stevedores  were  invited  by  circular  to  meet  representatives  of  the 
Transport  Workers'  Union  at  the  headquarters  of  the  union,  to  discuss  the 
matter.  The  plaintiff  attended  this  meeting.  Larkin  submitted  to  the  steve- 
dores a  manuscript  list  of  new  prices  for  labourers  in  some  branches  of  the 
stevedoring  business.  Some  of  the  stevedoi'es  objected  that  they  could  not  pay 
the  proposed  rates  of  wages  owing  to  the  undercutting  of  prices  due  to  com- 
petition amongst  theuiselves.  Larkin  then  suggested  that  the  stevedores  ought 
to  form  an  association  to  protect  themselves  against  the  shipowners.  No  deci- 
sion was  arrived  at  and  the  meeting  was  adjourned.  At  the  adjourned  meet- 
ing, held  on  June  IS,  which  the  plaintiff  also  attended,  the  new  list  of  prices 
was  produced  and  discussed.  The  plaintiff  informed  the  meeting  that  the  list 
did  not  affect  his  business  as  the  rate  of  wages  and  terms  of  employment  were 
the  same  as  those  then  current  in  his  business,  and  he  took  no  further  inter- 
est in  the  matter  and  attended  no  further  meetings.  He  first  became  aware 
that  tlie  Stevedores'  Association  had  been  formed  on  July  24,  1912,  from  his 
brother  William  Long,  who  showed  him  the  list  of  rates  that  the  stevedores 
had  drawn  up  to  charge  to  the  shipowners,  and  told  him  that  he  had  been  sent 
by  Newman  to  give  him  the  list.  William  Long  then  asked  the  plaintiff  to 
join  the  association  and,  on  the  plaintiff's  refusal,  told  him  that  unless  he  join- 
ed and  charged  the  same  rates  he  would  get  no  men  to  work  for  him,  as  they 
(the  stevedores)  had  made  an  arrangement  with  Larkin  not  to  allow  the  men 
to  work.  The  plaintiff  replied  that  he  had  no  dispute  with  his  workmen  and 
that  it  was  none  of  Larkin's  business.  William  Long  then  said:  "That  is  all 
nonsense.    What  is  it  Larkin  caimot  do?" 

On  July  27  the  plaintiff  met  Newman,  William  Long,  and  Donohoe  in  Dub- 
lin. Newman  asked  tlie  plaintiff"  what  he  was  going  to  do,  and  he  replied  that 
he  had  made  up  his  mind  not  to  join  the  association.  Newman  then  warned 
the  plaintiff  that  he  would  not  get  men  to  work  for  him,  as  Larkin  had  prom- 
ised to  assist  the  association  in  every  way  and  to  withdraw  men  from  the 
plaintiff  unless  he  joined.  On  August  6  a  meeting  was  held  of  the  Transport 
Workers'  Union,  when  the  attitude  of  the  plaintiff  in  refusing  to  join  the 
Stevedores'  Association  was  discussed  and  eventually  the  meeting  was  ad- 
journed. The  adjourned  meeting  was  held  on  August  7,  and  it  was  then  re- 
solved that  members  of  the  union  should  not  be  allowed  to  work  for  the 
plaintiff  and  that  the  union  otiicials  be  instructed  to  that  effect.  On  the  same 
day,  the  Sieben  Jarl  arrived  at  the  port,  and  on  that  evening  the  plaintiff  was 
informed  by  Larkin  that  he  had  arranged  with  the  stevedores  to  assist  them 
in  every  way  and  to  withdraw  the  men  from  the  plaintiff  unless  he  joined  the 
association.  The  plaintiff  had  engaged  thirty-three  men  to  discharge  the 
Sieben  Jarl,  and  the  work  of  discharging  was  begun  at  6  a.  m.  the  next  day. 
At  7:15  a.  m.  Hopkins  and  Redmond,  acting  imder  Larkin's  directions,  came 
down  to  the  ship  and  ordered  the  men  off,  and  told  the  plaintiff'  that  he  would 
be  further  stopped  unless  he  joined  the  association.  The  men  thereupon  ceased 
work  and  reported  themselves  at  headquarters. 

On  August  19,  the  plaintiff  issued  the  writ  in  this  action.  On  two 
subsequent  occasions,  namely,  on  August  22  and  September  23,  Hop- 
kins prevented  the  plaintiff"  from  discharging  ships  by  calling  oft'  the 
men  he  had  engaged. 

The  statement  of  claim,  delivered  on  October  21,  1912,  succinctly 
set  forth  the  plaintiff"'s  cause  or  causes  of  action,  in  these  terms : 

"In  or  about  the  months  of  August  and  September,  1912,  the  defendants 
wrongfully  and  maliciously  conspired  and  agreed  to  combine  amongst  them- 
.selves  and  did  so  combine  to  procure,  cause,  and  induce  the  aforesaid  work- 
men of  the  plaintiff  to  leave  his  employment  and  abstain  from  continuing 
therein,  and  did  further  procure,  cause,  and  induce  dock  labourers  and  others 
to  refuse  to  work  for  the  plaintiff.  In  furtherance  and  pursuance  of  the  said 
conspiracy  the  defendants  did  in  fact  procure,  cause,  and  induce  workmen  of 
the  plaintiff  to  leave  his  employment  and  abstain  from  continuing  therein 
and  did  further  in  fact  procure,  cause,  and  induce  dock  labourers  and  others 
to  refuse  to  work  for  the  plaintiff." 


1420  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

On  tlie  trial  of  the  action,  Palles,  C.  B.,  upon  the  findings  of  a  spe- 
cial jury,  entered  judgment  for  the  plaintiff  for  £200  and  granted  an 
injunction.  An  application  by  the  defendants  for  judgment  or  a  new- 
trial  was  refused  by  the  Divisional  Court  and  afterwards  by  the  Court 
of  Appeal.  The  officials  of  the  Transport  Workers'  Union  then  ap- 
pealed to  the  House  of  Lords. 

Serjeant  Sullivan,  K.  C.  (of  the  Irish  and  also  of  the  English  Bar), 
and  H.  R.  Poole  (of  the  Irish  Bar),  for  the  appellants.  *  *  * 
There  was  here  no  unlawful  combination  amongst  the  defendants.  That 
depends  upon  the  object  of  the  defendants  in  compelling  the  plaintiff 
to  join  the  Stevedores'  Association.  If  the  object  of  the  defendants 
was  not  the  injury  of  the  plaintiff  but  the  furtherance  of  their  trade 
interests,  that  was  perfectly  legitimate.  A  combination  to  secure  a 
monopoly  necessarily  involves  the  prevention  of  other  persons  from 
carrying  on  that  trade,  but  although  injury  may  result  to  those  per- 
sons, no  action  for  conspiracy  will  lie  if  the  object  is  to  improve  the 
trade  and  not  to  injure  others.  This  test  applies  equally  whether  it 
is  a  combination  of  men  or  of  masters :  Ward,  Lock  &  Co.  v.  Op- 
erative Printers'  Assistants'  Society,  [1906]  22  Times  L.  R.  327; 
Bulcock  V.  St.  Anne's  Master  Builders'  Federation,  [1902]  19  Times 
L.  R.  27.  Here  the  object  of  the  defendants  in  compelling  the  plain- 
tiff' to  join  the  Stevedores'  Association  was  to  find  employment  in 
the  trade  for  as  many  union  men  as  possible.  Quinn  v.  Leathem, 
[1901]  A.  C.  495,  differs  from  the  present  case  in  almost  every  par- 
ticular ;  the  combination,  the  acts  done,  and  the  end  sought  to  be 
achieved  were  all  different  in  character.  There  were  here  no  threats 
and  intimidation  such  as  existed  in  that  case.* 

Lord  Atkinson.  My  Lords,  this  is  an  appeal  against  an  order  of 
the  Court  of  Appeal  in  Ireland,  affirming  an  order  of  the  King's  Bench 
Division  of  the  High  Court  of  Justice  in  Ireland     *     *     *  ^ 

The  next  ground  relied  on  by  the  appellants  in  support  of  the  ap- 
peal was  that  set  forth  in  the  fifth  paragraph  of  their  defence,  to  the 
effect  that  at  the  time  the  things  complained  of  were  done  by  them  a 
trade  dispute  was  pending  between  the  plaintiff,  the  dock  labourers 
of  the  port  of  Dublin,  and  the  Transport  Workers'  Union  acting  on 
their  behalf,  relative  to  the  wages  and  rate  of  remuneration  to  be 
paid  by  the  plaintiff  to  dock  labourers  for  their  work  in  discharging 
cargoes,  and  that  in  refusing  to  allow  any  of  such  labourers  to  work 
for  the  plaintiff,  and  in  withdrawing  them  from  his  employment,  they 
were  acting  as  they  lawfully  might  in  contemplation  and  furtherance 
of  such  trade  dispute  within  the  meaning  of  the  Trade  Disputes  Act, 
1906  (6  Edw.  VII,  c.  47). 

The  jury  have  found  on  the  issues  raised  on  this  plea  that  there 
was  no  dispute  between  the  plaintiff  and  the  dock  labourers.     And 

*  The  statement  of  the  case  is  abridged,  and  part  of  the  arguments  of  coun- 
sel is  omitted. 

t  For  the  decision  of  the  Court  of  Appoal  in  Ireland,  see  [1914J  2  I.  R.  285. 


Ch.  2)  TORTS  THROUGH  MALICE  1421 

they  have  also  found  that  the  dispute  was  a  dispute  between  the  plain- 
tiff and  the  Stevedores'  Association,  into  which  the  stevedores  brought 
Larkin,  Hopkins,  and  Redmond  to  assist.  And  further,  that  the  la- 
bourers did  not  insist  that  the  plaintiff  should  become  a  member  of 
the  Stevedores'  Association. 

There  was,  in  my  opinion,  ample  evidence  to  sustain  all  these  find- 
ings. The  evidence  of  the  two  defendants,  William  Long  and  New- 
man, would  be  quite  sufficient  in  itself  for  that  purpose.  It  was  plain 
upon  the  evidence  that  the  only  dispute  which  existed  was  a  dispute 
between  the  members  of  the  Stevedores'  Association  and  the  plain- 
tiff. The  Association  sought  tO'  force  the  plaintiff  to  enter  its  ranks 
in  order  that  he  might  thereby  be  compelled  to  adopt  the  scale  of 
remuneration  for  any  dock  labourers  he  might  employ  which  this  As- 
sociation had  adopted.  Larkin,  Hopkins,  and  Redmond,  at  the  re- 
quest of  the  Association,  came  to  their  aid,  and  sought  to  bring  pres- 
sure to  bear  upon  the  plaintiff"  to  force  him  to  enter  it,  by  refusing 
to  permit  the  dock  labourers  who  were  members  of  the  Transport 
Union  to  work  for  him. 

But  these  officers  of  the  union  of  employes  by  so  aiding  the  as- 
sociation of  employers  in  its  contest  with  the  plaintiff,  another  em- 
ployer, did  not  change  the  character  of  the  original  dispute.  It  was 
from  the  first  a  dispute  between  an  individual  stevedore  and  an  as- 
sociation of  stevedores. 

The  Trade  Disputes  Act  of  1906  has  no  application  to  such  dis- 
putes.^ It  only  deals  with  disputes  between  employers  and  workmen 
and  workmen  and  workmen.  This  dispute  was  neither  of  these.  This 
defence,  therefore,  wholly  fails. 

On  behalf  of  the  appellants,  Serjeant  Sullivan  insisted  that  the  fact 
that  the  members  of  the  Transport  Union  thought  it  for  their  own 
interest  to  pass  a  rule  that  they  should  not  work  for  a  stevedore  who 
was  not  a  member  of  the  Stevedores'  Union  was  quite  legitimate,  that 
they  were  not  bound  to  work  for  him  or  for  any  other  person  for 
whom  they  did  not  choose  to  work,  and  were,  in  the  legitimate  pro- 

t  The  Trades  Dispute  Act,  1900  (6  Edw.  VII,  c.  47),  to  "provide  for  the  resu- 
latiou  of  Trade  Unions  and  Trade  Disputes,"  declares,  in  its  third  section,  tiiat 
"an  act  done  by  a  person  in  furtherance  or  contemplation  of  a  trade  dispute 
shall  not  be  actionable  on  the  ground  only  that  it  induces  some  other  person  to 
break  a  contract  of  employment  or  that  it  is  an  interference  with  the  trade, 
business,  or  employment  of  some  other  person,  or  with  the  right  of  some  other 
person  to  dispose  of  his  capital  or  his  labour  as  he  wills."  The  definition  of 
a  "trade  dispute"  is  thus  framed  in  section  5,  subsection  3,  of  the  same  act: 
"The  expression  'trade  dispute'  means  any  disiiute  between  employers  and 
workmen,  or  between  workmen  and  woi-kmen,  which  is  connected  with  the  em- 
ployment and  non-employment,  or  the  terms  of  employment,  or  with  the  condi- 
tions of  labour."  The  scope  uf  tbe.se  provisions  was  considered  by  Lord  Pai*- 
raoor,  in  Larkin  v.  Long,  [11)15]  A.  C.  814,  S44-84G,  who  remarks:  "To  hold 
that  the  acts  in  this  case  bring  the  dispute  within  the  Act  of  190G  would  be 
in  effec-t  to  disregard  the  delinition  of  the  Act  of  1900,  and  to  bring  within  the 
])rotection  of  the  Act  every  dispute  of  whatever  character  in  which  workmen 
and  their  representatives  determined  to  take  part  with  one  side  or  the  other." 


1423  TORTS  THROUGH   ACTS   OP  CONDITIONAL  LIABILITY        (Part  3 

motion  of  their  own  interest,  entitled,  within  the  decision  of  Mogul 
Steamship  Co.  v.  McGregor,  Gow  &  Co.,  [1892]  A.  C.  25,  to  observe 
that  rule,  though  it  might  incidentally  cause  injury  to  those  who  desired 
to  employ  these  workmen,  but  for  whom  they  themselves  did  not  de- 
sire to  work.  It  is  undoubtedly  true  that  the  members  of  a  trade 
union  need  not  work  for  whom  they  do  not  desire  to  work.  That  is 
the  right  to  personal  freedom  of  action  referred  to  in  the  following 
well-known  passages  from  the  judgment  of  Lord  Bramwell  in  Reg. 
V.  Druitt  (1867)  10  Cox,  C.  C.  592,  at  p.  600,  and  from  the  essay  of 
Sir  W.  Erie  on  Trade  Unions  (p.  12).  They  have  been  many  times 
approved  of  in  your  Lordships'  House.  They  respectively  run  thus : 
"The  Liberty  of  a  man's  mind  and  will,  to  say  how  he  should  bestow 
himself  and  his  means,  his  talents,  and  his  industry  was  as  much  a 
subject  of  the  law's  protection  as  was  that  of  his  body."  And,  "Ev- 
ery person  has  a  right  under  the  law,  as  between  himself  and  his  fel- 
low subjects,  to  full  freedom  in  disposing  of  his  own  labour  or 
his  own  capital,  according  to  his  own  will.  It  follows  that  every 
person  is  subject  to  the  correlative  duty  arising  therefrom,  and  is  pro- 
hibited from  any  obstruction  to  tlie  fullest  exercise  of  this  right  which 
can  be  made  compatible  with  the  exercise  of  similar  rights  by  others." 

But  it  is  equally  true  that  the  members  of  trade  unions  are  bound 
to  respect  the  right  of  other  workmen  to  work  for  whom  they  please, 
on  what  terms  and  at  what  times  they  please,  so  long  as  they  do  noth- 
ing illegal,  and  are  also  bound  to  respect  the  right  of  an  employer  to 
undertake  any  work  he  pleases  to  undertal^e,  and  to  employ  what 
workmen  he  chooses,  on  whatever  terms  they  both  agree  to,  unless 
there  is  something  unlawful  in  his  action.  If,  therefore,  any  two  or 
more  members  of  a  trade  union,  whatever  its  rules  may  be,  wilfully 
and  knowingly  combine  to  injure  an  employer  by  inducing  his  work- 
men to  break  their  contracts  with  him,  or  not  to  enter  into  contracts 
with  him,  resulting  in  damage  to  him,  that  is  an  entirely  different  mat- 
ter. That  is  an  invasion  of  the  liberty  of  action  of  others,  and  has 
no  analogy  to  the  action  of  the  defendant  in  the  Mogul  Case,  [1892] 
A.  C.  25  ;  for  there,  as  Lord  Halsbury  pointed  out  in  Quinn  v.  Leath- 
em,  [1901]  A.  C.  495,  no  legal  right  has  been  interfered  with,  no 
coercion  of  mind  or  will  had  been  eft'ected,  all  were  left  free  to  trade 
on  what  terms  they  willed,  and  nothing  was  done  except  in  rival  trad- 
ing which  could  be  supposed  to  interfere  with  the  appellant's  interest. 

The  fact  that  members  of  a  trade  union  are  merely  acting  in  obedi- 
ence to  a  rule  of  their  union  believed  by  them  to  be  for  their  benefit 
is  no  defence  to  an  action  for  the  breach  of  any  contracts  they  have 
entered  into, — Read  v.  Friendly  Society  of  Operative  Stonemasons, 
[1902]  2  K.  B.  88,  732,— and  still  less  is  it  a  defence  to  the  wilful 
and  malicious  infringement  in  combination  of  that  legal  right  of 
personal  freedom  of  action  which  they  claim  for  themselves,  but 
which  others  are  entitled  to  quite  as  fully  and  as  absolutely  as  they 
are. 


Ch.  2)  TORTS  THROUGH   MALICE  1423 

I  am  clearly  of  opinion  that  the  decision  appealed  from  was  right 
and  should  be  upheld,  and  the  appeal  should  be  dismissed  with  costs. 

My  Lords,  I  am  directed  by  the  Lord  Chancellor  to  say  that  he  con- 
curs in  the  judgment  I  have  just  read.|t 


IRON   MOLDERS   UNION   et   al.   v.   ALLIS-CHALMERS   CO. 

(United  States  Circuit  Court  of  Appeals,  1908.    91  C.  C.  A.  631,  166  Fed.  45, 

20  L.  R.  A.  [N.   S.]  315.) 

This  is  an  appeal, ''*  in  a  strike  injunction  suit,  from  a  final  decree 
which  enjoined  four  Wisconsin  labor  unions  ^^  and  some  sixty  in- 
dividuals who  were  officers  and  members  from  doing  the  following :  ^ 

"(4)  And  from  congregating  upon  or  about  the  company's  premises 
or  the  streets,  approaches  and  places  adjacent  or  leading  to  said  prem- 
ises for  the  purpose  of  intimidating  its  employes  or  preventing  or  hin- 
dering them  from  fulfilling  their  duties  as  such  employes  or  for  the 
purpose  of  in  such  manner  as  to  induce  or  coerce  by  threats,  violence, 
intimidation  or  persuasion,  any  of  the  said  company's  employes  to  leave 
its  service  or  any  person  to  refuse  to  enter  its  service. 

"(5)  From  congregating  upon  or  about  the  company's  premises  or 
the  sidewalk,  streets,  alleys  or  approaches  adjoining  or  adjacent  to 
or  leading  to  said  premises,  and  from  picketing  the  said  complainant's 
places  of  business  or  the  homes  or  boarding  houses  or  residences  of  the 
said  complainant's  employes. 

tt  Lord  Parker  of  Waddington,  Lord  Sumner,  Lord  Parmoor,  and  Lord 
Duuedin  concurred,  the  first  three  in  judgments  which  are  here  omitted.  The 
order  of  the  Court  of  Appeal  in  Ireland  was  affirmed,  and  the  appeal  dis- 
missed with  costs. 

Ts  For  the  report  of  this  case  in  the  District  Court,  see  Allis-Chalmers  Co. 
V.  Iron  Molders  Union  (1906)  150  Fed.  155. 

7  9  These  unions  were  unincorporated.  On  the  procedural  question  of  suing 
them  in  their  association  names,  Judge  Baker  remarked:  "No  Wisconsin  stJit- 
ute  authorized  an  unincorporated  voluntary  association  to  be  sued  in  its  com- 
mon name.  So  the  objection  might  have  prevailed  if  it  had  been  seasonably 
made.  Karges  Furniture  Co.  v.  Amalgamated  Wood  Workers'  Union  (1905) 
165  Ind.  421,  75  N.  E.  877,  2  L.  R.  A.  (N.  S.)  788,  6  Ann.  Cas.  820 ;  Pickett  v. 
Walsh  (lOOGj  192  Mass.  572,  78  N.  E.  753,  6  L.  R.  A.  (N.  S.)  1067,  116  Am.  St. 
Rep.  272,  7  Ann.  Cas.  638.  But  the  members  could  have  been  reached,  of 
course,  either  by  naming  and  serving  them  all,  or,  if  that  were  impracticable 
on  account  of  their  numbers,  by  suing  some  as  representatives  of  all.  Tlie 
bill  treated  the  unions  as  representative  of  their  membership;  an  individual 
member  filed  a  verified  answer  in  the  names  of  the  unions,  alleging  that  he 
had  been  authorized  by  them  so  to  do ;  and  the  case  was  carried  through  three 
hearings  (temporary  injunction,  contempt,  final  decree)  without  a  suggestion 
that  there  was  a  defect  of  parties,  or  rather  a  defect  in  the  fonu  under  which 
appellee  asked  to  have  the  membership  of  the  unions  brought  into  court.  An 
objection  of  this  kind  will  not  be  entertiiined  on  appeal  unless  it  has  been  first 
duly  presented  in  the  trial  court.  Barnes  v.  Chicago  Tj-iK>graphical  Union 
(1908)  2.'^!2  111.  424,  S3  X.  E.  940,  14  L.  R.  A.  (N.  S.)  1018,  13  Ann.  Cas.  54." 

80  Eleven  sections  of  this  decree  are  omitted. 


14i'4:  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

"(6)  From  interfering  with  the  said  company's  employes  in  going 
to  and  from  their  work. 

"(7)  From  going  singly  or  collectively  to  the  homes  of  the  said  com- 
pany's employes  for  the  purpose  of  intimidating  or  threatening  them 
or  collectively  persuading  them  to  leave  its  service." 

"(16)  From  by  threats,  intimidation,  persuasion,  force  or  violence, 
compelling  or  attempting  to  compel  or  induce  any  of  the  apprentices 
in  the  employ  of  the  said  complainant  to  break  their  contracts  and 
leave  the  employ  of  the  said  complainant." 

Baker,  Circuit  Judge.  *  *  *  So  far  as  persuasion  was  used  to 
induce  apprentices  or  others  (section  16  of  the  decree)  to  break  their 
contracts  to  serve  for  definite  times,  the  prohibition  was  right.  And 
the  reason,  we  believe,  is  quite  plain.  Each  party  to  such  a  contract 
has  a  property  interest  in  it.  If  either  breaks  it,  he  does  a  wrong,  for 
which  the  other  is  entitled  to  a  remedy.  And  whoever  knowingly 
makes  himself  a  party  to  a  wrongful  and  injurious  act  becomes  equally 
liable.  But  in  the  present  case  the  generality  of  the  men  who  took 
or  sought  the  places  left  by  the  strikers  were  employed  or  were  of- 
fered employment  at  will,  as  the  strikers  had  been.  If  either  party, 
with  or  without  cause,  ends  an  employment  at  will,  the  other  has  no  le- 
gal ground  of  complaint.  So  if  the  course  of  the  new  men  who  quit  or 
who  declined  employment  was  the  result  of  the  free  play  of  their  in- 
tellects and  wills,  then  against  them  appellee  had  no  cause  of  action, 
and  much  less  against  men  who  merely  furnished  information  and 
arguments  to  aid  them  in  forming  their  judgments.  Now  it  must  not 
be  forgotten  that  the  suit  was  to  protect  appellee's  property  rights. 
Regarding  employments  at  will,  those  rights  reached  their  limit  at  this 
line:  For  the  maintenance  of  the  incorporeal  value  of  a  going  busi- 
ness appellee  had  the  right  to  a  free  access  to  the  labor  market,  and 
the  further  right  to  the  continuing  services  of  those  who  accepted 
employment  at  will  until  such  services  were  terminated  by  the  free 
act  of  one  or  the  other  party  to  the  employment.  On  the  other  side 
of  this  limiting  line,  appellants,  we  tliink,  had  the  right,  for  the  pur- 
pose of  maintaining  or  increasing  the  incorporeal  value  of  their  ca- 
pacity to  labor,  to  an  equally  free  access  to  the  labor  market.  The 
right  of  the  one  to  persuade  (but  not  coerce)  the  unemployed  to  ac- 
cept certain  terms  is  limited  and  conditioned  by  the  right  of  the  other 
to  dissuade  (but  not  restrain)  them  from  accepting.  For  another 
thing  that  must  not  be  forgotten  is  that  a  strike  is  one  manifestation 
of  the  competition,  the  struggle  for  survival  or  place,  that  is  inevita- 
ble in  individualistic  society.  Dividends  and  wages  must  both  come 
from  the  joint  product  of  capital  and  labor.  And  in  the  struggle  where- 
in each  is  seeking  to  hold  oi  enlarge  his  ground,  we  believe  it  is  funda- 
mental that  one  and  the  same  set  of  rules  should  govern  the  action  of 
both  contestants.  For  instance,  employers  may  lock  out  (or  threaten 
to  lock  out)  employes  at  will,  with  the  idea  that  idleness  will  force  them 
to  accept  lower  wages  or  more  onerous  conditions;    and  employes  at 


Ch.  2)  TORTS  THROUGH  MALICE  1425 

will  may  strike  (or  threaten  to  strike),  with  the  idea  that  idleness  of 
the  capital  involved  will  force  employers  to  grant  better  terms.  These 
rights  (or  legitimate  means  of  contest)  are  mutual  and  are  fairly  bal- 
anced against  each  other.  Again,  an  employer  of  molders,  having 
locked  out  his  men,  in  order  to  effectuate  the  purpose  of  his  lockout, 
may  persuade  (but  not  coerce)  other  foundrymen  not  to  employ  mold- 
ers for  higher  w^ages  or  on  better  terms  than  those  for  which  he  made 
his  stand,  and  not  to  take  in  his  late  employes  at  all,  so  that  they  may 
be  forced  back  to  his  foundry  at  his  own  terms ;  and  molders,  hav- 
ing struck,  in  order  to  make  their  strike  effective  may  persuade  (but 
not  coerce)  other  molders  not  to  work  for  less  wages  or  under  worse 
conditions  than  those  for  wdiich  they  struck,  and  not  to  work  for 
their  late  employer  at  all,  so  that  he  may  be  forced  to  take  them  back 
into  his  foundry  at  their  own  terms.  Here,  also,  the  rights  are  mutual 
and  fairly  balanced.  On  the  other  hand,  an  employer,  having  locked 
out  his  men,  will  not  be  permitted,  though  it  w^ould  reduce  their  fight- 
ing strength,  to  coerce  their  landlords  and  grocers  into  cutting  off 
shelter  and  food ;  and  employes,  having  struck,  will  not  be  permitted, 
though  it  might  subdue  their  late  employer,  to  coerce  dealers  and  users 
into  starving  his  business.  The  restraints,  likewise,  apply  to  both  com- 
batants and  are  fairly  balanced.  These  illustrations,  we  believe,  mark 
out  the  line  that  must  be  observed  by  both.  In  contests  between  cap- 
ital and  labor  the  only  means  of  injuring  each  other  that  are  lawful 
are  those  that  operate  directly  and  immediately  upon  the  control  and 
supply  of  work  to  be  done  and  of  labor  to  do  it,  and  thus  directly  af- 
fect the  apportionment  of  the  common  fund,  for  only  at  this  point 
exists  the  competition,  the  evils  of  which  organized  society  will  en- 
dure rather  than  suppress  the  freedom  and  initiative  of  the  individual. 
But  attempts  to  injure  each  other  by  coercing  members  of  society  who 
are  not  directly  concerned  in  the  pending  controversy  to  make  raids 
in  the  rear  carmot  be  tolerated  by  organized  society,  for  the  direct,  the 
primary,  attack  is  upon  society  itself.  And  for  the  enforcement  of 
these  mutual  rights  and  restraints  organized  society  offers  to  both 
parties,  equally,  all  the  instrumentalities  of  law  and  of  equity. 

With  respect  to  picketing  as  well  as  persuasion,  we  think  the  decree 
went  beyond  the  line.  The  right  to  persuade  new  men  tO'  quit  or  de- 
cline employment  is  of  little  worth  unless  the  strikers  may  ascertain 
who  are  the  men  that  their  late  employer  has  persuaded  or  is  attempt- 
ing to  persuade  to  accept  employment.  Under  the  name  of  persua- 
sion, duress  may  be  used ;  but  it  is  duress,  not  persuasion,  that  should 
be  restrained  and  punished.  In  the  guise  of  picketing,  strikers  may 
obstruct  and  annoy  the  new  men,  and  by  insult  and  menacing  attitude 
intimidate  them  as  effectually  as  by  physical  assault.  But  from  the 
evidence  it  can  always  be  determined  whether  the  efforts  of  the  pickets 
are  limited  to  getting  into  communication  with  the  new  men  for  the 
purpose  of  presenting  arguments  and  appeals  to  their  free  judgments. 
IIepb.Tobts — 90 


1426  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

Prohibitions  of  persuasion  and  picketing,  as  such,  should  not  be  includ- 
ed in  the  decree.  Karges  Furniture  Co.  v.  Amalgamated  Wood  Work- 
ers' Union,  165  Ind.  421,  75  N.  E.  877,  2  L.  R.  A.  (N.  S.)  788,  6  Ann. 
Cas.  829;  Everett-Waddy  Co.  v.  Typographical  Union,  105  Va.  188, 
53  S.  E.  273,  5  L.  R.  A.  (N.  S.)  792,  8  Ann.  Cas.  798.     *     *    *  si 

81  Part  of  Judge  Baker's  opinion  and  the  corresponding  parts  of  the  order 
are  omitted.    A  concurring  opinion  by  Judge  Grosscup  is  omitted. 

Compare  the  remarks  of  Hadley,  J.,  in  Karges  Furniture  Co.  v.  Amalgamat- 
ed W.  W.  U.  No.  131  (1905)  165  Ind.  421,  75  N.  E.  877,  2  L.  R.  A.  (N.  S.)  788,  6 
Ann.  Cas  829:  "It  is  ai'gued  that  the  maintenance  of  pickets  at  the  plaintiff's 
factory  was  an  unlawful  interference  with  its  business,  and  that  the  appoint- 
ment, instruction,  and  the  receiving  of  daily  reports  from  such  pickets  consti- 
tuted all  participating  members  of  the  union  civil  conspirators.  Whether  pick- 
eting is  lawful  or  unlawful  depends  in  each  particular  case  upon  the  conduct 
of  the  pickets  themselves.  The  fact  that  they  are  serving  under  appointment 
and  instructions  from  their  union  adds  nothing  to  their  rights  and  privileges 
as  affecting  third  persons.  Under  no  circumstances  have  pickets  the  right  to 
employ  force,  menaces,  or  intimidation  of  any  kind  in  their  efforts  to  induce 
noustriking  workmen  to  quit,  or  to  prevent  those  about  to  take  the  strikers' 
places  to  refrain  from  doing  so ;  neither  have  they  the  right,  as  pickets  or 
otherwise,  to  assemble  about  the  working  place  in  such  numbers  or  in  such 
manner  as  to  impress  workmen  employed,  or  contemplating  employment,  with 
fear  and  intimidation.  Beaton  v.  Tarrant  (1902)  102  111.  App.  124 ;  Yegelahu 
V.  Guntuer  (1896)  167  Mass.  92.  44  N.  E.  1077,  35  L.  R.  A.  722,  57  Am.  St.  Rep. 
443 ;  Murdock  v.  Walker  (1893)  152  Pa.  595,  25  Atl.  492,  34  Am.  St.  Rep.  678. 
It  is,  however,  generally  conceded  in  this  counti'y  and  in  England  that  work- 
men, when  free  from  contract  obligations,  may  not  only  themselves,  singly  and 
in  combination,  cease  to  work  for  any  employer,  but  may  also,  as  a  means  of 
accomplishing  a  legitimate  purpose,  use  all  lawful  and  peaceful  means  to  in- 
duce others  to  quit  or  refuse  employment.  The  law,  having  granted  workmen 
the  right  to  strike  to  secure  better  conditions  from  their  employers,  grants  them 
also  the  use  of  those  means  and  agencies,  not  inconsistent  with  the  rights  of 
others,  that  are  necessary  to  make  the  strike  effective.  This  embraces  the  right 
to  support  their  contest  by  argument,  persuasion,  and  such  favors  and  accom- 
modations as  they  have  within  their  control.  The  law  will  not  deprive  endeav- 
or and  energy  of  their  just  reward,  when  exercised  for  a  legitimate  purpose  and 
in  a  legitimate  manner.  So,  in  a  contest  between  capital  and  labor  on  the 
one  hand  to  secure  higher  wages,  and  on  the  other  to  resist  it,  argument  and 
persuasion  to  win  support  and  co-operation  from  others  are  proper  to  either 
side,  provided  they  are  of  a  character  to  leave  the  persons  solicited  feeling  at 
liberty  to  comply  or  not,  as  they  please.  Likewise  a  union  may  appoint  pick- 
ets or  a  committee  to  visit  the  vicinity  of  factories  for  purpose  of  taking  note 
of  the  persons  employed,  and  to  secure,  if  it  can  be  done  by  lawful  means,  their 
names  and  places  of  residence  for  the  purpose  of  peaceful  visitation.  Eddy  on 
Comb.  §  537  ;  Perkins  v.  Rogg  (1892)  28  Wkly.  Law  Bui.  32.  The  decided  cases 
are  not  in  harmony  with  respect  to  the  right  to  persuade,  but  the  clear  weight 
of  authority  is  to  the  effect  that  so  long  as  a  moving  party  does  not  exceed  his 
absolute  legal  rights,  and  so  does  not  invade  the  absolute  rights  of  another,  he 
may  do  as  he  pleases,  and  may  persuade  others  to  do  like  him.  To  illustrate: 
A.  resides  in  a  populous,  residential  part  of  the  city.  B.  has  established  a 
saloon  in  the  same  square.  Keeping  a  saloon  there  is  lawful  business.  Many 
of  the  neighbors  patronize  the  saloon,  and  the  business  prospers.  A.  disap- 
proves of  the  business  in  that  place,  and  withholds  his  patronage.  He  has  the 
absolute  right  to  withhold  it.  The  other  neighbors  have  the  absolute  right  to 
bestow  theii-s.  B.  has  no  absolute  right  to  the  patronage  of  either,  and  with- 
out patronage  will  fail  in  business.  Here  it  is  plain  that  A.  has  the  absolute 
right  to  stand  on  the  street  corner  and  note  all  his  neighbors  who  enter  and 
leave  the  saloon,  hail  them  on  the  street,  or  visit  them  at  their  respective  homes, 
and  by  argument  and  persuasion  (they  being  willing  to  listen)  endeavor  to  in 
duoe  thorn  to  cease  their  patronage.  A.'s  object  is  to  make  B.'s  business  un- 
profitable and  losing,  and  thus  compel  him  to  move  away,  and  improve  the 


Ch.  2)  TORTS  THROUGH  MALICE  1427 

The  decree  is  modified  by  striking  out  "persuasion"  and  "persuad- 
ing" from  the  4th  and  7th  paragraphs;  further  modified  by  adding 
after  "picketing"  in  the  5th  paragraph  "in  a  threatening  or  intimidat- 
ing manner" ;     *     *     *     affirmed  as  to  the     *     *     *     16th  paragraph. 


PIERCE  V.  STABLEMEN'S  UNION,  LOCAL  NO.  8,760  et  al. 

(Supreme  Court  of  California,  1909.     156  Cal.  70,  103  Pac.  324.) 

This  was  an  action  by  Pierce  against  the  Stablemen's  Union  and  oth- 
ers, to  enjoin  the  defendants  from  illegal  interference  with  the  plain- 
tiff's business.     The  following  facts  were  found: 

The  plaintiff  conducted  a  livery  stable  in  San  Francisco.  The  officers  of  the 
defendant  union  asked  him  to  "unionize"  his  stable  by  discharging  his  non- 
union employes,  and  employing  union  men  in  their  places.  Upon  his  refusal 
a  strike  of  the  union  men  was  declared.  Following  the  strike,  a  boycott  was 
decreed.  A  patrol  about  plaintiff's  place  of  business  was  established,  and,  un- 
der the  findings,  these  representatives  of  the  defendants,  the  pickets,  "called 
forth  in  loud,  threatening,  and  menacing  tones  to  the  patrons  and  customers 
of  plaintiffs  not  to  patronize  plaintiffs  in  their  said  business.  Defendant,  the 
Stablemen's  Union,  through  its  agents  and  representatives,  has  stated  to,  and 
threatened,  patrons  and  customers  and  other  persons  dealing  with  plaintiffs 
that,  if  said  patrons  and  customers  and  other  persons  continued  to  patronize 
and  do  business  with  plaintiffs,  said  Stablemen's  Union  would  cause  them  re- 
spectively to  be  boycotted  in  their  business."  Menacing  terms  and  threatening 
language  were  made  use  of  by  the  agents,  representatives,  and  pickets  of  the 
union  towaixi  the  employes  of  the  plaintiff,  such  as:  "Unfair  stable,  union 
men  locked  out,  and  nonunion  men  put  in.  Look  at  this  stable ;  the  only  un- 
fair stable  on  Market  street;  the  stable  that  always  was,  and  always  will  be, 
unfair.  This  is  a  scab  stable.  When  we  catch  you  outside,  we  will  finish  you. 
We  will  get  you  yet.  It  is  a  scab  stable,  full  of  scabs.  We  will  fix  you  yet.  It 
is  a  matter  of  time  when  we  will  get  you  all  right.  You  will  never  get  out  of 
the  stalile  alive.  We  will  break  you  in  half.  We  will  beat  you  to  death. 
When  we  catch  you  outside,  we  will  finish  you." 

Upon  these  findings  in  the  superior  court  a  judgment  for  an  in- 
junction was  granted.  This  judgment  by  its  terms  commanded  the 
defendant,  its  agents,  and  employes  to  desist  and  refrain — 

"from  in  any  wise  interfeiing  with,  or  harassing,  or  annoying,  or  obstructing 
plaintiff's  in  the  conduct  of  the  business  of  their  stable,  known  as  the  'Nevada 

place  and  attractiveness  of  A.'s  neighborhood.  Now  if  A.  converts  all  of  his 
neighbors  to  his  course  of  conduct  by  argument,  reason,  entreaty,  and  other 
fair  and  proper  means,  and  thereby  effects  the  suppression  of  the  saloon  and 
financial  ruin  of  B.,  it  is  damnum  absque  injuria.  A,  has  done  nothing  but 
what  the  law  protects  him  in  doing.  Eddy  on  Comb.  §'§  537,  539 ;  Beach  on 
Mon.  &  Ind.  Trusts,  §  107;  Union  P.  By.  Co.  v.  Reuf  (C.  C.  1902)  120  Fed. 
102 ;  Foster  v.  Retail  Clk.,  etc.,  Ass'n  (1902)  39  Misc.  Rep.  4S,  78  N.  Y.  Supp. 
860 ;  Rogers  v.  Evarts  (Sup.  1891)  17  N.  Y.  Supp.  264 ;  Perkins  v.  Rogg,  28 
Wkly.  Law  Bui.  .•]2 ;  Reg.  v.  Druitt,  10  Cox,  Cr.  R.  592;  Reg.  v.  Hilbert,  13 
Cox,  Cr.  R.  82.  According  to  the  finding,  the  pickets,  after  being  chosen  and 
before  going  out,  were  "invariably"  instructed  by  the  presiding  officer  of  the 
union  to  observe  only  i)eaceable  means,  and  under  no  circumstances  resort  to 
force,  menaces,  threats,  or  intimidation  of  any  kind.  There  is  no  finding  of 
any  departure  from  these  instructions  by  any  picket,  and  we  must  therefore 
presume,  as  against  the  plaintiff",  that  there  was  none,  and  consequently  hold 
that  the  maintaining  of  the  pickets  at  the  plaintiff's  factory  under  the  facts 
proved  was  not  unlawful." 

See  also  Cleorge  .lon.-is  Glass  Co.  v.  Glass  Bottle  Blowers'  Ass'n  (1907)  72 
N.  J.  Eq.  653,  66  Atl.  953. 


1428  TORTS  THROUGH  ACTS   OP  CONDITIONAL  LIABILITY        (Part  3 

Stables,'  anrl  situated  at  No.  1350  Market  street,  in  the  city  and  county  of  San 
Francisco  ;  or  from  in  any  wise  molesting,  interfering  with,  tlireatening,  in- 
timidating, or  harassing  any  employe  or  employes  of  plaintiffs;  or  from  in- 
timidating, harassing,  or  interfering  with  any  customer  or  customers,  patron 
or  patrons,  of  plaintiffs  in  connection  with  the  business  of  plaintiffs,  either  by 
boycott  or  by  threats  of  boycott,  or  by  any  other  threats ;  or  by  any  kind  of 
force,  violence,  or  intimidation,  or  by  other  xnilawful  means,  seeking  to  induce 
any  employe  or  employes  of  plaintiffs  to  withdraw  from  the  service  of  plain- 
tiffs ;  or  by  any  l<ind  of  violence,  threats,  or  intimidation  inducing,  or  seeking 
to  induce,  any  customer  or  customers,  patron  or  patrons,  of  plaintiffs  to  with- 
draw their  patronage  or  business  from  them,  or  from  stationing  or  placing  in 
front  of  said  plaintiffs'  place  of  business  any  picket,  or  pickets,  for  the  pur- 
pose of  injuring,  obstructing,  or  in  any  wise  interfering  with,  the  business  of 
idaintiffs,  or  for  the  purpose  of  preventing  any  customer  or  customers,  patron 
or  patrons,  of  plaintiffs  from  doing  business  with  them  ;  or  from  in  any  other 
way  molesting,  intimidating  or  coercing,  or  atteuipt  to  molest  or  intimidate  or 
coerce,  any  customer,  patron,  or  employg  of  plaintiffs  now  or  hereafter  deal- 
ing with,  or  any  employe  now  or  hereafter  employed  by  or  working  for,  plain- 
tiffs in  their  said  business." 

From  the  judgment  as  thus  framed  and  rendered  the  defendants 
have  appealed. 

Henshaw,  J,  *  *  *  T^Ye  think  that  to-day  no  court  would  ques- 
tion the  right  of  an  organized  union  of  employes,  by  concerted  action, 
to  cease  their  employment  (no  contractual  obligation  standing  in  the 
way),  and  this  action  constitutes  a  "strike."  We  think,  moreover, 
that  no  court  questions  the  right  of  those  same  men  to  cease  dealing 
by  concerted  action,  either  socially  or  by  way  of  business,  with  their 
former  employer,  and  this  latter  act,  in  its  essence,  constitutes  the 
primary  boycott.  But  what  acts  organized  labor  may  do,  and  what 
means  it  may  adopt  to  accomplish  its  end,  without  violation  of  the 
law,  have  presented  questions  of  much  nicety,  over  which  the  courts 
have  stood,  and  still  stand,  widely  divided.  It  would  not  be  profitable 
to  discuss  and  analyze  these  widely  divergent  cases.  It  is  sufficient  to 
formulate  briefly  the  principles  adopted  in  this  state  many  of  which 
have  recently  found  elaborate  expression  in  the  case  of  Parkinson  v. 
Building  &  Trades  Council  of  Santa  Clara,  154  Cal.  581,  98  Pac.  1040, 
21  L.  R.  A.  (N.  S.)  550,  16  Ann.  Cas.  1165.  The  right  of  united 
labor  to  strike,  in  furtherance  of  trade  interests  (no  contractual  ob- 
ligation standing  in  the  way)  is  fully  recognized.  The  reason  for  the 
strike  may  be  based  upon  the  refusal  to  comply  with  the  employes' 
demand  for  the  betterment  of  wages,  conditions,  hours  of  labor,  the 
discharge  of  one  employe,  the  engagement  of  another — any  one  or 
more  of  the  multifarious  considerations  which  in  good  faith  may  be 
believed  to  tend  toward  the  advancement  of  the  employes.  After 
striking,  the  employe  may  engage  in  a  "boycott,"  as  that  word  is  here 
employed.  As  here  employed,  it  means  not  only  the  right  to  the  con- 
certed withdrawal  of  social  and  business  intercourse,  but  the  right 
by  all  legitimate  means — of  fair  publication,  and  fair  oral  or  written 
persuasion — to  induce  others  interested  in,  or  sympathetic  with,  their 
cause  to  withdraw  their  social  intercourse  and  business  patronage  from 
the  employer.     They  may  go  even  further  than  this,  and  request  of 


Ch.  2)  TORTS  THROUGH  MALICE  1429 

another  that  he  withdraw  his  patronage  from  tlie  employer,  and  may 
use  the  moral  intimidation  and  coercion  of  threatening  a  like  boycott 
against  him  if  he  refuse  so  to  do.  This  last  proposition  necessarily 
involves  the  bringing  into  a  labor  dispute  between  A.  and  B.,  C,  who 
has  no  difference  with  either.  It  contemplates  that  C,  upon  the  re- 
quest of  B.,  and  under  the  moral  intimidation  lest  B.  boycott  him,  may 
thus  be  constrained  to  withdraw  his  patronage  from  A.,  with  whom  he 
has  no  controversy.  This  is  the  "secondary  boycott,"  the  legality  of 
which  is  vigorously  denied  by  the  English  courts,  the  federal  courts, 
and  by  the  courts  of  many  of  the  states  of  this  nation. 

Without  presenting  the  authorities,  which  are  multitudinous,  suffice 
it  to  state  the  other  view,  in  language  of  the  president  of  the  United 
States,  but  recently  uttered :  "A  body  of  workmen  are  dissatisfied  with 
the  terms  of  their  employment.  They  seek  to  compel  their  employer 
to  come  to  their  terms  by  striking.  They  may  legally  do  so.  The  loss 
and  inconvenience  he  suffers  he  cannot  complain  of.  But  when  they 
seek  to  compel  third  persons,  who  have  no  quarrel  with  their  em- 
ployer, to  withdraw  from  all  association  with  him  by  threats  that, 
unless  such  third  persons  do  so,  the  workmen  will  inflict  similar  in- 
jury on  such  third  persons,  the  combination  is  oppressive,  involves 
duress,  and,  if  injury  results,  it  is  actionable."  President  Taft,  Mc- 
Clure's  Magazine,  June,  1909,  p.  204.  Notwithstanding  the  great 
dignity  which  attaches  to  an  utterance  such  as  this,  which,  as  has  been 
said,  is  but  tlie  expression  of  numerous  courts  upon  the  subject-mat- 
ter, this  court,  after  great  deliberation,  took  what  it  believed  to  be  the 
truer  and  more  advanced  ground,  above  indicated  and  fully  set  forth 
in  Parkinson  v.  Building  Trades  Council,  etc.,  supra.  In  this  respect 
this  court  recognizes  no  substantial  distinction  between  the  so-called 
primary  and  secondary  boycott.  Each  rests  upon  the  right  of  the 
union  to  withdraw  its  patronage  from  its  employer,  and  to  induce  by 
fair  means  any  and  all  other  persons  to  do  the  same,  and,  in  exercise 
of  those  means,  as  the  unions  would  have  the  unquestioned  right  to 
withhold  their  patronage  from  a  third  person  who  continued  to  deal 
Vv'ith  their  employer,  so  they  have  the  unquestioned  right  to  notify 
such  third  person  that  they  will  withdraw  their  patronage  if  he  con- 
tinues so  to  deal.  However  opposed  to  the  weight  of  federal  authority 
the  views  of  this  court  are,  that  they  are  not  unique  may  be  noted  by 
reading  National  Protective  Association  v.  Gumming,  170  N.  Y.  315, 
63  N.  E.  369,  58  L.  R.  A.  135,  88  Am.  St.  Rep.  648;  Lindsay  v.  Mon- 
tana Federation  of  Labor,  37  Mont.  264,  96  Pac.  127,  18  L.  R.  A.  (N. 
S.)  707,  127  Am.  St.  Rep.  722,  where  the  highest  courts  of  those  states 
formulate  and  adopt  like  principles. 

It  has  been  said  that  it  is  important  to  any  correct  understanding 
of,  or  adjudication  upon,  such  questions  that  a  definition  of  the  word 
''boycott"  should  be  first  stated.  Thus,  to  say  that  a  boycott  is  a  "con- 
spiracy" immediately  implies  illegality,  and  puts  the  conduct  of  the 
boycotters  under  the  ban  of  the  law.    So  also  does  the  definition  which 


1430  TORTS  THROUGH   ACTS  OF  CONDITIONAL  LIABILITY        (P'art  3 

describes  boycotting  as  "illegal  coercion,"  designed  to  accomplish  a 
certain  end.  As  we  have  undertaken  to  define  boycott,  it  is  an  or- 
ganized effort  to  persuade  or  coerce,  which  may  be  legal  or  illegal, 
according  to  the  means  employed.  In  other  jurisdictions  where  a  defi- 
nition is  given  to  a  boycott  which  imports  illegality,  the  injunction 
will  of  course  lie  against  boycotting  as  such.  In  this  state  the  injunc- 
tion will  issue  depending  upon  the  circumstance  whether  the  means 
employed,  or  threatened  to  be  employed,  are  legal  or  illegal. 

We  are  thus  brought  to  consider  the  method  of  "picketing,"  the 
use  of  which  appellants  contend  is  a  legal  weapon  in  their  hands.  So 
far  in  this  discussion  we  have  dealt  exclusively  with  the  respective 
rights  of  the  employer  and  of  the  employe.  There  are  other  parties, 
however,  whose  rights  are  entitled  to  equal  consideration,  and  whose 
rights  always  become  involved  and  imperiled  when  picketing  is  adopted 
as  a  coercive  measure  in  aid  of  a  boycott. 

If  the  strikers  have  the  right,  as  above  indicated,  to  withdraw  patron- 
age themselves,  and  by  fair  publication,  written  and  oral  persuasion,  to 
induce  others  to  join  in  their  cause,  and  finally  by  threat  of  like  boy- 
cott, to  coerce  otlaers  into  so  doing,  their  rights  go  no  further  than 
this.  It  is  the  equal  right  of  the  employer  to  insist  before  the  law 
that  his  business  shall  be  subject  at  the  hands  of  the  strikers  to  no 
other  detriment  than  that  which  follows  as  a  consequence  of  the  legal 
acts  of  the  strikers  so  above  set  forth.  It  is  not  to  be  forgotten  that 
when  the  employes  have  struck,  they  occupy  no  contractual  relation- 
ship whatsoever  to  their  former  employer,  and  have  no  right  to  coerce 
him,  or  attempt  to  coerce  him,  by  the  employment  of  any  other  means 
than  those  which  are  equally  open  to  any  other  individual,  or  associa- 
tion of  individuals.  No  sanctity  attaches  to  a  trades  union  which  puts 
it  above  the  law,  or  which  confers  upon  it  rights  not  enjoyed  by  any 
other  individual  or  association.  The  two  classes  of  persons  to  whom 
we  have  adverted,  and  whose  rights  necessarily  become  involved  where 
a  picket  or  patrol  is  established,  are,  first,  the  rights  of  those  employed, 
or  seeking  employment,  in  the  place  of  the  striking  laborers ;  and,  sec- 
ond, the  rights  of  the  general  public.  It  is  the  absolute,  unqualified 
right  of  every  employe,  as  well  as  of  every. other  person,  to  go  about 
his  legal  business  unmolested  and  unobstructed,  and  free  from  intimi- 
dation, force,  or  duress.  The  right  of  a  labor  association  to  strike  is  no 
higher  than  the  right  of  a  nonunion  workman  to  take  employment  in 
place  of  the  strikers.  Under  the  assurance  and  shield  of  the  Consti- 
tution and  of  the  laws,  the  nonunion  laborer  may  go  to  and  from 
his  labor,  and  remain  at  his  place  of  labor,  in  absolute  security  from 
unlawful  molestations,  and  wherever  such  protection  is  not  fully  ac- 
corded, their  execution,  and  not  the  laws  themselves,  is  to  be  blamed. 
In  this  country  a  man's  constitutional  liberty  means  far  more  than  his 
mere  personal  freedom.  It  means  that,  among  other  rights,  his  is  tlie 
right  freely  to  labor  and  to  own  the  fruits  of  his  toil.     Ex  parte 


Ch.  2)  TORTS  THROUGH   MALICE  1431 

Jentzsch,  112  Cal.  468,  44  Pac.  803,  32  L.  R.  A.  664.  Any  act  of 
boycotting,  therefore,  which  tends  to  impair  this  constitutional  right 
freely  to  labor,  by  means  passing  beyond  moral  suasion,  and  playing 
by  intimidation  upon  the  physical  fears,  is  unlawful. 

The  inconvenience  which  the  public  may  suffer  by  reason  of  a  boy- 
cott lawfully  conducted  is  in  no  sense  a  legal  injury.  But  the  public's 
rights  are  invaded  the  moment  the  means  employed  are  such  as  are  cal- 
culated to,  and  naturally  do,  incite  to  crowds,  riots,  and  disturbances 
of  the  peace.  A  picket,  in  its  very  nature,  tends  to  accomplish,  and 
is  designed  to  accomplish,  these  very  things.  It  tends  to,  and  is  de- 
signed by  physical  intimidation  to,  deter  other  men  from  seeking 
employment  in  the  places  vacated  by  the  strikers.  It  tends,  and  is 
designed,  to  drive  business  away  from  the  boycotted  place,  not  by 
the  legitimate  methods  of  persuasion,  but  by  the  illegitimate  means 
of  physical  intimidation  and  fear.  Crowds  naturally  collect;  disturb- 
ances of  the  peace  are  always  imminent  and  of  frequent  occurrence. 
Many  peaceful  citizens,  men  and  women,  are  always  deterred  by 
physical  trepidation  from  entering  places  of  business  so  under  a  boy- 
cott patrol.  It  is  idle  to  split  hairs  upon  so  plain  a  proposition,  and 
to  say  that  the  picket  may  consist  of  nothing  more  than  a  single  in- 
dividual, peacefully  endeavoring  by  persuasion  to  prevent  customers 
from  entering  the  boycotted  place.  The  plain  facts  are  always  at 
variance  with  such  refinements  of  reason.  Says  Chief  Justice  Shaw, 
in  Commonwealth  v.  Hunt,  4  Mete.  (Mass.)  Ill,  38  Am.  Dec.  346: 
"The  law  is  not  to  be  hoodwinked  by  colorable  pretenses ;  it  looks 
at  truth  and  reality  through  whatever  disguise  it  may  assume."  If 
it  be  said  that  neither  threats  nor  intimidations  are  used,  no  man  can 
fail  to  see  that  there  may  be  threats,  and  there  may  be  intimidations, 
and  there  may  be  molesting,  and  there  may  be  obstructing,  without 
there  being  any  express  words  used  by  w^hich  a  man  should  show  vio- 
lent threats  toward  another,  or  any  express  intimidation.  We  think 
it  plain  that  the  very  end  to  be  attained  by  picketing,  however  artful 
may  be  the  means  to  accomplish  that  end,  is  the  injury  of  the  boy- 
cotted business  through  physical  molestation  and  physical  fear,  caused 
to  the  employer,  to  those  whom  he  may  have  employed,  or  who  may 
seek  employment  from  him,  and  to  the  general  public.  The  boycott 
having  employed  these  means  for  this  unquestioned  purpose  is  illegal, 
and  a  court  will  not  seek  by  overniceties  and  refinements  to  legalize 
the  use  of  this  unquestionably  illegal  instrument.  Vegelahn  v.  Gunt- 
ner  [167  Mass.  92,  44  N.  E.  ^1077,  35  L.  R.  A.  722,  57  Am.  St.  Rep. 
443],  supra;  Crump  v.  Commonwealth,  84  Va.  927,  6  S.  E.  620,  10 
Am.  St.  Rep.  895;  Union  Pacific  v.  Reuf  (C.  C.)  120  Fed.  124;  18 
Ency.  of  Law  (2d  Ed.)  p.  85. 

In  conclusion,  then,  and  applying  these  principles  to  the  injunction 
here  under  consideration,  it  appears  that,  while  the  injunction  was 
properly  granted,  it  was  broader  in  its  terms  than  the  law  warrants. 


1432  TORTS  THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

It  was,  for  example,  too  broad  in  restraining'  defendants  from  "in  any 
wise  interfering  with"  plaintiff's  business,  since  the  interference  which 
we  have  discussed,  of  publication,  reasonable  persuasion,  and  threat 
to  withdraw  patronage,  is  legal,  and  such  as  defendants  could  em- 
ploy. So,  also,  was  the  injunction  too  broad  in  restraining  defendants 
from  "intimidating  any  customer  by  boycott  or  threat  of  boycott"  since, 
as  has  been  said,  the  secondary  boycott  is  likewise  a  legal  weapon.  In 
all  other  respects,  however,  the  injunction  was  proper. 

The  trial  court  is  directed  to  modify  its  injunction  in  the  partic- 
ulars here  specified,  and  in  all  other  respects  the  judgment  will  stand 
affirmed.  ^^ 

Shaw,  J,  I  agree  with  all  that  is  said  by  Justice  Henshaw  in  his 
opinion,  except  the  part  relating  to  the  so-called  "secondary  boycott" 
and  the  attempt  to  draw  a  distinction  between  the  compulsion  of  third 
persons  caused  by  picketing  and  the  compulsion  of  third  persons  pro- 
duced by  a  boycott.  My  views  concerning  the  "secondary  boycott" 
are  expressed  in  my  dissenting  opinion  in  Parkinson  v.  Building  Trades 
Council,  154  Cal.  581,  98  Pac.  1040,  21  L.  R.  A.  (N.  S.)  550,  16  Ann. 
Cas.  1165.  The  means  employed  for  the  coercion  or  intimidation  of  a 
third  person  in  a  "secondary  boycott"  are  unlawful  whenever  they 
are  such  as  are  calculated  to,  and  actually  do,  destroy  his  free  will, 
and  cause  him  to  act  contrary  to  his  own  volition  in  his  own  business, 
to  the  detriment  of  the  person  toward  whom  the  main  boycott  or  strike 
is  directed ;  in  other  words,  whenever  the  means  used  constitute  du- 
ress, menace,  or  undue  influence.  Whether  this  coercion  or  compul- 
sion comes  from  fear  of  physical  violence,  as  in  the  case  of  picketing, 
or  from  fear  of  financial  loss,  as  in  the  "secondary  boycott,"  or  from 
fear  of  any  other  infliction,  is,  in  my  opinion,  immaterial,  so  long 
as  the  fear  is  sufficiently  potent  to  control  the  action  of  those  upon 
whom  it  is  cast.  I  can  see  no  logical  or  just  reason  for  the  distinction 
thus  sought  to  be  made.  There  is  no  such  distinction  in  cases  where 
contracts  or  wills  are  declared  void,  because  procured  by  duress, 
menace,  or  undue  influence.  There  should  be  none  where  actual  in- 
jury is  produced  or  threatened  through  such  means  acting'  upon  third 
persons.  Nor  do  I  believe  any  well-considered  case  authorizes  any 
such  distinction.  The  opinions  in  the  case  of  National  Protective  As- 
sociation V.  Gumming,  170  N.  Y.  315,  63  N.  E.  369,  58  L.  R.  A.  135, 
88  Am.  St.  Rep.  648,  are  devoted  to  a  discussion  of  the  right  to  strike, 
and  the  limitations  of  that  right,  and  not  to  a  discussion  of  the  "sec- 
ondary boycott."  A  close  analysis  of  the  cases  on  the  subject  will, 
as  I  believe,  show  that  this  court  stands  alone  on  this  point. 

82  A  part  of  Mr.  Justice  Henshaw's  opinion  is  oniittod.  Beatty,  C.  J.,  and 
Lorigaii  and  Melvin,  ,7  J.,  confurred  in  the  oijinion.  Anf^ollotti  and  Sloss,  J  J., 
concurred  in  tlie  judgment,  on  tlie  facts  as  found,  altli()u,u;li  not  proparc(l  to 
hold  that  tlierc  may  not  lic  acts  coniinj:  witliin  the  term  "picketing,"  as  it  is 
accepted  and  understood  in  labor  disputes,  that  are  entirely  lawful. 


Ch.  2)  TORTS  THROUGH  MALICE  1433 

For  these  reasons  I  do  not  agree  to  tlnat  part  of  the  judgment  di- 
recting a  modification  of  the  injunction.  I  beheve  tliat  it  should  stand 
in  the  form  as  given  by  the  court  below. 


MARCH  V.  BRICKLAYERS'  AND  PLASTERERS'  UNION 

NO.  1  et  al. 

(Supreme  Court  of  Errors  of  Connecticut,  1906.     79  Conn.  7,  G-3  Atl.  291, 
4  L.  R.  A.  [N.  S.]  119S,  118  Am.  St.  Rep.  127,  6  Ann.  Cas.  848.) 

In  this  action,  brought  by  March  against  the  union,  the  plaintifif  seeks 
to  recover  $100  which  he  paid  to  the  defendant  union  under  the  cir- 
cumstances shown  in  the  opinion.  The  judgment  below  was  for  the 
plaintiff.    The  defendants  appeal. 

PriCntici;,  J.  The  complaint  alleges  that  the  defendants  conspired, 
combined,  and  confederated  with  each  other  and  other  persons  to 
extort,  demand,  and  obtain  from  the  plaintiff  the  sum  of  $100;  that 
in  pursuance  of  that  conspiracy  and  combination  they  threatened  to  in- 
jure the  plaintiff  in  his  property  and  business,  unless  said  sum  was 
paid ;  and  that  by  reason  of  said  conspiracy  and  combination,  and  by 
reasons  of  said  threats,  intimidation,  and  coercion,  and  by  such  means 
alone  said  sum  was  paid  by  the  plaintiff*  to  the  defendants.  It  is  found 
that  the  payment  was  made,  that  the  combination  between  the  mem- 
bers of  the  defendant  union  to  secure  that  payment  and  Butler's  agen- 
cy for  it  existed,  and  that  the  money  was  paid  through  the  operation 
of  that  combination.  So  far  there  is  no  contention  here.  The  plain- 
tiff further  claims  that  the  combination  for  the  purposes  of  its  con- 
troversy with  him,  resulting  in  the  payment  by  him,  was  an  unlawful 
one.  He  claims  that  it  was  unlawful  (1)  because  its  object  was  un- 
lawful; and  (2)  because  the  means  to  accomplish  that  object  were 
unlawful.  He  also  claims  that,  as  the  payment  was  one  into  which 
he  was  coerced  through  the  operation  of  this  unlawful  conspiracy,  he 
is  entitled  to  recover  it  back.  The  defendants  do  not  deny  that  a  com- 
bination or  confederation  of  men  either  for  the  accomplishment  of 
an  unlawful  object  or  for  the  accomplishment  of  a  lawful  object  by 
unlawful  means  is  unlawful,  neither  do  they  deny  that,  if  the  combina- 
tion between  them  which  resulted  in  the  payment  in  question  was  an 
unlawful  one,  the  plaintiff  is  entitled  to  recover. 

The  contention  between 'the  parties,  therefore,  becomes  primarily  re- 
solved into  one  as  to  whether  the  conceded  confederation  of  the  defend- 
ants through  which  the  payment  was  obtained  was  an  unlawful  one 
by  reason  of  the  unlawful  character  of  eidier  its  object  or  the  means 
employed.  The  plaintiff  asserts  the  right  to  a  judgment  upon  narrower 
grounds  than  those  thus  suggested  and  notwithstanding  a  failure  to 
establish  an  unlawful  conspiracy.  This  claim,  however,  is  subordinate 
to  his  main  proposition,  and  need  not  be  considered  unless  it  shall 


1434  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

appear  that  his  principal  contention  already  stated  fails  him.  The  dis- 
agreement between  the  plaintift'  and  the  defendants  as  to  the  lawful- 
ness of  the  object  of  the  latter's  combination  is  one  which  arises  chiefly, 
if  not  entirely,  out  of  a  difference  of  view  as  to  what  is  to  be  regard- 
ed as  that  object.  The  defendants  say  that  the  object  was  the  ulti- 
mate object  of  the  union,  to  wit,  among  other  things,  the  promotion 
of  the  welfare  of  its  members  and  the  advancement  of  their  rights  and 
privileges  as  laboring  men,  or,  if  not  that,  the  freeing  of  themselves 
from  the  competition  of  those  not  members  of  the  union,  or,  if  not  that, 
and  the  object  is  to  be  brought  into  closer  relation  to  the  matters  in 
controversy,  the  compelling  of  "unfair"  bosses  to  become  "fair."  The 
plaintiff'  finds  the  object  sought  in  the  immediate  injury  attempted  to 
be  inflicted  upon  him — the  extortion  of  the  $100  from  him  as  the 
price  of  his  freedom  from  harassment  in  the  marketing  of  his  product. 
These  differences  in  the  analysis  of  the  situation  disclosed  by  the  rec- 
ord are  more  formal  than  vital.  Their  chief  importance  arises  from 
the  changed  form  which  must  be  given  to  the  discussion  of  the  under- 
lying questions  involved  and  the  different  use  of  terms  which  must 
be  made  according,  as  one  view  or  the  other  be  adopted.  For  the 
purposes  of  our  consideration,  therefore,  we  may  well  assume,  as  did 
the  court  below,  that  the  object  sought  by  the  defendants  in  what  they 
confederated  to  do  was  some  one  of  the  more  remote  objects,  as 
claimed  by  them,  and  that  this  object  was  a  lawful  one.  This,  of 
course,  involves  the  transferring  into  the  field  of  means  that  which 
would  in  the  other  view  be  regarded  as  an  end  and  the  consideration 
of  all  that  the  defendants  did  in  the  accomplishment  of  its  object  as 
means  to  that  accomplishment. 

The  question  before  us.  thus  becomes  narrowed  down  to  the  single 
inquiry  as  to  whether  or  not  the  defendants  in  the  pursuit  of  their 
object,  whether  it  be  regarded  as  their  general  welfare  as  laboring  men, 
or  the  diminution  of  outside  competition,  or  the  enlargement  of  their 
field  of  opportunity  by  increasing  the  number  of  employers  of  union 
labor  only,  used  unlawful  means.  This  question  suggests  the  possibil- 
ity of  a  wide  range  of  inquiry,  involving  the  consideration  of  import- 
ant legal  principles  which  have  been  much  discussed,  and  upon  cer- 
tain of  which  there  has  been  some  divergence  of  opinion.  The  facts 
of  this  case,  however,  are  such  as  to  require  from  us  the  application 
of  no  principles  which  have  not  been  long  and  well  established,  and 
but  few  of  them.  The  salient  facts  in  the  story  spread  upon  the  record 
are  that  this  defendant  association  through  their  representative,  the 
defendant  Butler,  demanded  of  the  plaintiff  the  payment  to  them  of 
a  sum  of  money  upon  the  threatened  alternative  that,  if  payment  was 
refused,  he  would  by  their  action  in  refusing  to  handle  his  product 
in  their  work  then  in  progress  be  annoyed  and  harassed  in  the  en- 
joyment of  the  benefit  of  the  market  for  that  product  which  he  had 
obtained,  and  in  all  probability  be  wholly  deprived  of  that  market. 


Ch.  2)  TORTS  THROUGH  MALICE  1435 

The  action  thus  threatened  was  within  the  power  of  the  defendants  to 
take.  The  consequences  which  would  flow  to  the  plaintiff  from  it, 
if  taken,  were  such  as  might  well  excite  in  him  a  reasonable  appre- 
hension of  serious  injury.  To  the  pressure  thus  brought  to  bear  upon 
him  he  yielded  and  paid  the  sum  exacted.  There  is  nothing  in  the 
record  to  relieve  this  picture.  It  does  not  improve  it  to  say  that  the 
defendants  were  seeking  to  enforce  a  penalty  or  to  collect  damages  as- 
sessed. They  had  no  right  to  inflict  a  penalty  upon  or  assess  damages 
against  this  man,  who  owed  them  no  duty  through  association  in  the 
membership  of  the  union,  by  contract  or  otherwise.  The  plaintiff 
owed  them  nothing.  To  overawe  him  into  the  payment  of  something 
by  means  of  threats  of  injury  in  their  power  to  inflict  and  of  such  a 
character  as  to  naturally  arouse  a  reasonable  apprehension  of  serious 
consequences  to  him,  in  the  event  of  his  refusal,  was  an  act  of  the 
purest  extortion,  using  that  word  in  its  widest  meaning,  by  means  of 
threats  and  intimidation,  and  in  the  plainest  violation  of  our  stat- 
ute (Gen.  St.  1902,  §  1296),  our  decisions,  and  the  universally  accept- 
ed principles  of  the  common  law.  State  v.  Glidden,  55  Conn.  46,  8  Atl. 
890,  3  Am.  St.  Rep.  23 ;  State  v.  Stockford,  17  Conn.  227,  58  Atl.  769, 
107  Am.  St.  Rep.  28.  The  statement  of  what  the  defendants  undertook 
to  do  easily  discloses  that  this  is  not  the  ordinary  case  found  in  the 
books  involving  the  exercise  by  trade,  capital,  or  labor  combinations 
of  claimed  powers  in  their  struggles  for  success.  These  cases  have 
not  infrequently  called  for  the  determination  of  nice  legal  questions, 
and  the  application  of  doctrines  which,  while  they  might  be  pertinent 
to  the  present  situation,  are  wholly  unnecessary  for  the  decision  of 
the  simpler  question  before  us.  The  most  elemental  principles  of  jus- 
tice and  right  which  have  by  universal  consent  been  adopted  into  the 
common  law  suffice  for  a  conclusion  that  money  cannot  be  lawfully 
exacted  of  a  man  in  the  manner  here  successful.  We  are  aware 
of  no  case  wherein  the  progress  of  a  labor  or  trade  controversy  a  simi- 
lar attempt  to  extort  money  as  the  price  of  forbearance  from  threat- 
ened injurious  action  has  ever  come  before  the  courts,  save  that  of 
Carew  v.  Rutherford,  106  ^lass.  1,  8  Am.  Rep.  287,  where  the  attempt 
is  characterized  as  a  species  of  annoyance  and  extortion  which  the 
common  law  has  never  tolerated. 

It  is  attempted  to  justify  the  action  of  the  union  in  its  money  de- 
mand upon  the  proposition  that,  as  its  members  had  the  right  to  de- 
cline to  handle  the  plaintiff's  brick,  they  had  the  right  to  waive  the 
exercise  of  that  right  upon  such  conditions  as  they  might  impose.  The 
proposition  is  that  money  demanded  and  obtained  as  tlie  price  of  for- 
bearance from  the  commission  of  an  act  of  injury,  even  when  the 
commission  of  that  act  is  held  over  the  man  to  coerce  and  intimidate 
him  into  compliance  with  the  demand,  is  lawfully  obtained,  if  the 
threatened  act  was  one  which  the  threatener  might  lawfully  do.  Such 
a  proposition  could  oftentimes  be  used  to  justify  the  vilest  blackmailer, 


1436  TORTS  THROUGH  ACTS  OF  CONDITIONAL  LIABILITY        (Part  3 

and  is  palpably  unsound,  in  tliat  it  ignores  certain  elements  which  may- 
be present  to  convert  the  proceeding  into  a  wrong  or  a  crime.  28  Am. 
&  Eng.  Ency.  Law  (2d  Ed.)  141. 

It  is  further  said  that  the  action  of  the  defendants  was  justified 
in  the  exercise  of  the  rights  of  fair  trade  competition.  If  it  be  as- 
sumed that  these  journeymen,  bricklayers,  and  this  brick  manufacturer 
whose  business  touched  each  other,  only  in  that  the  latter  sold  brick 
to  persons  for  whom  tlie  former  worked,  are  to  be  regarded  as  trade 
competitors,  so  that  the  recognized  doctrines  applicable  to  such  com- 
petitors are  applicable  to  them,  it  yet  remains  tliat  the  means  resorted 
to  in  this  case  would  not  be  permitted. 

There  is  no  error.    All  concur.*^ 


BURNHAM  et  al.  v.  DOWD. 

(Supreme  Judicial  Court  of  Massachusetts,  1914.     217  Mass.  351,  104  N.  E. 

841,  51  L.  R.  A.  [N.  S.]  778.) 

Sheldon,  J.**  *  *  *  ••j^j-^g  leading  material  facts  found  by  the 
master  may  be  summarized  as  follows :  The  plaintiffs  carry  on  a  busi- 
ness which  includes  the  selling  at  wholesale  and  retail  of  masons'  sup- 
plies. The  defendants  are  members  of  a  voluntary  unincorporated 
association  or  labor  union  in  Holyoke,  hereinafter  called  the  union. 
It  is  the  object  and  purpose  of  all  the  members  of  this  union  to  make 
themselves  and  the  union  as  powerful  as  possible  in  Holyoke  and  its 
immediate  environment,  and  to  exert  their  power  for  the  purpose  of 
bettering  the  labor  conditions  of  members  of  the  union,  especially  with 
reference  to  rates  of  wages  and  periods  of  labor.  It  is  a  part  of  their 
principles  which  all  the  members  of  the  union  are  under  obligation 
to  respect  and  uphold,  that  all  men  of  their  craft  or  trade  working  in 
Holyoke  or  its  immediate  vicinity,  that  is,  within  the  jurisdiction  of 
their  union,  must  be  members  thereof ;  that  all  their  members  should 
refuse  to  work  with  men  of  their  craft  who  w"ere  not  members  of  the 
union  or  had  not  declared  their  intention  to  join  it;  should  refuse 
to  work  for  employers  who  were  declared  "unfair"  by  the  union;  and 
should  refuse  to  use  in  their  work  any  materials  that  had  been  sold 
or  furnished  by  any  merchant  who  was  declared  unfair  by  the  union. 
They  aimed  to  accomplish  their  purpose,  of  bettering  the  labor  con- 
ditions of  their  members,  primarily  by  persuasion  coupled  with  the 
fear  of  consequences  if  the  party  addressed  should  not  yield,  and  sec- 
ondarily, if  necessary,  by  troubles  and  loss  to  the  business  of  contrac- 
tors or  merchants.  This  union  was  connected  with  the  Building 
Trades  Oouncil  of  Holyoke,  which  represented  the  various  building 

83  The  statement  of  facts  is  abridged. 

84  Parts  of  the  opinion  are  omitted. 


Ch.  2)  TORTS  THROUGH  MALICE  1437 

trades  unions  (some  14  in  number)  of  Holyoke  and  vicinity,  and  was 
composed  of  delegates  sent  from  these  unions.  In  July,  1911,  one 
Gauthier  employed  nonunion  masons  in  certain  construction  work  in 
Holyoke,  against  the  protest  of  this  union;  and  the  plaintiffs  fur- 
nished to  him  mason  materials.  In  August,  1911,  the  union  voted  to 
refuse  to  handle  any  building  material  of  any  firm  that  furnished 
stock  to  Gauthier  or  to  any  "unfair"  contractor.  Soon  after  this,  the 
delegates  from  the  union  to  the  Building  Trades  Council  reported 
these  facts  to  that  body ;  and  the  agent  of  the  council  sent  a  written 
notice  to  the  plaintiff'  that  Gauthier  was  "doing  work  contrary  to  laws 
of  Building  Trades  Council,"  and  was  "therefore  recognized  by  us  as 
being  unfair,"  and  expressing  the  hope  of  "co-operation  in  this  mat- 
ter." The  plaintiffs  continued  to  furnish  material  to  Gauthier.  There- 
upon, by  successive  votes,  the  union  declared  that  the  plaintiffs  were 
"unfair."  This  was  for  the  reason  that  the  plaintiffs  continued  to  fur- 
nish masons'  supplies  to  Gauthier,  and  refused  to  promise  not  to  sell 
to  any  party  who  should  not  be  in  good  standing  with  the  union.  All 
the  members  of  the  union  would  have  refused  since  August,  1911, 
and  would  refuse  now  and  in  tlie  future  (so  long  as  the  plaintiffs  were 
held  by  the  union  to  be  unfair)  to  work  with  materials  purchased  from 
the  plaintiff's.  It  has  not  been  and  in  the  future  it  will  not  be  prac- 
ticable, without  the  labor  of  members  of  the  union,  to  perfoTm  build- 
ing contracts  of  any  size  or  importance  in  Hol3^oke  or  its  immediate 
vicinity,  without  serious  inconvenience,  trouble  and  loss  to  the  con- 
tractors, and  the  defendants  have  intended  that  owners  and  contrac- 
tors should  fear  this  result  if  they  purchased  masons'  supplies  from 
the  plaintiffs.  The  union  and  its  officers  and  members,  including  some 
of  the  defendants,  have  notified  various  owners  and  contractors,  who 
either  were  buying  or  were  intending  to  buy  masons'  supplies  from 
the  plaintiffs  for  construction  work  upon  which  members  of  the  union 
necessarily  were  employed,  that  the  plaintiff's  were  upon  the  "unfair" 
list  of  the  union,  and  that  its  members  would  not  use  or  work  upon  ma- 
terial furnished  by  the  plaintiff's,  and  in  substance  threatened  to  strike 
if  masons'  supplies  were  purchased  from  the  plaintiff's.  These  con- 
tractors and  owners  feared,  and  it  was  intended  that  they  should  fear 
and  they  were  justified  in  fearing,  that  these  threats  would  be  carried 
out;  and  in  consequence  thereof  they  ceased  or  refrained  from  buy- 
ing supplies  of  the  plaintiff',  as  otherwise  they  would  have  done,  and 
the  plaintiff's'  sales  of  masons'  supplies  were  considerably  dnninished 
and  their  profits  lessened  in  consequence  of  these  facts.  This  state 
of  aff'airs  will  continue,  to  the  serious  loss  and  damage  of  the  plain- 
tiffs, unless  they  shall  promise  not  to  sell  to  any  one  considered  unfair 
by  the  union. 

The  defendants  did  not  act  from  actual  personal  malice  towards  the 
plaintiff's ;  but  their  acts  were  done  in  pursuance  of  their  union  prin- 
ciples and  purposes,  as  above  stated,  and  without  caring  for  the  in- 
jurious consequences  to  the  plaintiff's.     Indeed  these  injurious  consc- 


1438  TORTS  THROUGH   ACTS   OF   CONDITIONAL   LIABILITY        (Part  3 

qiiences  were  anticipated  and  contemplated  by  the  defendants.  They 
did  not  attempt  to  declare  or  enforce  any  boycott  against  the  plain- 
tiffs, except  as  this  is  included  in  the  acts  that  have  been  mentioned. 
During  the  period  involved  in  this  case,  some  of  the  defendants  have 
bought  for  their  own  use  small  quantities  of  masons'  supplies  from 
the  plaintiffs,  and  others  of  the  defendants  during  the  same  time 
have  made  purchases  from  the  plaintiffs  in  other  branches  of  the  plain- 
tiff's' business. 

Although  there  has  been  a  little  contrariety  of  decisions  in  other 
jurisdictions,  we  do  not  consider  that  there  is  any  doubt  as  to  the  rule 
of  law  to  be  applied  in  this  case.  The  defendants  have  no  real  trade 
dispute  with  the  plaintiffs.  No  one  of  the  members  of  the  union  is, 
or  so  far  as  appears  ever  has  been,  employenl  by  the  plaintiffs.  The 
plaintiffs  have  not  interfered  or  sought  to  interfere  with  the  employ- 
ment of  any  of  those  members,  or  with  the  rates  of  pay,  the  periods 
of  labor,  or  any  of  the  conditions  of  such  employment.  There  is  no 
competition  between  these  parties,  as  there  was  in  Bowen  v.  IMatheson, 
14  Allen,  499.  The  matter  that  lies  at  the  foundation  of  these  pro- 
ceedings is  a  dispute  between  the  union  and  Gauthier.  He  employs 
or  has  employed  nonunion  labor;  the  defendants  (including  under 
this  term  all  the  members  of  the  union)  object  to  this.  They  have  a 
right  to  say  that  they  will  do  no  work  for  him  unless  he  will  give 
to  them  all  the  work  of  their  trade,  that  they  will  do  all  or  none  of 
his  work.  That  was  settled  by  our  decision  in  Pickett  v.  Walsh,  192 
Mass.  572,  78  N.  E.  753,  6  L.  R.  A.  (N.  S.)  1067,  116  Am.  St.  Rep. 
272,  7  Ann.  Cas.  638.  If  they  were  employed  by  Gauthier,  and  if  he 
employed  also  nonunion  men  of  their  craft,  they  would  have  a  right, 
unless  they  were  bound  by  some  term  of  their  contract  of  employment, 
to  strike  unless  all  of  this  work  should  be  given  to  them  or  to  their 
associates.  But  it  was  pointed  out  in  the  same  case  that  not  all  strikes 
are  lawful ;  and  it  now  is  settled  in  this  commonwealth  that  it  is  a 
question  of  law  whether  any  particular  strike  is  a  lawful  one.  Reyn- 
olds V.  Davis,  198  Mass.  294,  84  N.  E.  457,  17  L.  R.  A.  (N.  S.)  162 ; 
De  Minico  v.  Craig,  207  Mass.  593,  94  N.  E.  317,  42  L.  R.  A.  (N.  S.) 
1048.  But  the  second  point  decided  in  Pickett  v.  Walsh,  supra,  is 
in  our  opinion  decisive  of  the  principal  question  raised  in  this  case.  It 
was  there  held  that  the  members  of  a  labor  union  who  are  employed 
by  a  contractor  to  do  work  upon  a  building,  and  who  have  no  dispute 
with  that  contractor  as  to  work  which  they  or  their  fellows  are  doing 
for  him,  cannot  lawfully  strike  against  him  for  the  mere  reason  that 
he  is  doing  work  and  employing  some  of  their  fellows  upon  another 
building  upon  which  nonunion  men  are  employed  to  do  like  work,  not 
by  him,  but  by  the  owner,  of  that  building.  The  language  and  reason- 
ing of  that  decision  are  applicable  here.  The  reason  of  the  decision 
was  that,  as  the  court  said  (Loring,  J.,  192  Mass.  587,  78  N.  E.  760, 
6  L.  R.  A.  [N.  S.]  1067,  116  Am.  St.  Rep.  272,  7  Ann.  Cas.  638), 
such  a  strike  "has  an  element  in  it  like  that  in  a  sympathetic  strike,  in 


Ch.  2)  TORTS  THROUGH  MALICE  1439 

a  boycott  and  in  a  blacklisting,  namely :  It  is  a  refusal  to  work  for  A., 
with  whom  the  strikers  have  no  dispute,  because  A.  works  for  B., 
with  whom  the  strikers  have  a  dispute,  for  the  purpose  of  forcing  A. 
to  force  B.  to  yield  to  the  strikers'  demands."  So  in  the  case  at  bar, 
the  threat  of  the  defendants  was  to  strike  against  owners  and  con- 
tractors, with  whom  the  defendants  had  no  dispute,  for  the  purpose  of 
forcing  tliose  owners  and  contractors  to  refuse  to  buy  masons'  sup- 
plies from  the  plaintiffs,  and  thus  by  the  loss  of  business  and  of  the 
profits  to  be  derived  therefrom,  force  the  plaintiff's  to  refuse  to  sell 
to  Gauthier  or  others  whom  the  defendants  might  call  unfair,  and  thus 
put  a  pressure  upon  those  persons  which  should  force  them  to  cease 
employing  nonunion  masons  and  to  give  all  their  mason  work  to  the 
defendants.  This  was  a  step  further  than  what  was  held  in  Pickett 
V.  Walsh  to  be  an  unlawful  combination  for  an  unjustifiable  interfer- 
ence with  another's  business.  It  was  in  intention  and  eff'ect  a  boycott ; 
and  it  was  none  the  less  so  because  it  was  aimed  at  only  one  branch  of 
the  plaintiff's'  business.  There  is  no  more  right  to  interfere  with  one 
branch  of  a  merchant's  business,  to  obstruct  it  and  lessen  its  prof- 
its, and  so  far  as  may  be  done  to  destroy  it  entirely,  than  there  is  so 
to  interfere  with,  obstruct  and  destroy  the  whole  of  that  business. 
The  difference  is  merely  one  of  degree,  not  of  kind.  And  Pickett  v. 
Walsh  is  well  supported  as  to  this  point  both  upon  the  reasoning  of 
the  opinion  and  by  authority.     *     *     *  ^^ 

As  was  said  in  Hopkins  v.  Oxley  Stave  Co.,  83  Fed.  912,  917,  28 
C.  C.  A.  99,  105 :  "Persons  engaged  in  any  service  have  the  power, 
with  which  a  court  of  equity  will  not  interfere  by  injunction,  to  aban- 
don that  service,  either  singly  or  in  a  body,  if  the  wages  paid  or  the 
conditions  of  employment  are  not  satisfactory ;  but  they  have  no  right 
to  dictate  to  an  employer  what  kind  of  implements  he  shall  use,  or 
whom  he  shall  employ."     *     *     * 

The  defendants  contend  earnestly  that  each  one  of  them  has  a  per- 
fect right  to  refrain  from  dealing  himself,  and  to  advise  his  friends 
and  associates  to  refrain  from  dealing,  with  the  plaintiff's,  and  that 

8  5  Mr.  Justice  Sheldon  here  cited  or  referred  to  a  large  number  of  cases, 
and  especially  "the  cases  collected  on  page  588  of  192  Mass.,"  page  760  of  78 
N.  E.  (6  L.  R.  A.  [N.  S.]  1067,  116  Am.  St.  Hep.  272,  7  Ann.  Cas.  638  [1906]). 
See  also  New  Euirland  Cement  Gun  Co.  v.  McGivern  (1914)  218  Mass.  198,  105 
N.  E.  885,  where  De  Courcy,  ,T.,  remarks:  "It  was  not  lawful  for  them  to  strike 
to  compel  Monahan,  with  whom  they  had  no  trade  dispute,  to  compel  the  gen- 
eral contractor  to  compel  the  owner  to  compel  the  plaintiff  to  give  to  the  de- 
fendants the  work  they  demanded.  In  other  words,  it  was  an  unjustifiable  in- 
terference with  the  plaintiff's  business  to  injure  others  in  order  to  compel 
them  to  coerce  the  plaintiff.  Martin,  Modern  Law  of  Labor  Unions,  §  77,  and 
cases  cited.  The  acts  of  coercion  and  procuring  breaches  of  contract  mentiouetl 
in  the  sixth  finding  plainly  are  not  justified  by  the  law  of  this  commonwealth. 
It  is  unnecessary  to  consider  further  the  unlawfulness  of  such  a  secoudaiy 
or  compound  boycott  in  view  of  the  full  discussion  of  the  subject  in  the  recent 
opinions  of  this  court  in  Pickett  v.  Walsh  (1906)  192  Mass.  572,  78  N.  E.  758, 
6  L.  R,  A,  (N.  S.)  1067,  116  Am.  St.  Rep.  272,  7  Ann.  Cas.  638,  and  Burnham  v. 
Dowd  (1914)  217  Mass.  351,  104  N.  E.  .S^tl,  51  L.  R.  A.  (N.  S.)  778,  iu  which 
cases  are  collected  the  authorities  in  this  and  other  jurisdictions." 


1440  TORTS   THROUGH   ACTS   OF   CONDITIONAL   LIABILITY         (Part  3 

they  have  a  right  to  do  together  and  in  concert  what  each  one  of  tliem 
lawfully  may  do  by  himself.  But  that  is  not  always  so.  It  is  especially 
true  in  dealing  with  such  questions  as  these  that  the  mere  force  of 
numbers  may  create  a  difference  not  only  of  degree,  but  also  of  kind. 
No  doubt  the  defendants'  organization  is  a  lawful  one,  and  certainly 
some  of  the  objects  aimed  at  by  the  union  thus  formed  are  both  legal 
and  of  high  utility.  But,  as  was  pointed  out  by  the  Supreme  Court  of 
the  United  States  in  Gompers  v.  Buck's  Stove  &  Range  Co.,  221  U. 
S.  418,  31  Sup.  Ct.  492,  55  L.  Ed.  797,  34  L.  R.  A.  (N.  S.)  874,  "the 
very  fact  that  it  is  lawful  to  form  these  bodies,  with  multitudes  of 
members,  means  that  they  have  thereby  acquired  a  vast  power,  in  the 
presence  of  which  the  individual  may  be  helpless.  This  power,  when 
unlawfully  used  against  one,  cannot  be  met,  except  by  his  purchas- 
ing peace  at  the  cost  of  submitting  to  terms  which  involve  the  sacrifice 
of  rights  protected  by  the  Constitution ;  or  by  standing  on  such  rights 
and  appealing  to  the  preventive  powers  of  a  court  of  equity.  When 
such  appeal  is  made  it  is  the  duty  of  government  to  protect  the  one 
against  the  many  as  well  as  the  many  against  the  one."  To  the  same 
effect  is  what  was  said  by  this  court,  through  Mr.  Justice  Hammond, 
in  Martell  v.  White,  185  Mass.  255,  260,  69  N.  E.  1085,  1087,  64  L.  R.  A. 
260,  102  Am.  St.  Rep.  341,  quoting  the  words  of  Lord  Justice  Bowen 
in  Mogul  Steamship  Co.  v.  McGregor,  23  Q.  B.  D.  598,  616:  "Of  the 
general  proposition  that  certain  kinds  of  conduct  not  criminal  in  any 
one  individual  may  become  criminal  if  done  in  combination  among 
several,  there  can  be  no  doubt."  So  in  Pickett  v.  Walsh,  192  Mass. 
572,  78  N.  E.  753,  6  L.  R.  A.  (N.  S.)  1067,  116  Am.  St.  Rep.  272, 
7  Ann.  Cas.  638,  it  was  held  among  other  things  that  "what  is  lawful 
if  done  by  an  individual  may  become  unlawful  if  done  by  a  combina- 
tion of  individuals."  And  see  the  cases  collected  on  page  582  of  192 
Mass.,  on  page  757  of  78  N.  E.  (6  L.  R.  A.  [N.  S.]  1067,  116  Am.  St. 
Rep.  272,  7  Ann.  Cas.  638),  in  that  opinion.  This  principle  is  pecu- 
liarly applicable  to  cases  like  the  one  at  bar.  There  is  no  such  thing 
in  our  modern  civilization  as  an  independent  man.  No  single  indi- 
vidual could  continue  even  to  exist,  much  less  to  enjoy  any  of  the  com- 
forts and  satisfactions  of  life,  without  the  society,  sympathy  and  sup- 
port of  at  least  some  of  those  among  whom  his  lot  is  cast.  Every 
individual  has  the  right  to  enjoy  these,  and  is  bound  not  to  interfere 
with  the  enjoyment  of  them  by  others.  That  right  indeed  is  usually 
one  of  merely  moral  obligation,  incapable  of  enforcement  by  the  courts, 
but  it  is  none  the  less  an  actual  wrong  for  any  body  of  men  actively 
to  cause  the  infringement  of  that  right  in  definite  particulars;  and 
especially  where  such  an  infringement  is  made  possible  only  by  the 
concerted  action  of  many  in  combination  against  one  and  results  in 
direct  injury  to  his  business  or  property,  the  courts  should  interfere 
for  the  protection  of  that  person. 

In  Worthington  v.  Waring,  157  Mass.  421,  32  N.  E.  744,  20  L.  R. 
A.  342,  34  Am.  St.  Rep.  294,  where  the  court  refused  to  enjoin  the 


Ch.  2)  TORTS  THROUGH  MALICE  1441 

defendants  from  putting  the  names  of  the  plaintiffs  upon  a  blacklist 
and  thus  making  it  impossible  for  them  to  obtain  in  that  neighbor- 
hood employment  in  their  trade,  there  was  a  misjoinder  of  plaintiffs. 
Apart  from  this  technical  difficulty,  the  decision  was  put  upon  the 
ground  that  while  courts  of  equity  may  protect  property  from  threat- 
ened injury  when  the  property  rights  are  equitable  or  when  they  can- 
not be  protected  adequately  at  law,  yet  equity  has  in  general  no  juris- 
diction to  restrain  the  commission  of  crime  or  to  assess  damages  for 
torts  already  committed,  and  the  rights  there  alleged  to  have  been  vio- 
lated were  said  to  be  merely  personal  rights  and  not  rights  of  prop- 
erty. That  case  is  not  applicable  here,  for  the  rights  now  in  question 
are  distinctly  property  rights.  Accordingly  we  need  not  consider 
whether  the  doctrine  of  that  case  can  be  reconciled  with  our  later  de- 
cisions, or  whether  it  now  would  be  followed  if  the  same  state  of  facts 
were  again  presented. 

The  question  of  damages  remains  to  be  dealt  with.  Upon  that  we 
find  no  error  in  the  master's  report.  That  the  plaintiffs  have  sustained 
substantial  damage  is  manifest ;  and  the  mere  facts  that  it  may  be  im- 
possible to  determine  the  total  amount  of  their  loss,  and  that  it  may 
be  difficult  to  ascertain  with  absolute  certainty  the  money  value  of 
even  the  damages  that  can  be  proved,  is  no  reason  for  refusing  to 
allow  to  the  plaintiff  what  has  been  found  to  be  capable  of  substantial 
proof.  Fox  V.  Harding,  7  Cush.  516;  Speirs  v.  Union  Drop  Forge 
Co.,  180  Mass.  87,  61  N.  E.  825;  C.  W.  Hunt  Co.  v.  Boston  Kiev. 
Ry.,  199  Mass.  220,  235,  85  N.  E.  446  et  seq. ;  De  Minico  v.  Craig, 
207  Mass.  593,  600,  94  N.  E.  317,  42  L.  R.  A.  (N.  S.)  1048.  We  find 
nothing  inconsistent  with  this  in  Todd  v.  Keene,  167  Mass.  157,  45  N. 
E.  81 ;  John  Hetherington  &  Sons  v.  William  Firth  Co.,  210  Mass.  8, 
23,  95  N.  E.  961,  et  seq.,  or  the  other  cases  relied  on  by  the  defendants. 
Doubtless  merely  speculative  damages  or  any  damages  that  have  not 
been  proved  cannot  be  recovered ;  but  this  does  not  require  absolute 
mathematical  demonstration  or  prevent  the  drawing  of  reasonable 
inferences  from  the  facts  and  circumstances  in  evidence. 

The  result  is  that  the  plaintiff's  are  entitled  to  a  decree  enjoining  the 
defendants  from  keeping  the  names  of  the  plaintiff's  upon  their  unfair 
list,  from  threatening  to  strike  or  to  leave  the  work  of  any  owner, 
builder  or  contractor  by  reason  of  such  persons  having  purchased  ma- 
sons' supplies  from  the  plaintiffs  or  having  dealt  otherwise  with  the 
plaintiffs,  and  from  ordering  or  inducing  any  strike  against  an  owner, 
builder  or  contractor  for  such  reason,  and  that  the  plaintiff's  shall  re- 
cover from  the  defendants  the  sum  of  $500  with  interest  from  the 
date  of  the  filing  of  the  master's  report,  and  their  costs  of  suit,  and 
have  execution  therefor. 

So  ordered. 

Hepb.Tokts — 91 

* 


INDEX 


[the  figubes  befeb  to  pages] 


ABATEMENT  OF  NUISANCE,  200,  396,  39S,  399,  402. 

ABUSE  OF  PROCESS,  1200-1203. 

ACCIDENT, 

As  an  excuse  in  negligence,  1092-1095. 
As  an  excuse  in  trespass,  155-168. 

ACTION, 

Common  law  action  as  a  test  of  a  tort.  15. 

Malicious  institiition  of,  whether  a  tort,  1194,  1195,  note. 

ACTION  ON  THE  CASE, 
Origin  of,  316,  317. 
Influence  of  on  the  law  of  torts,  318. 

ACT  OF  GOD, 

Effect  of,  as  a  concurring  cause,  849,  886,  888,  894,  899. 

ACTS  AT  PERIL,  155  note,  156,  764-799. 

ACTUAL  DAMAGE, 

Importance  of,  in  the  doctrine  of  torts, 
In  general,  6,  7. 
Special  aspects  considered, 

In  trespass,  28,  29,  115  note. 

In  defamation,  574-582,  638-641. 
In  negligence,  963-908. 
In  malicious  torts,  1185,  1258,  1259,  1260. 
In  nuisance,  347. 

ADMIRALTY  RULE, 

As  to  plaintiff's  recovery  in  contributory  fault,  1113,  1114  note. 

ADVICE  OF  COUNSEL, 

As  an  excuse  in  malicious  prosecution,  1196,  1198, 

AGENT, 

Conversion  by,  488,  490,  523. 
Trespass  by,  31,  91,  94,  97. 

AIR, 

Passage  through,  whether  a  trespass  to  owner  of  subjacent  land,  111,  112 
note. 

ANIMALS, 

Killing  of,  when  excusable,  197,  198,  199,  200,  402. 
Liability  for  damage  caused  by. 

Of  owner  with  knowledge,  768,  770,  772,  774. 

In  trespass,  33,  34  note.  35  note,  108. 
When  subject  matter  of  c<iuversion,  447. 
As  a  nuisance,  200,  358,  359  note. 

APPRENTICE, 

Discipline  of,  266,  267. 

Hepb.Tobts  (1443) 


1444  INDEX 

[The  figures  refer  to  pages] 

ARREST, 

Battery,  distiniriiished  from,  241. 
I'arties  liable  in  trespass,  245, 
I'riuia  facie  cause  in,  elements  of: 
In  general,  100-102. 

Contact,  whether  essential  to  an  arrest,  89  note. 
Contact,  whether  suflicient  if  not  submitted  to,  101. 
Submission  to  show  of  authority,  whether  suthcient  as  an  arrest,  101, 

102,  246. 
Sunnuous,  distinguished  from  arrest,  100. 

Worils  alone,  whether  suthcient  as  an  arrest,  89  note,  100,  102. 
Prima  fa cie_ excuses  in: 
Under  judicial  process. 
In  general,  231-241. 
In  special : 

Arrest  under  unconstitutional  statute,  235,  236,  238,  240,  241. 
Judicial  officer,  when  liable;  233. 
Lack  of  jurisdiction,  231,  232,  233,  236. 
Complaining  witness,  when  liable,  236. 
Mistake  as  to  person  arrested,  232. 
Warrant  not  in  possession  of  arresting  officer,  238. 
Warrant  not  produced  in  evidence  by  defendant,  240. 
Without  warrant : 
xVrrest  on  view, 

JMisdemeanor,  in  general,  242,  243. 
Breach  of  the  peace,  247,  251,  253. 
Felony,  257. 
Arrest  on  suspicion, 

Misdemeanor,  in  general,  245. 
Breach  of  the  peace,  247,  252. 
Felony,  257,  259,   261. 
When  bystander  may  give  in  charge,  250,  251,  258. 

ASl'ORTATION, 

As  a  form  of  trespass,  116,  117,  118,  120. 
As  a  form  of  trover  and  conversion,  475. 

ASSAULT, 

Battery  distinguished  from,  47,  55. 
Essentials  in: 

Act  of  violence. 

When  sufficient,  47,  48,  194. 
When  insufficient,  40  and  note,  52. 
Actual  damage,  whether  essential,  28,  47,  48, 
Contract,  whether  essential,  28,  47,  48. 
Intent  to  harm,  whether  essential,  51. 

Threat  of  violence,  whether  sufficient  per  se,  51,  53  note,  193. 
Justilicalion  or  excuse,  see  Battery. 
Pleading  an  assault,  what  facts  required,  54  and  note. 

ASSUMPSIT, 

Histoiical  relation  of,  to  negligence,  902,  note. 

ASSUMPTION  OF  RISK, 

As  a  defense,  in  general,  146  note. 

In  negligence,  1114-1143. 

In  trespass,  146-155,  160,  164  note. 

.VTTRACTIVE  NUISANCE, 

Doctrine  of,  995,  999,  1001  note,  1002,  1006,  1009. 

AUTOMOBILE, 

Unlicen.sed,  whether  a  trespasser  on  public  highway,  986. 

BALLOON, 

Passing  over  land,  whether  a  trespass,  111. 


INDEX  1445 

[The  figures  refer  to  pages] 

BATTERY, 

Assault  distinsrviished  from,  47,  55. 
Defiuition  of.  Go. 

Negligence  distinguished  from,  63. 
Parties  liable,  56,  61,  71,  72  note. 
Prima  facie  cause,  elements  of: 
In  general,  55-79. 
Special  features  considered: 

Accidental  impact,  31,  5G,  64,  68,  71,  74. 
Actual  damage,  28. 
Anger,  whether  essential,  148. 
Defendant's  act  of  force,  legal  effect  if 
Done  without  carelessness,  68. 
Done  for  a  lawful  purpose,  68. 
Done  in  sport,  76. 

Done  with  good  intention,  73,  77,  78. 
Done  through  another,  31,  56,  59  note,  71. 
Impact  on  plaintiff,  legal  effect  if 
Not  immediate,  .55,  60,  61. 

Occurring  without  intentional  act  by  defendant,  29,  62,  64,  67  note. 
Unintended  by  defendant  but  occurring  from  his  intentional  act, 

31,  56,  71,  74. 
Occurring    through    instinctive    act    of    another    unintentionally 
caused  by  defendant's  act  of  force,  56,  59  note. 
Justification  or  excuse  in  battery. 
Forms  of,  considered: 

Accident,  31,  156,  158.  160.  164  note,  165. 

Assumption  of  risk.  146,  148,  149,  151  note,  152,  153,  160,  164  note. 
Consent,  in  general,  135,  137,  138,  145. 
Implied  consent,  141  note. 
Unlawful  consent,  142,  143.  144  note. 
Defense  of  the  person.  172.  190,  191  and  note,  192,  193,  195. 
Defense  of  property,  182,  202,  204,  208,  216. 
Mistake.  172,  175. 
How  shown,  126,  1.30.  131,  205. 
Mediate  act.  whether  battery  legally  possible  through,  55,  56,  60,  61. 
Negligence,  distinguished  from  battery,  63. 
Passive  act,  whether  battery  legally  possible  through,  62. 

BLAMEWORTHINESS, 

As  a  test  in  tort,  4,  5  and  note,  28,  31,  36,  68,  78,  155,  156,  159,  160,  164, 
169,  170,  171,  185,  246,  591,  611. 

BOYCOTT. 

Use  of  the  term,  1359. 

Primarj^  boycott,  1428. 

Secondary  boycott,  1429,  1432. 
Prima  facie  liability  for,  1258,  1259. 
When  excusable,  1428,  1429. 
When  not  excusable,  1429,  1434,  1437,  1438,  1439  note. 

BREACH  OF  THE  PEACE, 

When  arrest  for,  is  excusable,  247,  251,  252,  253. 

CHASTISEMENT, 

See  Discipline. 

CIVIL  ACTION, 

Malicious  institution  of,  whether  a  tort,  1194,  1195  note. 

COMMENT, 

See  Fair  Comment. 

COMPARATIVE  NEGLIGENCE, 
Doctrine  of,  1112  note. 


1446  INDEX 

[The  figures  refer  to  pages] 

COMPETITION, 

As  a  justitication  for  inteutional  harm,  1310-1354. 

CONSENT, 

As  a  justification,  in  general,  132. 
As  a  justification  in  trespass. 

Valid  consent,  133,  134,  145. 

Invalid  consent,  142,  143,  144  note. 

Implied  consent,  141  note. 

CONSPIRACY, 

As  a  tort,  1269,  1273,  1282,  1311,  1325,  134,1,  1362,  1369,  1873,  1385. 

CONTRACT, 

Inducing  breach  of,  as  a  tort,  1237,  1266,  1287,  1292,  1309,  1329,  1338. 
Inducing  not  to  enter  into,  as  a  tort,  1280,  1285,  1337. 

CONTRIBUTORY   FAULT, 

'  Assumption  of  risk,  146-155.  160,  164  note,  1114-1143. 
Contributory  negligence,  1096-1113. 

Admiralty  rule,  as  to,  1113,  1114  note. 
Common  law  doctrine, 
In  general,  1096-1114. 
Rise  of,  1097  note. 
Battery,  whether  doctrine  of  contributory  negligence  applies  to,  148, 

149  note. 
Causal  relation  in,  1100,  1103. 
Comparative  negligence  distinguished,  1112. 
Nuisance,  whether  doctrine  of  contributory  negligence  applies  in,  347 

note. 
Plaintiff's  prima  facie  case,  whether  freedom  from  contributory  neg- 
ligence is  part  of,  969-981. 
Wilful  injun',   whether   doctrine  of  contributory  negligence  applies 
to,  1107. 
And  see  Imputed  Negligence ;    Last  Clear  Chance. 

CORPORATIONS, 

Principle  of  liability  in  tort,  96. 

CULPABILITY, 

As  a  test  in  tort,  see  Blameworthiness. 

DAMAGE, 

See  Actual  Damage. 

DANGEROUS  THINGS, 

Liability  for  escape  of,  779-799. 

DECEIT, 

Base  affirmation,  whether  sutficient,  1213. 
Elements  of  the  cause,  1220. 
False  statement. 

Distinguished  from  deceit,  1214,  1215,  1219. 
Fraud, 

Nature  of  in  deceit,  1224. 
Misrepresentation  in 

Nature  of,  1215,  1219. 
Motive, 

Effect  of,  1224. 
Naked  lie. 

Distinguished  from  deceit,  1215. 
Prima  facie  cause  in  deceit,  elements  ot: 
In  general,  1215,  1219,  1224. 
In  special,  as  respects 

Acting  on  the  misrepresentation,  1214. 
Actual  damage,  1215. 
Collusion,  1217. 


INDEX  1447 

[The  figures  refer  to  pages] 

DECEIT— Continued, 

Prima  facie  cause  in  deceit,  elements  of — Continued: 
In  special,  as  respects — Continued 

Intent,  that  plaintiff  act  on  misrepresentation,  1215. 
Knowledge  of  the  falsehood,  1217. 
Lack  of  care  in  making  statement  1225. 
Reliance  on  the  representation,  1214. 
Prima  facie  justification  in  deceit: 
In  general.  1214,  1219. 

Assertion  without  knowledge,  effect,  1218,  1219. 
Honest  belief  in  truth  of  assertion,  effect,  1224. 
Motive,  effect  of,  1224. 
DEFAMATION, 
Action  for. 

In  the  early  local  courts,  556,  557. 
In  the  ecclesiastical  courts,  555,  556,  557,  558. 
In  the  king's  courts,  5.55,  556,  557,  559  note. 
In  the  star  chamber,  557,  559. 
Actual  damage,  importance  of. 
In  libel,  6.38-641. 
In  slander,  574-582. 
Colloquium,  office  of,  648. 

Construction  of  the  language  used,  see  Language  or  Representation. 
Disease,  false  charge  of.  whether  defamatory.  604. 
Insanity,  false  charge  of.  whether  defamatory,  564. 
Ironical  statement,  when  defamatory,  597. 
Judicial  proceedings,  false  statement  in.  when  defamatory,  660,  662,  663, 

665,  666  note. 
Language  or  representation,  test  of  its  meaning  in  defamation, 
In  general,  642,  645,  note,  646,  648  note. 
In  special. 

Apparently  innocent  statement,  597. 
Ironical  statement,  597. 
Laudatory  statement,  595. 
Colloquium,  office  of,  648. 
Contest,  effect  of,  645. 

In  mitiori  sensu,  doctrine  of,  644,  645  note. 
Innuendo,  effect  of,  647. 
Prevailing  rule  of  construction,  645  note. 
Laudatory  statement,  when  defamatory,  595. 

Legislative  proceedings,  false  statement  in,  when  defamatory,  646,  648. 
Malice, 

As  part  of  plaintiff's  prima  facie  cause,  see  Prima  facie  cause,  ele- 
ments of. 
As  a  factor  in  plaintiff's  reply,  738,  739  note,  740,  741,  750,  754,  756, 
759. 
Malicious  falsehood,  distinguished  from  defamation,  599. 
Mercantile  agency,  communications  by,  whether  privileged,  707,  711  note. 
Moving  pictures,  defamation  by  means  of,  601. 
Nuisance,  distinguished  from  defamation,  343. 
Officious  publication,  effect  of,  702. 
Prima  facie  cause  in  defamation,  elements  of: 
Defamatory  statement, 

TMiat  is  defamatory,  584,  586,  589,  591,  5^7,  601,  602,  606. 
What  is  not  defamatory,  although  harmful,  559,  595.  599,  600  note. 
Non-opprobrioiLS  statement,  whether  defamatory,  603. 
Malice,  whether  essential. 

Malice  in  fact  distinguished  from  malice  in  law,  635,  note,  636, 

637. 
Form  of  pleading,  634  note,  635  note. 
Lial)ility  without  actual  malice,  591,  606,  611. 
Origin  of  doctrine  of  malice  in  defamation,  635  note. 


1448  INDEX 

[The  figures  refer  to  pages] 

DEFAMATION— Continued, 

Prima  facie  cause  in  defamation,  elements  of — Continued: 
Of  and  conceniins  plaintiff. 
In  general,  607-618. 
Accidental  use  of  plaintiff's  name,  611. 
Innuendo,  whether  sufficient,  COS. 

Picture  of  plaintiff,  under  name  of  author,  591,  609,  610  note. 
Publication,  019-633. 
Importance  of. 

In  tortious  defamation.  619,  620,  625,  626. 
In  criminal  libel,  621  note. 
Forms  of,  considered, 

Circiilation  of  book,  630. 

Circulation  of  newspaper,  631  note,  632,  note,  633  note. 
Decoy  publication,  622  note. 
Whether  there  is  a  publication  if 

Statement  made  to  plaintiff  alone,  619,  620. 

Statement  to  plaintiff  reaches  third  person  in  expected  course, 

623,  624  note. 
Statement  made  to  defendant's  stenographer,  627. 
Statement  made  to  plaintiff's  agent,  622  note. 
Statement  made  to  plaintiff's  clerk,  623,  624  note. 
Statement  made  to  plaintift''s  wife.  621. 
Statement  made  in  foreign  tongue,  625. 
Statement  made  in  native  tongue,  626. 
Statement  made  in  public  place,  620. 
Prima  facie  justification  in  defamation: 
Defendant's  case  in: 

General  is.sue,  whether  justification  may  be  shown  under,  678. 
Kinds  of  justification  considered: 

Defamation  incited  by  plaintiff,  721,  724. 
Fair  comment,  728-738. 
I'rivilege,  658-717. 
Repetition  of  the  statement, 
In  general 

On  stated  authority,  718,  720  note. 
On  plaintiff's  own  statement,  721. 
Truth  of  the  charge,  649-658. 
Unlawful  business  by  plaintiff',  725,  727. 
Plaintiff's  avoidance  of  prima  facie  justification, 
Burden  of  proof,  754. 
Kinds  of  avoidance  considered : 

Excess,  741,  742  note,  743,  744,  746,  747. 
Malice,  738,  739,  note,  740,  741,  750,  754,  756,  759. 
In  joint  tort  feasor,  756. 
Privilege: 

Absolute  privilege,  6.59-676. 

Meaning  of  Ihe  term,  6.59  note. 
"VN^hether  statement  absolutely  privileged  if 
Made  by  counsel,  662-065. 
Statement  pertinent,  662. 
Statement  not  pertinent,  663,  665,  666  note. 
Made. by  a  judge,  660. 
Made  in  legislature,  672  note,  673  note. 
Made  by  a  party  litigant,  660,  note. 
Made  by  a  prosecuting  witness,  059. 
Made  by  witness  in  a  civil  suit,  6()7-676. 

Testimony  relevant.  6(!7,  669,  note,  673. 
Testimony  irrelevant,  669  note,  671,  672  note. 
Made  in  the  preliminary  statement,  676. 


INDEX  1449 

[The  figures  refer  to  pages] 

DEFAINIATION— Continued, 

Privilege — Continued : 

Conditional  privilege : 

Meaning  of  the  term,  678  note. 
Forms  of,  considered,  in 

Communications  in  pursuance  of  a  duty : 
Statement  requested,  693,  705,  707. 

Statement  not  requested,  693,  696,  (i99,  702,  703  note,  706. 
Conmiunications  in  protection  of  private  interest: 
Common  interest,  712,  713,  714  note,  716. 
Individual  interest,  715,  716. 
Reports  in  public  interest: 

Of  legislative  proceedings,  679. 
Of  judicial  proceedings,  678,  683,  684. 
Of  quasi  judicial  proceedings,  6S6. 
Of  a  pleading  in  a  suit,  690. 
Of  a  public  meeting,  688. 
Of  a  stockholders'  meeting,  684. 
Qualified  privilege: 

Meaning  of  the  term,  678  note. 
See  conditional  privilege,  ante. 
Truth  of  the  charge. 

Characteristics  as  a  defense,  in  general,  649. 
Belief  in  the  charge,  as  made,  whether  sufficient,  651. 
Extent  of  this  justification,  651,  652,  653. 
Good  intent,  whether  essential,  650,  657  note. 
Pardon,  efCect  of  a  showing  of,  655,  656. 
Special  plea  of  the  tiaith,  whether  essential,  643,  651. 
Strictness  of  proof,  required,  652. 
Wrongful  purpose  in  plaintiff,  false  assertion  of,  whether  defamatory,  559. 

DEFENDANT'S  WELFARE, 

As  a  defense  against  a  charge  of  intentional  harm,  1253. 

DEFENSE  OF  THE  PERSON, 

As  a  justification  in  trespass,  190-196. 
Defense  of  others,   192,   195. 
Self  defense,  49,  131,  190,  191,  192,  193,  194. 

DEFENSE  OF  PERSONAL  PROPERTY, 
As  a  justification  in  trespass : 

In  general,  196,  197,  202,  204,  205  note. 
In  the  case  of  a  nuisance,  200. 
Limits  of  the  doctrine,  198,  199,  204. 

DEFENSE  OF  REAL  PROPERTY, 
As  a  justification  in  trespass : 
In  general.  207-230. 

Defendant's  possession,  what  suflScient,  207,  210,  214,  215. 
Limits  of  the  doctrine,  210,  212,  217,  218,  220. 
Forcible  entry,  as  a  form  of,  221-228. 
Request  to  leave,  when  necessary,  209. 

DEODAND, 

Its  analogy  in  torts,  155  note. 

DESTRUCTION, 

Of  a  chattel,  as  a  form  of  trespass,  115  note. 

DETINUE, 

Nature  of  the  cause,  in  general,  295,  296,  297. 

Its  relation  to  debt,  294. 

Its  relation  to  replevin,  295. 

As  a  real  action.  299. 

By  a  loser  against  a  finder,  298,  299  note,  300. 


1450  INDEX 

[The  figures  refer  to  pages] 

DETINUE— Continued, 

On  inability  to  i-edeliver,  301. 
For  a  sum  of  money,  312,  314  note. 
Plaintiff's  title,  303. 
Limits  of  the  action,  305,  312,  315. 

DISCIPLINE, 

As  a  justification  In  trespass,  266-274. 
Scope  of  the  rule,  in  general,  266. 

Discipline  by  husband,  266,  267  note. 

Discipline  by  schoolmaster,  267,  269. 

Discipline  by  shipmaster,  270. 
Limits  of  the  defense,  266,  269,  270,  271, 
Excess  of  discipline,  272. 

Replication  of  immoderate  castigavlt,  266. 

DISPARAGEMENT  OF  GOODS, 
Elements  of  the  cause,  1209. 
Puffing  advertisement  distinguished  from,  1212. 

DISTRESS,  As  a  justification  in  trespass,  281,  282. 
DURESS,  As  a  justification  in  trespass,  29,  30. 

ECONOMIC  ADVANCEMENT. 

As  justification  for  intentional  harm,  1253. 

EMERGENCY,  As  a  justification  in  trespass,  139,  141  note,  187,  279  note. 

ENT^ICING  AWAY, 

Of  servant,  wife,  child,  533-554. 

ENTRY, 

As  a  cause  in  trespass,  28. 

Forms  of,  107,  108,  111,  112,  113,  287. 

EQUITABLE  RELIEF, 

When  granted  in  torts,  16,  17. 

EXECUTION,  LEVY  OF, 

As  a  cause  in  conversion,  4S0,  481. 
As  a  cause  in  trespass,  43,  116,  481. 

EXTRA-HAZARDOUS  USE, 
Doctrine  of,  776-799. 

FAIR  COMMENT, 

Doctrme  of,  728-738. 

FALSEHOOD, 

Deceit  distinguished  from,  1215,  1219. 

FALSE  IMPRISONMENT, 

Act  of  force,  whether  essential,  84,  85,  88,  89  note,  90. 
Actual  damage,  whether  essential,  91. 
Contact,  whether  essential,  84,  90,  SO  note. 
Consciousness  of  restraint,  whether  essential,  82. 

Tx»ss  of  freedom  of  locomotion,  distinguished  from  imprisonment,  81  note. 
Malicious  prosecution,  distinguished  from  imprisoumeut,  103,  230. 
Parties  liable,  233,  236,  245,  253. 
Pleading  imprisonment,  what  sufficient,  99. 

Police  officer,  whether  he  may  arrest  on  view  for  violation  of  city  ordi- 
nance, 242,  243. 
Prima  facie  cause,  elements  considered: 

In  general,  80-100. 

Actual  damage,  whether  essential,  90,  91. 

Consciousness  of  the  restraint,  whether  essential,  82. 

Restraint  in  all  directions,  whether  essential,  80,  si  note. 

Rwstrainiug  act,  forms  of  the,  84,  87,  88,  90,  91,  92,  94. 


INDEX  1451 

[The  figures  refer  to  pages] 

FALSE  IMPRISONMENT— Continued, 

Prima  facie  justification  or  excuse,  forms  of: 
Arrest  under  judicial  process, 

Justification  Lnsufiicient,  233-241. 
Justification  sufficient,  231. 
Arrest  without  warrant, 

Justification  insufficient,  242,  243,  245,  252,  261. 
Justification  sufficient,  247,  251,  253,  257,  259. 
Restraining  act,  the, 

Act  of  force,  whether  essential,  84,  85,  88,  89  note,  90. 
Continued  restraint,  as  a  fresh  cause,  97. 
Corporal  touch,  whether  essential,  84,  90,  89  note,  241. 
Distinguished  from  refusal  to  act,  84,  92. 
Extent  of,  as  essential  to  imprisonment,  80. 
Forms  of,  in  imprisonment,  87,  90,  91,  94,  100,  102,  241. 
Partial  restraint,  whether  imprisonment,  80. 
Rough  shadowing,  as  imprisonment.  90,  and  note. 
Words  alone,  whether  sufficient.  89  note,  100,  102,  241. 
Refusal  to  act,  whether  imprisonment,  84,  92. 

FELONY. 

Arrest  on  view  of.  257. 

Arrest  on  suspicion  of,  257,  259,  261. 

FENCE, 

See  Spite  Fence. 

FIRE, 

Destruction  of  property  to  prevent  its  spread. 
Nature  of  liability  for  its  escape,  764-767,  765  note. 

FOR"CIBLE  ENTRY. 

As  an  excuse  in  trespass,  207,  221,  223  note,  224,  226,  228.  229. 

FOREIGN  SFBSTANCES, 

Liability  for  escape  of,  from  defendant's  land,  see  Extra-Hazardous  Use. 

FRAUD, 

Nature  of  in  deceit,  1224. 

FRESH  PURSUIT, 

Importance  of  as  a  defense  in  trespass,  203  note.  204. 

HIGHWAY, 

Impassable,  when  an  excuse  in  trespass,  178,  180  note. 

IMPRISONMENT, 

See  False  Imprisonment. 

IMPUTED  NEGLIGENCE, 

Doctrine  of,  1144-1150. 

INDUCING  BREACH  OF  CONTRACT, 

As  a  tort,  1237,  1266,  1287,  1292,  1309,  1329,  1338. 

INEVITABLE  ACCIDENT, 

As  a  justification  in  trespass,  68,  155,  and  note,  156,  157  note,  158,  159,  160, 

164,  165. 
Burden  of  proof  as  to,  167. 

INFANT, 

Whether  liable  in  tort,  10,  56,  76. 

INJUNCTION, 

As  a  tort  remedy,  19. 

INSANE  PERSON, 

Whether  liable  in  tort,  10,  156. 

INSULT, 

Whether  an  excuse  in  battery,  193. 


1452  INDEX 

[The  figures  refer  to  pages] 

INTENTIONAL  ACT, 

Its  importance  in  trespass,  29,  30,  35. 
Different  forms  in  trespass,  31,  33. 

INTENTIONAL  HARM  THROUGH  USE  OF  PROPERTY  OR  INFLUENCE, 
When  a  prima  facie  tort,  1227,  1234.  1237,  1246,  1251,  1258,  1259,  12G0. 
Wlien  not  a  tort,  1229,  1232  note,  1236,  1328. 
When  excusable: 

In  general,  1295,  1297  note. 

Insufficient  excuse,  1274,  1280,  1285,  1291,  1298,  1302,  1306. 
^^ufiicient  excuse,  1261,  1295,  1297  note. 
In  trade  or  business  competition. 

Insufficient  excuse,  1317,  1321,  1.332,  1335,  1340,  1344. 
Sufficient  excuse.  1310,  1314  note,  1335,  1340. 
In  labor  contests;   strikes,  lockouts,  boycotts  in  general,  1355. 
Insufficient  excuse, 

I'njustifiable  boycott,  1427,  1433,  1436. 
Unjustifiable  strike,  1367,  1368,  1386,  1398,  1406,  1415. 
Sufficient  excuse. 

Justifiable  boycott,  1427. 
Justifiable  strike,  1362,  1377,  1386. 
JUDGE, 

Defamatory  statements  by,  whether  privileged,  660,  661  note. 

JUDICIAL  PROCEEDINGS, 

Defamatory  statements  in,  whether  privileged,  659,  662,  663,  664  note,  667, 
671,  672  note. 

JUDICIAL  PROCESS, 

Arrest  under,  as  a  justification  in  trespass,  231. 

JURISDICTION, 

In  arrest  under  judicial  process,  2.33,  235,  236. 
Of  the  king's  courts  in  trespass,  24,  25,  20,  27. 

JUSTIFICATION  OR  EXCUSE,  IN  TORT  ACTIONS, 

Its  importance  in  relation  to  a  prima  facie  cause,  4  note,  122. 
In  actions  for  trespass. 
In  general,  122-131. 
Forms  of,  considered: 
Accident,  155-167. 
Arrest,  231-265. 

Assumption  of  risk,  146-154,  160,  164  notew 
Defense  of  the  person,  190-195. 
Defense  of  personal  property,  196-206. 
Defense  of  i*eal  property,  207-230. 
Discipline,  266-274. 
Leave  and  license,  132-145. 
Mistake,  16S-175. 
Necessity,  175-189. 
Instances  of  failure  to  show,  123,  124,  126,  127,  128,  129,  130,  131. 
In  actions  for  negligence. 

Whether  permissible  under  "not  guilty"  in  trespass  on  the  case,  494. 
Forms  of,  considered: 
Accident,  1092-1095. 
Assumption  of  risk,  1114-1143. 
Imputed  negligence,  1144-11.50. 
Contributory  negligence,  969-981,  1096-1113. 
In  actions  for  intentional  harm, 

When  justification  needed,  in  general,  1258-1309. 
Forms  of,  considered: 

In  competition  in  Itusiness  or  trade,  1310-1.354. 
In  contests  between  capital  and  labor,  1.355-1441. 

LABOURERS,   STATUTE  OF, 

Applicability  of,  In  actions  for  inducing  breach  of  contract  of  service,  1243, 


INDEX  1453 

[The  figures  refer  to  pages] 

LAND, 

Owner's  acts  at  peril  in  use  of,  77G. 

Use  of  for  tlie  intentional  harm  of  another,  1229,  1298. 

LANGUAGE, 

Construction  of,  in  defamation,  642,  644,  645  note,  646,  648  note, 

LAST  CLEAR  CHANCE, 
Doctrine  of,  1151-1181. 

LEAVE   AND   LICENSE, 

As  a  justification  in  trespass,  132-146. 

Implied  license,  133,  134,  1.S5  note,  141  note. 
Limits  of  the  doctrine,  137,  138,  141,  note,  142,  143. 
Effect  on  riglit  of  action  for  seduction,  145. 

LEGAL  CALSE, 

See  Proximate  Cause. 

LEGISLATIVE  PROCEEDINGS, 

Reports  of,  how  far  privileged  in  defamation,  679. 

Statements  in,  how  far  privileged  in  defamation,  672  note,  673  note. 

LIBEL, 

Action  for : 

In  courts  of  law,  583,  584. 

In  ecclesiastical  courts,  556,  557. 

In  star  chamber,  557. 
Actual  damage  in,  638-641. 
Distinguished  from  oral  defamation : 

Accidental  nature  of  distinction,  557. 

On  authority,  575,  584,  586,  604. 
Injunction, 

Whether  it  will  be  granted  to  prevent  libel,  1210. 
Test  in,  584,  586,  589,  591. 

See  Defamation. 

LOSS  OF  SERVICE, 

Employing  servant  under  contract  with  another,  537. 
Enticing  servant  away. 

In  general.  533,  .535,  5-39. 
Limits  of  the  principle,  541,  545. 
Whether  malice  essential,  538. 

And  see  Seduction  and  Loss  of  Service. 

MALICE, 

Use  of  the  term,  1182,  1183. 

Malice  in  fact,  635,  636,  637. 
Malice  in  law,  635,  636,  637. 
Presumption  from  intentional  infliction  of  temporal  damage,  1258,  1259, 

1260  and  note. 
Individual  torts  turning  on  malice,  1183-1257. 

Justitication  or  excuse,  in  actions  for  the  malicious  use  of  property  or 
inliuence,  1258-1441. 

MALICIOUS   ABUSE   OF  PROCESS, 

DistinguLshed  from 

Action  on  a  false  surmise,  1200. 
Action  for  malicious  arrest,  1202. 
Action  for  malicious  prosecution,  1203. 
Vexatious  suit,  1200. 
Prima  facie  cause  in,  elements  of: 
In  general,  1202. 
In  special,  as  respects 

A  showing  of  termination  of  defendant's  suit,  1201,  1202. 

A  showing  of  want  of  probable  cause,  1202. 

A  showing  of  malice,  1202. 


1454  INDEX 

[The  figures  refer  to  pages] 

MALICIOUS  APPEALS,  STATUTE  OF, 

Its  relation  to  action  for  malicious  prosecution,  1183, 

MALICIOUS  ARREST, 

Distinguished  from  malicious  abuse  of  process,  1202. 

MALICIOUS  FALSEHOOD, 

Distinguished  from  defamation,  1203. 

Principle  of,  1203. 

Different  forms  of,  1203-1212. 

MALICIOUS  INSTITUTION  OF  CIVIL  ACTION, 
Whether  a  tort,  1194,  1195  note. 

MALICIOUS  PROSECUTION, 
Action  for,  origin  of,  1184. 
Imprisonment,  distinguished,  103,  105  note. 

Malice  in.  whether  distinct  from  want  of  probable  cause,  1187,  1189. 
Malicious  institution  of  civil  action,  distinguished,  1194,  1195. 
Prima  facie  cause  in,  elements  of: 
In  general,  1184-1195. 
In  especial,  whether  essential  to  show : 
Actual  damage,   1185. 
Malice  in  former  suit,  1185,  1191. 
Termination  of  prosecution,  1184. 
Want  of  probable  cause,  1185,  1187,  1191,  1196. 
Justification  or  excuse  in. 
In  general,  1196-1200. 

Advice  of  counsel,  as  an  excuse,  1196,  1198. 
Plaintiff  guilty  of  the  offense. 
In  general,  1199. 
If  fact  unknown  to  defendant  at  time  of  prosecution,  1199. 

MALICIOUS  USE  OF  PROPERTY  OR  INFLUENCE, 
Prima  facie  cause  in,  1227-1257. 
Prima  facie  justification  in,  1258-1441. 

MISTAKE, 

Accident  distinguished  from,  168. 

As  an  excuse  in  trespass,  169,  170,  171,  175. 

Exceptions  to  the  rule,  172,  259. 

MODERATE  CASTIOAYIT, 

Use  of  the  plea  in  justification  of  a  battery,  273. 
Replication  of  immoderate  castigavit,  266. 

MOLLITER  MANUS  IMPOSUIT, 

Use  of  the  plea  in  showing  defense  of  property,  207,  208. 

MOTIVE, 

Distinguished  from  intent,  1418  note. 
Effect  of  a  bad  motive,  1247,  1252,  1256. 

NECESSITY, 

Actual,  distinguished  from  supposed  necessity,  29,  30  note,  185,  199. 
As  a  justification  in  trespass,  175-190. 

NEGLIGENCE, 

Meaning  of  the  term,  902. 

Origin  of  the  doctrine,  901,  902,  903. 

Action  for,  origin  of,  902,  903. 

Accident  as  an  excuse  in,  1092-1095. 

Actual  damage  as  an  element  in.  963-908. 

Assumpsit,  relation  of  to,  902  note. 

Assumption  of  risk,  as  a  defence,  1114-1143. 

Comparative  negligence,  doctrine  of,  1112  note. 


INDEX  14:55 

[The  figures  refer  to  pages] 

NEGLIGENCE— Coutinued, 

Conti-aetor,  negligence  by,  whether  liable  to  third  persons: 

The  rale,  1043.  1047.  1067,  1072.  1075. 

Exceptions,  1051,  1052,  1055,  1063,  1068,  1077,  1083. 
Contributory  negligence,  see  Contributory  Fault. 
Degrees  of  care  in  negligence,  933. 
Duty  to  use  care,  as  an  element  in  negligence,  916-1043. 

In  relation  to  contractual  obligation.  1043-1083. 

In  relation  to  the  ownership  or  possession  of  property,  9S2  1042. 

In  the  absence  of  contractual  and  property  obligation,  1084-1091. 
Gross  negligence, 

L'se  of  the  term.  934,  935,  938,  942,  945. 
Humanitax-ian  doctrine. 

Last  clear  chance,  1151-1181. 

Visitor  in  danger,  1087. 
Imputed  negligence  as  a  defense,  1144-1150. 
Intentional  injury,  distinguished  from  negligence,  912,  915. 
Invitee,  duty  of  care  towards  an,  1026-1042. 
Last  clear  chance. 

Doctrine  of,  1151-1181. 
Licensee,  duty  of  care  towards  a,  1014-1025. 
Meaning  of  the  word  "negligence,"  902. 
Nuisance,  distinguished  from  negligence,  339,  341  note. 
Ordinary  negligence, 

L'se  of  the  term,  934.  935,  937. 
Prima  faoie  case  in  negligence, 

Elements  of,  916-1042. 
Prima  facie  justification  or  excuse  in  negligence, 

Doctrine  of,  1092-1150. 
Third  person, 

Contractor's  duty  of  care  towards,  1043-1083. 
Tort,  whether  negligence  is  a,  904. 

Trespass,  distinguished  from  negligence,  905,  906,  907,  909,  911. 
Trespasser,  duty  of  care  towards  a,  982-1013. 
Turntable  theory,  995,  999,  1002,  1006,  1009. 
Wilful  injury,  distinguished  from  negligence,  912,  915. 

NUISANCE, 

Abatement  of.  200,  396.  398,  399. 

Action  for,  origin  of,  318. 

Actual  damage  as  an.  essential  in  nuisance,  385,  386,  388  note,  391,  393, 

395  note. 
Annoyance,  kinds  and  degrees  of.  in  general,  373-382. 

Lists  of  specific  nuisances,  373  note. 

Fear  of  ill  health,  376,  380  note. 

Noise,  381,  382. 

Physical  discomfort,  without  ill  health,  376. 

Smells,  376  and  note. 
Assise  of  nuisance,  396. 

Contributory  negligence,  whether  doctrine  of,  applies  in  nuisance,  347  note. 
Defamation,  distinguished  from  nuisance,  343. 
Definition  of. 

At  common  law,  318,  346,  375,  402. 

Statutory,  343,  375,  402. 
Injunction,  as  a  remedy  in  nuisance, 

Granted  when,  401,  402. 

Refused  when,  403. 
Negligence  distinguished  from  nuisance,  339,  341  note* 
Pleading  in  nuisance. 

Forms  of  declaration,  344  note. 

Whether  word  "nuisance"  is  essential,  345. 

Whether  specific  damage  must  appear  affirmatively,  347  and  note. 


1456  INDEX 

[Ttie  figures  refer  to  pages] 

NUISANCE— Continued, 

Prima  facie  cause  in  nuisance: 
In  general,  344-395. 
Plaintiff's  interest,  nature  of,  34S-351: 

Legal  estate  in  the  land,  essential  to  plaintiff,  349,  353  note. 
Legal  estate  in  tlie  land,  not  essential  to  plaintiff,  351,  353  note. 
Defendant's  act  in  nuisance, 

Nature  and  forms  of,  354-372. 

Annoyance  without  direct  act  hy  defendant,  whether  a  nuisance: 
Natural  causes  permitted  by  defendant,  354. 
Mediate  act  by  defendant,  356. 

Act  of  animal  owned  by  defendant,  200,  358,  359  note. 
Act  of  defendant's  tenant,  362,  365. 
Act  of  defendant's  worlcmen,  against  his  will,  367. 
Sujiporting  an  existing  nuisance,  359,  361,  362. 
Adventitious  advantage  from  existing  nuisance,  360. 
Actual  damage. 

Essential  to  plaintiff's  case,  385,  393,  395  note. 
Not  essential,  386,  388  note,  391. 
Effect  of,  as  respects  statute  of  limitations,  388. 
Prima  facie  justification  in  nuisance: 

Admissibility  of,  under  plea  of  not  guilty,  406  note. 
Effect  of  showing  certain  facts,  considered, 
That  i>laintiff  was  careless,  406. 
That  plaintiff"  came  to  the  nuisance,  414,  415. 
Continuance,  without  notice,  of  nuisance  created  by  others,  359, 

361,  362,  430. 
Independent  acts  co-operating  to  cause  the  nuisance,  406,  408. 
Lawful  business  in  convenient  place,  416. 
License  by  legislative  authority.  4.33.  435. 
Local  standard  of  comfort,  421,  424,  428. 
MistalvC  causing  nuisance,  413. 
Public  benefit,  380  note. 
Reasonable  use  of  property,  406. 

Reasonable  care  to  prevent  annoyance,  409,  410  note,  411  note,  412. 
Effect  of  showing  excess  above  local  standard,  429. 
Private  nuisance  distinguished  from  public: 
In  general,  318-333. 
Private  nuisance  although  common  to  many,  321,  324,  326,  328,  332 

note. 
I'ublic  but  not  private.  322,  323  note. 
Test  of  a  private  nuisance,  318,  328. 
Test  of  a  public  nuisance,  326  note,  328, 
Remedies  in  nuisance: 

Abatement,  306,  398,  399. 

Action  for  damages,  399.  » 

Assise  of  nuisance,  396. 
Injunction,  401,  402. 
Special  damage: 

Importance  of,  in  nuisance,  318. 
Instances  of.  321,  324. 
Spite  fence,  distinguished  from  nuisance,  1232. 
Standards  of  comfort  regarded  in, 
Elasticity  of  the  te.st,  429. 
Normal  sensibility,  381. 
Abnormal  sensibility,  382. 
Local  standai'd,  424,  427  note,  428,  429. 
Trespass  distinguished  from  nuisance,  334,  335,  337. 

OPEN  MARKET, 

Prima  facie  violation  of  right  to,  1252,  125G. 


INDEX  1457 

[The  figures  refer  to  pages] 

PARTY  LITIGANT,  ' 

Statements  by,  when  privileged  in  defamation,  664  note,  666  note. 

PERIL, 

Acting  at,  155  note,  156.    See  Extra-Hazardous  Use. 

PER  QUOD  SERVITIUM  AMI  SIT, 

As  a  characteristic  of  certain  torts,  533. 

PICKETING, 

Whether  unlawful,  in  labor  disputes,  1430. 

POLICE  OFFICER, 

Whether  he  may  arrest  on  view  for  violation  of  city  ordinance,  242,  243. 

PRESERVATION  OF  LIFE,  HEALTH,  PROPERTY, 

As  an  excuse  in  trespass,  175,  181,  1S7,  257,  275,  276  note. 

PRIVACY,  Right  of,  610  note. 

PRIVATE  PERSON,  Arrest  by,  247,  251,  252,  257,  261. 

PRIVATE  WAY, 

If  impassable,  whether  an  excuse  for  a  trespass  on  adjoining  property,  180. 

PRIVILEGED  COMMUNICATIONS, 
In  defamation,  658-717. 

PRIZE  FIGHT, 

Whether  consent  to  excuses  the  other,  142. 

PROTECTION  OF  LIFE, 

As  an  excuse  in  trespass,  175,  187,  257. 

PROTECTION  OF  PROPERTY, 
As  an  excuse  in  trespass,  181. 

PROXIMATE  CAUSE, 

Origin  and  use  of  the  term,  800  and  note,  813. 

Anticipation  of  intervenmg  act,  effect  of,  862,  865  note,  866,  869,  870,  874, 

877. 
Anticipation  of  result,  effect  of,  814-838. 
Causal  relation,  importance  of  showing  a, 

As  respects  the  cause  of  action,  S(X),  801-810  note. 
As  respects  the  measure  of  damages,  800. 
"Cause,"  definition  of,  800. 
Co-operative  agencies  and  legal  cause,  883. 
In  general  883,  884,  893. 

Deviation  by  defendant,  co-operating  with  act  of  God,  886,  889. 
Negligence  by  defendant,  co-operating  with  act  of  God,  888,  894. 
Intervening  agency  as  a  test  of  legal  cause, 
Forms  of 

Act  of  animal  intervening,  853. 

Natural  force  intervening,  850. 

Act  of  plaintiff  intervening,  841,  842,  844. 

Act  of  third  person  intervening,  855,  857,  859,  861,  862,  865  note, 

866,  870,  872,  874,  877. 
Illegal  act  intervening,  862,  866,  870,  872,  874. 
Reasonable  anticipation  of  the  intervening  act,  effect  if 

Intervening  act  was   reasonably   to   have  been  anticipated,   862, 

865  note,  866,  874. 
Intervening  act  was  not  reasonably  to  have  been  anticipated,  869, 
870,  874,  877. 
Probability  of  result  ag  a  test  of  legal  cause,  814,  838. 

Plaintiff's  damage  not  probable,  814,  815,  and  note,  817,  822,  825,  828, 

829,  832,  835. 
Plaintia''s  damage  probable,  814. 
PUPIL, 

Discipline  of,  when  justifiable,  266,  267,  2G9. 

Belief  of  guilty,  distinguished  from  reasonable  cause  to  believe,  271. 

Hepb. Torts— 92 


1J:58  INDEX 

[The  figures  refer  to  pages] 

KEASONABLE  CAUSE  TO  BELIEVE, 

As  au  element  in  justification.  109,  271. 
Bona  fide  belief  distingnislied  from,  271. 

RECAPTION  OF  PERSONAL  PROPERTY, 
As  a  justification  in  trespass.  196,  202,  204. 
Limits  of  tlie  defense,  203,  204. 

REGNAL  YEARS, 

Name  of  sovereign  with  date  of  commencement  of  reign, 

^'illiiiui    I October  14,  10B6. 

William    II September  20.  1087. 

Henry    1 Augu.st  5,  1100. 

Stephen December  26,  1135. 

Henry    II December  19,  1154. 

Richard    I September  23,  1189. 

Jolm    May  27,  1199. 

Henry    III October  28,  1216.        ^  ^ 

Edward  I November  20,  1272. 

Edward    II July  8,  1307. 

Edward   III January  25.  1326.       -«C/ 

Richard    II June  22,  1377. 

Henry    1\ September  30,  1399. 

Henry     V March  21,  1413. 

Henry    VI September  1.  1422. 

Edward    IV :March  4,  1461. 

Edward    ^' April  9,  1483. 

Richard     III June  26,  1483. 

Henry  \II August  22,  1485. 

Henry    VIII April  22,  1509. 

Edward    VI January  28,  1547. 

Mary    July  6,  1553. 

Elizabeth    November  17.  1558. 

James    I March  24,  1603. 

Charles   I March  27,  1625. 

The    Commonwealth Jauuary  30,  1649. 

Charles   II January  30,  1649. 

James    II February  6,  1685. 

William   and  Mary February  13,  1689. 

Anne    March  8,  1702. 

George    I August  1,  1714. 

George    II Juno  11,  1727. 

George    III October  25,  1700.       (, v 

George    I\ January  29,  1820. 

William    IV June  26,  1830. 

Victoria     June  20,  1837.  4?  *i 

Edward    VII January  22.  1901. 

George    V May  6,  1910. 

REPLEVIN,- 

Its  relation  to  detinue,  295. 

What  title  sufficient  for  plaintiff.  304. 

Limits  of  the  action,  305,  306,  309. 

REPORTS, 

Of  judicial,  legislative,  and  public  proceedings, 
Whether  privileged  if  defamatory,  678-692. 

RES  IPSA  LOQUITUR, 

Use  of  the  term,  952  note. 

SAFETY  OF  I'LAINTIFF, 

As  an  excuse  in  trespass,  275-279. 
Limits  of  this  defense,  276  note. 


INDEX  1451) 

[The  figures  refer  to  pages] 

SCHOOLMASTER, 

Disciiiline  by,  us  an  excuse  in  battery,  2G7,  269. 

SEDUCTION, 

Woman's  right  of  action  for  her  own  seduction,  145,  534. 

SEDUCTION  AND  LOSS  OF  SERVICE, 

Nature  and  limits  of  tlie  cause,  533,  541,  542,  543,  545,  546. 

Proper  form  of  action  for,  533  note. 

Of  child,  nature  of  parent's  right,  534,  539,  542,  543. 

Of  niece,  wliether  uncle  may  sue.  545. 

Of  servant,  nature  of  master's  right,  533,  534,  535,  537. 

Of  sister,  whether  brother  may  sue,  545. 

SELF  DEFENSE, 

As  a  justification  in  trespass,  172,  190,  191  and  note,  192,  193. 

SELF  HELP, 

Principle  of,  in  torts,  172,  182,  190,  191  and  note.  192,  193,  202,  204,  205 
note,  208,  216,  221,  223  note,  224,  226,  228,  396,  398,  399. 

SLANDER, 

Action  for,  when  permitted  in  courts  of  law,  555,  559,  583. 

Crime,  words  imputing,  as  slander,  559-562. 

Disease,  words  imputing,  as  slander,  564-56.5. 

Disparagement  in  trade,  profession,  or  office,  as  slander,  566-573. 

Distinguished  from  libel,  575. 

Ecclesia.stical  courts,  jurisdiction  in  slander,  556,  557,  558. 

Kinds  of,  recognized  in  courts  of  law,  559-582. 

Slander  per  se,  559-573. 

Slander  through  special  damage,  574-582. 
Special  damage,  slander  through: 

In  general,  574-582. 

What  amounts  to,  575.  577.  581. 

What  not  sufficient,  576,  577,  581,  note,  582. 
See  Defamation. 

SLANDER  OF  TITLE, 

Nature  of  the  tort,  1205,  1207. 

SON  ASSAULT  DEMESNE, 

Use  of  the  plea  in  justification  for  a  trespass,  191  note. 

SPITE  FENCE, 

Whether  a  tort,  1229. 
Distinguished  from  a  nuisance,  1232, 

STATUTES,  TABLE  OF, 

3  Edw.  I.  (Statute  of  Westminster  I),         535. 

6  Edw.  I.  (Statute  of  Gloucester),  c.  9,         190. 

13  Edw.  I.  (Statute  of  Westminster  II),  c.  12,         1183. 

13  Edw.  I.  (Statute  of  Westminster  II),  c.  24,         294. 

23  Edw.  III.  (Statute  of  Labourers),         534. 

5  Rich.  II.  c.  7,        207.  223,  230. 

3  Hen.  VII.  c.  1,         249. 

43  Eliz.  c.  6,         27. 

1  Jac.  I.  c.  12,         560. 

22-23  Car.  II.  c,  9,         47,  55. 

5  «&  6  W.  &  M.  c.  12,         26. 

6  Anne,  c.  31,         765. 

6  Edw.  VII.  c.  47,         1420,  1421. 

STRIKES, 

Principle  of  the  justifiable  strike.  1.3.57,  1362,  1365,  1377,  1386. 
Principle  of  the  unjustifiable  strike,  1274,  1367,  1368,  1398,  1406. 

SUICIDE, 

As  a  proximate  result,  835,  838. 


1460  INDEX 

(The  figures  refer  to  pages] 

"TORT," 

Meaning  of  tlie  word,  1. 
Definitions  of,  16. 
Difficulty  of  defiiiing,  3. 

TRESPASS, 

Act  of,  considered. 

As  an  intentional  act  of  force,  29,  30,  31. 

By  an  animal  in  owner's  absence,  33,  35. 

Til  rough  duress,  29. 

Through  operation  of  a  natural  force,  31. 
Actual  damage. 

Whether  essential,  28,  29,  115  note. 

Unintentional,  whether  a  trespass,  36,  38,  43. 
Characteristics  of,  28-16. 

"Contra  pacem,"  importance  of,  in  trespass,  26. 
Distinguished  from  other  torts, 

Nuisance,  334.  335,  337. 

Trover  and  conversion.  437,  438,  440,  496. 
Forms  of  trespass,  47-121,  280-293. 
Jurisdictional  features  in  trespass,  26-27. 
Justification  of  trespass,  122-279. 
Scope  of  the  word  as  a  term  of  law,  23. 
"Vi  et  annis,"  importance  of,  in  trespass,  23,  25,  27. 

TRESPASS  AB  INITIO, 

Elements  and  forms  of,  280,  282,  284,  287,  288. 
Enti-y  by  consent,  effect  of,  282. 
Non-ieasauce,  effect  of,  280,  288,  293. 

TRESPASSER, 

Duty  of  care  towards  a,  982-1013. 

TRESPASS  TO  PERSONAL  PROPERTY, 

Distinguished  from  detention  of  personal  property,  117. 
Forms  of, 

Through  asportation,  202. 
Through  destmction,  198,  199,  218. 
Levy  of  a  writ  of  fi.  fa.  as,  43,  45. 
Prima  facie  cause,  elements  of: 
In  general,  45,  114-121. 
In  especial, 

If  no  actual  damage,  114. 
If  no  actual  seizure,  116. 
If  through  mistake,  118. 
Prima  facie  justification: 
In  general,  197-206. 
Principle  of  the  defense,  196,  198,  199,  200  note,  202,  203  note. 

Recaption,  as  a  form  of,  202,  204,  206. 
Servant,  injury  to. 

As  cause  in  tx'espass  to  master,  120. 
Wife,  injury  to, 

As  a  cause  in  trespass  to  husband,  121. 

TRESPASS  TO  REAL  PROPERTY, 
Distinguished  from  ejectment,  106. 
Prima  facie  cause,  elements  of: 

In  general,  28,  29,  30,  31,  33,  36,  105-113. 
In  special, 

Accidental  damage,  36. 

Actual  damage,  whether  essential,  28,  109,  110. 

Actual  damage  through  concussion,  whether  sufficient,  .38,  43,  note. 

Character  of  ivossession  ncHiJessary  for  plaintiff,  1(K>,  107,  108. 

Defeudajit's  act,  29,  30,  31,  33,  35,  38,  43  note,  105. 


INDEX  14G1 

[The  figures  refer  to  pages] 

TRESPASS  TO  REAL  PROPERTY— Continued, 
Primu  facie  cause,  elements  of — Continued: 
In  special — Continued, 

Property  affected,  whether  a  trespass  if 
Entry  on  part  only  of  tract,  105. 
Entry  on  subjacent  space,  113. 
Entry  on  superjacent  space,  112. 
Justification  in  trespass  to  real  property: 

Forms  of  considered,  28,  29,  159,  1(j9,  170,  178,  ISO,  181,  183,  187. 

TRESPASS,  WRIT  OF, 

Its  origin  and  purpose,  23,  25,  26,  294,  295. 
Its  relation  to  the  king's  peace,  25. 
Jurisdictional  features  in,  26. 

TROVER, 

See  Trover  and  Conversion. 

TROVER  AND  CONVERSION, 
Action  for: 

Origin  of,  316,  318. 

When  concurrent  with  trespass,  480  note,  185. 
Animals,  as  subject  matter  of  conversion,  447. 
Building,  as  subject  matter  of  conversion,  446. 
Demand  and  refusal: 

Conversion  through,  469-474,  470  note. 
Conversion  without,  475-493. 
Detinue,  distinguished  fi-om  trover,  443  and  note. 
Fixtures,  whether  subject  matter  of  conversion,  445,  447. 
Judgment  for  plaintiff,   effect  of  as  to  property  in  conversion,  451,  452 

note,  454. 
Land,  whether  subject  matter  of  conversion,  445,  446  note. 
Money,  whether  subject  matter  of  conversion,  448,  449. 
Nature  of  the  tort  of  conversion,  437-455. 
Negligence  distinguished  from  conversion,  441,  442  note. 
Possession,  right  of,  in  conversion,  456  note. 
Prima  facie  cause  in  conversion,  455-493. 
Declaration  in  conversion,  437,  465,  467. 
Demand,  469-474. 
Plaintiff's  right: 

In  general,  456-464. 
Finder,  as  plaintiff,  456,  457. 
Officer  in  possession,  as  plaintiff,  456,  459. 
Ownership  as  the  test,  461,  464. 
Defendant's  act: 

Importance  of  showing  ac*t  of  conversion,  405-466. 
Kature  in  general,  529. 

In  case  of  infant,  467. 
Different  forms  of,  considered: 
Alteration  of  quality,  478. 
Asportation,  475. 

Assertion  of  ownership  in  words  only,  476. 
Assertion  of  ownership  through  sale,  482. 
By  bailee,  488,  490. 
Destniction  of  chattel,  479. 
Fraudulent  acquisition,  483. 
Prevention  of  removal,  ,^)06. 

Purchase  in  good  faith  from  one  without  right,  477. 
Refusal  of  plaintiff's  demand,  469^74. 
Sale  bona  lide  of  goods  bought  of  one  without  title,  497. 
Taking  in  excess  of  right,  496. 
User,  484,  487,  488. 


1462  INDEX 

[The  figures  refer  to  pages] 

TROVER  AND  CONVERSION— Continued, 
Prima  facie  justification  or  excuse: 
Affirmative  defenses, 

Wlietlier  admissible  under  plea  of  not  guilty,  404. 

Whether  admissible  under  answer  of  denial,  499. 

Vagueness  in  the  doctrine,  495,  498,  499. 
Excuses  considered, 

Asportation  by  defendant  as  conduit  pipe,  516.  518. 

Asportation  to  reach  defendant's  property,  512.  513. 

Asportation  to  return  chattel  to  owner,  513,  514. 

Conditional-refusal  to  deliver,  501,  502,  504.  * 

Delivery  by  mistake,  526. 

Destruction  to  save  life,  511. 

Impossibility  of  delivery,  500. 

Loss  of  the  chattel,  495. 

Mistake  resulting  in  delivery,  526,  527. 

Mortgagee's  dominion  in  good  faith  without  removal  of  goods,  525. 

Preventing  plaintiff  from  moving  his  property,  506,  509. 

Purchase  in  good  faith.  524,  525. 

Refusal  when  return  impossible,  500. 

Refusal  when  defendant's  possession  due  to  plaintiff's  unlawful 
act,  504. 

Refusal  qualified,  501,  502,  504. 

Return  of  chattel  after  act  of  conversion,  529. 

Sale  bona  fide  of  chattel  bought  of  one  without  title,  497. 

Salvage,  495. 

Tender  and  refusal  after  demand  and  refusal,  500. 

User  by  agent  acting  bona  fide  for  principal,  523. 

User  by  infant,  521. 

User  by  mistake,  520. 

User  under  necessity  to  save  property,  519. 
Replevin,  distinguished  from  conversion,  443. 
Subject  matter  of  conversion,  considered: 
In  general,  445. 
Animals,  447. 
Buildings,  446. 
Fixtures,  445,  447. 
Fragments  of  building,  446  note. 
Money,  448,  449,  450  note. 
Trespass,  distinguished  from  conversion,  437,  438,  440. 

TURNTABLE  DOCTRINE,  993,  995,  999,  1001  note,  1002,  1009. 

VI  ET  ARMIS,  fj 

As  an  essential  in  trespass,  23,  25,  27.  . 


0 
L 


f 


WATER  IN  ARTIFICIAL  RESERVOIR, 

Liability  for  damage  from  escape  of,  776-791,  795,  797. 

WESTMINSTER  THE  SECOND,  [ 

Statute  of,  chapter  24. 

Tort  actions  before  its  enactment,  294. 

Its  terms,  316  note. 

Its  effect  in  giving  rise  to  actions  on  the  case,  316,  317  note. 


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